O. N. BHATNAGAR v. SMT. RUKIBAI NARSINDAS & ORS

Citation: [1982] 3 S.C.R. 681

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A.P. SEN, E.S. VENKATARAMIAH

Case summary

ice~s~~· for such questions do not arise under the Act: The appellant having raised a plea in the nature of demurrer, the question of jurisdic\jop ~114 ~ b~ ~! suit filed by the appellant in the Court of Small Causes, Bombay was dismissed both on merits as well as on the...

Judgment text

0. :N. BHATNAGAR v. , SMT. RUKIBAI NARSINDAS & ORS. April 2I; /982 " [S. MURTAZA FAZAL ALI, A. P. SEN AND E. S. VENKATARAMIAH, JJ. ) Maharashtra C'oofllrative Societies Act, 1960 Section 91(1)-'~Dispute touch· ing the business of the Society"-Whtther a claim for ejectment by a Hous/116 COopeTtiliv~ Soci~ty o,,r. an occupant of a lflat who had been let i1'to pOssession of the premises under an agreement ofleave and licence executed between him and member oftM Society is a "dispute" referable to section 91(1) oftM Act read with bye/aw• 66 & 68(a). Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Sections 5(4A), 13, ISA and 28, (Scope of-WhetMr the "non-obstante" clauJe In Section 28 ofthe Rent A. ct has an overriding effect ove'r the non-obstante clau1e in Section 91(1) ofSockti•s Act. Applicability ofSection 15A of the Rent Act Re:! }udlcata -Section 11 of the Civil Procedure Code.

Shyam Cooperative Housing Society Limited is constituted under the provisions of the Maharashtra Cooperative Societies Act, 1960 as a tenant copartnership type housing society. Respondent No. 1 Smt. Rukibai N. Bhayoaoi who is a copartoer tenant member of llat No. 52 in building SA in the housing colony known as "Sbyam ,Niwas'~ situate at Warden Road, Bombay, iriducted the appellant in the said fiat under an Agreement of Goave and Licence dated November 28, 1961 after the appellant was accepted by the Society as a'"nominal member". , The agreement was renewed from time to time and tho period of the Jut agreement expired on February 28, 1965.. By her notice dated March 31, · 1965;,rcspondoot NO'. I called upon the. appellant to vacate the premises as bis occuP. tioo of the promises had become unlawful after . termination of the licence. The appellant failed to comply with the demand and therefore, respondent No.

I preferred the claim f0r posso1Sion before tho cooperative court which by its judgment dated April 28, 1978 made ·an Award against the appellant for possession .. r the fiat in dispute and for arrears of rent and mesoo profits • amounting to Rs. 30,000 against (tho awar. d )tho appellant filed an appeal before . the cooperative Appellate Court but it was ·dismissed in January 1979. Thereafter ihe appellant filed a Writ Petition in the High Court in February 1979 and it was dismissed in March 1981. Tho Letters patent Appeal preferred by tho appellant was also rejected. ·Hence the appeal by. special ! eave. Dism;uiog the appeal, the Court, . • ,. UllT RSl'<>RTS II~~21 3s. c. li. thereof, upon- revocation of 1iccnce, is a "dispute" falling within the purview of Sec. (I) of the Maharashtra Cooperative Societies Act, 1960. [696 D-E] Deccan Merchanrs Cooperative Bank· Ltd. v. M/s. Dalichand lugraj Jain & Ors. [1969] I SCR 887, distinguished.

· 2:1 The proceedings under section 91(1) of the Maharashtra Cooperative Societies Act, 1960 were not barred by the 'provisions of Section 28 of the - . Bombay Rents, Hotel and Lodging. House Rates Control ·Act, 1947. The two Acts can be best harmonised by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act should apply. But, where the parties admittedly do not stand in tho-jural relationship of landlord an. d tenant, as here the dispute would be governed by Section 91(1) of the Societies •Act. The appellant by virtue of his being a nominal member, acquired a riRht to occupy the fiat as a licensee, but his rights were inchoate. [697 B-D] Sabharwa//Jrothers and Another v. Smt, Guna Amrit Thandani of&Jmbay, [1973] l SCR 53 discussed and distinguisljed. · ~ 2:2 The two enactments deal with two distinct and separate fields and therefore the nan-obstante clause in s. 91(! ) of the Act and that ins. 28 of the Rent Act ope.

rate in two different planes. The two legislations rertain to different topics ofl~gislation. It will be noticed that s. 28 of the Rent Act proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decidei all questions or claims under that Act as to parties between whom there is or was a relationship of landlord and tenant. It doea not invest those courts with exclusive power to try questions of title, such as between the rightful· owner and a trespasser or a licensee, for such questions· do not arise under the A~. The appe1lant having raised a plea in the nature of d~murrer, the question of jurisdiction had to be determined with 4dvertence to the allegations contained in the ~tatement of claim made by the respondent No. 1 under s. 91(1) of the Act and those allegations must be taken . to be true. The respondent No.

I unequivocally asserts that tbe parties stood in the relation of licensor and licensee and that fact is clearly borne out by the terms of the agreement of leave and ·licence as . ' between the parties. The burden was on the appellant to establish that he hid the status of a "tenant" within the meaning of s. S(ll) of- the Rent Act, as it then stood, and that burden he has failed to discharge. If, · therefore, plaintiff l in the plaint does not admit a. relationship . ·which would attract any of the provi~ ~-/sions of the Act on which the exclusive jurisdiction given in- s. 28 depends, the ,. defendant cannot by his plea force the plaintiff' to go . to a"forum where on averments the claim does not lie. [689 A-El + • 3:1 Upon the terms of Sections 5(4A) and 15A of the Rent Act, it is clear that the appellant is not Cotitled to the protection of Section ISA. The sine qUa non for the applicability of s. 15A of tbe Rent Act is that a licensee must be in oi::cupation as on Feb.

1, '73 under a subsisting li'cence. It is not diiputed that the appe1Jaot does not answer tha't dCscripti'on ·since the _agreement of leave and-:::. lic~ce in his favour admittedly stood terminated by the notice ofthe respondent No. I dated March·31, 1965. That being so, tho appellant is nothing but a rank trespasser and is not entitled to the protection of s. 15A of the Rent Act and cannot therefore plead tho bar of s. 28(1) thereof•. [G90 F-H] b. N. llllA'l'NAl'. lAll ~. RUklllAI 683 3:2 As a result of the introdilction of s. ISA and. s. S(4A). of the Rent Act by Maharashtra Act J. 7 of 1973, the licensee of any wemi! iOs or any part thereof in a building v~stingjn or leased to a cooperating housing society registered or deemed to be registered under the Act, who was in occupation of such premises under"a subsisting licence as on Feb. 1, 1973, is by a legal fiction, deemed to be a tenant add thus has the prOtectioo, of the Rent Act.

In such a case, the dispute between a licensor and a licensee relating to possession of the premises of flat would attracts. 28 read with ss. ! SA and S(4A) of the Rent Act and fall outside . the purview of the Regis. trar's jurisdiction to adjudicate upon such dispute under s. 91(1) of the Societies Act. In the instant case the question does not arise. [691. A-Cl . 3:3 A bare reading of the agreement of leave and licence is clearly indi.. cative of the fact that the appellant was a licensee. Admittedly his occupation Of the fiat was not as a tenant but as a Jicensee. The question whether or not -~the appellant was alicensee·Of the fiat or a tenant thereof was directly and substantially ill issue between the parties in the suit. The finding that he was~ot a tenant{but had only the status of 8: licensee operates as resjudicata between the par. ties.

The appellant having failed in his suit for declaration of his alleged status of a tenant brought in the·court of small causes cannot be perlnitted to reagitate the same question in these proceedings and (iii) tho licence of the appellant having been terminated by respondent No. 1, by h~r notice dated March 31, 1965, the appellant was not in occupation of the fiat on Feb. I, 1973 under a subsisting licence and therefore did ·noi acquire the status of a tenant under 8ection ISA and is, not protected 11nder section 13 of the Rent Act. [691 B-H; 692 A) 4. · The respondent NQ. 2-Society being a copartnership type housing society, having let fiat no. S2 to the respondent no. I as a copartner tonantmember, wa_s vitally interested in ettsuring that no stranger is in unauthorised occupation of tbe fiat after the expiry of the terni of tho licence. It was therefore rightly transposed as a co-disputant in the proceedings under section 91(1) of the Societies Act, .

and could raise a dispute regarding the unauthorised occupation of the premises by the appellant after the revocation of the licence. [693 D-G) C1VIL APPilr. LATB Jua1so1CT10N : Civil Appeal No. 1843 of 1981. ' . Appeal by special leave from the judgment and order -dated t the·2lst April, 1981 of the Bombay High Court in Appeal No. 168 of 1981. · ' H. H. Adva~i, P. R. Ramasesh and Manu lyanger for the Appellant. · S. N. Kackar, V. K. Panwani and Girish Chandra for . the Respondents. The Judgment of the Court was delivered by ' 684 StJPk~MB CObRt ki! l>()kts · [1982! 3s. c. i. SEN, J. This appeal by special leave directed against the . > judgment of the Bombay High Court dated April 21, 198 I raises a qμestion of some importance.

The question is whether a claim for ejectment by a housing cooperative society, of an occupant of a flat who bad been let into possession of the premises under an agreement of leave and licence executed between him and a member of the society, by virtue of bis being a nominal member thereof, is a 'dispute touching the business·of the society' within the meaning of sub-s. (I) of s. 91 of the Maharashtra Cooperative Societies Act, 1960 (for short 'the Act'). The material facts giving rise to this appeal are as follows. The respondent No. 2 herein, Sbyam Cooperative ·Housing Society Limited is constituted under the provisions of the Maharashtra Cooperative Societies Act, 1960 as a tenant co-partnership type housing society to which Regulations in Form-A apply vfz. Regula- . tions relating to tenancies to be granted by the society to members in respect of houses held by the society.

It owns and manages two bousing'colonies known as 'Sbya_m · Niwas'· and 'Navik Niwas' at Warden Road, Bombay. The society ~on_tinues to be governed by Regulations in Form-A ever since they were adopted by it after approval by the Registrar of Cooperative Societies in 1950. It appears that in 1954 the Directors passed a resolution for the intro· 'E duction of Regulations in . Form-B but it was never implemented. The respondent No. I Rukibai N. Bhavnani is a' co-partner tenant member of flat No. 52 in building No. 5-A in· ,the housing colony known as 'Shyam Niwas' situate at Warden Road, Bombay.. The respondent No. 1 inducted the appellant in flat No. 52 under an agre~ment of leave and licence dated Novell! ber 28, 1961. The bye- " laws of the society provide that no member can part with his posses~ion of the flat under an ~agreement of leave and licence to another except with the approval of the . society and unless such licensee becomes a nominal member thereof. The respondent Nq.

I t and the appellant accordingly appiied to the society on December 8, 1961 for accepting the appellant to be a nominal member. The respondent No. ~ society passed a resolution N,o. 90 on December 15, 1961 ,accepting the appellant as a nominal member. The leave and licence agreement executed by the respondent No. I was renewed from time to time and the last agreement was executed on January 10, 1965, the term of which was to expire on February 28, 1965.. By her notice d! lted March 31, 1965 the respondent No. I called upon the appellant to vacate the premises as his occupation ' 0. N. BHATNAGAR v. RUKIBAI (Sen; I. ) 685. of the premises . had become unlawful after termination of the licence. The appellant failed to comply with the demand and has remained in unauthorised occupation of the fiat for all tbese years.. After termination of the agreement, in May 1965, the respondent No. JSmt. Ruklbai N. Bhavnani ll4en! tfo, ~ IJl1~9μivpj:ally f~s. ens t)/~I the parties sto111!

i11 ti\~ i~WjQJ . of li! ;e11~or ,1μ19 ! ipel! Sil'e ,lllld t~t fact is clearly bol'l! e l! Jll l>Y ! hg terl! lS gf t~ llSF~~J! le111 of le. ave ap,cj )icence as betl}'~ll lb¢ JlllT#! ll• 'fhe tnn th-1 he l)a~ ~~~ 11t11t11• qf a "! ~111. 1. 111'; witbil! t. be lll~~11ins of s. 5(11} or tit~ Re11t 4RI• as ii t). t,en ,100~. pn~ 1"81 Jmrd,e,I! ! ,le has failed to dis~])arse. If, lh•Q:f\lr~, pliiiff! itf jn ! ~~ p)~i!! t docs not admit a relationship whi\:l1 w. 01114 ! iltT,aqt · @! If pf f4~ ·prQvisi? ~s · of the Act on 1}1'. hich tb.. ~. f.. x. c(1. ". iv,~ j. yr. i.. ~. 4ictJol1 jliy~n. in s. 2? pe]l! ll)dS, the de(end11nt ~~nnqt by ! ii~ pie~ fo. rce ~~~ plaintiff to > to a forum . wlJ,er. e QJ! @ver111e11ts t! Je claim 4Pes 110,r J1e. · • In our opinion, there is a felt need at the very outset to displace . the appellant's apprehensions that the effect of upholding the judgment ,of the ijigh f:::ourt would ~e to throw· all licensees of residfntj~I ft~ts. in m? )! i:storeyed b~!

ldin. ¥s befongfng to cooperative . F ho! J~mg ~! Jciet1es w1tho~t aily protection. The apprehensions, ff -. w~ may say SQ, appear to 6e 'wholly unfounded. . The Legislature w~s fu)! y aware of the acute paucity ·of· honsirig accommodation in . ~· the metropolitan city' of Gre~ter · Bombay and· other urban areas in the ~tate,'ll!! d. also the fact' that lessors of ownership flats were adopti~g a device of inductln$ tenants ·under the garb of an ljgreeinenl of leave arid licence \Vhfoh left the licensee·witb no protection. The Legislature therefore, stepped in and by Maharashtra Act 17 of 1973 the foilowing provisions were inserted in tlie Rent Act. Sub-s'. (1) of s. ISA of the Rent ACt, as introduced now: provides : ' . . ' "J~A(I) No! wit! ist~4iog WYlhipg co11\~ined elsewher. e in this A9t or anything contrary in any ·other ·! a1V for th~ i \ 690 SUPRllME COURT REPORTS (1982) 3 s. c. R. 'fl t.

ime being in force, Qr in any contract, where any person is on the Ist day of February 1973 in occupation of any premises, or any part thereof which is not less than a ' room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation; , 0 (2) xx xx xx xx ~ ... The term "licensee" as defined in s. 5(4A), msofar as material, reads: "5. In this Act unless there is anything repugnant to the subject or cont~xt- (4A) "licensee", in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises .

· or part thereof in 11 building vesting in or leased to a cooperative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960; . but does not include a paY,ing guest, a member 6f a family residing together, a person in the service or employment of the licensor ·etc;......... and the expressions "licence, "licensor. , and "premises given on licence" shall be construed accordingly. " It i§ clear upon the terms of these seetions that the appellant is not entitled to the protection of s. ! SA of the Rent Act. The Legis- '·· lature in its wisdom has drawn a. line at February I, 1973 and laid ,¥'_.. ,... down the condition that a licensee in occupation under a subsisting ,r • licence as on that date shall. be deemed to be a tenant. The sine qua non for the applicability of s. ISA of the Rent Act is that a licensee must be in occupation as on February 1, 1973 under a subsfsting licence.

·It is not disputed that the appellant does not answer that description since the ·agreement of leave and licence . in his favour admittedly stood terminated by the. notice of the respondent No. I dated March 31, 1965. That being so, the appellant is nothing but a rank trespasser and is not entitled to the protection ll of s.. ISA of the Rent Act and cannot therefore plead the bar of s. 28(1) thereof. 0. N. BHATNAGAR v. RUKIBAI (Sen, J. ) 691 As a result of the introduction of s. l 5A and s. 5(4A) of the Rent Act by Maharashtra Act 17 of 1973, the licensee of any pre- • mises or any part thereof in a building vesting in or leased to a cooperative housing society registered or deemed to ·be registered under the Act, who was in oceupation of such premises under ·a subsisting licence as on February I, 1973, 'is by a legal fiction, • · deemed to be a tenant and thus bas the protection of the Rent Act.

In such a case, the dispute between a licensor and a licensee relating to possession of the premises of a flat would: attract s. 28 read witm ss. . 15A and 5(4A) of the Rent Act and fall outside the purview of the Registrar's jurisdiction to adjudicate upon sucl:t dispute under s. 91 (I) of the Act. Once this aspect is . kept in view, there need be no apprehension \s expressed by learned counsel for . the appellant that tbe effect of upholding the judgment of the High Court would be t throw all licensees of residential flats in multi-storeyed buildings belonging to cooperative housing societies without any protection. It would beconvenient to deal with the first two questions together. The submission that the a~pellant was inducted as tenant under the agreement of leave and licence is wholly misconceived. The distinction ·between a lease and a licence is wellknown.

A bare reading of the agreement of leave and licence is clearly indicative of the· fact that ·tbe appellant was a· licensee. Admittedly,'his occupation of the flat was not as a tenant but as a licensee. That apart, the appellknt brought a suit before the Court of Small Causes seeking a declaration·, that it was a tenant duly protected by the Rent Act and the agreement of leave and '• ·licence was only a colourable transaction, The suit was heard on merits and was dismiised by the Court of Small Causes in July ... 1972. Aggrieved by that decision, the appellant preferred an appeal ~efore the Appellate Bench of the Small Causes Court but that appeal also ·'Was dismissed. The question whether or· not the appellant was a licensee of the flat or a tenant thereof was directly t . and substantially in issue between the parties in ,that suit. The finding that be was not. a tenant but had only the status of a licensee operates as res judicata between the parties. The appellant having fai!

ei:I in his suit for declaration of his alleged status of a tenant brought in the Court of Small Causes cannot be permitted to reagitate the same question in these proceedings. Further, the licenceof the appellant having been terminated by the respondent No. I II by her notice dated March 31, 1965, the appellant was not in occu· pation of the fiat ·on Februarl/ Ii 1973 '! oder a, stibsistin~ tenancr 692 SpPllBME COURT llEPOllTS l1982] 3 s. c. R. and did not acquire the status of a tenant under s. 15A and is therefore not protected under s. 13 of the Rent Act. ' As bereinbefore adumbrated, the respon 'pelfant in view of para 5 of the Form-A. All tnat she could do ifshe did not requite the Ila! for lier immediate occupation was to petinit the appella~t or sdme one fo occi'. l]fy ilie same under an ~ ,L. agreement of leave atid licence. llul fdr thfll · iilltPMe both fhe· pai'ties had to ~omply with tire te'qurte'ttteim of By~-lllws 66. abd 68(a). The respondent Na. I l! '!

l'd tll~ rtppeffailf accoraing(y t;y 'tb;ir application datedpecember 8, 1961 applied 115 tlie so~iety fdt permission to let the flat on leave and licence and for the issuance of five 'B' shares of Rs. JOO ellCti it! lbefr jlii'llt nlllne's ~lied "occu· pancy shares". Tlie te! ponde'nt NO. 2•4(Jtlieti ht it~ teso1utioti d«ted Decembet Is, 1961 isstlOO Ille sfliir~ ats! )lied tot i·n their j6frii names tn'd lliso admitted lite irppe! Jant fts a llohlirliil tnember tot tire purpose of occupjlinJi the flirt. At'ler th~ tetinii! iifion'Of the· ttgre~· Ynent tif leave an:cl li¢cnce, the aptieffant lrad ·no tight io remain iii 6ecnpatfoit of the 6:it. t11e eonletl'tton thal tne resjiond'ent No. 2- 9'6'CieTy cannot raise a di~pute tegMlliilg his unauthorized occupation of the jit~mises ilftef ! h'e reVocli! ioil of ilic ficehcc is devoid of tubM'll'tlce. The re! ;p'(! nde'! 'l! ! Ito. 1-Mcl~y 'being a co-pattnershiJ> type libttsilig ~dcMy, ljilVfog let lia:t N6. 52 to the tcspopdent No.

i at a co'jiStfilet te'llaht inel! lbe'r, Vl'as "<>lf«ily ltiteresl¢d in ensuring tl\ai no stranger is in urUiuthorited 6Ccupa'ffon of fue fiat after the expiry of t1re term ofthe fi~n:ce as it wo'111d teM fo cause annoyance '... and inconvenience to the other co-partner tenant members . of the --..... __~! W --words 'touching the business of the society' occurring in s. 43(1) or the Cooperative Societies Act, 1912 and there was a divergence of opinion expressed by · different High Courts but it is not necessary to burden the judgment with many citations; . In Deccan Merchants Cooperative Bank Ltd. v. M/s. Dalichand 1 Jugraj Jain & Ors. ,( ) the Court had occasion to construe the meaning of the expression 'touching the business-of a society' occurring ins. 91(1) -of the Act•. It was observed that the answer depends on the words used in the Act and that the non-obstante (I) [t969J t s. c. R. 887. 6. 14. llHATNAGAk v. kuKIBAI (§en, J. ) clause clearly ousts.

thejurisdiction of civil courts if the dispute falls squarely within the ambit of s. 91(1) of the Act. The Court·then went on to enumerate five kinds of disputes mentioned in •s. 91(l) : first, disputes louchiog the constitution of a society; secondly, disputes touching election of the office,bearers of a society; thirdly, • - dispu'tes touching the conduct of general meetings of a society; fourthly, disputes touching _the management of a society and fifthly, disputes touching the business of a society. . Io the context, it was said : "It is clear that the word 'business' in this context does · not mean affairs of a society because election of officebearers, conduct of general meetings and management of a society would be treated as affairs of a society. In this sub-section th'e word 'business' has been used·in a narrower sense and it means the actual trading.

or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and it bye-laws:" Io regard to the question whether a dispute touching the assets of a society would be dispute touching the business ,of the society, it ·was observed: "Ordinarily, if a society owns buildings . and lets out parts of buildings which· it d()es not require for its own purpose it cannot be said that letting out of those parts is a part of the business of the society. But it may be that it is the business pf a society to construct and buy houses and let them out to its members. In that case letting out property may be part of its business. " F· Th~s,· the Court adopted· the narrower meaning given to the word 'business' as expressed by the Madra8, Bombay and Kerala High Courts in preference to the wider meaning given by the Madhya Pradesh and Nagpur High Courts. According to the view taken in.

Deccan Merchant Cooperative Bank's case, supra, the word 'busjoess' in the context means "any trading or commercial or other similar business activity of the. society". It was held that the word 'business' in s. 91(1) of the Act has been used in a narrower sense and that it means the actual trading, commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the rules and its bye-laws, . ! J982l 3s. C. ll. In the present ease, thli ~oclefy is, Ii teilililt lco-piirln6ishij) type liousimg society formed with the object of pro\>idill~ residential . aCCO! llmodation to its CO'partner tenarlf lii~'nibers. Now' the natute of.

business which a society carries on lias necessarily to he ascertained from the object for which tlie soi:iety is constituted, and it logically follows that whatever the society does ln the nortnal coutse • otits activities such as bY initiaiing ptoceedlngs tor temovilig an 'act ot trespass by a stranger, frem a llat atlorteli t'6 . ci! le of n~ 11\eMbrel's, cannot but be part of its business. It is as much the concern of t'be society formed with the object of prqviding residential accommodation to its members, which normally is its business, to ensure that the fiats are in occupation of its members, in accordance with the bye-Jaws framed'by it, rather than of a person i111an 'unauthorised occupation, as it. is the concern of the member, who lets it o'ut to another under an agreement of leave and licence and wants to secure possessiop of the premises for his own use afier the termination of the licence.

lt must, therefore, foif \it as a mortgagor in possession arid tlle'refote tli(coo~'tratiVi: hlink'k 'claim for ejectment orthe Jessee did not fall Wit'b'iti s. 91{1) (b) OtttteA9t. "" ' It is true that the Court in Deecan Merchanta Cooperative ~ B~nk'. s i:ase, sbtlril; 'dedft \tifli ''Ii! \\u~ifftt Whetlfer on tbe fatli and circiiln'stances 6T tliat case, tlil! Rl!! it Act apilffell tlld accordiugfy the jurisdiction t! f Hie Regis! fa't utl\ft! r 1. 91(1) l:Sf the Act was ousted aild it was only the Cohrt of Stnall Cattse'S Wliich hlad jll'tisdictioll · to evict the tenant. The ddutl rl! femd to the twin' social f the "Act was il! tended add meant; in the m'llin, to shorten lifig'iifioh, lesl! tn i~ l! o&U iln4't61roVidc a: wmmaty proecdilte for tlie detetlllill'atio'fl bf 1111' dilplltes rt! lating to the i·nternal management of the soCiefie~. ·t11e Relit Aet waa i1itdnded to achieve .. tut BHATNAGAR v. RUKJBAI (Sen, J,) a different social objective i,e.

to prevent the eviction of tenants and enhancements of rent, and then went on to say that it was necessarrthat a dispute between the lal! dlord and tenant should be dealt with by the Courts set up under the Rent Act and in accordance with the special provisions of that Act. It then dealt with the inter-relation between the non-obstante clause in s. 91(1) of the ' Act ,and s. 28 of the Rent Act and observed that this special • objective under the Act does not impinge on the objective underlying the RentAct: It seems to us_that the two Acts can be best harmonised by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, sliould apply. But where the parties admittedly do not stand in the jural relationc' ship of landlord and tenant, as here, the dispute would be governed bys. 91(1) of the Act.

- No doubt, the appellant acquired a right to occupy the fiat as 11 licensee, by virtue of his being a nominal melllber, but in the very nature of things, his righlt were inchoate. Io view of these considerations, we are oi the opinion that the prol! eedings t111der s. 91(I) of the . Act were not barred by the provisions of s. 28 of the Rent Act. A great deal of relianee has been placed by the appellant's counsel on the decision fo Sabharwa1 Brothers & ilnr. v. Smt. Guna Amrit Thandani ef lJoinbay. ('t) · The 'importanee of thaf. ca8e lies in tire fa(! t that it relates to the respondent No, 2 1cici91)11 1UAI tbil diipotant tH11re wzs the owner of a ftat on the Slicdtrd fioor of1lltlck f4il. 8 "Shyam Niwas"• She was 'II meritber '<If the s<lli! ety 'add inrd ~o. \red the fiat in qoesticlll, _'lvh! Cb Wa&· 'tet oot to th6 ajjjl'ellallt Sllbhatwal Btoihers ntltler an ag1"9ei*nt ofteave~d lice~. wlltdi. #Ifs tene~ !

'roln time to 'iinte mid whtn she lffi&d th6 a{l~lill1t fo 'Vlllla~ as llhe requited the -fiat fdt her lJerBonill occuprtion, llidy did not comply with the demand as a result of which the~ owner ol the fiat filed a statement of clail)l before the Registrar under s. 91(1) of the Act which reqtil'ielt a8,Jlrd'icaiion: .. i'hefe 'was ii challenge to the jurisdiction o't the liolni. riee of ille 'Regiattlir'to whottr It was referred, and ultimate. ly he made an award that the appellant Sabharwal Brothers hacl·occupied 'th. e flat on leave and licence basis and was therefore liable to be evicted. In revisiOn, 'the Dench 'of the Smalt Causes Cou'rt held that ~the Registrar's 'nominee aid &live jurisdicfion and the lligh 'Court uplicfd the order of 'the Deneb. Allowing the appeal, this Court observed : \i'l t1n:i1 1s:c. a. ,s3. 698 SUPRlli. iE COIJkt REI'Okts t19Sil 3s. c. l. "With all respect to the Higi} Court, it seems to us that • there was a fuadarneutal error in the above approach.

No doubt it was the business. of the society to let out premises aild a member had no unqualified right to let out his flat or tenement to another by virtue of the bye-laws and a breach of the bye-laws 'could affect the defaulting member's right to membership. But we are not able to see how letting by a member to another member would touch the business of the society which included in. ter alla the trade of buying, selling, hiring and letting land in accordance with coopera· tive principles. The letting of flat by respondent No. I was a transaction of the same ·nature as the society itself was empowered to enter into but and Jetting by itself did not concern the business of the society in the matter of its letting out flats. Nothing was brought to our notice to show that such a letting would affect the bu~iness of the society once it had sold the flat to the respondent No. I. the ·position might have been different if the latter had himself been a tenant of the flat under the society.

"To touch" means "to come in contact with" and it does not appear that there is a point of contact between a letting by the ·· respondent No. and the business of the society when the society was not itself the land. lord of the flat. " · It is we ·think, important to remember that this authority decided only one point albeit a point of great importance namely, . that the society . having ~old th~ ·flat, like any other vendor of immovable property, the lettmg out of. the flat by the flat-owner was no concern of the society. . There was nothing to show that such letting would . affect the business of the society once it has sold the flat. With respect, we entirely agree with all ,that was s~id. But then the Court went on to say : ' "The position might have been different if the latter had himself been a tenant of the flat under lhe society. " It logically follows, as a necessary corollary, that if the transaction between the society and the holder ·of the !

lat were governed by Regulations in Form-A, as h~re,. that is to say, if the society had let out the Ilat to her, the decision of the Court would have been otherwise. The decision in Sabharwal Brothers' ca. •e, supra, is distinguishable for two reasons. First, there was an outright sale of ,the flat by , O. N. BHAtNAOAR v. RtiKlBAI (Sen, ! -) 69~ the society and not th~t it had been let out to her under' Regula- A • tions in Form-A; and secondly, the society having sold the flat, the letting of the flat by the flat-owner did not in' any way affect the business of the society in the mater of its letti"ng out the flat. ·The observation made by this Court that the fact that such Jetting was forbidden by a regulation of14e S<? Cfoty . was immaterial did not fall for decision in that case and was ,a mere obiter. 8 In the result, the appeal mustfail and is dismissed with costs. • S. R. Appeal dismissed. / '