SANWARMAL KEJRIWAL v. VISHWA COOPERATIVE HOUSING SOCIETY LTD. & ORS

Citation: [1990] 1 S.C.R. 862

Court: Supreme Court of India

Bench: K. JAGANNATHA SHETTY, A.M. AHMADI

Case summary

On the question of tenancy under Section 15A the Court concluded as under: 2 as his licensee and allowed him to occupy the suit flat temporarily on his promise to vacate when required by opponent No.

Judgment text

The Judgment of the Court was delivered by AHMADI, J. Special leave granted. Can a licensee occupyng a flat in a tenant-co-partnership society be evicted therefrom under Sub-Section (1) of Section 91 of the Maharashtra Co-operative Societies Act, 1960 (Act No. XXN of 1961), hereinafter called 'the Societies Act', notwithstanding the protection extended by Section 15A of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 (Act No. LVll of 1947), hereinafter called 'the Rent Act', as amended by Act XVII of 1973 or whether such proceedings would be governed by Section 28 of the Rent Act? That is the question which arises for our determination in the context of the fact that the appellant licensee claimed to be in actual possession of the flat on 1st February, 1973, under a subsisting licence, albeit without the express permission of the society.

The factual matrix in which this question needs to be answered may be briefly stated as under: The Vishwa Co-operative Housing Society Ltd. , respondent No. 1, hereinafter called 'the Society', was registered sometime in 1948 , ).. __ under the provisions of the Bombay Co-operative Societies Act, 1925 and is deemed to be registered by virtue of Section 166(2) under the present Societies Act. On 2nd March, 1949 one Laxmi Devi Kejriwal was admitted to the membership of the society and was allotted Flat T · No. 25 of the multi-storeyed building known as 'Vishwa Mahal' situate on "C" Road, Churchgate, Bombay-20. The said LaXIni Devi gifted her interest as the allottee-member of the society to her brother Ambica Prasad Sharma of Udaipur. One D. P. Kejriwal who was looking after this flat inducted the appellant therein w. e. f. 1st June, 1957 under a leave and licence agreement on a licence fee of Rs. 400 per month. While the appellant was in actual occupation of the.

flat, the allottee-member Ambica Prasad Sharma transferred his interest therein to his brother Harl Kumar Sharma, respondent No. 2, sometime in July 1967. The said respondent was admitted to the membership of the society on 15th July, 1967. It appears that even after this transfer C- D. P. Kejriwal continued in management of the flat and collected and received the licence fee from the appellant till the middle of 1979 when he received a letter from respondent No. 2 claiming onwership of the flat. The appellant then filed an interpleader suit in the Court of Small · ~- Causes, Bombay, seeking a direction to whom he should pay the rent for the flat occupied by him. This interpleader suit was disposed of on 21st June, 1983. Immediately thereafter respondent No. ·2 deposited Rs. 5,500 on 28th June, 1983 with respondent No. 1society towards the society's cost to initiate proceedings for eviction of the appellant from the flat in question under Section 91(1) of the Societies Act.

Two days · later the respondent No. 2 filed a suit for the eviction of the appellant from the flat in the Court of Small Causes, Bombay. After respondent -- No. 2 deposited Rs. 5,500, the society passed a resolution on 5th July, 1983 to initiate proceedings under Section 91(1) of the Societies Act :- for the eviction of the appellant from the flat in question. Thereupon the society served the appellant with a notice to quit dated 11th July, ~ 1983 and thereafter instituted the action under Section 91(1) of the Societies Act. The appellant raised several defences, two of which may be noticed. He firstly contended that the so-called document of leave and licence in fact created a lease and, therefore, the proceeding under Section 91( 1) of the Societies Act was not competent.

Secondly he contended that even if it is assumed that the relationship was of a licensor and a licensee under the deed, since he was in actual occupation and possession of the flat in question under a subsisting licence right from 1957 to 1st February, 1973 he was a statutory tenant under Section 15A of the Rent Act and was, therefore, entitled to protection from eviction till a competent court granted eviction on any of the grounds set out in Sections 12 or 13 of the Rent Act. He, therefore, contended that the Cooperative Court had no jurisdiction under Section 91(1) of the Societies Act and the proper court to approach was the one under Section 28 of the Rent Act, which the respondent No. 2 had in fact approached. · ·-r , \ The Cooperative Court came to the conclusion that the relationship created under the document of leave and licence was that of a licensor and a licensee.

On the question of tenancy under Section 15A the Court concluded as under: "So far as second part of the issue regarding opponent No. 2 contending to be tenant of opponent No. 1is concerned, the opponent No. 1 in his evidence has mentioned to the effect that after his becoming a member of the society he initially accepted the opponent No. 2 as his licensee and allowed him to occupy the suit flat temporarily on his promise to vacate when required by opponent No. 1. He has further stated that he filed the case in the Small Causes >---- Court for ejectment of opponent No. 2 in his own right as advised by his Advocate in that case. He has also stated that he accepted Opponent No. 2 as his tenant because after 1. 2. 1973 there is change in law and so he had to accept opponent No. 2 as his tenant. In view of this evidence I have to give a finding in the affirmative in respect of part of ' the issue whether opponent No. 2 proves that he is a tenant "'----ofopponent No. l''.

In other words the Cooperative Court came to the conclusion that the appellant was a tenant of respondent No. 2 under Section 15A of the Rent Act since he was in occupation of the flat on 1st February, 1973. After finding the appellant to be a tenant of respondent No. 2 under section 15A, the Cooperative Court proceeded to observe as under: "Now regarding the effect of findings on the parts of issue No. 2 as mentioned hereinabove, the position in law is quite clear that even though the non-member occupant could at best be regarded as tenant of member, he cannot be deemed as tenant of the society because the society does not fall within the definition of the term landlord under the Rent Act". The Cooperative Court, therefore, came to the conclusion that the society could maintain an action under Section 91(1) of the Societies Act notwithstanding the fact that the occupant was a tenant under Section 15A of the Rent Act qua the member-allottee.

ln this view, the Cooperative Court passed an ejectment order against the appellant and ordered that the member shall personally occupy the flat in question within 15 days from the receipt of possession thereof. The appellant feeling aggrieved by this order filed an appeal under Section 97 of the Societies Act to the Maharashtra State Cooperative Appellate Court, Bombay, being Appeal No. 206 of 1988. The said appeal was dismissed with costs on 22nd December, 1988. T! te appellate court also took the view that regardless of the relations between the occupant of the flat and the member-allottee, the society was entitled to maintain an action under Section 91( 1) of the Societies Act since there was not and there could not be any relationship of landlord and tenant between the society and the occupant. It accordingly confirmed the order passed by the Cooperative Court. Feeling aggrieved by the concurrent findings recorded by the said two courts, the appellant preferred writ petition No.

2513 of 1989 in the High Court of Judicature at Bombay. The said writ petition was summarily dismissed on 16th June, 1989 but by a speaking order. The learned Singe Judge while dismissing the writ petition observed as under: "It has now been repeatedly held by the Supreme Court that the protection even though available to the occupier against member of the cooperative society, such protection . cannot be claimed against a housing society. A reference to the decision in O. N. Bhatnagar v. Rukibai Narsindas, reported in AIR 1982 SC 1097, is sufficient". The decision of this Court in Hindustan Petroleum Corporation Limited v. Shyam Cooperative Housing Society, [1988] 4 SCC 747= AIR 1989 SC 295 was distinguished as not laying down any proposition that a licensee is entitled to take advantage of Section 15A of the Rent Act even against the society. So stating the learned Judge dismissed the writ petition. That is how the appellant is before us by special leave. __.

), Section 91(1) of the Societies Act insofar as relevant for our purposes reads as under: "Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitu- tion, management or business of a Society shall be referred by any of the parties to the dispute -( } • . . . . . . . . . . to the Cooperative Court if both the parties \ thereto are one or other of the following: (a) a society ......... . (b) a member, past member or a person claiming through a -:A.. member, past member or a deceased member of the society Sub'section (3) reads as under: "Save as otherwise provided under sub-section (2) to Section 93, no court shall have jurisdiction to entertain any suit or other proce~dings in respect of any dispute referred to in ,. k . sub-section (1)" Sub-section (2) of Section 93 Jays down that: "Notwithstanding contained in this Act the Cooperative Court may, if it thinks fit suspend any proceedings in ',. ,..

___ respect of any dispute, if the question at issue is one involving complicated questions of Jaw and fact, until the question has been tried by a regular suit instituted by one of the parties or by the society". . - Sub-section (1) of Section 99 which begins with a non-obstante clause gets attracted if there arises any dispute touching the business of a society. Such a dispute can be referred to a Cooperative Court if both parties to the dispute are one or other of those enumerated in clau_S{OS (a) to (e) thereof. These include a society, a member or a person claiming through a member or a past member or a deceased member. The dispute in the present case is between the society, its member and appellant, a person stated to be one claiming through the present member or the past member. The crucial question which arises is whether the dispute or controversy between the parties can be said to be one touching the business of the society.

If yes, the Cooperative Court alone will have jurisdiction since the jurisdiction of every other court is ousted by virtue of Sub-section (3) of Section 91 except for the limited purpose stated in sub-section (2) of Section 93 of the Societies Act. Under bye-law No. 2 the objects of the society are inter alia to carry on trade of building, buying, selling,' hiring, letting and developing land on cooperative principles. Regulation 4 in Form A provides that no tenant-member shall assign, under-let, vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the society. Bye-law 7A lays down that an outsider-non-member can be allowed to take advantage of the member's flat only on production of a written confirmation of the member before the society and on the society thereupon admitting such member as a 'nominal' member of the society.

Admittedly in the present case no written permission of the society was obtained either by the member or by the appellant before the latter was put in possession of the flat in question nor was any request made to the society to admit the appellant as a nominal-member. It was, therefore, contended on behalf of the society that the entry of the appellant in the flat in question was clearly in violation of Regulation 4 and bye-law 7A adverted to above and, therefore, the dispute was clearly one touching the business of the society attracting Section 91(1) of the Societies Act.

The appellant's challenge as pointed out earlier can be said to be two fold, namely, (1) the dispute between the appellant and the society cannot be said to be in any manner related to the business of the society and (2) since the jural relationship between the member and the appellant was admittedly of landlord and tenant, the jurisdiction of the Cooperative Court under the Sodeties Act was clearly barred by virtue of Section 28 of the Rent Act which is a special statute dealing with landlord-tenant relationship. The Rent Act was enacted to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions and also to control the charges for licence of premises, etc. Section !

SA which was inserted by amending Act 17 of 1973 provides as under: "15A(l) Notwithstanding anything contained in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st 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 any part thereof, in his occupation". The expression 'licensee' is defined in sub-section (4A) of Section 5 as under: