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Sardar Mohan Singh A... v. Maitrai Park Coopera...
Factual and Procedural Background
The Maitrai Park Cooperative Housing Society Ltd. instituted a dispute before the First Co-operative Court, Bombay, seeking eviction of the appellant from Flat No. 15 in Building “F”, Scheme No. 1, Chembur, Mumbai-71. The flat had originally been allotted to Smt. Mohini R. Adwani (Opposite Party 1), who in May 1969 granted the appellant possession under an eleven-month leave-and-licence agreement without the Society’s prior written consent.
Subsequently, by Order No. BCM/HSG/4633 of 1970 dated 6-8-1971, the parent society was bifurcated into two units, with Maitrai Park Cooperative Housing Society Ltd. assuming ownership of Scheme No. 1. Members connected with that scheme—including Opposite Party 2—automatically became members of the new society.
After the licence period expired, the appellant continued to occupy the flat, allegedly ran a canteen there, and refused repeated requests and notices to vacate. The Society therefore initiated eviction proceedings before the Co-operative Court.
The Co-operative Court upheld its own jurisdiction under Section 91 of the Maharashtra Co-operative Societies Act, 1960, found no subsisting licence on 1-2-1973, and directed eviction. The Maharashtra State Co-operative Appellate Court dismissed the appellant’s appeal. A writ petition (No. 4802 of 1984) before the Bombay High Court likewise failed. The appellant then filed the present special leave petition before the Supreme Court.
Legal Issues Presented
- Whether the dispute between the housing society and the appellant fell within the ambit of Section 91 of the Maharashtra Co-operative Societies Act, 1960, thereby giving the Co-operative Court jurisdiction.
- Whether the appellant became a “deemed tenant” under Section 15-A of the Bombay Rent Act, 1947, by virtue of an alleged subsisting licence on 1-2-1973, which would oust the Co-operative Court’s jurisdiction.
Arguments of the Parties
Appellant's Arguments
- The dispute was outside Section 91 because he continued to occupy as a licensee and the member (Opposite Party 2) accepted licence fees, even using the term “rent” in one receipt.
- By operation of Section 15-A of the Bombay Rent Act, the appellant became a tenant on 1-2-1973 and therefore enjoyed statutory protection from eviction in the Co-operative forum.
Respondent Society's Arguments
- The licence had expired; the appellant’s occupation was unauthorised and contrary to the Society’s bye-laws (conversion of the residential flat into a canteen).
- Because the appellant claimed possession through a member of a Co-partnership Housing Society, the dispute squarely attracted Section 91 jurisdiction.
- No subsisting licence existed on 1-2-1973, rendering Section 15-A inapplicable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| A.V.R. & Co. v. Fairfield Cooperative Housing Society Ltd., (1988) 4 SCC 408 | Held that disputes involving possession through a member of a Co-operative Housing Society fall under Section 91; Section 15-A of the Bombay Rent Act does not apply absent a subsisting licence on 1-2-1973. | The Supreme Court stated that its reasoning in that earlier case “will also govern this case,” thereby disposing of the present appeal on the same legal footing. |
Court's Reasoning and Analysis
The Supreme Court relied entirely on its prior decision in A.V.R.& Co. v. Fairfield Cooperative Housing Society Ltd. It reiterated two key conclusions:
- The controversy is a “dispute” under Section 91 because the appellant’s claim to possession emanates through a member of a Co-partnership Housing Society.
- Section 15-A of the Bombay Rent Act is inapplicable because no licence subsisted on 1-2-1973; thus, the appellant never attained “deemed tenant” status.
Finding no distinguishing facts, the Court affirmed the concurrent findings of the Co-operative Court, the Co-operative Appellate Court, and the Bombay High Court.
Holding and Implications
APPEAL DISMISSED.
The eviction decree stands affirmed. Execution is stayed for four months from the date of the Supreme Court’s order, conditioned on the appellant’s filing, within two weeks, an undertaking to: (a) refrain from transferring, assigning, or encumbering the flat; (b) deliver peaceful possession on or before expiry of the grace period; and (c) pay occupation charges monthly before the 7 th of each succeeding month. Failure to comply renders the decree executable forthwith.
Implications are confined to the parties: the appellant must vacate, and the Society secures possession. No new legal principle is created; the decision merely re-affirms the precedent set in A.V.R.& Co. regarding Section 91 jurisdiction and the inapplicability of Section 15-A when no subsisting licence exists.
B.C Ray, J.— The Maitrai Park Cooperative Housing Society Ltd. has filed a dispute before the first Cooperative Court, Bombay stating inter alia that the opposite party 1 Smt Mohini R. Adwani who is a member of the society and was allotted flat No. 15 in Societies ‘F’ building in Scheme No. 1 at Chembur Bombay-71 inducted the appellate opposite party 2 without obtaining the prior written consent of the society in May 1969, on the basis of a leave and licence agreement for a period of 11 months. The said society Maitrai Cooperative Housing Society Ltd. was divided into two units that is Maitrai Park Cooperative Housing Society Ltd., Chembur which is the owner of the building in Scheme No. 1 including Building No. F and the Maitrai Bijoy Cooperative Housing Society Ltd. Chembur-74 Scheme No. 2, by order of the Assistant Registrar Cooperative Housing Society Ltd. Bombay. By virtue of the division of the society the assets and liabilities so far as Scheme No. 1 were taken over by the present disputant society, that is Maitrai Park Cooperative Housing Society Ltd. and the members in respect of the said building in Scheme No. 1 automatically became members of the society by the Order No. BCM/HSG/4633 of 1970 from 6-8-1971. The Respondent Opponent 2 automatically became a member of the disputed society in respect of the said flat No. 15 in ‘F’ building. The opposite party appellant who was occupying the premises unauthorisedly after the expiry of the period of the licence was asked to vacate the flat by the member of the society that is Respondent 2. As he did not accede to the request Respondent 1 society had to take steps for evicting the appellant from the said flat so that Respondent 2 can occupy the same for her residence. The society served a notice on the appellant for vacating the flat. But the appellant did not vacate the flat. Respondent 1, the housing society, filed a dispute before the Cooperative Court for eviction of the appellant who was in unauthorised occupation of the flat and who had been using the said residential flat by opening a canteen therein in violation of the Bye-laws framed by the society. The appellant questioned jurisdiction of the Cooperative Court to entertain the dispute on the ground that the dispute does not come within purview of Section 91 of the Cooperative Societies Act as he has been continuing in possession as licensee till the date of filing of the dispute and Respondent 1, the member of the society, has been receiving licence fees from him. It has also been stated that in one of the receipts issued by the member the word ‘rent’ has been used. The appellant also pleaded that continuing as a licensee he has become a tenant under Section 15-A of the amended Bombay Rent Act on and from 1-2-1973. The dispute is as such beyond the jurisdiction of the Cooperative Court. The Cooperative Court after hearing the parties made an award holding that the dispute fell within the purview on Section 91 of the Maharashtra Cooperative Societies Act, 1960 as the appellant is claiming to be in possession of the flat as licensee through a member of the society. It also held that there was no subsisting agreement of licence in favour of the appellant on the date of the enforcement of Section 15-A of the Bombay Rent Act and so the appellant had not become a deemed tenant.
2. Against this award an appeal was filed before the Maharashtra State Cooperative Appellate Court. The appeal was dismissed and the award of the Cooperative Court directing eviction of the petitioner from the flat No. 15 was affirmed. The appellant thereafter moved the High Court of Bombay in Writ Petition No. 4802 of 1984. The said writ petition was dismissed with costs. The appellant thereafter filed the instant special leave petition. The facts of the case are more or less similar to the facts of A.V.R & Co.v. Fairfield Cooperative Housing Society Ltd. (1988) 4 SCC 408
3. We have already held that the dispute in question comes within purview of Section 91 of the Cooperative Act as the appellants claim to be in possession of the flat through a member of the society which is a Co-partnership Housing Society and Section 15-A of the Bombay Rent Act does not apply as there was no subsisting agreement of licence on 1-2-1973. Therefore, the judgment rendered by us in A.V.R& Co.v. Fairfield Cooperative Housing Society Ltd. (1988) 4 SCC 408 will also govern this case. The appeal is, therefore, dismissed without any order as to costs. The decree will not be executed for a period of four months from the date of this order subject to the appellant's filing an usual undertaking within a period of two weeks from today to the effect that the appellant will not transfer, assign or encumber the flat in question in any manner whatsoever and on undertaking that he will hand over peaceful possession of the flat in question to the respondent on or before the expiry of the aforesaid period and he will go on paying the occupation charges equivalent to the amount he had been paying for each month by the 7th of succeeding month. In default of compliance of any of these terms, the decree shall become executable forthwith.
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