O. N Bhatnagar vs Rukibai Narsindas

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1982 Supreme(SC) 106

SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI, A.P. SEN AND E.S. VENKATARAMIAH, JJ.
O. N. Bhatnagar, Appellant
Versus
Smt. Rukibai Narsindas and others, Respondents.
Civil Appeal No. 1843 of 1981
Decided on 21-4-1982.
Advocates appeared
M/s. H.H. Advani, P.R. Ramasesh and Mr. Manu Iyanger, Advocates, for Appellant; Mr. S.N. Kackar, Sr. Advocate, M/s. V.K. Panwani and Girish Chandra, Advocates with him, for Respondents.
* Appeal No. 168 of 1981, D/- 21-4-1981 (Bom).

Headnote:
Co-operative Societies Act, 1960 - Rates Control Act, 1947 - Rent Act by Maharashtra Act 17 of 1973 - Co-operative Societies Act, 1912 - Section 5 - Section 13 - Section 15A - Section 28 - Section 91 - Special leave - Protection from eviction - Upholding the judgment - Whether respondent society had any locus standi to make an application for transposition even assuming that appellant was not a tenant but a licensee - Whether a claim for ejectment of an occupant of a flat by a housing co-operative society having been let into possession of premises under an agreement of leave and licence executed between him and a member of society by virtue of his being a nominal member - Whether for purpose of sub-sec - (1) any matter referred to for decision is a dispute or not question shall be considered by Registrar whose decision shall be final - Whether dispute is of kind as between parties in sub-sec - (1) - Unless he finds that dispute falls within S - 91 (1) of Act he will have no jurisdiction to decide it - It also attaches finality to decision of Registrar on preliminary issue - Section 91 (3) states that save as otherwise provided under S - 91 (3) of Act no civil Court shall have jurisdiction to entertain any suit or other proceeding in respect of any dispute referred to in sub-sec - (1) - This appeal by special leave directed against judgment of High Court raises a question of some importance - Question is whether a claim for ejectment of an occupant of a flat by a housing co-operative society who had been let into possession of premises under an agreement of leave and licence executed between him and a member of society by virtue of his being a nominal member thereof is a dispute touching business of society -respondent inducted appellant in flat under an agreement of leave and licence - Bye-laws of society provide that no member can part with his possession of flat under an agreement of leave and licence to another except with approval of society and unless such licensee becomes a nominal member thereof - respondent and appellant accordingly applied to society on for accepting appellant to be a nominal member – Respondent society passed a resolution accepting appellant as a nominal member - leave and licence agreement executed by respondent was renewed from time to time and last agreement was executed - term of which was to expire - By her notice respondent called upon appellant to vacate premises as his occupation of premises had become unlawful after termination of licence - Appellant failed to comply with demand and has remained in unauthorised occupation of flat for all these years Before Registrars nominee appellant filed his written statements and thereafter evidence of parties was recorded -It appears that when proceedings before nominee were about to end he returned papers to Registrar as he did not want to proceed further in matter - When Registrars nominee returned papers Registrar assigned case to a retired District Judge as an Officer on Special Duty to adjudicate upon dispute under S - 91 of Act as by then old system of such adjudication by Registrars nominees had been replaced by appointment of Officers on Special Duty - Before Officer on Special Duty appellant made a demand for a de novo trial which was granted - Again evidence of both parties was recorded and matter reached stage of argument but in meanwhile in appellant brought a suit in Court of Small Causes for a declaration that he was a tenant of respondent in respect of flat in dispute and obtained a temporary injunction restraining respondent from proceeding with her case before Officer on Special Duty - Held, With all respect to High Court it seems to us that there was a fundamental error in above approach - No doubt it was business of society to let out premises and a member had no unqualified right to let out his flat or tenement to another by virtue of bye laws and a breach of bye-laws could affect defaulting members right to membership - But we are not able to see how letting by a member to another member would touch business of society which included inter alia trade of buying selling hiring and letting land in accordance with co-operative principles - letting of flat by respondent was a transaction of same nature as society itself was empowered to enter into but such letting by itself did not concern business of society in matter of its letting out flats Nothing was brought to Court notice to show that such a letting would affect business of society once - it had sold flat to respondent - Position might have been different if latter had himself been a tenant of flat under society - Observation made by this Court that fact that such letting was forbidden by a regulation of society was immaterial did not fall for decision in that case and was a mere obiter - Appeal dismissed

JUDGMENT

SEN, J.:—This appeal by special leave directed against the judgment of the Bombay High Court dated April 21, 1981 raises a question of some importance. The question is whether a claim for ejectment of an occupant of a flat by a housing co-operative society, who had 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 his being a nominal member thereof, is a dispute touching the business of the society. within the meaning of sub-s. (1) of S. 91 of the Maharashtra Co-operative Societies Act, 1960 (for short the Act).

2. The material facts giving rise to this appeal are as follows. The respondent No. 2 herein, Shyam Co-operative Housing Society Limited is constituted under the provisions of the Maharashtra Co-operative Societies Act, 1960 as a tenant co-partnership type housing society to which Regulations in Form-A apply viz., Regulations relating to tenancies to be granted by the society to members in, respect of houses held by the society. It owns and manages two housing colonies known as Shyam Niwas and Navik Niwas at Warden Road, Bombay. The society continues to be governed by Regulations in Form A ever since they were adopted by it after approval by the Registrar of Co-operative Societies in 1950. It appears that in 1964 the Directors passed a resolution for the introduction of Regulations in Form-B but it was never implemented. The respondent No. 1 Rukibai N. Bhavnani is a copartner 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 agreement of leave and licence dated Nov. 28, 1961. The bye-laws of the society provide that no member can part with his possession 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 No. 1 and the appellant accordingly applied to the society on December 8, 1961 for accepting the appellant to be a nominal member. The respondent No. 2-society passed a resolution No. 90 on December 15, 1961 accepting the appellant as a nominal member. The leave and licence agreement executed by the respondent No. 1 was renewed from time to time and the last agreement was executed. on Jan. 10, 1965, the term of which was to expire on Feb. 28, 1965. By her notice dated March 31, 1965 the respondent No. 1 called upon the appellant to vacate the premises as his occupation 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 flat for all these years.

3. After termination of the agreement, in May 1965, the respondent No. 1 Smt. Rukibai N. Bhavnani claiming to be a co-partner tenant member of the society and as such holder of flat No. 52, brought proceedings against the appellant before the District Deputy Registrar Co-operative Societies, Bombay under S. 91 (1) of the Act for his eviction and for recovery of arrears of compensation and mesne profits, impleading the society as opponent No, 3. On receipt of the claim under S. 91 (1) the Assistant Registrar, Co-operative Societies issued notice to the appellant for the purpose of satisfying himself that a dispute under that section existed. The appellant however did not appear, before the Assistant Registrar who was seized with the matter but instead filed an application before the Court of Small Causes, Bombay for fixing standard rent of the flat in dispute. These proceedings were stayed pending adjudication of the dispute by the Assistant Registrar. The Assistant Registrar in the meanwhile proceeded with the inquiry and after holding that such a dispute exists he referred the case to the Registrars nominee for adjudication. The appellant did not challenge the decision of the Assistant Registrar.

4. Be

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