Judgment

AHMADI, J.:- Special leave granted.

Can a licensee occupying a flat in a tenantco-partnership society be evicted therefrom under sub-section (1) of Section 91 of the Maharashtra Co-operative Societies Act, 1960 (Act No. XXIV of 1961), hereinafter called the Societies Act, notwithstanding the protection extended by S. 15A of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (Act No. LVII of 1947), hereinafter called the Rent Act, as amended by Act XVII of 1973 or whether such proceedings would be governed by S. 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 Cooperative Societies Act, 1925 and is deemed to be registered by virtue of S. 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 No. 25 of the multi-storeyed building known as Vishwa Mahal situate on "C" Road, Churchgate, Bombay-20. The said Laxmi 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 Hari 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 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 ownership 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.1 society towards the societys cost to initiate proceedings for eviction of the appellant from the flat in question under S. 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 S. 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 S. 91(l) of the Societies Act.

2. 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 S. 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 S. 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 Ss. 12 or 13 of the Rent Act. He, therefore, c