The jurisdiction of the Registrar or his nominee under section 91 of the C.S. Act is attracted in a dispute involving eviction of a member and a licensee from a Co-operative Housing Society, and the jurisdiction of any other Court, including that of any authority under the Rent Act, is barred under section 28 of the Rent Act.

Headnote:
CO-OPERATIVE HOUSING SOCIETY - EVICTION OF MEMBER AND LICENSEE - JURISDICTION - RENT ACT OR CO-OPERATIVE SOCIETIES ACT - SECTION 91 OF THE CO-OPERATIVE SOCIETIES ACT - SECTION 28 OF THE RENT ACT - APPLICABILITY - INTERPRETATION.
Fact of the Case:

A Co-operative Housing Society sought possession of a unit from its member and a licensee inducted by the member in breach of the bye-laws. The licensee claimed protection under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Rent Act) as amended in 1973, contending that the dispute was triable exclusively by the Court under the Rent Act and that the jurisdiction of any other Court, including that of any authority under section 91 of the Maharashtra Co-operative Societies Act (C.S. Act), was barred under section 28 of the Rent Act.
Finding of the Court:

The Court held that the jurisdiction of the Registrar or his nominee under section 91 of the C.S. Act was attracted as the claim for possession was made by the society, as the owner of the premises, from its member, on the ground of his having let in the petitioner therein, in breach of the bye-laws. The claim against the petitioner was incidental to the claim against the member because of his being privy to the said breaches. The Court further held that the petitioner could not claim to be the tenant of the society under section 28 of the Rent Act as the society could not be said to be the "landlord" of the member or the petitioner by any stretch of imagination.
Issues: 1. Whether the dispute was triable exclusively by the Court under the Rent Act, and the jurisdiction of any other Court, including that of any authority under section 91 of the C.S. Act, was barred under section 28 of the Rent Act? 2. Whether the society could be said to be the "landlord" of the member or the petitioner under section 28 of the Rent Act?
Ratio Decidendi: 1. The Court held that the jurisdiction of the Registrar or his nominee under section 91 of the C.S. Act was attracted as the claim for possession was made by the society, as the owner of the premises, from its member, on the ground of his having let in the petitioner therein, in breach of the bye-laws. The claim against the petitioner was incidental to the claim against the member because of his being privy to the said breaches. 2. The Court held that the society could not be said to be the "landlord" of the member or the petitioner by any stretch of imagination as the society did not receive any rent from the member or the petitioner, and the petitioner did not claim to be the tenant of the society on account of any contract of lease with it.
Final Decision: The Court discharged the rule with costs and refused leave to appeal to the Supreme Court.

Judgement Key Points

What is the jurisdiction for eviction disputes in a Co-operative Housing Society when a member and licensee are involved, and does it fall under the Co-operative Societies Act Section 91 or the Rent Act Section 28?

What is the appropriate determination of who qualifies as the "landlord" under the Rent Act in the context of a co-operative housing society, member, and licensee, and can the Rent Act protect the licensee-tenant?

What are the implications of the society's ownership and the member's occupancy for eviction proceedings under Section 91 of the Co-operative Societies Act versus the Rent Act, and is the society bound to proceed under the Rent Act or under the Co-operative Societies Act?

JUDGMENT - V.S. Deshpande, J.:---Respondent No 1 is a Co-operative Housing Society and as such owner of a building “Udyog Mandir” at Pitambar Lane, Mahim, Bombay 400 016. It is registered in 1968. Respondent No.2 is its member as a co-partner tenant and as such a holder of three units, viz. Units Nos. 11 and 12 on the ground floor and Unit No. 3 on the second floor. The member appears to have purchase the units from a builder after he had already formed the society of which he became member in the year 1971 on purchase of units. The petitioner was inducted in the unit 3 on the second floor by the member under a leave and licence agreement dated 23-7-1972 for a period of 11 months on payment of compensation of Rs. 1,000/- per month.

2. The society appears to have object in writing to the petitioners such possession on 4-9-1972 on the ground that it secured such possession without (1) its being a nominal member, and (2) obtaining prior permission as required under its bye-laws. Some civil and criminal proceedings were initiated by the petitioner initially. The petitioner then instituted a declaratory suit being Suit No. 771/2858 of 1973 on 11th June, 1973, in the Court of Small Causes under the Rent Act claiming itself to be the tenant of the premises from the member. This suit was dismissed for default on 14-2-1975. Mr. Gursahani, the learned Advocate for the petitioner, informed us at the Bar that a motion for its restoration is now made on 8th January, 1980, and the same is pending. The petitioner also then instituted standard rent fixation proceedings being No. 1844/SR of 1973 on or about 24-9-1973 on which an interim rent of Rs. 700/- per month has been fixed which the petitioner claims to have been depositing in the said Court.

3. After some correspondence with the member and the petitioner, the society terminated the tenancy of the member in regard to this unit No. 3 by a notice dated 26-5-1973 and instituted the present proceedings for possession against the member and the petitioner on 29-8-1973 pursuant to the Managing Committee Resolution dated 7-7-1973 to that effect. The dispute was referred to the Officer on Special Duty by the Registrar under section 91 of the Maharashtra Co-operative Societies Act, hereinafter referred to as the C.S. Act. The petitioner alone contested the proceedings and claimed to have become the tenant under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as the Rent Act as amended under Act No. 17 of 1973 on the basis of its being in possession as a licensee on 1-2-1973, other grounds being not relevant herein. The petitioner and the society examined one witness each in support of their respective claims.

4. The Officer on Special Duty (O.S.D.) decreed the claim of the Society on 9-1-1975. On appeal by the petitioner to the Co-operative Tribunal, the same was dismissed on 29th January, 1976. Validity of these orders is challenged in this Special Civil Application.

5. Mr. Gursahani contends that the petitioner having become the tenant of the premises under the amended Rent Act, the claim for possession of the premises against it is triable exclusively by the Court under the Rent Act and the jurisdiction of any other Court including that of any authority under section 91 of the Co-operative Societies Act is barred under section 28 of the Rent Act.

6. It is, however, well settled that the question of jurisdiction has to be decided by reference to the averments in the plaint or the application raising the dispute in the present case. The society claims possession of the premises, as its owner, from its member, on the ground of his having let in the petitioner therein, in breach of the bye-laws. The claim against the petitioner is incidental to the claim against the member because of his being privy to the said branches. Though the member is loosely referred to as tenant, members right to possession of the premises in such a Housing Society

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