1996 Supreme(Bom) 690

IN THE HIGH COURT OF BOMBAY
R.M. Lodha, J.
Suresh K. Mehta ..... Applicant
Versus
S.B. Chincholikar another ...... Respondents. Civil Revision Application No. 272 of 1996, decided on 13-12-1996.
Advocates appeared :
D.R. Zaiwala with K. Presswala i/b Estlav Lam Co. ,for the petitioner.
Aspi Chinoy with Janak Dwarkadas i/b Desai and Diwanji, for respondent No. 2.

Headnote:Sections 13-A(2), 5(3), 6(4) and Maharashtra Co-operative Societies Act, 1961, Section 91 Flat given by member of Society under Part-II of Bombay Rent Act, 1947-Agreement of leave licence to give permission to the licence to use and occupy under Section 13-A(2)-Applicability of Section 91 not proper.-An owner of a flat in Co-operative Housing Society, Bombay by agreement of leave and licence gave permission to the licensee to use and occupy the flat for residence. The licensee did not hand over the peaceful possession of the flat to the landlady on expiry of licence period. The landlady made an application under Section 13-A(2) of the Bombay Rents, Hotel and Lodging House flats Control Act, 1947. The licensee made an application for leave to defend under Section 31-E (4)(a) of the Bombay Rent Act setting up the ground that the application under Section 13-A(2) was misconceived and not maintainable. The Competent Authority rejected the application for leave to defend and ordered eviction of the petitioner. In revision application by the licensee it was contended that the landlady licensor was not landlord within meaning of Section 13-A(2) of the Bombay Rent Act and the owner 01 the premises was the Co-operative Housing Society Ltd. And the landlady licensor was tenant member of the said society. It was further contended that the dispute between the parties was covered by Section 91 of the Maharashtra Co-operative Societies Act, 1960 and therefore proceedings under Section 13-A(2) were not maintainable.

       Held, that the spirit and scheme of this special procedure is that a licensee having taken the premises covered under Part-II on licence under written agreement from landlord who is not tenant or sub-tenant must discharge his obligations under the agreement honestly and hand over peaceful vacant possession of the licenced premises on expiry of licence period. If the licensee does not hand over vacant possession on expiry of licence, the landlord licensor has not to be dragged in protracted litigation by filing regular suit for eviction but he can proceed for recovery of possession, by instituting summary proceedings under Section l3-A(2) of the Bombay Rent Act. The licensee is not granted right to contest the said proceedings as a matter of course, but must disclose such facts and grounds which may disentitle the landlord from recovery of possession. From perusal of registration of society it was clear that co-operative housing society was co-partnership tenancy housing society registered under Rule 10 of Maharashtra Co-operative Societies Rules, 1961. The landlady licensor was co-partner member tenant in the Sterling Co-operative Housing Society. Though the words tenant and rent were used in bye-laws and regulations, these expression carry different connotation and different meaning and the relationship between a co-partner member tenant is of a special type which is governed by special laws i.e. Co-operative Societies Act, the rules framed the re(under, the bye-laws and regulations, framed by the society. By no stretch of imagination can it be said that the relationship between the co-partnership housing society and the tenant co- partner member is the relationship of landlord and tenant as is understood under the Rent Control Act or the Transfer of Property Act. A co-partner tenant member of co-partnership housing society is not such tenant who is excluded from the expression landlord in the explanation appended to Section 13-A(2). The tenant co-partnership society cannot claim itself to be landlord of its tenant co-partner members and no jural relationship of landlord and tenant can be read between the co-partner co-operative housing society and its tenant co-partner members. The definition under Section 5(3) defining landlord is restricted and narrowed for the purposes of Section 13-A(2) and a tenant or sub-tenant is excluded fron1 the expression landlord as defined under Section 5(3). It can conveniently be said as is expressed in explanation (a) that the landlord for the purpose of Section 13-A(2) excludes the tenant and sub-tenant but that does not mean that landlord has to be absolute and full power and would exclude a copartner tenant member in a co-partner co-operative housing society which has a special connotation under the special Act Le. Maharashtra Co-operative Societies Act. 1960 and the rules framed there under. The co-partner member of a co-partner housing society who gives the flat governed by Part II of the Bombay Rent Act on licence is landlord within meaning of Section 13-A(2) and can institute the proceedings there under if the licensee of such landlord fails to deliver the possession on expiry of licence period. The contention of the petitioner that the dispute ought to have been raised under Section 91 (I) of the Maharashtra Co-operative Societies Act was not sustainable. If the landlady licensor can maintain proceedings under Section 13-A(2) and relationship between her and the licensee is governed under Section 6(4) read with Section 13-A(2), the provisions of the Bombay Rent Act would prevail.

       Section 91-Bombay Rents. Hotel and Lodging House Rates Control Act. 1947. Sections 5(3). 6(4) and 13-A(2)-"Landlord"-Copartner member of co-partner Cooperative Housing Society-He gives his fiat under leave and licence agreement-Eviction of licence on expiry of licence period-Whether co-partner can be treated as landlord within meaning of Rent Control Act for eviction of licencee-Held. Section 91 of Act. 1960 would not apply and such member Is treated as landlord for Instituting proceedings under Section 13A(2) of Act. 1947.-The relationship between the co-partnership housing society and the tenant co-partner member is the relationship of landlord and tenant as is understood under the Rent Control Act or the Transfer of Property Act. A co-partner tenant member of co-partnership housing society is not such tenant who is excluded from the expression landlord in the explanation appended to Section 13-A2. The tenant co-partnership society cannot claim itself to be landlord of its tenant copartner members and no jural relationship of landlord and tenant can be read between the co-partner co-operative housing society and its tenant co-partner members. That is why any dispute between such society and its member is a dispute covered under Section 91 ( I) of the Maharashtra Co-operative Societies Act. and not under Rent Control Act. The explanation (a), appended to Section 13-A2 states that for the purpose of this section the expression landlord does not include a tenant of sub-tenant who is given premises on licence. it is thus apparent and clear that if a person, who is a tenant under the Rent Control Act gives the premises on licence he can not be treated as a landlord under Section 13-A2 and cannot take advantage of summary proceedings under Section 13-A2. However, the words tenant or sub-tenant occurring in explanation (a) cannot be said to include a copartner member tenant of co-partner housing society.