2002 Supreme(Bom) 675
IN THE HIGH COURT OF BOMBAY
Khanwilkar A.M., J.
Husainali Haji Esmail Badaksha .... Petitioner.
Versus
Radhe Shyam Co-operative Housing
Society Ltd. another.... Respondents.
Writ Petition No. 478 of 1991, decided on 12-7-2002.
Headnote:Maharashtra Co-operative Societies Act, 1960 - Section 91 - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 28 - Jurisdiction of Co-operative Court - A member in flat of society inducting a tenant - As a paying guest - Bye-laws of society not allowing such activity - Accordingly paying guest shall be an unauthorised occupant - Suit filed by member as well as society for ouster of paying guest - Deletion of name of member from complaint - It is sufficient for society alone to take necessary action against an unauthorised occupant - Section 28 of Rent Act does not bar proceedings under Co-operative Court. - The Apex Court in M.L. Sethi s case has observed that when the subordinate Courts have proceeded to decide the proceedings in a manner which would cause breach of natural justice then it would be a question of jurisdictional error. But, in the present case it is not possible to hold that the subordinate Courts have decided the matter in breach of natural justice, for that the petitioner appeared before the subordinate Courts and that he did raise objection to the deletion of member from the array of parties to the dispute but that objection has been rejected by the Courts below. It is clearly asserted in the plaint that the society intends to evict the petitioner for the enforcement of its bye-laws. Such relief could be maintained by the petitioner society on its own as has been consistently held in the decisions on which the respondent society has placed reliance referred to in para 5 above. Understood thus it is not possible to countenance the grievance that the complexion of the dispute has charged in any manner. It is well-settled that in a Tenant Co-partnership Housing Society creation of the tenancy in the flat allotted to the member of the society is impermissible and contrary to bye-law [See Krishna Bhatia s case]. If that be so the presence or absence of the original member to the dispute would not alter the position or permit the petitioner to take the plea that he was inducted lawfully as a tenant. The society would pursue the remedy against the unauthorised occupant even without expelling the member responsible for the induction of that person. If that be so then the assumption on which the submissions of the petitioner proceeds that the petitioner could have taken plausible defences against the original member is wholly ill advised. In such a case, as observed in the above-said decision, the occupation of the person inducted in the premises in breach of the bye-laws is one of an unauthorised occupant and of a rank trespasser. Therefore there would be no occasion for the Court to consider the plea of tenancy which the petitioner seeks to invoke in the present proceeding. The definition of "paying guest" was inserted in the Bombay Rent Act for the first time in the year, 1973, whereas much before that a clear stand was taken by the original member as well as the respondent society in the dispute that the status of the petitioner was only one of a "paying guest" and nothing more. In the circumstances there is no reason to interfere with the concurrent finding of fact recorded by the two Courts below. If that be so then there would be no question of any bar of proceeding by virtue of Section 28 of the Bombay Rent Act because that bar is restricted to the claims between the landlord and tenant as such. In this view of the matter, all other contentions raised regarding the maintainability of the dispute under Section 91 are wholly ill advised and will have to be rejected.
JUDGMENT - KHANWILKAR A.M., J.:---This writ petition under Article 227 of the Constitution of India takes exception to the order passed by the Maharashtra State Co-operative Appellate Court dated August 17, 1990 in Appeal No. 119 of 1988. The petitioner claims to be in possession of portion of premises bearing flat No. 12 in Geetanjali near Radio Club, Colaba, Mumbai 400 005. According to the petitioner, he was put in possession of that portion of the premises by one Mr. Punwani who was the member of the respondent-society and was allottee of that flat. It is not in dispute that the respondent society is a Tenant Co-operative Housing Society, of which said Punwani was the member. It was noticed by the respondent society that the occupation of the portion of the suit flat by the petitioner was a source of nuisance to the neighbours and also that the petitioner was inducted without obtaining prior permission of the society; therefore, the society by notice dated January 4, 1972 called upon its member Shri Punwani to take immediate remedial steps to get the flat vacated and to occupy the same himself so as to avoid nuisance caused to the members of the society. Pursuant to the said notice. Shri Punwani gave legal notice to the petitioner on February 4, 1972 through his Advocate, calling upon the petitioner to remove himself from the portion of the said flat within 7 days from the receipt of the said notice. In this notice it is clearly stated that the petitioner was occupying the portion of the suit flat as the "paying guest" on monthly compensation of Rs. 400/-. By this notice, the petitioner was also called upon to pay the arrears of charges amounting to Rs. 2000/- forthwith. Since, the petitioner did not vacate the portion of the suit premises, the respondent society in its Managing Committee meeting held on April 7, 1972 resolved that the society should institute eviction proceedings against the petitioner who has been permitted by the member Shri Punwani to occupy one room from the suit flat without permission of the society. This resolution further authorized Shri B.K. Shivdasani, the then Secretary of the respondent society to sign the plaint jointly with the member (Shri Punwani) and represent the society. Pursuant to the said resolution, dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the "said Act") was filed before the Dy. Registrar of Co-operative Housing Societies, Bombay being Case No. 154/1004/1972. This dispute was presented by the member Shri. Punwani as well as the respondent society jointly for the relief of possession against the petitioner and for consequential reliefs of mesne profits and arrears of rent. In this dispute, specific plea is taken that the petitioner has been inducted in the portion of the suit flat without prior permission of the society which was contrary to the conditions of the bye laws of the society and, therefore, it has become imperative for the respondent-society to take action against the petitioner for enforcement of the bye laws. This dispute was resisted by the petitioner. According to the petitioner, the Co-operative Court had no jurisdiction because the petitioner was the tenant in respect of the portion in his possession and such a claim could not be entertained by the Co-operative Court under section 91 of the Act. Various other contentions have been raised which will be referred to a little later. While this dispute was pending, the society filed another dispute in the Co-operative Court bearing Dispute No. 25/82 of 1978 seeking relief against its member Shri Punwani as well as the petitioner for possession of the subject flat. In this dispute, the grievance made by the respondent-society is that the member was in arrears amounting to Rs. 25,088.02 ps. Accordingly, the relief of possession was claimed against the member Punwani on the ground of default as well as the petitioner being unauthorizedly inducted in the premis
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