Bombay High Court
Shantahai S.Somani
Versus
Aryan Co-operative H. Society
Decided On:

Headnote:Sections 91 (4), Explanation (2) and 23-Maharashtra Co-operative Societies Rules, 1961 Rule 19-Bombay Rent Control Act, 1947 Sections S (11) (c) and 28 -Civil Procedure Code, 1908-Section 11 Provincial Small Causes Courts Act--Section 41 - Tenant Co-partnership Housing Society-Flat Eviction suit against non-member Leave and licence-Order of trial Court to hand over vacant possession of flat to respondent-Society- Validity of order-Dispute under Section 91-Maintainability of Prohibition of occupation of Society-flat by a non-member-Proof of Bye-law regarding Right to occupy the flat after death of member-Lawful tenancy-Question of Creation of tenancy without permission of Society in flat-Limitation, waiver and estoppel Question of-Principle of res judicata- Applicability Held, the disputant-Society, a Tenant Co-partnership Housing Society, can file dispute under Section 91 and hence Co-operative Court has jurisdiction to entertain and decide the dispute Appellant, a sole heir of the member, not an unauthorised occupant-No breach of bye-laws Therefore, Society has no cause of action in evicting the appellant The judgment and order passed by lower Court ordering the appellant to hand over vacant possession of the flat to the respondent-Society and to pay mesne profits and costs, set aside (Tenant Co-partnership Housing Society . Eviction of non-member Leave and licence).

       A Tenant Co-partnership Housing Society can file a dispute against the member and occupant for the enforcement of its bye-laws and regulations. In the present case, the disputant-Society is a Tenant Co-partnership Housing Society and admittedly the opponent No.2 respondent No.2 herein is the tenant Co-partner member and appellant is the occupant of the flat in dispute. The Society and the occupant do not have the jural relationship of a landlord and tenant. The Society in the dispute application has stated that the subject matter of the dispute is in regard to pair of breaches to the bye-laws and removing the non-member occupant from the occupation and/or possession of the flat in dispute. Thus, the Society has filed dispute for the enforcement of its bye-laws and such a dispute squarely falls under Section 91 of the Act and, therefore, Co-operative Court has jurisdiction to entertain and decide the dispute.

       The question of status of Late Sitabai vis-a-vis the flat cannot be tried even though Society was not a party to the suit in the City Civil Court as the agreement was entered by member and Late Sitabai. Trial Judge was in error in again reinterpreting the agreement and holding Late Sitabai as licensee. Once this position is accepted that it will have to be observed that appellant is in possession of fat as legal heir of Late Sitabai. It is also admitted position that the Society has not revoked the permission granted to Smt. Sitabai when she was alive and in occupation of the premises upto December, 1982. Thus, Smt. Sitabai was occupying the premises as on 1-2-73 and, therefore, even assuming that Smt. Sitabai was licensee, she becomes deemed tenant as the licence was subsisting on 1-2-73 and, therefore, she will get protection under the Bombay Rent Act. Therefore, the appellant who is the sole legal heir of Smt. Sitabai will also inherit all rights of her deceased mother and, therefore, the appellant cannot be said to be an authorised occupant. During the pendency of the dispute the appellant has been admitted, as nominal member, therefore, .he has complied with the provisions of bye-laws Nos. 7 (e) (f) and (k) and 64. Therefore, her occupation, especially after becoming nominal member cannot be said to be contrary to the provisions of the bye-laws. Thus, there does not appear to be any breach of the bye-laws in occupying the premises by the appellant. Unless and until there is an adoption of tenancy regulation by the Society, the Society cannot take resort to the tenancy regulations which the generally provided as a draft with the specimen by-laws at the time of registration of Society by the Co-operative Department. Thus regulations do not form a part of the bye-laws of the Society. In the present case though the Society has produced the copy of the printed bye-laws, there is no evidence on record to show that these regulations were adopted by the Society. Therefore, unless and until there is adoption of tenancy regulations by the Society, the Society cannot take resort to the tenancy regulations which were generally provided as 0 draft with the specimen bye-laws supplied at the time of registration of the Society. Thus, the Society will have to establish the violation or breach of bye-laws in respect of the occupation of suit premises by appellant. As a legal heir appellant inherits all tenancy rights of her mother. Hence, the occupation of the appellant does not appear to be unauthorised and in violation of the bye-laws of the Society.

       Appellant has inherited tenancy rights of her mother. It is admitted position that there was not a valid notice of termination of the lease of the lessee. As the Society has not revoked the permission granted, therefore, it cannot be said that the occupation of the suit premises by the appellant is in breach of bye-laws. As the Society has not revoked the permission, Society bas no cause of action for eviction of appellant in respect of suit premises. There is no difference between Society admitting a person as nominal member and person admitted as nominal member because of orders of Registrar under Section 23 of the Act. The Society has no cause of action in respect of evicting the appellant especially after she has become the nominal member of the Society. The cause of action does not survive any more after appellant becoming the nominal member of respondent Society. Society has failed in establishing breach of bye-laws, therefore, the Society is not entitled to the relief of eviction of the appellant, and the order of the lower Court deserves to be set aside.

       Even considering that the dispute is touching the business of the Society there is no cause of action for the Society against the member and nonmember as there is no contravention of any bye-laws. The whole matter appears to be misconceived by the learned trial Judge. The Society could not establish any breach of the bye-laws and, therefore, the learned trial Judge was in error in granting relief for eviction against the appellant. The judgment and order passed by the lower Court is set aside.

       For Citation : 1990 CTJ 23 (App. Court)