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1968 Supreme(Bom) 56
IN THE HIGH COURT OF BOMBAY
(D.V. Patel and J.L. Nain JJ.)
S. BHATTACHARJEE - Petitioner
Versus
S.B. GOSAVI and others - Respondents
Advocates appeared
For petitioner - G.P. Patel.
For respondents Nos. 1 and 2 - T. R. Andhyarujina, instrueted by Little and Co.
For respondent No. 4 - K.J. Abhyankar.
The non-obstante clause in section 91 of the Maharashtra Co-operative Societies Act, 1960 excludes the operation of other laws, including section 28 of the Bombay Rent Act, and that disputes between members and persons claiming through members fall within the scope of section 91.
Headnote:
CO-OPERATIVE SOCIETIES ACT - SECTION 91 - DISPUTE BETWEEN MEMBER AND PERSON DERIVING TITLE THROUGH MEMBER - JURISDICTION OF REGISTRAR - FINALITY OF DECISION - BOMBAY RENT ACT - SECTION 28 - JURISDICTION OF SMALL CAUSE COURT - NON-OBSTANTE CLAUSE.
Fact of the Case:
Petitioner, a tenant in a building owned by respondent No. 4, challenged the order of the Assistant Registrar, Co-operative Societies, referring a dispute between him and respondent No. 4 to arbitration under section 91 of the Maharashtra Co-operative Societies Act, 1960 (the Act). The petitioner claimed that the dispute was not within the scope of section 91 as he was not a member of the co-operative society and that the Small Cause Court had exclusive jurisdiction under section 28 of the Bombay Rent Act.
Finding of the Court:
The court held that the non-obstante clause in section 91 of the Act excluded the operation of other laws, including section 28 of the Bombay Rent Act, and that the dispute between the petitioner and respondent No. 4 fell within the scope of section 91 as it was a dispute between a member and a person claiming through a member. The court also held that the petitioner's contention that respondent No. 4 was not a valid purchaser of the flat was not open to him as he had paid rent to respondent No. 4 and recognized him as his landlord after the purchase.
Issues: 1. Whether the dispute between the petitioner and respondent No. 4 fell within the scope of section 91 of the Act. 2. Whether the petitioner could dispute the title of respondent No. 4 as a purchaser of the flat.
Ratio Decidendi: 1. The non-obstante clause in section 91 of the Act excluded the operation of other laws, including section 28 of the Bombay Rent Act, and that the dispute between the petitioner and respondent No. 4 fell within the scope of section 91 as it was a dispute between a member and a person claiming through a member. 2. The petitioner's contention that respondent No. 4 was not a valid purchaser of the flat was not open to him as he had paid rent to respondent No. 4 and recognized him as his landlord after the purchase.
Final Decision: The petition was dismissed with costs.
NAIN J.-This is a petition under Article 227 of the CeD8titution of India for quashing and setting aside an order dated February 7/9, 1967, passed by the Assistant Registrar, Co-operative Societies, Bombay, holding that a dispute within the meaning of section 91 (1) of the Maharashtra Co. operative Societies Act, 1960 (hereinafter referred to &s the Act) exists between the petitioner and respondent No. 4 and referring the same to Mr. V. S. Powale, Registrars Nominee, and an order dated April 5, 1967, passed by the Divisional Joint Registrar, Co-operative Societies, Bombay, confirming the decision of the Assistant Registrar.
2. The petitioner claims to be a tenant in respect of flat No. 43 in a building known as "Divyang" situated at Colaba. Respondent No.4 claims to be the present owner of the said flat.
3. By an agreement dated November 26, 1959, Radia Sons and Company Private Limited let out to the petitioner the said flat at a. rent of Its. 215 p.m. In March 1966 there appeared to be certain negotiations between the petitioner and respondent No.4. Respondent No.4 was negotiating for purchase of the said flat from Radia Sons and Company. He, therefore, before purchasing the said flat negotiated with the petitioner for giving vacant possession to him of the said flat. The letter dated March 21, 1966, addressed by respondent No.4to the petitioner states that the petitioner had told respondent No. 4, that after the marriage of the petitioners daughter he would not require the big flat viz., flat No. 43, and that he would vacate the name as he would no. be able to pay the compensation for it. There was no reply to this letter. Thereafter, in April 1966 respondent No.4 purchased the said flat from its then owner and informed the petitioner about the purchase. The petitioner admits that he has thereafter paid at least one months rent to respondent No.4. On June 29, 1966, respondent No. 4: served a notice on the petitioner to quit he said flat and to hand over vacant possession of the same to respondent No.4. The petitioner replied to the said letter on July 4, 1966, taking several contentions.
4. In October 1966 respondent No.4 filed an application before the District Deputy Registrar, Co-operative Societies, Bombay, under section 91 (1) of the said Act submitting that there was a dispute between the petitioner and respondent No.4 within the meaning of section 91 of that Act and that the same be referred for decision under sections 91 to 96 thereof to a proper person. The order dated February 7/9, 1967, was made by the Assistant Registrar on the said application. The petitioner appears to have gone in revision to the Registrar under section 154 of the said Act and the decision dated April 5, 1957, is of the Divisional Joint Registrar confirming the decision of the Assistant Registrar. Against these two orders, the petitioner has filed the present petition.
5. The first contention of the petitioner is that he is a tenant in respect of the premises and not a licensee. Respondent No.4 seeks to recover possession of the premises claiming to be the owner. The proceedings are, therefore, for recovery of possession of premises to which the Bombay Rent Act applies. The Small Cause Court, Bombay, has exclusive jurisdiction to decide a suit for possession or payment of rent between a landlord and tenant by virtue of section 28 of the Bombay Rent Act, notwithstanding anything contained in any other law. The petitioner contends that the matter, therefore, cannot be referred to arbitration under the Act. This contention, however, does not appear to be correct. Section 91 of the Act also provides that notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution or business of a society between a member and a person deriving title through a member shall be referred to arbitration under the provisions of the Act. Section 91 of the Act contains a non-obstante clause similar to the
