Writ Petition No. 2511 of 1989

22nd January, 2003

Petitioner Counsel: Mr. R.G. KETKAR
Respondent Counsel: Mr. S.G. KARANDIKAR

Cases Cited:
Sanwarmal Kejriwal Vs. Vishwa Co-operative Housing Society Ltd., 1990(2) SCC 288 [Para 6]

JUDGMENT

JUDGMENT :- The Petitioner who has filed a dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960, hereinafter referred to as the "Co-operative Societies Act", challenges the order dated 4.4.1989 of the Maharashtra State Co-operative Appellate Court dismissing his dispute. The Co-operative Appellate Court has dismissed the petitioner's appeal and upheld the order of the trial Court on the ground that the respondent whose eviction is sought by the petitioner is a protected tenant under section 15A of the Bombay Rents Hotel and Lodging House Rate (Control) Act, 1947 and cannot be evicted under section 91 of the Co-operative Societies Act.

2. The petitioner, a member of respondent no.2, Jawaharnagar Co-operative Housing Society Ltd., Kolhapur, filed a dispute against the respondent Dnyaneshwar Ramchandra Kotkar alleging that he is unauthorisedly and illegally occupying the premises of respondent no.2 society, viz., block no.B-14, plot no.6/65.

3. The petitioner has alleged in the dispute that the suit plot is in possession of respondent no.2 from 1967 and that he is occupying that plot as a trespasser. The Co-operative Court found that respondent no.2 inducted respondent no.1 in the year 1967. The society allotted the plot in favour of the petitioner after the decision of the dispute by the Co-operative Court which was confirmed by the appellate Court. He, therefore, filed the dispute as a member. The trial Court found that the respondent no.1 is in exclusive possession of the plot on 1.2.1973 i.e. the date on which the licensees are conferred the status of a protected tenant under section 15A of the Bombay Rent Act as inserted in the Act by Maharashtra Act no.XVII of 1973. Relying on the admitted position that it is no one's case that the license of respondent no.1 is terminated before 1974, the trial Court found that respondent no.1 is entitled to the status of a protected tenant. On evidence, the Co-operative Court found that respondent no.1 was inducted by the society which has accepted the rent from respondent no.1.

4. In the result, the Co-operative Court held, in answer to issue no.3 that it has no jurisdiction to evict respondent no.1 under section 91 of the Co-operative Societies Act since the petitioner has filed a dispute for recovery of possession of the plot and such a dispute does not touch the business of the society.

5. The petitioner preferred an appeal before the Maharashtra State Co-operative Appellate Court which by its judgment and order dated 4.4.1989 has upheld the finding of the Co-operative Court.

6. The only point urged by the learned counsel for the petitioner is as to the jurisdiction of the Co-operative Appellate Court. According to the petitioner, the Court under the Co-operative Societies Act had jurisdiction to entertain the dispute for recovery of possession. This submission cannot be accepted. The issue is no more res integra and is covered by the decision of the Supreme Court in Sanwarmal Kejriwal Vs. Vishwa Co-operative Housing Society Ltd. (1990) 2 S.C.C. 288). Before the Supreme Court, the question was as follows:-

"Can licensee occupying a flat in a tenant co-partnership society be evicted therefrom under sub-section (1) of Section 91 of the Maharashtra Co-operative Societies Act, 1960 (Act 24 of 1961), hereinafter called the Societies Act, notwithstanding the protection extended by Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act 57 of 1947). hereinafter called the Rent Act as amended by Act 17 of 1973 or whether such proceedings would be governed by Section 28 of the Rent Act?"

After considering section 91(1) of the Co-operative Societies Act and section 15A of the Bombay Rent Act and relying on its earlier decision, the Supreme Court held that the status of a deemed tenant is conferred on a licensee under section 15A read with sub-section 5(11)(b) of the Bombay Rent Act. Their Lordships have observed as follows:-

"The status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licensees. Rights which do not flow from contracts but are conferred by law such as the Rent Act, must, we think, be determined by the machinery, if any, provided by the law conferring the right."

On the facts it was found that the appellant therein was and is a protected tenant under section 15-A of the Bombay Rent Act and that the proceedings initiated under section 91(1) of the Co-operative Societies Act cannot succeed because the society has failed to prove the fact which constitutes the foundation for jurisdiction.

7. Thus having regard to the facts found in the present case, viz., that respondent no.1 has not been unauthorisedly and illegally inducted, but was inducted in 1967 by the society which was competent to induct him and that he was in possession on 1.2.1973, he must be held entitled to the protection conferred on him by section 15A of the Bombay Rent Act and the proceedings for his eviction under section 91 of the Co-operative Societies Act must be held to be without jurisdiction. Indeed, a person such as the respondent no.1 who is deemed to be a protected tenant under section 15A can only be evicted under section 28 of the Bombay Rent Act.

8. In the result, there is no merit in the petition which is hereby dismissed. The rule is discharged. No order as to costs.

9. P.S. to give ordinary copy of this judgment to the parties concerned.

Petition dismissed