TMI Blog1988 (9) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... a further amount of ₹ 42.50 towards maintenance, car parking and water charges w.e.f. Ist August 1981. The facts of the case are as follows. By an agreement in writing dated 1st January 1964, the disputant the late Smt. Devibai H. Advani, who was a tenant co-partner member, permitted the appellants' father Rajpal Bhatia, user of her Flat No. 16 for a period of 11 months as from that date on the terms and conditions stated in the said agreement. Both the parties made a joint application for admission of the said Rajpal Bhatia as a nominal member of the society and the society granted the requisite permission for his occupying the flat in dispute on terms of leave and licence. At the request of Rajpal Bhatia, the said agreement for leave and licence was renewed for 11 months each by further agreements and thereafter the period was further extended 11 months by an endorsement. The late Smt. Devibai Advani by her lawyer's notice dated 21st May 1969 terminated the agreement for leave and licence. On 30th June 1969 she made a claim under s. 91 of the Maharashtra Cooperative Societies Act, 196() (for short the Act') before the District Deputy Registrar for the evictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the society be transposed as disputant no. 2. Despite the opposition of Rajpal Bhatia. the application for transposition was ultimately allowed. Initially when the society was registered, it was really governed by the regulation in Form 'A'. It however appears that by mistake, as is evident from the affidavit sworn by Atmaram Jhangiani, Chairman of the society, regulation in Form 'P' which relates to tenant owner members was adopted. This mistake was detected in the year 1949 and accordingly at the Annual General Meeting of the society held on 3rd September 1949 it was declared that Form 'B' was inapplicable and therefore the mistake was rectified by a unanimously carried resolution that regulation in Form 'A' be adopted instead of regulation in Form 'B'. The District Deputy Registrar, Cooperative Societies, Surat by order dated 10th July 1950 approved of the amendment and accordingly Form 'A' was adopted and Form 'B' deleted. The PG NO 64 modification in the byelaws was approved by a resolution carried at the General Body Meeting of the society held on 26th November 1950 and forwarded to the District Deputy Registrar f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any avail. It held inter alia that in view of the letter addressed by the District Deputy Registrar, Cooperative Societies, Bombay dated 22nd November 1978 intimating the Court that Form 'B' had been deleted after PG NO 65 the resolution passed at the Annual General Meeting held on 3rd September 1949 and the amendment of the byelaws effected by order of the District Deputy Registrar dated 10th July 1950, and particularly in view of the fact that in the latest copy of the bye-laws there is no reference to Form 'B', the conclusion was inescapable that the society is a tenant co-partnership housing society and Form 'B' as was originally appended to the byelaws was no longer applicable. It observed that in view of its earlier judgment in Appeal No. 236/78--Messrs Bharat Sales Service Anr. v. Smt. Rukibai Naraindas Bhavnani Anr., decided on 12th January, 1979 taking that view upon investigation into the facts, which was upheld by the High Court in O.N. Bhatnagar v. Smt. Rukibai Naraindas Bhavnani Anr., in Miscellaneous Petition No. 271/79, decided on 21st April 1981, and later by this Court in O.N. Bhatnagar v. Smt. Rukibai Naraindas, [1982] 3 SCR 681, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociety describes himself or herself as owner of the flat, either because he has purchased the flat or he has contributed towards the cost of the construction. In the light of the principles laid down by this Court in Associated Hotels of India Ltd. v. R.N. Kapoor, [1960] I SCR 368 the Appellate Court further held on a consideration of the evidence adduced by the parties that the parties intended by the agreement to create a licence and not a lease. It also held that the dispute was a dispute touching the business of the society. Shri R.F. Nariman, learned counsel for the appellants argued the appeal with great clarity, much resource and learning we heard him with considerable interest. It was contended, firstly, that the intention Of the disputant the late Smt. Devibai Advani was to demise the flat in question and therefore the real transaction was one of lease though camouflaged in the form of an agreement for leave and licence and therefore the jurisdiction of the Registrar under s. 91 of the Act to adjudicate upon the reference was barred by s. 28 of the Bombay Rent Act; and secondly, that neither of the two resolutions subsequently adopted by the Annual General Meeting or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the dispute under s. 91 of the Act was barred by s. 28 of the Bombay Rent Act. The matter is directly covered by the decision of this Court in O.N. Bhatnagar's case. In rejecting the contention that a dispute of this nature was not a dispute touching the business of the society within the meaning of s. 91(1) of the Maharashtra Cooperative Societies Act. it was observed: In the present case, the society is a tenant co- partnership type housing society formed with the object of providing residential accommodation to its co-partner tenant members. Now, the nature of business which a society carries PG NO 68 on has necessarily to be ascertained from the object for which the society is constituted, and it logically follows that whatever the society does in the normal course of its activities such as by initiating proceedings for removing an act of trespass by a stranger, from a flat allotted to one of its members, cannot but be part of its business. It is as much the concern of the society formed with the object of providing residential accommodation to its members, which normally is its business, to ensure that the flats are in occupation of its members, in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making a reference to tenant owner members became a mere superfluity and was wholly redundant. The rights of the parties cannot be spelled out from the terms of the bye-law 10(a) as originally framed. Nor would the mere description by the disputant the late Smt. Devibai Advani describing herself to be the owner of the society, affect the classification of the society because she was, in fact and in law, nothing but a tenant co-partner member. It also appears from the certificate of registration issued by the Registrar, Cooperative Societies that the society was classified as a tenant co partnership housing society. The erroneous description in bye law-10(a) of the society having tenant owner members came to be rectified when the said bye- law was replaced in l974 by a new bye-law 10(a). In view of the subsequent change brought about by the amendment of the bye-laws, there was no question of the disputant being regarded as a tenant owner member. The Appellate Court as well as the learned Judge of the First Cooperative Court have rightly held her to be a tenant co-partner member. The appellants' father Rajpal! Bhatia having been inducted into the premises under the terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. It was further held that there was nothing in the language of s. 31 of the Maharashtra Cooperative Societies Act to indicate that the right to occupation of such a flat which was the right sought to be sold by auction, was not attachable in execution of the decree. Nor was there anything in the section to even remotely include a prohibition against attachment or sale of the aforesaid right to occupation of the flat. The only restrictions under s. 29(2) of the Act are that the member may not transfer his interest in the property prior to one year and the transfer is made to an existing member of the society or to a person whose application for membership has been accepted by the society. As regards bye-law 710 the Court observed that any contravention of the bye-law would not make the assignment invalid under the Act unlike in the case of a transfer being void under s. 47(3). Further, that s. 29 read with r. 24 shows that there is no prohibition as such against transfer of a share to a member or even to a non-member if he consents to be a member and makes an application for membership, by purchasing five shares as provided under bye- law 9. The ultimate decision of the Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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