TMI Blog1990 (3) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... s for our determination in he context of the fact that the appellant licensee claimed to be in actual possession of the flat on 1st February, 1973, under a subsisting licence, albeit without the express permission of the society. The actual matrix in which this question needs to be answered may be briefly stated as under: The Vishwa Co-operative Housing Society Ltd., respondent No. 1, hereinafter called 'the Society', was registered sometime in 1948 ruder the provisions of the Bombay Cooperative Societies Act, 1925 and is deemed to be registered by virtue of Section 166(2) under the present Societies Act. On 2nd March, 1949 one Laxmi Devi Kejriwal was admitted to the membership of the society and was allotted FlatNo. 25 of the multi-storeyed building known as 'Vishwa Mahal' situate on C Road, Churchgate, Bombay-20. The said Laxmi Devi gifted her interest as the allottee-member of the society to her brother Ambica Prasad Sharma of Udaipur. One D.P. Kejriwal who was looking after this flat inducted the appellant therein w.e.f. 1st June, 1957 under a leave and licence agreement on a licence fee of ₹ 400 per month. While the appellant was in actual occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court to approach was the one under Section 28 of the Rent Act, which the respondent No. 2 had in fact approached. The Cooperative Court came to the conclusion that the relationship created under the document of leave and licence was that of a licensor and a licensee. On the question of tenancy under Section 15Athe Court concluded as under: So far as second part of the issue regarding opponent No. 2 contending to be tenant of opponent No. 1 is concerned, the opponent No. 1 in his evidence has mentioned to the effect that after his becoming a member of the society he initially accepted the opponent No. 2 as his licensee and allowed him to occupy the suit flat temporarily on his promise to vacate when required by opponent No. 1. He has further stated that he filed the case in the Small Causes Court for ejectment of opponent No. 2 in his own right as advised by his Advocate in that case. He has also stated that he accepted Opponent No. 2 as his tenant because after 1.2.1973 there is change in law and so he had to accept opponent No. 2 as his tenant. In view of this evidence I have to give a finding in the affirmative in respect of part of the issue whether opponent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cooperative society, such protection cannot be claimed against a housing society. A reference to the decision in O.N. Bhatnagar v. Rukibai Narsindas, reported in AIR 1982 SC 1097, is sufficient . The decision of this Court in Hindustan Petroleum Corporation Limited v. Shyam Cooperative Housing Society, [1988] 4 SCC 747= AIR 1989 SC 295 was distinguished as not laying down any proposition that a licensee is entitled to take advantage of Section 15A of the Rent Act even against the society. So stating the learned Judge dismissed the writ petition. That is how the appellant is before us by special leave. Section 91(1) of the Societies Act insofar as relevant for our purposes reads as under: Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitu- tion, ........... management or business of a Society shall be referred by any of the parties to the dispute .......... to the Cooperative Court if both the parties thereto are one or other of the following: (a) a society .......... (b) a member, past member or a person claiming through a member, past member or a deceased member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant before the latter was put in possession of the flat in question nor was any request made to the society to admit the appellant as a nominal-member. It was, therefore, contended on behalf of the society that the entry of the appellant in the flat in question was clearly in violation of Regulation 4 and bye-law 7A adverted to above and, therefore, the dispute was clearly one touching the business of the society attracting Section 91(1) of the Societies Act. The appellant's challenge as pointed out earlier can be said to be two fold, namely, (1) the dispute between the appellant and the society cannot be said to be in any manner related to the business of the society and (2) since the jural relationship between the member and the appellant was admittedly of landlord and tenant, the jurisdiction of the Cooperative Court under the Societies Actwas clearly barred by virtue of Section 28 of the Rent Act which is a special statute dealing with landlord-tenant relationship. The Rent Act was enacted to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions and also to control the char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as amenities by any undertaking or institution; and the expressions 'licence', 'licensor' and 'premises given on licence' shall be construed accordingly . The definition of a 'landlord' in Section 5(3) includes in respect of a licensee deemed to be a tenant by Section 15A, the licensor who has given such licence. Similarly the expression 'tenant' as defined by Section 5(11)includes such licensees as are deemed to be tenants by Section 15A. Section 14(2) may also be noticed which reads as under: Where the interest of a licensor who is a tenant of any premises is determined for any reason, the licensee, who by .. Section 15A is deemed to be a tenant, shall, subject to the provision of this Act, be deemed to become the tenant of the landlord, on the terms and conditions of the agreement consistent with the provisions of this Act . The Courts below have come to the conclusion that the appellant was a tenant of respondent No. 2 by virtue of Section 15A of the Rent Act since he was in actual occupation of the flat on 1st February, 1973. Having recorded the relationship of landlord and tenant between the member, respondent No. 2, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted premises through the expedient of leave and licence agreements was made. This becomes evident from the Objects and Reasons for Act No. XVII of 1973, which read as under: It is now notorious that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, is being avoided by the expedient of giving premises on leave and licence for some months at a time; often renewing from time to time at. a higher licence fee. Licensees are thus charged excessive licence fees; in fact, several times more than the standard rent, and have no security of tenure, since the licensee has no interest in the property like a lessee. It is necessary to make provision to bring licensees within the purview of the aforesaid Act. It is therefore provided by Clause 14 in the Bill that persons in occupation on the 1st day of February, 1973 (being a suitable anterior date) under subsisting licences, shall for the purposes of the Act, be treated as statutory tenants, and will have all the protection that a statutory tenant has, under the Act. It is further provided in Clause 8 that in the case of other licences, the charge shall not be more than a sum equivalent to standard rent and permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which provides to the contrary, must yield to Section 15A read with Section 14(2) of the Rent Act. That is why this Court while overruling the decision of the Full Bench of the Bombay High Court in Ratanlal Chandiprasad v. Raniram Darkhand, writ petition No. 76 of 1980 decided on 18th October, 1985 observed in paragraph 69 of its judgment in Chandavarkar Sita Ratna Rao v. Ashalata S. Gurnatn, [1986] 4 SCC 447 at 478 as under: . .... it must be held that all licensees created by landlords or by the tenant before February 1, 1973 and who were in actual occupation of a premises which was not less than a room as licensee on February 1, 1973 would be the licensees of the landlord or tenant and whether there by any term in the original agreement for tenancy permitting creation of such tenancy or licences or not they would become tenant and enjoy the fights granted under the Act specially those mentioned in Section 14(2) of the Act . Therefore, this Court held that a licensee under a licence created by a tenant, be he a statutory tenant or a contractual tenant, whether or not his tenancy agreement permitted the creation of such licence, was entitled to the protection of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other provision anywhere to the same effect. In the Scheme of the provisions a dichotomy is seen between share or interest in the capital and interest in property of the Society. While Section 29(2) refers to transfer of a member's share or his interest in the capital or property of any Society, Section 31 in contrast speaks of 'the share or interest of a member in the capital of a Society'. The Act, therefore, makes a clear distinction between the share or interest in the capital and share or interest in property of the Society. We have also noticed that the Act does not recognise interest in the immovable property of the society as well [See section 41(1)(b)]. We have seen the qualifications for membership. There is no reason to suppose that if the qualification under the byelaws are fulfilled an application for membership may be rejected . After pointing out that the right or interest to occupy is a species of property this Court went on to add as under: We, therefore, unhesitatingly come to the conclusion that this species of property, namely, the right to occupy a flat of this type, assumes significant importance and acquires under the law a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Societies Act was not ousted because there was no jural relationship of landlord and tenant between the society and the appellant. According to them if non-members could be inducted in tenements or flats belonging to a Cooperative Housing Society of the present type, the entire housing movement would become redundant and the object of forming such cooperative housing societies would be totally defeated. Therefore. submitted the learned counsel, even if it is assumed that the appellant had acquired the status of a tenant by virtue of Section 15A of the Rent Act, the protection extended by the said provision would extend to the licenser-member only and not to the society. In this connection strong reliance was placed on the decision of this Court in O.N. Bhatnagar's case (supra) which has been referred to and relied on in four subsequent decisions namely, M/s A.V.R. And Co. Others v. Fairfield Cooperative Housing Society Others, [1988] 4 SCC 408; Sardar Mohan Singh Ahluwalia v. Maitrai Park Co-operative Housing Society and Another, [1988] 4 SCC 416; Hindustan Thompson Associates Ltd. v. Mrs. Maya Inderson Israni Others, [1988] 4 SCC 745 and Smt. Krishna Rajpal Bhatia v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, concluded that eviction proceedings could be commenced against him under Section 91(1) of the Societies Act. In the last mentioned case of Srnt. Krishna Rajpal Bhatia the court found that the agreement in question created the relationship of a licensor and a licensee and the licence had in fact been terminated by a notice dated 21st May, 1969 and, therefore, the occupant was a mere trespasser when the action was commenced underSection 91(1) of the Societies Act and was not entitled to the benefit of Section 15A of the Rent Act. It can, therefore, be seen that the aforesaid 5 decisions on which considerable reliance was placed by the learned counsel for the Society and its member can be distinguished on facts inasmuch as in all those cases the finding of fact recorded throughout was that the licensee was not in occupation of the premises in question under a subsisting licence on 1st February, 1973 to invoke the protection of Section 15A of the Rent Act. However, in the case of Hindustan Petroleum Corporation Limited (supra) the Esso Easter Inc., a company, had taken in Block No. 8 in Sham Niwas on leave and licence basis for a period of one year in terms of a writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Act and the Rent Act, this Court observed that the finding of the appellate court that the appellant-corporation was not entitled to the protection of Section 15A the Rent Act could not be sustained. This Court concluded in paragraph 14 at page 758 as under: In the premises, petitioner 1 Hindustan Petroleum Corporation Ltd., is clearly protected under Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In that view of the matter, we do not think it necessary to deal with the contention as regard the applicability of Section 91 of the Maharashtra Co-operative Societies Act, 1960. All aspects arising out of the submissions as to the jurisdiction of the Registrar under Section 91(1) of the Act have already been considered by this Court in O.N. Bhatnagar case and we reiterate the principles laid down therein . This Court did not consider it necessary to deal with the third contention whether a claim for ejectment of an occupant of a flat in a cooperative housing society who has been put in possession thereof by the member under a leave and licence agreement, is a 'dispute touching the business of the society' within the meaning of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 5(4A), is a deemed tenant under Section 15A and, therefore, falls within the definition of 'tenant' under Clause (bb) of Section 5(11) of the Rent Act. Such a tenant is entitled to the protection of the Rent Act and cannot be evicted from the premises in his occupation except as provided by the said Act. To hold otherwise would be to render the status conferred on licensees in actual occupation on 1st February, 1973, under a subsisting licence, nugatory. The appellant was put in possession of the flat in question by the tenant-co-partnermember of the Society and was accepted as such by the successormembers also. As pointed out earlier a member of a tenant-copartnership type of Society is under an obligation to pay a fixed rental every month to the Society. This rental is, no doubt. determined on the basis of the member's financial obligations incurred on account of the cost of construction, price of land or lease rent, as the case may be, interest on borrowings, etc. The primary object of such a society is to provide residential accommodation to its members on easy payment basis. That is why in Bhatnagar's case this Court stated that 'it is as much the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a general provision, a dispute touching the business of the society, would have to give way to the special provision in the Rent Act on the maxim generalia specialibus non derogant. That is why this Court harmonised the said provisions by holding that in matter covered by the Rent Act, its provisions, rather than the provisions of the Societies Act, should apply. In the present case the appellant seeks protection of the Rent Act since he is a deemed tenant under Section 15A read withSection 5(4A) and 5(11)(bb) of the Rent Act. 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. The submission that the appellant cannot seek protection against the Society as his entry into the flat was in violation of the Bye-laws would have been valid had the statute not intervened. To take such a view would tantamount to carving out an exception in Section 15A of the Rent Act that the said provision would not apply to licens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds in proving that he is a tenant in respect of premises, possession whereof is sought, the court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the jurisdictional fact that the defendant was a trespasser. Here also the claim was lodged by the society in the Cooperative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere trespasser. On facts it is now found that the appellant was and is a protected tenant under Section 15A of the Rent Act. The proceedings initiated under Section 91(1) of the Societies Act cannot, in the circumstances, succeed for the simple reason that the society has failed to prove the fact which constitutes the foundation for jurisdiction. If the society fails to prove that the appellant has no right to the occupation of the flat since he is a mere trespasser, the suit must obviously fail. That is why even in the case of Hindustan Petroleum Corporation Limited this Court did not consider it necessary to deal with the contention based onSection 91(1) of the Societies Act in detail and felt content by observing that the point stood covered by the decision in Bhatnaga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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