Decided on April 21,1982



Sen, J. - (1.) This appeal by special leave directed against the judgment of the Bombay High Court dated April 21, 1981 raises a question of some importance. The question is whether a claim for ejectment of an occupant of a flat by a housing co-operative society, who had been let into possession of the premises under an agreement of leave and licence executed between him and a member of the society, by virtue of his being a nominal member thereof, is a 'dispute touching the business of the society'. within the meaning of sub-s. (1) of S. 91 of the Maharashtra Co-operative Societies Act, 1960 (for short 'the Act').
(2.) The material facts giving rise to this appeal are as follows. The respondent No. 2 herein, Shyam Co-operative Housing Society Limited is constituted under the provisions of the Maharashtra Co-operative Societies Act, 1960 as a tenant co-partnership type housing society to which Regulations in Form-A apply viz., Regulations relating to tenancies to be granted by the society to members in, respect of houses held by the society. It owns and manages two housing colonies known as 'Shyam Niwas' and 'Navik Niwas' at Warden Road, Bombay. The society continues to be governed by Regulations in Form A ever since they were adopted by it after approval by the Registrar of Co-operative Societies in 1950. It appears that in 1964 the Directors passed a resolution for the introduction of Regulations in Form-B but it was never implemented. The respondent No. 1 Rukibai N. Bhavnani is a copartner tenant member of flat No. 52 in building No. 5-A in the housing colony known as 'Shyam Niwas' situate at Warden Road, Bombay. The respondent No. 1 inducted the appellant in flat No. 52 under an agreement of leave and licence dated Nov. 28, 1961. The bye-laws of the society provide that no member can part with his possession of the flat under an agreement of leave and licence to another except with the approval of the society and unless such licensee becomes a nominal member thereof. The respondent No. 1 and the appellant accordingly applied to the society on December 8, 1961 for accepting the appellant to be a nominal member. The respondent No. 2-society passed a resolution No. 90 on December 15, 1961 accepting the appellant as a nominal member. The leave and licence agreement executed by the respondent No. 1 was renewed from time to time and the last agreement was executed. on Jan. 10, 1965, the term of which was to expire on Feb. 28, 1965. By her notice dated March 31, 1965 the respondent No. 1 called upon the appellant to vacate the premises as his occupation of the premises had become unlawful after termination of the licence. The appellant failed to comply with the demand and has remained in unauthorised occupation of the flat for all these years.
(3.) After termination of the agreement, in May 1965, the respondent No. 1 Smt. Rukibai N. Bhavnani claiming to be a co-partner tenant member of the society and as such holder of flat No. 52, brought proceedings against the appellant before the District Deputy Registrar Co-operative Societies, Bombay under S. 91 (1) of the Act for his eviction and for recovery of arrears of compensation and mesne profits, impleading the society as opponent No, 3. On receipt of the claim under S. 91 (1) the Assistant Registrar, Co-operative Societies issued notice to the appellant for the purpose of satisfying himself that a dispute under that section existed. The appellant however did not appear, before the Assistant Registrar who was seized with the matter but instead filed an application before the Court of Small Causes, Bombay for fixing standard rent of the flat in dispute. These proceedings were stayed pending adjudication of the dispute by the Assistant Registrar. The Assistant Registrar in the meanwhile proceeded with the inquiry and after holding that such a dispute exists he referred the case to the Registrar's nominee for adjudication. The appellant did not challenge the decision of the Assistant Registrar.;

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