- (1.) THE principle question in controversy in this petition under Article 226 of the Constitution is whether a tenant who has been inducted in a flat by a member of a co-operative housing society in breach of the bye-laws of the society, can claim protection under section 15 (2) read with section 14 (1) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "bombay Rent Act"), and whether a claim filed by the society for ejectment of such member as well as tenant, is a dispute touching the business of the society within the meaning of sub-section (1) of section 91 of the Maharashtra Co-operative Societies Act, 1960 (for short "the Co-operative Societies Act" ).
(2.) PUT very briefly, the essential facts are these. The 1st respondent is a co-operative housing society and as such owner of a building known as "ashiana", situate at plot No. 6, 10th North-South Road, Andheri, Mumbai. The society was registered in 1968. The 2nd respondent is its member as a co-partner tenant and allottee of flat No. 5 (for short "suit flat") in the said building of the society. In December 1970, the petitioner was put in possession of the suit flat except one bedroom on a monthly rent of Rs. 325/ -. The respondent No. 2 retained with him one bedroom. Later, at the request of the petitioner, respondent No. 2 allowed the petitioner to use the remaining bedroom from January, 1972 and the monthly rent was increased to Rs. 450/ -. In 1977 the petitioner filed R. A. Declaratory Suit No. 4322 of 1977 seeking a declaration that he is a tenant of respondent No. 2 in respect of the suit flat. The respondent No. 2 by his written statement disputed the petitioners claim of tenancy and contended that the petitioners occupation of the suit was merely permissive. In the words, the petitioner was a licensee and not a tenant. The Small Causes Court by its judgment and order dated 13th April, 1982 dismissed the petitioners declaratory suit holding that the petitioner was a licensee. Feeling aggrieved, the petitioner preferred Appeal No. 354 of 1982 before the Appellate Bench of the Small Causes Court. The Appellate Court by its judgment and order dated 19th March, 1984 allowed in the petitioners appeal, set aside the trial Courts judgment and decree, and declared the petitioner to be a tenant of the suit flat and granted injunction sought. Against the said decree, respondent No. 2 preferred Writ Petition No. 3662 of 1984 before this Court, which came to be withdrawn on 3rd July, 1998.
(3.) THE respondent No. 1 society appears to have objected to the petitioners possession mainly on the ground that the petitioner secured such possession without (i) the petitioner being a nominal member, and (ii) obtaining prior permission as required under the bye-laws. The society also alleged that the petitioner is guilty of causing nuisance to the other members in the society. The society instituted the present proceedings being A. R. R. Case No. A. B. N. 634/754 of 1977 for possession against respondent No. 2 i. e. , the member and the petitioner claiming possession of the suit flat. The societys dispute was referred to the Officer on Special Duty by the Registrar under section 91 of the Co-operative Societies Act. Subsequently, due to amendment to section 91 the dispute was transferred to the Co-operative Court under section 91-A of the Act. In short, the case of the Society is that respondent No. 2 is under an obligation to occupy the said flat allotted to him and cannot allow the same to be occupied by a non-member but respondent No. 2 parted with possession of the suit flat without the societys prior consent and by permitting the petitioner to occupy and use the same, committed breach of the societys bye-laws and resolutions. Secondly, it is alleged by the society that respondent No. 2 is a persistent defaulter of the societys due and as on 1st March, 1977 a sum of Rs. 6,608/- is due and payable by respondent No. 2 to the society as and by way of arrears of monthly contribution for the period upto March, 1977. Thirdly, it is alleged that the occupant i. e. , the petitioner is causing nuisance to the members of the society.;