- (1.) Special leave granted. Can a licensee occupying a flat in a tenantco-partnership society be evicted therefrom under sub-section (1) of Section 91 of the Maharashtra Co-operative Societies Act, 1960 (Act No. XXIV of 1961), hereinafter called 'the Societies Act', notwithstanding the protection extended by S. 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act No. LVII of 1947), hereinafter called 'the Rent Act', as amended by Act XVII of 1973 or whether such proceedings would be governed by S. 28 of the Rent Act That is the question which arises for our determination in the 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 factual 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 under the provisions of the Bombay Cooperative Societies Act, 1925 and is deemed to be registered by virtue of S. 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 Flat No. 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 Rs. 400/- per month. While the appellant was in actual occupation of the flat, the allottee-member Ambica Prasad Sharma transferred his interest therein to his brother Hari Kumar Sharma, respondent, No. 2, sometime in July 1967. The said respondent was admitted to the membership of the society on 15th July, 1967. It appears that even after this transfer D.P. Kejriwal continued in management of the flat and collected and received the licence fee from the appellant till the middle of 1979 when he received a letter from respondent No. 2 claiming ownership of the flat. The appellant then filed an interpleader suit in the Court of Small Causes, Bombay, seeking a direction to whom he should pay the rent for the flat occupied by him. This interpleader suit was disposed of on 21st June, 1983. Immediately thereafter respondent No. 2 deposited Rs. 5,500/- on 28th June, 1983 with respondent No.1 society towards the society's cost to initiate proceedings for eviction of the appellant from the flat in question under S. 91 (1) of the Societies Act. Two days later the respondent No. 2 filed a suit for the eviction of the appellant from the flat in the Court of Small Causes, Bombay. After respondent No. 2 deposited Rs. 5,500/-, the society passed a resolution on 5th July, 1983 to initiate proceedings under S. 91 (1) of the Societies Act for the eviction of the appellant from the flat in question. Thereupon the society served the appellant with a notice to quit dated 11th July, 1983 and thereafter instituted the action under S. 91(l) of the Societies Act.
(2.) The appellant raised several defences, two of which may be noticed. He firstly contended that the so-called document of leave and licence in fact created a lease and, therefore, the proceeding under S. 91 (1) of the Societies Act was not competent. Secondly he contended that even if it is assumed that the relationship was of a licensor and a licensee under the deed, since he was in actual occupation and possession of the flat in question under a subsisting licence right from 1957 to 1st February, 1973 he was a statutory tenant under S. 15A of the Rent Act and was, therefore, entitled to protection from eviction till a competent court granted eviction on any of the grounds set out in Ss. 12 or 13 of the Rent Act. He, therefore, contended that the Co-operative Court had no jurisdiction under S.91(1) of the Societies Act and the proper court to approach was the one under S. 28 of the Rent Act, which the respondent No. 2 had in fact approached.
(3.) The Co-operative 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 S. 15A the 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 No. 2 proves that he is a tenant of opponent No.1. In other words the Co-operative Court came to the conclusion that the appellant was a tenant of respondent No. 2 under S. 15A of the Rent Act since he was in occupation of the flat on 1st February, 1973. After finding the appellant to be a tenant of respondent No. 2 under S. 15A, the Co-operative Court proceeded to observe as under : "Now regarding the effect of findings on the parts of issue No. 2 as mentioned hereinabove, the position in law is quite clear that even though the non-member occupant could at best be regarded as tenant of member, he cannot be deemed as tenant of the society because the society does not fall within the definition of the term landlord under the Rent Act". The Co-operative Court, therefore, came to the conclusion that the society could maintain an action under S. 91 (1) of the Societies Act notwithstanding the fact that the occupant was a tenant under S. 15A of the Rent Act qua the member-allottee, In this view, the Cooperative Court passed an ejectment order against the appellant and ordered that the member shall personally occupy the flat in question within 15 days from the receipt of possession thereof.;