KRISHNA RAJPAL BHATIA Vs. LEELA H ADVANI

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High Court of Bombay dated 16th December 1983 declining to interfere with the judgment and order of the Maharashtra State Co-operative Appellate Court, Bombay dated 31st October, 1983. By the impugned judgment the Appellate Court upheld the judgment and order passed by the Judge, First Co-operative Court, Bombay dated 28th August, 1981 directing the appellants to vacate and hand over possession of Flat No. 16 on First Floor of Block No. 8 in the housing colony known as Shyam, Niwas, situate at Warden Road, now called Bhulabhai Desai Road, Bombay and to pay mesne profits @ Rs. 450 per month and a further amount of Rs. 42.50 towards maintenance, car parking and water charges w.e.f. 1st August, 1981.

(2.) 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 Raipal 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 It months each by two further agreements and thereafter the period was further extended for II months by an endorsement. The late Sint. 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 Co-operative Societies Act, 1960 (for short ,the Act,) before the District Deputy Registrar for the eviction of the said Rajpal Bhatia alleging him to be in unauthorised occupation of her flat. The claim as laid by her was that she was a ,tenant member, of the society and that Rajpal Bhatia was in unauthorised occupation. Her claim for eviction was however resisted by Rajpal Bhatia inter alia on the ground that the transaction between the parties was one of lease and not of licence and therefore the Registrar had no jurisdiction to enter upon:the reference under S. 91 of the Act inasmuch as his jurisdiction to enter upon such claim was barred under S. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act for short). That objection of his was sustained by the Officer on Special Duty by his judgment and award dated 16th November 1972. The learned Officer on Special Duty held that the parties stood in the jural relationship of landlord and tenant and further that the dispute in question did not touch upon the business of the society within the meaning of S. 91 of the Act.

(3.) Aggrieved, the disputant the late Sint. Devibai Advani carried an appeal to the Maharashtra State Co-operative Appellate Tribunal. The Tribunal by its judgment and order dated 8th February 1974 allowed the appeal and remanded the case for a decision afresh on the question whether the disputant the late Sint. Devibai Advani was a tenant co-partner member or a tenant owner member. It is however necessary to mention that the Tribunal held that the society was a mixed type of society having both tenant co-partner members and tenant owner members but since the disputant described herself as a tenant member, and particularly having regard to the fact that Rajpal Bhatia got himself admitted as a nominal member queried:If she was an owner member where was the necessity of taking permission of the society for letting the flat Nor was there any necessity for Raj pal Bhatia to seek admission as a nominal member which made him subject to the bye-laws of the society. According to the Tribunal, these circumstances were more in consonance with the status of the disputant being a tenant member. It went on to say that there was no evidence led to establish that the flat in question was sold, to the disputant and accordingly remitted the aforesaid issue for a decision afresh. During the pendency of the appeal, the late Smt. Devibai Advani made an application praying that the society be transposed as disputant No. 2. Despite the opposition of Rajpal Bhatia, the application for transposition was ultimately allowed.