NARAIN G MIRCHANDANI Vs. VINODRAI R VORA

JUDGEMENT

(1.) BY this petition, the petitioners challenge the order passed by the Maharashtra State Co-operative Appellate Court dated 18-9-1990 in Appeal No. 382 of 1987. That appeal was filed by the present respondent No. 1 challenging the award passed by the Co-operative Court dated 27-8-1987 in Case No. C/i/442/1158/79 of 1987. That dispute was filed by the present petitioner claiming the order of eviction against the respondent No. 1. It was the case of the disputants that the disputant No. 2 is a Co-operative society, in whose building the disputant No. 1 is an allottee of flat No. 406 on the 4th floor. The disputant No. 2 is the tenant Co-partnership Housing Society and the disputant No. 1 is the member of that society. It was alleged that by leave and licence agreement dated 25-6-1970, the disputant No. 1 granted licence of the flat to the respondent No. 1. It was the case of the disputant No. 1 that this licence was created in favour of the respondent No. 1 contrary to the bye-laws of the society and therefore the disputants were entitled to the possession of the suit premises from the respondent No. 1.

(2.) THE defence of the respondent No. 1 was that the licence created in his favour is not in breach of the provisions of the bye-laws. It was his case that, even if it is assumed that it is in breach of the bye-laws, the licence was subsisting on 1-2-1973, when the provisions of section 15 (a) of the Bombay Rent Act came into force and converted the licence of the respondent No. 1 into deemed tenancy. The Co-operative Court decreed the dispute in favour of the disputant and directed the respondent No. 1 to vacate the premises. The respondent No. 1 preferred an appeal against the said decree before the Appellate Court. The Appellate Court held the licence granted in favour of the respondent No. 1 was subsisting licence from 1-2-1973 and therefore by intervention of the provisions of section 15 (a) of the Bombay Rent Act it got covered into the deemed tenancy and therefore in terms of the law laid down by the Supreme Court in the case of (Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. and others), reported in 1990 (2) S. C. C. 288, the dispute before the Co-operative Court is not tenable. As a result the appeal was allowed, the award passed by the trial Court, namely the Co-operative Court was set aside. It is this order passed by the Appellate Court, which is challenged in the petition by the original disputants.

(3.) THE learned Counsel for the petitioner submits that the only reason why the Appellate Court set aside the award passed by the Co-operative Court is that according to the Appellate Court the licence granted in favour of the respondent No. 1 was subsisting on 1-2-1973 and therefore he becomes a deemed tenant because of the provisions of section 15 (a) of the Bombay Rent Act. The learned Counsel submits that the respondent No. 1 had filed a R. A. D. Suit No. 2456 of 1997 before the Small Causes Court seeking a declaration that his licence was subsisting on 1-2-1973 and therefore because of the provisions of section 15 (a) of the Bombay Rent Act he has become a deemed tenant. The Small Causes Court by its judgment dated 27-6-1976 dismissed the suit of the respondent No. 1. The appeal filed by the respondent No. 1 before the Appellate Bench of the Small Causes Court was also dismissed. Against these orders Writ Petition No. 6914 of 1998 was filed before this Court and this Court confirmed the findings recorded by both the Courts below and dismissed the petition by order dated 21st December, 1998. The respondent No. 1 challenged all these orders before the Supreme Court in petition for Special Leave to Appeal No. 5278 of 1999 and the Supreme Court by order dated 16-4-1999 dismissed the said Special Leave Petition. The learned Counsel, therefore, submits that now a competent Court in a suit filed by the respondent No. 1 himself has recorded a finding that the licence of the respondent No. 1 was not subsisting on 1-2-1973 and therefore by intervention of the provisions of section 15 (a) he does not become a deemed tenant. The learned Counsel submits that in the face of these findings recorded by all the Courts, now a finding recorded by the Appellate Court that the licence of the respondent No. 1 was subsisting on 1-2-1973 would not survive and has to be set aside. Once that finding is set aside, then the position that emerges is that the licence of the respondent No. 1 was not subsisting on 1-2-1973. It means that the licence of the respondent No. 1 had come to an end and therefore the disputants were entitled to possession of the flat from the respondent No. 1.