K K ADHIKARI Vs. T G KULKARNI

JUDGEMENT

(1.) Admittedly the petitioner was inducted in apportion of a flat in a building belonging to the Bombay Thana Co-operative Housing Society of which respondent No. I was a member. Before the petitioner was permitted to occupy a room in the said flat, he was required to become a nominal mebmer of the Society, When the petitioner refused to vacate the room which he occupied, a dispute under section 91 of the Maharashtra State Co-operative Societies Act was taken up with the Officer on Special Duty, Thana. To this dispute the Society was defendent No. 2. The Officer on Special Duty, however, held that he had no jurisdiction to try the dispute because the petitioner was tenant of the member of the society and that since the dispute is one for possession of the premises in the occupation of a tenant, it is not covered by section 91 of the Act. Respondent No. 1 filed an appeal against the decision of the Officer on Special Duty before the Co-operative Appellate Court. In the appeal the society was sought to be transposed as a co-disputant along with the member, that application was allowed. Dealing with the appeal, the Appeal Court held that the finding recorded by the Officer on Special Duty that the petitioner was a tenant was not called for because the Society has taken care to see that a stranger could not be inducted into the premises of a society unless he become a nominal member. Thus, holding that the petitioner was not a tenant of the room in question, the Appellate Court directed the petitioner to deliver vacant position of the society's premises. This petition is now filed by the petitioner in this Court under Article 226 of the Constitution of India against the above direction.

(2.) Mr. Limaye has raised two contentions. One is that a nominal member under section 24 of the Act has no rights and therefore, he was not prevented form becnming a tenant. The other contention is that he being a tenant, the Co-operative Court had rib jurisdiction to pass an order for eviction. Both these Contentions, in our view are wholly misconceived. The relationship between the petitioner and the Society is that the petitioner is a memeber of the Society. The definition of a member under section 2( 19) includes a nominal member or a sympathiser-member. In clause (c) of Section 2(19) a nominal member is defined as meaning a person admitted to membership as such after registration in accordance with the by-laws, Therefore, so far as the Act is concerned, irrespective of whether there are any rights vested in a nominal member or not, a nominal membr is treated as a member of the Co-operative Society. Our attention has been invited to section 24 of the Act to show that a nonminal member is not entitled to any share in any from whatsoever in the profits or assets of the society as such a member. A latter part of sub-sec. (2) will indicate that a nominal member has such privileges and rights and is subject to such liabilities of a member as may be specified in the by-laws of the Society one of the privilagesm which in the instant case a nominal member has, is that on becoming a nominal member, he is entitled to occupy a premises belonging to a member, temporarily. Therefore, notwithstanding the fact that a nominal member does not enjoy all the rights and privilages which are available to an ordinary member, his status is that of a member as defined in section 2(19). He cannot therefore, now claim that he was not a member but a tenant of the premises. We may also point out that the question as to whether a nominal member can claim tenancy is now exhaustively dealt with by a decision of this Court in Special Civil Application No. 900 of 1976 decided on 5th February 1980 (Contessa knit wear vs.Udyog Mandir Coop. Housing Society). The Division Bench in that case held that where letting out of a premises of a member to third person is permissible with prior permission of the Society and the third person in such a case has to be made a nominal member to ensure compliance of his obligations as a temporary occupant as also final eviction, "Immunity against eviction of any such licence of the member, available to any tenant under section 12 of the Rent Act is simply incompetable with such a Housing Society Scheme in which flats are intended for the needy members themselves". It is thus not open to petitioner to claim that he was tenant.

(3.) The second ground that the dispute is not covered by section 91 is also wholly untenable. It is obviously a dispute between a member and another member. It is also a dispute between a co-opeiative Society audits nominal member and, therefore, the authorities under the Co-operative Societies Act had a clear jurisdiction to decide on the dispute