LEONG Vs. JINABAI G GULRAJANI

JUDGEMENT

(1.) This petition involves a dispute as to possession of flat in the building belonging to a co-operative society. The disputants Nos. 1 and 2 are holders of the said flat as members of the said society. The same was given on leave and licence basis by them under an agreement dated 16th December, 1968 to the non-disputants. An application made by the contracting parties to make one of the licensees a nominal member of the said society, presumably to make the agreement accord with the bye-laws of the society was rejected by the society, the disputant No. 3. After the licence period expired, disputants Nos. 1 and 2 called upon the non-disputants by a notice to give back the possession of the said flat. The non-disputants did not respond. The present proceedings for possession of the flat therefore were initiated by the three disputants, the respondents herein including the society, against the non-disputants, the present petitioners, raising a dispute to that effect under Section 91 of the Act. The trial Court rejected the claim on 30th November, 1975. The respondents' appeal and the claim was allowed by the Maharashtra State Cooperative Appellate Court by its order dated 12th October, 1976. The validity of this order is challenged in this petition under Article 227 of the Constitution of India.

(2.) When the matter came up for hearing before a Division Bench of this Court, Mr. Sabnis, the learned Advocate appearing for the petitioners contended that though the society is impleaded in the proceedings as disputant No. 3, the society has no interest whatsoever in claiming possession from the petitioners and as such, it is merely a formal aid an idle party. The dispute essentially being between the licensors and licensees, the same was not cognizable by the authority under Section 91 of the Act, the same not being a dispute touching the business of the society, as held in the case of Kalawati Ramchand v. Shankarrao Patil, (1974) 76 Bom LR 718 by a Division Bench of this Court.

(3.) The trial Court can be said to have accepted this contention of the petitioners while rejecting the claim of the disputants. The appellate Court, however, found that the society also was claiming possession along with its members on the ground of the possession of the non-disputants being unauthorised and in breach of the bye-laws. This is how the society is shown to have been interested.