STAE Vs. BABULAL PRABHUDAS SHAH

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the order passed by the Maharashtra State Co-operative Appellate Court, Pune Bench, Bombay dated 17th March, 1989 in Appeal No. 83 of 1986.

(2.) THE premises in question is a residential flat bearing No. R-359 in Adinath Co-operative Housing Society, Pune Satara Road, Pune admeasuring about 800 sq. ft. It is not in dispute that the respondent No. 2 is registered as a tenant Co-partnership Housing Society. The respondent No. 1 is a member of the respondent No. 2 society and allottee of the suit flat that pursuant to the permission granted by the respondent No. 2 society vide resolution dated 24-6-1974, in favour of respondent No. 1 the original petitioner was inducted in the suit premises by the respondent No. 1. According to the respondents the petitioner was inducted only on leave and licence basis as permissible under the bye-laws of the society. Undisputedly the petitioner was put in possession on 1-8-1974. Whereas according to the petitioner, he was inducted in the suit premises as tenant of respondent No. 1. Be that as it may, the respondent No. 1 issued notice on 14-4-1982 demanding arrears of rent from the petitioner and also demanding possession of the suit flat. It will be relevant to point out, at this stage that, in this notice the petitioner has been described as tenant. Relying on this notice the petitioner contends that the respondent No. 1 has admitted the petitioner as tenant and not as licensee as is now contended. Suffice it to point out that eventually the respondent No. 1 filed dispute in the Co-operative Court at Pune being Dispute No. 202 of 1982. Initially the said dispute was filed by respondent No. 1; but, later on respondent No. 2 society also got itself impleaded as disputant No. 2. In other words, the said dispute for possession of the suit premises against the petitioner filed under section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the said Act) was by the member (respondent No. 1) and the society (respondent No. 2) together on the premise that petitioner was an unauthorized occupant in the suit premises especially after the termination of his licence vide notice dated 14-4-1982 and more particularly resolution passed by the respondent No. 2 society on 5-6-1982. The matter was contested before the trial Court.

(3.) IT is also relevant to point out that the petitioner had filed a substantive declaratory suit in the Court of Small Causes, Pune being Civil Suit No. 301 of 1988 for declaration that he is the tenant of respondent No. 1 in the suit premises. However, that suit was eventually dismissed for default on 21-8-1995 and that order has been allowed to become final. In other words, although the petitioner approached the Rent Court for declaration that he was tenant of the suit flat, undisputedly those proceedings have ended against the petitioner and that order has become final.