BAKUBHAI KESHAVLAL SHAH DECEASED 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. op. Housing Society, Pune Satara Road, Pune admeasuring about 800sq. 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-op. 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.) ACCORDING to the Petitioner, he was inducted as tenant in the suit premises and, therefore, the claim of possession can be maintained against the Petitioner only before the Rent Court and such a relief could not be entertained by the Co-operative Court under Section 91 of the Act. It is next contended that the Respondents have miserably failed to establish the fact that the Petitioner was not tenant but a licensee in respect of the suit premises in as much as the Respondents have neither produced resolution dated 24. 6. 1974 which permitted the Respondent No. 1 to induct the Petitioner as tenant nor the agreement which was executed between the Petitioner and Respondent No. 1 or the concerned bye laws of the Respondent No. 2-Society; whereas in the notice dated 14th April,1982 issued by the Respondent No. 1, the Respondent No. 1 has conceded the fact that the Petitioner was tenant in the suit premises. ACCORDING to him, therefore, adverse inference should be drawn against the Respondents and it will have to be held that the Petitioner was inducted in the suit premises as tenant. If that be so, dispute between the parties could be maintained only before the Rent Court and not the Co-operative Court under Section 91 of the Act.