D RANGARAJAN Vs. K B S MANIAM

JUDGEMENT

(1.) PRESENT writ petition under Articles 226 and 227 of the Constitution of India challenges judgment and order dated 21st June, 1990 in Appeal No.194 of 1989 of the Maharashtra State Co-operative Appellate Court, Bombay.

(2.) FACTS relevant for the purpose of the present judgment are as under : The suit property is flat No.7, situated in 'shankar Kunj' Co-operative Housing Society, plot No.213, Sion Road, Sion (East), Bombay - 400 022. Respondent No.2 herein is the Co-operative Housing Societies registered under the provisions of Maharashtra Co-operative Housing Society Act, 1960 (hereinafter referred to as Act for short ). In or about October, 1963, flat No.7 situated on the ground floor has been allotted to respondent No.1 by virtue of his being a shareholder/member of the respondent No.2 society, on the terms and conditions of tenancy as laid down under the bye-laws of the society. By a leave & licence agreement dated 1st April, 1967, the petitioner was permitted to occupy suit flat. The tenure of the said agreement was for 11 months. There are three more leave and licence agreements entered into by the petitioner and respondent No.1. These agreements are dated 2nd May, 1968, 2nd May, 1970 and 1st July, 1971. The agreement dated 1st July, 1971 is annexed at page 51 to this petition. The said agreement is for 11 months and the said period expired on 31st May, 1972. On 1st February, 1973 the Bombay Rent Act was amended and licencees were given status of deemed tenants. It is the case of the respondent Nos. 1 and 2 that after expiry of agreement dated 1st July 1971 the respondent No.1 was requesting the petitioner to vacate the suit flat. However, for one reason or another, petitioner declined to vacate. Thereafter the letters and notices were exchanged between the parties and ultimately the respondent Nos. 1 and 2 filed Dispute under Section 91 of the Act. The said Dispute was filed on 31st October, 1981. The petitioner herein has also filed R. A. Declaratory Suit in the Court of Small Causes at Bombay on 3rd March, 1981 and the said Declaratary Suit is pending.

(3.) THE parties led oral and documentary evidence in support of their respective submissions. THE Co-operative Court by its judgment and award dated 29th May, 1989 held that the dispute is maintainable under Section 91 of the Act and that the petitioner is not a protected tenant under the Bombay Rent Act. THE issue No.9 is as under: "does Opponent prove that he is protected tenant under the Rent Act?" Considering the evidence on this issue, the Co-operative Court has observed that the burden is upon the petitioner to prove that there was subsisting leave and licence agreement on 1st April, 1973, that the agreement dated 1st July, 1971 expired on 31st May, 1972, the said agreement is not renewed nor the parties have entered into a new written agreement nor the petitioner proved his case of oral agreement. THE Co-operative Court has held that the leave and licence agreement was not substituted on 1st February, 1973. THE Co-operative Court passed an award directing the petitioner herein to hand over vacant and peaceful possession of the suit flat. Consequential orders are passed regarding mesne profits.