R D PANDIT Vs. VYAJANTIMALA BALI

JUDGEMENT

(1.) This petition arises out of the proceedings for possession of Flat No.25 in a building, which admittedly, belonged to a Co-operative Society of which respondent No.1 Mandayan Raman (hereinafter referred to as "the Landlord") as well as original respondent No. 2 K. T. Mirchandani who were both members. All the material facts have been enumerated in great detail in the earlier judgement of the Division Bench which had earlier disposed of this petition by the order, dated 28th January' 1971 and we are, therefore, referring in this judgement only such facts which oppear to us necessary for the disposal of the arguments which have been advanced before us.

(2.) The Landlord had earlier, after revoking the licence in favour of Mirchandani by a notice, dated 4th June, 1971, approached the Bombay City Civil Court for eviction of the present petitioner, who claimed to have taken the premises from Mirchandani the very next day after an agreement of Leave and Licence was executed by Mirchandani on 30th July,1960 in favour of the Landlord. The agreement between Mirchandani and the Petitioner is dated 1st August, 1960. In the City Civil Court where the Landlord had filed suit No. 3814 of 196l,which substantially was a suit for possession but styled as a Suit for mandatory injunction against Mirchndani alone was contest by Mirchandani mainly on the ground that he and the landlord were both members of the Dhuru Mahal Co-operative Housing Society and the dispute raised in the City Civil Court could be decided only by the Registrar of Co-operarive Societies or his Nominee under Section 94 of the Maharashtra Co-operative Societies Act. This contention was accepted by the City Civil Court and the suit came to be dismissed on 10th September, 1965 on the ground that the City Civil Court had no jurisdiction to entertain the suit.

(3.) Thereafter, the landlord took the proceedings under the Maharashtra Co-operative Societies Act, for having the dispute referred to the Registrar's Nominee. To these proceedings, Mirchandani and the present petitioner were both parties. Under the provisions of Section 91 as it then stood in. 1965, the Assistant Registrar, Co-operative Societies, Bombay, made an order that "I am satisfied that the dispute within she meaning of sec.91(1) of the Maharashtra Co-operative Societies Act, 1960, does exist in this case and the dispute touches the business of the Society and the parties to the dispute are one or other of the persons mentioned in section 91 of the said Act. Consequently, he referred the dispute to his Nominee for decision. One Shri Advani, original respondent No. 3 in this petition, ultimately dealt with the dispute. He made an award on 29th June, 1968, directing Mirchandani and the present petitioner to hand over vacant and peaceful possession of Flat No. 25 in Dhuru Mahal He also made an order with regard to the payment of arrears of compensation from 1st July, 1961. He gave reasons in support of the award and he found that the two agreements viz. one between the Landlord and Mirchandani and the other between Mirchandani and the Petitioner, did not create any tenancy. With regard to the claim of the present petitioner that she was a sub-tenant, the Nominee held that there was no power to create sub-tenancy in respect of premises which vested in the Co-operative Society.