JUDGMENT
A.M. Khanwilkar, J.
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.
4. Be that as it may, the petitioner resisted proceedings before the Co-operative Court essentially on the premise that he was tenant in respect of the suit premises and dispute between the landlord and tenant could be maintained only in the Rent Court and the Co-operative Court had no jurisdiction under section 91 of the Act to answer such a dispute. The trial Court by its order dated 29-8-1986 answered the said question against the petitioner. The trial Court also answered the other contentions raised by the petitioner against him. The Co-operative Court directed the petitioner to deliver the vacant possession of the suit premises and also pay the arrears and future amount in respect of the suit premises till the date of possession. This decision was carried in appeal by the petitioner being Appeal No. 83 of 1996. The Appellate Court by the impugned order dated 17th March, 1989 has dismissed the appeal preferred by the petitioner. Both the courts below have examined the settled legal position and held that in the fact situation of the present case the Co-operative Court was competent to try and decide the proceeding between the parties under section 91 of the Act as the subject-matter of the dispute concerned the business of the society. This concurrent view taken by the courts below is the subject-matter of challenge in the present petition.
5. 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 respondents 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.
6. On the other hand, the learned Counsel for the respondents contends that there is absolutely no substance in the contentions raised on behalf of the petitioner; in as much as the finding of fact recorded by the courts below is that the petitioner was inducted as licensee in the suit premises and since he was inducted as licensee after 1st February, 1973 the petitioner would not get any benefit of the provisions of section 15(A) of the Bombay Rent Act. The respondents further contend that the contention of the petitioner that he was tenant cannot be accepted. It is submitted that the onus to establish the fact that the petitioner was tenant was entirely on him which he has failed to discharge the same. The learned Counsel further contends that all the questions raised in this petition are squarely answered by the decisions of the Apex Court in O.N. Bhatnagar v. Rukibai Narsindas Bhavnani and others, reported in 1982(2) Bom.C.R. 401(S.C.) : 1982 Mh.L.J. page 484.
7. No doubt both the Counsel have drawn my attention to other decisions. But, to my mind, the controversy raised in this petition stands squarely answered by the decision of the Apex Court in Bhatnagar’s case (supra). The fact situation in that case is more or less similar to one which arises in the present case. In that case the Apex Court has observed in para 6 as under:
“There are three questions to be determined in the appeal. They are: (1) Whether having regard to the fact that the parties stood in the relationship of landlord and tenant in respect of Flat No. 52, the remedy of the respondent No. 1 lay by of a suit for eviction before the Court of Small Causes, Bombay and not by a reference to the Registrar under section 91(1) of the Act? It is urged that the agreement of leave and licence was merely a colourable transaction for what in reality was a lease and therefore, the appellant was entitled to the protection from eviction under section 13 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short “the Rent Act”) which is a special law dealing with the relationship of landlord and tenant and therefore the forum for trial is the Court of Small Causes which is Court of exclusive jurisdiction over such matters. It is said that the non obstante clause in section 91(1) of the Act. (2) Whether the respondent No. 2 society had any locus standi to make an application for transposition, even assuming that the appellant was not a tenant but a licensee; It is urged that the appellant was entitled to question the legality and propriety of the order of transposition made in revision by the Maharashtra State Co-operative Tribunal permitting the society to be impleaded either co disputant so as to bring the dispute within the purview of section 91(1) of the Act. It is said that the respondent No. 2 society without first terminating the nominal membership of the appellant could not make a claim for eviction from the flat in question; (3) Whether a claim for ejectment of an occupant of a flat by Housing Co-operative Society having been let into possession of the premises under an agreement of leave and licence executed between him and the member of the society by virtue of his being a nominal member thereof is a “dispute touching the business of the society” within the meaning of section 91(1) of the Act. We proceed to deal with these questions in turn.”
While addressing the abovesaid questions the Apex Court in paragraph 8 has held that provisions of Bombay Rent Act in particular section 28 and the provisions of the Co-operative Societies Act section 91, operate on two distinct and separate fields. The non obstante clause in section 91(1) of the Act and that in section 28 of the Rent Act operate on two different planes. The Apex Court has further observed that the two legislations pertain to different topics of legislation. It is further observed that section 28 of the Rent Act proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decide all questions or claims under that Act as to parties between whom there is or was a relationship as landlord and tenant. The said section does not invest those courts with exclusive power to try questions of title such as between the rightful owner and a trespasser and licensee for such questions do not arise under the Act. The Apex Court has observed that when it is unequivocally asserted that the parties stood in the relation of licensor and licensee and that fact is clearly borne out by the terms of the agreement of leave and licence, the burden was on the appellant to establish that he had status of a tenant within the meaning of section 5(11) of the Rent Act as it then stood. In para No. 9 of the said decision the Apex Court has further observed that on conjoint reading of section 5(11) and 5(4)(a) of the Rent Act a person who has been inducted as licensee and whose licence is not subsisting on February 1, 1973 but continues to remain in occupation even after that date, it will have to be held that occupation of that person is one of trespasser and unauthorized occupant and not protected under the provisions of the Rent Act.
8. In the present case, it is not in dispute that the respondent No. 2 society is a tenant co-partnership housing society and is governed by the model bye-laws of the society. The bye-laws would permit letting out of the premises to any outsider only on leave and licence basis and not otherwise. In that sense, it was not open for the society nor for the member to induct an outsider as a tenant. Once this conclusion is reached, it necessarily follows that merely because the petitioner has been described as tenant in the notice, that by itself cannot create any right in his favour of a tenant as perceived by the Rent Act, as contended. Inspite of this the petitioner asserts that he was inducted as tenant-then it was for him to establish that fact, as the burden was clearly upon the petitioner to establish the same. That has not been done. However, the only grievance of the petitioner is that the relevant Regulations and the bye-laws ought to have been produced by the respondents and, having failed to do so, adverse inference should be drawn against them. It is not possible to accept this submission. The petitioner asserts that he has been inducted as tenant and if the petitioner has failed to adduce any positive and convincing evidence to show that he has been inducted as tenant then his claim of tenancy cannot be accepted-nay cannot be held to have been proved because of the failure on the part of the respondents to produce the bye-laws, Regulations or the Resolution. It is also relevant to note that the petitioner had filed a substantive suit for declaration before the Rent Act being Civil Suit No. 301 of 1988 asserting that he is tenant in respect of the suit premises. That suit has been dismissed, albeit for default and the said decision has been allowed to become final. That decision would bind the petitioner. In which case, it will not be open for the petitioner to contend that he has been inducted as tenant in the suit premises. Accordingly, the initial status of the petitioner in the fact situation of the present case was only that of a licensee. It is not in dispute that the petitioner has been inducted after 1st February, 1973 and, therefore, the petitioner cannot claim any benefit or the protection extended to licensees in possession prior to 1st February, 1973 by virtue of section 15(A) of the Rent Act. Understood thus, the petitioner is neither a tenant nor a protected licensee under the Rent Act and since his licence has been terminated by the respondent No. 1, who had authorized him to enter upon the suit premises, as well as by the respondent No. 2 society who had permitted the respondent No. 1 to allow the petitioner to occupy the suit premises, therefore, as observed by the Apex Court, occupation of the petitioner would be nothing more than that of an unauthorized occupant or a trespasser. In such a situation, dispute jointly filed by the respondent No. 1 (member) and the respondent No. 2 (society), the same was clearly maintainable under section 91 of the Act.
9. No other contention was raised before this Court except the question of jurisdiction of the Co-operative Court and since the same stands answered against the petitioners, there is no reason to interfere with the view taken by the courts below.
10. Hence, this petition is dismissed with costs all throughout. Rule discharged forthwith.
11. At this stage, Mr. Pitre prays that the operation of this order be stayed so as to enable the petitioners to carry the matter in appeal. Mr. Shah has no objection if 12 weeks time is granted provided all the petitioners and other major members in the family staying along with the petitioners in the suit premises shall file usual undertaking in this Court. Accordingly, 12 weeks time is granted on condition that all the petitioners and major members in the family staying alongwith the petitioners in the suit premises shall file usual undertaking within 4 weeks. If the undertaking is not filed in time, the respondents to proceed to execute the award in accordance with law.