{"id":7959,"date":"1988-09-19T00:00:00","date_gmt":"1988-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-krishna-rajpal-bhatia-ors-vs-miss-leela-h-advani-ors-on-19-september-1988"},"modified":"2019-01-14T14:01:56","modified_gmt":"2019-01-14T08:31:56","slug":"smt-krishna-rajpal-bhatia-ors-vs-miss-leela-h-advani-ors-on-19-september-1988","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-krishna-rajpal-bhatia-ors-vs-miss-leela-h-advani-ors-on-19-september-1988","title":{"rendered":"Smt. Krishna Rajpal Bhatia & Ors vs Miss Leela H. Advani & Ors on 19 September, 1988"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Krishna Rajpal Bhatia & Ors vs Miss Leela H. Advani & Ors on 19 September, 1988<\/div>\n
Equivalent citations: 1989 AIR 122, \t\t 1988 SCR Supl. (3) 60<\/div>\n
Author: A Sen<\/div>\n
Bench: Sen, A.P. (J)<\/div>\n
           PETITIONER:\nSMT. KRISHNA RAJPAL BHATIA & ORS.\n\n\tVs.\n\nRESPONDENT:\nMISS LEELA H. ADVANI & ORS.\n\nDATE OF JUDGMENT19\/09\/1988\n\nBENCH:\nSEN, A.P. (J)\nBENCH:\nSEN, A.P. (J)\nRAY, B.C. (J)\n\nCITATION:\n 1989 AIR  122\t\t  1988 SCR  Supl. (3)  60\n 1989 SCC  (1)\t52\t  1988 SCALE  (2)1276\n CITATOR INFO :\n D\t    1990 SC1563\t (14,15)\n\n\nACT:\n    Maharashtra\t Cooperative Societies Acg  1960-Section  91\nChallenging  order  of eviction from  premises\tin  dispute,\nunder section 91--On the grounds that the agreement  between\nthe parties was one of lease and not licence.\n\n\n\nHEADNOTE:\n    By an agreement dated 1st January, 1964, the  disputant,\na tenant Co-partner member of a Cooperative Housing Society,\npermitted  appellants'\tfather the user of her\tflat.  On  a\njoint  application by both the parties, the Society  granted\npermission for his occupying the flat on terms of leave\t and\nlicence. The disputant later made a claim under s. 91 of the\nMaharashtra  Cooperative  Societies Act,  1960\t(`the  Act')\nbefore\tthe District Deputy Registrar for his eviction.\t The\nclaim  for eviction was resisted by him on the\tground\tthat\nthe transaction between the parties was one of lease and the\nRegistrar  had no jurisdiction to enter upon  the  reference\nunder section 91. It was held that the parties stood in\t the\njural  relationship of landlord and tenant and\tthe  dispute\ndid  not  touch\t upon business of  the\tSociety\t within\t the\nmeaning of s. 91. Aggrieved, the disputant carried an appeal\nto the Maharashtra State Cooperative Appellate Tribunal. The\nTribunal  remanded  the\t case for a fresh  decision  on\t the\nquestion  whether  the\tdisputant was  a  tenant  co-partner\nmember or a tenant owner member, as the society was held  to\nbe a mixed type of society of both tenant co-partner members\nand  tenant  owner  members. On\t remand,  the  Judge.  first\nCooperative Court recorded a finding that the Society was  a\ntenant Co-partnership type of society and the disputant\t was\nonly a tenant Co-partner member. Thereafter the dispute came\nup  for\t adjudication  before  the  said  Judge.  The  Judge\nrendered an award holding that after the termination of\t the\nlicence\t the possession of appellants' father was  wrongful,\nand directing him to vacate and hand over possession of\t the\nflat.  He  went in appeal before the Maharashtra  State\t Co-\noperative Appellate Tribunal but without avail.\n    Dismissing the appeal, the Court,\n    HELD: The agreement between the parties was embodied  in\n\t\t\t\t\t\t   PG NO 60\n\t\t\t\t\t\t   PG NO 61\nusual  standard form of an agreement for leave and  licence.\nThe  parties  to  the  agreement were  bound  by  the  terms\nthereof. There was nothing to suggest that the agreement for\nleave and licence was merely a device to camouflage the real\nnature\tof  the transaction, viz., creation  of\t a  tenancy,\nwhich would clearly be against the bye-laws of the  society.\nThe  disputant, the licensor, was only a  tenant  co-partner\nmember and all hat she could do under the terms of the\tbye-\nlaws  was  to create a licence with the\t permission  of\t the\nsociety\t by  making  the licensee to  be  a  nominal  member\nthereof.  The matter is directly covered by the decision  of\nthis  Court  in O.P. Bhatnagar v.  Smt.\t Rukibai  Narsindas,<\/a>\n[1982] 3 SCR 681. [67C-E]\n    The\t Society was purely a tenant co-partnership type  of\nhousing society consisting only of tenant co-partner members\nand  there were no tenant owner members in the\tsociety.  In\nview of the subsequent change brought about by the amendment\nof  the\t bye-laws, there was no question  of  the  disputant\nbeing regarded as a tenant owner member. The Appellate Court\nand  the Judge of the First Cooperative Court  rightly\theld\nher o be a tenant Co-partner member. The appellant's  father\nhaving\tbeen inducted into the premises under the  terms  of\nthe  agreement for leave and licence could not say that\t the\ndisputant  was\ta tenant owner member and not a\t tenant\t co-\npartner\t member or that the transaction was one of ease\t and\nnot licence. [68G; 69D-E]\n    Sabharwal Brothers v. Smt. Guna Amrit Thandani,<\/a> [1973] I\nSCR  53 and Ramesh Himmatlal Shah v. Harsukh Jadavji  Joshi,<\/a>\n[1975] Suppl. SCR 270, distinguished.\n    O.P.  Bhatnagar v. Smt. Rukibai Narsindas,<\/a> [1982] 3\t SCR\n681;  Dr.  Manohar  Ramchandra .Sarlare v.  The\t Konkan\t Co-\noperative  Housing Society Ltd. & Ors., AIR 1962  Bom.\t154,\nI.R.;  Hingorani  v. Pravinchandra,<\/a> (1966-67) Bom.  LR\t306;\nContessa  Knit\tWear  v. Udyog\tMandir\tCooperative  Housing\nSociety,  AIR  (1980)  Bom. 374 and Bandra  Green  Park\t Co-\noperative Housing Society Ltd. & Anr. v. Mrs. Dayadasi Kalia\nJUDGMENT:\n<\/pre>\n
&
\n    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1945  of
\n1984.\n<\/p>\n
    From  the  Judgment and Order dated\t 16.12.1983  of\t the
\nBombay High Court in W.P No 4356 of 1983.\n<\/p>\n
    R. Karanjawala. Mrs. Manik Karanjawala and Ejaz  Maqbool
\nfor the Appellants.\n<\/p>\n
\t\t\t\t\t\t   PG NO 62
\n    T.S. Krishnamurthy, R.N. Keshwani, Dilip Jhangiani, V.K.
\nPunwani and M.K.D. Namboodiri for the Respondents.
\n    The Judgment of the Court was delivered by
\n    SEN, J. This appeal by special leave is directed against
\nthe  judgment  and order of the High Court of  Bombay  dated
\n16th December 1983 declining to interfere with the  judgment
\nand  order  of the Maharashtra State  Cooperative  Appellate
\nCourt,\tBombay\tdated 31st October, 1983.  By  the  impugned
\njudgment the Appellate Court up-held the judgment and  order
\npassed\tby the Judge, First Cooperative Court, Bombay  dated
\n28th  August, 1981 directing the appellants to\t vacate\t and
\nhand over possession of Flat No. 16 on First Floor of  Block
\nNo. 8 in the housing colony known as Shyam Niwas, situate at
\nWarden Road, now called Bhulabhai Desai Road, Bombay and  to
\npay mesne profits @ Rs.450 per month and a further amount of
\nRs.42.50 towards maintenance, car parking and water  charges
\nw.e.f. Ist August 1981.\n<\/p>\n
    The facts of the case are as follows. By an agreement in
\nwriting dated 1st January 1964, the disputant the late\tSmt.
\nDevibai\t H.  Advani,  who was a\t tenant\t co-partner  member,
\npermitted the appellants’ father Rajpal Bhatia, user of\t her
\nFlat  No. 16 for a period of 11 months as from that date  on
\nthe terms and conditions stated in the said agreement.\tBoth
\nthe  parties made a joint application for admission  of\t the
\nsaid  Rajpal Bhatia as a nominal member of the\tsociety\t and
\nthe  society  granted  the  requisite  permission  for\t his
\noccupying the flat in dispute on terms of leave and licence.
\nAt  the\t request of Rajpal Bhatia, the\tsaid  agreement\t for
\nleave and licence was renewed for 11 months each by  further
\nagreements and thereafter the period was further extended 11
\nmonths\tby an endorsement. The late Smt. Devibai  Advani  by
\nher  lawyer’s  notice  dated 21st May  1969  terminated\t the
\nagreement for leave and licence. On 30th June 1969 she\tmade
\na claim under s. 91 of the Maharashtra Cooperative Societies
\nAct,  196() (for short the Act’) before the District  Deputy
\nRegistrar  for\tthe  eviction  of  the\tsaid  Rajpal  Bhatia
\nalleging  him to be in unauthorised occupation of her  flat.
\nThe claim as laid by her was that she was a ‘tenant  member’
\nof  the society\t and that Rajpal Bhatia was in\tunauthorised
\noccupation.  Her claim for eviction was however register  by
\nRajpal Bhatia inter alia on the ground that the\t transaction
\nbetween the parties was one of lease and not of licence\t and
\ntherefore  the Registrar had no jurisdiction to\t enter\tupon
\nthe  reference\tunder  s.  91 of the  Act  inasmuch  as\t his
\njurisdiction to enter upon such claim was barred under s. 28
\nof  the\t Bombay Rents, Hotel & Lodging House  Rates  Control
\nAct, 1947 (Bombay Rent Act for short). That objection of his
\n\t\t\t\t\t\t   PG NO 63
\nwas sustained by the Officer on Special Duty by his judgment
\nand  award dated 16th November 1972. The learned Officer  on
\nSpecial\t Duty  held  that the parties  stood  in  the  jural
\nrelationship  of  landlord and tenant and further  that\t the
\ndispute\t in question did not touch upon the business of\t the
\nsociety within the meaning of s. 9 1 of the Act.
\n    Aggrieved,\tthe disputant the late Smt.  Devibai  Advani
\ncarried\t an  appeal  to the  Maharashtra  State\t Cooperative
\nAppellate  Tribunal. The Tribunal by its judgment and  order
\ndated 8th February 1974 allowed the appeal and remanded\t the
\ncase  for  a  decision afresh on the  question\twhether\t the
\ndisputant  the\tlate Smt. Devibai Advani was  a\t tenant\t co-
\npartner\t member\t or  a tenant owner member.  It\t is  however
\nnecessary to mention that the Tribunal held that the society
\nwas  a mixed type of society having both  tenant  co-partner
\nmembers\t and  tenant owner members but since  the  disputant
\ndescribed  herself  as\ta tenant  member,  and\tparticularly
\nhaving\tregard\tto the fact that Rajpal Bhatia\tget  himself
\nadmitted  as a nominal member queried: If she was  an  owner
\nmember\twhere was the necessity of taking permission of\t the
\nsociety\t for letting the flat? Nor was there  any  necessity
\nfor  Rajpal  Bhatia to seek admission as  a  nominal  member
\nwhich  made  him  subject to the bye-laws  of  the  society.
\nAccording to the Tribunal, these circumstances were more  in
\nconsonance  with the status of the disputant being a  tenant
\nmember. It went on to say that there was no evidence led  to
\nestablish  that\t the  flat  in\tquestion  was  sold  to\t the
\ndisputant and accordingly remitted the aforesaid issue for a
\ndecision afresh. During the tendency of the appeal, the late
\nSmt.  Devibai  Advani made an application praying  that\t the
\nsociety\t be  transposed\t as disputant  no.  2.\tDespite\t the
\nopposition   of\t  Rajpal   Bhatia.   the   application\t for
\ntransposition was ultimately allowed.\n<\/p>\n
    Initially when the society was registered, it was really
\ngoverned  by the regulation in Form ‘A’. It however  appears
\nthat  by mistake, as is evident from the affidavit sworn  by
\nAtmaram\t Jhangiani, Chairman of the society,  regulation  in
\nForm ‘P’ which relates to tenant owner members was  adopted.
\nThis  mistake was detected in the year 1949 and\t accordingly
\nat  the\t Annual General Meeting of the society held  on\t 3rd
\nSeptember   1949   it  was  declared  that  Form   ‘B’\t was
\ninapplicable  and therefore the mistake was rectified  by  a
\nunanimously  carried resolution that regulation in Form\t ‘A’
\nbe  adopted instead of regulation in Form ‘B’. The  District
\nDeputy\tRegistrar,  Cooperative Societies,  Surat  by  order
\ndated\t10th  July  1950  approved  of\tthe  amendment\t and
\naccordingly  Form ‘A’ was adopted and Form ‘B’ deleted.\t The
\n\t\t\t\t\t\t   PG NO 64
\nmodification  in  the byelaws was approved by  a  resolution
\ncarried\t at the General Body Meeting of the society held  on
\n26th  November\t1950 and forwarded to  the  District  Deputy
\nRegistrar  for\tapproval. After the adoption  of  Form\t‘A’,
\nbyelaw\t 10(a)\tpro  tanto  stood  amended.  Due  to   sheer
\ninadvertence, however, byelaw 10(a) remained in the form  it
\nwas  framed and this has given rise to an  endless  argument
\nbefore us. In the certificate to incorporation issued by the
\nRegistrar,  Cooperative Societies the society is  classified
\nas a tenant co-partnership society consisting of tenant\t co-
\npartner members. The mistake in allowing the byelaw 10(a) as
\noriginally framed making reference to tenant owner  members,
\ncame  to  the notice of the society in 1974  when  the\tsaid
\nbyelaw\twas deleted and substituted by a fresh byelaw  10(a)
\nwhich  made no reference to the admission of  membership  of
\nany owner member to the society or to the regulation in Form
\n‘B’.\n<\/p>\n
    On\tremand,\t the  only contention  advanced\t before\t the
\nJudge, First Cooperative Court, Bombay was that the  society
\nwas a tenant co-ownership type of society and not tenant co-
\npartnership type. The  learned Judge by his order dated\t 8th
\nSeptember 1976 recorded a finding that the society, in fact,
\nwas  a tenant co-partnership type of society  and  therefore
\nthe  disputant was only a tenant co-partner member.  Against
\nhis  order  Rajpal  Bhatia  went  up  in  revision  to\t the
\nMaharashtra  State Cooperative Appellate Court which by\t its
\norder  dated  Ist July 1977 dismissed the  revision  as\t not
\npressed.  Thereafter,  the dispute came up for\tadjudication
\nbefore\tthe learned Judge, First Cooperative  Court,  Bombay
\nwho framed five issues in all. The learned Judge allowed the
\nparties to adduce their evidence thereon. After\t considering
\nthe  evidence on record, the learned Judge by  his  judgment
\ndated 28th August 1981 came to a definitive finding that the
\nclaim of the disputant was a claim touching the business  of
\nthe  society under s. 91 of the Act: that the society  is  a
\nco-partnership type of society and not of co-ownership; that
\nthe  real nature of the transaction between the parties\t was
\nthat embodied in the formal agreement for leave and  licence
\ndated 1st January 1964 and further that after termination of
\nthe  licence  the possession of the said Rajpal\t Bhatia\t was
\nwrongful.  According,  the learned Judge rendered  an  award
\ndirecting  the\tsaid Rajpal Bhatia to vacate and  hand\tover
\npossession of the flat in question.\n<\/p>\n
    The\t appellants’ father Rajpal Bhatia went up in  appeal
\nbefore the Maharashtra State Cooperative Appellate Court but
\nwithout\t any avail. It held inter alia that in view  of\t the
\nletter\t addressed   by\t the  District\t Deputy\t  Registrar,
\nCooperative  Societies,\t Bombay\t dated\t22nd  November\t1978
\nintimating  the Court that Form ‘B’ had been  deleted  after
\n\t\t\t\t\t\t   PG NO 65
\nthe resolution passed at the Annual General Meeting held  on
\n3rd September 1949 and the amendment of the byelaws effected
\nby  order of the District Deputy Registrar dated  10th\tJuly
\n1950,  and  particularly  in view of the fact  that  in\t the
\nlatest\tcopy of the bye-laws there is no reference  to\tForm
\n‘B’,  the conclusion was inescapable that the society  is  a
\ntenant\tco-partnership housing society and Form ‘B’  as\t was
\noriginally appended to the byelaws was no longer applicable.
\nIt  observed that in view of its earlier judgment in  Appeal
\nNo.  236\/78–Messrs  Bharat  Sales Service &  Anr.  v.\tSmt.
\nRukibai Naraindas Bhavnani & Anr., decided on 12th  January,
\n1979  taking  that view upon investigation into\t the  facts,
\nwhich was upheld by the High Court in O.N. Bhatnagar v. Smt.
\nRukibai Naraindas Bhavnani & Anr.,<\/a> in Miscellaneous Petition
\nNo.  271\/79, decided on 21st April 1981, and later  by\tthis
\nCourt in O.N. Bhatnagar v. Smt. Rukibai Naraindas,<\/a> [1982]  3
\nSCR  681,  it was no longer possible to contend\t that  Shyam
\nCooperative  Housing Society Limited was a tenant  ownership
\nhousing\t society  and not a tenant  co\tpartnership  housing
\nsociety. It further observed that in view of the decision of
\nthis  Court  in\t O. N. Bhatnagar  s  case,  learned  counsel
\nappearing for the appellants conceded the legal position but
\ncontended   that   the\tdecision  in  O.N.   Bhatnagar\t was
\ndistinguishable on facts. It observed:\n<\/p>\n
    “It has to be noted that Form A’ was made applicable  to
\nall  the  buildings of the society and not to  a  particular
\nblock or building. No doubt, the byelaws of the society were
\namended\t much  later  i.e.,  in the  year  i976\t though\t the
\nresolution proposing the amendment was passed in the meeting
\nheld  on  25.12.1974. It appears that, though Form  ‘A’\t was
\nmade   applicable   in\tthe  year  195()  to   the   society
\ncorresponding amendment was made on 25th December, 1974\t and
\nthereafter  it was approved on 28th April, 1976.  That\twill
\nnot  make  any\tdifference because once\t Form  ‘A’  is\tmade
\napplicable  and once Form ‘B’ is deleted from  the  bye-laws
\nthe intention of the society was to convert the society to a
\nTenant\tCo partnership type of society. Moreover, it has  to
\nbe noted that the present appellant was inducted in the said
\npremises on 1st January, 1964, i e. much after the Form\t ‘A’
\nwas  adopted.  As  mentioned above, it is not  open  to\t the
\npresent appellant to challenge the status of the  respondent
\nNo.  I Devibai because, as mentioned above,  the  respondent
\nNo.  I\thad surrendered her status as tenant owner  and\t had
\nbecome\ttenant copartner member of the society. Under  these
\ncircumstances,\tthere  is no other alternative but  to\thold
\n\t\t\t\t\t\t   PG NO 66
\nthat the society is not a mixed type of society but it is  a
\ntenant co-partnership type of Society.”\n<\/p>\n
    Further,  the Appellate Court held that  merely  because
\nthe disputant described herself as the owner of the flat was
\nnot decisive of the question as to whether she was a  tenant
\nco-partner member or a tenant owner member, and added:\n<\/p>\n
    “Even  though the respondent No. 1 described herself  as
\nthe owner of the flat, we feel that as she has purchased the
\nflat  from the society she might have described\t herself  as
\nthe owner. In common parlance the flats which are  purchased
\nfrom  the  society  or\tfrom  the  builders  are  called  as
\nownership flats and very often we find that even a member in
\na tenant co-partnership type of society describes himself or
\nherself\t as  owner  of\tthe  flat,  either  because  he\t has
\npurchased the flat or he has contributed towards the cost of
\nthe construction.\n<\/p>\n
    In\tthe light of the principles laid down by this  Court
\nin Associated Hotels of India Ltd. v. R.N. Kapoor,<\/a> [1960]  I
\nSCR 368 the Appellate Court further held on a  consideration
\nof  the\t evidence adduced by the parties  that\tthe  parties
\nintended  by  the agreement to create a licence\t and  not  a
\nlease. It also held that the dispute was a dispute  touching
\nthe business of the society.\n<\/p>\n
    Shri  R.F. Nariman, learned counsel for  the  appellants
\nargued\tthe  appeal with great clarity,\t much  resource\t and
\nlearning  we  heard him with considerable interest.  It\t was
\ncontended, firstly, that the intention\tOf the disputant the
\nlate Smt. Devibai Advani was to demise the flat in  question
\nand  therefore the real transaction was one of lease  though
\ncamouflaged  in\t the  form of an  agreement  for  leave\t and
\nlicence\t and  therefore the jurisdiction  of  the  Registrar
\nunder s. 91 of the Act to adjudicate upon the reference\t was
\nbarred\tby s. 28 of the Bombay Rent Act; and secondly,\tthat
\nneither of the two resolutions subsequently  adopted by\t the
\nAnnual\tGeneral Meeting or the General Body Meeting nor\t the
\norder  of  the District Deputy Registrar  could\t change\t the
\nintrinsic character of the real status of the disputant\t who
\nwas admittedly a tenant owner member, and the finding of the
\nAppellate Court that she must be deemed to have relinquished
\nher  status as tenant owner member and became a\t tenant\t co-
\npartner member of the society is patently erroneous. Learned
\ncounsel very candidly accepted that he does not rely upon s.\n<\/p>\n
\t\t\t\t\t\t   PG NO 67
\n15A of the Bombay Rent Act. That had to be so because in the
\nfirst place his entire submission proceeds on the basis that
\nthe transaction between the parties was one of lease and not
\nof licence and secondly, even otherwise, the licence  having
\nadmittedly  been terminated by the disputant’s notice  dated
\n2Ist  May 1969, there was no subsisting licence existing  as
\non   1st  February  1973  and  s.  15A\tinterms\t  would\t  be
\ninapplicable. We are afraid, in view of the decision of this
\nCourt in O.N. Bhatnagar s case, the contentions advanced  by
\nthe learned counsel cannot prevail.\n<\/p>\n
    There  can\tbe no doubt whatever from the terms  of\t the
\nagreement dated Ist January 1964 as well as the overwhelming
\nevidence  on record taken in conjunction with the facts\t and
\ncircumstances appearing, coupled with the course of  conduct
\nof  the parties that the real transaction was one  of  lease
\nand  not  of licence. The agreement between the\t parties  is
\nembodied  in  the usual standard form of  an  agreement\t for
\nleave and licence. The parties being executants thereof\t are
\nbound  by  the terms of the agreement. There is\t nothing  to
\nsuggest that the agreement for leave and licence was  merely
\na  device to camouflage the real nature of  the\t transaction
\nviz.  creation of a tenancy, which would clearly be  against
\nthe  bye-laws  of the society. The disputant the  late\tSmt.
\nDevibai\t Advani, the licensor, was only a tenant  co-partner
\nmember and all that she could do under the terms of the bye-
\nlaws  was  to create a licence with the\t permission  of\t the
\nsociety\t by  making  the licensee to  be  a  nominal  member
\nthereof. The evidence adduced by the disputant clearly shows
\nthat the flat in question was taken on a licence for a\tterm
\nof  11\tmonths which was renewed from time to  time  at\t the
\nrequest\t of  the  late\tRajpal\tBhatia\ttill  the  disputant
\nterminated  the\t licence by notice dated 21st May  1969.  We
\nalso  find no merit in the contention that the\tjurisdiction
\nof  the\t Cooperative Courts to adjudicate upon\tthe  dispute
\nunder  s.  91 of the Act was barred by s. 28 of\t the  Bombay
\nRent Act.\n<\/p>\n
    The\t matter is directly covered by the decision of\tthis
\nCourt in O.N. Bhatnagar’s case. In rejecting the  contention
\nthat a dispute of this nature was not a dispute touching the
\nbusiness  of the society within the meaning of s.  91(1)  of
\nthe Maharashtra Cooperative Societies Act. it was observed:\n<\/p>\n
    “In\t the  present  case, the society  is  a\t tenant\t co-
\npartnership  type housing society formed with the object  of
\nproviding residential accommodation to its co-partner tenant
\nmembers. Now, the nature of business which a society carries
\n\t\t\t\t\t\t   PG NO 68
\non  has\t necessarily to be ascertained from the\t object\t for
\nwhich  the society is constituted, and it logically  follows
\nthat  whatever the society does in the normal course of\t its
\nactivities such as by initiating proceedings for removing an
\nact  of trespass by a stranger, from a flat allotted to\t one
\nof its members, cannot but be part of its business. It is as
\nmuch  the concern of the society formed with the  object  of
\nproviding  residential accommodation to its  members,  which
\nnormally  is its business, to ensure that the flats  are  in
\noccupation  of its members, in accordance with the  bye-laws
\nframed\tby  it, rather than of a person in  an\tunauthorised
\noccupation, as it is the concern of the member, who lets  it
\nout  to another under an agreement of leave and licence\t and
\nwants  to secure possession of the premises for his own\t use
\nafter  the termination of the licence. It  must,  therefore,
\nfollow\tthat  a\t claim by the  society\ttogether  with\tsuch
\nmembers\t for  ejectment\t of a person who  was  permitted  to
\noccupy\t having\t become\t a  nominal  member  thereof,\tupon
\nrevocation  of\tlicence,  is a dispute\tfalling\t within\t the
\npurview of s. 91(1) of the Act. ”\n<\/p>\n
    In\tdealing\t with the inter-relation  between  the\tnon-
\nobstante clause in s. 91(1) of the Act and that in s. 28  of
\nthe Rent Act, it was observed:\n<\/p>\n
    “It seems to us that the two Acts can be best harmonised
\nby  holding  that in matters covered by the  Rent  Act,\t its
\nprovisions, rather the provisions of the Act, should  apply.
\nBut  where the parties admittedly do not stand in the  jural
\nrelationship  of landlord and tenant, as here.\tthe  dispute
\nwould  be  governed by s. 91(1) of the Act.  No\t doubt,\t the
\nappellant acquired a right to occupy the flat as a licensee,
\nby  virtue  of his being a nominal member, but in  the\tvery
\nnature of things, his rights were inchoate. In view of these
\nconsiderations,\t we are of the opinion that the\t proceedings
\nunder s. 91(1) of the Act were not barred by the  provisions
\nof s. 28 of the Rent Act.”
\n    It is quite evident from the affidavit sworn by  Atmaram
\nJhangiani, Chairman of the Shyam Cooperative Housing Society
\nLimited, that the society is purely a tenant  co-partnership
\ntype of Housing society consisting only of tenant co-partner
\nmembers\t and  there  are  no tenant  owner  members  in\t the
\nsociety; nor are there any tenant owner members in block No.
\nX  where  the  flat in question is  located.  As  H  already
\nstated, while framing the bye-laws regulation in Form ‘B’was
\n\t\t\t\t\t\t   PG NO 69
\nby mistake adopted. This mistake was realised in 1949 and at
\nthe  Annual  General  Meeting of the  society  held  on\t 3rd
\nSeptember  1949 it was decided that the regulation  in\tForm
\n‘B’ was inapplicable and therefore the mistake was rectified
\nby  deleting  Form  ‘B’\t and  substituting  Form  ‘A’.\tThis
\namendment   was\t duly  approved\t by  the   District   Deputy
\nRegistrar,  Bombay  by his order dated 10th July  1950.\t The
\naforesaid  resolution was duly ratified at the General\tBody
\nMeeting of the society. That being so, bye-law 10(a)  making
\na   reference  to  tenant  owner  members  became   a\tmere
\nsuperfluity  and  was wholly redundant. The  rights  of\t the
\nparties cannot be spelled out from the terms of the  bye-law
\n10(a)  as originally framed. Nor would the mere\t description
\nby  the\t disputant the late Smt. Devibai  Advani  describing
\nherself\t to  be\t the  owner  of\t the  society,\taffect\t the
\nclassification\tof the society because she was, in fact\t and
\nin  law,  nothing but a tenant co-partner  member.  It\talso
\nappears\t from the certificate of registration issued by\t the
\nRegistrar,  Cooperative\t Societies  that  the  society\t was
\nclassified  as a tenant co partnership housing society.\t The
\nerroneous description in bye law-10(a) of the society having
\ntenant owner members came to be rectified when the said bye-
\nlaw was replaced in l974 by a new bye-law 10(a). In view  of
\nthe subsequent change brought about by the amendment of\t the
\nbye-laws,  there  was  no question of  the  disputant  being
\nregarded  as a tenant owner member. The Appellate  Court  as
\nwell  as  the learned Judge of the First  Cooperative  Court
\nhave rightly held her to be a tenant co-partner member.\t The
\nappellants’ father Rajpal! Bhatia having been inducted\tinto
\nthe premises under the terms of the agreement for leave\t and
\nlicence dated 1st January 1964, cannot be heard to say\tthat
\ndisputant  was\ta tenant owner member and not a\t tenant\t co-
\npartner member or that the transaction was one of lease\t and
\nnot   of  licence.  These  aspects  are\t concluded  by\t the
\nconcurrent finding of fact based on appreciation of evidence
\nrecorded  by the Courts below. There is no reason for us  to
\ncome to a contrary conclusion.\n<\/p>\n
    We\tcannot but briefly refer to a few of  the  decisions
\ncited.\tAs  explained  in the  affidavit  sworn\t by  Atmaram
\nJhangiani.   Chairman  of  the\tsociety,  the  decision\t  in
\nSabharwal Brothers v. Smt Guna Amrit Thandani,<\/a> [1973] I\t SCR
\n53 proceeds on the assumption that Smt. Guna Amrit  Thandani
\nwas  an owner member. It appears that the true\tand  correct
\nfactual position was not placed before the Court that  under
\nthe changed bye-laws of the society, particularly after\t the
\ndeletion of Form ‘B’, she could only he a tenant  co-partner
\nmember.\t It follows that the ultimate conclusion arrived  at
\nwas  based  upon  inaccurate facts. Be that  as\t it  may,  a
\ndecision  based upon a statement of inaccurate\tfacts  which
\nhas  no\t semblance of reality would not\t change\t the  actual
\n\t\t\t\t\t\t   PG NO 70
\nlegal status of the society as a tenant co-partnership\ttype
\nof  housing  society,  nor the classification  made  by\t the
\nRegistrar,  Cooperative\t Societies  in\this  certificate  of
\nincorporation  issued by him, classifying the society  as  a
\ntenant co-partnership society consisting only of tenant\t co-
\npartner\t members. In view of the real factual  position\t now
\nbrought out, it is difficult to come to the conclusion\tthat
\nthe society was a mixed type of society or that the building
\nin  question  where the flat in dispute is  situate,  was  a
\nmulti-storeyed\tbuilding consisting of residential flats  of
\nboth types viz. tenant owner flats and tenant co partnership
\nflats. In any event, the decision in Sabharwal Brothers case
\nis clearly distinguishable on facts. The contention of\tShri
\nNariman\t that the society was a mixed type of  society\tmust
\ntherefore fail.\n<\/p>\n
    The\t decision of this Court in Ramesh Himmatlal Shah  v.
\nHarsukh\t Jadhavji  Joshi,<\/a>  [ 1975] Suppl. SCR  270  is\talso
\ndistinguishable.  In that case, the question was  whether  a
\nflat  in a tenant co-partnership housing society was  liable
\nto  attachment and sale in execution of a decree. The  Court
\nlaid  down  that  the right to occupy the flat\towned  by  a
\ncooperative housing society is a species of property. It was
\nfurther held that there was nothing in the language of s. 31
\nof  the\t Maharashtra Cooperative Societies Act\tto  indicate
\nthat  the right to occupation of such a flat which  was\t the
\nright  sought to be sold by auction, was not  attachable  in
\nexecution  of  the  decree. Nor was there  anything  in\t the
\nsection\t to  even  remotely include  a\tprohibition  against
\nattachment  or sale of the aforesaid right to occupation  of
\nthe  flat. The only restrictions under s. 29(2) of  the\t Act
\nare  that  the member may not transfer his interest  in\t the
\nproperty  prior to one year and the transfer is made  to  an
\nexisting  member  of  the  society  or\tto  a  person  whose
\napplication for membership has been accepted by the society.
\nAs  regards  bye-law  710   the\t Court\tobserved  that\t any
\ncontravention  of the bye-law would not make the  assignment
\ninvalid under the Act unlike in the case of a transfer being
\nvoid  under  s. 47(3). Further, that s. 29 read with  r.  24
\nshows that there is no prohibition as such against  transfer
\nof  a  share  to  a member or even to  a  non-member  if  he
\nconsents  to  be  a  member and\t makes\tan  application\t for
\nmembership, by purchasing five shares as provided under bye-
\nlaw 9. The ultimate decision of the Court was that the right
\nto  occupation\tot’ a flat is property both  attachable\t and
\nsale able, inasmuch as s. 60 of the Code of Civil Procedure,
\nl908, is not exhaustive as such. It also refers to any other
\nsale  able property, movable or immovable, whether the\tsame
\nbe  held  in the name of the judgment-debtor or\t by  another
\nperson\ton his behalf. The right to occupation of a flat  is
\nproperty  both\tattachable  and\t sale  able.  Specific\tnon-
\ninclusion of a particular species of property under s. 60 is
\n\t\t\t\t\t\t   PG NO 71
\ntherefore  not\tof  any\t consequence  if  it  is  sale\table
\notherwise.  the decision in Ramesh Himmatlal Shah’s case  is
\ntherefore of little or no assistance.\n<\/p>\n
    Chainani, CJ speaking for himself and V.M. Tarkunde,  J.
\nin Dr. Manohar Ramchandra Sarfare v. The Konkan Co-operative
\nHousing\t Society Ltd. & Ors., AIR 1962 Bom. 154 brought\t out
\nthe true concept of a tenant co-partner housing at p. 157 in
\nthese words:\n<\/p>\n
    “(T)he  property in the whole estate remains  absolutely
\nwith  the society as a whole. The member contributes in\t the
\nfirst instance by shares and then pays rent so calculated as
\nto cover not only the economic rent of his tenant or  house,
\nbut  also an amortization or sinking fund payment, which  at
\nthe  end of 25 years or 40 yars, as the case may be,  repays
\nthe whole value of the building. At the end of that  period,
\nhe is credited with further shares in the society equivalent
\nto the value that he has paid up and the normal interest  on
\nthese  shares is equal to the economic rent which he has  to
\npay.  At  the  end  of the period he  is  therefore  in\t the
\nposition of occupying the building free of rent Or merely so
\nas  a tenant of the society of which he is himself a  member
\nand therefore a controlling authority.”\n<\/p>\n
    See\t also:\tI.R. Hingorani v.  Pravinchandra,<\/a>  (1966-67)
\nBom. LR 306; Contessa Knit Wear v. Udyog Mandir\t Cooperative
\nHousing Society. AIR 1980 Bom. 374 and Bandra Green Park Co-
\noperative Housing Society Ltd. & Anr. v. Mrs. Dayadasi Kalia
\n&  Ors. AIR 1982 Bom. 428. These cases more or less  reflect
\nthe  different views that have prevailed in the\t High  Court
\nbut  the law is now governed by the principles laid down  by
\nthis Court in O. N. Bhatnagar’s case .\n<\/p>\n
    The result therefore is that the appeal must fail and is
\ndismissed(l with costs. The appellants are however given six
\nmonths’\t time  to  vacate the  disputed\t premises  on  their
\nfurnishing  the usual undertaking to the Registrar  of\tthis
\nCourt within four weeks from today in the form of affidavits
\nsworn by each one of them that they shall deliver vacant and
\npeaceful possession to respondents nos. i and 2 on or  after
\n31st  March 1989 and shall not in the meanwhile\t part  with,
\nassign or otherwise encumber the premises in any manner.\n<\/p>\n
S.L.\t\t\t\t\t  Appeal dismissed.\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Krishna Rajpal Bhatia & Ors vs Miss Leela H. Advani & Ors on 19 September, 1988 Equivalent citations: 1989 AIR 122, 1988 SCR Supl. (3) 60 Author: A Sen Bench: Sen, A.P. (J) PETITIONER: SMT. KRISHNA RAJPAL BHATIA & ORS. Vs. RESPONDENT: MISS LEELA H. ADVANI & ORS. DATE OF […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-7959","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. Krishna Rajpal Bhatia & Ors vs Miss Leela H. 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