{"id":85250,"date":"2002-07-09T00:00:00","date_gmt":"2002-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/narendra-k-kochar-vs-sind-maharashtra-coop-housing-on-9-july-2002-3"},"modified":"2015-02-22T19:39:16","modified_gmt":"2015-02-22T14:09:16","slug":"narendra-k-kochar-vs-sind-maharashtra-coop-housing-on-9-july-2002-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/narendra-k-kochar-vs-sind-maharashtra-coop-housing-on-9-july-2002-3","title":{"rendered":"Narendra K. Kochar vs Sind Maharashtra Coop. Housing … on 9 July, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Narendra K. Kochar vs Sind Maharashtra Coop. Housing … on 9 July, 2002<\/div>\n
Author: B Agrawal<\/div>\n
Bench: R.C. Lahoti, B.N. Agrawal.<\/div>\n
           CASE NO.:\nAppeal (civil) 5790  of  1998\n\n\n\nPETITIONER:\nNARENDRA K. KOCHAR\n\n\tVs.\n\nRESPONDENT:\nSIND MAHARASHTRA COOP. HOUSING SOCIETY LTD. & ORS.\n\nDATE OF JUDGMENT:\t09\/07\/2002\n\nBENCH:\nR.C. LAHOTI, B.N. AGRAWAL.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
B.N. AGRAWAL,J.\n<\/p>\n
\tThis appeal by special leave is against the judgment rendered by
\nBombay High Court  whereby Writ Application filed by the appellant has
\nbeen dismissed, upholding order of the Maharashtra State Co-operative
\nAppellate Court, dismissing  appeal preferred by the appellant against his
\norder of eviction from the premises in question passed by the Co-operative
\nCourt, purporting to act under Section 91 of the Maharashtra Co-operative
\nSocieties Act, 1960 (hereinafter referred to as `the Societies Act’].\n<\/p>\n
\tThe short facts are  that Sind Maharashtra Co-operative Housing
\nSociety Limited, respondent no. 1, [hereinafter referred to as `the Society’]
\nwas a tenant co-partnership housing society and one B.D. Punjabi,
\nrespondent No. 2, was its member as tenant co-partner in relation to flat
\nNo. 5 allotted to him in Ashiana Building of the Society.  Respondent No. 2
\nwho was put in possession of the aforesaid flat, put the appellant in
\noccupation of the same in December, 1970, without previous consent of
\nthe Society, as a licensee initially at the  monthly rate of Rs. 325\/- which
\nwas later enhanced to Rs. 450\/-.  Respondent No. 2 defaulted in payment
\nof dues of the Society from March 1977 and the appellant who was
\noccupier was causing nuisance to the  members of the Society.  Stating
\nthe aforesaid facts, the Society instituted  the present proceeding bearing
\nArbitration Case No. ABN 634\/754 of 1977 for, inter alia,  recovery of
\nvacant possession of the aforesaid flat, both from respondent No. 2 as well
\nas the appellant.  Further prayer was for directing respondent No. 2 to pay
\ndues of the Society.   The Society’s dispute was referred by the Registrar,
\nCo-operative Societies to Officer on Special Duty under Section 91 of the
\nSocieties Act which, after amendment of the Societies Act, was transferred
\nto the Co-operative Court under Section 91A of the Societies Act.\n<\/p>\n
\tThe claim of the Society was resisted by respondent No. 2 on
\ngrounds, inter alia, that the appellant was a mere licensee who was
\ntemporarily allowed to occupy the premises and that licence was also
\nterminated.  According to him, he was not a defaulter and the appellant did
\nnot cause any nuisance to any person much less any member of the
\nSociety.  The appellant\t objected to the claim of the Society on the ground
\nthat even though he was a licensee, but as the\tlicence was subsisting on
\n1st February, 1973, by virtue of the provisions of Sections 14(2), 15(2) and
\nsub-section (1) of Section 15-A of the Bombay Rents, Hotel and Lodging
\nHouse Rates Control Act, 1947 [hereinafter referred to as `the Rent
\nControl Act’], he became a tenant, entitled to claim protection as such and
\ncould not be evicted from the premises in question without taking recourse
\nto the provisions of the Rent Control Act, as envisaged under Section 22
\nthereof inasmuch as the proceeding initiated under Section 91 of the
\nSocieties Act was not maintainable.  His further case was that during the
\npendency of the present proceeding, he filed a suit against respondent No.
\n2 in relation to the premises in question for a declaration that he was
\ntenant of respondent No. 2  who contested the same.  The said suit was
\ndismissed by the Small Causes Court, but on appeal being preferred the
\nsame was decreed which attained finality as Writ Application filed against
\nthe appellate order was withdrawn.\n<\/p>\n
\tThe Co-operative Court by its judgment dated 16.10.1989\t found
\nthat respondent No. 2 was not a defaulter, but as the appellant was put in
\noccupation of the premises in question by respondent No. 2 as a licensee
\nwithout\t previous consent of the Society, both of them were liable to be
\nevicted.  So far as the ground for nuisance was concerned, as the Court
\nwas inclined to pass an order of eviction, it did not consider the same on
\nmerit.\tUltimately, the Court directed\trespondent No. 2 and the appellant
\nboth to vacate the premises in question upon determination by the Society
\nof rights of respondent No. 2 as member and admitting a new member to
\nthe premises in question.   Against the aforesaid order three appeals were
\npreferred by each of the three parties before the Co-operative Appellate
\nCourt.\tAppeal filed by the appellant was dismissed whereas the other two
\nappeals were partly allowed and order of eviction was upheld with this
\nmodification only that there was no necessity for making any
\ndetermination by the Society with regard to the rights of respondent No. 2
\nas member. Thereupon, the appellant filed a Writ Application before the
\nBombay High Court and the same having been dismissed, the present
\nappeal by special leave.\n<\/p>\n
\tMr. K. Rajendra Chowdhary, learned Senior Counsel appearing on behalf
\nof the appellant, in support of the appeal submitted that as the appellant was put
\nin occupation of the premises in question as a licensee prior to 1st February,
\n1973 and the licence was subsisting on that day by virtue of amendment made in
\nthe Rent Control Act in the year 1987, he was entitled to protection of the statute
\nby virtue of the provisions of Sections 14(2), 15(2) and 15-A of the Rent Control
\nAct under which he became a deemed tenant and in view of the provisions of
\nSection 28 thereof he could not be evicted through any other proceeding much
\nless Section 91 of the Societies Act, without taking recourse to the provisions of
\nthe Rent Control Act on the grounds enumerated therein inasmuch as the
\nproceeding initiated under Section 91 of the Societies Act being not maintainable,
\norders passed therein are liable to be quashed on this ground alone.  On the
\nother hand, Ms. Indira Jaising, learned Senior Counsel appearing on behalf of
\nrespondent No. 1, and Mr. R.N. Keshwani, learned counsel appearing on behalf
\nof respondent No. 2, submitted that the appellant did not acquire the status of a
\ntenant and is not entitled to claim protection under the Rent Control Act as he
\nwas put in occupation of the premises in question as a licensee by the
\nrespondent No. 2 without the previous consent of the Society which was in
\nbreach of its bye-laws.\t In view of the rival submissions, the question which
\narises in this appeal is as to whether the appellant, who was occupying the
\npremises in question as a licensee from before 1.2.1973 and whose licence was
\nsubsisting on that day, became a deemed tenant by virtue of the provisions of
\nSections 14(2), 15(2) and 15-A of the Rent Control Act and could  be evicted in
\nthe purported exercise of powers under Section 91 of the Societies Act,\t without
\ntaking recourse to the provisions of the Rent Control Act in spite of the express
\nbar engrafted under Section 28 thereof.\n<\/p>\n
\tIn our view, the point raised  is no longer res integra as the same is
\nconcluded by a decision of this Court in the case of Sanwarmal Kejriwal vs.
\nVishwa Co-operative Housing Society Ltd. & Ors.,<\/a> (1990) 2 SCC 288,
\nwhich was a case where the  proceeding was initiated against a licensee
\nunder Section 91 of the Societies Act.\tIn that case a registered Co-
\noperative Society admitted one Laxmi Devi Kejriwal to its membership on
\nMarch 2, 1949 and was allotted flat no. 25 who gifted her interest as the
\nallottee member of Society to\ther brother, Ambica Prasad Sharma.  One
\nD.P. Kejriwal who was looking after this flat inducted one Sanwarmal
\nKejriwal  therein with effect from June 1, 1957 under a leave and licence
\nagreement on a licence fee of Rs. 400\/- per month.  While the licensee
\nwas in actual occupation of the flat, Ambica Prasad Sharma transferred his
\ninterest therein to his brother, Hari Kumar Sharma, who was admitted to
\nthe membership of the Society.\tEven after the transfer D.P. Kejriwal
\ncontinued in management of the flat and collected and received licence fee
\nfrom Sanwarmal Kejriwal till the middle of 1979 when he received a  letter
\nfrom Hari Kumar Sharma claiming ownership of the flat.\tThe licensee
\nthereafter filed an interpleader suit in the Court of Small Causes, Bombay,
\nseeking a direction to whom he should pay the rent for the flat occupied by
\nhim which was disposed of whereafter Hari Kumar Sharma deposited with
\nthe Society the cost for initiating proceeding for eviction of the licensee
\nfrom the flat in question under Section 91 of the Societies Act.  Two days
\nlater, Hari Kumar Sharma filed a suit for eviction of the licensee from the
\nflat in question in the Court of Small Causes, Bombay.\tThereafter, the
\nSociety passed a resolution for initiating a proceeding under Section 91 of
\nthe Societies Act for eviction of the licensee from the flat in question and  a
\nnotice to quit was served on the licensee and a proceeding was initiated
\nunder Section 91 of the Societies Act.\tThe Co-operative Court came to the
\nconclusion that the Society could maintain an action under Section 91 of
\nthe Societies Act notwithstanding the fact that the licensee became the
\ntenant under Section 15-A of the Rent Control Act qua the member-allottee
\nand consequently it passed an order of eviction of the licensee.  The said
\norder was affirmed in appeal by the Co-operative Appellate Court as well
\nas by the Bombay High Court in a Writ Application filed against the
\nappellate  order.  Thereafter when the matter was brought to this Court on
\nappeal by special leave, the same was allowed, all the orders impugned
\ntherein were set aside and the petition under Section 91 of the Societies
\nAct was dismissed as not maintainable.\tConsidering various decisions
\ncited before it and taking into consideration different provisions of the
\nSocieties Act as well as Rent Control Act, this Court in that case
\nharmonised the said provisions by holding that\tin the matter covered by
\nthe Rent Control Act, its provisions, rather than the provisions of the
\nSocieties Act, should apply.  As the licensee in that case sought protection
\nof Rent\t Control Act since he was a deemed tenant under Section 15-A
\nthereof,   the Court observed that the status of a tenant was conferred on
\nhim by law as the Legislature intended to extend the protection of  Rent
\nControl Act to such a licensee and the rights which do not flow from
\ncontracts but are conferred by law, such as Rent Control Act, must be
\ndetermined by the machinery, if any, provided by the law conferring the
\nright.\tIt was laid down that “the submission that the appellant cannot seek
\nprotection against the Society as his entry into the flat was in violation of
\nthe bye-laws would have been valid had the statute not intervened.  To
\ntake such a view would tantamount  to carving out an exception in Section
\n15-A of the Rent Act that the said provision would not apply to licensees in
\noccupation of flats owned by tenant-co-partnership societies.  The
\nlanguage of Section 15-A read with Section 5(4-A) of the Rent Act does
\nnot warrant such a construction.  The mere fact that there was a violation
\nof the bye-laws would not make any difference for it is not unknown that
\neven in cases of breach of statute, the Legislature has conferred protection
\non those guilty of breach if the prevailing circumstances so warrant e.g.,
\nsub-letting was prohibited by Section 15 but when the Legislature realised
\nthe need to protect the sub-tenants it did so by an ordinance promulgated
\nin 1959.  Similarly when the Legislature felt the need to protect licensees in
\noccupation on February 1, 1973, it intervened by enacting Section 15-A.
\nThe legislative policy is quite evident from Section 15-A and the protection
\ngiven to licensees cannot be taken away on the plea that the initial entry of
\nthe licensee in the flat was in breach of the bye-laws.\t If the occupant-
\nlicensee who is a protected tenant under Section 15-A can be evicted by
\nthe society on the plea of absence of privity between the society and the
\nprotected tenant, it would render the protection of Section 15-A redundant.
\nThe situation is more or less similar to the case of an owner-landlord
\nwhose tenant had contrary to the terms of the contract introduced a
\nlicensee who is now protected by Section 15-A of the Rent Act.\tIn such a
\ncase notwithstanding the absence of protected tenant, the latter cannot be
\nevicted except in accordance with the provisions of the Rent Act.   We,
\ntherefore,  do not see any merit in the contention that notwithstanding the
\nprotection given by Section 15-A, the Society  can proceed to evict him
\nunder Section 91 of the Societies Act on the plea that such a protection is
\nnot available against the Society.  Such a view would  defeat the legislative
\nobject of Section 15-A of the Rent  Act”.\n<\/p>\n
\tLearned counsel appearing on behalf of the respondents heavily
\nrelied upon three decisions of this Court in the cases of  O.N. Bhatnagar
\nvs. Smt. Rukibai Narsindas & Ors.,<\/a> (1982) 2 SCC 244, A.V.R. & Co. & Ors.
\nvs. Fairfield Co-operative Housing Society Ltd. & Ors.,<\/a> (1988) Supp. 3
\nSCR 84 and Electrical Cable Development Association vs. Arun
\nCommercial Premises Co-operative Housing Society Ltd. & Anr.,<\/a> (1998) 5
\nSCC 396, all of which related to cases of  licensees vis–vis proceedings
\nunder Section 91 of the Societies Act and after taking into consideration
\nthe provisions of Section 15-A of the Rent Control Act, the petitions under
\nSection 91 of the Societies Act were entertained and granted.\tIn our view,
\nall the aforesaid cases are quite distinguishable.  In the case of O.N.
\nBhatnagar (supra) co-partner-tenant-member inducted a licensee much
\nbefore 1st February, 1973 on which day the statute intervened and the
\nlicence was terminated prior to that date.  Therefore, as on 1st February,
\n1973 there was no subsisting licence, such a person could not get
\nprotection of the Rent Control legislation as he did not acquire  the status
\nof a tenant by legislative intervention and consequently  the bar created
\nunder Section 28 of the Rent Control Act was not attracted  as a result of
\nwhich the petition under Section 91 of the Societies Act was held to be
\nmaintainable.  Likewise, in the case of A.V.R. & Co. (supra), as the licence
\nwas not subsisting on 1st February, 1973, it was held that such a person
\nwas not entitled to claim protection under the Rent Control Act and the
\nproceeding under Section 91 of the Societies Act was found to be
\nentertainable.\t In the case of\t Electrical Cable Development Association
\n(supra), claim put forth as a licensee was, on facts,  negatived holding that
\nthere was no agreement of leave or licence and consequently it was held
\nthat such a person not being a licensee at all, much less subsisting
\nlicensee on 1st February, 1973, could not claim protection of Rent Control
\nAct and consequently the petition under Section 91 of the Societies Act, for
\neviction of such a person by an order passed by the Co-operative Court,
\nwas rightly entertained.  In the case on hand, as the licence of the
\nappellant was subsisting on 1.2.1973,  we are of the view that he being a
\nprotected tenant under the Rent Control Act, could not be evicted by
\ninitiating a proceeding under Section 91 of the Societies Act and  passing
\norders therein by circumventing the provisions of the Rent Control Act
\nwhereunder no proceeding was resorted to and consequently the
\nimpugned orders were unwarranted.\n<\/p>\n
\tWe have resolved the legal issue arising for decision in this case.
\nDuring the course of hearing, from reading the evidence adduced by the
\nparties, an impression was created that the real cause for initiating the
\nproceedings by the society against the appellant so as to get rid of him
\nappears to be that he is not behaving himself and conducting in such a
\nmanner as to cause annoyance to other members of the society occupying
\nthe flats.  The learned counsel for the appellant assured the Court during
\ncourse of hearing that the appellant shall be advised not to cause any
\ntrouble or inconvenience to other residents in the society, to abide by the
\nlaws of the society and also to see that there are no outstandings against
\nhim.  In that regard the appellant filed an affidavit on 4th April, 2002 which
\nreads as under:-\n<\/p>\n
“2.\tIn accordance with the directions of this
\nHon’ble Court, I respectfully undertake to follow
\nand abide by the Bye Laws and Regulations of
\nthe Ist Respondent-Society as contained at pages
\n32 to 74 of Vol. II of the paper book in the above
\nappeal and as amended by the Society from time
\nto time.<\/p>\n
3.\tI respectfully state that I have paid to the Ist
\nRespondent-Society a sum of Rs. 2,47,962\/- and
\na further sum of Rs. 57,738\/- towards interest @
\n18% in terms of this Hon’ble Court’s order dated
\n16th April, 2001 made in Review Petition       No.
\n1233 of 2000.  In all a sum of Rs. 3,05,700\/- was
\npaid by me on 29th July, 2001 to the Ist
\nRespondent-Society.  The aforesaid amount of
\nRs. 2,47,962\/- includes: (i) Repayment of Loan
\nand interest thereon, (ii) Building Maintenance,\n<\/p>\n
(iii) Municipal Taxes, (iv) Parking Charges, (v)
\nWater Charges, (vi) Service and Maintenance
\nCharges, (vii) Sinking Fund, (viii) Interest on
\narrears, (ix) Building repairs charges.\n<\/p>\n
4.\tI further submit that in addition to the
\naforesaid amount I have paid the
\nrent\/compensation @ Rs. 450\/- per month to the
\nIst Respondent-Society right upto November,
\n2001 in terms of Order dated 4.2.1982 passed by
\nthe Maharashtra State Co-operative, Appellate
\nCourt and a true copy of the same is enclosed as
\nAnnexure `P1′.\tIn fact the Ist Respondent-\n<\/p>\n
Society admitted in its own statement of account
\nAnnexure `A’  at pages 25-26 annexed to its own
\napplication I.A. No. 3 of 1999 that I paid Rent upto
\nSeptember, 1996.  Further, I paid rents right upto
\nNovember, 2001.\t I undertake to pay rent @ Rs.\n<\/p>\n
450\/- per month from December, 2001 to April,
\n2002, within 15 days from today.  I further
\nundertake to pay the monthly rent of Rs. 450\/- to
\nthe Society by 15th of every month.”\n<\/p>\n
\tWithout expressing any opinion on the contents of the affidavit we
\nhave simply taken the same on record.\n<\/p>\n
\tIn the result, the appeal is allowed, impugned orders are quashed
\nand petition under Section 91 of the Societies Act filed by the Society is
\ndismissed as not maintainable.\tIn the facts and circumstances of the case,
\nparties shall bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Narendra K. Kochar vs Sind Maharashtra Coop. Housing … on 9 July, 2002 Author: B Agrawal Bench: R.C. Lahoti, B.N. Agrawal. CASE NO.: Appeal (civil) 5790 of 1998 PETITIONER: NARENDRA K. KOCHAR Vs. RESPONDENT: SIND MAHARASHTRA COOP. HOUSING SOCIETY LTD. & ORS. DATE OF JUDGMENT: 09\/07\/2002 BENCH: R.C. LAHOTI, B.N. AGRAWAL. […]<\/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-85250","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNarendra K. Kochar vs Sind Maharashtra Coop. 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