Bombay High Court
Narendra Kumar Kochar vs Sind Maharashtra Co-Operative Housing ... on 10 July, 1998
Equivalent citations: 1998(4)BOMCR638
Author: A.P. Shah
Bench: A.P. Shah
ORDER A.P. Shah, J.
1. The principle question in controversy in this petition under Article 226 of the Constitution is whether a tenant who has been inducted in a flat by a member of a co-operative housing society in breach of the bye-laws of the society, can claim protection under section 15(2) read with section 14(1) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "Bombay Rent Act"), and whether a claim filed by the society for ejectment of such member as well as tenant, is a dispute touching the business of the society within the meaning of sub-section (1) of section 91 of the Maharashtra Co-operative Societies Act, 1960 (for short 'the Co-
operative Societies Act").
2. Put very briefly, the essential facts are these. The 1st respondent is a co-operative housing society and as such owner of a building known as "Ashiana", situate at plot No. 6, 10th North-South Road, Andheri, Mumbai. The society was registered in 1968. The 2nd respondent is its member as a co-partner tenant and allottee of flat No. 5 (for short "suit flat") in the said building of the society. In December 1970, the petitioner was put in possession of the suit flat except one bedroom on a monthly rent of Rs. 325/-. The respondent No. 2 retained with him one bedroom. Later, at the request of the petitioner, respondent No. 2 allowed the petitioner to use the remaining bedroom from January, 1972 and the monthly rent was increased to Rs. 450/-. In 1977 the petitioner filed R.A. Declaratory Suit No. 4322 of 1977 seeking a declaration that he is a tenant of respondent No. 2 in respect of the suit flat. The respondent No. 2 by his written statement disputed the petitioner's claim of tenancy and contended that the petitioner's occupation of the suit was merely permissive. In the words, the petitioner was a licensee and not a tenant. The Small Causes Court by its judgment and order dated 13th April. 1982 dismissed the petitioner's declaratory suit holding that the petitioner was a licensee. Feeling aggrieved, the petitioner preferred Appeal No. 354 of 1982 before the Appellate Bench of the Small Causes Court. The Appellate Court by its judgment and order dated 19th March, 1984 allowed in the petitioner's appeal, set aside the trial Court's judgment and decree, and declared the petitioner to be a tenant of the suit flat and granted injunction sought. Against the said decree, respondent No. 2 preferred Writ Petition No. 3662 of 1984 before this Court, which came to be withdrawn on 3rd July, 1998.
3. The respondent No. 1 society appears to have objected to the petitioner's possession mainly on the ground that the petitioner secured such possession without
(i) the petitioner being a nominal member, and (ii) obtaining prior permission as required under the bye-laws. The society also alleged that the petitioner is guilty of causing nuisance to the other members in the society. The society instituted the present proceedings being A.R.R. Case No. A.B.N. 634/754 of 1977 for possession against respondent No. 2 i.e., the member and the petitioner claiming possession of the suit flat. The society's dispute was referred to the Officer on Special Duty by the Registrar under section 91 of the Co-operative Societies Act. Subsequently, due to amendment to section 91 the dispute was transferred to the Co-operative Court under section 91-A of the Act. In short, the case of the Society is that respondent No. 2 is under an obligation to occupy the said flat allotted to him and cannot allow the same to be occupied by a non-member but respondent No. 2 parted with possession of the suit flat without the society's prior consent and by permitting the petitioner to occupy and use the same, committed breach of the society's bye-laws and resolutions.
Secondly, it is alleged by the society that respondent No. 2 is a persistent defaulter of the society's due and as on 1st March, 1977 a sum of Rs. 6,608/- is due and payable by respondent No. 2 to the society as and by way of arrears of monthly contribution for the period upto March, 1977. Thirdly, it is alleged that the occupant i.e., the petitioner is causing nuisance to the members of the society.
4. The dispute was resisted by the petitioner as well as respondent No. 2. The defence of respondent No. 2 was that the petitioner was merely a licensee who had been temporarily allowed to occupy the premises. He claimed that the licence of the petitioner was terminated. He denied the allegations of default and nuisance. Curiously enough even the petitioner raised a plea that he was only a licensee in respect of the suit flat. He further contended that the licence was subsisting on 1st February, 1973 and as such he is entitled to protection of section 15A of the Bombay Rent Act. He denied alfegations pertaining to nuisance. As noted earlier, the petitioner has obtained a declaration from the Small Causes Court that he is a tenant of respondent No. 2 and thus he is clearly estopped from claiming protection under section 15A. In fact during the course of the argument, learned Counsel for the petitioner proceeded on the basis that the petitioner was inducted as a tenant and not as licensee and plea of protected licensee was not pressed before this Court.
5. The 4th Co-operative Court by its judgment and order dated 10th November, 1982 awarded possession of the suit flat to the disputant society. While doing so the Co-operative Court held that the petitioner was in unauthorised occupation of the suit flat and, therefore, both respondent No. 2 as well as the petitioner are liable to be evicted. Incidentally it may be mentioned that the ground of default was decided against the society. As far as ground of nuisance is concerned, the Co-operative Court opined that this issue is not material as the occupant is being evicted not on account of nuisance but on account of his illegal occupation. Against the said decision, all the three parties filed appeals before the Co-operative Appellate Court, Mumbai. By judgment and order dated 21st February, 1991, the Co-operative Appellate Court dismissed the appeals preferred by the petitioner as well as respondent No. 2. As regards the appeal of the society, the Appellate Court substituted the order of the Co-operative Court by directing that the petitioner and respondent No. 2 to quit, vacate and handover vacant possession of the suit fiat within one month from the date of the order. Thereupon the petitioner has moved the present petition under Article 226 of the Constitution for an appropriate writ, direction or order for quashing the impugned judgments and orders of the Co-operative Court and Co-operative Appellate Court.
6. There are two questions to be determined in this petition. They are : (i) Whether the petitioner, who has been inducted as a tenant by the member in a co-partnership society, can claim protection of section 15(2)? It is urged that the petitioner having been inducted as a sub-tenant prior to 1st February, 1973 is entitled to protection of the Bombay Rent Act as amended by Act No. 18 of 1987. It is also urged that the Supreme Court has held that a protected licensee under section 15A of the Bombay Rent Act cannot be evicted by the society without taking recourse to the procedure under the Bombay Rent Act and, therefore, on the same analogy even a sub-tenant protected by section 15(2) read with section 14(1) cannot be evicted by the society except by following the procedure under section 28 of the Bombay Rent Act. (ii) Whether the claim for ejectment of the member as well as the occupant of a flat by a housing co-operative society is a dispute touching the business of the society within the meaning of section 91(1) of the Act? In this behalf it is contended that as the petitioner has acquired status of a lawful sub-tenant, a claim for possession of the premises against him is triable exclusively by the Court under the Bombay Rent Act and the jurisdiction of any other Court including that of the Co-operative Court under section 91 of the Co-operative Societies Act is barred under section 28 of the Bombay Rent Act and even if the member were to be evicted by an order of the Co-operative Court the tenancy rights of the petitioner are not affected since by virtue of section 14(1) of the Bombay Rent Act the petitioner would become a direct tenant of the society. Heavy reliance is placed on three decisions of the Supreme Court, namely, (i) O.N. Bhatnagar v. Rukibai Narsindas, , (ii) H.P. Corporation Ltd. v. Shyam Co-operative Housing Society, and (iii) Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd., .
7. The statutory provisions having a bearing upon these questions are set out herein below. Section 91 of the Co-operative Societies Act insofar as relevant for out purpose reads as follows :
"Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution.....management or business of a Society shall be referred by any of the parties to the dispute ..... to the Co-operative Court if both the parties thereto are one or other of the following :-
(a) a society .....
(b) a member, past member or a person claiming through a member, past member or a deceased member of the society.....
" Sub-section (3) reads as under:
"Save as otherwise provided under sub-section (2) to section 93, no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1)".
8. Section 28(1) of the Bombay Rent Act, in so far as material, reads:
"Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of (he claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction
(a) in Greater Bombay, the Court of Small Causes, Bombay, (aa) xx xx xx
(b) xx xx xx shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part apply ....... and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and ....... no other Court shall have jurisdiction to entertain any such suit, proceedings or application or to deal with such claim or question."
9. The definition of the term 'landlord' as contained in section 5(3) of the Bombay Rent Act reads as follows:
'landlord' means any person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant, and includes any person not being a tenant who from time to time derives title under a landlord and further includes in respect of his sub-tenant, a tenant who has sub-let any premises; and also includes in respect of a license deemed to be a tenant by section 15A, the licensor who has given such licence;"
10. Section 15(1) of the Bombay Rent Act prohibits sub-letting without the prior written consent of the landlord. Section 15(2) was initially inserted by Ordinance of 1959 whereby sub-tenancies upto 21st May, 1959 were regularised. By Amending Act No. 18 of 1987, all sub-tenants inducted prior to 1st February, 1973 are given protection. The amended provision of section 15(2) reads as follows:
"The prohibition against the sub-letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in sub-section (1), shall, subject to the provisions of this sub-section, be deemed to have had no effect before the 1st day of February 1973 in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order of a Court, any such sub-lease, assignment or transfer of any such purported sub-lease, assignment or transfer in favour of any person who has entered into possession, despite the prohibition in sub-section (1), as purported sub-lease, assigneee or transferee and has continued in a possession on the date aforesaid, shall be deemed to be valid and effectual for all purposes, and any tenant who has sub-let any premises or part thereof, assigned or transferred any interest therein, shall not be liable to eviction under Clause(e) of sub-section (1) of section 13.
The provisions aforesaid of this sub-section shall not affect in any manner the operation operation of sub-section (1) after the date aforesaid."
11. Section 14(1) of the Bombay Rent Act reads thus:
"When the interest of a tenant of any premises in determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let before the 1st day of February 1973 shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and condition as he would have held from the tenant if the tenancy had continued.'
12. We are dealing with competing provisions vesting jurisdiction under different laws opening with a non-obstante clause and investing jurisdiction in different courts. Under the Co-operative Societies Act, section 91A confers jurisdiction on the Co-operative Court while section 28 of the Bombay Rent Act confers jurisdiction on the Small Causes Court, Mumbai. In O. N. Bhatnagar v. Rukibai Narsindas (supra) the Supreme Court observed that the two enactments deal with two distinct and separate fields and therefore the non-obstante clause in section 91(1) of the Co-operative Societies Act and that in section 28 of the Bombay Rent Act operate on two different planes. Thus the two legislations pertain to different topics of legislation. It was noted by the Supreme Court in O.N. Bhatnagar's case that section 28 of the Bombay 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 of landlord and tenant. It does not invest those courts with exclusive power to try questions of title, such as between the rightful owners and a trespasser or a licensee, for such questions do not arise under the Act.
13. In O.N. Bhatnagar's case the appellant was inducted as a licensee in respect of a flat in a tenant co-partnership society by name Shyam Co-operative Housing Society some time in 1961. The bye-laws of the society provided that no member can part with his possession of the flat under an agreement of leave and licence except with the approval of the society and unless such licensee becomes a nominal member thereof. The respondent No. 1 who was the member and the appellant accordingly applied to the society for accepting the appellant to be a nominal member. The society passed a resolution accepting the appellant as a nominal member. The agreement was terminated by notice dated 31st March, 1965. After termination of the agreement, respondent No. 1 filed dispute under section 91(1) of the Act for recovery of possession against the licensee as well as the society. During the pendency of the proceedings the society got itself transposed as a co-disputant. The Co-operative Court made an award against the appellant for possession of the flat in dispute. Against the award, an appeal was filed before the Co-operative Appellate Court which came to be dismissed. Writ petition filed against the said order was also dismissed. The Supreme Court held that the appellant is not entitled to protection of section 15A of the Bombay Rent Act since the legislature has protected a licensee under a subsisting licence as on 1st February, 1973 and as the licence was terminated long prior to that date, the appellant is nothing but a rank trespasser and is not entitled to protection of section 15A of the Bombay Rent Act and, therefore, cannot plead the bar under section 28(1) thereof.
14. One of the questions before the Supreme Court in O.N. Bhatnagar's case was whether a claim tor ejectment of occupant of a flat by a housing co-opeartive society, who had been let into possession of the premises under an agreement of leave and licence executed between him and a 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 Co-operative Societies Act. The Supreme Court after considering its earlier decision in Deccan Merchants Co-operative Bank Ltd. v. M/s. Dalichand Jugraj Jain, observed:
"In the present case, the society is a tenant co-partnership type housing society formed with the object of providing residential accommodation to its co-partner tenant members. Now, the nature of business which a society carries on has necessarily to be ascertained from the object for which the society is constituted, and it logically follows that whatever the society does in the normal course of its activities such as by initiating proceedings for removing an act of trespass by a stranger, from a flat allotted to one of its members, cannot but be part of its business. It is as much the concern of the society formed with the object of providing residential accommodation to its members, which normally is its business to ensure that the flats are in occupation of its members in accordance with the by-laws framed by it, rather than of a person in unauthorised occupation, as it is the concern of the member, who lets it out to another under an agreement of leave and licence and wants to secure possession of the premises for his own use after the termination of the licence. It must, therefore, follow that a claim by the society together with such member for ejectment of a person who was permitted to occupy having become a nominal member thereof, upon revocation of licence, is a dispute falling within the purview of section 91(1) of the Act."
15. In the case of H.P. Corporation Ltd. v. Shyam Co-operative Housing Society, (supra) the Esso Eastern Inc., a company, had taken flat in a housing society known a Shyam Niwas on leave and licence basis for a period of one year in terms of a written agreement dated 26th November, 1968 from one Smt. Nanki M. Malkani. On 4th December, 1968 the society passed a resolution admitting one T.J. Mansuknani, an employee of the company, as a nominal member of the society since he was to occupy the flat. The licence agreement was extended from time to time under the renewal clause incorporated in the agreement. After the company was taken over under the Esso (Acquisition of Undertakings in India) Act, 1974, Smt. Nanki Malkani sent a communication affirming the terms and conditions of the licence and against confirmed the same on 24th March, 1976. Thus, the licence was subsisting on 1st February, 1973. On 11th September, 1986 the society passed a resolution, calling upon the Corporation to vacate the said premises and directed its member Smt. Nanki Malkani to occupy the same herself. Upon the appellant Corporation failing to vacate the premises, the society commenced proceedings under section 91(1) of the Co-operative Societies Act on 15th September, 1986 for eviction of the Corporation and its employees form the flat. The Co-operative Court dismissed the claim of the society holding that the Corporation was entitled to the benefit of section 15A of the Bombay Rent Act and the said protection could not be taken away by the society seeking eviction under section 91(1) of the Co-operative Societies Act. The society preferred an appeal which came to be allowed on 17th March, 1984 whereupon the appellant Corporation approached the High Court under Article 226 of the Constitution but the same was rejected.
16. In H.P. Corporation's case the Supreme Court raised three questions for decision. The first question was whether the Corporation as successor-in-interest of Esso Eastern Inc., the licensee, was entitled to protection of section 15A of the Bombay Rent Act having regard to the fact that Esso Eastern Inc., was in occupation of the flat in dispute under a subsisting licence on 1st February, 1973 and whether the society's action for ejectment of the occupant of the flat could be said to be dispute touching the business of the society within the meaning of section 91(1) of the Societies Act. After referring to the relevant statutory provisions of both the Societies Act and the Bombay Rent Act, the Supreme Court observed that the finding of the Appellate Court that the appellant Corporation was not entitled to the protection of section 15A of the Bombay Rent Act could not be sustained. The Supreme Court concluded in paragraph 14 at page 758 as under:
"In the premises, petitioner 1 Hindustan Petroleum Corporation Ltd., is clearly protected under section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In that view of the matter, we do not think it necessary to deal with (he contention as regards the applicability of section 91 of the Maharashtra Co-operative Societies Act, 1960. All aspects arising out of submissions as to the jurisdiction of the Registrar under section 91(1) of the Act have already been considered by this Court in O.N. Bhatnagar case and we reiterate the principles laid down down therein."
The Supreme Court did not consider it necessary to deal with the third contention whether a claim for ejectment of an occupant of a flat in a co-operative housing society who has been put in possession thereof by the member under a leave and licence agreement is a 'dispute touching the business of the society' within the meaning of section 91(1) of the Co-operative Societies Act, because in its view it was already covered by Bhatnagar's case. To put it differently the Court accepted the ratio of Bhatnagar's case as laying down the correct law and did not see the need to restate the same.
17. The third case relied upon by the petitioner is the judgment in Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. (supra). There one Laxmi Devi Kejriwal was admitted to the membership of the society and was allotted flat No. 25 of the multi-storey building known as Vishwa Mahal', who gifted her interest as allottee to one Ambica Prasad Sharma. One D.P. Kejriwal who was looking after this flat inducted the appellant Sanwarmal Kejriwal with effect from 1st June, 1957 under a leave and licence agreement on a licence fee of Rs. 400/- per month. While the appellant was in actual occupation of the flat, the allottee-member Ambica Prasad Sharma transferred his interest therein to his brother Hari Kumar Sharma. It appears that even after this transfer D.P. Kejriwal continued in management of the flat and collected and received the licence fee from the appellant till the middle of 1979 when he received a letter from Hari Kumar Sharma claiming ownership of the flat. The appellant then filed an interpleader suit in the Court of Small Causes Court, Mumbai seeking a direction to whom he should pay the rent for the flat occupied by him. The interpleader suit was disposed of and certain amounts were deposited by the appellant. Two days later Hari Kumar Sharma filed a suit for the eviction of the appellant from the flat in the Court of Small Causes, Mumbai. Pending the suit, the society passed a resolution on 5th July, 1983 to initiate proceedings under section 91(1) of the Co-operative Societies Act for eviction of the appellant from the flat in question. Thereupon the society served the appellant with a notice to quit dated 11th July, 1983 and thereafter instituted the action under section 91(1) of the Co-operative Societies Act. The Co-operative Court came to the conclusion that the society could maintain an action under section 91(1) of the Co-operative Societies Act notwithstanding the fact that the occupant was the tenant under section 15-A of the Bombay Rent Act qua the member allottee. In this view of the matter, the Co-operative Court passed an ejectment order against the appellant and ordered that the member shall personally occupy the flat in question within 15 days from receipt of decision thereof. The Appellant feeling aggrieved by this order, filed an appeal before the Co-operative Appellate Court which came to be dismissed with costs. Then the appellant preferred a writ petition in this Court which also came to be dismissed. In allowing the appeal, the Supreme Court held:
"21. It was, however, submitted by the learned Counsel for the society that the earlier enactment i.e. the Rent Act must yield to the later Act, i.e. the Societies Act, if the competing provisions of the two cannot be reconciled lex posterior derogat priori. But the Rent Act is a special law extending protection to tenants, just as the Industrial Disputes Act which makes provisions for the benefits of the workmen. Ordinarily, therefore, a general provision, a dispute touching the business of the society, would have to give way to the special provisions in the Rent Act on the maxim generalia specialibus non derogant. That is why this Court harmonised the said provisions by holding that in matter covered by the Rent Act, its provisions, rather than the provisions of the Societies Act, should apply. In the present case the appellant seeks protection of the Rent Act since he is a deemed tenant under section 15-A read with section 5(4-A) and section 5(11)(bb) of the Rent Act. The status of a tenant is conferred on him by law as the legislature desired to extend the protection of the Rent Act to such licensees. Rights which do not flow from contracts but are conferred by law such as the Rent Act, must, we think, be determined by the machinery, if any, provided by the law conferring the right.
22. The submission that the appellant cannot seek protection against the Society as his entry into the flat was in violation of the Bye-laws would have been valid had the statute not intervened. To take such a view would tantamount to carving out an exception in section 15-A of the Rent Act that the said provision would not apply to licensees in occupation of flats owned by tenant-co-partnership societies. The language of section 15-A read with section 5(4-A) of the Rent Act does not warrant such a construction. The mere fact that there was a violation of the Bye-laws would not make any difference tor its is not unknown that even in cases of breach of statute, the legislature has conferred protection on those guilty of breach if the prevailing circumstances so warrant e.g., sub-letting was prohibited by section 15 but when the legislature realised the need to protect the sub-tenants it did so by an Ordinance promulgated in 1959. Similarly when the legislature felt the need to protect licensees in occupation on 1st February, 1973, it intervened by enacting section 15-A. The legislative policy is quite evident from section 15-A and the protection given to licensees cannot be taken away on the plea that the initial entry of the licensee in the flat was in breach of the Bye-laws. If the occupant-licensee who is protected tenant under section 15-A can be evicted by the Society on the plea of absence of privity between the Society and the protected tenant, it would render the protection of section 15-A redundant. The situation is more or less similar to the case of an owner-landlord whose tenant had contrary to the terms of the contract introduced a licensee who is now protected by section 15-A of the Rent Act. In such a case notwithstanding the absence of privity of contract between the owner-landlord and the licensee-protected tenant, the latter cannot be evicted except in accordance with the provisions of the Rent Act. We, therefore, do not see any merit in the contention that notwithstanding the projection given by section 15-A, the society can proceed to evict him under section 91(1) of the Societies Act on the plea that such protection is not available against the society. Such a view would defeat the legislative object of section 15-A of the Rent Act.
23. But the jurisdiction of the Court in which the action is originated must be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party. For example, if the plaintiff goes to Court alleging that the defendant is a trespasser, the ordinary Court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy. If, however, the defendant succeeds in proving that he is a tenant in respect of premises, possession whereof is sought, the Court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the jurisdictional fact that the defendant was a trespasser. Here also the claim was lodged by the society in the Co-operative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere trespasser. On facts it is now found that the appellant was and is a protected tenant under section 15-A of the Rent Act. The proceedings initiated under section 91(1) of the Societies Act cannot in the circumstances succeed for the simple reason that the society has failed to prove the fact which constitutes the foundation for jurisdiction. If the society fails to prove that the appellant has no right to the occupation of the flat since he is a mere trespasser, the suit must obviously fail. That is why even in the case of Hindustan Petroleum Corpn. Ltd, this Court did not consider it necessary to deal with the contention based on section 91(1) of the Societies Act in detail and felt content by observing that the point stood covered by the decision in Bhatnagar's case."
18. Before we consider the effect of the amended section 15(2) and section 14(1) and the cases relied upon by the learned Advocate for the petitioner it is necessary to understand the constitution of tenant co-partnership society. Both the courts have found the 1st respondent to be a "tenant co-partnership society". The society's claim to that effect is not disputed by the petitioner. In terms of Rule 10(5)(b) of the Rules framed under the Co-operative Societies Act, such societies hold land and building both, and allot the same or parts thereof to its members who are loosely referred to as tenants. One of the important features of a co-partnership society is dual ownership; management and authority to enforce obligation being vested in the society, while right to occupation subject to bye-laws being vested in the member. This concept of dual ownership inevitably gives rise to certain mutual rights and obligations requiring a machinery to regulate and enforce the same by enacting bye-laws. This naturally leads to restricting the right of occupation to the member himself for whose occupation it is intended from its very inception and who alone is liable to comply with such obligation and as a corollary thereto his disability to induct any third person therein excepting with the permission of the society in case of temporary urgency. Ordinarily, bye-laws of such housing society do not admit occupation of the flat by persons other than members who are supposed to join the society for securing the house for themselves. A provision imposing such restriction is necessarily made in the bye-laws. This, however, provide for letting or giving it on leave and licence to any third person with the prior permission of the society. The third person is contemplated to be made in that case a nominal member to ensure compliance of his obligation as a temporary occupant as also eventual eviction. In the instant case, in view of the bye-laws of the society, the 1st respondent could not have let the premises to the petitioner without the prior permission of the society. Admittedly, no such permission was sought nor the petitioner was made a nominal member, as required by the bye-laws of the society. The respondent No. 1 being a co-partnership type housing society, having allotted to respondent No. 2 the flat as a co-partner tenant member, is vitally interested in ensuring that no stranger should be inducted in the premises without following the procedure prescribed by the bye-laws. In the instant case the 1st respondent society is a tenant co-partnership type housing society formed with the object of providing residential accommodation to its co-partner tenant members. It is very much the concern of the society formed with the object of providing residential accommodation to its members which normally is its business, to ensure that the Hats are in occupation of its members in accordance with the bye-laws framed by it. It must, therefore, follow that a claim by the society for ejectment of the member who has permitted a stranger to occupy the flat in violation of the bye-laws, is a dispute falling within the purview of section 91(1) of the Act. The position would not be different merely because the stranger who has been inducted in the flat is joined as a co-respondent and order of rejectment is also sought against him.
19. It is argued on behalf of the petitioner that the position of a member in a tenant co-partnership society is more or less that of a tenant. It is argued that if such member-tenant has inducted a sub-tenant prior to 1st February, 1973, the inevitable consequence is that such a sub-tenant would get the status of a protected sub-tenant under section 15(2) and upon determination of the rights of the member, he would become direct tenant of the society. In my opinion, having regard to the nature of rights inter se between a member and a co-partnership society, it is difficult to accept the submission that a tenant inducted by the member can be regarded as a sub-tenant for the purpose of section 15(2) and/or section 14(1). A member of a co-partnership society holds shares of the society and as a member shareholder, he is entitled to occupy a flat in the society in respect of which share certificate has been issued to him'. It is now well settled that the member's right to occupy the flat is a species of property liable to attachment and sale. It is more than a mere right to occupy. It is transferable and if the transferee answers the qualifications under the bye-laws for being admitted to the membership of the society, the society would be precluded from unreasonably withholding such admittance. Thus, there cannot be any doubt that a member-allottee has a right to transfer his interest in the flat to a third party and, therefore, the right to induct a third party, subject to limitation imposed by the bye-laws. But that does not mean that a person inducted by such a member can be regarded as a sub-tenant vis-a-vis the society although the member is loosely described as a tenant. Therefore, I am unable to accept the argument that such a tenant/sub-tenant inducted by the member is covered by section 15(2) of the Bombay Rent Act.
20. This problem can also be viewed from a different angle. Section 14(1) contemplates that upon determination of the rights of the original tenant, the sub-tenant becomes the direct tenant of the landlord on same terms and conditions. If the argument of the petitioner is to be accepted, it would mean that a tenant who is unlawfully inducted by a member would be entitled to step into the shoes of a member on determination of the rights of the original member. It would be against the very concept of co-operation and dual ownership, which are two important facts of a tenant co-partnership society. It is pertinent to note that section 14(1) provides that only a lawful sub-tenant can become a direct tenant on determination of the tenancy of the original tenant. It is no doubt true that by virtue of the Amending Act, the bar against creation of sub-tenancy provided under section 15(1) was removed in respect of sub-tenants inducted prior to 1st February, 1973 and, therefore, notwithstanding the prohibition contained in section 15(1), the sub-tenancies prior to 1st February, 1973 stands regularised. However, in the instant case, admittedly, the tenancy is created in breach of the bye-laws of the society. No prior permission of the society was obtained nor the occupant was enrolled as a nominal member as required by the bye-laws. If that is so, he cannot be regarded as a lawful sub-tenant even to be assumed for the sake of argument that member of a tenant co-partnership housing society cannot be regarded as a tenant. Thus, to my mind a tenant inducted by a member in violation of the bye-laws cannot claim protection under section 15(2) of the Bombay Rent Act. The dispute, as framed by the society under section 91(1), is perfectly maintainable in law.
21. In view of the foregoing discussion, petition is dismissed with no order as to costs.
22. Petition dismissed.