Bombay High Court
Sardar Mohan Singh Ahluwalia (Since ... vs Maitri Park Co-Operative Housing ... on 7 February, 1986
Equivalent citations: 1986(3)BOMCR57
JUDGMENT S.M. Daud, J.
1. This is a petition taking exception to the passing and confirmation of an award pursuant to the raising of a dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960, hereinafter referred to as the "Act".
2. Points arising for determination in this petition have to be considered in the light of the following :---
Respondent No. 1- hereinafter to be referred to as the "Society" a Tenant Co-partnership Co-operative Housing Society was registered under the Act. It is the owner, manager and controller of a block of flats forming part of what is known as Building No. 'F'. The Society's ancestory goes back to what is known as "Maitri" Co-operative Housing Society Ltd." That Society had two Schemes, one at Chembur Bombay 400 071, and the other at Chembur-400 074. The said Society constructed buildings in both the Schemes. Respondent No. 2 hereinafter to be referred to as the "Member" was a member of the original society in Scheme No 1. As such member, she was in occupation of Flat No. 15 in 'F' building. The member inducted deceased petitioner hereinafter to be referred to as the "Occupant" into the flat. In August, 1972 the parent Society was divided into two units. viz. The Society respondent and another Society administering Scheme No II with which we are not concerned in the present suit. The occupant was inducted into the flat in May, 1969 on a Leave and Licence Agreement, the duration whereof was limited to 11 months. It was on 6-8-1970 that the bifurcation of the parent Society took place giving birth to the respondent Society is this case. On 27-4-1980, the Member requested the society to take steps for the eviction of the Occupant. In Pursuance of this request, a meeting of the Society was held on 12-5-1980, when a resolution to initiate proceedings against the occupant was passed. Thereafter, the Society filed a dispute before the Co-operative Court at Bombay. It as contended that the entire building inclusive of the flat in dispute belonged to the Society and was meant for the sue and occupation of the members thereof. This was governed by the bye-laws, apart from the provisions of the Act and the rule framed thereunder. The occupant had been inducted into a flat without the written consent as required by the bye-laws. The occupant, continuance in possession specially after being asked to vacate was illegal. The flats in the building were residential and despite this the occupant had started a canteen in the disputed flat. Hence, the solicitation for a direction to evict the occupant and restrain the Member form parting with possession to any other person other than the claimant Society. It was requested that the member be enjoined to personally occupy and use the flat as from the date the petitioner vacated the same. The member expresses her anxiety to co-operate with the demand made upon her by the Society, and pleaded that she had failed because of the obstruction raised by the occupant. He had refused to vacate and it was for this reason that she could not personally occupy the flat and do so in conformity with the requirements of the bye-laws. The petitioner contended that the dispute was the result of collusion between the Society and the member. He had been inducted into the premises in the representation of the member that this was in accord with the permission granted by the Society. The Society had acquiesced in this occupation by accepting enhanced and car parking charges for his use and occupation of the flat etc. The Society had stood by for no less a period than 11 years before raising the dispute. It was estopped from questioning the validity of his occupation. The Society was an idle party, and that it was colluding with the member was established by the fact of its not seeking the relief of eviction against the said member. The occupant was not subject to the jurisdiction of the Co-operative Court under section 91 because he was not a real nor a nominal member of the Society. It was denied that he had been used the premises for conducting a Canteen or had committed acts of nuisance and annoyance. Section 91 of the Act had no application and the dispute raised by the Society was not maintainable.
The witness as examined in the proceedings before the Co-operative Court were the Secretary of the Society and the occupant. The Co-operative Court held that the dispute was maintainable, that the occupants possession was unlawful and that he was liable to be evicted. The result was the passing of an award in substantial conformity with the claim made by the society. The petitioners appeal to the State Co-operative Appellate Court failed and hence this petition.
3. On behalf of the petitioner, the contentions raised to assail the order of the courts below are :
1. Total non -consideration and non-application of the several pieces of material facts and circumstances, and.
2. Disregard of the law laid down by the Court which had a bearing on the points at issue.
The contention reproduced above are refused by the Society and the member. Having regard to the above position, the points for determination are :
1. Whether the dispute raised by the Society was triable under section 91 of the Act.?
2. Whether the passing of the award and the Confirmation thereof was erroneous.?
3. What order ?
My findings, for reasons given below are:-
1. Yes.
2. No. 3 Petition dismissed.
REASONS
4. The submission advanced on behalf of the occupant is that the statutory courts came to an conclusion on the point of jurisdiction because of their ignoring factors. These factors lay in ignoring the application of section 91 of the Act in view of the fact that the Society was an idle party. Secondly they had not taken into consideration the fact of the society failure to claim any relief against the Member. Thirdly, the members written statement had been wrongly treated as substantive evidence. Her failure to enter the witness box had not been given the weight that omission was entitled to. Lastly, rent receipts passed in favour of the occupant even after the expiry of leave and licence period of 11 months indicated a continuance of the licence, and right till 1980. These factors had not been properly considered. In fact, they had been wholly overlooked. One more point pressed on behalf of the occupant was that the Member had given am assurance to him that she had obtained the sanction of the Society to his induction into the flat. This had been testified to by the petitioner when examined as a witness. There was no evidence to the contrary and in fact the member had studiously kept out of the witness box. The evidence showed that the office-bearers of the Society knew of the occupants induction and despite its knowledge had kept quite until shortly before the institution of the proceedings before the Co-operative Court. This silence gave rise to an estoppel against the Society. There is no substance in these contentions. The constant refrain that the society was on idle party, is incomprehensible seeing that it was the society-respondent No. 1 which had initiated the dispute against the occupant. The expression "idle party" can certainly not apply to the Society which takes an active interest in the prosecution of a dispute meant to evict an unauthorised occupant. The expression has become a convenient tool merely because in some decided cases it was held that the formality of joining a Co-operative Housing Society to a dispute circumvent section 28 of the Bombay Rent Act. could not be permitted. Mr. Walwalkar argues that the real dispute was as between the occupant and the Member and that the Society was acting collusively in taking upon itself the Member's liability of initiating proceedings for eviction against the occupant. The claim of the Society is at page 7 of the paper-book. Apart from seeking the relief of eviction against the occupant, the claim seeks directions against the Member. The argument that the omission to sue the Member for eviction clearly indicates the collusive nature of the proceedings carries no conviction. This is because the society is a Tenant Co-partnership Housing Society wherein vide Rule 10 of the rules framed under the Act, it is the Society which holds both the lands and buildings and the members are no more than its allottees. It is not necessary that a allottee, must be compelled to lose her right to re-occupy the premises. That is a question to be decided between the Society and the member. Incidentally, it is not as if the society must seek reliefs against the Member as also the occupant in one proceeding. It can very well initiate the proceeding to penalise the Member after a successful termination of the claim put forth against an occupant. That apart, the submission that the Society in the instant case is an idle party, is on the facts of it untenable. In support of the submission, Mr. Walawalkar relies upon the decisions in the cases of Kalawati Ramchand Malani v. Shankarao Patil, 76 Bom.L.R. 716 and Panjumal Hassomal Advani v. Harpal Singh, 76 Bom.L.R. 729. In the latter case the Society was joined as an idle formality and as a co-disputant, solely to bring the dispute within the purview of section 91 of the Act. It was in this situation that the Division Bench consisting of Desai and Sawant, JJ. held that the formality was an idle one and could not be permitted. A case of the present nature is specifically excluded from the ratio laid down in Panjumal's case as evident from the penultimate paragraph of the Judgement. That Paragraph needs to be reproduced in full and it is thus :-
"'We would like to state further that nothing in the foregoing discussion must be construed so as to effect the right of a Co-operative Housing Society to institute a proceedings against a member and or an occupant claiming through a member on the footing that in permitting the occupant to enter into and obtain possession of the flat, the member had contravened some binding regulations of the said Co-operative Housing Society. This cause of action in favour of the society is quite different from the one being considered by us and would not appear to be covered by the requirements postulated in Kalawati's case."
It may be noted that in both these cases viz., kalawati and Panjumal, the dispute was in substance between a member and an occupant. The society was not present at all or joined as purely formal party. It was for this reason that it was described as an 'idle party' But that is not the position in the instant case. Here, there is a bye-law which prohibits a Member from inducting a stranger into a flat allotted to her, except with the written consent of the Society. Such written consent was admittedly not obtained. To get over this difficulty , the occupant came forth with the plea that the Member had told him of having obtained the required consent from the Society and that there would be no difficulty in his occupation on this score. The member's omission to enter the witness box, has been seized upon for advising the arguments that what the Occupant say has to be accepted. But assuming that the member did give such a false assurance to the Occupant it would not be of any avail to the letter to enable him to resist the eviction proceeding. After all, the assurance given was contrary to the bye-laws governing the working of the society and its members in relation to the affairs of the Society. Next, a false assurance cannot be said to have really jeopardised the occupant. It was for him to make sure that the Society had sanctioned his induction, that there was writing in token of this assent and that this writing was seen by him prior to moving into the premises. Unfortunate as it may be for the occupant to be compelled to leave the flat there is no alternative if he has been remiss in exercising ordinary prudence. Thus, there is no substances that the Statutory Courts have not taken into considerations the fact of the representation made by the Member and the failure of the Member to refute on oath by the making of such a representation to him, as testified to by the Occupant.
5. Also strongly canvassed, but equally misplaced, is the submission that the proceeding was of a collusion nature it is said that this is clear from the Society not claiming the relief of eviction against the Member. As said earlier, it is not mandatory to draw the interference of collusion from the fact that the relief of eviction has not been claimed against the Member. Even otherwise, there could be deferment of this extreme penalty and the Member given a chance to make amends. It cannot be said that the society in this case has only a portended and not a real interest in getting the occupant evicted. Being a Tenant Co-partnership Society, the respondent No. 1 Society is interested in seeing that the bye-laws are compiled with. A similar point arose in O.N. Bhatnagar v. Smt. Rukibai Naraindas and others, . The contention raised was negatived in the following words :---
"The contention that the respondent No. 2 society cannot raise a dispute regarding his unauthorised occupation of the premises after the revocation of the licence is devoid of substance. The respondent No. 2 Society being a co-partnership type of housing, society, having left flat No. 52 to respondent No. 1 as a co-partner tenant member, was vitally interested in ensuring that no stranger is in unauthorised occupation of the flat after the expiry of the term of the licence as it would tend to cause annoyance and inconvenience to the other co-partner tenant member of the society.......... in the present case, the society is a tenant co-partnership type housing society formed with the object of providing residential accommodation to its copartners tenant members ......... and it logically follows that whatever the society does in the normal course of the activities such as by initiating proceedings for removing an act of tresspass by a stranger from a flat allotted to one of its member 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 bye-laws framed by it, rather than a person is unauthorised occupation, as it is 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 and after the termination of the licence. It must, therefore, follow that a claim by the society together with such member for ejectment of person who was permitted to occupy having became a nominal member thereof upon revocation of licence, is dispute falling within the purview of section 91(1) of the Act".
Mr. Walalwalkar argues that the licence in the instant case did not come to an end with the expiry of 11 months period recited in the initial leave and licence agreement drawn up in May, 1969. Learned Counsel refers to the continuing payment of rent by the occupant and the Members paying car parking was enhanced charges to the Society because of the occupation of flat by the occupant. I really fail to understand how a licence for the limited duration of 11 months can be said to be extended by the conduct relied upon the Counsel. In the case of lease, the continuance can be spelt out from conduct showing a recognition of the relationship of landlord and tenant. A licence is no more than a permission to do something upon immoveable property, which, in the absence of that permission, would be unlawful. The occupation charges continued to be paid and that extra charges were recovered by the Society form the member is neither here nor there. A person continuing in occupation of the premises after the revocation of a licence, is still liable, to pay compensation of damages for continued use and occupation. The revocation or the termination of the licence by efflux of time is not revived by the licensor accepting charges which are tendered . For the continued occupation which is wrongful, the occupant is certainly liable. The label put to the payment by describing it as 'rent' does not establish a relationship of a tenant and landlord nor revive a 'leave and licence' which has come to an end by efflux of time. A licence involves two parties and inaction or silence of one is no proof of the licence having been revived. See D.H. Maniar v. Wamam Laxman Kudav, . The submission that the proper interference has could not been drawn from the failure of the member to enter the witness box does not impress me. The member could not have said anything which would have thrown a new light on the points in issue. She could have only spoken on the leave and licence agreement being for 11 months and executed way back in May 1969. This was not disputed. Even is she had admitted that she had given a false answer to the petitioners about the Society not objecting to the induction, that would not have advanced the case of the petitioner. His induction being illegal inasmuch as it contravened the bye-laws of the Society, it could not become lawful by the false assurances of the Members. The revival of the leave and licence agreement after expiry of 11 months could be done only by a written instrument. At any rate, nothing more could have been said by the member on this subject than what already came into the record. The payment of higher charges and car parking charges on account of the occupant being in occupation of the flat in dispute is ascirbable, not to the consent of the society, but the fact that the member was profiteering and thus depriving the society of what was its legitimate income. As said earlier, the society being a Co-partnership Society and was getting a profit out of it, it was but proper that the real owner should get some part of the profits, if not the entire profit accruing to the Member.
6. It is argued that the prohibition against letting out the flat to a stranger without the written consent of the Society may have been a term of membership vis-a-vis respondent No 1. That, however, was not the position in regard to the parent society. It was the bye-laws of that parent society which alone governed the position arising for consideration in this case. This was because the occupant came into possession of the flat when it was owned by the parent society and before respondent No. 1 came on the scene. This submission does not merit acceptance. The evidence shows that even the parent society was a Tenant Co-Partnership . Therefore, it also forbade the induction of stranger without the written consent of the Society. In any case, under section 17 of the Act, the amalgamation of Societies, division or conversion of a Society, does not affect any right or obligation of the Societies affected by the amalgamation, division or conversion. The courts below have held that there was a breach of the bye-laws and that this entitled the society to claim an award for eviction vis-a-vis the occupant and the relief of self-use as against the member. Alternatively, it was submitted that the contravention occurred when the parent society was in existence and that contravention furnished a cause of action of the said society. Respondent No. 1- Society cannot exploit it for obtaining relief against the petitioner. This plea is untenable. Respondent No. 1 succeeded to the right title and interest of the parent society in relation to Scheme No. 1. Therefore, it could take advantage of the breach. An attempt was made to argue that respondent No. 1 had not adopted the bye-laws of the whole society. This submission has to be negatived. It does not appear to have been seriously pressed in the courts below and the occupant cannot be permitted to raise new contentions or contentions which have been retracted in the hearing before the courts below. A number of cases have been cited in support of their rival submissions by Counsel of parties. I have already referred to the decisions relied upon by Mr. Walawalkar. On the other side are M/s. Leong v. Smt Jinabai G. Gulrajani, 83 Bom.L.R. 299, Rajendrakumar Sabhrawal v. Smt. Lila K. Jagtiani, , Sardar Ajit Singh Matahru v Sai baba Co-op Housing Society, 1978 Mh.L.J. 404 : ((1977) U.C.R. (Bom) 471). Kamla Gobindram Buxani v. Badri Prasad Pande, reported in 76 Bom.L.R. 764, apart from the cases of O.N. Bhatnagar and already referred to. It is not necessary to burden this judgment by citing the ratios of these cases and the unreported judgements which have been utilised by the Counsel during the hearing. In Contessa Knit Weare v. Udyog Mandir Co-op Housing Society, , virtually all the contentions that have been urged in the present case were taken and dealt with. At para 12 were observations that in Co-operative Housing Societies, bye-laws normally bar letting out of premises given to the members without the written permission of the Society. It was possible that quite a number of allottees or members of Co-operative flats were misusing the law in order to profiteer. This, though regrettable, was not something the Court could redress. It was for the Legislature to consider amending the Law further, so as to eliminate the malpractices. This was quite apart from the fact that licence-tenants entered into these transactions with eyes open to this legal position, and thus, not having the right to seek relief on the ground of hardship. Again, it was laid down that a society could evict the member and any person unauthorised inducted by him in breach of the bye-laws. That this could not benefit the member was not relevant nor proof of collusion. The transactions between the member and the occupant could in appropriate cases exclude section 91 of the Act. But if it was the Society's rights which had been breached and if the society acted to redress the situation, section 91 of the Act was attracted and the claim thereunder could not be resisted by the occupants. Having regard to the various authorities. I hold that none of the contentions put forth on behalf of the occupants enable him to resist the claim put forward by the society. The award passed against him and confirmed by the Appellant Court, is good in law and has to be sustained. Having regard to the position of the petitioner i.e. widow of the occupant, I think it will be fair to leave parties to bear their own costs. Hence the order.
ORDER Petition dismissed, Rule discharged. Costs in this Court as incurred. Interim stay of the execution of the award granted at the time of admitting the petition shall continue in force for a period of two months as from today so as to enable petitioner to move a higher Court if she so desires. Petitioner to give the usual undertaking within two weeks from today.