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The appellant raised several defences, two of which may be noticed. He firstly contended that the so-called document of leave and licence in fact created a lease and, therefore, the proceeding under Section 91(1) of the Societies Act was not competent. Secondly he contended that even if it is assumed that the relationship was of a licensor and a licen- see under the deed, since he was in actual occupation and possession of the flat in question under a subsisting li- cence right from 1957 to 1st February, 1973 he was a statu- tory tenant under Section 15A of the Rent Act and was, therefore, entitled to protection from eviction till a competent court granted eviction on any of the grounds set out in Sections 12 or 13 of the Rent Act. He, therefore, contended that the Cooperative Court had no jurisdiction under Section 91(1) of the Societies Act and the proper court to approach was the one under Section 28 of the Rent Act, which the respond- ent No. 2 had in fact approached.

The Cooperative Court came to the conclusion that the relationship created under the document of leave and licence was that of a licensor and a licensee. On the question of tenancy under Section 15A the Court concluded as under:

"So far as second part of the issue regarding opponent No. 2 contending to be tenant of opponent No. 1 is concerned, the opponent No. 1 in his evidence has mentioned to the effect that after his becoming a member of the society he initially accepted the opponent No. 2 as his licensee and allowed him to occupy the suit flat temporarily on his promise to vacate when required by opponent No. 1. He has further stated that he filed the case in the Small Causes Court for ejectment of opponent No. 2 in his own right as advised by his Advocate in that case. He has also stated that he accepted Opponent No. 2 as his tenant because after 1.2.1973 there is change in law and so he had to accept opponent No. 2 as his tenant. In view of this evidence I have to give a finding in the affirmative in respect of part of the issue whether opponent No. 2 proves that he is a tenant of opponent No. 1".

"Where the interest of a licensor who is a tenant of any premises is determined for any reason, the licensee, who by .. Section 15A is deemed to be a tenant, shall, subject to the provision of this Act, be deemed to become the tenant of the landlord, on the terms and conditions of the agree- ment consistent with the provisions of this Act".

The Courts below have come to the conclusion that the appel- lant was a tenant of respondent No. 2 by virtue of Section 15A of the Rent Act since he was in actual occupation of the flat on 1st February, 1973. Having recorded the relationship of landlord and tenant between the member, respondent No. 2, and the occupant-appellant, the courts below took the view that as there was no such jural relationship between the society and the occupant, the society was entitled to evict the occupant from the flat in question by taking recourse to Section 91(1) of the Societies Act as the dispute between the society, its member and the occupant claiming through the member was essentially one touching the business of the society. In other words according to the courts below while the member could not evict the occupant except through proceedings initiated under the Rent Act, the society was free to evict the occupant, without dis-continuing the membership of the licensor, by virtue of Section 91(1) of the Societies Act. There is, according to the courts below, no conflict between Section 91(1) of the Societies Act and Section 28 of the Rent Act because in order to attract the latter provision it must be shown that the relationship between the society and the occupant is that of a landlord and a tenant or a licensor and a licensee who is entitled to the benefit of Section 15A of the. Rent Act. Unless such a relationship is established, the society cannot be precluded from initiating eviction action under Section 91(1) of the Societies Act against an occupant with whom it has no privi- ty of contract, notwithstanding the fact that he was induct- ed in the flat by the member-allottee, albeit contrary to the regulations and bye-laws of the society, and by passage of time a relationship of landlord and tenant has developed between the two by virtue of Section 15A of the Rent Act. What impelled the legislature to introduce Section 15A and the related provisions on the statute book by Act XVII of 1973? The acute paucity of accommodation, particularly in urban and metropolitan centres, is of common knowledge. Section 15 of the Rent Act initially prohibited sub-letting. Despite this prohibition sub-letting took place on a large scale because of non-availability of rented premises. The legislature had to face this hard reality and was required to extend protection to such sub-tenants when they were threatened with evic-

It was contended by the learned counsel for the appel- lant that Section 15A was inserted in the Rent Act to serve a dual purpose namely (1) to curb exploitation of licensee and (2) to provide security of tenure. If the view taken by the Courts below in the name of maintenance of the 'distinctive mutuality' principle is endorsed, the very purpose of the amendment, argued counsel, would be defeated. He pointed out that in the State of Maharashtra the cooperative movement had taken rapid strides and the legislature was aware that a large number of licen- sees were in occupation of flats situate in Cooperative Societies. It must, therefore, be assumed that the legisla- ture desired to extend the protection of the Rent Act to such licensees also by bringing them within the scope of Section 15A of the Act. In support of this contention he placed strong reliance on the decision of this Court in Hindustan Petroleum Corporation Limited (supra). This sub- mission was countered by the learned counsel for the society and the member on the plea that the Courts below had rightly concluded that the jurisdiction of the Cooperative Court under Section 91(1) of the Societies Act was not ousted because there was no jural relationship of landlord and tenant between the society and the appellant. According to them if non-members could be inducted in tenements or flats belonging to a Cooperative Housing Society of the present type, the entire housing movement would become redundant and the object of forming such cooperative housing societies would be totally defeated. Therefore. submitted the learned counsel, even if it is assumed that the appellant had ac- quired the status of a tenant by virtue of Section 15A of the Rent Act, the protection extended by the said provision would extend to the licenser-member only and not to the society. In this connection strong reliance was placed on the decision of this Court in O.N. Bhatnagar's case (supra) which has been referred to and relied on in four subsequent decisions namely, M/s A.V.R. And Co. & Others v. Fairfield Cooperative Housing Society & Others, [1988] 4 SCC 408; Sardar Mohan Singh Ahluwalia v. Maitrai Park Co-operative Housing Society and Another, [1988] 4 SCC 416; Hindustan Thompson Associates Ltd. v. Mrs. Maya Inderson Israni & Others, [1988] 4 SCC 745 and Smt. Krishna Rajpal Bhatia v. Miss Leela H. Advani and Others, [1989] 1 SCC 52. Five decisions were rendered by a Division Bench of this Court (A.P. Sen & B.C. Ray, JJ.) on a single day i.e. 19th September, 1988 on the question of applicability of Section 91(1) of the Societies Act. In four of those cases, namely, A.V.R. & Co. & Others; Sardar Mohan Singh Ahluwalia; Hindu- stan Thompson Associates Ltd. and Smt. Krishna Ralpal Bha- tia, this Court on facts took the view that the applicabili- ty of Section 91(1) of the Societies Act could not be as- sailed. In all those four cases the Court came to the con- clusion that the licence was terminated before 1st February, 1973 and, therefore, the occupant could not be said to be in occupation of the flat under a subsisting licence on 1st February, 1973 and hence Section 15A of the Rent Act had no application. In such a fact-situation this Court rightly took the view that Section 28 of the Rent Act was not attracted and hence the society was entitled to seek eviction under Section 91(1) of the Societies Act. In Bhatnagar's case the occupant was inducted in the flat on leave and licence basis after the Society had accepted him as a nominal member. But his li- cence was terminated by a notice dated 31st March, 1965 and thereafter his occupation was no more under a subsisting licence to entitle him to the protection of Section 15A of the Act. In the case of A.V.R. & Co. also the licensee's claim for deemed tenancy was rejected on the ground that the licence had expired long before 1st February, 1973 and had not been renewed since then. The Court, therefore, came to the conclusion that the licence was not in occupation of the flat under a subsisting licence on 1st February, 1973 and, therefore, the benefit of Section lSA could not be extended to him. In the case of Sardar Mohan Singh Ahluwalia also the Court found that as a matter of fact there was no subsisting licence on 1st February, 1973 to attract the application of Section 15A of the Rent Act. In Hindustan Thompson Associ- ates Ltd. the facts disclosed that the licence was terminat- ed by the member on 1st October, 1972 and the occupant was called upon tO vacate the premises. It was, therefore, held that since the subsequent occupation of the flat by the occupant was not under a subsisting licence his occupation was in the nature of a trespasser and hence Section 15A had no application. The Court, therefore, concluded that evic- tion proceedings could be commenced against him under Sec- tion 91(1) of the Societies Act. In the last mentioned case of Srnt. Krishna Rajpal Bhatia the court found that the agreement in question created the relationship of a licensor and a licensee and the licence had in fact been terminated by a notice dated 21st May, 1969 and, therefore, the occu- pant was a mere trespasser when the action was commenced under Section 91(1) of the Societies Act and was not enti- tled to the benefit of Section 15A of the Rent Act. It can, therefore, be seen that the aforesaid 5 decisions on which considerable reliance was placed by the learned counsel for the Society and its member can be distinguished on facts inasmuch as in all those cases the finding of fact recorded throughout was that the licensee was not in occupation of the premises in question under a subsisting licence on 1st February, 1973 to invoke the protection of Section 15A of the Rent Act.