SABHARWAL BROTHERS & ANOTHER versus SMT. GUNA AMRIT THANDANI OF BOMBAY

Citation: [1973] 1 S.C.R. 53 · Decided: 29-03-1972 · Supreme Court of India · Bench: G.K. MITTER · Disposal: Appeal(s) allowed

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Judgment (excerpt)

• 
A 
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c 
D 
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F 
G 
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SABHARWAL BROTHERS & ANOIBER 
v. 
SMT. GUNA AMRIT THANDANI OF BOMBAY 
March 29, 1972 
[A. N. GROVER AND G. K. MITTER, JJ.] 
53 
Cooperative Society-Flat sold to member by Society--Member letting 
our. fiat to another member-Dispute between landlord and tenant. as to 
continuance of tenancy-Such dispute whether touches business of society-
Whethtr can be referred to Registrar for adiudicafion under s, 91(1) (b) 
of MM1arasntra Cooperatives Societies Act 1960 (24 of 1961). 
The respondent was the owner of the tlat on the second floor Of a 
Bulldlna in Bombay. She Wiii a member of a Co·operative Housina Society 
and hacl acquir.ed the llat from that 8ociety. 
ln 1!159 she had put the 
appellant in pouesslon of the tlat for a period of 11 months on payment ol 
Rs. SlO/· per month. 
According to the Written agreement the possession 
was given on leave and licence basis. The governmen~ was signed by one 
of the partners of the appellant firm '' f10 also became members of the 
said Cc>op»rative Society. 
The agreement was renewed until 25th Octo-
ber, 1962 when the first respondent asked the appellants to vacate pos-
session on the ground that she required the fiat for personal occupation. 
As thi• was not co,mplied with she filed a statement of claim before the 
Registrar of Co-operative Societies on the ground that there was a dispute 
within the meaning of s. 91 (I) of the Maharashtra Co-operative So-
.cicties Act. · The R·~gistrar rcfeITcd the chse to a nominee whose juris~ 
diction was challenged by the appellants. 
Nevertheless the proceedings 
before the nominee 
v.1~nt on for some time and on July 3, 1964 the 
nominee made an award to the effec~ that the appellants Were occupying 
the flat on leaye ancl licence basis. 
The appellants, anticipating the 
award, filecl a. suit in the Court of Small Causes Bomb.ay stating that they 
were in occupation of the tlat as tenants and as such entitled to pro-
tection under the Bombay Rent Act, 1947. The Small Causes Court held 
that the suit was· maintainable and answered the other preliminary issues 
in favour of the plaintiff. 
In revision the bench of the Small Causes 
Court held that the Reg;strar's nominee did have jurisdiction to try the 
dispute between the parties and remanded the proqJedings to the tri&I 
court for disposal of the suit after deciding an is':iue as to res judicata 
by reason of the award of the nominee. The High Court up-held the 
order of the bench. In this Court the questions that fell for consideration 
were (I) Whether there was any dispute between the parties touching 
the business of the co-operative society which could be decided by the 
Registrar or referred by him to a nominee for disposal and (2) Whether 
the suit filed in tho Smoli Causes Court was maintainable having regard 
to the nature of the relief sought. 
Adowing the appeal. 
HELD: (i) No tloubt it was a busine's of the society to let out 
premises and a member had no unqualified right to let out his tlat or 
tenement to another' by virtue of the bye-laws and a oreach of the bye-
laws could affect the defaulting member's right to membership. 
But 
. 
I 
HELD : (i) No doubt it was a business of the society to let out 
touch the business of the society whiclh included inter alia the trade of 
huylng. s.elling, hiring and letting land in accordance \\'ith .co-opefativc 
principles. The letting of flat by respondent No. 1 was a transaction of 
54 
SUPREME COURT REPORTS 
[ !') 73] 1 S.C R. 
the s:.ime nature as the "Society itsr.!lf was empowered to enter into but 
such letting out itself did not concern the business of the society in 
the n1atter of its letting out fiats. 
There was nothing to sho\v that such 
Jetting would effect the business of the society once ii had sold the flat 
to the respon&ent No. I. The position might have been different if the 
latter had himself been a tenant of the fiat under the society. "To 
touch" means "to come in contact with" and it did nQ.t appear that there 
was a point of contact between a letting by the respondent No. 1 and the 
busine.s of the society when the society was not itself th,e land lord of 
the fiat. f57D·G] 
· 
(ii) As observed by this Court in an earlier case the Bombay Rent 
Act and the Maharashtra Cooperative Societies Act can be harmonised 
best by holding that in matters covered by the Rent Act, its provisions 
rather than thC provisions of the Co-operative Societies Act, should apply. 
' 
~~ 
Deccan Merc

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