SANWARMAL KEJRIWAL versus VISHWA COOPERATIVE HOUSING SOCIETY LTD. & ORS.

Citation: [1990] 1 S.C.R. 862 · Decided: 08-03-1990 · Supreme Court of India · Bench: K. JAGANNATHA SHETTY · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
SANWARMAL KEJRIWAL 
v. 
VISHWA COOPERATIVE HOUSING SOCIETY LTD. & ORS. 
·~ 
MARCH 8, 1990 
B 
[K. JAGANNATHA SHETIT AND A.M. AHMADI, JJ.) 
Bombay Rents, Hotels & Lodging House Rates Control Act, 
~. 
1947: Section 15A-Licensee occupying flat in cooperative Housing 
Society-Whether entitled to statutory protection of Rent Act? 
c 
Maharashtra Cooperative Societies Act 1960: Section 91(1)-Can 
licensee occupying flat in a tenant co-partnership society be evicted? 
The question for determination is, can a licensee occupying a flat 
in a tenant co-partnership society be evicted therefrom under sub-
>.--. 
section (1) of section 91 of the Maharashtra Cooperative Societies Act, 
D 1960 notwithstanding the protection extended by Section ISA of the 
Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 as 
amended .bY Act XVII of 1973 or whether such proceedings would be 
governed by Section 28 of the Rent Act? 
The appellant licensee was in actual possession of the flat on Isl 
·~ 
February 1973 under a license without the express permission of the 
E Society. He was let in, in 1957 by one D.P. Kejriwal who was looking 
after the flat originally allotted to one Laxmi Devi Kejriwal in 1949. She 
gifted her interest as allottee member to her brother who in turn trans-
ferred his interest therein to his brother Hari Kumar Sharma, respon-
.,. 
dent No. 2, in July 1967. Even after this transfer D.P. Kejriwal 
y 
F continued in management of the flat till 1979 when he received a letter 
from Respondent No. 2 claiming ownership of the flat. The appellant 
thereafter r.ted an interpleader suit. On disposal of the said suit 
-...; 
Respondent No. 2 deposited a sum of Rs.5,500 with Respondent No. I, 
the Society, towards the cost of the Society to initiate proceedings for 
eviction of the appellant from the flat in question under Section 91(1) of 
G the Societies Act. The appellant contended that the proceeding under 
section 91(1) was not competent as the document of leave and licence in 
fact created a lease. Alternatively, as he was in actual possession under a 
subsisting license right from 1957 to lst February 1973, he was a statu- >-
tory tenant under section 15A of Bombay Rent Act and the Cooperative 
Court had no jurisdiction under section 91 (I) of the Societies Act and 
H the proper court was one under section 28 of the Rent Act which the 
Respondent No. 2 had in fact approached. 
862 
S. KEJRIW AL v. HOUSING SOCIETY 
863 
The Co-operative Court passed au ejectment order against the 
A 
appellant. The appellant ided an appeal under section 97 of the 
Societies Act to the State Co-operative Appellate Court, Bombay. The 
appellate court dismissed the appeal and confirmed the order of the 
Co-operative Court. Feeling aggrieved by the concurrent findings of the 
two courts the appellant preferred a Writ Petition in the High Court of 
Bombay. The Writ Petition was also dismissed. 
B 
While allowing the appeal and setting aside the judgments of all 
the Courts below and directing that the claim application ided under 
section 91(1) of the Societies Act shall stand dismissed, this Court, 
HELD: The appellant was and is a protected tenant under section 
ISA of the Rent Act. The proceedings initiated under section 91(1) of C 
the Societies Act cannot in the circumstances succeed as the Society has 
....l_ 
failed to prove the fact of trespass which constituted 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. [883B-C] 
D 
The Societies Act, section 91(1), confers jurisdiction on the Co-
operative Court while section 28 of the Rent Act confers jurisdiction on 
---"" 
the Court of Small Causes, Bombay. [88IB] 
'r 
The Status of a tenant is conferred on him by law as the legislature 
E 
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 be determined by the machinery, if any, provided by the 
law conferring the right. [88IG-H] 
Notwithstanding the absence of privily of contract between the 
F 
owner-landlord and the licensee-protected tenant the latter cannot be 
evicted except in accordance with the provisions of the Rent Act. [882B] 
Chandavarkar Sita Ratna Rao v. Ashalata S. Gurnam, [1986] 4 
SCC 447 at 478; Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, 
[1975] 2 SCC 105; Hin

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