LexSMT. KRISHNA RAJPAL BHATIA & ORS. versus MISS LEELA H. ADVANI & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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SMT. KRISHNA RAJPAL BHATIA & ORS.
v.
MISS LEELA H. ADV ANI & ORS.
SEPTEMBER 19, 1988
[A.P. SEN AND B.C. RAY, JJ.]
Maharashtra Cooperative Societies Act, 1960--Section 91 Chal-
lenging order of eviction from premises in dispute, under section 91-
0n the grounds that the agreement between the parties was one of lease
and not licence.
By an agreement dated 1st January, 1964, the disputant, a tenant
Co-partner member of a Cooperative Housing Society, permitted
appellants' father the user of her Oat. On a joint application by both the
parties, the Society granted permission for his occupying the Oat on
terms of leave and licence. The disputant later made a claim under s. 91
D of the Maharashtra Cooperative Societies Act, 1960 ('the Act') before the
District Deputy Registrar for his eviction. The claim for eviction was
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· resisted by him on the ground that the transaction between the parties
was one of lease and the Registrar had no jurisdiction to enter upon the
reference under section 9 I. It was held that the parties stood in the jural
relationship of landlord and tenant and the dispute did not touch upon
business of the Society within the meaning of s. 91. Aggrieved, the
disputant carried an appeal to the Maharashtra State Cooperative
Appellate Tribunal. The Tribunal remanded the case for a fresh deci-
sion on the question whether the disputant was a tenant co-partner
member or a tenant owner member, as the society was held to be a
mixed type of society of both tenant co-partner members and tenant
owner members. On remand, the Judge, First Cooperative Court
recorded a finding th'\t the Society was a tenant Co-partnership type of
society and the disputant was only a tenant co-partner member. There-
after the dispute came up for adjudication before the said Judge. The
Judge rendered an award holding that after the termination of the
licence the possession of appellants' father was wrongful, and directing
him to vacate and hand over possession of the Oat. He went in appeal
before the Maharashtra State Co-operative Appellate Tribunal but
without avail.
Dismissing the appeal, the Court,
HELD: The agreement between the parties was embodied in the
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SMT. K.R. BHATIA v. MS. L.H. ADVANI
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usual standard form of an agreement for leave and licence. The parties
to the agreement were bound by the terms thereof. There was nothing
to suggest that the agreement for leave and licence was merely a device
to camouflage the real nature of the transaction, viz., creation of a
tenancy, which would clearly be against the bye-laws of the society. The
disputant, the licensor, was only a tenant co-partner member and all
that she could do under the terms of the bye-laws was to create a licence
with the permission of the society by making the licensee to be a
nominal member thereof. The matter is directly covered by the decision
of this Court in O.P. Bhatnagar v. Smt. Rukibai Narsindas, [1982]
3 SCR 681. [67C-E]
The Society was purely a tenant co-partnership type of housing
society consisting only of tenant co-partner members and there were no
tenant owner members in the society. In view of the subsequent change
brought about by the amendment of the bye-laws, there was no question
of the disputant being regarded as a tenant owner member. The Appel-
late Court and the Judge of the First Cooperative Court rightly held her
to be a tenant Co-partner member. The appellant's father having been
inducted into the premises under the terms of the agreement for leave
and licence could not say that the disputant was a tenant owner member
and not a tenant co-partner member or that the transaction was one of
lease and not licence. [68G; 690-E]
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Sabharwal Brothers v. Smt. Guna Amrit Thandani, [1973] l SCR
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53 and Ramesh Himmatlal Shah v. Harsukh Jadhavji Joshi, [1975]
Suppl. SCR 270, distinguished.
O.P. Bhatnagar v. Smt. Rukibai Narsindas, [1982] 3 SCR 681;
Dr. Manohar Ramchandra Sarfare v. The Konkan Co-operative Hous-
ing Society Ltd. & Ors., AIR 1962 Born. 154, I.R.; Hingorani v.
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Pravinchandra, (1966-67) Born. LR 306; Contessa Knit Wear v. Udyog
Mandir Cooperative Housing Society, AIR (1980) Born. 374 and
Bandra Green Park Co-operative Housing Society Ltd. & Anr. v. Mrs.
Dayadasi Kalia & Ors., AIR 1982 Born. 428, referred to.
CIVIL APPELLATE JURISDICTlON: Civil Appeal No. 1945
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of 1984.
From the Judgment and Order dated 16.12.1983 of the BombaExcerpt shown. Read the full judgment & AI analysis in Lexace.