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Rent Control and Eviction:Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947; Ss. 5(11), 15, 15(A) and 28/Tenancy Regulations 4 and 241 Maharashtra Co-operative Societies Act. 1960; Ss. 2, 22, 23, 29, 31, 41, 91, 93 and 143/Maharashtra Co-operative Societies Rules, 1961; Rr.8, 10 & 28/Bye-Laws of the Society; Bye-Laws 2, 7, 12 & 64:Eviction - Member-allottee of a flat from a Co-operative Housing Society inducting tenants-Filing of declaratory suits by tenants - Dismissed by Small Causes Court - Appeal allowed by appellate Bench of Small Causes Court holding that appellants were inducted as tenants in the premises in question - Society raising a dispute before Co-operative Court praying/or eviction of tenants and for handing over possession to allottee of the flat - Co-operative Court making an award in favour of the Society by passing an order of eviction against the tenants - Challenged by tenants - Order of appellate bench of Small Causes Court challenged by allottee - Single Judge of High Court allowed writ petition filed by the allottee dismissing the writ petition filed by the tenants-Affirmed by Division Bench of High Court - Held: Although allottee not de jure owner of flat, infact he enjoys all rights which an owner enjoys including right to transfer the property subject to fulfilment of certain conditions - Since allot tee is not tenant, he could not create sub-tenancy - He may not be a owner in the eye of law but could still be a landlord within the meaning of Rent Act - Since creation of tenancy is infraction of mandatory provisions u/s. 29(2) of the Societies Act, transaction between allottee and tenant in question voidable - Thus, relationship of landlord and tenant not duly created - Hence, appellants cannot claim protection under the Rent Act and petition u/s.91 of the Societies Act maintainable - The question regarding legality of creation of tenancy right by member in favour of tenants, which amounts to transfer of interest could be decided by raising a dispute before Co-operative Court - Under the circumstances, High Court was right in not interfering with the order passed by appellate Court - Constitution of India, 1950 - Article 226. Words and Phrases:'Society', 'bye-laws', 'housing society', 'member', 'nominal member' and 'prescribed' - Meaning of in the context of Maharashtra Cooperative Societies Act, 1960. Respondent No.1 was a tenant co-partnership housing society constructing flats and respondent No.2 was admitted as member of the Society in the year 1962 and a flat was allotted to him. He inducted appellant No.1 in a room of the said flat on a certain monthly rental and later he was inducted in another room as well on certain additional monthly rental. Thereafter, another tenant, appellant No.2; was also inducted in yet another room of the flat in question on certain monthly rental. Respondent No.2 had accepted the rent up to December, 1986. Thereafter, appellants sent rent by Cheques, but the same was not accepted by him. Since, appellants were asked to vacate the premises in question, they had filed declaratory suits in the year 1987 before the Small Causes Court for a declaration that they were inducted as tenants in the premises in question. Respondent No.2 contested the claim of the appellants. Both the suits were dismissed by the trial Court. Appeal preferred by the appellants before the appellate bench of Small Causes Court was allowed by the Court holding that they were inducted as tenants in the premises in their occupation. In the meantime, respondent No.1 raised a dispute before the Cooperative Court under Section 91 of the Maharashtra Cooperative Societies Act, 1960 praying for eviction of the appellants from the premises. The Cooperative Court by its award decided the dispute in favour of respondent No.1, passing an order of eviction against appellants and directed respondent No.2, member to occupy the premises. The order was affirmed in appeal by the Appellate Court. Later, before the High Court three writ petitions were filed, one by the appellants and the other two writ petitions by respondent No.2 against the order passed by the appellate bench of the Small Causes Court. A Single Judge of the High Court, by a common judgment, dismissed the writ petition filed by the appellants and allowed the writ petitions filed by respondent No.2. The said judgment was upheld by Division bench of the High Court. Hence the present appeals. Appellant-tenants contended that respondent no. 2 in his capacity as member of the housing society-has a possessory right in the premises in question and the Society was only, by way of legal fiction, owner of the said premises; that there was no relationship of landlord and tenant between the Society and the member and there was such a relationship existed between the member and the appellants, as such, they were entitled to claim protection under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947; that the proceeding under S. 91 of the Societies Act was not maintainable in view of the bar incorporated under S. 28 of the Rent Act; that the Society was not justified in contending that there was relationship of landlord and tenant between the Society and the member and consequently the appellants cannot be said to be subtenants of the member as creation of sub-tenancy was forbidden under S.15 of the Rent Act unless there was contract to the contrary, which was not so in the case on hand and, consequently such a subtenant cannot be treated to be a tenant within the meaning of S. 5(11) of the Rent Act; and that the tenancy right could be created by the member as the transfer by him of his right in the premises was not forbidden in law.Respondent-Society submitted that the relationship between the Society and respondent No.2, as would appear from Bye-Laws of the Society as well as Regulations, was that of landlord and tenant in respect of the premises held by the Society and the member purported to create right of a sub-tenant in the appellants which was, in the absence of any contract to the contrary, forbidden by S. 15 of the Rent Act, as such the appellants having not acquired the status of a tenant within the meaning of the Rent Act, cannot claim protection thereunder from eviction; that asking the Society to first seek such a declaration from a competent civil court and thereafter raise a dispute under Section 91 of the Societies Act would frustrate the very object of the Societies Act; that as the appellants had already filed suits before the Small Causes Court for a declaration that their status was that of tenants under the Rent Act and it was open to the Society to raise the question that the relationship of landlord and tenant was not duly created; and that as the relationship of landlord and tenant was not duly created, the appellants could not claim protection of the Rent Act and the petition under Section 91 of the Societies Act was maintainable as the dispute raised was touching upon business of the Society. |
