ivil Appeal No 1369 of 1990
From the Judgment and Order dated 1661989 of the Bombay High Court in WP No 2513 of 1989
Anil B Diwan YR Naik section Thananjayan and KR Choud hary for the Appellant
Dr YS Chitale YT John CV Francies CV Rappai 3
Prakash and VK Purwani for the respondents
The Judgment of the Court was delivered by AHMADI J
Special leave granted
Can a licensee occupying a flat in a tenant co partner ship society be evicted therefrom under Sub Section 1 of Section 91 of the Maharashtra Co operative Societies Act 1960 Act No XXIV of 1961 hereinafter called the Socie ties Act  notwithstanding the protection extended by Sec tion 15A of the Bombay Rents Hotels  Lodging House Rates Control Act 1947  Act No LVII of 1947 hereinafter called the Rent Act  as amended by Act XVII of 1973 or whether such proceedings would be governed by Section 28 of the Rent Act That is the question which arises for our determination in he context of the fact that the appellant licensee claimed to be in actual possession of the flat on 1st February 1973 under a subsisting licence albeit without the express permission of the society
The actual matrix in which this question needs to be answered may be briefly stated as under The Vishwa Co operative Housing Society Ltd respondent No 1 hereinafter called the Society  was registered sometime in 1948 ruder the provisions of the Bombay Co operative Societies Act 1925 and is deemed to be registered by virtue of Section 1662 under the present Societies Act
On 2nd March 1949 one Laxmi Devi Kejriwal was admitted to the membership of the society and was allotted Flat 865 No 25 of the multi storeyed building known as Vishwa Mahal  situate on C Road Churchgate Bombay 20
The said Laxmi Devi gifted her interest as the allottee member of the society to her brother Ambica Prasad Sharma of Udaipur
One DP Kejriwal who was looking after this flat inducted the appellant therein wef
1st June 1957 under a leave and licence agreement on a licence fee of Rs400 per month
While the appellant was in actual occupation of the flat the allottee member Ambica Prasad Sharma transferred his interest therein to his brother Hari Kumar Sharma respond ent No 2 sometime in July 1967
The said respondent was admitted to the membership of the society on 15th July 1967
It appears that even after this transfer DP Kejriwal continued in management of the flat and collected and re ceived the licence fee from the appellant till the middle of 1979 when he received a letter from respondent No 2 claim ing onwership of the flat
The appellant then filed an interpleader suit in the Court of Small Causes Bombay seeking a direction to whom he should pay the rent for the flat occupied by him
This interpleader suit was disposed of on 21st June 1983
Immediately thereafter respondent No 2 deposited Rs5500 on 28th June 1983 with respondent No 1 society towards the society s cost to initiate proceedings for eviction of the appellant from the flat in question under Section 911 of the Societies Act
Two days later the respondent No 2 filed a suit for the eviction of the appel lant from the flat in the Court of Small Causes Bombay
After respondent No 2 deposited Rs5500 the society passed a resolution on 5th July 1983 to initiate proceed ings under Section 911 of the Societies Act for the evic tion of the appellant from the flat in question
Thereupon the society served the appellant with a notice to quit dated 11th July 1983 and thereafter instituted the action under Section 911 of the Societies Act
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 911 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 911 of the Societies Act and the proper court to approach was 866 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 121973 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
In other words the Cooperative Court came to the conclusion that the appellant was a tenant of respondent No 2 under Section 15A of the Rent Act since he was in occupation of the flat on 1st February 1973
After finding the appellant to be a tenant of respondent No 2 under section 15A the Cooperative Court proceeded to observe as under Now regarding the effect of findings on the parts of issue No 2 as mentioned hereinabove the position in law is quite clear that even though the non member occupant could at best be regarded as tenant of member he cannot be deemed as tenant of the society because the society does not fall within the definition of the term landlord under the Rent Act
The Cooperative Court therefore came to the conclusion that the society could maintain an action under Section 911 of the Societies Act notwithstanding the fact that the occupant was a tenant under Section 15A of the Rent Act qua the member allottee
In this view the 867 Cooperative Court passed an ejectment order against the appellant and ordered that the member shall personally occupy the flat in question within 15 days from the receipt of possession thereof
The appellant feeling aggrieved by this order filed an appeal under Section 97 of the Societies Act to the Maha rashtra State Cooperative Appellate Court Bombay being Appeal No 206 of 1988
The said appeal was dismissed with costs on 22nd December 1988
The appellate court also took the view that regardless of the relations between the occu pant of the flat and the member allottee the society was entitled to maintain an action under Section 911 of the Societies Act since there was not and there could not be any relationship of landlord and tenant between the society and the occupant
It accordingly confirmed the order passed by the Cooperative Court
Feeling aggrieved by the concurrent findings recorded by the said two courts the appellant preferred writ petition No 25 13 of 1989 in the High Court of Judicature at Bombay
The said writ petition was summarily dismissed on 16th June 1989 but by a speaking order
The learned Singe Judge while dismissing the writ petition observed as under It has now been repeatedly held by the Supreme Court that the protection even though available to the occupier against member of the cooperative society such protection cannot be claimed against a housing society
A reference to the deci sion in ON Bhatnagar vs Rukibai Narsindas reported in   is sufficient
The decision of this Court in Hindustan Petroleum Corpora tion Limited vs Shyam Cooperative Housing Society  was distinguished as not laying down any proposition that a licensee is entitled to take advantage of Section 15A of the Rent Act even against the society
So stating the learned Judge dismissed the writ petition
That is how the appellant is before us by special leave
Section 911 of the Societies Act insofar as relevant for our purposes reads as under Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitu 868 tion    management or business of a Society shall be referred by any of the parties to the dispute   to the Cooperative Court if both the parties thereto are one or other of the following a a society   b a member past member or a person claiming through a member past member or a deceased member of the society Sub section 3 reads as under Save as otherwise provided under sub section 2 to Section 93 no court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub section 1 Sub section 2 of Section 93 lays down that Notwithstanding contained in this Act the Cooperative Court may if it thinks fit suspend any proceedings in respect of any dispute if the question at issue is one involving complicated questions of law and fact until the question has been tried by a regular suit instituted by one of the parties or by the society
Sub section 1 of Section 99 which begins with a non ob stante clause gets attracted if there arises any dispute touching the business of a society
Such a dispute can be referred to a Cooperative Court if both parties to the dispute are one or other of those enumerated in clauses a to e thereof
These include a society a member or a person claiming through a member or a past member or a deceased member
The dispute in the present case is between the society its member and appellant a person stated to be one claiming through the present member or the past member
The crucial question which arises is whether the dispute or controversy between the parties can be said to be one touch ing the business of the society
If yes the Cooperative Court alone will have jurisdiction since the jurisdiction of every other court is ousted by virtue of Sub section 3 of Section 91 except for the limited purpose stated in sub section 2 of Section 93 of the Societies Act
869 Under bye law No 2 the objects of the society are inter alia to carry on trade of building buying selling hiring letting and developing land on cooperative principles
Regulation 4 in Form A provides that no tenant member shall assign under let vacate or part with the possession of the tenement or any part thereof without the previous consent in writing of the society
Bye law 7A lays down that an outsid er non member can be allowed to take advantage of the mem ber s flat only on production of a written confirmation of the member before the society and on the society thereupon admitting such member as a nominal  member of the society
Admittedly in the present case no written permission of the society was obtained either by the member or by the appel lant before the latter was put in possession of the flat in question nor was any request made to the society to admit the appellant as a nominal member
It was therefore con tended on behalf of the society that the entry of the appel lant in the flat in question was clearly in violation of Regulation 4 and bye law 7A adverted to above and there fore the dispute was clearly one touching the business of the society attracting Section 911 of the Societies Act
The appellant s challenge as pointed out earlier can be said to be two fold namely 1 the dispute between the appel lant and the society cannot be said to be in any manner related to the business of the society and 2 since the jural relationship between the member and the appellant was admittedly of landlord and tenant the jurisdiction of the Cooperative Court under the Societies Act was clearly barred by virtue of Section 28 of the Rent Act which is a special statute dealing with landlord tenant relationship
The Rent Act was enacted to amend and consolidate the law relating to the control of rents and repairs of certain premises of rates of hotels and lodging houses and of evictions and also to control the charges for licence of premises etc
Section 15A which was inserted by amending Act 17 of 1973 provides as under 15A1 Notwithstanding anything contained in this Act or anything contrary in any other law for the time being in force or in any contract where any person is on the 1st day of February 1973 in occupation of any premises or any part thereof which is not less than a room as a licensee he shall on that date be deemed to have become for the purposes of this Act the tenant of the landlord in respect of the premises or any part thereof in his occupation
The expression licensee  is defined in sub section 4A of Section 5 as under 870 54A licensee  in respect of any premises or any part thereof
means the person who is in occupation of the prem ises or such part as the case may be under a subsisting agreement for licence given for a licence fee or charge and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co operative housing society registered or deemed to be regis tered under the Maharashtra Co operative Societies Act 1960 but does not include a paying guest a member of a family residing together a person in the service or employ ment of the licensor or a person conducting a running business belonging to the licensor for a person having any accommodation for rendering or carrying on medical or para medical services or activities in or near a nursing home hospital or sanatorium for a person having any accommoda tion in a hotel lodging house hostel guest house club nursing home hospital sanatorium dharmashala home for widows orphans or like premises marriage or public hall or like premises or in a place of amusement or entertainment or like institution or in any premises belonging to or held by an employee or his spouse who on account of the exigen cies of service or provision of a residence attached to his or her post or office is temporarily not occupying the prem ises provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increases for such premises and any additional sum for services supplied with such premises or a person having accommodation in any premises or part thereof for conducting a canteen creche dispensary or other services as amenities by any undertaking or insti tution and the expressions licence  licensor  and pre mises given on licence  shall be construed accordingly
The definition of a landlord  in Section 53 includes in respect of a licensee deemed to be a tenant by Section 15A the licensor who has given such licence
Similarly the expression tenant  as defined by Section 511 includes such licensees as are deemed to be tenants by Section 15A Section 142 may also be noticed which reads as under Where the interest of a licensor who is a tenant of any 871 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 911 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 911 of the Societies Act
There is according to the courts below no conflict between Section 911 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 911 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 872 tion by enacting the Bombay Rents Hotels  Lodging Houses Rates Control Act Amendment Ordinance 1959
Thereafter also the acute shortage of accommodation continued and to circumvent the prohibition of sub letting in Section 15 increasing use of inducting third parties in rented premises through the expedient of leave and licence agreements was made
This becomes evident from the Objects and Reasons for Act No XVII of 1973 which read as under It is now notorious that the Bombay Rents Hotel and Lodg ing House Rates Control Act 1947 is being avoided by the expedient of giving premises on leave and licence for some months at a time often renewing from time to time at
a higher licence fee
Licensees are thus charged excessive licence fees in fact several times more than the standard rent and have no security of tenure since the licensee has no interest in the property like a lessee
It is necessary to make provision to bring licensees within the purview of the aforesaid Act
It is therefore provided by Clause 14 in the Bill that persons in occupation on the 1st day of Febru ary 1973 being a suitable anterior date under subsisting licences shall for the purposes of the Act be treated as statutory tenants and will have all the protection that a statutory tenant has under the Act
It is further provided in Clause 8 that in the case of other licences the charge shall not be more than a sum equivalent to standard rent and permitted increases and a reasonable amount for amenities and services
It is also provided that no person shall claim or receive anything more as licence fee or charge than the standard rent and permitted increases and if he does re ceive any such amounts they should be recoverable from the licensor
The legislative policy is evident from the opening words of Section 15A Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force or in any contract which convey in no uncertain terms that the legislature desired to protect licensees who were in actual occupation of any premises on 1st February 1973 from eviction by conferring on them the status of a tenant and thereby bringing them within the purview of the Rent Act regardless of the other provisions of the said enactment or any other enactment or contract to the contrary
A sweeping overriding effect is given over all laws and other provisions of the Rent Act as well as con tract providing to the contrary thereby placing the 873 question of status of licensees in occupation of any prem ises on 1st February 1973 beyond the pale of doubt
To make matters clear corresponding changes were simultaneously made in the preamble of the Rent Act and the definitions of landlord  and tenant  and a new definition  of licensee  was inserted on the statute book
Not only did the legisla ture desire to confer the status of a tenant on such licen sees but it went a step further by providing in Section 142 that on the determination of the licenser s interest in the premises such a statutory tenant under Section 15A will become the tenant of the landlord thereby establishing a jural relationship of landlord and tenant through statute as distinguished from contract
It therefore seems crystal clear to us that the legislative policy was to extend the protective umbrella of the Rent Act to licensees who were in occupation of any premises on 1st February 1973 by fiction ally conferring on them the status of a tenant overriding all other provisions of the statute itself all other stat utes and contracts providing to the contrary
Therefore every other provision of the Rent Act every provision of any other law and every covenant of a contract which runs counter to the legislative policy engrafted in Section 15A meaning thereby which provides to the contrary must yield to Section 15A read with Section 142 of the Rent Act
That is why this Court while overruling the decision of the Full Bench of the Bombay High Court in Ratanlal Chandiprasad vs Raniram Darkhand writ petition No 76 of 1980 decided on 18th October 1985 observed in paragraph 69 of its judgment in Chandavarkar Sita Ratna Rao vs Ashalata section Gurnatn  at 478 as under 
 it must be held that all licensees created by landlords or by the tenant before February 1 1973 and who were in actual occupation of a premises which was not less than a room as licensee on February 1 1973 would be the licensees of the landlord or tenant and whether there by any term in the original agreement for tenancy permitting crea tion of such tenancy or licences or not they would become tenant and enjoy the fights granted under the Act specially those mentioned in Section 142 of the Act
Therefore this Court held that a licensee under a licence created by a tenant be he a statutory tenant or a contrac tual tenant whether or not his tenancy agreement permitted the creation of such licence was entitled to the protection of Section 15A of the Rent Act
In other words no statutory bar or contractual bar operated against the conferment of the statutory tenancy on the licensee in occupation of any 874 premises on 1st February 1973 under Section 15A of the Rent Act
That takes us to the next question whether or not a member of a co partnership type of a co operative society has such interest in the premises allotted to him as would entitle him to give the same on leave and licencee basis to a non member
In a tenant co partnership type of society the members are shareholders but the title to the property vests in the society which in turn rents the tenements or flats to its members
The cost of construction of dwellings is met from deposits and loans besides the share money
The rental is usually determined on long term basis so calculat ed as to meet the cost of construction and upkeep of the building and to guarantee perpetuity of occupation on repay ment of the whole value of the tenement or flat
At the end of the period the member is credited with additional shares equal to the amount paid by him the interest on these shares generally matches the rental payable by him to the society
Thus on full payment the member becomes entitled to occupy the tenement or flat free of charge as the rental he has to pay to the society is almost met from the interest received from shares held by him
Thus a member has more than a mere fight to occupy the flat
A similar question came up for consideration before this Court in Ramesh Himmatlal Shah vs Harsukh
Jadhavji Joshi  in the context of whether or not the mem ber s right in the flat was liable to attachment and sale under Section 60 of the Code of Civil Procedure
This Court after analysing the various provisions of the Societies Act the bye laws and the regulations framed thereunder came to the conclusion that the member s right or interest to occupy is a species of property
Proceeding further this Court made the following observations in paragraph 18 to 20 of the Judgment There is no absolute prohibition in the Act or in the Rules or in the bye laws against transfer of interest of a member in the property belonging to the Society
The only transfer which is void under the Act is one made in contravention off sub section 2 of Section 47 See Section 473
We have not been able to find any other provision anywhere to the same effect
In the Scheme of the provisions a dichotomy is seen between share or interest in the capital and interest in property of the Society
While Section 292 refers to transfer of a member s share or his interest in the capital or property of any Society Section 31 in contrast speaks of the share or interest of a member in the capital of a So 875 ciety 
The Act therefore makes a clear distinction be tween the share or interest in the capital and share or interest in property of the Society
We have also noticed that the Act does not recognise interest in the immovable property of the society as well See section 411b
We have seen the qualifications for membership
There is no reason to suppose that if the qualification under the bye laws are fulfilled an application for membership may be rejected
After pointing out that the right or interest to occupy is a species of property this Court went on to add as under We therefore unhesitatingly come to the conclusion that this species of property namely the right to occupy a flat of this type assumes significant importance and acquires under the law a stamp of transferability in furtherance of the interest of commerce
We have seen no fetter under any of the legal provisions against such a conclusion
The attachment and sale of the property in this case in execu tion of the decree are valid under the law
XXXXXXXXXXXXXXXXXXXXXXXXX In absence of clear and unambiguous legal provisions to the contrary it will not be in public interest or in the inter est of commerce to impose a bar on saleability of these flats by a tortuous process of reasoning
The prohibition if intended by the Legislature must be in express terms
We have failed to find one
It becomes clear from this decision that the member s right to occupy the flat is a species of property liable to at tachment and sale
It is more than a mere right to occupy
It is transferable and if the transferee answers the quali fications under the bye laws for being admitted to the membership of the Society the Society would be precluded from unreasonably withholding such admittance
There can therefore be no doubt that a member allottee has a right to transfer his interest in the flat to a third party and therefore the right to induct a third party on leave and licence basis
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 876 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 911 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 ON Bhatnagar s case supra which has been referred to and relied on in four subsequent decisions namely Ms AVR And Co  Others vs Fairfield Cooperative Housing Society  Others   Sardar Mohan Singh Ahluwalia vs Maitrai Park Co operative Housing Society and Another   Hindustan Thompson Associates Ltd vs Mrs Maya Inderson Israni  Others  and Smt
Krishna Rajpal Bhatia vs Miss Leela H Advani and Others  Five decisions were rendered by a Division Bench of this Court AP Sen  BC Ray JJ on a single day ie 19th September 1988 on the question of applicability of Section 911 of the Societies Act
In four of those cases namely AVR  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 911 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 877 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 911 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 AVR  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 911 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 911 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
However in the case of Hindustan Petroleum Corporation Limited supra the Esso Easter Inc a company had taken flat No 35 878 in Block No 8 in Sham Niwas on leave and licence basis for a period of one year in terms of a written agreement dated November 26 1968 from Smt
Nanki M Malkani
On December 4 1968 the Society passed a resolution admitting one TJ Mansukani an employee of the company as a nominal member of the society since he was to occupy the flat
The licence agreement was extended from time to time under the renewal clause incorporated in the agreement
After the company was taken over under the Esso Acquisition of Undertakings in India Act 1974 Smt
Nanki M Malkani sent a communication affirming the terms and conditions of the licence and again confirmed the same on 24th March 1976
It will be seen from these facts that the licence was subsisting on 1st February 1973
On 11th September 1980 the Society passed a resolu tion calling upon the appellant corporation to vacate the said premises and directed its member Smt
Nanki M Malkani to occupy the same herself
Upon the appellant corporation failing to vacate the premises the Society commenced pro ceedings under Section 911 of the Societies Act on 15th September 1980 for eviction of the appellant corporation and its employee from the flat
The Cooperative Bank Bombay after considering the evidence adduced by the parties dismissed the claim of the Society holding that the appel lant corporation was entitled to the benefit of Section 15A of the Rent Act and the said protection could not be taken away by the Society seeking eviction under Section 911 of the Societies Act
The Society preferred an appeal which came to be allowed on 17th March 1984 whereupon the appel lant corporation approached the High Court under Article 226 of the Constitution but in vain
The appellant corporation obtained special leave to appeal to this Court
This court raised three questions for decision two of which are relevant for our purpose
The first question was whether the appellant corporation as successor in interest of Esso Eastern Inc the licensee was entitled to the protection of Section 15A of the Rent Act having regard to the fact that Esso Eastern Inc was in occupation of the flat in dispute under a subsisting licence on 1st February 1973 and whether the society s action for ejectment of the occupant of the flat could be said to be a dispute touching the business of the society within the meaning of Section 911 of the Societies Act
After referring to the relevant statutory provisions of both the Societies Act and the Rent Act this Court observed that the finding of the appellate court that the appellant corporation was not entitled to the protection of Section 15A the Rent Act could not be sustained
This Court concluded in paragraph 14 at page 758 as under 879 In the premises petitioner 1 Hindustan Petroleum Corpora tion Ltd is clearly protected under Section 15A of the Bombay Rents Hotel and Lodging House Rates Control Act 1947
In that view of the matter we do not think it neces sary to deal with the contention as regard the applicability of Section 91 of the Maharashtra Co operative Societies Act 1960
All aspects arising out of the submissions as to the jurisdiction of the Registrar under Section 911 of the Act have already been considered by this Court in ON Bhatnagar case and we reiterate the principles laid down therein
This Court did not consider it necessary to deal with the third contention whether a claim for ejectment of an occu pant of a flat in a cooperative housing society who has been put in possession thereof by the member under a leave and licence agreement is a dispute touching the business of the society  within the meaning of Section 911 of the Societies Act because in its view it was already covered by Bhatnagar s case
To put it differently the Division Bench accepted the ratio of Bhatnagar s case as laying down the correct law and did not see the need to restate the same
While in Bhatnagar s case this Court on facts came to the conclusion that the requirements of Section 15A were not satisfied and therefore action under Section 911 of the Societies Act was maintainable it repelled the apprehension that such a view would throw out all licensees of residen tial flats in multi storeyed buildings belonging to Coopera tive Housing Societies in the following words The apprehension if we may say so appear to be wholly unfounded
The legislature was fully aware of the acute paucity of housing accommodation in the metropolitan cities of Greater Bombay and other urban areas in the State and also the fact that lessors of ownership flats were adopting a device of inducting tenants under the garb of an agreement of leave and licence which left the licensee with no protec tion
The legislature therefore stepped in and by Maha rashtra Act 17 of 1973 the following provisions were insert ed in the Rent Act
After referring Section 15A1 and Section 54A of the Rent Act this Court proceeded to observe as under 880 As a result of the introduction of Section 15A and Section 54A of the Rent Act by Maharashtra Act 17 of 1973 the licensee of any premises or any part thereof in a building vesting in or leased to a cooperative housing society regis tered or deemed to be registered under the Act who was in occupation of such premises under a subsisting licence as on 12
1973 is by a legal fiction deemed to be a tenant and thus has the protection of Rent Act
In such a case the dispute between a licensor and licensee relating to posses sion of the premises of a fiat would attract Section 28 read with Section 15A and 54A of the Rent Act and would fail outside the purview of the Registrar s jurisdiction to adjudicate upon such dispute under Section 911 of the Act
Once this aspect is kept in view there need be no apprehen sion as expressed by learned counsel for the appellant    
Indubitably the flat in question fails within the defi nition of premises  in Section 58 of the Rent Act
The appellant a licensee under Section 54A is a deemed tenant under Section 15A and therefore falls within the definition of tenant  under Clause bb of Section 511 of the Rent Act
Such a tenant is entitled to the protection of the Rent Act and cannot be evicted from the premises in his occupation except as provided by the said Act
To hold otherwise would be to render the status conferred on licen sees in actual occupation on 1st February 1973 under a subsisting licence nugatory
The appellant was put in possession of the flat in question by the tenant co partner member of the Society and was accepted as such by the suc cessormembers also
As pointed out earlier a member of a tenant copartnership type of Society is under an obligation to pay a fixed rental every month to the Society
This rental is no doubt
determined on the basis of the member s financial obligations incurred on account of the cost of construction price of land or lease rent as the case may be interest on borrowings etc
The primary object of such a society is to provide residential accommodation to its members on easy payment basis
That is why in Bhatnagar s case this Court stated that it is as much the concern of the society formed with the object of providing residential accommodation to its members which normally is its busi ness to ensure that the flats are in occupation of its members in accordance with bye laws framed by it rather than of a person in an unauthorised occupation as it is the concern of the member who lets it out to another under an agreement of leave and licence and wants to secure posses sion of the premises for his own use after the termination 881 of the licence 
Therefore this Court held that ejectment of an occupant whose licence is terminated and who does not have the protection of law such as the Rent Act can be secured under Section 911 of the Societies Act
But what happens when competing provisions vesting jurisdiction under different laws open with a non obstante clause and invest jurisdiction in different Courts The Societies Act under Section 911 confers jurisdiction on the Cooperative Court while Section 28 of the Rent Act confers jurisdiction on the Court of Small Causes Bombay
This Court observed in Deccan Merchants Cooperative Bank Limited vs Dali Chand Jugraj Jain 1969 1 SCR 887 that the two Acts can be harmonised best by holding that in matters covered by the Rent Act its provisions rather than the provisions of the Act should apply 
This view was approved in Bhatnagar s case also
In Co operative Central Bank Ltd vs Additional Industrial Tribunal Andhra Pra desh also this Court was required to harmonise the competing provisions in Section 61 of the AP Co operative Societies Act which is substantially the same as Section 911 of the Societies Act and Section 101d of the Industrial Disputes Act
This Court applying the test laid down on Deccan Merchants Co operative Bank s case held that a dispute relating to the service condition of an employee of the society would properly be governed by the Industrial Disputes Act
It was however submitted by the learned counsel for the society that the earlier enactment ie the Rent Act must yield to the later Act ie the Societies Act if the competing provisions of the two cannot be reconciled lex posterior derogate priori
But the Rent Act is special law extending protection to tenants just as the Industrial Disputes Act which makes provision for the benefit of the workmen
Ordinarily therefore a general provision a dispute touching the business of the society would have to give way to the special provision in the Rent Act on the maxim generalia specialibus non derogant
That is why this Court harmonised the said provisions by holding that in matter covered by the Rent Act its provisions rather than the provisions of the Societies Act should apply
In the present case the appellant seeks protection of the Rent Act since he is a deemed tenant under Section 15A read with Section 54A and 511bb of the Rent Act
The status of a tenant is conferred on him by law as the legislature 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 we think be determined by the machinery if any provided by the law conferring the right
882 The submission that the appellant cannot seek protection against the Society as his entry into the flat was in viola tion of the Bye laws would have been valid had the statute not intervened
To take such a view would tantamount to carving out an exception in Section 15A of the Rent Act that the said provision would not apply to licensees in occupa tion of flats owned by tenant co partnership societies
The language of Section 15A read with Section 54A of the Rent Act does not warrant such a construction
The mere fact that there was a violation of the Bye laws would not make any difference for it is not unknown that even in cases of breach of statute the legislature has conferred protection on those guilty of breach if the prevailing circumstances so warrant eg sub letting was prohibited by Section 15 but when the legislature realised the need to protect the sub tenants it did so by an ordinance promulgated in 1959
Similarly when the legislature felt the need to protect licensees in occupation on 1st February 1973 it intervened by enacting Section 15A
The legislative policy is quite evident from Section 15A and the protection given to licen sees cannot be taken away on the plea that the initial entry of the licensee in the flat was in breach of the Bye laws
If the occupant licensee who is a protected tenant under Section 15A can be evicted by the society on the plea of absence of privity between the society and the protected tenant it would render the protection of Section 15A redun dant
The situation is more or less similar to the case of an owner landlord whose tenant had contrary to the terms of the contract introduced a licensee who is now protected by Section 15A of the Rent Act
In such a case notwithstanding the absence of privity of contract between the owner landlord and the licensee protected tenant the latter cannot be evicted except in accordance with the provisions of the Rent Act
We therefore do not see any merit in the contention that notwithstanding the protection given by Section 15A the society can proceed to evict him under Section 911 of the Societies Act on the plea that such protection is not available against the society
Such a view would defeat the legislative object of Section 15A of the Rent Act
But the jurisdiction of the Court in which the action is originated must be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party
For example if the plaintiff goes to court alleging that the defendant is a trespasser the ordinary court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy
If however the defendant succeeds in proving that he is a tenant in respect of premises possession whereof is sought the court trying the case would dismiss the suit on the ground that the plaintiff had failed to prove the 883 jurisdictional fact that the defendant was a trespasser
Here also the claim was lodged by the society in the Cooper ative Court on the ground that the appellant was in wrongful occupation of the flat in question and was a mere trespass er
On facts it is now found that the appellant was and is a protected tenant under Section 15A of the Rent Act
The proceedings initiated under Section 911 of the Societies Act cannot in the circumstances succeed for the simple reason that the society has failed to prove the fact which constitutes the foundation for jurisdiction
If the society fails to prove that the appellant has no right to the occu pation of the flat since he is a mere trespasser the suit must obviously fail
That is why even in the case of Hindu stan Petroleum Corporation Limited this Court did not con sider it necessary to deal with the contention based on Section 911 of the Societies Act in detail and felt con tent by observing that the point stood covered by the deci sion in Bhatnagar s case
For the reasons afore stated we are of the view that the impugned Judgment of the Bombay High Court cannot be allowed to stand
We allow this appeal set aside the Judg ments of all the Courts below and direct that the claim application filed under Section 911 of the Societies Act shall stand dismissed
However in the facts and circum stances of the case we make no order as to costs
RNJ Appeal allowed


Summary:
Jamunadas C Tuliani is the owner and the landlord of the suit premises
He instituted a suit for ejectment against five defendants on the ground that they were tenants of the said premises and were in arrears of rent for a period of more than six months which had not been paid inspite of notice having been served on them as required by Section 122 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Act and were consequently liable for eviction under sub section 3a of the Act as it then stood
Two other grounds were that the tenants had changed the user of the suit premises and they had committed breach of the terms and conditions of the tenancy
Subsequently Arjun Khiamal Mak hijani was impleaded as defendant No 6 in the suit on the assertion that the tenants had illegally sub let a portion of the premises namely garage to him and were thus liable to be evicted on that ground also
The Trial Court decreed the suit in favour of the land lord on the plea of default in payment of rent and illegal sub letting
The other two pleas that the tenants had changed the user of the suit premises and had committed breach of terms and conditions of tenancy were decided against the landlord
Two appeals were preferred against the judgment of the Trial Court one by the tenants and the other by the defend ant No 6 and both these appeals were dismissed
Aggrieved by the said decree the tenants and defendant No 6 filed two writ petitions in the High Court
Against the common judg ment of the High Court dismissing these writ petitions the present civil appeals have been preferred
381 Dismissing both the appeals the Court HELD i On a plain reading of clause a of sub sec tion 3 of section 12 of the Act as it stood at the rele vant time the said clause was clearly attracted and the consequence provided therein had to follow namely a decree for eviction against the tenants had to be passed
Clause b of sub section 3 of the face of it was not attracted inasmuch as the said clause applied only to a case not covered by clause a
This is amply borne out by the use of the opening words In any other case of clause b
387A B ii Article 142 of the Constitution does not contem plate doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provisions
390B iii In a case where a tenant renders himself liable to be evicted on the ground of being defaulter in the payment of rent as contemplated by sub sections 2 and 3a of Section 12 of the Act bar from the way of the landlord in instituting a suit for ejectment of a tenant is removed and he gets a right to have a decree for eviction
Such removal of bar is not in any sense forfeiture of any rights under the lease which the tenant held
In the instant case the suit was not based on such forfeiture of lease under the Transfer of Property Act but was filed for the enforcement of the statutory right conferred on the landlord by sub sections 2 and 3a of Section 12 of the Act
391D 391H392A iv The tenants are not entitled even to the benefit of the amended sub section 3 of Section 12 of the Act inas much as on a plain reading of the sub section it is not possible to give it a retrospective operation
392C  The date fixed for settlement of issues in a suit cannot be equated with any other date or dates which may be fixed in the suit or the appeal
393C The words on or before such other date as the Court may fix occurring after the words on the first day of the hearing of the suit in sub section 3 of Section 12 of the Act were obviously meant to meet a situation where for some inevitable reason the necessary deposit could not be made on the day of the hearing of the suit and the Court extended the time to make such deposit
393D 382 By taking recourse to the process of reopening of pro ceedings one cannot put the hands of the clock back and create an artificial date as the first day of the hearing of the suit 393H 394A v Interpretation of statutes When the Act contains provisions some of which fall under the category of beneficial legislation with regard to the tenant and the others with regard to the landlord the assertion that even with regard to such provisions of the Act which fail under the purview of beneficial legislation for the landlord an effort should be made to interpret them also in favour of the tenant is a negation of the very principle of interpretation of a beneficial legislation on which reliance is placed on behalf of the tenants
The argument indeed is self defeating and only justifies the cynical proverb Head I win tail you lose
It is difficult to countenance the sentimental approach made by learned counsel for the tenants for the simple reason that as pointed out in Latham vs R Johnson and Nephew Ltd 408 sentiment is a dangerous will of the wisp to take as a guide in the search for legal principles 389B D Harbanslal Jagmohandas and Anr
vs Prabhudas Sivlal 1977 1 SCC page 576 Jaywant section Kulkarni  Ors
vs Mino char Dosabhai Shroff  Ors 1988 4 SCC P 108 Ganpat Ram Sharma  Ors
vs Gayatri Devi 1987 3 SCC P 576 Ganpat Ladha vs Sashikant Vishnu Shinde 1978 2 SCCP 573 Latham vs R Johnson  Newhew Ltd 408 Vatan Mal vs Kailash Nath 1989 3 SCCP 79 BP Khemda Pvt Ltd vs Birendra Kumar Bhowmick  Anr 1987 2 SCRP 559 Smt
Kamala Devi Budhia  Ors
vs Hem Prabha Ganguli  Ors 1989 3 SCCP 145 Praduman Kumar vs Virendra Goyal Dead by LRs 1969 3 SCRP 950 SD Chagan Lal vs Dalichand Virchand Shroff  Ors 1968 3 SCRP 346 and Nagindas Ramdas vs Dalpatram Ichharam 1974 1 SCCP 242 referred to