ivil Appeal No 2846 of 1989
From the Judgment and Order dated 2441989 of the Bombay High Court in WPNo 4118 of 1986
HS Guru Raja Rao section Markandeya and Ms C Markandeya for the Appellant
LA Kriplani and SK Jain for the Respondents
The Judgment of the Court was delivered by KN SAIKIA J
This appeal by special leave is from the Judgment and Order of the High Court of Bombay dated 2441989 in Writ Petition No 4118 of 1986 dismissing the petition
The second respondent Shyam Cooperative Housing Society Ltd was a tenant co partnership cooperative society for short the 597 Society  and Panjumal H Advani late father of the first respondent for short Advani  was its tenant co partner member
By an application dated 1061969 Advani obtained permission of the Society to induct the appellant temporarily into his flat and accordingly the appellant took on rent from Advani flat No 24 Block No 1second floor Nanik Niwas situate at Bhulabhai Desai Road Bombay for short the flat  on a monthly rent of Rs 1000 Rupees one thousand on 1061969
On the same date the appellant under the Society s rules applied for its nominal membership stating inter alia that he intended to take the flat for temporary use and occupation that he would not claim any right of permanent nature and that he would vacate the flat on receipt of notice thereof
By an agreement of leave and licence dated 1161969 entered into between the appellant and Advani the appellant took exclusive possession of the flat
The agreement was for a period of 11 months and was renewable for 2 further periods of 11 months each
Vide Resolution No 208 dated 1361969 the Managing Committee of the Society granted the permission
By letter dated 2211972 Advani purported to terminate the licence with effect from 1031972 and asked the appellant to vacate the flat and the appellant having not acceded to the request Advani informed the Society which vide letter dated 2221972 required the appellant to vacate the flat and to deliver possession thereof to Advani on or before the 10th March 1972
The appellant instead of vacating the flat filed an application in the Court of Small Causes Bombay on 1331972 for fixation of its standard rent
In April 1972 Advani and the Society raised a dispute under section 91 of the Maharashtra Cooperative Societies Act to recover possession from the appellant who in turn filed declaratory suit No 9895305 of 1972 in the Court of Small Causes Bombay on 10111972 seeking a declaration that he was the tenant of the flat with an interim application for stay of the proceeding till the disposal of his application for fixation of standard rent but that application was rejected and the appellant was thereafter unsuccessful in the High Court which was dismissed on 791977
The learned Judge of the IInd Cooperative Court Greater Bombay by his Judgment dated 631985 dismissed the suit holding that the appellant was a licensee and not a tenant but the Society was an idle party and had acted in collusion with Advani to vacate the appellant
Advani and Society appealed therefrom to the Maharashtra State Cooperative Appellate Court Bombay in Appeal No 397 of 1985 which was allowed and the impugned Judgment of the IInd 598 Cooperative Court was set aside on 3171986
The appellant impugned the appellate order in Writ petition No 4118 of 1986 in the High Court of Judicature at Bombay contending inter alia that the agreement between the appellant and Advani though styled as a leave and licence was a lease that section 91 of the Maharashtra Cooperative Societies Act 1960 was not attracted and could not have been invoked by Advani and the Society and that section 91 itself was ultra vires the Article 14 of the Constitution of India to the extent it tried to reach persons who were not members of cooperative societies
The High Court while dismissing the writ petition inter alia held that the agreement was of temporary nature and no interest in the flat having been created in favour of the appellant even though he had exclusive possession it could not have been a lease that the alleged collusion between Advani and the Society to evict the appellant was based on conjectures and could not take the matter out of the purview of section 91 of the Cooperative Societies Act which was not ultra vires
Mr SS Gururaja Rao the learned counsel for the appellant submits inter alia that the agreement dated 1161969 between Advani and the appellant was one of lease with all its ingredients and not one of leave and licence that the agreement having been a lease the cooperative Court had no jurisdiction in respect thereof and it was the Civil Court envisaged under the Bombay Rents Hotel and Lodging House Rates Control Act 1947 that would have jurisdiction in the matter and that even assuming that the Cooperative Court had jurisdiction in respect of a leave and licence created under the provisions of the Act that Court would not have jurisdiction in this matter the appellant being only a nominal member and not a tenant member of the Society
Mr LA Kripalani the learned counsel for the respondents submits that the agreement was one of leave and licence and not of lease that in the matter of the agreement the Cooperative Court alone has jurisdiction and no other court and that being a nominal member of the Society in view of his application for such a membership the appellant would come within the jurisdiction of the Cooperative Court
The first question to be decided in this appeal therefore is 599 whether the agreement dated 1161969 was one of lease or of leave and licence
In the agreement dated 1161969 the Party of the First part has been called the licensor  and the Party of the Second part has been called the licensees 
The licensor is stated to be a shareholder and member of the Society
Its recitals said AND WHEREAS the Licensor is the absolute owner of the said flat and whereas the party of the Second part has approached the Party of the First part to allow them the use of the said flat with fittings fixtures and furniture lying therein
AND WHEREAS the Party of the First part has agreed to allow the party of the Second part to use the said flat along with fittings furniture fixtures etc
The following were the relevant terms of the agreement 1
The licensor  has given the use of his flat No24 2nd floor Nanik Niwas Block No 1 Bhulabhai Desai Road on Leave and Licence basis
The licence in the initial stage is for the period of 11 months to be renewed by another period of 11 months and a second option of 11 months also to make up the period of 33 months
The Licensees shall pay compensation of Rs 1000 Rupees one thousand only per month to the licensor  the use of the said flat along with fittings fixtures and furniture lying therein more fully described in the schedule herewith attached This compensation payable by the said Licensees  to the said Licensor  shall include all the charges and taxes leviable either by the Shyam Cooperative Housing Society Ltd Bombay 26 or by the Bombay Municipal Corporation or by any local or State authorities except the changes which are specially mentioned hereunder
xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 600 9
It is agreed by this agreement that only Licensee  is intended to be given to the Licensees  to use the flat and fixtures fittings furniture etc
more fully described in the schedule attached herewith and the Licensees  will at no time claim tenancy or sub tenancy of the premises
The premises are in Nanik Niwas Block No1 Second Floor Flat No24 of the Shyam Cooperative Housing Society Ltd and the rules regulations and bye laws of the said Society do not permit any tenancy or sub tenancy being created in respect of the premises
xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 22
That the Licensee  will not surrender their rights under this agreement in favour of anyone else except the Licensors 
That the Licensees  shall observe all rules regulations and by laws of the Shyam Cooperative Society as nominal members during the period of this licence
From the above recitals and the terms and conditions there is no doubt that ex facie it is one of leave and licence for use of the flat and fixtures fittings furniture etc
and that the licensee would at no time claim tenancy or sub tenancy in respect of the flat
There is also no doubt that in his application for nominal membership the appellant stated that he intended to take the flat for temporary use and occupation and that he would not claim any right of permanent nature
In the Managing Committee Resolution No208 dated 1361969 the appellant was admitted as a nominal member of the Society and was permitted to temporarily occupy the flat
Thus there appears to be no room for contending contrary to the terms of the agreement that the agreement was a lease and the appellant was a tenant of Advani as such the Bombay Rents Hotel and Lodging House Rates Control Act 1947 hereinafter referred to as the Rent Act  was applicable to him
However relying on Antoniades vs Villiers and Anr reported in   it is submitted for the appellant that he having been given exclusive possession of the flat for a time the agreement must be construed as a lease and him as a tenant
In that case the respondent let a flat to the appellants a young unmarried couple under separate but identical agreements termed licenses  which were executed contemporaneously and stipulated with reiterated emphasis that the appellants were not to have exclusive possession
In particular 601 by clause 16 that agreement stated that the licensor shall be entitled at any time to use the rooms together with the licensee and permit other persons to use all of the rooms together with the licensee and further stated that the real intention of the parties in all the circumstances was to create a licence which did not come under the Rent Acts
The rental payable was 87 pounds per month by each occupant and the agreements were determinable by one month s notice by either party
The respondent never attempted to use any of the rooms or authorised any other persons to use the rooms
In July 1986 the respondent gave the appellants a notice to quit and applied to the court for an order for possession but his claim was dismissed on the ground that the appellants were tenants who were entitled to the protection of the Rent Acts
The respondent appealed to the Court of Appeal which allowed his appeal
The appellants having appealed to the House of Lords it was held that the agreements were interdependent on one another and were therefore to be read together as constituting one single transaction
Since it was the intention of the two appellants to occupy the flat as man and wife and since that intention was known to the respondent the true nature of the arrangement was to create a joint tenancy and the purported retention by the respondent of the right to share the occupation of the small flat with the appellants or to introduce an indefinite number of third parties to do so was clearly a pretence to deprive them of the protection of the Rent Acts
It followed that the agreements created a joint tenancy and not a licence and the appeal would therefore be allowed
It may be noted that in the above case there was no obligation of or relation to any cooperative society and laws governing members thereof whereas in the instant case admittedly Advanai was a tenant co partner member of the Society and the appellant by virtue of the agreement of licence was also admitted to nominal membership accepting his statement in his application
While interpreting the agreement we have also to see what transpired before and after the agreement
Ex praecedentibus et consequentibus optima bit interpretation
The best interpretation is made from the context
It is a true rule of construction that the sense and meaning of the parties in any particular part of an instrument may be collected ex antecedentibus et consequentibus every part of it may be brought into action in order to collect from the whole one uniform and consistent sense if that may be done
 As was said in NE Railway vs Hastings The deed must be read as a whole in order to ascertain the true meaning of its several clauses and the words of each clause should be so interpreted as to bring them into 602 harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible
In the agreement the intention to create a licence is clear
Positively it speaks of a licence for the use of the flat and negatively that the licensee would not claim any tenancy or sub tenancy
That the intention of the parties was to create only a licence and not a lease is clear from the tenor of the agreement
True by mere use of the word lease or licence the correct categorisation of an instrument under law cannot be affected
What was given to the licensee was to use of the flat with furniture fittings etc which could not be said to have created any interest in the flat though in effect the use continued for a stipulated period of time
It is true where the ingredients of a lease are present and the licensee is according to law a tenant he ought to be given the benefit of the Rent Act
As was held in Board of Revenue etc
vs AM Ansari etc
   it is the substance of the agreement between the parties which is a decisive consideration on the question whether a particular grant amounts to a lease or a licence
In Tarkeshwar Sio Thakur Jiu vs Dar Dass Dey  Co  Ors    the document though named as licence was construed as a lease
If a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof it will be a licence
If there is a transfer of interest in law and exclusive possession is given to the grantee then it is a lease
Thus exclusive possession by itself will not amount to creation of interest
Exclusive possession by itself would not militate against the concept of a licence if the circumstances negative any intention to create a tenancy
Following Sohan Lal Naraindas vs Laxmidas Raghunath Gadit  we reiterate that the intention of the parties to an agreement has to be gathered from the terms of the agreement construed in the context of the surrounding antecedent and consequent circumstances
The crucial test would be what the parties intended
If infact it was intended to create an interest in the property it would be a lease if it did not it would be a licence
In determining whether the agreement was a lease or licence the test of exclusive possession though of significance is not decisive
Interest for this purpose means a right to have the advantage accruing from the premises or a right in the nature of property in the premises but less than title
603 Lease has been defined in section 105 of the as under A lease of immovable property is a transfer of a right to enjoy such property made for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money a share of crops service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms
 The essential elements of a lease are 1
the parties 2
the subject matter or immovable property 3
the demise or partial transfer 4
the term or period 5
the consideration or rent
The relationship of lessor and lessee is one of contract
In Bacon s Abridgement a lease is defined as a contract between the lessor and the lessee for the possession and profits of land etc on the one side and recompense by rent or other consideration on the other
 Hence it has been held that a mere demand for rent is not sufficient to create the relationship of landlord and tenant which is a matter of contract assented to by both parties
 When the agreement vests in the lessee a right of possession for a certain time it operates as a conveyance or transfer and is a lease
The section defines a lease as a partial transfer ie a transfer of a right of enjoyment for a certain time
This Court has held that a renewal of a lease is really grant of a fresh lease though it is called a renewal because it postulates the existence of a prior lease
Where the initial term was say one year it could not co exist with a renewal of that very lease within one year
Renewal could take place only on the expiry of the initial lease and not before
The intention of the parties in making the agreement is determinative of the question whether it was a lease or licence
In Halsbury s Laws of England 4th Edn
27 at paragraph 6 on General Principles 604 for determining whether agreement creates lease or a licence we read In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive considerations is the intention of the parties
The parties to an agreement cannot however turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such
The parties  relationship is determined by law on a consideration of all relevant provisions of the agreement and an agreement labelled by the parties to it as a licence  will still be held to create a tenancy if the substance of the agreement conflicts with that label
Similarly the use of operative words let  lessor  etc which are appropriate to a lease will not prevent the agreement from conferring only a licence if from the whole document it appears that it was intended merely to confer a licence
Primarily the court is concerned to see whether the parties to the agreement intend to create an arrangement personal in its nature or not so that the assignability of the grantee s interest the nature of the land and the grantor s capacity to grant a lease will all be relevant considerations in assessing what is the nature of the interest created by the transaction
In the absence of any formal document the parties  intention must be inferred from the circumstances and the parties  conduct
 It has been submitted for the appellant that the very fact of exclusive possession of the flat being given to the appellant was sufficient to make him lessee and Advani his landlord
We do not agree with the submission in an unqualified form
There have been cases where exclusive possession has been given outside the Rent Act
In Isaac vs Hotel De Paris Ltd 1960 1 All ER348 the respondent company owning the hotel de Paris where the lessees of another building called the PHotel it was held that the respondent company were entitled to an order for possession because the relationships between the parties was not that of landlord and tenant but of licensor and licensee even though there was exclusive possession by the appellant and the acceptance of the amount of the rent by the respondent company the circumstances and the conduct of the parties showing that all that was intended was that the appellant should have a personal privilege of running a night bar at the PHotel with no interest 605 in the land at all and this privilege came to an end with the notice of May 1956 and that after the notice the appellant remained in occupation at sufferance and in the circumstances the acceptance of rent by the respondent company did not waive their right to immediate possession
It was observed that there were many cases in the books where exclusive possession had been given of premises outside the Rent Restriction Acts and yet there had been held to be no tenancy
Lord Denning quoted from Booker vs
Palmer 677 There is one golden rule which is of very general application namely that the law does not impute intention to enter into legal relationship where the circumstances and the conduct of the parties negative any intention of the kind  The following passaged was also cited with approval It is clear from the authorities that the intention of the parties is the paramount consideration and while the fact of exclusive possession together with the payment of rent is of the first importance the circumstances in which exclusive possession has been given and the character in which money paid as rent has been received are also matters to be considered
 On the question of nature and effect of the grant of exclusive possession in paragraph 7 of Halsbury s Laws of England 4th Edn Vol27 we read The fact that the agreement grants a right of exclusive possession is not in itself conclusive evidence of the existence of a tenancy but it is a consideration of the first importance although of lesser significance than the intention of the parties
In deciding whether a grantee is entitled to exclusive posession regard must be had to the substance of the agreement
In order to give exclusive possession there need not be express words to that effect it is sufficient if the nature of the acts to be done by the grantee requires that he should have exclusive possession
However the grant of an exclusive right to a benefit can be inferred only from language 606 which is clear and explicit
If an exclusive right of possession is subject to certain reservations or to a restriction of the purposes for which the premises may be used the reservations or restriction will not necessarily prevent the grant operating as a lease
 We may now examine the position of the appellant under the Rent Act
The Rent Act has not defined a lease 
As defined in section 511 tenant  means any person by whom or on whose account rent is payable for any premises and includes a such sub tenants and other persons as have derived title under a tenant before the 1st day of February 1973 aa any person to whom interest in premises has been assigned or transferred as permitted or deemed to be permitted under section 15 b any person remaining after the determination of the lease in possession with or without the assent of the landlord of the premises leased to such person or his predecessor who has derived title before the 1st day of February 1973 bb such licensees as are deemed to be tenants for the purpose of this Act by section 15A c xxx xxx xxx xxx xxx xxx Thus the above sub section bb read with section 15A of the Rent Act makes the tenant  one of status and not of contract
the licensee has been conferred the status of a tenat
This reminds us of what Sir Henry Maine observed in Ancient Law
The movement of progressive societies had been from status to contract
But Lord Simmonds pointed out in Johnson vs Merston  that since the days of Maine the movement of the progressive societies in various fields has been almost the reverse that is from contract to status
With acute dearth of accommodation and dire need for it people may agree to a pretence or unreasonable term from which law alone can protect them and render justice to the parties
As defined in the section 54A of the Rent Act licensee  in respect of any premises or any part thereof means 607 The person who is in occupation of the premises 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 registered under the Maharashtra Cooperative Societies Act 1960 but does not include a paying guest a member of a family residing together a person in the service or employment of the licensor or a person conducting a running business belonging to the licensor or 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 or a person having any accommodation in a hotel lodging house hostel guest house club nursing home sanatorium dharamshala 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 exigencies of service or provision of a residence attached to his or her post or office is temporarily not occupying the premises 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 person having accommodation in any premises or part thereof for conducting a canteen crechedispensary or other services as amenities by any undertaking or institution and the expressions licence  licensor  and premises given on licence  shall be construed accordingly
 The above definition is comprehensive one
A licence is a power or authority to do some act which without such authority could not lawfully be done
In the context of an immovable property a licence is an authority to do an act which would otherwise be a trespass
It passes no interest and does not amount to a demise nor does it give the licensee an exclusive right to the use of the property
The definition in the Rent Act includes any person in occupation under a subsisting agreement for licence given for a licence fee or charge of any premises or part thereof in a building vesting in or lease to a cooperative housing society registered or deemed to be registered under the 608 Maharashtra Cooperative Societies Act 1960
The appellant would otherwise be included within this definition
But he has no subsisting licence the same having been cancelled on 10372
Section 15A of the Rent Act which was inserted by Maharashtra Act 17 of 1973 provides Certain licensee in occupation on 1st February 1973 to become tenants
1 Notwithstanding anything contained elsewhere 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 part thereof in his occupation 
2 The provisions of sub section 1 shall not affect in any manner the operation of sub section 1 of section 15 after the date aforesaid
 Thus section 15A read with section 511 bb of the Rent Act makes the tenant one of status rather than of contract
Intention to create a licence as defined in that Act if the other requirements fulfilled would therefore be enough to confer that status from the specified date
The above provisions applies to person in occupation of any premises or part thereof which is not less than a room as a licensee he shall on the date be deemed to have become a tenant on the first day of February 1973
The licence of the appellant was cancelled on 10372
Again in the instant agreement what has been given is only the use of the flat and the furnitures and fittings
Licence  had earlier been defined in section 52 of the  Where one person grants to another or to a definite number of other persons a right to do or continue to do in or upon the immovable property of the grantor something which would in the absence of such right be unlawful and such right does not amount to an easement or 609 an interest in the property the right is called a license
 In view of licence of the appellant having been cancelled on 10372 licence as defined by the Rent Act itself would not apply to the appellant s case
He would therefore not be protected under section 15A of the Rent Act
The learned counsel for the appellant submits that due to scarcity of accommodation the appellant had to accept the terms that he would not by virtue of the agreement of leave and licence claim any right of tenancy or sub tenancy and that should not be a bar to his being given the benefit under the Rent Act
However considering the facts and circumstances of this case we are not inclined to hold that the appellant should not be bound by the expressed intention in the agreement
In Chandavarkar Sita Ratna Rao vs Ashalata SGuram   this Court held that licence was a privilege and not an interest in property
A tenant whose interest in the tenancy is determined for any reason but who is protected by the statute was entitled to create a licence in favour of another person until a decree of eviction has been passed against him
A statutory tenant was in the same position as a contractual tenant until a decree for eviction is passed against him and the rights of contractual tenant including the right to create licence even if he was transferor of an interest which was not in fact the transfer of interest
If the licence have been created before February 1 1973 the licensee must by the express terms of section 15A of the Rent Act be deemed to be a tenant and he should subject to provisions of the said Act be deemed tenant of the landlord on the terms and conditions of the agreement consistent with the provisions of the Act
At paragraph 58 of the report it was observed that there was no reason and there was nothing in the Rent Act or the Statement of Objects and Reasons to indicate that restricted meaning to the expression licence should be given
As the amended section said that whoever was in possession as a licensee should be deemed to have become for the purpose of the Act the tenant of the landlord and there was no warrant to restrict the ordinary meaning of that expression
If the restricted meaning was given then the apparent scheme or the purpose for introduction of the amendment would be defeated at least to a large section of licensees who were contemplated to be protected as the objects of the Act sought to do
The Rent Act was amended by Maharashtra Act 17 of 1973
By 610 the Amending Act section 54A and section 15A were introduced in the parent Act to confer on the licensee who had a subsisting agreement of February 1 1973 the status and protection of a tenant under the Rent Act
Section 15A required that the occupant must be in occupation of the premises as a licensee as defined in section 54A on the 1st of February 1973
If he be such a licensee the non obstinate clause of section 15A 1 gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract
In other words even as against the express terms of the subsisting contract of licencethe licensee would enjoy the benefits of section 15A
But if he was not a licensee under a subsisting agreement on the 1st of February 1973 then he did not get the advantage of the amending provision of the Rent Act
A person continuing in possession of the premises after termination withdrawal or revocation of the licence continued to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises
Such a person by no stretch of imagination could be called a licensee
In DH Maniar and Ors
vs Waman Laxman Kudav   this position was made clear
The appellant in the instant case was not in possession as a licensee on 1st of February 1973 the licence having been terminated prior to that date
This takes us to the next question namely whether the Cooperative Court had jurisdiction over the matter
Section 911 of the Maharashtra Cooperative Societies Act which deals with disputes provides 1 Notwithstanding anything contained in any other law for the time being in force any dispute touching the constitution elections of the committee or its officers other than the elections of committees of the specified societies including its officers conduct of general meetings management of business of a society shall be referred by any of the parties to the dispute or by a federal society to which the society is affiliated or by a creditor of the society to a cooperative Court if both the parties thereto are one or other of the following a a society its committee any past committee any past or present officer any past or present agent any past or present servant or nominee heir or legal representative of any deceased officer deceased agent or deceased servant of the society or the Liquidator of the society 611 b a member past member or a person claiming through a member past member or a deceased member of a society or a society which is a member of the society or a person who claims to be a member of the society
xxx xxx xxx xxx xxx xxx Under the above provision the matter of eviction of the appellant by the tenant co partner member of the society can be said to be touching the business of the society
In Deccan Merchants Cooperative Bank Ltd vs Ms Dalichand Jugraj Jain  Ors 1969 1 SCR 887 it has been held that the word business in the expression touching the business of a society  in section 91 1 does not mean affairs of the society
It has been used here in a narrower sense and means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye laws
It was however held that section 91 of the Maharashtra Cooperative Societies Act did not affect the provisions of section 26 of the Bombay Rents Hotel  Lodging House Rates Control Act 1947
Although both these provisions start by excluding anything contained in any other law two Acts could be harmonized best by holding that in matters covered by the Rent Act its provisions rather than the provisions of the Maharashtra Cooperative Societies Act should apply
The latter Act was passed in the main to shorten litigation lessen its cost and to provide a summary procedure for the determination of the disputes relating to internal management of the society
But under the Rent Act a different social objective was intended to be achieved and for achieving that social objective it was necessary that the dispute between the landlord and the tenant should be dealt with by the courts set up under the Rent Act and in accordance with the special provisions of that Act and this social objective did not impinge on the objective underlying the Maharashtra Cooperative Societies Act
In ONBhatnagar vs Smt
Rukibai Narsindas  Ors
   which was also case of Shyam Cooperative Housing Society Limited it was held that the claim of the society together with such member for ejectment of a person who was permitted to occupy having become a nominal member thereof upon revocation of licence was a dispute falling within the purview of section 1 of the Maharashtra Cooperative Societies Act 1960 and that the proceeding under section 911 of the Maharashtra Cooperative Societies Act 1960 were 612 not barred by the provisions of section 28 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947
The two Acts could be best harmonized by holding that the matters covered by the Rent Acts its provisions rather than the provisions of the Cooperative Societies Act should apply
But where the parties admittedly did not stand in the jural relationship of landlord and tenant as their dispute would be governed by section 911 of the Societies Act and that the appellant by virtue of his being a nominal member acquired a right to occupy the flat as a licensee but his rights were inchoate
In the facts of the instant case upon the terms of sections 54A and 15A of the Rent Act it is clear that the appellant was not entitled to the protection of section 15A
The sine qua non for the applicability of section 15A of the Rent Act was that a licensee must be in occupation as on February 1 1973 under a subsisting licence
It is not disputed that the appellant did not answer that description since the agreement of leave and licence in his favour admittedly stood terminated by the notice of the respondent No 1 on 1031972
That being so the appellant was nothing but a rank trespasser and was not entitled to the protection of section 15A of the Rent Act and could not therefore plead the bar of section 281 thereof
In Hindustan Petroleum Corporation Ltd  Anr
vs Shyam Cooperative Housing Society  Ors   at paragraph 14 it was held under the facts of that case that the petitioner Hindustan Petroleum Corporation Ltd was clearly protected under section 15A of the Rent Act and in that view of the matter the jurisdiction of the Registrar under Section 911 of the Cooperative Societies Act would be as laid down in ON Bhatnagar s case supra
The proceedings initiated under section 91 were accordingly quashed
This case is therefore distinguishable on facts
Following Bhatnagar s case in Smt
Krishna Rajpal Bhatia and Ors
vs Miss Leela H Advani  Ors   where a tenant co partner member of a registered co partnership type cooperative housing society inducting another person into her flat for a term of eleven months subject to renewal of the term from time to time after obtaining society s permission and after the person so inducted becoming a nominal member of the society and the agreement between the parties embodied in usual standard form of leave and licence it was held that the tenant co partner member only created a licence and not a lease and that the Maharashtra Cooperative Societies Act 1960 was applicable
There also the nominal membership of the society was obtained in terms of the society s bye laws and the licence was 613 terminated by notice after expiry of the term but the occupant was not vacating
Claim made by the co partner under section 91 of the Maharashtra Cooperative Societies Act 1960 for ejectment of the occupant was held to constitute a dispute touching the business of a society  within the meaning of section 91 and hence the Registrar s jurisdiction to entertain the claim was held not to have been barred under section 28 of the Rent Act
Applying the law laid down in the above decisions we are of the view that the instant dispute is one envisaged in section 91 of the Maharashtra Cooperative Societies Act and the Cooperative Courts rightly exercised jurisdiction
The next question namely section 91 is ultra vires the Article 14 of the Constitution of India to the extent it tries to reach persons who are not members is not tenable inasmuch as the appellant is involved in a dispute touching the business of the Society and he was a nominal member of the Society by dint of his agreement of leave and licence and he was made so on his application
Result is that this appeal fails and it is dismissed but under the facts and circumstances of the case without any order as to costs
Interim orders stand vacated
RP Appeal dismissed


Summary:
The respondent plaintiff instituted a suit against the appellant defendant for declaration of title and possession of the suit properties on the basis of a sale deed dated February 10 1964 executed in his favour by Mrs T
The appellant defendant also asserted his title and possession under an earlier deed dated February 14 1959 executed by Mrs T in his favour
The respondent contended that the deed of 1959 in favour of the defendant was sham and without any consideration
The Trial Court decreed the suit and the decree was confirmed in appeal
The High Court set aside the decree and remanded the case to the first appellate court stating that the burden to prove that the 1959 deed was sham was on the plaintiff
After the remand the first appellate court considered the evidence adduced by both sides and upheld the plaintiff s title and confirmed the decree of the trial court
The second appeal filed against the judgment was dismissed in limine by the High Court
In defendant s appeal to this court it was contended that inspite of specific direction by the High Court in the order of remand that the burden to prove that 1959 deed was sham was on the plaintiff no fresh evidence was tendered by the plaintiff to discharge the burden and the appellate court proceeded to examine the evidence tendered by the defendant and rejected the same hence the appellate court committed an error in disposing the appeal which gave rise to a substantial question of law and the High Court failed to exercise its jurisdiction under Section 100 CPC in dismissing the second appeal in limine
Dismissing the appeal this Court HELD 1
It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff but after having gone into 545 evidence he cannot ask the court not to look at and act on it
The question of burden of proof at the end of case when both parties have tendered evidence is not of any great importance and the court has to come to a decision on a consideration of all materials
515H 516A 2
In the suit based on title the burden was undoubtedly on the plaintiff to prove such title
When the plaintiff assailed the earlier deed executed by his vendor in respect of the same land it was for him to establish that it was a Farzi Kebala and sham transaction unsupported by consideration
But in examining the question whether the plaintiff had succeeded in proving the negative fact it was open to the court to consider the entire evidence on record when both the parties have tendered evidence and no part of the evidence could be left out
The plaintiff proceeded on the basis that the deed executed by his vendor in 1959 was sham unsupported by consideration and it never came into operation thereby pleading the necessary facts in support of his title
Evidence was tendered to prove what has alleged
To counter the claim the defendants have asserted that the consideration was paid under the deed and counter evidence was tendered
The entire evidence was fully apprecited by the Appellate Court and the findings recorded
Thus the Appellate Court recorded definite findings on a clear analysis of the entire evidence and the findings are fully supported by the evidence on record
Therefore no error had been committed by the learned Judge in his approach
597C D 599B C