vil Appeal No 1 of 1986 From the Judgment and Order dated 721986 of the Bombay High Court in W P No 4802 of 1984 DR Thadani and Shri Narain for the Appellants
NN Keshwani RN Keshwani and Girish Chandra for the Respondents
The Judgment of the Court was delivered by BC RAY J
The Maitrai Park Co operative Housing Society Ltd has filed a dispute before the first Co operative Court Bombay stating inter alia that the opposite party No I Smt
Mohini R Adwani PG NO 34 who is a member of the society and was allotted flat No 15 in Societies F  building in scheme No 1 at Chambur Bombay 71 inducted the appellant opposite party No 2 without obtaining the prior written consent of the society in May 1969 on the basis of a leave and licence agreement for a period of 11 months
The said society Maitrai Cooperative Housing Society Ltd was divided into two units that is Maitrai Park Co op
Housing Society Ltd Chambur which is the owner of the building in Scheme No I including Building No F and the Maitrai Bijoy Co op
Housing Society Ltd Chembur 74 Scheme No 2 by order of the Assistant Registrar Co operative Housing Society Ltd Bombay
By virtue of the division of the society the assets and liabilities so far as scheme No 1 were taken over by the present disputant society that is Maitrai Park Co operative Housing Society Ltd and the members in respect of the said building in scheme No I automatically became members of the society by the Order No BCM HSG4633 of 1970 from 681971
The respondent opponent No 2 automatically became a member of the disputed society in respect of the said flat No 15 in F  building
The opposite party appellant who was occupying the premises unauthorisedly after the expiry of the period of the licence was asked to vacate the flat by the member of the society that is the respondent No 2
As he did not accede to the request the respondent No 1 society had to take steps for evicting the appellant from the said flat so that the respondent No 2 can occupy the same for her residence
The society served a notice on the appellant for vacating the flat
But the appellant did not vacate the flat
Therespondent No l the housing society filed a dispute before the Cooperative Court for eviction of the appellant who was in unauthorised occupation of the flat and who had been using the said residential flat by opening a canteen therein in violation of the bye laws framed by the society
The appellant questioned jurisdiction of the Co operative Court to entertain the dispute on the ground that the dispute does not come within purview of Section 9 l of the Co operative Societies Act as he has been continuing in possession as licencee till the date of filing of the dispute and the respondent No 1 the member of the society has been receiving licence fees from him
It has also been stated that in one of the receipts issued by the member
The word rent  has been used
The appellant also pleaded that continuing as a licencee he has become a tenant under section l5A of the amended Bombay Rent Act on and from Ist of February 1973
The dispute is as such beyond the jurisdiction of the Co operative Court
The Co operative Court after hearing the parties made an award holding that the dispute fell within the purview of section 9 l of the Maharashtra Co operative Societies Act 1960 as the appellant is claiming to be in possession of the flat as licencee through a member of the PG NO 35 society
It also held that there was no subsisting agreement of licence in favour of the appellant on the d ate of the enforcement of section 15A of the Bombay Rent Act and so the appellant had not become a deemed tenant
Against this award an appeal was filed before the Maharashtra State Co op
Appellate Court
The appeal was dismissed and the award of the Co operative Court directing eviction of the petitioner from the Flat No 15 was affirmed
The appellant thereafter moved the High Court of Bombay in Writ Petition No 4802 of 1984
The said writ petition was dismissed with costs
The appellant thereafter filed the instant special leave petition
The facts of the case are more or less similar to the facts of CA No 472 of 1985
We have already held that the dispute in question comes within purview of Section 91 of the Cc operative Act as the appellants claim to be in possession of the flat through a member of the society which is a Co partnership Housing Society and Section 15A of the Bombay Rent Act does not apply as there was no subsisting agreement of licence on 121973
Therefore the judgment rendered by us in CA No 472 of 1975 will also govern this case
The appeal is therefore
dismissed without any order as to costs
The decree will not be executed for a period of four months from the date of this order subject to the appellant s filing an usual undertaking within a period of two weeks from today to the effect that the appellant will not transfer assign or encumber the flat in question in any manner whatsoever and on undertaking that he will hand over peaceful possession of the flat question to the respondent on or before the expiry of the aforesaid period and he will go on paying the occupation charges equivalent to the amount he had been paying for each month by the 7th of succeeding month
In default of compliance of any these termsthe decree shall become executable forthwith


Summary:
Respondent No 2 a Co operative Society allotted a flat to respondent No l Respondent No 2 sought recovery of possession of the flat on the ground that the appellant was inducted into the flat without the written consent of the Society
The appellant pleaded that it was continuing in possession of the flat on the basis of the lease and licence agreement by payment of licence fee and as such the dispute did not come within Section 91 of the Co operative Societies Act as it had become as tenant under Section 15A of the Bombay Rent Act
The Cooperative Court after hearing all the parties made an award holding that the dispute fell within the jurisdiction of the Cooperative Court and that the appellant was occupying the flat in question as a trespasser after the licence in its favour was terminated and that there was no subsisting licence to occupy the flat by the appellant on Ist February 1973 and so Section 15A of the Bombay Rent Act was not applicable
The appellant s appeal to the Appellate Authority and writ petition to the High Court having been dismissed the appellant appealed by special leave to this Court
Dismissing the Appeal HELD 1
The appellant is an outsider who has been permitted to possess the suit premises as licencee of respondent No 2 in contravention of the Rules bye laws and regulations of the society
The dispute falls squarely within the provision of section 91 of the Maharashtra PG NO 29 PG NO 30 Cooperative Societies Act 1960 and the Cooperative Court has exclusive jurisdiction to entertain and decide the dispute and not the Court under the Bombay Rent Act 1947
Ms AVR  Co  Ors
vs Fairfield Cooperative Housing Society Ltd 1988 Supp
3 SCR48
The decree will not be executed for a period of four months
The appellant will not transfer assign or encumber the flat in any manner whatsoever and hand over peaceful possession of the flat on or before the expiry of the aforesaid period
He will go on paving the occupation charges equivalent to the amount he had been paying for each month 7th of succeeding month
In default of compliance the decree shall become executable forthwith
31E F