o 1574 of 1971
Appeal by special leave from the judgment and order dated July 67 1971 of the Bombay High Court in Special Civil Application No 619 of 1971
section V Gupte and P N Tiwari for the appellants
K section Chawla section N Mishra and section section Jauhar for the respondents
The Judgment of the Court was delivered by Mitter J
This is an appeal by special leave from a judgment and order of the Bombay High Court in a Special Civil Application from a decision
of the Court of Small Causes Bombay in exercise of its revisionary jurisdiction
The revisional court had reversed the decision of the trial court and remanded the matter for disposal of the issues other than issues 2 to 8 tried as preliminary issues and decided in favour of the plaintiffs before the Court of Small Causes
The facts are as follows
Respondent No 1 was the owner of a flat on the second floor of Block No 8 Shyam Niwas  Warden Road I Bombay
She was a member of a Co operative Housing Society and had acquired the flat from the said society
In 1959 she had put the appellant Sabharwal Brothers in possession of the flat for a period of 11 months on payment of Rs 510 per month
There was an agreement in writing which purported to show that the possession was to be on leave and licence basis
This agreement was signed by a partner of Sabharwal Brothers who also became member of the said Co operative Society
There were repeated renewels of the said agreement until 25th October 1962 when the first respondent asked the appellants to vacate possession on the ground that she required the flat for her personal occupation
As this was not complied with she filed a statement of claim before the Registrar of Co operative Societies on the ground that there was 55 a dispute within the meaning of section 911 of the Maharashtra Co operative Societies Act Thereinafter referred to as the Act  which required adjudication There was a challenge to the jurisdiction of the nominee of the Registrar to whom it was referred by the appellants
The proceedings before the nominee went on for some time on July 3 the nominee made an award to the effect the appellants were occupying the flat on leave and licence basis
Anticipating the award the appellants filed a suit in the Court of Small Causes Bombay stating that they were in occupation of the flat as tenants and as such entitled to protection under the Bombay Rent Act 1947 and the first respondent had no right to evict them
In her written statement the defendant denied that the plaintiffs were tenants contending inter alia that the plaintiffs were occupying the flat only on leave and licence basis etc that the dispute between the parties had been referred to the Registrar of Co operative Societies for disposal and finally that the Court of Small Causes had no jurisdiction to entertain and try a suit involving such a dispute
The Small Causes Court framed no less than twelve issues of which issues 2 to 8 related to the maintainability of the suit and the jurisdiction of the court in view of the provisions of section 91 1 d of the Act
The Small Causes Court held that the suit was maintainable and answered the other preliminary issues in favour of the plaintiff
The matter was taken in revision to a Bench of the said Small Causes Court
The Bench took a different view holding that the Registrar s nominee did have jurisdiction to try the dispute between the parties and remanded the proceedings to the trial court for disposal of the suit after deciding on issue as to res judicata by reason of the award of the nominee
The High Court dismissed the Special Civil Application of the plaintiffs holding that the revisional court of the Small Causes was justified in coming to the conclusion that it was not open to the plaintiffs to contend that the Registrar or his nominee had no jurisdiction to entertain the dispute on the two grounds on which it was challenged
Before us the main points urged on behalf of the appellants were first whether there was any dispute between the parties touching the business of the Co operative Society which could be decided by the Registrar or referred by him to a nominee for disposal and secondly whether the suit filed in the Small Causes Court was maintainable having regard to the nature of the relief sought
The central question thereforeis whether the dispute between the parties is capable of reference under the Act
The relevant portion of section 91 1  b of the Act runs as follows 1 Notwithstanding anything contained in any other law for the time being in force any dispute touch 56 ing the constitution  management or business of a society shall be referred by any of the parties to the dispute if both the parties thereto are one or other of the following a         b a member past member or a person claiming through a member etc  section 913 provides  Save as otherwise provided under subsection 3 of 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
We may also note the relevant portion of section 163 1 which provides I  Save as expressly provided in this Act no civil or revenue court shall have any jurisdiction in respect of a b any dispute required to be referred to the Registrar or his nominee c Before the Court of Small Causes reference was made to bye law No 2 of the Society to show that the objects of the society were inter alia to carry on the trade of buyingselling hiring and letting land in accordance with the co operative principles and under Regulation No 5 in form A  printed at the end of the bye laws No tenant shall assign underlet vacate or part with the possession of the tenement or any part thereof without the consent in writing of the society
 The Bench of the Court of Small Causes referred to the above provisions and observed that the bye laws of the society constituted an agreement between the members of the society and a breach thereof would affect the defaulting member s right of membership of the society and consequently a dispute relating to the letting of the flat was a dispute which touched the business of the society
57 Mitter J The High Court referred to section 91 of the Co operative Socities Act
and section 28 of the Bombay Rent Act and observed There is a competition between two authorities a court and the Registrar s nominee both exercising exclusive jurisdiction in respect of matters coming within their jurisdiction and concluded that on general principles of law it would not be proper to allow the same question to be agitated again under a different guise
It also observed that the decision taken by the Assistant Registrar and the nominee could have been decided by an appeal and as no appeal had been filed the provisions of law must have their effect with the result that the decision of the dispute by the nominee of the Registrar had become final
With all respect to the High Court it seems to us that there was a fundamental error in the above approach
No doubt it was the business of the society to let out premises and a member had no unqualified right to let out his flat or tenement to another by virtue of the bye laws and a breach of the bye laws could affect the defaulting member s right to membership
But we are not able to see how letting by a member to another member would touch the business of the society which included inter alia the trade of buying selling hiring and letting land in accordance with co ope rative principles
The letting of flat by respondent No 1 was a transact ion of the same nature as the society itself was empowered to enter into but such letting by itself did not concern the business of the society in the matter of its letting  out flats
Nothing was brought to our notice to show that such a letting would affect the business of the society once it had sold the flat to the respondent No 1
The position might have been different if the latter had himself been a tenant of the flat under the society
To touch means to come in contact with and it does not appear that there is a point of contact between a letting by the respondent No 1 and the business of the society when the society was not itself the landlord of the flat
Reference was made at the Bar to Deccan Merchants Co opera tive Bank Ltd vs Ms Dalichand Jugraj Jain and others 
The facts there were very different from those of the instant case
1 1969 1 SCR 887
5 LI208 Sup C I72 58 But the Court had to consider the question of competing jurisdiction under the Bombay Rent Act and the Act and it is pertinent to note the observations at p902that 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 In the result we allow the appeal set aside the judgement and order of the High Court And of the Bench of the Court of Small Causes
The matter is now to go back to the Court of Small Causes for disposal according to law
The appellants will have the costs incurred in this Court
Appeal allowed


Summary:
The respondent was the owner of the flat on the second floor of a Building in Bombay
She was a member of a Co operative Housing Society and had acquired the flat from that society
In 1959 she had put the appellant in possession of the flat for a period of 11 months on payment of Rs 5101 per month
According to the written agreement the possession was given on leave and licence basis
The government was signed by one of the partners of the appellant firm who also became members of the said Co operative Society
The agreement was renewed until 25th October 1962 when the first respondent asked the appellants to vacate possession on the ground that she required the flat for personal occupation
As this was not complied with she filed a statement of claim before the Registrar of Co operativc Societies on the ground that there was a dispute within the meaning of section 911 of the Maharashtra Co operative Societies Act
The Registrar referred the case to a nominee whose jurisdiction was challenged by the appellants
Nevertheless the proceedings before the nominee went on for some time and on July 3 1964 the nominee made an award to the effect that the appellants were occupying the flat on leave and licencee basis
The appellants anticipating the award filed a suit in the Court of Small Causes Bombay stating that they were in occupation of the flat as tenants and as such entitled to protection under the Bombay Rent Act 1947
The Small Causes Court held that the suit was maintainable and answered the other preliminary issues in favour of the plaintiff
In revision the bench of the Small Causes Court held that the Registrar s nominee did have jurisdiction to try the dispute between the parties and remanded the proceedings to the trial court for disposal of the suit after deciding an issue as to res judicata by reason of the award of the nominee
The High Court up held the order of the bench
In this Court the questions that fell for consideration were 1 Whether there was any dispute between the parties touching the business of the co operative society which could be decided by the Registrar or referred by him to a nominee for disposal and 2 Whether the suit filed in them Small Causes Court was maintainable having regard to the nature of the relief sought
Allowing the appeal HELD  i No doubt it was a business of the society to let out premises and a member had no unqualified right to let out his flat or tenement to another by virtue of the bye laws and a breach of the byelaws could affect the defaulting member s right to membership
But HELD  i No doubt it was a business of the society to let Out touch the business of the society which included inter alia the trade of buying selling hiring and letting land in accordance with cooperative principles
The letting of flat by respondent No 1 was a transaction of 54 the same nature as the society it if was empowered to enter into but such letting out itself did not concern the business of the society in the matter of its letting out flats
There was nothing to show that such letting would effect the business of the society once it had sold the flat to the respondent No 1
The position might have been different if the latter had himself been a tenant of the flat under the society
To touch means to corn in contact with and it did not appear that there was a point of contact between a letting by the respondent No 1 and the business of the society when the society was not itself the land lord of the flat
57D G ii As observed by this Court in an earlier case the Bombay Rent Act and the Maharashtra Cooperative Societies Act can be harmonised best by holding that in matters covered by the Rent Act its provisions rather than the provisions of the Co operative Societies Act should apply
58A Deccan Merchants Co operative Bank Ltd vs Ms Dalkhand Jugraj Jain and others 1969 1 SCR 887 distinguished