Case: Shri Puran Singh Sahni Vs. Smt. Sundrifbhagwandas Kripalani

the business of a society in Section 91(1) does to 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 and 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 letter 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 societies 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 and not impinge on the objective underlying the Maharashtra Cooperative Societies Act 35. In O. N. Bhatnagar v. Rukibai Narsindas ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ), 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 proceedings under Section 91(1) of the Maharashtra Cooperative Societies Act, 1960 were 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 91(1) 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 5(4-A) and 15-A of the Rent Act, it is clear that the appellant was not entitled to the protection of Section 15-A. The sine qua non for the applicability of Section 15-A of the Rent Act was that a licensee must be in occupation as on February 1, 1973 under a subsisting license. 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 respondent 1 on March 10, 1972. That being so, the appellant was nothing but a rank trespasser and was not entitled to the protection of Section 15-A of the Rent Act and could not, therefore, plead the bar of Section 28(1) thereof 36. In Hindustan Petroleum Corporation Ltd. v. Shyam Cooperative Housing Society ( 1988 (4) SCC 747 ), at paragraph 14 it was held under the facts of that case that the petitioner Hindustan Petroleum Corporation Ltd. was clearly protected under Section 15-A of the Rent Act and in that view of the matter the jurisdiction of the Registrar under Section 91(1) of the Cooperative Societies Act would be as laid down in O.N. Bhatnagar case ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ). The proceedings initiated under Section 91 were accordingly quashed. This case is, therefore, distinguishable on facts 37. Following Bhatnagar case ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ). in Krishna Rajpal Bhatia v. Leela H. Advani ( 1989 (1) SCC 52 ), 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 societys 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 societys bye-laws and the licence was 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 Registrars jurisdiction to entertain the claim was held not to have been barred under Section 28 of the Rent Act38. 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 jurisdiction39. The next question, namely, Section 91 is ultra vires 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

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. 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 the 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 give the benefit of the RentIt 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 Isaacv. Hotel De Paris Ltd. ( 1960 (1) All(ER) 348: 1960 (1) WLR 239(PC)), the respondent company owning the Hotel de Paris were the lessees of another building called the P. Hotel, it was held that the respondent company were entitled to an order for possession because the relationship 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 P. Hotel with no interest 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.In view of licence of the appellant having been cancelled on March 10, 1972, licence as defined by the Rent Act itself, would not apply, to the appellants case. He would, therefore, not be protected under Section 15-A of the RentAct38. 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 jurisdiction39. The next question, namely, Section 91 is ultra vires 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