# Deccan Merchanrs Cooperative Bank· Ltd v. M/s. Dalichand lugraj Jain - **Citation:** [1982] 3 S.C.R. 681 - **Court:** Supreme Court of India - **Decided:** 1982 - **Bench:** S. Murtaza Fazal Ali, A.P. Sen, E.S. Venkataramiah - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/deccan-merchanrs-cooperative-bank-ltd-v-m-s-dalichand-lugraj-jain-8354 - **Pages:** 19 ## Headnote 681 Maharashtra C'oofllrative Societies Act, 1960 Section 91(1)-'~Dispute touch· ing the business of the Society"-Whtther a claim for ejectment by a Hous/116 COopeTtiliv~ Soci~ty o,,r. an occupant of a lflat who had been let i1'to pOssession of the premises under an agreement of leave and licence executed between him and a member of tM Society is a "dispute" referable to section 91(1) oftM Act read with bye/aw• 66 & 68(a). A B c Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Sections D 5(4A), 13, ISA and 28, (Scope of-WhetMr the "non-obstante" clauJe In Section 28 of the Rent A.ct has an overriding effect ove'r the non-obstante clau1e in Section 91(1) of Sockti•s Act. Applicability of Section 15A of the Rent Act Re:!}udlcata -Section 11 of the Civil Procedure Code. Shyam Cooperative Housing Society Limited is constituted under the provisions of the Maharashtra Cooperative Societies Act, 1960 as a tenant copartnership type housing society. Respondent No. 1 Smt. Rukibai N. Bhayoaoi who is a copartoer tenant member of llat No. 52 in building SA in the housing colony known as "Sbyam ,Niwas'~ situate at Warden Road, Bombay, iriducted the appellant in the said fiat under an Agreement of Goa ve and Licence dated November 28, 1961 after the appellant was accepted by the Society as a'"nominal member". , The agreement was renewed from time to time and tho period of the Jut agreement expired on February 28, 1965.. By her notice dated March 31, · 1965;,rcspondoot NO'. I called upon the. appellant to vacate the premises as bis occuP.tioo of the promises had become unlawful after .termination of the licence. The appellant failed to comply with the demand and therefore, respondent No. I preferred the claim f0r posso1Sion before tho cooperative court which by its judgment dated April 28, 1978 made ·an Award against the appellant for possession .. r the fiat in dispute and for arrears of rent and mesoo profits amounting to Rs. 30,000 against (tho awar.d )tho appellant filed an appeal before . the cooperative Appellate Court but it was ·dismissed in January 1979. Thereafter ihe appellant filed a Writ Petition in the High Court in February 1979 and it was dismissed in March 1981. Tho Letters patent Appeal preferred by tho appellant was also rejected. ·Hence the appeal by.special !eave. Dism;uiog the appeal, the Court, . HBLD '" (!) Tho claim by ·the society together with SUCb member for eject· tnent of a person who was permitted ·to otcllPY having become a ~ominal member E F G H • A c D F G H SUPREME Cl>UllT RSl'<>RTS II ~~21 3 s.c.li. thereof, upon- revocation of 1iccnce, is a "dispute" falling within the purview of Sec. (I) of the Maharashtra Cooperative Societies Act, 1960. [696 D-E] Deccan Merchanrs Cooperative Bank· Ltd. v. M/s. Dalichand lugraj Jain & Ors. [1969] I SCR 887, distinguished. · 2:1 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 can be best harmonised by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act should apply. But, where the parties admittedly do not stand in tho-jural relationship of landlord an.d tenant, as here the dispute would be governed by Section 91(1) of the Societies •Act. The appellant by virtue of his being a nominal member, acquired a riRht to occupy the fiat as a licensee, but his rights were inchoate. [697 B-D] Sabharwa//Jrothers and Another v. Smt, Guna Amrit Thandani of &Jmbay, -. [1973] l SCR 53 discussed and distinguisljed. · ~ 2:2 The two enactments deal with two distinct and separate fields and therefore the nan-obstante clause in s. 91(!) of the Act and that ins. 28 of the Rent Act ope.rate in two different planes. The two legislations rertain to different topics ofl~gislation. It will be noticed that s. 28 of the Rent Act proceeds on the basis that exclusive j ## Text _Characters 0–39,721 of 48,642. This is a partial read: ask again with offset=39721 for what follows._ " • ,.<., 0. :N. BHATNAGAR v., SMT. RUKIBAI NARSINDAS & ORS. April 2 I; /982 [S. MURTAZA FAZAL ALI, A.P. SEN AND E.S. VENKATARAMIAH, JJ.) 681 Maharashtra C'oofllrative Societies Act, 1960 Section 91(1)-'~Dispute touch· ing the business of the Society"-Whtther a claim for ejectment by a Hous/116 COopeTtiliv~ Soci~ty o,,r. an occupant of a lflat who had been let i1'to pOssession of the premises under an agreement of leave and licence executed between him and a member of tM Society is a "dispute" referable to section 91(1) oftM Act read with bye/aw• 66 & 68(a). A B c Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Sections D 5(4A), 13, ISA and 28, (Scope of-WhetMr the "non-obstante" clauJe In Section 28 of the Rent A.ct has an overriding effect ove'r the non-obstante clau1e in Section 91(1) of Sockti•s Act. Applicability of Section 15A of the Rent Act Re:!}udlcata -Section 11 of the Civil Procedure Code. Shyam Cooperative Housing Society Limited is constituted under the provisions of the Maharashtra Cooperative Societies Act, 1960 as a tenant copartnership type housing society. Respondent No. 1 Smt. Rukibai N. Bhayoaoi who is a copartoer tenant member of llat No. 52 in building SA in the housing colony known as "Sbyam ,Niwas'~ situate at Warden Road, Bombay, iriducted the appellant in the said fiat under an Agreement of Goa ve and Licence dated November 28, 1961 after the appellant was accepted by the Society as a'"nominal member". , The agreement was renewed from time to time and tho period of the Jut agreement expired on February 28, 1965.. By her notice dated March 31, · 1965;,rcspondoot NO'. I called upon the. appellant to vacate the premises as bis occuP.tioo of the promises had become unlawful after .termination of the licence. The appellant failed to comply with the demand and therefore, respondent No. I preferred the claim f0r posso1Sion before tho cooperative court which by its judgment dated April 28, 1978 made ·an Award against the appellant for possession .. r the fiat in dispute and for arrears of rent and mesoo profits amounting to Rs. 30,000 against (tho awar.d )tho appellant filed an appeal before . the cooperative Appellate Court but it was ·dismissed in January 1979. Thereafter ihe appellant filed a Writ Petition in the High Court in February 1979 and it was dismissed in March 1981. Tho Letters patent Appeal preferred by tho appellant was also rejected. ·Hence the appeal by.special !eave. Dism;uiog the appeal, the Court, . HBLD '" (!) Tho claim by ·the society together with SUCb member for eject· tnent of a person who was permitted ·to otcllPY having become a ~ominal member E F G H • A c D F G H SUPREME Cl>UllT RSl'<>RTS II ~~21 3 s.c.li. thereof, upon- revocation of 1iccnce, is a "dispute" falling within the purview of Sec. (I) of the Maharashtra Cooperative Societies Act, 1960. [696 D-E] Deccan Merchanrs Cooperative Bank· Ltd. v. M/s. Dalichand lugraj Jain & Ors. [1969] I SCR 887, distinguished. · 2:1 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 can be best harmonised by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act should apply. But, where the parties admittedly do not stand in tho-jural relationship of landlord an.d tenant, as here the dispute would be governed by Section 91(1) of the Societies •Act. The appellant by virtue of his being a nominal member, acquired a riRht to occupy the fiat as a licensee, but his rights were inchoate. [697 B-D] Sabharwa//Jrothers and Another v. Smt, Guna Amrit Thandani of &Jmbay, -. [1973] l SCR 53 discussed and distinguisljed. · ~ 2:2 The two enactments deal with two distinct and separate fields and therefore the nan-obstante clause in s. 91(!) of the Act and that ins. 28 of the Rent Act ope.rate in two different planes. The two legislations rertain to different topics ofl~gislation. It will be noticed that s. 28 of the Rent Act proceeds on the basis that exclusive jurisdiction is conferred on certain courts to decidei all questions or claims under that Act as to parties between whom there is or was a relationship of landlord and tenant. It doea not invest those courts with exclusive power to try questions of title, such as between the rightful· owner and a trespasser or a licensee, for such questions· do not arise under the A~. The appe1lant having raised a plea in the nature of d~murrer, the question of jurisdiction had to be determined with 4dvertence to the allegations contained in the ~tatement of claim made by the respondent No. 1 under s. 91(1) of the Act and those allegations must be taken .to be true. The respondent No. I unequivocally asserts that tbe parties stood in the relation of licensor and licensee and that . ' fact is clearly borne out by the terms of the agreement of leave and ·licence as between the parties. The burden was on the appellant to establish that he hid the status of a "tenant" within the meaning of s. S(ll) of- the Rent Act, as it then stood, and that burden he has failed to discharge. If, · therefore, plaintiff l in the plaint does not admit a.relationship .·which would attract any of the provi~ ~-/- sions of the Act on which the exclusive jurisdiction given in- s. 28 depends, the ,. defendant cannot by his plea force the plaintiff' to go .to a "forum where on averments the claim does not lie. [689 A-El • 3:1 Upon the terms of Sections 5(4A) and 15A of the Rent Act, it is clear that the appellant is not Cotitled to the protection of Section ISA. The sine qUa non for the applicability of s. 15A of tbe Rent Act is that a licensee must be in oi::cupation as on Feb. 1, '73 under a subsisting li'cence. It is not diiputed that the appe1Jaot does not answer tha't dCscripti'on ·since the _agreement of leave and-:::. lic~ce in his favour admittedly stood terminated by the notice of the respondent No. I dated March· 31, 1965. That being so, tho appellant is nothing but a rank trespasser and is not entitled to the protection of s. 15A of the Rent Act and cannot therefore plead tho bar of s. 28(1) thereof •. [G90 F-H] + ' . t b. N. llllA'l'NAl'.lAll ~. RUklllAI 683 3:2 As a result of the introdilction of s. ISA and. s. S(4A). of the Rent Act A by Maharashtra Act J.7 of 1973, the licensee of any wemi!iOs or any part thereof in a building v~stingjn or leased to a cooperating housing society registered or deemed to be registered under the Act, who was in occupation of such premises under" a subsisting licence as on Feb. 1, 1973, is by a legal fiction, deemed to be a tenant add thus has the prOtectioo, of the Rent Act. In such a case, the dispute between a licensor and a licensee relating to possession of the premises of a flat would attracts. 28 read with ss. !SA and S(4A) of the Rent Act and fall outside . B the purview of the Regis.trar's jurisdiction to adjudicate upon such dispute under s. 91(1) of the Societies Act. In the instant case the question does not arise. [691. A-Cl . 3:3 A bare reading of the agreement of leave and licence is clearly indi .. cative of the fact that the appellant was a licensee. Admittedly his occupation Of the fiat was not as a tenant but as a Jicensee. The question whether or not -~the appellant was a licensee· Of the fiat or a tenant thereof was directly and substantially ill issue between the parties in the suit. The finding that he was~ot a tenant{but had only the status of 8: licensee operates as resjudicata between the par.ties. The appellant having failed in his suit for declaration of his alleged status of a tenant brought in the· court of small causes cannot be perlnitted to reagitate the same question in these proceedings and (iii) tho licence of the appellant having been terminated by respondent No. 1, by h~r notice dated March 31, 1965, the appellant was not in occupation of the fiat on Feb. I, 1973 under a subsisting licence and therefore did ·noi acquire the status of a tenant under 8ection ISA and is, not protected 11nder section 13 of the Rent Act. [691 B-H; 692 A) 4. · The respondent NQ. 2-Society being a copartnership type housing society, having let fiat no. S2 to the respondent no. I as a copartner tonantmember, wa_s vitally interested in ettsuring that no stranger is in unauthorised occupation of tbe fiat after the expiry of the terni of tho licence. It was therefore rightly transposed as a co-disputant in the proceedings under section 91(1) of the Societies Act, .and could raise a dispute regarding the unauthorised occupation of the premises by the appellant after the revocation of the licence. [693 D-G) C1VIL APPilr.LATB Jua1so1CT10N : Civil Appeal No. 1843 of 1981. Appeal by special leave from the judgment and order -dated the·2lst April, 1981 of the Bombay High Court in Appeal No. 168 of 1981. · ' H.H. Adva~i, P.R. Ramasesh and Manu lyanger for the Appellant.· S.N. Kackar, V.K. Panwani and Girish Chandra for .the c D E F G Respondents. H The Judgment of the Court was delivered by B c D 'E " F G H ' 684 StJPk~MB CObRt ki!l>()kts · [1982! 3 s.c.i. SEN, J. This appeal by special leave directed against the judgment of the Bombay High Court dated April 21, 198 I raises a qμestion of some importance. The question is whether a claim for ejectment by a housing cooperative society, of an occupant of a flat who bad been let into possession of the premises under an agreement of leave and licence executed between him and a member of the society, by virtue of bis being a nominal member thereof, is a 'dispute touching the business· of the society' within the meaning of sub-s. (I) of s. 91 of the Maharashtra Cooperative Societies Act, 1960 (for short 'the Act'). The material facts giving rise to this appeal are as follows. The respondent No. 2 herein, Sbyam Cooperative ·Housing Society Limited is constituted under the provisions of the Maharashtra Cooperative Societies Act, 1960 as a tenant co-partnership type housing society to which Regulations in Form-A apply vfz. Regula- . tions relating to tenancies to be granted by the society to members in respect of houses held by the society. It owns and manages two bousing'colonies known as 'Sbya_m · Niwas'· and 'Navik Niwas' at Warden Road, Bombay. The society ~on_tinues to be governed by Regulations in Form-A ever since they were adopted by it after approval by the Registrar of Cooperative Societies in 1950. It appears that in 1954 the Directors passed a resolution for the intro· duction of Regulations in .Form-B but it was never implemented. The respondent No. I Rukibai N. Bhavnani is a' co-partner tenant member of flat No. 52 in building No. 5-A in· ,the housing colony known as 'Shyam Niwas' situate at Warden Road, Bombay .. The respondent No. 1 inducted the appellant in flat No. 52 under an agre~ment of leave and licence dated Novell!ber 28, 1961. The byelaws of the society provide that no member can part with his posses~ion of the flat under an ~agreement of leave and licence to another except with the approval of the .society and unless such licensee becomes a nominal member thereof. The respondent Nq. I and the appellant accordingly appiied to the society on December 8, 1961 for accepting the appellant to be a nominal member. The respondent No. ~ society passed a resolution N,o. 90 on December 15, 1961 ,accepting the appellant as a nominal member. The leave and licence agreement executed by the respondent No. I was renewed from time to time and the last agreement was executed on January 10, 1965, the term of which was to expire on February 28, 1965 .. By her notice d!lted March 31, 1965 the respondent No. I called upon the appellant to vacate the premises as his occupation .> t ' . ' ---- "'- t 0. N. BHATNAGAR v. RUKIBAI (Sen; I.) 685. of the premises .had become unlawful after termination of the licence. The appellant failed to comply with the demand and has remained in unauthorised occupation of the fiat for all tbese years .. After termination of the agreement, in May 1965, the respondent No. J Smt. Ruklbai N. Bhavnani <:!aiming to be a co-partner. tenant m~mber of the society and as such holder of fiat No. 52, brought proceedings against the appellant before the District Deputy Registrar Cooperative Societies Bombay under s. 91 (I) of the Act for his eviction and for recovery of arrears of compensation and mesne profits, impleading the society as Opponent No .. 3. On re· ceipt of the claim under s. 91(1) the Assistant Registrar, Cooperative Societies issued notice to the appellant for the purpose of satisfying himself that a dispute under that section existed. The appellant however did not appear before the Assistant Registrar who was seized with th.e matter but instead filed an application before the Court of Small Causes, Bombay for fixing stand.ard rent of the flat in disput.e. These proceedings were stayed pending adjudication of th~ dispute by the Assistant Registrar. The Assistant Registrar in the meanwhile proceeded with' the inqqiry and after holding that such a dispute exist he referred the case to the Registrar's 1,1ominee for adjudication. The appellant did not challenge the decision of the Assistant Registrar. Before the Registrar's nominee the appellant filed his written statement and thereafter evidence of the parties was recorded. · It appears th~t when the proceedings before the nominee were about to end he returned the papers to the Registrar as he did not want to proceed further in the· matter. When the Registrar's nominee returned the papers, the • Registrar assigned the case to a retired District Judge as an ·Officer on Special Duty to adjudicate upon the dispute under s. 91 of the Act, as by then the old system of su~h adjudication by the Registrar's nominees had been replaced by the appointment of Officers on Special Duty. Before the Officer on Special Puty the appellant made a demand for a de novo trial which was granted. Again, the J~vidence of both the parties was recorded and the matter reached the stage of argument but in the meanwhile, in April, 1970, the appellant brought a suit in the Court of Small Causes, Bombay for a declaration that he was a tenant of respondent No. 3 in respect of the flat in dispute and obtained a temporary i0junction restraining respondent No. I .from. proceeding with her case before \he Officer on Special Duty. Thus, the proceedings before the Officer on Special Duty remained stayed till A B c D • E F G H A B c D E G H 686 SUPREMB COURT RllPORTS (1982) 3 S.C.R •. April, 1972, when the.suit filed by the appellant in the Court of Small Causes, Bombay was dismissed both on merits as well as on the ground that it was barred by limitation. After the dismissal of the suit brou"ght by the appellant, the proceedings before the Officer on Special Duty were revived in 1972. Meanwhil~. the case bad been assigned to another Officer on Special Duty, a retired Preside'ncy Magistrate, for adjudication. Before him the appellant again demanded a de novo trial which was granted and therefore evidence had to be recorded afresh. During the stage of of evidence, respondent No. 2 applied for and obtained leave to be transposed as a "disputant" as the Bombay High Court took the view that unless the societ)' was a disputant the Registrar would · have no judsdiction to proceed under s. 91 ( l) of the Act. The O.fficet on Special Duty by· his order dated August.27, 1973 rejected the application for transposition made by respondent No. 2. Thereupon; respondent No. 2 perferred a revision before the Maharashtra Cooperative Societies Tribunal which by its order dated· February 8, 1974 allowed its application for transposition as a codisputant. The appellant tried to assail the order of the Tribunal by a writ petition but a-Qivision !lench of the High Court by its judgment dated January 9, 1976 d.eclined to interfere. By this time the system of Officers on Special Duly was again replaced, now by the setting up of Cooperative Courts. After tlie dismissal of the writ petition, the proceedings initiated by respondent No. 1 were assigned to a Judge of the Cooperative Court, Maharashtra. Before him the original plaint was amended making necessary averments with respondent No. 2 as a co-disputant. Again the appellant asked for a de novo trial, but in view of the provisions of s. 9.l·A(4) bis· application was rejected Respondent No. 1 was however resummoned for further cross examination and thereafter the appellant's evidence was recorded. In August, 1977 there was a change of the J~dge of the Codperative Court and the appellant repeated his prayer for a de novo trial but this application of his also rejected. The learned Judge of the Cooperative Court by his judgment dated April 18, 1978, made an award against tbe appellant for -possession of the flat is dispute and for arrears of rent and mesne profits amounting to Rs. 30,000. Against the award the appellant filed an appeal before the Cooperative Appellate Court but it was dismissed in January, 1979. Thereafter the appellant filed a writ petition in the High Court in February, 1979 and it was dismissed in March, 1981 by a learned single Jud~e. The appellant unsuccessfully • ~ ). :::; ~- '- • t O.N. BHATNAGAR v. ll.UKIBAI (Sen, J.) 687 preferred a Letters Patent Appeal w~ich was dismissed by a Division · Bench on April 21, 198 L There are three questions to be determined in the appeal. They arc : (!) Whet~er having regard to the fact that the parties . stood in the relationship of landlord and tenant in respect of fiat No. 52, the remedy of the r~spondent No. 1 lay by way of a suit for eviction, before the Court of Small Causes, Bombay and not by . . - II refcreocc to the Registrar under s. 91 (I) of the Act ? It is urged that the agreement of leave and licence was. merely a colourable transaction for what in reality, was a lease and therefore the appellant was entitled to the protection from eviction under s. 1J of the Bombay Rents, Hotel and Lodging House. Rates Control Act, .1947 (for short 'the Rent Act' which is a special. law dealing with the relationship of landlord and tenant and therefore the forum for trial ,is the Court of Small Causes which is a court of exclusive jurisdiction over such matters, It is said that the non-obstante clause in s. 28 of that Act •has an overriding· effect over the nonobstante clause ins. 91(1) of )he Act. (2) Whether the respondent No. 2-society had any locus standi to make an application for trans. position, even assuming that the appellant was not a tenant but a licensee : It is urged that the appellant was entitled to question the legality and propriety of the order of transposition made in revision by the Maharashtra State Cooperative Tribunal permitting the society to be impleaded as a co-di~putant so as to bring the dispute within the purview of s. 91(~) of the Act. It is said that. the respondent No. 2-society without first terminating the nominal membership of the appellant could not make a claim for his eviction from the fiat in 1 question (3)' Whether a claim for ejectment of an occupant of a fiat by a housing cooperative society having been let into pqssession of the' premises under an agreement of leave and licence executed between him and a member of the society, by virtue of his being a nominal mem)J~nhereof, is a 'dispute touching the busines~ of the society' within the meaning of s. 91(1) of the Act? We proceed to deal with these questions in turn. . The statutory provisions bearing upon these questions are set out below. The relevant provision of sJb-s. (l) ofs. 91 of the Act, prior to its amendment, provides : " "91 ( l) Notyvithstanding anythi.ng contained · in any other law for the time being in force, any-dispute touching the .. ,.,,business of a society, shall. be referred by any of A B ·C 0 E F G H A 8 c D E· .F G H 688 SUPREME COURT REPORTS (19821 3 s.c.~. the parties to the dispute ......... to ·the Registrar if both .. the parties thereto are one or other of the following :. (a) a society ............. .. (Ii) a member, past member or a person claiming through a member ............... " Section 91(2) of the Act lays down that when any question arises whether for the purpose of sub-s. (I) any matter referred to for decision is a dispute or not, the question shall be considered by the Registrar whose decision shall be final. The Registrar is, therefore, required to.decide as a preliminary issue the question whether the dispute is of the kind as between. the parties in sub-s. (I). Unless he finds that the dispute falls within s. 91(1) of the Act he will have no jurisdiction to decide it. It also a.ttaches finality to the decision of the Registrar on the preliminary issue. Section 91 (3) states that save as otherwise provided under s. 91 (3) of the Act, nci civil court shall have jurisdiction to entertain any suit' or other proceeding in respect of any dispute referred to in sub-s. {I). Section 28(1), of the Rent Act insofar as material, reads: "28(1) Notwithstanding anything contained in any law and notwithstanding . that by reason of the amount of the claim or for an:v other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction . I Bombay, the Co.urt of Small Causes {a) in Greater Bombay, {aa) xx xx xx (b) xx xx xx shall have jurisdiction to entertain and try .f apy suit or proceeding between a landlord and a tenant relating \p the recovery of rent or possession of any premises to which any of the provisions of this· Part apply ... and to decide any application made under this Act and to deal with any claim or qucsiion arising out of this Act or any of its provisions and ... no other court shall have jurisdiction to' entertain any such suit, proceeding or application ·or to !le!ll with such claim or question.'' • ..(, c -;,. .r ~--- , 'I I I ol • ~ ~ ,; {~ • .. • .~· ii O.N. BHATNAOAll. v. 11.UIJBAI iSen, i.) 68~ Tile two ~nactw~!lt$ 9e~I wi!h !)Iv,() distiqct an9 sellifrate fielcjf and iher.tfm~ the rwn·o~sfq"fl/G .c;l11μs~ ii) ,. 91(1) of the Act and that ins. 28. of the Rent Aci operate- op two different planes. the two legislations pertain to dift"er~nt 'topics of legisla.tion. It will be noticed that s. 28 of the Rent Act prjl,(lj:e~J oP ll!e bJsis that exclusi:ve juri&diction is confuri:ii en cer.t.ail! .c;qμr11 t9 lll\Cide all questions or claims under that Act .as to parti~J lwlW~I! whom there .is or was a relationship of landlord and tenant. It does not invest those courts with exclusive ·power to try questions 'of title, 1ll9J! .II! b~fwe.~q /~l' ri~~tff1) o~n~f ~~~ ,a tre~p~~ser or a !ice~s~~· for such questions do not arise under the Act: The appellant having raised a plea in the nature of demurrer, the question of jurisdic\jop ~114 ~ b~ ~!Fftpiprll4en! tfo, ~ IJl1~9μivpj:ally f~s.ens t)/~I the parties sto111! i11 ti\~ i~WjQJ .of li!;e11~or ,1μ19 !ipel!Sil'e ,lllld t~t fact is clearly bol'l!e l!Jll l>Y !hg terl!lS gf t~ llSF~~J!le111 of le.ave ap,cj )icence as betl}'~ll lb¢ JlllT#!ll• 'fhe tnn to a forum wlJ,er.e QJ! @ver111e11ts t!Je claim 4Pes 110,r J1e. · In our opinion, there is a felt need at the very outset to displace .the appellant's apprehensions that the effect of upholding the judgment ,of the ijigh f:::ourt would ~e to throw· all licensees of residfntj~I ft~ts. in m?)!i:storeyed b~!ldin.¥s befongfng to cooperative ho!J~mg ~!Jciet1es w1tho~t aily protection. The apprehensions, ff -. w~ may say SQ, appear to 6e 'wholly unfounded. .The Legislature w~s fu)!y aware of the acute paucity ·of· honsirig accommodation in the metropolitan city' of Gre~ter · Bombay and· other urban areas in the ~tate, 'll!!d. also the fact' that lessors of ownership flats were adopti~g a device of inductln$ tenants ·under the garb of an ljgreeinenl of leave arid licence \Vhfoh left the licensee·witb no protection. The Legislature therefore, stepped in and by Maharashtra Act 17 of 1973 the foilowing provisions were inserted in tlie Rent Act. Sub-s'. (1) of s. I SA of the Rent ACt, as introduced now: provides : ' . . ' "J~A(I) No!wit!ist~4iog WYlhipg co11\~ined elsewher.e in this A9t or anything contrary in any ·other ·!a1V for th~ A B I> .F G H A B c D E F G ll \ 690 SUPRllME COURT REPORTS ( 1982) 3 s.c.R. 'fl t.ime being in force, Qr in any contract, where any person is on the I st 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) xx xx xx xx 0 ~ The term "licensee" as defined in s. 5(4A), msofar as material, reads: "5. In this Act unless there is anything repugnant to the subject or cont~xt- (4A) "licensee", in respect of any premises or any part thereof, means 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 11 building vesting in or leased to a cooperative housing society registered or deemed to be registered under the Maharashtra Cooperative Societies Act, 1960; .but does not include a paY,ing guest, a member 6f a family residing together, a person in the service or employment of the licensor ·etc; ......... and the expressions "licence, "licensor., and "premises given on licence" shall be construed accordingly." ' , ... It i§ clear upon the terms of these seetions that the appellant is not - entitled to the protection of s. !SA of the Rent Act. The Legis- '·· lature in its wisdom has drawn a. line at February I, 1973 and laid ,¥'_..,... down the condition that a licensee in occupation under a subsisting ,r • licence as on that date shall. be deemed to be a tenant. The sine qua non for the applicability of s. ISA of the Rent Act is that a licensee must be in occupation as on February 1, 1973 under a subsfsting licence. ·It is not disputed that the appellant does not answer that description since the ·agreement of leave and licence .in his favour admittedly stood terminated by the.notice of the respondent No. I dated March 31, 1965. That being so, the appellant is nothing but a rank trespasser and is not entitled to the protection of s .. I SA of the Rent Act and cannot therefore plead the bar of s. 28(1) thereof. ... • • 0.N. BHATNAGAR v. RUKIBAI (Sen, J.) 691 As a result of the introduction of s. l 5A and s. 5(4A) 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 registered or deemed to ·be registered under the Act, who was in oceupation of such premises under ·a subsisting licence as on February I, 1973, 'is by a legal fiction, · deemed to be a tenant and thus bas the protection of the Rent Act. In such a case, the dispute between a licensor and a licensee relating to possession of the premises of a flat would: attract s. 28 read witm ss . .15A and 5(4A) of the Rent Act and fall outside the purview of the Registrar's jurisdiction to adjudicate upon sucl:t dispute under s. 91 (I) of the Act. Once this aspect is .kept in view, there need be no apprehension \s expressed by learned counsel for . the appellant that tbe effect of upholding the judgment of the High Court would be t<;> throw all licensees of residential flats in multi-storeyed buildings belonging to cooperative housing societies without any protection. It would be convenient to deal with the first two questions together. The submission that the a~pellant was inducted as a tenant under the agreement of leave and licence is wholly misconceived. The distinction · between a lease and a licence is wellknown. A bare reading of the agreement of leave and licence is clearly indicative of the· fact that ·tbe appellant was a· licensee. Admittedly,' his occupation of the flat was not as a tenant but as a licensee. That apart, the appellknt brought a suit before the Court of Small Causes seeking a declaration·, that it was a tenant duly protected by the Rent Act and the agreement of leave and '• ·licence was only a colourable transaction, The suit was heard on merits and was dismiised by the Court of Small Causes in July 1972. Aggrieved by that decision, the appellant preferred an appeal ~efore the Appellate Bench of the Small Causes Court but that appeal also ·'Was dismissed. The question whether or· not the appellant was a licensee of the flat or a tenant thereof was directly and substantially in issue between the parties in , that suit. The finding that be was not. a tenant but had only the status of a licensee t . operates as res judicata between the parties. The appellant having fai!ei:I in his suit for declaration of his alleged status of a tenant brought in the Court of Small Causes cannot be permitted to reagitate the same question in these proceedings. Further, the licence - of the appellant having been terminated by the respondent No. I by her notice dated March 31, 1965, the appellant was not in occu· pation of the fiat ·on Februarl/ Ii 1973 '!oder a, stibsistin~ tenancr A B c D E F G II A c D E F G H 692 SpPllBME COURT llEPOllTS l 1982] 3 s.c.R. and did not acquire the status of a tenant under s. 15A and is therefore not protected under s. 13 of the Rent Act. As bereinbefore adumbrated, the respon<)ent No. 2-society is governed by the Regulations in Form'.A: It is registered as a copartnership -type housing society. The bye,laws of the society provide, inler-alia, by Bye-law 2 that one of the objects of the society would be .to carry on the trade of buying, selling, hiring, lett!ng and developing land in accordance with cooperative principles. The respondent No. 1 is a co-partner tenant member and holds flat No. 52 in Form-A. The fl;it in question therefore belongs to the society and she is a co-partner tenant member thereof. Paragraph ·s of Form·A reads : ' "S. No ten.ant 4.l)all M§iil!, l!nderlet, vll!late or part ~. with the poss~ssion Qf .tb.e t~Mment gr any Part tb~reof · without the consent in writing of the society." Tl)e two bye_-laws relevant for .qur purp0ses are Bye-laws 66 and 68(a) which prpyide 11s foU.ows : ... 66. WbcnCVl'J' a m,J!lb~ to i,vljoJ!l a tenement, a shop or a godown h;is bjseJI 1!,llptted ·by the Sqciejy .docs not require the same fpr !)is P.wn μse temporarily or fpr a specific peripd, be · may Pifer the same to any Pers.on, as a liceo.see for ~eJP,porary occup11tion for a specifiel! perjpd, provil!Pd !~~I b.e slJ!lll-(a) sign and under, ~ajcing ~requited ))y tl)e !!oci.ety; (g) g~t such temporary occupant enro)l~d l!s a llPminal wember of the society; '• (c) sl:lall not per111it "1pb o.~pupation before receiYing per11111 mission from t4e Society's i:;oi)lmittee to do so, provided · ),- such permissiop sha\J 11pt )),e coμsidere'pelfant in view of para 5 of the Form-A. All tnat she could do ifshe did not requite the Ila! for lier immediate occupation was to petinit the appella~t or sdme one fo occi'.l]fy ilie same under an ~ ,L. agreement of leave atid licence. llul fdr thfll · iilltPMe both fhe· pai'ties had to ~omply with tire te'qurte'ttteim of By~-lllws 66. abd 68(a). The respondent Na. I l!'!l'd tll~ rtppeffailf accoraing(y t;y 'tb;ir application datedpecember 8, 1961 applied 115 tlie so~iety fdt permission to let the flat on leave and licence and for the issuance of five 'B' shares of Rs. JOO ellCti it! lbefr jlii'llt nlllne's ~lied "occu· pancy shares". Tlie te!ponde'nt NO. 2•4(Jtlieti ht it~ teso1utioti d«ted Decembet Is, 1961 isstlOO Ille sfliir~ ats!)lied tot i·n their j6frii names tn'd lliso admitted lite irppe!Jant fts a llohlirliil tnember tot tire purpose of occupjlinJi the flirt. At'ler th~ tetinii!iifion'Of the· ttgre~· Ynent tif leave an:cl li¢cnce, the aptieffant lrad ·no tight io remain iii 6ecnpatfoit of the 6:it. t11e eonletl'tton thal tne resjiond'ent No. 29'6'CieTy cannot raise a di~pute tegMlliilg his unauthorized occupation of the jit~mises ilftef !h'e reVocli!ioil of ilic ficehcc is devoid of tubM'll'tlce. The re!;p'(!nde'!'l! !Ito. 1-Mcl~y 'being a co-pattnershiJ> type libttsilig ~dcMy, ljilVfog let lia:t N6. 52 to the tcspopdent No. i at a co'jiStfilet te'llaht inel!lbe'r, Vl'as "<>lf«ily ltiteresl¢d in ensuring tl\ai no stranger is in urUiuthorited 6Ccupa'ffon of fue fiat after the expiry of t1re term ofthe fi~n:ce as it wo'111d teM fo cause annoyance '... and inconvenience to the other co-partner tenant members .of the --.....__~ !W--- words 'touching the business of the society' occurring in s. 43(1) or the Cooperative Societies Act, 1912 and there was a divergence of opinion expressed by · different High Courts but it is not necessary to burden the judgment with many citations; . In Deccan Merchants Cooperative Bank Ltd. v. M/s. Dalichand Jugraj Jain & Ors.,(1) the Court had occasion to construe the meaning of the expression 'touching the business-of a society' occurring ins. 91(1) -of the Act •. It was observed that the answer depends on the words used in the Act and that the non-obstant e (I) [t969J t s.c.R. 887. ~~ • 6.14. llHATNAGAk v. kuKIBAI (§en, J.) clause clearly ousts. thejurisdiction of civil courts if the dispute falls squarely within the ambit of s. 91(1) of the Act. The Court·then went on to enumerate five kinds of disputes mentioned in • s. 91 ( l) : first, disputes louchiog the constitution of a society; secondly, disputes touching election of the office, bearers of a society; thirdly, - dispu'tes touching the conduct of general meetings of a society; fourthly, disputes touching _the management of a society and fifthly, disputes touching the business of a society. .Io the context, it was said : "It is clear that the word 'business' in this context does · not mean affairs of a society because election of officebearers, conduct of general meetings and management of a society would be treated as affairs of a society. In this sub-section th'e word 'business' has been used·in a narrower sense and it 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 it bye-laws:" Io regard to the question whether a dispute touching the assets of a society would be dispute touching the business ,of the society, it ·was observed: "Ordinarily, if a society owns buildings .and lets out parts of buildings which· it d()es not require for its own purpose it cannot be said that letting out of those parts is a part of the business of the society. But it may be that it is the business pf a society to construct and buy houses and let them out to its members. In that case letting out property may be part of its business." Th~s,· the Court adopted· the narrower meaning given to the word 'business' as expressed by the Madra8, Bombay and Kerala High Courts in preference to the wider meaning given by the Madhya Pradesh and Nagpur High Courts. According to the view taken in.Deccan Merchant Cooperative Bank's case, supra, the word 'busjoess' in the context means "any trading or commercial or other similar business activity of the. society". It was held that the word 'business' in s.