Bombay High Court
Shrikrishana S/O Damodar Pawar vs Harbansing Chambasing Bhatiya on 12 August, 2003
Bench: S Bobde
JUDGMENT
1. Admit. Heard finally the learned counsel for the applicant and the learned counsel for then on-applicant, by consent.
2. This is a civil revision application filed by tenant-member of cooperative society - Swami Vivekanand Sahakari Griha Nirman Sanstha Ltd. Pusad (hereinafter referred to as society). The suit property is a house situated on Plot No. A-46. The revision-petitioner is undoubtedly, an allottee of the suit property on rent. The suit property was constructed by raising loan from the Maharashtra Cooperative Societies Act, 1960. This loan was raised by the plaintiff through the society.
3. After obtaining the loan, the plaintiff executed the mortgage-deed dated 21.12.1976 in favour of the Finance Corporation. The construction of the house over plot was completed in January 1979. Admittedly, the loan has been entirely repaid. However, the rent was Rs.150/- per month. The society runs into trouble and the liquidator was appointed on it. The petitioner, who found that defendant had not paid the monthly rent, and terminated the respondents tenancy of the suit property by issuing a notice dated 27.8.1994 and filed suit for possession. The Trial Court dismissed the plaintiffs suit by judgment and order dated 31.3.1997.The appellate court has confirmed that finding. Both the courts below have dismissed the suit, on the ground that the respondent was inducted in the suit premises byte society and not by the petitioner. It is, therefore, necessary to examine the question as to whether the petitioner is the landlord of the respondent, he is entitled to sue for eviction of the premises or whether it is only the society, which disentitled to file the suit. It is obvious from the byelaws of the society that a member is entitled to let out the house built by him. Bye-law No.78 (a) in part XXXII which deals with letting of houses, reads as follows :
" If a member wants to let out his house on rent he shall obtain the previous approval of the committee provided that the Managing Committee shall have the right to recover the monthly rent for the occupant, which will be credited in the society accounts towards the repayment of loan in stalment of the house pledged to the society. Members who do not possess houses of their own shall have a prior right to take on hire the houses which are being let out by the members. House rent shall be settled between the owner and the occupier with the approval of the Managing Committee."
It is clear from the above byelaws that if a member wants to let out his house on rent, he has to obtain previous approval of the Committee, provided that the Managing Committee shall have the right to recover the monthly rent for the occupant, which is then credited tithe society accounts towards the repayment of the loan in stalment of the house pledged to the society. Even though, the approval of the Managing Committee is necessary, nonetheless it is clear that the decision tolet out the house is that of the member. The approval of the Managing Committee is obviously necessary because it is for that society which recovers the rent as repayment of the loan taken by it on behalf of the member and have eventually of the house which is pledged to the society. From the facts of the present case, its clear from the Exh.44, which is a document addressed by a society to the predecessor-in-title of the petitioner that they had requested him to grant authority to the society to let out the premises, so that the rent i.e. receipt is credited towards the repayment of the loan by the society is in respect of the house allotted. There is another letter at Exh.47which addressed to the predecessor-in-interest of the petitioner by the society that if the house is to be let out, the society should be informed, so that the society can let it out.
4. It is clear from the byelaws that the society derive its authority to let out the premises from the tenant member. Indeed, this must be so because the house is allotted to the tenant member for the purpose of his occupation, as the bye-law of the society contemplates that it is the tenant, who has right olive in the house built by him with his family, relatives and dependent free of rent. If that is so, it must follow that it is the tenant-member who should be considered to file a suit for eviction and possession of the premises. A society is after all is an independent body. It is the right, title and interest of the member which is of consequences.
5. The nature of ownership and possession oaf member of tenant/co-partnership society, does not appear to be res integra in the case of Ravindranath H. Hiremath (Lt.Col.) v. Prashant kumar Buttan, 1994 Mh.L.J. 1731. The right of tenant-member of cooperative society was considered. It was held that the decision of the competent authority dismissing the tenant members suit for possession on the ground that hews a tenant-member and not an owner, was found to be incorrect. This court held that dual ownership is an incident of tenant copartner ship society and tenant-member is not a tenant of the society. In that case also, it had been held by the competent authority that the tenant-member is not a landlord but is tenant. This view was reversed by this court which held relying on the decision of the Supreme Court in the case of Sanwarmal Kejriwal .vrs. Vishwa Cooperative Housing Society Limited and others, and the decision of this court in the case of Contessa Knit Wear. vrs. Udyog Man. Cooperative Housing Society, 1980Mh.L.J. 539, that a tenant-member of a cooperative society is not a tenant as held by the competent authority. From inception, it is the intention that the house is meant for occupation and for the eventual ownership of the tenant-member, merely because he obtains loan which is not repaid at the time when tenant is inducted in the allotted premises does not take away the right that part of ownership and occupation with such a tenant-member possesses and which enables him to recover possession of the premises. The fact that loan is outstanding is a matter between member-member, the society and the financial institution which advanced the loan. A tenant who is inducted into the allotted premises has no concern with this loan ands not entitled to raise that issue and take a plea that till the loan is repaid by the tenant-member, he cannot maintain a suit for eviction.
6. In this view of the matter, the civil revision application is allowed in terms of prayer clause (a), which is reads as follows:
"(a)quash and set aside the judgment and order dated 8.11.2000 passed by the Additional District Judge, Posed, in Regular Civil Appeal No. 49 of1997 and also the Judgment and decree, dated 31.3.1997,passed by the Joint Civil Judge, Jr. Dn. Posed, irregular Civil Suit No. 86 of 94 and further be pleased allow the suit of the applicants/plaintiffs with costs throughout in the interest of justice.
The Trial Court is directed to hold an enquiry under section XX, Rule 12 of the Code of Civil Procedure.
