S. BHATTACHARJEE v. S. B. GOSAVI — 1968 DIGILAW 72 (BOM)

JUDGMENT NAIN J.-This is a petition under Article 227 of the CeD8titution of India for quashing and setting aside an order dated February 7/9, 1967, passed by the Assistant Registrar, Co-operative Societies, Bombay, holding that a dispute within the meaning of section 91 (1) of the Maharashtra Co. operative Societies Act, 1960 (hereinafter referred to &s the Act) exists between the petitioner and respondent No. 4 and referring the same to Mr. V. S. Powale, Registrars Nominee, and an order dated April 5, 1967, passed by the Divisional Joint Registrar, Co-operative Societies, Bombay, confirming the decision of the Assistant Registrar. 2. The petitioner claims to be a tenant in respect of flat No. 43 in a building known as "Divyang" situated at Colaba. Respondent No.4 claims to be the present owner of the said flat. 3. By an agreement dated November 26, 1959, Radia Sons and Company Private Limited let out to the petitioner the said flat at a. rent of Its. 215 p.m. In March 1966 there appeared to be certain negotiations between the petitioner and respondent No.4. Respondent No.4 was negotiating for purchase of the said flat from Radia Sons and Company. He, therefore, before purchasing the said flat negotiated with the petitioner for giving vacant possession to him of the said flat. The letter dated March 21, 1966, addressed by respondent No.4to the petitioner states that the petitioner had told respondent No. 4, that after the marriage of the petitioners daughter he would not require the big flat viz., flat No. 43, and that he would vacate the name as he would no. be able to pay the compensation for it. There was no reply to this letter. Thereafter, in April 1966 respondent No.4 purchased the said flat from its then owner and informed the petitioner about the purchase. The petitioner admits that he has thereafter paid at least one months rent to respondent No.4. On June 29, 1966, respondent No. 4: served a notice on the petitioner to quit he said flat and to hand over vacant possession of the same to respondent No.4. The petitioner replied to the said letter on July 4, 1966, taking several contentions. 4. On June 29, 1966, respondent No. 4: served a notice on the petitioner to quit he said flat and to hand over vacant possession of the same to respondent No.4. The petitioner replied to the said letter on July 4, 1966, taking several contentions. 4. In October 1966 respondent No.4 filed an application before the District Deputy Registrar, Co-operative Societies, Bombay, under section 91 (1) of the said Act submitting that there was a dispute between the petitioner and respondent No.4 within the meaning of section 91 of that Act and that the same be referred for decision under sections 91 to 96 thereof to a proper person. The order dated February 7/9, 1967, was made by the Assistant Registrar on the said application. The petitioner appears to have gone in revision to the Registrar under section 154 of the said Act and the decision dated April 5, 1957, is of the Divisional Joint Registrar confirming the decision of the Assistant Registrar. Against these two orders, the petitioner has filed the present petition. 5. The first contention of the petitioner is that he is a tenant in respect of the premises and not a licensee. Respondent No.4 seeks to recover possession of the premises claiming to be the owner. The proceedings are, therefore, for recovery of possession of premises to which the Bombay Rent Act applies. The Small Cause Court, Bombay, has exclusive jurisdiction to decide a suit for possession or payment of rent between a landlord and tenant by virtue of section 28 of the Bombay Rent Act, notwithstanding anything contained in any other law. The petitioner contends that the matter, therefore, cannot be referred to arbitration under the Act. This contention, however, does not appear to be correct. Section 91 of the Act also provides that notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution or business of a society between a member and a person deriving title through a member shall be referred to arbitration under the provisions of the Act. Section 91 of the Act contains a non-obstante clause similar to the one contained in section 28 of the Bombay Rent Act. The Co. operative Societies Act is a special Act, which provides for matters pertaining to co-operative societies only. It is also an Act passed subsequently to the passing of the Bombay Rent Act. Section 91 of the Act contains a non-obstante clause similar to the one contained in section 28 of the Bombay Rent Act. The Co. operative Societies Act is a special Act, which provides for matters pertaining to co-operative societies only. It is also an Act passed subsequently to the passing of the Bombay Rent Act. The non-obstante clause in section 91 of the Act will, therefore, have over-riding effect over section 28 of the Bombay Rent Act. It has been held by a Full Bench of this Court in Rambhau v. President, Vinkar Co-op. Society (1) that the non-obstante clause in section 91 (1) of the Act excludes the operation of other laws, which confer jurisdiction on some other Court, authority or tribunal to try the disputes mentioned therein. If there is any other law which lays down that a matter, which under section 91 the Registrar has jurisdiction to decide, may be tried by some other Court, authority or tribunal, then the application of that law is excluded by the non-obstante clause. In view of these observations, we are of the view that there is no substance in this contention of the petitioner. A dispute between a landlord and tenant as to recovery of rent or possession is within the scope of section 91 (1) of the Act and can be referred to arbitration notwithstanding section 28 of the Bombay Rent Act. 6. The next contention of the petitioner is that he Was a tenant of the predecessor-in-title of respondent No.4 and that he does not claim through respondent No.4 and as such the dispute does not fall within the scope of section 91 (1) of the Act. It is admitted by Mr. Patel that at least one months rent has been paid by the petitioner to respondent No.4 after the purchase of the flat by him. This by itself would be sufficient to enable us to hold that the petitioner claims through respondent No.4, whom he has accepted as a landlord and who is admittedly a member of the Society. The dispute is, therefore, between a member and a person claiming through a member within the meaning of section 91 (1) (b) of the Act. This contention must also be rejected. The dispute is, therefore, between a member and a person claiming through a member within the meaning of section 91 (1) (b) of the Act. This contention must also be rejected. Even if respondent No.4 depended on title for getting possession of the flat the dispute would fall within the scope of section 91 of the Act, as it would be a dispute between respondent No.4 who is a member and the petitioner who claims through a past member. 7. The next contention of the petitioner is that respondent No.4 is not a valid purchaser of the flat in question. We are afraid that in view of the admission made by the petitioner of having paid rent to respondent No.4 and having recognised him as his landlord after the purchase, it is not open to the petitioner to dispute the title of respondent No.4. 8. Mr. Patel took up a further contention before us that the building, which contains the flat in dispute, had not been transferred to respondent No.5, the Divyang Co-operative Housing Society Ltd. by a registered conveyance, and therefore the dispute between the petitioner and respondent No. 4 did not pertain to the business of the respondent No.5-Society and, therefore, did not fall within the scope of section 91 (1) of the Act. This point, however, has not been taken in the petition. It has been taken for the first time in the affidavit in rejoinder. It is alleged that the building in which the flat in question is situated was constructed by a promotor and although it was intended to be transferred to a co-operative society and respondent No. 5-Society was formed for the purpose of taking over the said building, no deed of transfer has been executed in favour of respondent No.5 and possession of the building has also not been given to respondent No.5. We are afraid, this contention has been taken at a late stage and involves a disputed question of fact. In order to determine this dispute evidence will be necessary to find out whether the building has, in fact, been transferred to respondent No.5 and whether respondent No.5 has obtained possession of the same. We cannot, therefore, permit the petitioner to take this contention before us. 9. Mr. In order to determine this dispute evidence will be necessary to find out whether the building has, in fact, been transferred to respondent No.5 and whether respondent No.5 has obtained possession of the same. We cannot, therefore, permit the petitioner to take this contention before us. 9. Mr. Patel for the petitioner has drawn our attention to the fact that in the proceedings before the Registrar of Co-operative Societies, respondent No.4 claims that the petitioner was a licensee in respect of the premises in dispute. Respondent No.4 claims from the petitioner on the allegation of termination of the licence and also on the basis of an alleged oral agreement between him and the petitioner prior to the purchase of the flat by respondent No.4 whereby the petitioner agreed to vacate the flat after the marriage of his daughter. He expressed an apprehension that in view of our observations in this judgment, the provisions of section 91 (2) of the Act and the judgment of a Division Bench of this Court in the case of I. R. Hingorani V. Pravinchandra (2) holding that on the question whether a dispute exists under section 91 (1) of the Act the decision of the Registrar was final under section 91 (2) of the Act, he may not be permitted by the arbitrator to take up the contention that being a tenant he was entitled to the protection of the Bombay Rent Act or that he may be prejudiced on merits before the arbitrator. We however think that these apprehensions of the petitioner are groundless for the reasons hereinafter appearing. 10. The judgment of the Division Bench in Hingoranis case (2) was delivered by Chainani C. J., who also delivered the judgment of the Full Bench in Rambhaus case (1). In the latter judgment the learned Chief Justice rightly points out at page 889 that section 91 (2) of the Act makes the decision of the Registrar on the question of existence of a dispute final. It does not enlarge the jurisdiction conferred on the Registrar by the said sub-section. Section 91 (2) does not alter or modify the substantive rights of the parties nor does it confer any additional powers on the Registrar. 11. To these observations we might add our own. It does not enlarge the jurisdiction conferred on the Registrar by the said sub-section. Section 91 (2) does not alter or modify the substantive rights of the parties nor does it confer any additional powers on the Registrar. 11. To these observations we might add our own. Section 91 (2) of the Act provides that wJ1en a question arises as to whether a matter referred for decision is a dispute under section 91 (1) or not, "the question shall be considered" by the Registrar, whose decision shall be final. As the decision is made final the learned Chief Justice Chainani laid down the practice of issuing notice to parties and hearing them before deciding whether there was or was not a dispute under sub-section (1). This inquiry for determination of the question of existence of a dispute is intended to be an inquiry of a summary nature. The section does not contemplate two regular trials, one for determining the jurisdictional question and another on merits. The very fact that the section requires the Registrar to "consider" the question indicates that a summary inquiry is intended to determine the jurisdictional question. The trial on merits has of necessity to be a regular trial and on evidence if necessary. The finality given to the decision of the Registrar is only limited to the jurisdictional question as to whether the matter referred constitutes a dispute under section 91 (1) of the Act. The finality does not extend to the merits of the controversy between the parties, nor to their substantive rights. It will certainly be open to the petitioner to take up all contentions before the arbitrator on the merits of the controversy and the substantive rights of the parties. He is only prevented from disputing the jurisdiction of the arbitrator to the extent of the existence of a dispute under section 91 (1) of the Act. Among other things, it will certainly be open to him to contend that he is a tenant and not a licensee, that he is protected by the Rent Act or that he has not agreed to vacate after the marriage of his daughter. 12 In the premises, we dismiss the petition with costs. Rule discharged.