By Dr. K. Shivaram, Ajay R. Singh, Advocates
New Page 1
6 Co-operative Housing Society : A member of
tenant co-partnership housing society is not a tenant of the society : Rent Act
1947, S. 5(11) and Maharashtra Co-operative Societies Act, 1961, S. 29.
The respondent No. 1 Belfer Co-op. Housing Society Ltd. was a
tenant co-partnership housing society which held both land and flats constructed
thereon and Dr. Gopal Mahadevo Dhadphale respondent No. 2 was admitted as member
of the society. The said respondent No. 2 inducted M/s. Anita Enterprises and
M/s. Anita Medical Systems P. Ltd. being appellants no. 1 and 2 in Room No. 1
and 2 of the said premises on monthly rent. Both the appellants were put in
possession of the aforesaid premises. Thereafter certain dispute arose between
respondent No. 2 and the appellants. The appellants filed two separate suits for
a declaration that they were tenants with regard to the aforesaid premises. The
suit was dismissed by Trial Court.
Meanwhile the society raised a dispute before the
Co-operative Court u/s.91 of the Maharashtra Co-op. Societies Act, 1960 for
evicting the appellants from the premises. The Co-op. Court decided the dispute
in favour of the society and passed eviction order against the appellant. The
Division Bench of the High Court upheld the orders of the Co-op Court.
S. 12 of the Maharashtra Co-op. Societies Act lays down that
the Registrar shall classify all societies into one or other of the classes of
societies defined in S. 2 and also into such subclasses thereof, as may be
prescribed. Rule 10 prescribes such classification of the societies and under
Rule 10(1)(5) three types of housing societies have been enumerated.
Class
|
Sub-class |
Examples of societies falling in the class or subclass,
as the case may be
|
|
1. |
2. |
3 |
|
Housing society |
(a) Tenant ownership
housing society |
Housing societies
where land is held either on leasehold or freehold basis by societies and
houses are owned or are to be owned by members. |
(b) Tenant
Co-partnership housing society. |
Housing societies
which hold both land and buildings either on leasehold or freehold basis and
allot them to their members. |
(c) Other housing
societies. |
House mortgage
societies and House construction societies. |
In the case of tenant co-partnership housing society, it is
clear from the rules that the ownership of the land and building both remains
with the society and a member cannot be said to be co-owner, but in the case of
tenant ownership housing society, the ownership of the land remains with the
society, but ownership of the building/flat vests in the member. So far as
tenant within the meaning of S. 5(11) of the Rent Act is concerned, he has a
mere right to occupy. He is entitled to the protection of the statute so long as
grounds for eviction are not made out and can be evicted only by instituting a
suit in a Court enumerated u/s.28 of the Rent Act.
The concept of tenant co-partnership housing society was
considered by the Apex Court in the case of Sanwarmal Kejriwal v. Vishwa
Co-operative Housing Society Ltd., (1990) 2 SCC 288, wherein it was noticed
that the title to the property, i.e., the land and building/flat both,
vests in the society.
The status of a member in a tenant co-partnership housing society is very peculiar. The ownership of the land and building both vests in the society and the member has, for all practical purposes, right of occupation in perpetuity after the full value of the land and building and interest accrued thereon have been paid by him. Although dejure, he is not owner of the flat allotted to him, but, in fact, he enjoys almost all the rights which an owner enjoys, which includes right to transfer in case he fulfils the two pre-conditions, namely, he occupies the property for a period of one year and the transfer is made in favour of a person who is already a mem-ber or a person whose application for membership has been accepted by the society or whose appeal u/ s.23 of the Societies Act has been allowed by the Registrar or to a person who is deemed to be a member U/ss.(IA) of S. 23 of the Societies Act. In case any of these two conditions is not fulfilled, a member cannot be said to have any right of transfer. Thus, the law laid down by the Apex Court in the case of Sanwarmal (supra) is that a member has more than a mere right to occupy the flat, meaning thereby higher than tenant, which is not so in the case of a tenant within the meaning of S. 5(11) of the Rent Act. Therefore the status of a member in the case of tenant co-partnership housing society cannot be said to be that of a tenant within the meaning of S. 5(11) of the Rent Act, as such there was no relationship of landlord and tenant between the society and the member. Thus the appellants were not entitled to protection of the Rent Act. In view of the above, the appeals were dismissed.
[M/s. Anita Enterprises & Anr. v. Belfer Co-op. Hsg. Society Ltd. & Ors., AIR 2008 SC 746]
