Lease versus licence turns on party intention; terminated licence barred Rent Act protection and supported cooperative forum jurisdiction.

Whether an occupation arrangement is a lease or a licence depends on the parties' intention as gathered from the whole instrument and surrounding circumstances; exclusive possession alone is not decisive. On that test, the agreement described as leave and licence did not create any interest in the premises and remained a licence. Because the licence had been terminated before the relevant statutory date, Rent Act protection did not attach and the occupant could not claim tenant status. The resulting eviction dispute therefore fell within section 91 of the Maharashtra Cooperative Societies Act and was not barred by the Bombay Rent Act. The constitutional challenge to section 91, as applied to a nominal member, was rejected.

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Issues: (i) Whether the agreement dated 11.6.1969 created a lease or only a leave and licence; (ii) whether the dispute concerning eviction of the appellant fell within section 91 of the Maharashtra Cooperative Societies Act, 1960 and outside the bar of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947; (iii) whether section 91 of the Maharashtra Cooperative Societies Act, 1960 was ultra vires Article 14 of the Constitution of India to the extent it applied to a nominal member.

Issue (i): Whether the agreement dated 11.6.1969 created a lease or only a leave and licence.

Analysis: The instrument described the parties as licensor and licensees, granted use of the flat on leave and licence basis for a fixed period, required payment of compensation, and expressly negatived any claim to tenancy or sub-tenancy. The appellant's application for nominal membership also stated that the occupation was temporary and that no right of permanent nature would be claimed. Exclusive possession, by itself, was held not to be ative; the controlling test was the intention of the parties gathered from the whole document and surrounding circumstances. On that basis, the arrangement did not create any interest in the premises and remained a licence, not a lease.

Conclusion: The agreement was a leave and licence and not a lease, against the appellant.

Issue (ii): Whether the dispute concerning eviction of the appellant fell within section 91 of the Maharashtra Cooperative Societies Act, 1960 and outside the bar of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

Analysis: The appellant's licence had been terminated before 1.2.1973, so he was not a person in occupation as a licensee on the relevant date for the protective deeming provision. The statutory protection under section 15A was therefore unavailable, and the appellant could not claim the status of tenant under section 5(11)(bb). In that situation, the dispute did not fall within the rent-control regime but remained a dispute touching the business of the society for the purpose of section 91. The Court applied the earlier harmonising line of authority and held that the cooperative forum had jurisdiction where the occupant was not entitled to the Rent Act protection.

Conclusion: The Cooperative Court had jurisdiction under section 91 and the bar of the Rent Act did not apply, against the appellant.

Issue (iii): Whether section 91 of the Maharashtra Cooperative Societies Act, 1960 was ultra vires Article 14 of the Constitution of India to the extent it applied to a nominal member.

Analysis: The challenge failed because the appellant had accepted nominal membership under the society's bye-laws in connection with the leave and licence arrangement, and the dispute arose out of that relationship. Section 91 was not shown to be discriminatory or unconstitutional in its application to such a dispute.

Conclusion: The constitutional challenge failed, against the appellant.

Final Conclusion: The appeal was held to be without merit, and the cooperative forum's determination of the eviction dispute was sustained.

Ratio Decidendi: In determining whether an occupation arrangement is a lease or a licence, the decisive test is the intention of the parties as gathered from the whole instrument and surrounding circumstances, and where the occupant was not in subsisting licence occupation on the statutory cut-off date, the Rent Act protection does not attach and jurisdiction under the cooperative societies law is not barred.

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