https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=461670 https://www.taxtmi.com/caselaws?id=461670 Recovery of possession of the Petitioner's premises - superstructure constructed on the leased plot stood yielded to the Respondent No. 1-Society - whether the lease-deed executed by the Respondent No. 1 in favour of Respondent Nos. 2 and 3 was in respect of land i.e. Plot No. 57 or was a lease of plot along with the proposed construction on the said land? - HELD THAT:- The settled legal position is that under Section 108(h) of the TP Act, a right is given to the lessee to remove the structures erected by him on the leased land subject to a contract to the contrary. The ownership in the superstructure continues in the lessee during the subsistence of the lease under the well recognised concept of dual ownership and in event the contract restricts the lessee from exercising the right granted by Section 108(h) of TOPA, the ownership will pass to the lessors. Clause 2(20) sets out that the agreement between the parties was to deliver the demised plot and premises to the Lessors with all improvements at the determination of the term. The above term constitute an agreement which restricts the lessee from exercising the right granted under Section 108(h) of TP Act - Despite the term of the contract providing for the superstructure to be yielded and delivered to the lessor upon termination, the obstacle in the way of the Respondent No. 1 to obtain recovery of possession of the Petitioner's premises are the findings of the Trial Court and Appellate Court which hold that the Respondent No. 1 is not entitled to terminate the lease on account of violation by the Petitioner. Plain reading of Section 91 of the MCS Act would indicate that Sub-Section (1) of Section 91 is prefaced with non obstante clause and provides that a specified class of disputes arising between specified class of parties can only be referred by any of the parties to the dispute to Co-operative Court. What is therefore necessary is that the subject matter of lis and the parties to the lis must fall within the enumerated class under Section 91 of the MCS Act. As far as the parties to the lis is concerned, the bye-laws of Respondent No. 1 makes it clear that for lease to be executed in respect of the plot owned by the Society, the person is required to be member of the Society and the Petitioner claims through the member. The parties to the lis are therefore of the class enumerated in Section 91 of MCS Act. It is well settled that the Co-operative Court established under the MCS Act is a substitute for Civil Court and the jurisdiction of the Co- operative Court will not go beyond the jurisdiction vested in the Civil Court. The Respondent No. 1 has come with a case of violation by a member of the bye-laws adopted by the Society by virtue of which lease was granted to the member. The scheme of bye laws does not set out relationship of landlord and tenant. The entire agreement is between a Society and its member. It is the business of the Society to ensure compliance with the regulations and bye-laws framed by it. A claim by the Society for recovering possession of the premises from its member upon determination of lease by reason of violation of its bye- laws is a dispute falling within the purview of Section 91 of MCS Act and the Co-operative Court would have the jurisdiction to decide the dispute. Conclusion - The grant of mandatory injunction qua the Petitioner's premises would be the consequence of the termination of lease in view of Clause 2(20) of the Lease Deed dated 25th February, 1958. In view of the specific finding of the Trial Court that the violation of condition by the Petitioner would not give right to the Respondent No. 1 to terminate the lease and the resultant decline of relief of recovery of Plot No. 57, the well recognised doctrine of dual ownership would prohibit the grant of mandatory injunction qua the Petitioner's premises. The Respondent No. 1 was thus not entitled to recovery of possession of the Petitioner's premises. The impugned Judgment and Orders passed by the Co-operative Court and judgment and order passed by the Maharashtra State Co-operative Appellate Court are hereby quashed and set aside - petiton allowed. Case-Laws Indian Laws Wed, 04 Dec 2024 00:00:00 +0530