Whether it is mandatory for landlord to issue notice U/S 164 of Co-operative societies Act prior to filing of eviction suit?

 In view of the aforesaid two decisions of the Apex Court, it cannot be doubted that everything that a society does for the purpose of achieving its objects cannot be regarded as its business. Taking a premises on rent by a society for the purpose of attaining its objects and carrying its business cannot per se be regarded as a business of the society. In respect of a co-operative housing society wherein constructing and/or taking on rent, the premises for the use of its members is itself the business of the society the position may be different. However, in case of a trading societies which takes any premises on rent merely for the purpose of carrying on its trading, it cannot be said that taking the premises on lease or rent is a business of the society. In the present case, the premises were taken on rent by the petitioner for the purpose of carrying out the business of trading and the respondent had filed a suit for possession after a notice to quit. Such a suit cannot be said to be a suit in respect of an act touching the business of the society. Therefore, it was not necessary to issue a notice Under Section 164 of the Maharashtra Co-operative Societies Act before filing of a suit for possession.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1909 of 1991

Decided On: 29.07.2004

Decided On: 30.07.2004

 Solapur Taluka Khadi Gramodyog Utpadak Sahakari Society

Vs. Dattatraya Shankarrao Kondewar and Ors.

Hon'ble Judges/Coram:

D.G. Karnik, J.

Citation: 2005(1) MHLJ 24,2005(1) ALLMR 556

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Whether plaint can be rejected if mandatory pre-suit statutory notices are not issued?

Whether plaint can be rejected if  pre-suit statutory notices, as required under section

527 of the Mumbai Municipal Corporation Act and also under

section 164 of Maharashtra Co-operative Societies Act are not issued.

 Under these circumstances, the mandate of law contained in Section 527 of MMC Act against institution of suit requires obedience by prospective plaintiffs as prospective plaintiffs can also save time and money of a Public Authority resolved to settle the claim at pre-litigation stage. When language used in the statute is clear and unambiguous it is duty of the court to give effect to it and considerations of hardship will not be a legitimate ground for not to implement the mandate faithfully as intended by legislature. The provision under Section 527 of MMC Act as also under Section 164 of MCS Act do serve public purpose. Therefore, in view of the ruling in Harkishan Lal vs. State of Jammu & Kashmir reported in MANU/SC/0728/1994 : (1994) 4 SCC page 422, requirement which serves public purpose, cannot be waived. Except in case of urgency it may be excusable in a rare case, when plaintiff is required to be protected against threatened action of demolition of his house or shop as the case may be.

10. Considering the legal position therefore, regarding issuance and service of pre-suit statutory notices, and also Order 7 Rule 11(d) of Code of Civil Procedure, the plaint considering the averments and prayers therein, was liable to be rejected and no blame can be imputed to learned Judge,

Equivalent Citation : 2014 (1)MhLj 92

IN THE HIGH COURT OF BOMBAY

First Appeal No. 302 of 2013 with First Appeal No. 303 of 2013 with Civil Application No. 1031 of 2013 in First Appeal No. 303 of 2013

Decided On: 25.10.2013

Appellants: Noor Mohd. Shami Shaikh and Anr.
Vs.
Respondent: Maharashtra Housing & Development Board and Ors.

Hon'ble Judges/Coram:A.P. Bhangale, J.

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