skt/- 1 35.wp.156.2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 156 OF 2010 Suketu Jhaveri ... Petitioner Vs. Nagindas Mansion Co-operative Housing Society Ltd. & Ors. ... Respondents ...... Mr.Sumeet Moholkar i/by M/s. Gabrial Pillai for the petitioner. Mr.P.S.Dani for respondent no.1. ...... CORAM : R.C.CHAVAN, J. DATE : 29th APRIL, 2010. P.C. 1. This petition is directed against the order of the learned Divisional Joint Registrar, Co-operative Societies, Mumbai allowing the respondents revision application against order passed by the Deputy Registrar, whereby he had allowed the petitioner’s application for being joined as a member to the respondent-Society. 2. Facts about which there can be no dispute are as under : The petitioner’s father was an occupant of a tenament in one Nagindas Mansion. This mansion was purchased by the skt/- 2 35.wp.156.2010.sxw occupantd thereof by forming a Society in the year 1989. The petitioner’s father consciously chose to keep himself out of the Society and opted to continue as a tenant. He died on 22 nd August 2000. Thereafter, on 7 th March 2008, the petitioner sought to join as a member of the Society and tendered a cheque of sum of Rs.64,000/- which was possibly the contribution made by each occupants when the Society was formed, which was 500 times the rent. The Society by its reply dated 24 th March 2008 rejected the petitioner’s prayer for being joined as a member. The petitioner’s appeal came to be allowed by an order dated 4 th November 2008 passed by the Deputy Registrar, who held that there was no justification furnished by the respondent-Society for refusal of membership. 3. The Society preferred a revision which was allowed by the Joint Registrar, who observed as under : “ Heard both sides and also perused the Revision Application along with the relevant papers attached thereto and also gone through the impugned order dated 04/11/2008 and reply filed by Respondent no.1. It appears that initially all the occupants of Applicant skt/- 3 35.wp.156.2010.sxw Society were the tenants and thereafter all the tenants after the discussion with the owner had decided to purchase the building by registering the Co-operative Housing Society. Further it appears that the father of Respondent no.1 Late Mr.Ramesh Jhaveri was the tenant and was in possession of Flat No.11 in the Applicant society. Further during the lifetime of the father of Respondent no.1, he never applied for membership of the Applicant society, though the Applicant society is registered in the year 1981 and continued as tenant. Further it appears that the Applicant society had purchased the building of the society by Deed of Assignment dated 03/04/1989, which is duly registered before the competent authorities for an amount of consideration mentioned therein. Further it appears that neither the late father of Respondent no.1 nor the Respondent no.1 had paid their contribution for purchase of the said building of the society for getting status of owners from the status of tenants. Further it appears that at the time of execution of the said Deed of Assignment, the society had paid contribution in respect of Flat No.11 which is clearly seems from the list of members at Sr.No.22 of the said Deed. Thus it appears that after the purchase of the said building by the Applicant Society, now the skt/- 4 35.wp.156.2010.sxw Flat No.11 belongs to Applicant society and admittedly the Late father of the Respondent no.1 use to pay the rent to the society and the Respondent no.1 also use to pay rent to the society in respect of the said Flat No.11. Thus, it clearly seems that the late father of Respondent no.1 and the Respondent no.1 were the tenant of the society. Further the Hon’ble High Court in case of “Shree Jata Mahal CHS Ltd. V/s. M/s.Zenith Chemical Words & Ors. reported in 1991 (3) Bom.C.R.201” had held that society can not wait for indefinite period for applying for membership by tenants by paying the contribution. Further in the said case of which the facts are very similar to the present case, the Hon’ble High court has observed that payment of contribution was the condition precedent to the obtaining of the membership. And further in the present case it is admitted fact that the Late father of Respondent no1. And Respondent no.2 are the tenants of the Applicant society and they have not complied with the condition precedent for membership which is payment of contribution at the time of purchase of the building from the owners. Further the Respondent no.2 Deputy Registrar ought to have taken into consideration that neither the Respondent no.1 nor his Late father had paid their contribution at the time of skt/- 5 35.wp.156.2010.sxw purchase of the said building which was the condition precedent for obtaining the members of Applicant society. In my view the Deputy Registrar has grossly erred in granting membership to the tenant. The Deputy Registrar has also not mentioned any sufficient reason for granting the membership to a tenant or how the Respondent no.1 tenant is qualified for membership of the Applicant society ? ......” 4. The learned counsel for the petitioner submitted that the Registrar erred in relying on judgment in “Jaya Mahal Cooperative Housing Society Limited Vs. M/s. Senith Chemical Works and Ors, 1991(3) Bombay Cases Reporter 2001, since the facts in that case were different and also that the Registrar failed to consider the concept of open membership recognized by Section 23 of the Maharashtra Cooperative Societies Act. He submitted that since his client was a tenant and occupant in the Society, he was entitled to be a member. 5. The petitioner is son of the original tenant. He has consciously kept himself away from the Society and not joined the Society. He had chosen to be a tenant. The petitioner cannot get skt/- 6 35.wp.156.2010.sxw anything beyond what his father had left to him namely a tenancy. Therefore, almost 21 years after the Society was formed, it was not open to the petitioner to claim that he has a right to be a member of the Society. The Deputy Registrar erred in allowing the petitioner’s appeal against rejection of the prayer for membership. The causation by the Divisional Joint Registrar in its order on revision indicates no error. 6. The petition is, therefore, dismissed. [ R.C.CHAVAN, J. ]