1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.142 OF 2005 IN WRIT PETITION NO.876 OF 2003 Rushabh Medicals Pvt.Ltd. ...Appellant vs. 1.Prabhuta Augustus Villa Co-op. Housing Society Ltd. & Anr. ...Respondents --- Mr.S.U.Kamdar with Paritosh Jaiswal with Brijesh Upadhyay i/b. M/s.Purnanand & Co., for Appellant. Mr.A.Y.Bookwala i/b. M/s.Desai Desai & Co., for Respondents. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 5th March,2009. 2 P.C.:- 1. By this appeal, the appellant challenges the order dated 1.12.2004 passed by the learned Single Judge of this Court in Writ petition no.876 of 2003. The facts that are material and relevant are that there are two buildings known as Prabhuta and Augustus Villa. The tenants who were occupying the premises in those buildings decided to purchase the buildings from the owner and have formed a Co- operative housing society. The appellant was also a tenant in the said buildings. Initially, he paid his contribution but then he withdrew his contribution. The remaining tenants paid the purchase price to the landlord, took the conveyance and formed a co- operative housing society. The appellant became a tenant of co-operative housing society and started occupying the premises as a tenant of the society and also started paying rent. Thereafter, he applied for membership in the year 2001 after about 10 years of the formation of the society. That application was rejected by the General Body of the society by a well 3 reasoned resolution. An appeal was preferred against that resolution before the Deputy Registrar. The Deputy Registrar allowed the appeal and directed the Society to admit the appellant as its member. Against that order, a revision was filed by the society before the Joint Registrar. The Joint Registrar however dismissed the revision. Then a writ petition was preferred against the orders of the Deputy Registrar and the Joint Registrar by the Co- operative housing society. That writ petition was registered as writ petition no.876 of 2006. It was decided by the learned Single Judge of this Court by order dated 1.12.2004. The learned Single Judge has held that the authorities below were not justified in directing the co-operative housing society to admit the applicant as its member. The appellant is in appeal against that order. 2. The learned Counsel appearing for appellant submitted that the learned Single Judge should not have interfered with the order of two authorities below because at no point of time the appellant was given an opportunity to join membership of the 4 society when the society was formed and the property was purchased. The learned Counsel submitted that even assuming that the appellant had an opportunity to join the membership of the society initially in view of the undertaking given by the Chief Promoter of the society that all the tenants of the buildings are free to join the society, the appellant was entitled to be given membership of the society. The learned Counsel submits that in view of the admitted position that the appellant is occupying the tenement in the building, there is no reason why the society should not permit him to join as a member of the society. We have heard the learned Counsel appearing for the Society-respondent no.1. 3. We find from the record that when the amount was being collected by the Chief Promoter from the tenants for purchase of the building, the appellant initially paid the amount but then he was reluctant to make any further payment, and therefore, his amount was refunded by the Chief Promoter to him and he encashed the cheque and accepted the amount. After the transfer of the buildings-property to the 5 society, he accepted his status as tenant of the Co- operative Housing Society. In our opinion, therefore, the learned Single Judge has rightly concluded that the authorities below were not right in holding that the Chief Promoter did not give an opportunity to the appellant to join membership of the society when the society was formed. So far as the reference made to the undertaking given by the Chief Promoter is concerned, the undertaking was that to allow the tenants of the owner of the building become members. The affidavit of the Chief Promoter makes it clear that there were 16 tenants in the building and 15 tenants have agreed to become members. It is clear that even at that stage the appellant was not willing to be a member. Looking to the conduct of the appellant of withdrawing the amount from the process of formation of the society and then accepting his status as tenant of co- operative housing society, in our opinion, the society has rightly decided not to admit him as member because the society was to admit those persons as members who are tenants of original owner of the buildings. There is no provision made for admitting 6 the persons who are tenants of the co-operative housing society as members of the society. In our opinion, the stand taken by the appellant was opportunistic because substantial amount was required to be paid if he participated in the process of formation of the Society, therefore, he withdrew from the process and has accepted his status as tenant of the society and now when he finds it convenient, he wants to become member of the society. In our opinion, really speaking as the appellant had approached the authorities with the false allegation that during the process of formation of the society he was not given an opportunity to join as member, his application should not have been entertained by the authorities below. 4. Looking to the matter from any point of view, no exception can be taken to the order impugned in the appeal. The appeal, therefore, fails and is dismissed. (D.K.DESHMUKH, J.) 7 (A.A.SAYED,J.) ---