2004 Supreme(Bom) 1528
IN THE HIGH COURT OF BOMBAY
Rebello F.I., J.
Prabhuta Augustus Villa Co-operative Housing Society Ltd..... Petitioner.
Versus
Rushabh Medicals Pvt. Ltd. another.... Respondents.
Writ Petition No. 876 of 2003, decided on 1-12-2004.
Advocates appeared :
A.A. Bookwala with M.M. Desai i/b. Desai Desai, for petitioner.
N.V. Walawalkar with S.S. Desai A.R. Patil i/b. Purnanand Co., for respondent No. 1.
Ms. S. Shreedharan, A.G.P., for respondent No. 2.
Headnote:Maharashtra Co-operative Societies Act, 1960 - Section 22 - Membership of society. - Failure of tenant to discharge burden by leading any evidence to show that he was deliberately kept out from being admitted as member, renders rejection of his application for admission as member of society justified. - The respondent No. 1 was refused membership of the petitioner society. The application for membership by respondent No. 1 was on the basis that he also was tenant when the society was proposed to be formed and he was kept out of membership by not inviting or for that matter being asked to join as member. There is no dispute and there cannot be that the respondent No. 1 had also brought in his contribution of Rs. 5,000/- when it was proposed to form the society. There is also no dispute that the said amount was returned back to respondent No. 1. The onus was on respondent No. 1 to show that he was deliberately kept out from being admitted as member. That onus was not discharged by leading any evidence. The findings, therefore, by the Deputy Registrar as also Joint Registrar that the respondent No. 1 was never informed or being allowed to joint as member is totally perverse. The society could not have indefinitely waited for the respondent No. 1 to apply as member. The respondent No. 1 was fully aware and had made his contribution but chose not to become member. The Deputy Registrar and the Joint Registrar have gone on the footing that the undertakings had been given that all the tenants would be admitted as members. The said undertaking would have to be read in its correct perspective and in a rational manner. That would only mean that those tenants who were willing to join as members and not the tenants who refused to join and or kept silent thereafter for several years could apply for membership and be admitted as member. The undertakings if any cannot apply to such tenants who continued as tenants and after a long lapse of time chose to apply for membership. The reasoning followed by the authorities below for holding that there was no delay on the part of respondent No. 1 to apply for membership is totally misconceived. Order quashed. 1991 (3) BCR 201 - Relied.
JUDGMENT - REBELLO F.I., J.: - The petitioner is co-operative society registered under the provisions of the Maharashtra Co-operative Societies Act, 1960. The members of the petitioner co-operative society were earlier tenants of two buildings known as Prabhuta Agustus Villa respectively. The petitioner society acquired the said building under registered deed of assignment from its pervious owners. Respondent No. 1 is a private limited company which was also a tenant of one of the premises in Augustus Villa occupying Flat No. 1 on the ground floor. It is the case of the petitioner that respondent No. 1 though initially had given his contribution to join as founder member, subsequently withdrew his contribution. Subsequent to the society being registered and the property been assigned in favour of the petitioner society, the original owners/landlord by letter dated 17-12-1993 intimated to respondent No. 1 attorning tenancy in favour of the petitioners. By letter of 15-2-1994, respondent No. 1 addressed a letter to the petitioners acknowledging the receipt of the bill towards rent for the month of January and February, 1994 and forwarded the cheque for the said amount. The respondent thereafter was paying rent continuously. By letter of 7-5-2001 the respondent No. 1 wrote to the secretary of the petitioners setting out that they were willing to pay the amount for converting the status from tenant to member of petitioner as per the area utilised by them. An application was made by respondents No. 1 to the petitioners on 7-5-2001 for being admitted as member of the petitioners. Office bearers of the petitioner society by letter of 1-8-2001 intimated respondent No. 1 that the application for membership dated 7-5-2001 was put up before the special general body meeting convened on 20-7-2001 and after considering the facts and circumstances of the case, the general body has resolved to refused membership. A copy of the resolution was also forwarded to the respondent No. 1.
2. The respondent No. 1 thereafter preferred an appeal before the Deputy Registrar. One of the contentions raised was that Chief Promoter had given undertaking while registering the society that the remaining tenants will be admitted. The respondent No. 1 further set out that the tenants had come together and formed a housing society and that respondent No. 1 was never invited to become a member at that time or even subsequently. Respondent No. 1 it was contended had never refused to become member of the society. Reply was filed on behalf of the petitioners. It was set out therein that the respondent No. 1 was tenant in Augustus Villa. The tenants decided to buy the said property by forming a co-operative society and all the tenants were asked to contribute some amounts. Accordingly along with other tenants respondent No. 1 had given his contribution vide his cheque No. 821997 drawn on Bank of India which cheque was encashed by the proposed society on 11-1-1991. After a month or so respondent No. 1 informed that they did not desire to join the proposed society and demanded the refund of his contribution. The proposed society by cheque No. 971256 dated 18-2-1991 drawn on Dena Bank refunded the applicant's contribution which cheque was encashed on 5-3-1991 by respondent No. 1. Reference was then made to the agreement of sale dated 27-3-1991. It was then set out that the respondent No. 1 had advertised for sale of one building i.e. Augustus Villa in the newspaper Times of India dated 26-11-1996. Reference is then made to the application made by respondent No. 1 for being admitted as member and to the subsequent resolution of the petitioners rejecting application of respondent No. 1 of being admitted as member. It was also pleaded that this Court had occasion to consider and decide such an issue and reference was made to the case of (Shree Jaya Mahal Co-operative Housing Society Ltd. v. M/s. Zenith Chemical Works Pvt. Ltd. and others)1, 1991(3) Bom.C.R. 201.
3. The Dep
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