Writ Petition No. 8910 of 2012. Case: R.P.R. Nair, Adult, Indian Inhabitant of Mumbai, Retired Having Address at Flat No. 14, 1st floor, Ambaji Niketan Cooperative Housing Society Ltd., Plot No. 20, Road No. 4, Pestom Sagar, Chembur, (West), Mumbai 400089 and presently Residing at 83, B.K. Kkililiar Lane, Jagathy Trevendraum Vs Ambaji Niketan Co-operative Housing Society Ltd, A. Housing Society Registered under the provisions of Maharashtra Cooperative Societies Act, 1960 and Having its Office at Plot No. 20, Road No. 4, Pestom Sagar, Chembur (West), Mumbai 400089 and M/s. Bholenath Developers Ltd., A Limited Company, Registered Under the Provisions of Companies Act, 1956 and Having its Registered Office at 5th floor, Shiv Ashish, Plot No. 10, 19th Road, Chembur, Mumbai 400071. High Court of Bombay (India)
| Case Number | Writ Petition No. 8910 of 2012 |
| Counsel | For Appellant: Mr. P.M. Shah with Dharmesh Jain and Maulin Tanna, Advs. and For Respondents: Mr. V.S. Kapse with Upendra Mahadik, Advs,. Fast Track Legal and Mr. G.S. Bhat, Advs. |
| Judges | S.C. Dharmadhikari, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order 11; Code of Civil Procedure, 1908 (CPC) - Rule 1, 2, Order 40 Rules 1, 39; Code of Civil Procedure, 1908 (CPC) - Sections 10, 141, 3, 38, 39, 4, 5, 9, 94, 95, 96; Constitution of India - Articles 226, 227; Maharashtra Co-operative Societies Act, 1960 - Sections 77, 79A, 91, 91A, 92, 93, 94, 95, 95(4)... |
| Citation | 2013 (2) AllMR 44, 2013 (1) MahLJ 578 |
| Judgement Date | September 27, 2012 |
| Court | High Court of Bombay (India) |
Order:
S.C. Dharmadhikari, J.
1. By this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the concurrent orders passed at an interlocutory stage by the Cooperative Court and the Maharashtra State Cooperative Appellate Court Mumbai. The Trial Court in a dispute which was filed, being CC-I/08/12, has passed an interlocutory order which is in the following terms:-
(a) that the petitioner who is respondent No. 1 shall hand over vacant and peaceful possession of the flat on the first floor of the building bearing No. 21 within a period of one month from the date of the order, i.e. 21st June 2012.
(b) If the petitioner fails to hand over vacant and peaceful possession, then, the Advocate who is appointed as private receiver shall take possession from the petitioner and hand it over to the first respondent society-original disputant.
(c) The petitioner was to be given 15 days advance notice by the Receiver. Thereafter the Receiver was to make a report to the Court regarding compliance. The charges of the Receiver were to be paid by the first respondent society-disputant before the trial Court.
Such an interlocutory order was passed below Exh. 5 in the said dispute.
2. It was held by the trial court that the dispute which was filed before it had alleged that the petitioner is occupying a flat as a member of the first respondent-original disputant society. The dispute proceeds to allege that Ambaji Niketan Cooperative Housing Society is registered under the Maharashtra Cooperative Societies Act, 1960 (for short Act). The structure/building belonging to the society stands on the land being C.T.S. No. 643, 643/1 to 8 admeasuring 811.40 sq.mtrs. There are 24 members of the society. The building of the society has been constructed in the year 1962. From 2009 onwards, the society was considering re-development of this property by pulling down the existing structure as it is old and requires continued repairs. In such circumstances, from January 2009 onwards in Special General Body meetings and Annual General Meetings, this issue was discussed and debated. Thereafter, resolutions were passed in terms of the discussion at the General body meetings. The resolution passed at the meeting held on 27th December 2009 resolves that the developer-respondent No. 2 shall be appointed for undertaking the re-development work. Accordingly, a power of attorney and development agreement was executed with the developer by the first respondent society. That is dated 29th June 2010. The Mumbai Municipal Corporation issued an IOD on 29th June 2010. Thereafter, the general body resolved that the members should vacate their premises and hand over vacant possession to the developers. The resolution of the general body meeting held on 12th November 2010 has been referred to and eventually after all approvals and permissions, what the petitioners have done is not to comply with the request and resolution of the society. The society states that it has made all compliances and in a special general body meeting held on 29th September 2011, a representative of the Deputy Registrar, M Ward, Konkan Bhavan remained present and in his presence the decision to re-develop the property was taken and the resolution came to be approved. In such circumstances and when the society has incurred expenses to the tune of Rs. 1,73,63,000/- and 19 members have vacated flats and handed over vacant and peaceful possession thereof to enable the developer to demolish the old building and re-develop the property, then, on account of non cooperation by the petitioner and four others, the project has been stalled.
3. In such a dispute the application for interim injunction has been moved and what has been done thereafter is to serve the copy of the dispute application and the papers and proceedings on the petitioner. The petitioner appeared and objected to grant of any interlocutory relief, much less, mandatory in nature. What has been done by the society has been objected by the petitioner on the ground that the Government Resolution dated 3rd January 2009 issued directives for re-development of the buildings of a cooperative housing society. In this case, the decision has been taken clandestinely and flouting these directives and resolutions of the Government the decision to redevelop the property is taken. It is not transparent and equally the documents in relation thereto are not genuine. The petitioner pointed out that the resolution passed in a meeting held on 28th April 2010 has not been passed properly and in terms of the bye-laws as the minutes, if perused, would show that the nine signatures have been illegally obtained. The signatures are of persons who have signed as proxies. There is no such provision in the bye-law There was no majority and particularly of 2/3rd which is required by the rules and bye-laws. Equally, when the agreement is dated 29th June 2010 and there is a reference to a power of attorney of that date itself, then, the documents do not confer any right in favour of the developer and particularly to undertake re-development work. There is non compliance with the directives issued under section 79A of the Act, vide Government Resolution dated 3rd January 2009. For all these reasons and the entire decision and resolution being illegal and under challenge by the petitioner in a distinct dispute, then, all the more the interim injunction as prayed should not be granted.
4. After the petitioner filed his reply, the trial court heard both the original disputant-the first respondent herein (society) and second respondent developer and the petitioner and by the impugned order, has issued the aforesaid directives. On being satisfied that there is a strong prima facie case and the balance of convenience is in favour of the members of the society and if at this stage the work is obstructed that will cause serious prejudice to those who have already vacated their flats and handed over vacant and peaceful possession thereof. They are all residing in transit or temporary accommodation. They are awaiting fruits of redevelopment. The majority decision cannot be now defeated by raising any technical objections and, therefore, grant of interim mandatory orders is justified, according to the Trial Court.
5. It is this view of the trial court which has been confirmed by the lower appellate court leading to the filing of this petition.
6. Mr. Shah appearing for the petitioner firstly submitted that the trial court has virtually allowed the dispute at the interlocutory stage. It has passed sweeping mandatory orders and directions and has forced the petitioner to vacate the premises. The petitioner now cannot point out to the trial court that not only in the instant dispute but in the other dispute there are enough materials which will indicate that the re-development work has been undertaken illegally and cannot be allowed. The meetings and resolutions in that behalf are vitiated. The petitioner has enough oral and documentary evidence in his possession to show that the society trampled upon the rights of the petitioner and other minority members. The redevelopment is not in the interest of the members and equally the decisions in that behalf are not transparent and wholly one sided and arbitrary. There is non compliance with the orders and directions of the State Government. Further, these decisions are taken by a ad hoc body and it is not, therefore, permitted to take major policy decisions such as re-development of the building or property. For all these reasons, Mr. Shah submits that the interim orders are vitiated in law and should be set aside. There is no power in the trial court to appoint a court receiver and seeking his assistance for forcibly dispossessing all non cooperative members, like the petitioner. Moreover, there are serious lapses and deficiencies because what the developer has promised is not in terms of the development agreement and that would reduce the entitlement of the members. The TDR and FSI that will be generated is going to be exploited by the developer to his own advantage and benefit. The members will be deprived of the area assured under the Agreement. Further, there is no assurance forthcoming of expeditious completion of the project as well. For all these reasons, the impugned orders should be quashed and set aside.
7. On the other hand, the respondents have supported the orders under challenge by contending that the trial court as also the lower appellate court has rendered findings of fact relying upon the decisions taken at the general body meetings by the majority. These decisions are binding on the petitioner. The petitioner cannot refuse to abide by the same, when at this stage no material has been produced, which would vitiate the said decisions and resolutions. There is complete transparency and when the meeting was attended by the representative of the Deputy Registrar and in his presence, the decision of redevelopment is taken and finalised, then, all the more this is not a case to interfere in writ jurisdiction. The petition be dismissed is the submission of respondent's Counsel.
8. With the assistance of the Learned Counsel appearing for parties, I have perused the orders under challenge. The orders have been passed on a dispute which was filed by the Cooperative Society seeking a declaration in its favour that the resolutions which are passed at the general body meetings and the decisions taken thereat are binding on the petitioner and that he has to comply therewith. Non compliance by the petitioner therewith has stalled the entire re-development work. The petitioner has refused to cooperate whilst others who are 19 in number have not questioned any of the decisions or resolutions of the society. The redevelopment work must commence because the building is old and dilapidated. It is a construction of 1962. Such an old building now and in future...
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