KPP -1- LPA NO. 202 OF 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 202 OF 2011 IN WRIT PETITION NO. 7389 OF 2008 WITH CIVIL APPLICATION NO. 272 OF 2011 1. Kiran Baburao Vanjari, age 58 years, ) residing at Room No. 19/150 ) 2. Shilpa Kamlesh Shah, age 49 years, ) residing at Room No. 19/152 ) 3. Tukaram Raghunath Kerkar, age 66 years, ) residing at Room No. 20/153 ) 4. Bapurao K.Taroo, aged 77 years, ) residing at Room No. 20/160 ) 5. Jagdish B. Totade, aged 71 years, ) residing at Room No. 21/161 ) 6. Pauline A. Pais, aged 74 years, ) residing at Room No. 21/164 ) 7. Suman R. Karnik, aged 80 years, ) residing at Room No. 21/168 ) 8. Pradeep P. Shriyan, aged 37 years, ) residing at Room No. 24/187 ) All the abovenamed having their residential premises at ) Goregaon Unnati CHS Ltd., Unnati Nagar Part-3, ) Goregaon (W), Mumbai-400 062 )..Appellants (Orig. Petitioners) KPP -2- LPA NO. 202 OF 2011 vs. 1. M/s. Goregaon Unnati CHS Ltd. ) Unnat Nagar Part-3, Goregaon (W), ) Mumbai-400 062 ) 2. M/s. S.D. Construction, a proprietory concern ) through its sole Proprietor Mr. Shekar Dadarkar, ) having office at 19B,Ravikiran Estate, ) Next to Monginis Factory, Off. New Link Road, ) Andheri (W), Mumbai-400 058 ) 3. The State of Maharashtra, through the ) Deputy Registrar, 2nd floor, Griha Nirman Bhavan, ) Bandra (East), Mumbai-400 051 ) 4. Mumbai Area and Housing Development Board, ) a unit of MHADA through its Legal Department, ) Griha Nirman Bhavan, Bandra (East), ) Mumbai-400 051 ) 5. Executive Engineer, Bandra Division, ) MHADA, through its Legal Department, ) Griha Nirman Bhavan, Bandra (East), ) Mumbai-400 051 )Respondents Mr. J.J. Bhatt, Senior Advocate, with Mr. Y.C. Naidu, Mr. Kamlesh Kharade and Ms. Nidhi Singh, instructed by M/s. India Law Alliance, for the appellants. Mr. Aspi Chinoy & Mr. P.K. Samdani, Senior Advocates, with Mr. A.A. Joshi, instructed by M/s. Viraj Maniar Associates, for respondent No.1. Mr. P.K. Dhakephalkar, Senior Advocate, instructed by Mr. V.C. Ghosalkar, for respondent No.2. Mr. G.W. Mattos, Assistant Government Pleader, for respondent Nos. 3 to 5. KPP -3- LPA NO. 202 OF 2011 CORAM: P.B. MAJMUDAR & MRS. MRIDULA BHATKAR, JJ. DATE: AUGUST 08, 2011. ORAL JUDGMENT: (Per P.B. Majmudar, J.) Since it is agreed by the learned counsel appearing for the parties that this appeal can be disposed of finally at the admission stage itself, we have heard the matter on merits at length forthwith. Hence admitted. Learned counsel and the learned Assistant Government Pleader, appearing for the respective parties appear and waive notice of admission. 2. The present appeal is directed against the judgment and order of the learned single Judge dated 21st July, 2011 passed in Writ Petition No. 7389 of 2008 by which the writ petition filed by the present appellants has been dismissed by the learned single Judge. The said writ petition was filed by the appellants challenging an order passed by the Judge, Co- operative Court No. IV at Mumbai, dated 12th September, 2008 in C.C- IV/96/08 by which the Co-operative Court declined to grant any interim relief sought by the present appellants in the said dispute. The said order was challenged by the appellants before the Maharashtra State Co- operative Appellate Court, Mumbai, in A.O. No. 112 of 2008 and the KPP -4- LPA NO. 202 OF 2011 Appellate Court also dismissed the appeal vide order dated 3rd October, 2008 against which, as stated above, the writ petition was filed before the learned single Judge. The learned single Judge dismissed the said writ petition and confirmed the order passed by both the authorities below. 3. The learned single Judge also observed in the order that in case the dispute filed by the present appellants is allowed by the Co-operative Court, respondent Nos. 1 and 2 will not be permitted to claim any equity even if they proceed with the development work. This direction has been given by the learned single Judge as the writ petition was filed before the learned single Judge was against an interlocutory order by which interim relief was not granted by the Co-operative Court in favour of the present appellants. During the pendency of the writ petition, Mumbai Area and Housing Development Board (“MHADA”) had initiated proceedings on 27th February, 2009 under Section 95-A of the Maharashtra Housing and Area Development Act, 1976 (hereinafter the “said Act of 1976”)for summary eviction of the appellants with a view to see that the development work may proceed as per the No Objection Certificated granted by MHADA. Initially, the order of summary eviction issued by MHADA was challenged by the appellants by way of Writ Petition (Lodging ) No. 431 of 2009. A Division Bench of this Court vide order dated 13th April, 2009, held that KPP -5- LPA NO. 202 OF 2011 MHADA was competent to issue such eviction order under Section 95-A of the said Act of 1976. Against the dismissal of the said writ petition, the appellants had preferred a Special Leave Petition being SLP (Civil) No. 10173/2009. The Supreme Court has disposed of the said SLP on 9th April, 2010. The said order of the Supreme Court reads thus: “ Leave granted. The appellants herein were the petitioners in Writ Petition (L) No. 431 /2009 on the file of the Bombay High Court. In the said writ petition, the appellants challenged a notice dated 27.2.2009 issued by the Maharashtra Housing and Area Development Authority (MHADA, the first respondent herein) requiring them to shift from their respective tenaments in Goregaon Unnati Cooperative Housing Society Ltd. (4th respondent) within 48 hours from the receipt of that notice, failing which action will be taken to shift them summarily at their risk and cost. The Division Bench of the High Court dismissed the said writ petition by the impugned order dated 13.4.2009. 2. It may be mentioned that the appellants had filed a more comprehensive petition, W.P. No. 7389/2008, before the High Court wherein they have challenged the order dated 12.9.2008 of the Co-operative Court No.4, Mumbai whereby their applications for interim relief was rejected and the order dated 3.10.2008 made by the Maharashtra State Co-operative Appellate Court, Mumbai affirming the said rejection. 3. When the special leave petition seeking leave to file this appeal against the order dated 13.4.2009 in W.P. No. 431/2009 came up on 27.4.2009, this Court ordered notice and granted interim stay of execution of the MHADA’s order dated 27.2.2009. 4. After the matter was argued for some time, learned counsel for the petitioners submitted that he may be KPP -6- LPA NO. 202 OF 2011 permitted to withdraw W.P. No. 431/2009 challenging the MHADA’s order dated 27.2.2009 and raise all contentions comprehensively in W.P. No. 7389/2008 pending before the High Court subject however to the condition that for a period of four weeks MHADA should stay any action in pursuance of the order dated 27.2.2009. 5. Having heard the learned counsel, and on the facts and circumstances, we consider this a fit case where the various contentions urged by the petitioners herein should really be urged in the pending matter before the Maharashtra State Co-operative Court and in the W.P. No. 7389/2008 which arises from the interim order of the Co- operative Court. Having regard to the fact that W.P. No. 431/2009 challenged only the order which directed shifting within 48 hours, several contentions with reference to merit could not be urged by the parties and all documents also could not be placed. All parties are at a disadvantage as the scope of W.P. No. 431/2009 was rather limited and before us they could urge only issues that arose from the said writ petition. In the circumstances, we are of the view that the request of the petitioners for permission to withdraw the writ petition itself with liberty to urge all contentions in the writ petition pending with reference to the order of the Co- operative Court deserves to be accepted. 6. We, therefore, allow this appeal in part, set aside the impugned order of the High Court dated 13.4.2009 without examining it on merits, and permit the appellants to withdraw W.P. (L) No. 431/2009 and urge all their contentions in regard to validity of several resolutions in W.P. No. 7389/2008 which is pending. W.P. (L) No. 431/2009 is dismissed as withdrawn. To enable the appellants to do so, we record the submission on behalf of the MHADA that they will not give effect to the order dated 27.2.2009 for a period of four weeks. Having regard to the factual background and having regard to the fact that many of the members who in pursuance of the arrangement with the builders have already shifted from the premises and are staying in transit accommodations for several years, we request the High Court to dispose of the matter KPP -7- LPA NO. 202 OF 2011 expeditiously. All contentions are left open.” 4. The appellants thereafter, in the original pending petition, took out an amendment application challenging the notice issued by MHADA. The learned single Judge granted the amendment application and thereafter referred the matter to the Division Bench in view of the fact that certain prayers made in the writ petition were within the jurisdiction of the Division Bench. The matter thereafter came up before a Division Bench of this Court (C.J. & S.J. Kathawalla, J.) on 24th November, 2010. The Division Bench recorded the statement made by Mr. Mattos, learned counsel for MHADA, that since orders under Section 95-A of the Act of 1976 has been issued without following the principles of natural justice, the said orders are withdrawn and fresh orders will be passed. The Division Bench recorded the said statement of the learned counsel for MHADA. Subsequently, MHADA issued fresh notices to individual appellants and after giving hearing to them passed a reasoned order on 11th January, 2011. By the said order, MHADA directed the appellants to shift to the transit camp accommodation made available to them within seven days from the receipt of the said order failing which the appellants would be summarily evicted from the tenements in their occupation. In view of the said decision of MHADA, the appellants sought amendment in KPP -8- LPA NO. 202 OF 2011 Writ Petition No. 7389 of 2008, challenging the said order dated 11th January, 2011, which petition is originally filed challenging the interim order of the Co-operative Court by which interim relief was refused in favour of the appellants. The Division Bench allowed said amendment on 12th January, 2011 and the petition was accordingly amended challenging the decision of MHADA under Section 95-A of the Act of 1976. Subsequently, the Division Bench by its order dated 3rd February, 2011 came to the conclusion that the petition was earlier placed before the Division Bench in view of the other reliefs that were sought and which are now not pressed. The Division Bench further observed that since the subject matter of the petition confined to prayer clauses (a), (b), (d) (v)(i), which pertains to the jurisdiction of the learned single Judge, directed the Registry to examine and place the matter before the appropriate bench. The matter was accordingly placed before the learned single Judge. Before the learned single Judge, there were two basic issues, one was regarding not granting interim relief in the pending dispute by the Co-operative Court and the other was regarding challenge to the fresh order passed by MHADA regarding summary eviction order passed by MHADA on 11th January, 2011. The learned single Judge decided both the issues against the present appellants by holding that the Co-operative Court has not committed any error in not granting any interim relief to the appellants. KPP -9- LPA NO. 202 OF 2011 The learned single Judge also held that the fresh decision taken by MHADA is in accordance with law and, therefore, the said order is not required to be set aside in the writ petition. Against the dismissal of the said writ petition, the instant Letters Patent Appeal has been filed by the original petitioners of Writ Petition No.7389 of 2008, who are original disputants before the Co-operative Court in the dispute. 5. The appellants are members of the first respondent Society (“the Society”) and are staying with their family members in the respective tenements/flats since several years. The premises in question are chawls bearing Nos. 19, 20, 21 and 24. The Society decided to demolish these chawls for the purpose of redevelopment and in this connection a meeting was held on 17th April, 2005 in which certain resolutions were passed. In pursuance of this meeting, a decision was taken by the society for redeveloping the concerned chawls. Accordingly, redevelopment agreement dated 30th April, 2006 followed by a Supplementary Agreement dated 3rd August, 2007 were executed. The appellants took out an objection to the fact that the premises in question belong to MHADA as MHADA has already executed a lease deed in favour of the society. The society thereafter approached MHADA for the purpose of re-development of the buildings and for granting No Objection Certificate in connection KPP -10- LPA NO. 202 OF 2011 with the chawls numbering from 19 to 25 i.e. 7 chawls in all. Even earlier to that, a No Objection Certificate was granted in connection with redevelopment of chawl Nos. 22, 23 & 25 in the year 2000. The occupants of the aforesaid chawls were willing to carry out the development at their own costs and ultimately occupants of the aforesaid chawls constructed ground plus two floors by exploiting the available FSI. Since occupants of other chawls were not in a position to carry out the redevelopment on their own in view of financial difficulties, the earlier No Objection Certificate which was granted in the year 2000 was confined only to chawl Nos. 22, 23 & 25. It is not in dispute that the occupants of the said chawls carried out the redevelopment at their own costs and have also utilised the FSI available to them. Subsequently, question arose regarding development of chawl Nos. 20, 21 & 24. The Managing Committee of the Society held a meeting on 23rd January, 2006 in connection with the redevelopment of these three chawls and at the time of discussion it included chawl No. 19 also. Subsequently, a development agreement was executed on 30th April, 2006 and on the basis of the same, MHADA gave No Objection Certificate for developing of the aforesaid chawls. The Municipal Corporation also gave necessary approvals in this behalf. The society thereafter issued letters to the members including the appellants on 29th December, 2006 asking them to give their consent. A reference was KPP -11- LPA NO. 202 OF 2011 also made to the Intimation of Disapproval (IOD) from the Municipal Corporation of Greater Mumbai. Since the appellants were apprehensive that by virtue of the aforesaid No Objection Certificate granted by MHADA regarding development of subsequent chawls and since they are likely to be dispossessed without due process of law, a civil suit was filed being Suit No. 515 of 2007 and took out Notice of Motion No. 60 of 2008. Having realised that such suit is not maintainable, the suit was withdrawn as the Civil Court has no jurisdiction to decide the controversy. Subsequently, the appellants approached the Co-operative Court by way of fresh proceedings as stated above. Before the Co-operative Court, various reliefs were claimed such as execution of the agreement dated 30th April, 2006 between the society and the builder is bad in law, that the supplemental agreement dated 3rd August, 2007 between the society and the builder is bad in law and illegal. The appellants also challenged the decision taken at its meeting dated 17th April, 2005. Further a declaration was also sought for to the effect that the resolutions passed by the Society in its meeting dated 17th April, 2005 can be restricted only qua chawl Nos. 20, 21 and 24 and the same is not applicable so far as chawl No. 19 is concerned. It is also prayed that the meeting held on 2nd April, 2006 be held to be illegal and contrary to law. The learned Judge of the Co- operative Court came to the conclusion that once the resolution is passed KPP -12- LPA NO. 202 OF 2011 by majority of the members of the society, it is not open to the minority members to challenge the resolution of the Society and obstruct the redevelopment work in connection with the aforesaid four chawls. The co- operative Court accordingly declined to grant any interim relief. Against the said order, an appeal was preferred before the Co-operative Appellate Court and the Appellate Court also dismissed the said appeal and the said decision was accordingly challenged before the learned single Judge. In the meanwhile, as pointed out earlier, in order to see that the development agreement can be effectively enforced, MHADA took out proceedings under Section 95A of the Act and the subsequent decision of MHADA in this behalf is also challenged by way of amendment in the present writ petition. 6. The learned single Judge, after considering various minutes of the society, ultimately held that once the majority of the members have decided to go for development work, it would not be proper to halt the development at the instance of the present appellants. The petition was accordingly dismissed on the aforesaid aspect. The learned single Judge also held that all No Objection Certificates which are pending and issued prior to the issuance of the Resolution dated 6th December, 2008 are thus covered by the amended D.C. Resolution 33 (5) and (7). In view thereof, Section 95A of the Act of 1976 is also applicable in order to see that the KPP -13- LPA NO. 202 OF 2011 development work is properly implemented. The prayer made by the appellants before the leaned single Judge on both the counts was accordingly rejected against which the present appeal is filed. 7. Mr. Bhatt, learned senior counsel appearing for the appellants, along with Mr. Naidu, submitted that so far as chawl No. 19 is concerned, there was no resolution passed by the general body of the society in connection with redevelopment of the same. It is submitted that the present appellants are not parties to any such resolution passed by the Society. It is submitted that the Executive Committee on their own could not have included chawl No.19 in the redevelopment plan, unless the same was approved at the general body meeting. It is submitted that unless the meeting of the general body is held in this behalf and approved by 70 per cent majority, resolution passed by the society is not permissible in law. It is submitted that since there is no resolution regarding redevelopment of chawl No. 19, MHADA could not have issued NOC as there was no requisite majority of 70 per cent members present in such meeting. It is submitted that no redevelopment work has yet started and only some members have vacated their existing premises. It is further submitted that unless all the members occupying their respective premises vacate, development work cannot be undertaken as per the clauses in the development agreement. It is submitted that the Co-operative Court has KPP -14- LPA NO. 202 OF 2011 not properly taken into consideration prima facie case in favour of the appellants and considering the facts and circumstances of the case, interim relief ought to have been granted by the Co-operative Court. It is submitted that if the development work is over, it is difficult to adjust the equities even if the dispute of the appellants is allowed by the Co- operative Court. During the course of hearing, the learned counsel appearing for the appellants submit that the appellants are not objecting the re-development but the members may be allowed to develop the property on their own. It is further submitted that by allowing development of different chawls in different manner, it may result into bifurcating/splitting up of the existing society. It is further submitted that the subsequent resolution by which chawl No. 19 is included in the re- development is passed by the Executive Committee and not by the General Body. It is submitted that the initial NOC granted by MHADA was for development by individual persons and on the basis of the same, no development should be allowed so far as chawl No. 19 is concerned. It is submitted that the appellants have not been given benefit of additional FSI. It is further submitted that in order to balance the equities, at least one portion may be kept entirely open and the appellants are willing to vacate their existing chawls and ultimately if they succeed in the dispute before the Co-operative Court, they may get benefit of the additional FSI KPP -15- LPA NO. 202 OF 2011 in case some area is kept vacant. It is pointed out that even the information obtained under the Right to Information Act shows that at the relevant time there was no consent of 70 per cent for the redevelopment scheme. 8. Mr. Samdani, learned senior counsel appearing for the first respondent society, on the other hand, submitted that so far as land is concerned, it belongs to MHADA and society is the lessee. It is submitted that in view of the financial difficulties if MHADA is not in a position to develop the land in question, MHADA decided to redevelop the same by taking benefit of private participation. It is submitted that there are 56 members and initially those members who had shown their willingness to develop at their own cost were granted no objection certificate for such development in the year 2000. It is submitted that out of 56 members, 24 members took the benefit of such development as per the no objection certificate granted in the year 2000. 32 members had not taken benefit of such redevelopment at the relevant time since it was not possible for them to incur expenditure for such redevelopment and because of financial constraints only partial development had taken place. As pointed out earlier, out of 56 members, 24 members took the benefit of development and spent their own money for such development. It is submitted that the KPP -16- LPA NO. 202 OF 2011 construction in question is very old one and the remaining three chawls are required to be renovated immediately. In view of the same the aforesaid 32 members subsequently proposed for redevelopment of the remaining area. Remaining 24 members were not interested as they have already developed the area in which they are residing on the basis of no objection certificate granted in the year 2000. The real interested members can be said to be 32 occupants who are occupying chawl Nos. 19, 20, 21 and 24. Mr. Samdani pointed out that even as per the averments made before the Co-operative Court, chawl No. 19 is already included in the redevelopment. Regarding area, it is submitted that there is not a single word or averment in this respect in the dispute before the Co- operative Court. It is submitted that if 24 members, who were not interested in pursuing the development work, are taken out from the consideration, it is not in dispute that out of 32 members, there was a majority of 70 per cent who had agreed for such redevelopment. It is submitted that there is absolutely no challenge to the resolution on this aspect. At this stage it is pointed out by Mr. Samdani that at the time when the Special Leave Petition was pending before the Supreme Court, at the time of entertaining the Special Leave Petition, the Supreme Court passed an order by which the Society was permitted to pass fresh resolution. Of course, this aspect was not argued or pointed out by