1 dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL JURISDICTION WRIT PETITION NO.3783 OF 2008 Dr.(Mrs.) Swati M. Karande Petitioner vs. 1. Neptune CHS Ltd. & Anr. Respondents Mr.P.N.Joshi i/b.Mr.Kishor Patil for the petitioner. Mr.V.A.Thorat, Senior Counsel with Mr.R.A.Thorat for the respondent no.1. Mr.A.Y.Sakhare, Senior Counsel with Mrs.Rajlaxmi Murali for respondent no.2. CORAM : R.V. MORE,J. DATED : 6th August, 2008 P.C. Heard the learned counsel for the respective parties. 2. The petition takes exception to the order dated 24.03.2008 passed by the Member, Maharashtra State Cooperative Appellate Court, Mumbai in A.O. No.28/2008, whereunder the order passed on 13.03.2008 by the learned Judge of the Cooperative Court No.IV, Mumbai, appointing the Court Receiver to take possession of flat in dispute was confirmed. 3. The respondent no.1 is the Cooperative Housing Society. The petitioner is a Member of respondent no.1-society. The petitioner is in possession of flat 2 No.K-3/96 on the first floor in the building K-3 of the respondent no.1-society. The respondent no.2 is the developer, who has been appointed by majority of the Members of respondent no.1-society. The respondent no.1 is the owner of a land bearing Survey No.106-A in village Andheri. There are in all 80 members in two buildings of the respondent no.1-society viz. K-3 and K-4. Initially there were two different societies called K-3 and K-4 which were amalgamated on 28.07.2006 under the order of the Deputy Registrar, Cooperative Societies, MHADA with an intention to redevelop the entire property. 4. Two separate development agreements were entered into on 12.01.2006 and 25.07.2005 by K-3 and K-4 societies with respondent no.2-developer and after amalgamation of these two societies, development agreements were confirmed by the Deed of Confirmation executed on 03.03.2007. In pursuance of deed of confirmation, the respondent no.1 proceeded with re-development work. 5. The petitioner filed dispute before the Cooperative Court challenging the resolution passed by the respondent no.1 for re-development of the land. In this dispute, interim relief regarding implementation of re-development work as well as the petitioner’s 3 dis-possession was asked for. The interim relief was rejected upto the High Court. So far as the relief regarding dispossession is concerned, the High Court recorded the statement of the respondents that possession will not be taken without following due process of law. 6. The respondent no.1 thereafter filed present dispute claiming damages from the petitioner. The respondent no.1 also prayed for permanent injunction order restraining the petitioner from addressing any correspondence and/or taking any steps with Municipal Corporation etc. in respect of the property in question. The respondent no.1 also took out interim application claiming appointment of Court Receiver in respect of flat no.K-3/96 which is in possession of petitioner. The cooperative Court by order dated 13.03.2008 allowed the respondent no.1’s application in terms of prayers (b) and (c), viz. The Court Receiver was appointed to take possession of the disputed flat. At this stage, it is worth to mention that the petitioner has also filed counter claim claiming more or less the similar relief claimed in the earlier dispute. In this counter claim, the petitioner filed application for interim relief restraining the respondents from implementing development agreement as well as taking forcible possession of his flat. The petitioner’s 4 application for interim relief was rejected by the Cooperative Court. 7. The petitioner preferred an Appeal being A.O. No.28/208 challenging the order of the Cooperative Court whereby the Court Receiver was appointed to take possession of her flat. It is worth to mention here that the petitioner did not challenge the order rejecting her application for interim relief filed in counter claim. The Cooperative Appellate Court by the order dated 24.03.2008 dismissed the petitioner’s Appeal and hence the present petition. 8. Mr.Joshi, the learned counsel for the petitioner, made twofold submissions viz. (1) The development agreements as well as confirmation deed are not legal and valid and (2) In a dispute filed by the respondent no.1, there being no prayer for possession, by the interim order, Receiver could not have been appointed to take possession of the disputed flat. 9. Mr.Thorat, and Mr.Sakhare, the learned senior counsel for the respondent nos.1 and 2 respectively supported the impugned orders. They pointed out that the petitioner’s earlier dispute challenging the development agreement etc. is still pending in the Cooperative Court. The petitioner had filed an 5 application for interim relief restraining the respondents from implementing the development agreements etc. This application is already dismissed by the trial Court and Appellate Court and the High Court confirmed this order. They further pointed out that out of 80 members of the respondent no.1, 73 members have consented for development and, therefore, the Deed of Confirmation was executed on 03.03.2007, I.O.D. has been given by the Corporation. It was further submitted that K-4 building is already demolished and majority of persons in a building-K-3 have already vacated their flats. It was also submitted that the respondent no.2 has paid Rs.1,00,000/- to each of the 57 members. In addition to this, the respondent no.2 is paying an amount of Rs.8,000/- to each of the 57 members towards monthly rent. The respondent no.2 has also paid 11 months rent in advance to each of the 57 members. Over and above, the respondent no.2 has paid Rs.20,00,000/- to MHADA and Rs.5,00,000/- is deposited with B.M.C. towards development charges. The amount of Rs.1.5 crores is deposited with the Society in pursuance of the development agreement. Lastly, they submitted that the development project cannot be stopped when it was consented by majority of the members. 10. Mr.Joshi, the learned counsel for the petitioner, again contended that in the interest of justice this 6 Court can direct the Cooperative Court to dispose of the dispute by maintaining the status-quo as of today. 11. Having heard the learned counsel for the parties and having gone through the impugned orders, I do not find any merit in the petition. There is no dispute that the Competent Authority passed an order amalgamating the two societies, namely K-3 and K-4 and thereby formed the respondent no.1-society. There is also no dispute that respondent no.1-society executed Deed of Conformation with respondent no.2. The petitioner though challenged the validity of the development agreements and Deed of Confirmation as well as order of amalgamation of two societies and filed an application for interim relief, no relief is granted in favour of the petitioner. The petitioner has also filed counter claim claiming more or less the same reliefs in a dispute filed by the respondent no.1. In this counter claim, the petitioner has filed an application for interim relief, which came to be rejected by the Cooperative Court and this order has become final inasmuch as the same has not been challenged by the petitioner. Therefore, in my; considered view, at this stage, the petitioner cannot make any grievance regarding validity of the order amalgamating the two societies as well as development agreements entered into by K-3 and K-4 societies and subsequent Deed of 7 Confirmation executed by the respondent no.1-society, especially when majority of members have consented for development agreement. At this stage, it is also worth to mention that way back on 2.6.2006 MHADA declared both the buildings i.e. K-3 and K-4 as unfit for the habitation. It is not disputed by the learned counsel of the petitioner that K-4 building has already been demolished. In the facts and circumstances of the case, in my opinion, the redevelopment work cannot be stalled at the instance of the petitioner. 12. So far as the contention of Mr.Joshi, the learned counsel for the petitioner that Receiver cannot be appointed for taking possession of the flat in question is concerned, in my considered view, the same has no merit. The decision of majority is binding on the petitioner. The petitioners ought to have handed over the possession of the flat so as to allow the respondents to redevelop the property. The possession of the flat in question sought to be taken by the Receiver not permanently, but for temporary period for the redevelopment of the property and the petitioner, after redevelopment, will be handed over the equal area in the new building. In these facts and circumstances, in my considered view, no prejudice will be caused to the petitioner and, therefore, I am not inclined to interfere in the impugned order. 8 13. So far as the balance of convenience is concerned, an I.O.D. has already been issued by the Corporation in favour of the respondents on 12.04.2007. K-4 building is already demolished. The most of the members of K-3 building have vacated the flats in order to allow the respondents to redevelop the property. Huge payment of Rs.1.5 crores have been made by the respondent no.2 to the respondent no.1 and an amount of Rs.1,00,000/- is given to each of the 57 members by respondent no.2. Over and above, an amount of Rs.8,000/- per month is being paid by the respondent no.2 to each of 57 members. In these facts and circumstances, in my opinion, if the petitioner is granted relief of stay of the impugned order, in that event, the development project will be stalled and the respondents will suffer irreparable loss. On the contrary, the petitioner’s interest can be taken care of by directing the respondents to give to the petitioner an equal area of non-residential premises in a newly constructed building, in case petitioner succeeds in her dispute. 14. In the facts and circumstances of the case, I dispose of the petition by the following order: ORDER ORDER ORDER (i) Writ Petition is dismissed. 9 (ii) In the event the petitioner succeeds in Dispute No.343/2006 and counter claim in Dispute No.367/2007, the respondents shall hand over to the petitioner the non-residential premises of equivalent area of flat No.K-3/96 in the newly constructed building. (iii) The Cooperative Court shall expedite the hearing of both the Disputes. [R.V. [R.V. [R.V. MORE,J.] MORE,J.] MORE,J.]