1 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2276 OF 2008 ALONGWITH CHAMBER SUMMONS NO. 275 OF 2008 1. Godi Kamgar Griha Sanstha Ltd. 106-A, Jaiprakash Road, Andheri (W), Mumbai 400 053 2. Bharat Infrastructure & Engineering Ltd. C-601, Shri Ambashanti Chambers Off. Church Road, Opp. Hotel Leela, Andheri-Kurla Road, Andheri(E), Mumbai 400 053 .... Petitioners Versus 1. Mr. Jerry Thomas Cherian,Flat No.A-10 2. Mr. K.T. Pingulkar,Flat No.D-83 3. Mrs. Sunanda S. Sawant,Flat No.B-29, 4. Mr. Satish Fernandes,Flat No.G-170 5. Mrs. Saraswati Kotian,Flat No.A-12, 6. Mr. Pramod More/Jagdish More,Flat No.E-120 7. Mr. Jerry Thomas Cherian,Flat No. A-10 8. R.J. Manjrekar,Flat No.F-150 9. Mr. S.R. Tambe,Flat No.G-154 10. Mr. Chimanlal Joshi,Flat No.G-159 11. Smt. Madhurani S. Jaiswal,Flat No.B-4 12. Mr. Suryakant G. Gharat,Flat No.D-81 13. Ashok Gharat,Flat No.D-81 14. Prakash S. Phaterphod,Flat No.A-5 15. Mr. N. V. Mishry,Flat No.C-67 2 16. Mr. A.L.J. Rego,Flat No.C-73 17. Mr. Oslyn J. Carvallo,Flat No.D-104 18. Mr. C.C. Lacarda,Flat No.F-129 19. Mrs. Asha H. Sawant,Flat No.A-8 20. Mr. Mahesh Akarkar,Flat No.A-28 21. Mr. S. M. Mohite,Co-op. Officer, G.R.-1, MHADA 22. Mr. N. V. Thakore, Flat No. A-004 23. Mr. S.A. Dhuri, Flat No.A-006 24. Mr. S.A. Patil & Mrs. S.S. Patil, Flat No.A-009 25. Mr. A.J. Vaaz, Flat No.A-018 26. Smt. A.U. Prabhu, Flat No.022 27. A- Mr. Pascoal Simoes (LR), Flat No.B-32 28. Mr. Pramod M. Desai, Flat No.B-035 29. Mr. S. S. Tankar, Flat No.B-042, 30. A. Avinash Palav 30.B. Ajeet Palav 30.C.Ashok Palav 30.D.Shankar Palav 30.E. Anita Palav (LRs.) Flat No.B-40 31. Mr. R. H. Patel, Flat No.B-043 32. Mrs. S.G. Mane, Flat No.B-048 33. Mrs. V. B. Parab, Flat No. B-50 34. Manjula J. Kamdar (LR) Flat No.F-131 35. Abner (Aboo) Talkar (LR ) Flat No.F-142 36. Mr. P.B. Mashalkar, Flat No.F-145 37. Mr. R.C. Kapoor, Flat No.F-129 38. Mr. F. V. Vaz, Flat No.D89 39. Mr. Anand A. Kotian, Flat No. E-107 40. Mr. U.M. Madan, Flat No.E-109 ... Respondents And: Mr P. D. Kulkarni and another .. Applicants 3 Mr. M. M. Vashi a/w Mr. Santosh Narwade for the Petitioners Mr. Firoze Bharucha a/w Priscilla Samuel i/by Raymond Samuel for the Respondent Nos. 1, 3, 5, 11, 14, 24, 27, 28 and 29 Mr. M. R. Phal, for the Respondent Nos. 9 and 13 Mr. Kedar Prabhu for Respondent Nos. 20, 23, 30, 34, 35 and 40 Mr. S. Ingawale, AGP for the Respondent No.21 State Mr. Sean Wassoodew for the Applicant in Chamber Summons No.275 of 2008 Mr. Ajit Pingulkar, Member of the Petitioner No.1 in person CORAM : S. J. KATHAWALLA, J. Reserved on : 2nd March, 2010 Pronounced on : 25th June, 2010 JUDGEMENT: 1. By this Writ Petition the Petitioners have prayed for quashing and setting aside of the common order dated 28th March, 2008, passed by the Maharashtra Co-operative Appellate Court, Mumbai in three Appeal from orders bearing Nos. 222 of 2007, 227 of 2007 and 229 of 2007. 2. By an Order of this Court dated 6th May, 2008 the above Writ Petition was admitted and the hearing of the Writ Petition was expedited. Since the Writ Petition pertains to the issue involving redevelopment of seven old dilapidated buildings of the Petitioner No.1 having 172 members and since one out of the two new buildings of 18 floors i.e. Building C-1, was ready for occupation since the year 2007 and occupation certificate dated 4 8 thAugust, 2007 also issued by the Mumbai Municipal Corporation (MMC), certain interim orders directing allotment and handing over possession of flats to the members in the said Building C-1 have been passed by this Court from time to time. The Writ Petition is now taken up for final hearing. Mr. Wassoodew, Advocate appearing in Chamber summons No. 275 of 2008 filed by two of the members of the Petitioner No. 1 Society to intervene in the above Writ Petition and support the Petitioners was heard in the matter. Mr.Wassoodew has also submitted 71 Affidavits of individual members of the Society who are willing to shift to Building C-2 which is not constructed till date in view of the obstruction on the part of a minuscule number of members of the Society. Mr. Ajit K.Pingulkar (son of the deceased Respondent No.2 K. T. Pingulkar) also tendered an unregistered Chamber Summons for self and on behalf of 50 other members seeking to intervene in the above Writ Petition and support the Petitioners. Mr. Pingulkar was allowed to make his submissions in the matter. 3. At the outset, Mr. M. M. Vashi appearing on behalf of the Petitioner No.1 has submitted that before the Co-operative Court, the Petitioner No.1 had sought orders/ directions against the occupants of all the seven Buildings A to G. However, the Co- operative Court granted reliefs only against the occupants of 5 three Buildings 'A', 'B' and 'F'. In the present Writ Petition, the Petitioners are pressing for reliefs only against the occupants of Buildings 'A', 'B' and 'F' and not against the occupants of Buildings 'C', 'D', 'E' and 'G'. An Application seeking deletion of Respondent Nos. 2, 4, 6, 9, 10,12, 13, 15, 16, 17, 38 and 39, who are the occupants of Buildings 'C', 'D','E' and 'G' is filed by the Petitioners on the ground that the Petitioners are not seeking any reliefs against the said Respondents. The said application is opposed on behalf of the Respondents whose names are sought to be deleted on the ground that the said Application is taken out after the hearing of the Writ Petition has commenced and the said Respondents are already being represented in the above Writ Petition. The relief sought in the Application to delete some of the Respondents is therefore not granted. 4. According to the Petitioners, the following facts are relevant for deciding the above Writ Petition. 5. The Petitioner No.1 (hereinafter referred to as 'the Society') is a registered Co-operative Housing Society. As of today, there are 7 buildings consisting of 172 flats situate on land bearing Survey No.106-A(Pt) at Andheri (West), Off. Versova Road, Andheri and admeasuring 1292 sq. yards i.e. 10796 sq. mtrs. (hereinafter referred to as the said property). Most of the 6 members of the Society are the employees of the port trust. The Petitioner No.2 is a Developer appointed by the Society to redevelop the Society land after demolishing the existing buildings. The Petitioner No.2 has already constructed on the said property a Building numbered C-1, comprising of 18 floors and the MMC has issued an occupation certificate dated 8 th August, 2007 with regard thereto. 6. The Respondents are some of the members of the Society. The Society comprises of seven buildings ( A to G) constructed during the period 1964 to 1970. In all there are 172 members of the Society. The Society consists of three types of flats i.e. (a) A type .... 368 sq. feet (b) B type .... 560 sq. feet (c) C type .... 725 sq. feet 7. As all the seven buildings were in a dilapidated condition and required large scale repairs, which in turn would require every member of the Society to contribute Rs. two lacs (approximately) per flat, the Society in the year 2001 thought of redeveloping the Society property by demolishing the existing seven buildings. 7 8. At the 37th Annual General Body Meeting of the Society held on 11th August, 2002, (attended by 48 members of the Society), after detailed discussions, it was decided by the majority to redevelop the said property instead of going in for repairs to the seven buildings. At the said meeting the chairman requested that two persons from each building be elected to form a committee which alongwith the Chairman, Hon. Secretary and Treasurer of the Managing Committee will go through the complete details of redevelopment for the best benefit of the members. To enable the committee to proceed further in the redevelopment, the following resolution was passed: "Resolved by majority vote that the Sanstha should go in for redevelopment of the property instead of repairs, and the Managing Committee together with the newly elected committee is authorized to work out details of the redevelopment plans and place the options/offers available from various builders/ Developers before a General Body to be specially convened for the purpose, to enable members to take appropriate decisions." 9. At the Special General Body Meeting convened on 28th February, 2003 (attended by 110 members of the Society) the Consulting Architect of the Society made a slide show to apprise the members present about the dilapidated condition of the buildings and how the redevelopment was proposed to be undertaken in a phased manner. The advantages of redevelopment over repairs were pointed out. It was also pointed 8 out that in the case of redevelopment, the members will be getting free of cost flats in the new buildings to be constructed with an additional carpet area of 120 sq.feet over and above the existing area inclusive of a balcony. The members were informed that to partially neutralize the burden of increased taxes, the Developers are also agreeable to provide a corpus fund to the Society. It was further pointed out to the members that based on the advertisements issued in newspapers (Indian Express, Loksatta and Mid-day) about 20 Developers approached the committee, out of which 10 of them collected the tender documents and three of them submitted their proposals. The tenders were finalized in consultation with the members of the Managing Committee and the Redevelopment Committee. The salient features of these three proposals were explained to the members. It was also pointed out that site visits were arranged for the Managing and Redevelopment Committees, in order to acquaint them about the projects( completed and under-way), by the said three Developers at various locations. Suggestions of all the members present at the meeting were sought and it was explained in great detail as to why the members of the Managing Committee as well as the Redevelopment Committee were unanimously of the view that the redevelopment proposal of the Petitioner No.2 was more advantageous and in the interest of the Society and its members. The Members of the Society and their 9 children who were Architects were also invited to give their views and to extend cooperation in order to make the redevelopment project successful and beneficial to the members. Young architects (children of the members of the Society) therefore expressed their views at the meeting. The Issue pertaining to allocation of additional 120 sq. feet area per flat was also discussed, since some of the members were of the view that the additional areas should be allocated to the members as per the size of their flats and not uniformly, irrespective of the size of the flats. After detailed discussions, resolutions were unanimously passed (i) confirming that redevelopment of the Society’s property was the most ideal proposition (ii) Appointing Shri J.G. Dewoolkar of Ellora Project Consultants as “Consulting Architect” of the Society. (iii) Appointing M/s Bharat Infrastructure and Engineering Pvt. Ltd. as Developer to develop the Society’s property and (iv) authorising the chairman, Hon. Secretary and Treasurer of the Managing Committee in consultation with the Re- development Committee and the consulting Architect to take all necessary actions, decisions etc. qua the redevelopment of the Society’s property. 10. Pursuant to the said resolutions, unanimously passed on 28th February, 2003, a Development Agreement dated 8th December,2003 was executed between the Society and the 10 Petitioner No.2-Developer. Since the parties failed to appear before the Sub-Registrar of Assurances, Bandra within the time limit stipulated under the provisions of the Registration Act, the parties executed a Deed of Confirmation dated 27th August, 2004 and presented therewith the Agreement for Development dated 8th day of December, 2003 for registration. The said Agreement for Development dated 8th December, 2003 was therefore registered on 27th August, 2004. It is inter alia recorded in the said Development Agreement that the tentative layout for the proposed redevelopment and reconstruction of the said property, prepared by the Architects - Ellora Project Consultants, in consultation with the Developers Project Architect shows proposed buildings upto 18 upper floors in which all the 172 Members of the Society will be accommodated. 11. In the said Agreement dated 8.12.2003, it is agreed by and between the Society and the Developer that the Developer shall complete the first phase of construction of Wing 'A' of Building 'C', and handover the same duly completed after obtaining occupation certificate within 18 months of obtaining commencement certificate, to the Society. The occupants of existing Buildings 'A', 'B' and 'F' shall shift to the flats that are constructed in Wing 'A' within the next 2 months. The Developers shall complete the second phase of construction of Wing-'B' of 11 Building 'C' and handover the same to the Society duly completed after obtaining occupation certificate within 21 months of the occupants shifting to Wing 'A' of Building 'C'. 12. In the said Agreement dated 8th December, 2003, the Developers have inter alia agreed to provide the following : (a) In the new buildings comprising upto 18 upper floors, covered Car parking spaces shall be provided in stilt and podium and also open Car parking spaces free of cost. (b) 172 flats for the existing members; and additional six flats having an aggregate of 3100 sq. feet carpet area to the Society. (c) An office for the Society comprising of 200 sq. ft. built up area on the ground floor. (d) Servant's toilets of 25 sq. ft each on the ground floor. (e) Health club of 1000 sq. ft. built up area at the podium level with all the modern equipments. (f) Rs.2,95,20,000.00 (Rupees Two crores ninety five lacs twenty thousand only)towards hardship compensation to the Society for utilising the said amount with interest thereon only for the exclusive benefit of the existing members and or their heirs, successors and assigns. (g) Rs.94,85,00/- (Rupees ninety four lacs eighty five thousand only) being the premium for allowing the Developer commercial use of 18970 sq.feet. The said amount is to be untilised with interest thereon only for 12 the exclusive benefit of the existing members and or their heirs, successors and assigns. 13. 161 out of 172 members of the Society gave consent letters/executed individual Agreements with the Developer. The members, in the individual Agreements executed by them have inter alia recorded/confirmed that they have gone through the development Agreement dated 8th December, 2003 executed by and between the Society and the Developer and have agreed to co-operate in the development of the property of the Society. 14. On 21 stMarch,2004, Bhoomipujan was done which was attended by a large number of members of the Society including the obstructing Respondents. 15. On 21 st July, 2005 seven members of the Society i.e. Respondent Nos. 1, 4, 8, 9, 10, 11 and 12, filed a Suit in the City Civil Court bearing No. 2812 of 2005 for declaration that the appointment of Petitioner No.2 Developer is illegal and bad in law and for injunction restraining the Petitioner No.2 from doing any work of construction at the said property. According to the said seven members, the Petitioner No. 2 Developer has never undertaken any projects qua construction of buildings and has only undertaken projects pertaining to construction of roads etc. The Petitioner No.2 has failed to complete the projects 13 undertaken on time and is “blacklisted” by the MMC. Interestingly, the said seven members of the Society have, in the suit filed by them, not challenged any of the resolutions passed by the Society as regards the redevelopment of the said property. An application seeking to restrain the Petitioner No.2 Developer from redeveloping the property of the Society was rejected by an order passed by the City Civil Court, Mumbai dated 21st July, 2007. In the meantime, the Petitioner No.2 has proceeded with the redevelopment of the property of the Society and has constructed a building of 18 floors on the said property and also obtained occupation certificate from the MMC dated 8.8.2007. Before the pronouncement of this Judgment, this Court was informed that on 25 th March, 2010 the said suit was dismissed for default. 16. In July, 2005 i.e. almost three years after the Society at its 37th Annual General Body Meeting dated 11thAugust, 2002 resolved to re-develop the said property, seven members of the Society i.e. Respondent Nos. 2,3,4,5,6,13 and 14 filed Dispute No.CC-IV/187 of 2005 before the Co-operative Court No.IV at Mumbai, inter alia for a declaration that the minutes of the meetings dated 11.8.2002, 28.2.2003 and 8.12.2003 of the Special General Body, and the Annual General Meetings dated 10.8.2003 and 8.8.2004 be held null and void and the persons claiming on behalf of the Society be restrained by an order of 14 the Court to stop all the work of redevelopment unless the same is scrutinized and approved by the members of the Society. The said seven disputants moved an application seeking interim reliefs which was rejected by an order dated 10 th August, 2005 by the Fourth Co-operative Court at Mumbai. The said order dated 10 th August, 2005 makes a mention of the Development Agreement dated 8 th December, 2003 (wrongly typed as 6 th December, 2003). The said order also records the submission of the Society that a copy of the said Agreement was made available to all the disputants and the registered document will be made available for inspection at the office of the Society. It is submitted that though under the said Development Agreement the work pertaining to the redevelopment of the Society’s property is assigned to the Petitioner No.2 herein and further though the Development Agreement as well as the lay out plan attached thereto show that buildings upto 18 th floors are to be constructed on the said land, the said Agreement is not challenged by any member till date. Thereafter the disputants filed Revision Application No. 64 of 2005 before the Co-operative Appellate Court challenging the order dated 10 th August, 2005. However, the Revision Application was also rejected by the Co-operative Appellate Court by its order dated 29 th October, 2005 . 17. Since no ad-interim/interim orders restraining the 15 Society or the Petitioner No.2 Developer from carrying out the redevelopment work were passed either by the City Civil Court, Mumbai in Suit No. 2812 of 2005 (now dismissed) or the Co- operative Court in Dispute No.CC-IV/187 of 2005, the said work of redevelopment commenced and one of the two Buildings (C-1) comprising of 18 floors was constructed by the Petitioner No.2 and the MMC also issued an Occupation Certificate bearing No.CE/8323/WS/AK dated 8.8.2007. Thereafter, the Society decided to allot flats to the members of 'A', 'B' and 'F' Buildings in the newly constructed Building C-1, but the Respondent Nos.1 to 19 prevented allotment of flats to the members by creating a law and order problem. 18. In the meantime, on 4.5.2007, Respondent No.19 made an application to the Divisional Joint Registrar, Co-operative Societies alleging that the Managing Committee members of the Society had not furnished the indemnity bonds as required under Section 73-1(A) and (B) of the Maharashtra Co-operative Societies Act, 1960. On 14.11.2007, the Divisional Joint Registrar passed an order appointing an officer as the Administrator of the Society for a period of six months. 19. On 3 rd December, 2007, the Society was compelled to file a Dispute bearing No. CC-IV/124 of 2007 before the Co- 16 operative Court seeking directions against Respondent Nos. 1 to 19 and other members of the Society to vacate the exiting flats occupied by them and to cooperate in shifting to the newly constructed building. The Society also sought appointment of a Commissioner for allotment of flats in Building C-1. The Society also made an application seeking interim reliefs in the said Dispute No. CC-IV/124 of 2007 which was opposed by the Respondent Nos. 1 to 19 inter-alia on the following grounds: i. that the Secretary of the disputant Society has not been authorized by the Society to file the dispute; ii. that seven members of the Society have filed Dispute No.CC-IV/187 of 2005 before the Co-operative Court in which they have inter alia claimed that the resolutions pertaining to the redevelopment of the said property by demolishing the existing building and appointing Respondent No.2 (Petitioner No.2 herein) as builder/Developer are null and void; iii. that no Special General Body meeting or any other meeting was called to discuss the issue about raising floors above 16 floors in the new buildings, and therefore the construction of two floors above the 16 th floor in Building No.C-1 is without the consent of all members of the disputant Society and is therefore illegal. The Co-operative Court, by an order dated 3rd December, 2007, appointed a commissioner and issued directions to him to allot the flats situated in the newly constructed Building C-1 amongst the occupant members of existing Buildings 'A', 'B' and 'F' and 17 also directed the occupant members of Buildings 'A', 'B' and 'F' who were allotted new flats in C-1 Building to handover peaceful and vacant possession of their present tenements to the Society within a period of one month from the date of the said allotment. No orders were passed by the Fourth Co-operative Court, Mumbai against any of the Respondents residing in Building Nos. 'C', 'D', 'E' and 'G' of the Society. 20. Thereafter, Respondent Nos. 1, 9 and 10 filed three separate Appeals before the Co-operative Appellate Court challenging the order dated 3.12.2007 passed by the Fourth Co- operative Court, Mumbai. The said Appeal was supported by Respondent Nos. 3, 5, 11, and 14. No other Respondents have filed an Appeal impugning the order passed by the Fourth Co- operative Court dated 3 rd December, 2007. 21. Against the order appointing an Administrator of the Society dated 14.11.2007 the Society filed an Appeal before the Divisional Joint Registrar. The Appeal was rejected by an order dated 18 th February, 2008 with a modification i.e. alongwith the Administrator, some of the Respondents were appointed on the board of Administrators. The Society filed Writ Petition No. 1277 of 2008 therefrom before this Court. The Writ Petition was disposed of by recording that the Managing Committee Members are ready and willing to have fresh elections and the application 18 made by the Respondent No.19 alleging that the first Petitioner Society had not furnished indemnity bonds as required under Section 73-1 (A) and (B) of the Co-operative Societies Act, 1960 was not pressed. The administrator was directed to hold elections on or before 15 th May, 2008. 22. On 28th March, 2008, the three Appeals filed by Respondent Nos. 1, 9 and 10 were allowed by a common judgment and order of the Co-operative Appellate Court by which the order passed by the Trial Court dated 3rd December, 2007 in Dispute No. CC-IV/124/2007 was set aside and the Trial Court was directed to dispose of the dispute preferably within a period of six months from the date of the order. 23. Aggrieved by the order dated 28 th March, 2008 passed by the Co-operative Appellate Court, the Society and the Developer filed the present Writ Petition before this Court on 9th April, 2008 inter alia praying that the order dated 28th March, 2008 be quashed and set aside. The present Writ Petition was admitted on 6th May, 2008. The newly elected Managing Committee was ordered and directed to convene the Annual General Meeting within 15 days from the committee taking charge and to discuss and take a decision with regard to allotment of the tenements under the redevelopment scheme 19 including Building No.C-1. On 28 th April, 2008, the elections were held and the results declared, electing 9 committee members. The Administrator handed over the charge on 11 th August, 2008 to the newly elected office bearers of the Society. 24. By an order dated 25 th August, 2008, this Court