: 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2358 OF 2009 R.B. Sambare & Ors. ... Petitioners v/s. Kumar Housing Corporation Ltd. & Ors. ... Respondents A/W WRIT PETITION NO.2361 OF 2009 Anant Mahaddalkar & Ors. ... Petitioners v/s. Kumar Housing Corporation Ltd. & Ors. ... Respondents A/W WRIT PETITION NO.2399 OF 2009 M.C. Mali & Ors. ... Petitioners v/s. Jagdusha Nagar CHS Ltd. & Ors. ... Respondents A/W WRIT PETITION NO.2400 OF 2009 Rekha D. Kinger & Ors. ... Petitioners v/s. Kumar Housing Corporation Ltd. & Ors. ... Respondents : 2 : AND WRIT PETITION NO.2907 OF 2009 Nilesh H. Patel & Ors. ... Petitioners v/s. Kumar Housing Corporation Ltd. & Ors. ... Respondents Mr.R.Sarathy for Petitioner in WP 2358 of 2009 Mr.Indrajeet Suryavanshi for Petitioners in WP 2361 of 2009 Mr.Ashok Daver with Dipen Furia for Petitioners in WP 2399 of 2009 Mr.Bipin Joshi for petitioners in WP 2400 of 2009 Mr.R. Sarathy i/b M/s.Thodur Law Associates for Petitioners in WP 2907 of 2009 Mr.Shyam Mehta a/w F.Behramkamdin, Swati Deshpande i/b M/s.FZB & Associates for Kumar Housing Corporation Ltd. Mr.Darius Kambatta i/b Vaibhav Mehta a/w Ms.N.Nadar for Respondent society in all Writ Petitions CORAM: SMT.NISHITA MHATRE, J. DATE: JUNE 12, 2009 P.C.: 1. These petitions challenge the order passed by the Cooperative Court in Case No.CC/II/199 of 2008 and confirmed by the appellate Court by a common order in A.O. Nos.132 of 2008, 136 of 2008 and 217 of 2008. The facts involved in these petitions are the same and common issues have been raised by the petitioners who are all : 3 : members of the Cooperative Society known as Jagdusha Nagar Avdut Co-op. Housing Society Limited. The petitions have therefore been heard together and are being disposed of by this common order. 2. The Society has 216 members. 166 members submitted a joint requisition to the society to call a Special General Body meeting to consider a proposal for reconstruction and redevelopment of the chawls/tenements occupied by the Petitioners and other members of the society. A proposal for redevelopment of the society was considered at the Annual General Body Meeting held on 13.8.2004. Thereafter, a Special General Body Meeting was called to consider the issue of reconstruction of the society’s property by demolishing the existing chawls. A resolution was passed at this Special General Body Meeting held on 19.2.2005 by which it was unanimously decided to redevelop the property. Admittedly, the petitioners herein were present at the meeting and consented to the redevelopment of the property. Accordingly, Kumar Housing Corporation Limited, i.e. Respondent No.1 in each of these petitions, was appointed as the Developer of the property. A development agreement was executed between the society and Kumar Housing Corporation Limited (for short, hereinafter referred to as the "Developer") after all issues had been discussed at the general body meeting of the society. It was agreed by the Society that that the Developer would provide: : 4 : a. Corpus Fund to each member of Rs.1,05,111/-. b. Rent of Rs.5000 per month for the temporary alternate accommodation. c. Each member will get flat of 387 Sq.Ft. (Carpet) including Balcony. d. The Developer has to obtain the Conveyance from the original owner at his cost in favour of society. e. Rs.5,00,000/- to be given to the Society for expenses such as payment of Society’s Advocate Architect, etc. f. The Bank Guarantee of Rs.5 Crore. 3. After registration of the agreement, 168 members vacated the rooms and handed over possession of the same to the society. As all the members had not vacated the tenements, the society filed a dispute being Dispute No.CC-II/199 of 2008 before the Cooperative Court against them. The Society sought directions against these members so as to implement the resolutions passed by the society at its annual general meetings and special general body meetings held from time to time in respect of the redevelopment of the property. 4. The petitioners herein opposed the dispute by contending that the reliefs claimed by the society could not be granted by the cooperative Court but by a civil Court. The petitioners therefore, requested the cooperative Court to decide the preliminary issue regarding its jurisdiction to grant the prayers sought by the society. By an order dated 11.8.2008, the cooperative Court held that since the dispute was filed for implementation of the resolution dated 9.4.2005, it had the jurisdiction to grant the consequential reliefs claimed in the dispute. Opponent No.1 i.e. Petitioners Nos.2 and 3 in W.P. No.2361 of : 5 : 2009 filed an application under Order 7 Rule 11 of the Civil Procedure Code for rejection of the dispute. This application was rejected on 3.11.2008. Significantly, neither the order of 11.8.2008 nor the order of 3.11.2008 have been challenged in these writ petitions or in any other proceedings. The society had also prayed for interim relief while filing the dispute. The trial Court after considering the submissions on behalf of the parties allowed the application for interim relief. The 32 opponents to the dispute were directed to vacate and hand over peaceful possession of their respective tenements to the society within 45 days of the order. 5. Appeals were filed by the second petitioner in W.P. 2361 of 2009, Respondent Nos.13 to 16, 18 to 20 in W.P. 2361 of 2009 as well as Petitioner Nos.1 to 7 in W.P. No.2399 of 2009 and Petitioner Nos.1 and 2 in W.P. No.2400 of 2009. The cooperative appellate Court confirmed the order passed by the trial Court and directed the members who were still in occupation of the tenements to vacate their premises and to hand over the same to the society. 6. It is these orders which have been challenged in the present petitions. 7. Admittedly, out of 216 members, 200 had consented to the redevelopment. 197 had consented to the redevelopment by Kumar : 6 : Housing Corporation Limited. Out of 216 members, 173 have vacated the premises and 14 are willing to vacate if the others follow suit. 29 persons i.e. the petitioners herein have refused to vacate the premises. 173 tenements have already been demolished and the developer has paid to the society rent for alternate accommodation for these members. 8. The main contention raised by the petitioners herein is that although they have no objection per se to the redevelopment of the society, the same should not be done through the present developer. They have sought bifurcation of the society and their application for bifurcation is pending before the appropriate authority. It was contended by the Petitioners that these petitions should be heard after the appliation for bifurcation of the society is disposed of and till then the ad-interim relief granted by this Court should be continued. In my view, it is not necessary to adjourn the hearing of these petitions for admission till the applications for bifurcation of the society is heard as these writ petitions impugn the orders passed by the Co-operative Court and the Co-operative appellate Court. 9. The other contention raised on behalf of the petitioners was that by the interim order the final relief has been granted to the society. It was contended by the advocates appearing for the petitioners that it is a well settled proposition of law that such relief cannot be granted at : 7 : an interim stage. To buttress this submission, the learned advocates for the petitioners relied on the judgment in the case of Metro Marins & Anr. v/s. Bonus Watch Co.(P) Ltd. & Ors., (2004) 7 SCC 478. It was then submitted that assuming all the petitioners vacate their tenements and they are demolished for redevelopment of the property, and, the trial court comes to the conclusion at the final hearing that the dispute was to be dismissed then the petitioners would not be able to get back their old tenements. In short it was contended that it would be impossible to direct that status quo ante should be maintained. It was then submitted that the Developer has not signed separate agreements with each of the members. The agreements which were furnished to them indicated that the area being allotted to each of them was less than that agreed upon initially by the Developer. It was, therefore, submitted that the development is being conducted without implementing the decisions of the general body of the Society and, therefore, the petitioners had opposed the redevelopment of the property. 10. The other submission advanced on behalf of the petitioners is that the Cooperative Court had no jurisdiction to grant the relief claimed in the dispute and therefore the dispute ought to have been dismissed after framing the preliminary issue. 11. Although it is trite that the final relief should not be granted at : 8 : an interlocutory stage, in exceptional circumstances, as held in Metro Marines’ case (supra), such relief could be granted even at the interlocutory stage. The Supreme Court reiterated its view in the case of Dorab Caswaji Warden v Coomi Sohrab Warden (1990) 2 SCC 117. Normally such mandatory orders directing the members to vacate their tenements could not have been passed by the trial Court and confirmed by the appellate Court at an interlocutory stage. However, the facts in the present case warrant such orders being passed. While considering whether interim relief ought to be granted, balance of convenience and the hardship caused must always be taken into consideration. In the present case, if the interim relief granted by the trial Court and confirmed by the appellate Court is to be vacated as contended by the petitioners, the hardship which would be caused not only to the Developer but also to the Society and 173 members of the society who have already vacated their premises, must also be taken into consideration. The balance of convenience in favour of these members whose interests are represented by the society must also be borne in mind while considering this aspect of the matter. Admittedly, although the interim relief was granted by the trial Court in favour of the society three appeals were filed by only some of the present petitioners. Thus, most of the petitioners have directly challenged the order passed by the trial Court in these Writ Petitions rather than first preferring an appeal. These petitions must therefor be dismissed in view of the alternate remedy available to the petitioners. However, I : 9 : am not inclined to dismiss the same on this ground alone as no useful purpose would be served as the appellate Court would, undoubtedly, follow its order which has been passed on 12.1.2009 and impugned in these petitions. 12. The question therefore is whether the order of the trial Court and the appellate Court can be said to be so perverse as to require interference from this Court under Article 227 of the Constitution of India. Admittedly, all the petitioners had agreed to redevelop the society’s property. As a result, each of them would benefit by being allotted accommodation of 387 sq.ft. Carpet area, including the balcony. Besides this, each of the members is entitled to approximately Rs.100,000/- as corpus fund. Rent of Rs.8,100/- per month is to be paid to each of the members for alternate accommodation till the completion of the redevelopment work. Besides this, the Developer has given two bank guarantees to the society of Rs. 2.5 crores each. The trial Court and the appellate Court have considered these factors and have directed the petitioners to vacate their tenements and to hand over peaceful possession of their premises to the society. 13. In the present case, an overwhelming majority of 200 members had agreed to the redevelopment of the society. Out of these persons 173 members had vacated their premises and 14 more were willing to : 10 : vacate their tenements as and when the petitioners hand over their premises. In my opinion, a minority of 29 persons cannot hold to ransom the majority of 173 persons by refusing to vacate the tenements. In a democratic process, once a resolution has been passed by the general body of the society, it must be implemented in toto unless it has been set aside. A dispute has been filed in the cooperative Court being C.C.-II/199 of 2008 by certain members of the society challenging the resolution of 9.2.2005. The application for interim relief has been rejected by the cooperative Court and that order has not been challenged by the petitioners. Therefore, in my opinion, the submission on behalf of the Petitioners that the resolution itself was invalid cannot be accepted. Furthermore, prima facie, it appears from the material on record that a majority of the petitioners have furnished a consent letter initially in the year 2005. It appears that the grievance today is that rather than permitting the redevelopment by the present developer, it should be assigned to some other Developer. In my view, the stand taken by the petitioners in the present petitions cannot be countenanced. 14. The petitions are therefore rejected. 15. The learned advocate appearing for the Petitioners in Writ Petition No.2399 of 2009 seeks a stay of this order. Stay refused.