* 1 * W.P. 2086.2010 & W.P. 2022.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2086 OF 2010 Shabnam Kapoor & Ors. .......Petitioners V/S. State of Maharashtra & Ors. .........Respondents * * * * Mr. S.G. Aney, Senior Counsel with Mr. A.P. Wachasundar, Advocate for the petitioners. Mr. Ravi Kadam, Advocate General with Mr. D.A. Nalawade, Government Pleader and Mr. G.W. Mattos, AGP for respondents no.1 to 3. Mr. M.M. Vashi i/by. M.P. Vashi & Associates, Advocate for respondent no.4. Mr. N.H. Seervai, Senior Counsel with Mr. Manish Desai, Mr. Saket Mane and Ms. Sudeshna Guhany i/by. Vidhi Partners, Advocate for respondent no.5. A L O N G W I T H WRIT PETITION NO. 2202 OF 2010 Dinesh Mahajan .......Petitioner V/S. State of Maharashtra & Ors. .........Respondents * 2 * W.P. 2086.2010 & W.P. 2022.2010 * * * * Mr. Y.S. Jahgirdar, Senior Counsel with Mr. C.M. Lokesh, Advocate for the petitioner. Mr. Ravi Kadam, Ld. Advocate General with Mr. D.A. Nalawade, Government Pleader with Mr. G.W. Mattos, AGP for respondents no.1 and 2. Mr. M.M. Vashi i/by. M.P. Vashi & Associates, Advocate for respondent no.3. * * * * Coram: MOHIT S. SHAH, C.J. & SMT. R.P. SONDURBALDOTA, J. Dated : 7 OCTOBER, 2010. ORAL JUDGMENT [Per : Mohit S. Shah, C.J.]: 1. Since these petitions raise common questions of law and facts, both the petitions have been heard together and are being disposed of by this common judgment. 2. The petitioners, 9 in number have prayed for 12 reliefs. The gist of the reliefs prayed for is as under :- (i) for a direction to respondent no.4-association, which is a society registered under the Societies Registration 1860, to act on requisitions submitted by the tenants/occupants * 3 * W.P. 2086.2010 & W.P. 2022.2010 and to hold general body meeting of the respondent- association (ii) for directions to Maharashtra Housing Area Development Authority (MHADA) to implement Government Resolution dated 18.05.1987 to grant ownership rights to tenants of Aaram Nagar. (iii) to quash and set aside the Joint Development Agreement dated 2.09.2009 (Exhibit-N) executed between MHADA, respondent no.4-association and respondent no. 5-developer, and the consequential notice dated 12.07.2010 issued by MHADA in terms of the aforesaid Joint Development Agreement. (iv) for direction to the State of Maharashtra to initiate action against the members of the Executive Committee of respondent no.4-association for alleged irregularities in the matter of development agreements which were entered into in the years 2004-05 and 2008-09. 3. The broad facts leading to filing of the petitions under Article 226 are as under :- 3.1 There are 357 tenements situate on land admeasuring about 16 Hectares at Versova, Mumbai. The tenements, which were earlier used as military barracks before independence, were alloted by Maharashtra Housing Area Development Authority (for short MHADA”) under the “ * 4 * W.P. 2086.2010 & W.P. 2022.2010 MHADA Act, 1976. By Government Resolution dated 18.05.1987, the Government of Maharashtra decided to grant ownership rights in tenements allotted by MHADA in the State. However, as stated by the petitioners in the memo of the petition itself, on 21.04.1990 the Government of Maharashtra decided not to extend the benefit of the said Resolution dated 18.05.1987 to Aaram Nagar Colonies and other societies which were in occupation of large areas of land. By letter dated 26.07.1991 the Government of Maharashtra declined to grant development rights in the ground floor tenements to MHADA. 3.2 On 25.09.1991 respondent no.4-association filed writ petition no. 3550 of 1991 before this Court and this Court passed interim orders restraining respondents from demolishing the tenements. On 14.09.2004 the Executive Committee of respondent no.4-association passed a Resolution not to prosecute the above pending petition and to appoint respondent no.5 as the developer for development of the land on which the tenements are situate. Accordingly, an agreement dated 27.09.2004 was entered into between respondent no.4-association and respondent no.5-developer. 3.3 When the Writ Petition reached hearing before another Division Bench of this Court on 29.09.2009, the learned Counsel for the association (respondent no.4 herein), * 5 * W.P. 2086.2010 & W.P. 2022.2010 which was the petitioner in the said petition, made a request for permission to withdraw the petition indicating that there was a tri-partite agreement between respondent no.4- association, MHADA and the developer. The request for withdrawal of the petition was opposed by 12 intervenors who claimed to be members of the General Body of respondent no. 4-association and stated that they were taking steps to get the Resolution of the Executive Committee cancelled either by the Competent Court or the General Body, and for which they sought two weeks time. The Division Bench noted the above request for withdrawal and the opposition of the intervenors and ultimately disposed of the petition in terms of the following order :- 2. Taking overall view of the matter, “ considering that as admittedly there is a resolution of the Executive Committee passed for withdrawal of the petition, we cannot force the petitioner to continue with the petition. In our opinion, the following order would meet the ends of justice:- . The petition is permitted to be withdrawn. However, the interveners are granted liberty to move this Court either in this petition or by a fresh petition, in case either the Resolution of the Executive Committee for withdrawal of the petition, is set aside by the Competent Court of law or that Resolution is withdrawn by a Resolution of the General body in accordance with law. 3. Considering that the members of the General Body of the Society propose to move for setting aside the * 6 * W.P. 2086.2010 & W.P. 2022.2010 resolution of the Executive Committee, the learned Counsel appearing for MHADA stated before us that no fresh steps pursuant to tripartite agreement referred to above, will be taken for a period of four weeks from today. The statement is accepted. ” (emphasis supplied) 4. In the present petition filed on 3rd August 2010, the petitioners have prayed for various reliefs indicated hereinabove and particularly, to have the general body meeting of respondent no.4-association held in view of the order dated 29.09.2009 passed in writ petition no. 3550 of 1991 and also seeking various directions against the State of Maharashtra, MHADA and the Joint Charity Commissioner to convene a meeting and to supervise the same. The petitioners have also prayed for direction to the State Government and MHADA to implement the aforesaid Government Resolution dated 18.05.1987 for granting ownership rights and have also challenged the Joint Development Agreement dated 2.09.2009 between the MHADA, respondent no.4-association and the developer. 5. The learned Counsel for the petitioners, have submitted that the petitioners have been giving notices of requisition for convening the general body meeting of the respondent- association, but, the present Executive Committee does not convene such meeting and therefore appropriate directions are required to be given. It is contended that the * 7 * W.P. 2086.2010 & W.P. 2022.2010 development agreement was entered into on the basis of the consent allegedly given by the members of respondent no.4- association and that the consents given were not genuine. It is submitted that 70% of the occupants of 370 tenements have challenged genuineness of the consent given to respondent no.4-association for entrusting the project to respondent no.5-developer and thus the development agreement cannot be allowed to be implemented. The petitioners approached the Government for resolving the disputes, but nothing has come out of such attempts. The petitioners have, therefore, filed the present petition. It is further contended on behalf of the petitioners that the petitioners are presently occupying tenements on the ground floor and now MHADA, respondent no.4-association and the developer propose to construct high-rise buildings. Therefore, the petitioners are not willing to accept the Joint Development Agreement. 6. On the other hand Mr. Kadam, learned Advocate General instructed by the learned Government Pleader Mr. Nalawade for the State and also instructed by learned Assistant Government Pleader Mr. Mattos appearing on behalf of MHADA, so also, Mr. Vashi appearing on behalf of respondent no.4-i.e. Aaramnagar Tenants Welfare Association and Mr. N.H. Seervai, learned Senior Counsel appearing on * 8 * W.P. 2086.2010 & W.P. 2022.2010 behalf of respondent no.5-developer have opposed the petitions. 7. The learned Counsel for the respondents have raised two preliminary objections against maintainability of the writ petition- firstly on the ground that a writ petition is not maintainable against respondent no.4-association, which is not an authority within the meaning of Article 12 of the Constitution. Secondly, on the ground that while disposing of writ petition no. 3550 of 1991 on 29th September 2009, permission to revive or file a fresh petition was granted on fulfillment of one of the conditions, but neither of the conditions has been fulfilled, in spite of passage of one year. 8. The gist of the submissions made by the learned counsel appearing on behalf of all the respondents is that, the lands on which the Aaramnagar Colonies-tenements are situated is a huge parcel of more than 16 Hectares of land and that the Government of Maharashtra had, therefore, excluded the application of the Government Resolution dated 18.05.1987 to the Aaramnagar Colonies and similar other large areas of land in Siddharth Nagar at Goregaon and Dnyaneshwar Nagar at Sewree, Wadala, Mumbai. The said decision of the State Government taken in 1990-1991 was challenged in 1991 and by Resolution dated 14.9.2004 of the Executive Committee of respondent-association, the challenge was given * 9 * W.P. 2086.2010 & W.P. 2022.2010 up. It is too late in the day to raise this challenge again after such delay. 9. It is further pointed out that the salient features of the Joint Development Agreement between the MHADA, respondent no.4-association and respondent no.5-developer to be implemented now are as under :- (i) the occupants of 357 tenements with carpet area of about 500 sq.feet each as tenants of MHADA will get a flat admeasuring 1230 sq.ft carpet area each on ownership basis without paying any cost to MHADA or to the developer. As against this, the present status of tenancy is too nebulous. (ii) The total built up area to be provided by the developer to the tenants of 357 tenements will be about 6,00,000 sq.ft. (iii) MHADA will also get 4,00,000 sq.ft of built up area without MHADA or the State Government being required to pay any amount to the developer. The flats which will thus be constructed by the developer will be made available to MHADA as a public authority and MHADA will be able to allot the same in accordance with the policy of the State Government including the policy to provide for rehabilitation to Project Affected Persons. (iv) the developer will get about 4,00,000 sq.ft of built up * 10 * W.P. 2086.2010 & W.P. 2022.2010 area. (v) It will be the developer alone (respondent no.5) who will be bearing the cost of the project including the cost of construction. (vi) The developer has already paid before 02.07.2009 Rs. 24 crores to respondent no.4-association as corpus and from the return on the said corpus, respondent no.4- association will provide for maintenance of 257 flats and 100 row houses. (vii) There will be premium of Rs.7,00,000/- for each of the row-houses and the allotment of row-houses will be made by draw of lots from amongst the 357 tenants entitled to get the allotment. 10. It is submitted that the Executive Committee had passed the Resolution as far back as on 14.09.2004 for withdrawing writ petition no. 3550 of 1991 and the said Resolution was never challenged in any Court till filing of the present petition and thus for the last six years no proceedings were taken out to have the said Resolution dated 14.09.2004 set aside by a competent Court of law. 11. It is also submitted that the developer has already paid Rs.24 crores to respondent no.4-association prior to 2.07.2009 and the present petition has been filed only to delay the * 11 * W.P. 2086.2010 & W.P. 2022.2010 implementation of the project at the instance of 9 persons, when an overwhelming majority of about 75% had already given their consent, which was verified by MHADA on 04.06.2009. 12. It is also submitted by the learned counsel for respondent no.4-association and the learned counsel for respondent no.5-developer that since respondent no.4 is a Society registered under the Societies Registration Act, 1860 the provisions of the Maharashtra Co-operative Societies Act are not applicable to respondent no.4-association and that as per the provisions of the Societies Registration Act, 1860 the power to manage the properties of the Society are vested in the Executive Committee of respondent no.4-association. 13. Having heard the learned counsel for the parties, we find considerable substance in the second preliminary objection raised by the learned counsel for the respondents against maintainability of the writ petition, that while disposing of writ petition no. 3550 of 1991 on 29.09.2009, this Court had specifically observed that the intervenors were granted liberty to move this Court either in that petition or by a fresh petition, in case (i) either the Resolution of the Executive Committee for withdrawal of the petition was set aside by a competent Court of law or (ii) that Resolution is withdrawn by a Resolution of the General Body in accordance * 12 * W.P. 2086.2010 & W.P. 2022.2010 with law. 14. Admittedly, the Resolution of the Executive Committee for withdrawal of the petition is not set aside by any competent Court of law. Secondly, the Resolution for withdrawal of the Writ Petition was passed by the Executive Committee as far back as on 14.09.2004. The petitioners herein (9 in number) and the intervenors (12 in number, of whom 6 are the petitioners herein) had enough time of six years to get the Resolution withdrawn by the General Body in accordance with law. The learned counsel for the respondents have also rightly pointed out that any delay in implementation of the project will deprive MHADA from getting 4,00,000 sq.ft of built-up area, free of cost, which would otherwise be available for allotment in accordance with the government policy and for rehabilitation of project affected persons. 15. As regards the petitioners’ contention that they had given requisition notices for convening the meeting of the General Body of the respondent no.4-Association, the petitioners could have approached competent forum like the Joint Charity Commissioner for getting the meeting of the General Body of respondent no.4-association convened. No such proceedings were filed for 11 months before filing the present petition. * 13 * W.P. 2086.2010 & W.P. 2022.2010 16. Coming to the question whether the Resolution of the Executive Committee passed on 14.09.2004 can now be directed to be placed before the General Body, having considered all the relevant facts and circumstances of the case, we are not inclined to exercise our extra-ordinary jurisdiction to give such a direction for several reasons. 17. In the first place, the Resolution of the Executive Committee for withdrawing the petition was passed as far back as on 14.09.2004 and the present petition is filed in August, 2010. In fact, the 12 intervenors (out of whom 6 are the petitioners herein) had stated before the Court on 29.09.2009 that they required two weeks time to take steps to get the Resolution of the Executive Committee cancelled and in that view of the matter, the Division Bench had recorded the statement made by the learned counsel for MHADA that no fresh steps pursuant to the tri-partite agreement would be taken for a period of four weeks from 29.09.2009. Instead of 4 weeks, the petitioners did not move any competent Court of law even for 44 weeks for getting the Resolution dated 14.09.2004 set aside. Hence this is not a fit case to exercise our extraordinary discretionary jurisdiction. 18. Secondly, the learned counsel for the respondents have relied upon several provisions of the Societies Registration Act, 1860 in support of the contention that the management * 14 * W.P. 2086.2010 & W.P. 2022.2010 of the properties under the Societies Registration Act is vested in the Executive Committee of the Society. . The relevant provisions are, therefore, required to be noted in this behalf. S.5 Property of society how to be vested- “ The property, movable and immovable, belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings civil and criminal, may be described as the property of the governing body of such society by their proper title. S.16 Governing body defined - The governing body of the society shall be the governors, council, directors committee, trustees or other body to whom, by the rules and regulations of the society, the management of its affairs is entrusted.” 19. On a perusal of the aforesaid provisions of the Act, 1860, primafacie, we find considerable substance in the submission made on behalf of the respondents that the Executive Committee is vested with the power to take decisions regarding the management of the properties of the Society. It is, however, not necessary to examine this question in greater depth, because the delay in challenging the Resolution dated 14.09.2004 even after withdrawing the petition on 29.09.2009 is sufficient to reject the writ petition. 20. The learned counsel for the petitioners has vehemently * 15 * W.P. 2086.2010 & W.P. 2022.2010 submitted that consents given by the members of the respondent no.4-association were not genuine and were not properly verified. 21. The learned counsel for respondents no.4 and 5 have pointed out that although the Joint Development Agreement between MHADA, respondent no.4 and respondent no.5 was executed on 02.09.2009, the selection of respondent no.5 was made as far back as on 27.09.2004 on which date the agreement of development was executed between respondents no.4 and 5 and this agreement was executed on the basis of the Resolution dated 14.09.2004 of the Executive Committee of respondent no.4-association in which it was decided not only to withdraw writ petition no. 3550 of 1991, but also to appoint respondent no.5 as a developer and the said agreement was followed by subsequent development agreement dated 02.07.2008 between respondents no.4 and 5. It was thereafter by amendment, which has come into force on 06.12.2008 that Development Control Regulation no. 33(5) (7) requires consent of 70% of the members. Otherwise also, consent of 75% tenants was verified on 04.06.2009. 22. Various contentions raised on behalf of the petitioners about genuineness of the consent cannot be entertained in this petition under Article 226 of the Constitution of India. It is also necessary to note that the number of persons * 16 * W.P. 2086.2010 & W.P. 2022.2010 raising the objection in the present petition is only 9 out of 357 tenants and, therefore also, this Court is not inclined to entertain any such controversy in this writ petition under Article 226 of the Constitution. 23. For the reasons aforesaid, we do not find any merit in these petitions. The petitions are, therefore, dismissed but with a direction that MHADA shall ensure that the salient features of the project highlighted in para-9 hereinabove will not be changed to the deteriment of MHADA or the tenants and MHADA shall also ensure that the corpus of Rs.24 crores given by respondent no.5-developer to respondent no.4- association is properly invested for maintenance of the buildings to be constructed for 357 tenants. 24. At this stage, the learned counsel for the petitioners prays for stay of operation of this judgment in order to enable the petitioners to have further recourse in accordance with law. 25. The learned counsel for the respondents oppose the prayer. 26. Since the Resolution of the Executive Committee of the respondent no.4-association to withdraw the petition earlier filed in 1991, was passed as far back as on 14.09.2004 and the tri-partite agreement between the MHADA, respondent no.4-association and respondent no.5 for development was * 17 * W.P. 2086.2010 & W.P. 2022.2010 executed in 2008-2009, any further delay will result into delay in implementation of the project for redevelopment of the dilapidated tenaments constructed prior to 1947, we are not inclined to entertain the prayer for stay which would also delay implementation of the project in which the MHADA, a public authority, is going to get cost free 4,00,000 sq.ft of built up area for the benefit of the people at large including the project affected persons. The prayer is, therefore, rejected. CHIEF JUSTICE SMT. R.P. SONDURBALDOTA, J