-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.524 of 2008 Pushpa R.Sanghvi ..Petitioner vs. 1. New Sarvottam Coop. Housing Society Ltd. and others ..Respondents Shri S.U.Kamdar, Sr.Counsel with Shri V.B.Naik and Shri Nishit Dhruve i/b M/s Dhruve and Co. for petitioner. Shri S.K.Jain i/b Shri Gabrial Pillai for respondent no.1. Shri Virag Tulzapurkar, Sr.Counsel i/b M/s FZB and Associates for respondent no.2. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 30th January, 2008 th January, 2008 th January, 2008 P. C. P. C. P. C. 1. The writ petition challenges the order passed by the Maharashtra State Cooperative Appellate Court, Mumbai in Appeal no. 198 of 2007. The learned President of the Maharashtra State Cooperative Appellate Court has dismissed the appeal by his order dated 29th November, 2007. The Appellate Court has confirmed the order passed on 30th October, 2007 by the Trial Court in the dispute which has been filed by the petitioner/disputant. 2. I have heard Shri Kamdar, learned Counsel -2- appearing for the petitioner; Shri Jain for the society (respondent no.1) and Shri Tulzapurkar, learned Senior Counsel appearing for respondent no.2. With their assistance I have perused the order of the Trial Court and the lower Appellate Court. A compilation has been handed in by Shri Kamdar which contains the copy of the dispute application. There are annexures to the dispute as well and some of them have been perused together with the agreement, copy of which has also been placed on record. 3. It is not necessary to go into the rival contentions on merits of the controversy at this stage. Prima facie, it appears that the Cooperative Housing Society concerned, of which the petitioner is a member, has agreed to an arrangement arrived at between the society and the developer. There appears to be a resolution passed at the General Body meeting. There are also decisions of the Managing Committee. It appears that the dispute application proceeds on the basis that the original opponent no.1 Cooperative Housing Society had misled the members including the petitioner. In para 21 of Dispute Application it is alleged that the disputant/petitioner before me requested for the -3- copies of the documents and resolution passed in the A.G.M. to verify whether the consent of the members was obtained before grant of development rights to respondent no.2 developer. It is alleged that the society failed to hand over the same. At the same time, it is stated that the petitioner/disputant received a notice of the meeting dated 27th November, 2006 and agenda thereof. There is prima facie no dispute that in terms of the agreement between the developers and the society the petitioner is entitled to a flat admeasuring 1150 sq.ft. Such a flat is admittedly offered and will be provided by the Developer to the petitioner. The petitioner claims the area of 1740 sq.ft. 4. My attention is invited to several clauses in the agreement so also the communication/circular of the society. In my view, at this stage, it would not be fair, just and proper to express any opinion on merits. Whether the terms of the agreement are to be interpreted in the light of the decision taken by the society at the General Body meeting or whether it is admitted by the society that the terms as interpreted by the developers are in consonance with the decision taken by it so also -4- the development plan are all matters which can be decided after the trial in the Dispute. Considering the fact that a declaration is claimed by the petitioner/disputant in prayer clause (d) and there is a challenge to the decision of the society as communicated to her, then, until and unless that declaration is granted, the petitioner cannot claim additional area. Needless, therefore, to clarify that if the disputant succeeds in the dispute and proves that the resolution of the society so also its circulars are not in consonance with the development agreement, then, all consequences in law shall follow. At that stage, it would be for the trial Court to issue appropriate orders with regard to the entitlement of the petitioner/disputant. At this stage, the Court cannot proceed on the basis that the decision taken by the society is malafide or illegal. Hence, there is no reason to interfere. All observations, including in this order are tentative and prima facie and shall not influence the Trial Court while dealing with the dispute. Needless also to state that merely because the Courts are disinclined to grant any interim relief does not mean that at the final stage appropriate directions including mandatory -5- orders cannot be passed with regard to the entitlement of the petitioner. All contentions in that behalf are kept open. The petitioner has stated before me that without prejudice to her rights and contentions in the pending dispute so also reserving her right to challenge this order, she is willing to vacate and hand over her existing premises to the developer/society so that the same can be demolished along with other flats in the building. Needless to state that the petitioner/disputant being ready and willing to accept 1150 sq.ft. does not mean that she has waived her right to additional area and surrender of existing premises and acceptance of premises of 1150 sq.ft. area is without prejudice to the rights and contentions of the parties in the petitioner’s dispute. Petition is dismissed. No costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)