1 wp1326-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1326 OF 2011 Nahur Vivekanand Coop.Housing Society Ltd. .. Petitioner Versus The Divisional Joint Registrar, Coop. Societies & Ors. .. Respondents Mr.Aspi Chinoy, Senior Advocate with Mr.Ashish Kamath N.N.Bhadrashete for petitioner Mr.Mukul Taly with Mallika Taly, R.Misar i/b. S.Mohomedbhai & Co. for respondent No.6 Mr.D.A.Barot for respondent No.3 Mr.G.S.Bhat for respondent Nos. 4 and 5 Mr.L.T.Satelkar, AGP for respondent Nos. 1 and 2. CORAM : S.C.DHARMADHIKARI, J. 17th August 2011. P.C.: 1] This petition is directed against an order dated 28th February 2011 Anenxure P to this petition and an order dated 21st May 2011 Annexure X to this petition. 2] It is the case of the petitioner, Cooperative Housing Society 2 wp1326-11.doc that it is a tenant – partnership Cooperative Housing Society duly registered under the provisions of Maharashtra Cooperative Societies Act, 1960 (for short the Act) and that a land bearing Survey No.44/2, C.T.S.658/2, 658/3, 666(part), 667(part) situate at Villege Nahur, Mulund is owned by MHADA. On this land, there are four buildings constructed, each of which has two wings and they are numbered as 1-A, 1B, 2-A, 2-B, 3-A, 3-B and 4-A and 4-B, each comprising of ground plus four upper floors. There is no lift. The flats have been sold under the scheme known as lower income group. It is stated that the petitioner society is lessee of this land and by a registered sale deed MHADA sold the buildings comprising of in all 160 flats to the petitioner society and it is stated that the petitioner society has a right to demolish old building and re-develop the property by utilising FSI and TDR as per the applicable policies. Thereafter, the petitioner sought information from the experts and particularly the Structural Engineers and it was advised that it would be proper to redevelop the property. Accordingly, the approvals from MHADA were obtained and a 3 wp1326-11.doc meeting was convened to discuss the issue of development of the society’s land and property. The details of the said meetings and the resolutions passed thereat are then set out and it is submitted that respondent No.3 was a defaulter at the relevant time whereas respondent Nos. 4 and 5 duly attended the managing committee meeting. Respondent No.5 was in fact a Secretary and has witnessed the development agreement with the developer. After requisite procedure viz., in terms of the meetings, the resolutions and decisions that the offers which were received were considered and ultimately, the society decided to accept the offer of the developer who is impleaded as respondent No.6 to this petition. 3] Necessary approvals from the local authority including Municipal Corporation were obtained in pursuance of the decisions and about 151 members of the society have vacated their premises. It is only three persons who are impleaded as parties to this petition and particularly respondent Nos. 3 to 5 who have raised several issues as an after thought and made complaints based upon which 4 wp1326-11.doc actions were initiated under the MCS Act, including superseding the managing committee. These actions were successfully resisted and challenged. Ultimately, a No Objection Certificate of the Deputy Registrar of the subject society’s ward was also sought to be revoked by making an application to him. 4] Mr.Chinoy, learned Senior Counsel appearing for petitioners invited my attention to the order of the Deputy Registrar and that of the Divisional Joint Registrar. He submits that the Deputy Registrar was fully aware that on 15th October 2009, the requisite permission was granted. Thereafter, one Mrs.Manoti Koli made a complaint and on the basis of the said complaint, the Dy.Registrar has proceeded to revoke and cancel the NOC dated 15th October 2009. The only submission of Mr.Chinoy is that the order of the Dy.Registrar is essentially based on the correctness of the decisions taken at the meeting held in April 2004. The order questions the resolutions of these meetings and particularly held in April 2004 and July 2007 on the ground that there are no proper reasons assigned by 5 wp1326-11.doc the society for undertaking re-development. Mr.Chinoy submits that these resolutions were passed at the meetings which were properly convened and of which everybody had notice and everybody was entitled to participate and discuss the matter. There are subsequent resolutions ratifying the decisions taken in the earlier meetings. In any event, this is not a matter which could have been probed and investigated by the Dy.Registrar on a complaint which was made to him by respondent Nos. 3 to 5. His authority, power and jurisdiction under the MCS Act does not enable him to set at naught a decision of the general body or cancel the NOC on the ground that the resolution in meeting and the decisions taken do not assign proper and satisfactory reasons. This is nothing but an attempt to over reach the jurisdiction and authority of a competent authority under section 91 of the MCS Act. 5] Mr.Chinoy submits that persons other than respondent Nos. 3 to 5 who are members of the petitioner society have indeed approached the competent cooperative court but were unable to 6 wp1326-11.doc obtain any interlocutory orders in their favour. Equally, the society has taken action under section 91 and the disputes filed in that behalf are pending. For all these reasons, he submits that the Dy.Registrar and Divisional Joint Registrar have erroneously and by assuming jurisdiction and power so also authority which they do not possess in law, proceeded to quash and set aside the NOC. Their orders, therefore, are vitiated by errors of law apparent on the face of record and can be termed as perverse as well. He, therefore, submits that the petition be allowed. 6] At the hearing of this petition, respondent Nos. 3 to 5 who are contesting respondents have appeared through their Advocates and there are affidavits which have been filed on their behalf. In the affidavit of respondent No.3, Manoti Koli, it has been alleged that there are several complaints made and based upon these complaints, the authorities under the MCS Act have taken action. This is not a case where the re-development has been undertaken in a transparent manner and in accordance with the procedure prescribed by the 7 wp1326-11.doc Government Resolution dated 3rd January 2009. She submits that the Dy.Registrar and Divisional Joint Registrar were aware of the fact that there are several such complaints and actions initiated against the society. Therefore, they have proceeded to set aside the NOC. Equally, the respondent No.5 has been served and an affidavit is filed by him, in which, apart from stating the fact that the complaints have been made, an allegation is made that respondent No.6 has made several offers. The FSI now is increased to 2.5. This FSI will be utilised by respondent No.6 but the benefits thereof will not be made available to the members like respondent Nos. 3 to 5. Every member in LIG housing scheme is entitled to a tenament having an area of 45 sq.mtrs carpet. Thus, they must get tenament equivalent to 484 sq.feet carpet plus they are also entitled to other benefits. For all these reasons when the society has failed to take into account, this vital issue, the decision to re-develop the property based on the NOC of the Dy.Registrar cannot be sustained. For all these reasons both have submitted that the impugned orders do not require any interference and the petition be dismissed. 8 wp1326-11.doc 7] It is on this material, I have heard Mr.Barot and Mr.Bhatt appearing for respondent Nos. 3 and 5. 8] Upon a perusal of the impugned order, it is clear that the Dy.Registrar so also Divisional Joint Registrar have primarily proceeded on the basis that the Secretary of the petitioner society had on 15th April 2004 issued a notice convening a meeting on 11th April 2004 to discuss the development and discussion on special issues which were the subject/ agenda items. The minutes of the meeting held on 11th April 2004 have been scrutinised and the Dy.Registrar concludes that the decision with regard to re- development of the petitioner society has been taken without assigning any reasons. Further, the subject of re-development of the petitioner society has not been specifically and clearly mentioned in the agenda item. In such circumstances, when a further meeting was convened on 29th April 2007 and there the item on the agenda is to read and confirm the minutes of the last special general meeting and 9 wp1326-11.doc to update re-development process and to take necessary future course of action on the proposals, goes to show that the meeting was held and that the minutes record that the society decided to go ahead and accept the offer of M/s.Silvex Developers Pvt.Ltd. Even this decision was not on the agenda item but it was taken up for discussion. This also is improper course, according to the Dy.Registrar. The society has not taken a decision to appoint a developer in a transparent manner. These are the issues highlighted in the complaint. A perusal of the entire order of the Divisional Joint Registrar leaves me in no manner of doubt that it proceeds on the basis that the decisions taken at these meetings were not proper and there are no reasons assigned for the decision of the re- development of society and the decision has not been taken in a transparent manner. Thus, some procedural matters in relation to the meetings and decisions have been made the foundation of the ultimate conclusion of cancellation of NOC issued in favour of society. 10 wp1326-11.doc 9] To my mind, in the peculiar facts of this case in the teeth of section 91 of MCS Act, the Dy.Registrar as also the Divisional Joint Registrar could not have assumed the jurisdiction to decide the issues of legality and validity of the meetings and the decisions and the resolutions thereat. The Deputy Registrar ought to have been aware that the decision which he refers to as being rendered without any reasons was taken at a meeting held on 11th April 2004 and ratified at a meeting held on 29th July 2007. The complaint that is referred by him in the impugned order is dated 24th December 2010 made by Mrs.Manoti Koli. There is another complaint by Mr.Jaywant Darvesh and Purshottam Shetty. These complaints relate to legality and validity of the meeting and the decisions taken thereat. This aspect could not have been examined and scrutinised by both in their limited jurisdiction. They were required to probe and investigate as to whether NOC granted requires to be revoked and cancelled as prayed. If the revocation and cancellation was prayed on the ground that the minutes of the meeting referred to above do not properly record the decisions and resolutions or that 11 wp1326-11.doc the meetings themselves were not properly convened and the resolutions and decisions suffer from want of reasons and other procedural lapses, then, it was incumbent on both of them to have intimated the complainants that these issues must be raised by them before the competent authorities and courts and it is not their province to go into such matters. The law does not permit them to do so. However, without in any manner referring the parties to such course, the authorities have assumed the power which they do not possess in law. Therefore, there is much substance in the complaint of Mr.Chinoy that the impugned orders suffer from complete lack of jurisdiction. When this aspect was brought to the notice of Mr.Barot and Mr.Bhatt, they upon taking instructions from their respective clients who are present in court, sought liberty on their behalf to approach competent court and seek such reliefs including appropriate declarations challenging the meetings and the decisions as also resolutions passed thereat, pertaining to development of petitioner society. Both of them request that this Court should not go into the issue of legality and validity of meetings and the 12 wp1326-11.doc decisions and resolutions passed thereat but must give an opportunity to these respondents to approach the competent court to have the grievances redressed. They submit that instead of this court in its limited jurisdiction going into the disputed questions of facts, should leave the parties to such remedies as are provided by law. 10] Mr.Chinoy submits that as long as this Court proceeds to quash and set aside the order of Dy.Registrar and Divisional Joint Registrar, the petitioner has no objection to the course that is being suggested by respondent Nos. 3 to 5 and they may approach the competent court but this Court should keep open all objections of the petitioner in that behalf. Equally, the issue concerning re- development of society and bearing in mind that out of 160 members 151 have vacated and are waiting for fruits of development, then, this Court should not protect respondent Nos. 3 and 5 for any unreasonable long duration or else the very attempt made by them to frustrate the development would succeed. 13 wp1326-11.doc 11] As a result of the above discussion and bearing in mind the request made by the respondent Nos. 3 to 5 I am of the opinion that while setting aside the orders that are impugned in this petition, interest of justice demands that for a period of eight weeks from today, the petitioner and respondent No.6 developer shall not take any steps so as to evict the respondent Nos. 3 to 5 from their respective existing premises or demolish the same in any manner. This petition is, therefore, allowed by quashing and setting aside the impugned order. It is directed that for eight weeks from today, respondent Nos. 3 to 5 shall not be evicted or their structures/ premises presently in their possession will not be demolished by either the petitioner and respondent No.6 or the competent authority including MHADA. 12] At this stage it is also contended that while keeping open all contentions of both sides in relation to the meetings of the society, it should also be clarified that this Court has not expressed any final 14 wp1326-11.doc opinion with regard to the compliance of the Government resolution dated 3rd January 2009. Needless to state that whenever respondent Nos. 3 to 5 institute appropriate proceedings while impugning and challenging the meetings and resolutions and decisions they can also raise appropriate pleas with regard to compliance with this Government Resolution and all contentions of parties including of the petitioner society and respondent No.6 are kept open. Petition disposed of accordingly. No costs. (S.C.DHARMADHIKARI, J)