- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 119 OF 2010 Mazgaon Tadwadi B.I.T. Chawl Niwasi Vasahat Bachav Kruti Samiti & Ors. .. Appellants Vs. Municipal Corporation of Greater Mumbai and Ors. ..Respondents Mr. S. U. Kamdar, Sr. counsel, with Mr. Choudhari i/b Mr. Anil Mishra, for the Appellant. Mrs. K. K. Soran, for Respondent No.1, Corporation. Mr. V. A. Thorat, Sr. Counsel with Mr. Sharan Jagtiani i/b M/s. R. M. G. Law Associate, for Respondent No. 2. Mr. P. K. Dhakephalkar, Sr. counsel with Bijendra Saraf i/b Mr. A. G. Purohit, for Respondent No. 3 to 8. CORAM : R. C. CHAVAN, J. DATED : JUNE 24, 2010. P.C. : 1. This appeal by an unregistered associations of individuals, is directed against the order dated 3-11-2009, passed by the City Civil Judge, Bombay in Notice of Motion No. 2401 of 2006 in L.C. Suit No. 2798 of 2006. - 2 - 2. The facts which are material for deciding this appeal are as under- . Plaintiffs as well as respondent Nos. 3 to 5 are residents of Mazgaon Tadwadi, tenements owned by respondent No. 1 Mumbai Municiapal Corporation. There are in all 16 buildings, consisting of 1280 tenements and 21 shops, all in a dilapidated condition. Respondent No.1 therefore initiated the work of reconstruction/redevelopment of the buildings under Regulation 33(7) of the Development Control Rules for Mumbai. However, eventually, it has proceed with reconstruction of only building Nos. 1, 2 & 6 to 16 (i.e. excluded building Nos. 3, 4 and 5). Respondent Nos. 6 and 7 seem to be the local MLAs, associated with the formation of Respondent No. 8 Society. The Society resolved to allot the work to respondent No.2, a builder & developer, after considering proposals by two other developers. 3. According to the plaintiffs, this act on the part of the respondent No.1, was illegal, since consent of 70% occupants had not been obtained; requirement of Regulation No. 33(7) were not complied with; the proposal was illegally split, excluding three buildings; and respondent No.2 was wrongly allotted the work. Thereafter, they filed suit and therein took out the Notice of Motion to restrain respondent - 3 - No.1, Mumbai Municipal Corporation from acting further, on a Letter of Intent, issued to respondent No.2 and further issuing “IOD” (Intimation of Disapproval) & “CC” (Commencement certificate) to respondent Nos. 2 to 8, and also to restrain them from carrying out demolition of buildings till disposal of the suit. 4. Respondents contested the prayer of injunction by filing replies, contending that there was no illegality nor irregularity in respondent No.1’s approving the proposals of issuing LOI (Letter Of Intent). Respondent Nos. 3 to 8 claimed that consent of 70% occupants of concerned buildings had been obtained & verified by respondent No. 1’s officers, while finalizing Annexure-II (giving details of occupants). Requisite decisions were taken at a general body Meeting of the Society, which could be questioned only by a appropriate proceedings, as envisaged under section 91 of the Maharashtra Cooperative Societies Act and not by a suit before the civil Court. It was alleged that a builder by name ‘Akruti Nirman Ltd.’ instigated the plaintiffs to file the suit. Respondents therefore, prayed for rejection of Notice of Motion. 5. After hearing the parties, the learned Judge, City Civil Court, Bombay by an impugned order rejected the Notice of Motion. Aggrieved thereby, plaintiffs are before this Court. I have heard Mr. S. - 4 - U. Kamdar, learned senior counsel for the appellants, Mrs. K. K. Soran, for respondent No.1-Municipal Corporation, Mr. V. A. Thorat, learned senior counsel for respondent No.2 and Mr. P. K. Dhakephalkar, learned senior counsel for respondent Nos. 3 to 8. 6. The learned senior counsel for the appellants submits – firstly, that some buildings had been deliberately excluded as occupants therein were with appellants; secondly, that such selective exclusion was impermissible; thirdly that, there was no resolution of general body of respondent No. 8 Society, as is required, as per Regulation 33(7); and fourthly that respondent No. 8 had favoured respondent No.2 whose terms in fact hurt the interests of plaintiffs and other occupants of the tenements. 7. The grievances raised by the appellants may have some substance. Yet, they are not the ones which could have been looked into by the Civil Court. Exclusion of some building for the purpose of making up 70% of the consents is not illegal, since the regulation contemplates the development of each building. It is not necessary that all the buildings together must be developed at once, since this may result in holding up of the development of some of the buildings because some occupants in the other buildings object, and, since the buildings - 5 - were dilapidated and were required to be demolished and reconstructed, if the authority found that some of the buildings could be excluded, they could not be blamed. It could not be said that exclusion of some buildings was impermissible or mala fide. 8. As far as resolution of the general body, which is required as per Regulation 33(7), is concerned, it is true that the meeting which is sought to be touted as a general body meeting, was in fact a meeting of representatives of each building and not a general body meeting. But that too is not a matter which could not have been gone into by a Civil Court. It is a question which squarely fell under section 91 of the Cooperative Societies Act for decision by authorities under the said Act and not by a Civil Court. In any case, in a process which is essentially democratic in nature, it was open for the appellants/plaintiffs to requisition the general body Meeting, if they had requisite majority with them and to nullify the resolution, allegedly passed in the meeting which was branded as general body meeting. Since majority of members do not seem to have gone along with appellants, this grievance of the appellants was rightly not looked into by the learned Judge of City Civil Court. 9. Even on the last aspect about the Society having favoured respondent No.2, there is some substance in what the appellants state. - 6 - Instead of giving carpet area of 350 sq. ft., the area has been shown to be inclusive of balcony, etc. on the basis of explanation of carpet area in the agreement which is against definition of carpet area in Development Control Rules. But again this is a matter which falls for decision by the members of the Society and Court cannot substitute its judgment for the choice expressed by the members. If the members have assessed the bids of the three bidders by applying some yardsticks and if the members of the Society have chosen to go along with respondent No.2, the appellants cannot be allowed to stall the project. Again since this is a matter in respect of which the Society has taken a decision and touches business of Society, it could not have been examined by the Judge, City Civil Court. In view of this, though the scheme has been formulated by excluding three buildings; though there is no resolution at a general meeting which all the members of the Society had voted; and though the carpet area which respondent No.2 seeks to give, strictly does not conform to the carpet area, as defined in Development Control Rules, it was for the Society to take appropriate decision. The learned Judge, City Civil Court rightly declined to intervene in the matter. In view of this, the impugned order does not call for interference and the appeal is dismissed. - 7 - 10. Interim orders to continue for a period of 4 weeks from the date when the judgment is uploaded on the website of the High Court. Sd/- [R. C. CHAVAN, J.]