1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10285 OF 2009 Harsha Co-op. Housing Society Ltd. & Ors. .. Petitioners Vs. Kishandas S. Rajpal & Ors. .. Respondents Mr. A. S. S. Murthy i/b Mr. A. P. Steenson i/b A. P. Steenson & Associates for the Petitioners. Mr. N. N. Bhadarshete for Respondent Nos.1 & 2. Mr. R. M. Patne AGP for Respondent No.3. CORAM : MRS. R. S. DALVI, J. DATE : 8th March, 2010. P.C. 1. The petitioners are the co-operative society, several of its members and the developers of the society premises. The respondents are father and son who constitute one member of the society (respondent). The society passed a resolution for development of its premises on 26.08.2008. This resolution came to be passed pursuant a notice of that meeting given on 20.08.2008 which in turn came to be given in view of letter signed by 7 out of 12 2 members of the society setting out 8 issues relating to proper functioning of the society which was required to be attended by the Chairman. 2. One of the matters on the Agenda of the Meeting mentioned in the notice of the meeting was the “repair request all the members”. This was inter alia discussed at the meeting. The resolution of the society shows that the society building was in dilapidated condition and “beyond repairs”. The members took a decision for the “redevelopment of the society building”. In the said meeting the members discussed various offers of various developers and builders such as Mohini Sheltors, Mayfair, sheth, Capital Square, Radhakishan Construction. The members discussed various offers and directed the committee members to investigate about short-listed developers and take steps for redevelopment of the society. 3. It was contended by the respondent that passing of such a resolution is illegal because under bye- law No.97 the Special General Body Meeting could not transact any business other than what was mentioned in the notice of the meeting. 3 4. A dispute therefore came to be filed for declaration that the resolution was illegal and for grant of injunction restraining the society from acting upon it. The injunction was refused by the Co-operative Court and granted by the Co-operative Appellate Court, Mumbai. 5. It is contended on behalf of the respondents that since the agenda was “repair” of the building premises, “redevelopment” of the premises and granting the contract to Mohini Sheltors as developers of the society building was outside the purview of the bye-law No.97. 6. A reading of the letters received by the Managing Committee setting out the issues to be discussed, the notice of the meeting for that purpose and the actual meeting held to discuss the issues which inter alia was the repair of the society premises cannot show that the decision of the members upon deliberation of the meeting that the society premises was beyond repairs and must be redeveloped after investigation of the short listed developers is outside the purview of the bye-law No.97. 7. For each of the specific steps to be taken in ultimately deciding the repairs/redevelopment of the 4 society building and premises, separate matters on the agenda need not be shown and separate meetings need not be held. 8. The petitioner society is a small housing society consisting of 12 members. 11 out of those members have consistently agreed for redevelopment since the meeting held on 26.08.2008. In that meeting they required the investigation of the short-listed developers only. Pursuant to the wishes of the members, are short listed developer was deemed fit to develop the society building. 9. It is not disputed that the society building premises is dilapidated. Yet the respondents did not agree with the redevelopment of the society premises by the short-listed developer. That, of course, was his privilege and choice. However, since he was in an absolute minority, the wishes of the society members in an absolute majority was required to be exceeded to. 10. It is argued on his behalf that by Government Notification issued under Section 79-A of the Maharashtra Co-operative Societies Act (the Act), a registered architect on the panel of the Government was to be selected and the 5 procedure as shown therein required to be complied which is not done and which vitiated decision of the society. 11. The reliance upon the Government Notification is itself misplaced. When the members of the co-operative housing society which, under law of co-operation, decides by a majority of 11:1 members that the society premises be developed in a particular fashion by a particular developer, it would be contrary to principles of democracy by which the society is governed, for the sole dissenting member to interfere and require a procedure, not required by the majority of the members to be followed which would only consume time and be counter-productive. The Government Resolution would be required to be followed by the society where the members are unable to come to any decision by a resolution of their own. 12. The petitioners’ society having been injuncted from carrying out the wishes of its members for the redevelopment of its society by the impugned injunction order sought to hold a fresh election for its new managing committee. The new committee came to be appointed by a fresh election on 25.09.2009. The new managing committee 6 gave a new notice to hold a Special General Meeting of the society on 30.10.2009. The respondent was given notice. Members at that meeting agreed with the earlier decision. Consequently the impugned order became infructuous. Nevertheless the impugned order is challenged. 13. The respondent as a member would have a right to appear at the meeting. Consequently though it was stated that he was given notice of the meeting but failed to appear, the Court directed the society and all the members once again meet and consider the aspect of the redevelopment of the society premises on 7th March, 2010. It was mentioned to the Court that the respondent had three other offers which were far superior and hence it was considered in the fitness of things to reconsider of all these offers together. 14. The society meeting has been held yesterday. The respondent as well as other members have attended. Four offers including the offer of Mohini Sheltors together with certain amendments have been considered. The respondents have produced a columnar statement of the four offers. 7 15. It is contended on behalf of the respondent that, a look at the columnar statement shows that all of the respondent’s three offers are better than that of Mohini Sheltors. 16. The columnar statement shows that all the three developers have offered to construct only the residential premises of the society whereas Mohini Sheltors has offered to construct commercial and residential premises. It need hardly be stated that the commercial premises on the ground floor of the building would itself enure for the benefit of the members. 17. The absolute advantage shown by way of absolute figure is in clause 8 of the columnar statement in which one of the offers of the respondent shows the corpus which will be created at the rate of 7,500 per square foot of the carpet area of the members. Advocate on behalf of the respondent mentioned that the respondent would obtain Rs.23.33 lacs and the entire society would obtain Rs.2.80 crores by that offer. To see the bonafides of the offer, the respondent was directed to call upon his offerer to deposit Rs.2.80 crores in the Court. Advocate on behalf of the 8 respondent stated that no such deposit can be made. 18. The other aspects of the offer in the columnar statement show percentage amount which are not tangible to reconsider. 19. The members have decided once again by a majority of 10:2 to confirm the offer of Mohini Sheltors. The Court is not, therefore, required to interfere with the wishes of the majority of the members. The members do not seek to act upon the resolution passed in the meeting dated 26.08.2008. The impugned order has become infructuous. The injunction granted under impugned order is set aside. The members have resolved to redevelop their society building premises. The Court cannot interfere with such resolution. The Writ Petition is disposed of with the above clarification as the impugned order is infructuous. The columnar statement tendered by the respondent is taken on record. (R. S. DALVI, J.)