-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1082 OF 2011 with WRIT PETITION NO. 1078 OF 2011 with WRIT PETITION NO. 1079 OF 2011 with WRIT PETITION NO. 1080 OF 2011 with WRIT PETITION NO. 1081 OF 2011 with WRIT PETITION NO. 1083 OF 2011 with WRIT PETITION NO. 1084 OF 2011 with WRIT PETITION NO. 1085 OF 2011 Prabhu Kunj Co-operative Housing Society Ltd. ..Petitioner Versus The Maharashtra State Co-operative Appellate Court at Mumbai & 3 Ors. ..Respondents. Mr. Firoz Andhyarujina, Senior Counsel with Mrs. Rita Bhatia and Mrs. Ambon Saheed for the petitioners. Mr. A. Y. Sakhare, Senior Counsel with Mr. Ajay Panicker i/b Ajay Law Associates for Respondent no.3 in all Writ Petitions. Coram : RANJIT MORE, J. Date : March 24, 2011. P. C. : 1. These eight writ petitions are filed by the Prabhu Kunj Co-operative Housing Society Ltd., [in short “the society”] against its 4 members. The writ srp -: 2 :- petitions arise from two common orders passed by the Co-operative Appellate Court, Mumbai. Since one and the same point is involved in these 8 petitions, they are being disposed of by this common order. 2. Heard Mr. Firoz Andhyarujina, learned senior counsel for the petitioners and Mr. A. Y. Sakhare, learned senior counsel for Respondent no.3. In all these petitions, respondent no.3 is member of the society. 3. The dispute is about the parking slots in open space belonging to the society. There are 7 car parking slots, excluding the closed garages within the campus of society to facilitate the parking of vehicles. Prior to the year 2000, society used to allot open parking slots to its members on lot system basis per year. In the year 2000, it was proposed to allocate open car parking slots within the campus of society on permanent basis after acceptance of non-refundable interest free deposit as contribution to common amenities and betterment fund account without any recurring charges. The society also prepared guidelines for allocation of car parking slots on permanent basis which came to be approved in the 39th AGM held on 18th June 2000. This resolution was subsequently confirmed and approved in the 40th AGM dated 5th August 2001. 7 open car parking slots were allocated to different individuals members. In above writ petitions, we are concerned about 4 parking slots. -: 3 :- 4. In the year 2006, the Administrator was appointed on the petitioner- society under section 78 (1) of the Maharashtra Co-operative Societies Act, 1960 [for short “the said Act”] on the ground of failure of the managing committee members to comply with the provisions of Section 73(1-AB) of the said Act. The Administrator was there till the year 2008. The Administrator by his decision dated 5th February 2008 revoked the allocation of parking slots on permanent basis made in the year 2000 and this revocation was subsequently confirmed in the special general body meeting held on 13th April 2008. The four members filed 4 Disputes being C.C.Nos. 119, 120, 121 and 122 of 2009 in the Co-operative Court, challenging the action of the Administrator revoking the allocation of parking slots on permanent basis in their favour. They also challenged the validity of special general meeting held on 13th April 2008. The petitioner-society also thereafter filed four Disputes, namely, C.C.Nos. 620, 621, 622 and 623 of 2009 in the Co-operative Court at Mumbai against 4 individual members for possession of parking slots. 5. The 4 members in their Disputes filed applications for interim relief of temporary injunction against the society from disturbing their possession in the parking slots. The petitioner-society also filed applications seeking temporary injunction restraining those 4 members from parking their cars in the parking slots. The Trial Court rejected the applications of the individual members and allowed the applications filed by the petitioner-society. Those 4 members preferred 8 appeals in the Co-operative Appellate Court, namely, 4 -: 4 :- appeals against the order rejecting their prayer for grant of interim injunction in their disputes and 4 appeals against the grant of interim relief in the petitioner society’s Disputes. The Appellate Court disposed of these 8 appeals by passing two common orders. One common order is passed in four appeals which arose out of petitioner-society’s Disputes and the second common order is passed in the appeals arising from the Disputes filed by the individual members. These two common orders are impugned in the present 8 writ petitions. 6. Mr. Firoz Andhyarujina, learned senior counsel appearing on behalf of the petitioner-society took me through the decision of the general body meeting held on 18th June 2000, the decision of the Administrator taken on 5th February 2008 and the decision of special general body meeting held on 13th April 2008. He also took me through the order dated 19th March 2008 passed by the learned Single Judge of this Court in Writ Petition No.1804 of 2008. Relying upon Supreme Court judgment in Nahalchand Laloochand Pvt. Ltd. Versus Panchali Co-operative Housing Society Ltd. reported in 2010 (9) SCC 536, Mr. Andhyarujina submitted that even the Promoter cannot sell the stilt parking slot. He also relied upon the provision of clause (2) of section 78 to contend that the Administrator was well within his powers when he revoked the allocation of parking slots made in the year 2000. He submitted that in any case, in pursuance of the liberty granted to the petitioner – society by the learned Single Judge in Writ Petition No.1804 of 2008 the -: 5 :- Special General Body of the Society has ratified the decision taken by Administrator. He, therefore, submitted that in the light of these facts and circumstances, the society is entitled for grant of injunction restraining respondent no.3 - members from using the parking slots. 7. Mr. A. Y. Sakhare, learned senior counsel appearing on behalf of 4 individual members, per contra, supported the impugned orders of the Appellate Court. He submitted that the Managing Committee was superseded for non compliance of provisions of Section 73(1-AB) of the said Act. The Administrator could have been appointed at the most for the period of 6 months and he could have been continued for the further period of 3 months. However, in the present case the Administrator was in-charge of the Society for more than 2 years, i.e., during the year 2006-08, and that itself speaks about the illegality perpetuated by the Administrator. He submitted that the special general body meeting dated 13th April 2008 which was convened by the Administrator has ratified the decision taken by the Administrator. However, the decision of the Administrator itself is illegal, there cannot be any ratification of such decision. Lastly, he challenged validity of the special general body meeting held on 13th April 2008 on the ground of want of quorum to conduct special general body meeting. In support of his case, Mr. Sakhare relied upon two decisions of the Apex Court in Jt. Registrar of Co-opertive Societies, Kerala vs. T. A. Kuttappan & Ors [(2000) 6 SCC 127] and K. Shantharaj vs. M. L. Nagaraj -: 6 :- reported in 1997(6) SCC 37. 8. Having considered the submission of the learned senior counsel for the respective parties and having gone through the impugned orders along with the compilation of the writ petitions, I find no merit in the writ petitions. There is no dispute that the parking slots in question were alloted to respondent no. 3-members on permanent basis in pursuance of the decision of the general body of the society taken in the 39th Annual General Meeting on 18th June, 2000. Admittedly, the allotment of parking slots was made for valuable consideration and these members were allowed to avail the benefit of the scheme implemented in the year 2000. The Administrator thereafter by his decision dated 5th February, 2008 revoked the allotment of the parking slots in favour of the individual members i.e. respondent no.3 on permanent basis. The individual members thereafter preferred writ petition being Writ Petition No. 1804 of 2008 in this Court. The writ petition was disposed of by this Court by an order dated 19th March, 2008. By this order, it was made clear that the arrangements which were made by the Administrator for parking of the vehicles in the society building are ad-hoc and interim and liable to be reviewed by a duly elected Managing Committee, so also, General Body. By the said order, the statement of the Administrator that the election to the Managing Committee of the society will be held and completed within a period of three months was also accepted. -: 7 :- 9. On 29th March, 2008, 13 members of the society gave requisition to the Administrator under Section 76 of the said Act for convening a Special General Body Meeting of the society. The Administrator thereafter by his notice dated 7th April, 2008 convened a Special General Meeting of the society on 13th April, 2008 at 10.30 a.m.. At 10.30 a.m. there was no quorum, and therefore, the General Body Meeting was adjourned for a period of half an hour and proceedings of the General Body Meeting commenced at 11.00 a.m.. At 11.00 a.m., 19 members were present in this Special General Meeting. In this meeting, the decision of the Administrator to revoke the allotment of the permanent slots was ratified. 10. Section 76 of the said Act deals with the special general meeting. Under this Section, special general meeting may be called on a requisition in writing signed by one-fifth of the members of the society or of members, the number of which is specified in the bye-laws for the purpose, whichever is lower. Bye-law 36 of the said society deals with the special general meeting. Under the said bye-law, a special general meeting shall be convened by the Secretary either on order from the Committee or upon a requisition signed by one-fifth members of the Society. There appears no dispute that in the present case, 13 members made requisition for convening a special general meeting and the said requisition was signed by one-fifth of the members of the society. Under Bye-law 38 of the society, a quorum for any general meeting is prescribed at three-fifth of the total number of members of the -: 8 :- society for the time being or 20 members whichever number is lesser. Bye- law 39 deals with a situation when there is no quorum . Under the said Bye- law, if within half an hour after the time appointed for meeting, the quorum is not present, the meeting, if convened upon the requisition of the members, shall be, dissolved. In any other case, it shall be adjourned to the same day in the next week at the same time and place and if at such adjourned meeting, the quorum is not present, those members who are present shall be deemed to constitute a quorum and shall do all such business which a full quorum might have done. 11. Conjoined reading of the Bye-laws 36, 38 and 39 makes it clear that the quorum of general meeting of the society is three-fifth of the total number of members of the society for the time being or 20 members of the society whichever number is lesser, and in case, the quorum is not present, the meeting, if convened on requisition of one-fifth of total members shall stand dissolved, and in any other case, shall stand adjourned to the same day in the next week at the same time and place. In the present case, the special general meeting was called on members’ requisition. There is no dispute that 20 members constitute quorum and only 19 members were present. In these facts and circumstances and in terms of the bye-laws, the meeting ought to have been dissolved for want of quorum . Even in other case, the meeting ought to have been adjourned to the same day in the next week at the same time and place. However, though the quorum was not present at 10.30 a.m., -: 9 :- the meeting was adjourned to 11.00 a.m. and thereafter resolution was passed ratifying the decision of the Administrator. 12. Mr. Andhyarujina, learned senior counsel relied upon the provisions of Rule 60 of the Maharashtra Co-operative Societies Rules, 1961 and especially the provisions of Sub-Rule 10 to contend that the special general meeting of the society is legal and valid. He submitted that in case of conflict between the bye-laws and the said Rules, the latter shall prevail. I find no merit in the submission. Sub-Rule (2) of the Rule 60 of the said Rules makes provision that no general meeting shall be held or proceeded with unless the number of members required to form a quorum as specified in the bye-laws are present. Sub-Rule 10 states that if the general meeting cannot be held for want of quorum , it shall be adjourned to later hour of the same day as may have been specified in the notice calling the meeting or to a subsequent date not earlier than seven days. Thus, under Sub-Rule 10, the general meeting can be adjourned to later hour on the same day as specified in the notice calling the meeting. Mr. Andhyarujina, learned senior counsel has not produced before me, a copy of the notice calling for special general meeting so as to verify the averment, in case, the quorum is not present. That apart, the Bye-Law 39 of the society deals with two situations under which, if the special general meeting is convened upon a requisition and quorum is not present, then, it requires to be dissolved and in other cases, it shall stand adjourned to the same day in the next week at the same time and place. The -: 10 :- provisions of Rule 60 is silent about the steps to be taken, in case, the quorum is not present in a special general meeting called upon a requisition. In my considered view, as the special general meeting was called upon requisition, the provisions of Sub-Rule 10 of the Rule 60 of the said Rules, have no application. In the absence of any specific provision in the said Rules regarding the steps to be taken, in case, quorum is not complete in a special general meeting convened upon requisition, the provisions of Bye-law 39 of the society would prevail and same will render the resolution passed by the special general meeting on 13th April, 2008 illegal. It would further be interesting to note that under Sub-Rule 10 of Rule 60 of the said Rules, the meeting adjourned for want of a quorum can be held at later hour of the same day. However, in the present case, from the proceedings of the minutes of the special general meeting, it is clear that the meeting was initially convened at 10.30 a.m., however, there was no quorum and it was adjourned at 11.00 a.m. i.e. adjourned for half an hour only. Even assuming for the sake of argument that the society could have adjourned the meeting to later hour, in that case also, surely the adjourned meeting could not have been held at 11.00 a.m.. Prima-facie, I find that the special general meeting was held contrary to the provisions of the bye-laws and the said Rules. 13. This takes me to consider the submission of Mr. Andhyarujina, learned senior counsel that the society could not have sold the parking slots to the individual members. In this regard, he relied upon the Apex Court judgment in -: 11 :- Nahalchand Laloochand Pvt. Ltd.’s case (Supra). I have gone through the judgment, the Apex Court in the said case was dealing with the provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (in short “MOFA”). The question which the Apex Court was considering was whether the stilt parking spaces are of common areas and facilities. The Apex Court answered this question in affirmative. The Apex Court held that the MOFA does restrict the rights of the promoter in the block or building constructed for flats or to be constructed for flats to which the Act applies. It has further held that the promoter has no right to sell any portion of such building which is not “flat” within the meaning of Section 2(a-1) and the entire land and building has to be convened to the organization; the only right remains with the promoter is to sell unsold flats. It has further made clear that the promoter has no right to sell “stilt parking spaces” as these are neither “flat” nor appurtenant or attachment to a “flat”. In the present case, we are not concerned about the rights of the promoter in respect of the stilt parking spaces. The allotment of the parking slots are made by the society itself. In any case, this issue of locus-standi of the society to sell or permanent alienation of the property belonging to the society is required to be examined on merit in a suit pending before the Co- operative Court. 14. The parking slots are allotted to the individual members pursuant to the decision of the Annual General Meeting in the year 2000 for valuable -: 12 :- consideration. These individual members are enjoying the facilities since 2000. The disputes filed by the society and the individual members are pending before the Co-operative Court. In the circumstances, the balance of convenience is also in favour of respondent no.3-individual members. Taking overall circumstances into consideration, I find no merit in the petitions. Accordingly, I dispose of the writ petitions by passing the following order: ORDER: 1. The writ petitions are dismissed. 2. Looking at the nature of controversy involved, the Trial Court is directed to dispose of the disputes pending between the parties as early as possible and preferably within one year from the date of receipt of this order. 3. Needless to state that the observations made herein above are prima-facie and the same are made for the purpose of disposal of the writ petitions. The Trial Court, however, shall dispose of the disputes without being influenced by observations made herein above or the observations made in the impugned orders. (RANJIT MORE, J.)