Case: SANT LAL GUPTA Vs. UMESH KUMAR JAIN

discussed in the meeting and response of the General Body could be placed on record before the next date of hearing.Learned counsel for the alleged-contemnors shall also file individual affidavits of undertaking on behalf of every single alleged-contemnor indicating his/her willingness to deposit a sum of Rupees thirty lakhs into the account of the Society so that appropriate orders can be passed on the next date of hearing. The affidavit of undertaking must also indicate the time-line within which such deposit can be made.?7. Thereafter, affidavits were filed by all the alleged contemnors indicating their willingness to deposit a sum of Rs.30 lakhs as stated in the order dated 10.01.2019. A General Body meeting was convened on 24.02.2019 which was attended by 73 members including 14 persons who have been litigating and are interested in getting back the possession of the apartments, whereas the alleged contemnors, having lost the status as members, could not vote. 43 members voted against the proposal of having a new building constructed, while 30 members voted in favour of the proposal. Nine Postal ballots received after the meeting showed that all nine members had cast their votes in support of the new construction. Thus, the voting pattern was:- 43 votes against the proposal and 39 votes in favour of the proposal.8. The matter thereafter came up on 28.02.2019 when following order was passed:-" In accordance with the direction issued by this Court on 10.01.2019, a General Body Meeting of the Society was held under the Chairmanship of the Administrator on 24.02.2019. Minutes of the Meeting are enclosed in the Affidavit tendered across the bar by the Administrator. The affidavit is taken on record.Mrs. Kiran Bhardwaj, learned counsel has also filed affidavit on behalf of some of the alleged contemnors pursuant to the directions issued in the order dated 10.01.2019. 11 of the alleged contemnors have thus filed affidavits, which are taken on record. Copies of these affidavits be given to the other side. Further, pursuant to the direction issued on the last occasion, an affidavit has also been filed on behalf of the North Delhi Municipal Corporation, para 3 whereof reads as under:?3. That accordingly, on last date of hearing i.e. on 10.01.2019 this Hon?ble Court has directed the Municipal Corporation of Delhi (North), to file its response as to whether such tower can be constructed and whether it would be within the FAR permissible for the society.In regard to the above order dated 10.01.2019, it is respectfully stated that there is no record pertaining to approved layout that there is no record pertaining to approved layout plan/completion plan of Modern Cooperative Group Housing Society Limited available in the department, so as to ascertain the balance FAR availing for further construction by the society. Further, it is submitted that new tower with 18 dwelling units can be constructed only if balance ground coverage and FAR is available as against permissible ground coverage and permissible FAR prescribed for group housing in MPD-2021 under clause 4.4.3, B- Residential Plot – Group Housing mentioning as below:1. Maxi, Ground Coverage: 33.3% (in case addition of alteration of existing DUs for availing balance FAR ground coverage upto 40% may be allowed.2. Maximum FAR: 2003. Height: NR (Subject to clearance from AAI/Fire Department and other statutory bodies.4. Parking: 2.0 ECS/100 sqm built up area and 0.5 ECS/100 sqm for EWS/Service Personal Housing.?Since the Minutes of the General Body Meeting dated 24.02.2019 has taken a particular stand, we direct the Administrator to place on record, for our perusal, complete record with respect to the said meeting including E-mails and letters received by the Administrator in respect of said meeting.9. We have heard Mr. S.D. Singh, learned Advocate for the contempt petitioners, Ms. Kiran Bhardwaj, learned Advocate for alleged contemnors, Mr. Praveen Swarup, learned Advocate for the Municipal Corporation of Delhi and all other learned Advocates. Mr. S. D. Singh very fairly submitted that if the contempt petitioners were assured of possession of apartments, they would be having no objection to support the cause of the alleged contemnors in having a new building constructed by the society. Consequently, the voting pattern which effectively was 43 votes against the proposal and 39 votes in favour of the proposal would then drastically change and would be 29 votes against the proposal and 53 votes in favour of the proposal.10. Some of the salient features in the matter are:- 1. The alleged contemnors have violated the orders passed by this Court and despite having furnished appropriate undertakings, have failed to vacate and hand over possession. But there are certain equities in their favour; in that they were inducted as members not clandestinely but against the resultant vacancies after expulsion of certain members, that they had paid all the instalments in time, that on the basis of such instalments paid by the members including the alleged contemnors the construction was completed, and that they were put in possession of the apartments soon thereafter.2. It is only as a result of the expulsion orders of the contempt petitioners getting set aside that the alleged contemnors have to vacate their apartments and make way for the contempt petitioners.3. The society had raised amounts and was benefited from two sets of persons that is the alleged contemnors as well as the contempt petitioners and the fact of the matter is that the society is presently having funds to the tune of more than Rs.4 crores.11. Going by the reports made by the Architect a new building can be constructed with 18 apartments, which means that after satisfying the requirements of all the alleged contemnors there will still be some apartments left, from the sale of which money for construction can be garnered.Furthermore, according to the Architect, within the FAR available to it, the society can construct such new building. The Municipal Corporation of Delhi has also in principle agreed that if FAR is available, the authority would not have any objection to grant permission for construction of a new building.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. Some of the salient features in the matterThe alleged contemnors have violated the orders passed by this Court and despite having furnished appropriate undertakings, have failed to vacate and hand over possession. But there are certain equities in their favour; in that they were inducted as members not clandestinely but against the resultant vacancies after expulsion of certain members, that they had paid all the instalments in time, that on the basis of such instalments paid by the members including the alleged contemnors the construction was completed, and that they were put in possession of the apartments soon thereafter.2. It is only as a result of the expulsion orders of the contempt petitioners getting set aside that the alleged contemnors have to vacate their apartments and make way for the contempt petitioners.3. The society had raised amounts and was benefited from two sets of persons that is the alleged contemnors as well as the contempt petitioners and the fact of the matter is that the society is presently having funds to the tune of more than Rs.4 crores.Going by the reports made by the Architect a new building can be constructed with 18 apartments, which means that after satisfying the requirements of all the alleged contemnors there will still be some apartments left, from the sale of which money for construction can be garnered.Furthermore, according to the Architect, within the FAR available to it, the society can construct such new building. The Municipal Corporation of Delhi has also in principle agreed that if FAR is available, the authority would not have any objection to grant permission for construction of a new building.