Amey Co-Op.Housing Society Ltd. ... vs Public Concern For Governance Trust & ...

2 of the Board Agenda Note (subject to the modification that in respect of society plots situated on smaller roads of 7 to 11 meters the base price shall be enhanced by 30% (instead of 40%) in respect of Nodes specified in Table 2). The rate of Co-operative housing societies in case of Kalamboli node, however, would be same as base price, i.e. Rs.2940/m2".

RESOLVED FURTHER THAT the Vice Chairman & Managing Director/Chief Economist/Marketing Manager I/Marketing Manager-II/Marketing Manager III be and are hereby authorized to implement the Resolution.

The next ground of attack in the writ petitions is that Resolution No.8848 provides that the policy indicated therein should be implemented only after verifying the genuineness of the society which entailed the filing of an affidavit showing the continuous residence of the applicant in Maharashtra State for a period of 15 years, which was to be supported by documentary evidence, such as ration cards, passports, domicile certificates etc., together with a declaration that the member concerned had no other dwelling unit in Navi Mumbai. As was pointed out by the High Court while considering the writ applications, the two Resolutions read together showed that CIDCO had decided to allot residential plots with 1 FSI at fixed rates to genuine societies whose members would have to be verified by an affidavit supported by documentary evidence and upon the understanding that their memberships would not be transferred for a specified period. The writ petitioners pointed out that the plots involved in these appeals were initially allotted to the respondent Nos.5 to 10 in Civil Appeal arising out of SLP (c) No. 655 of 2006, each being allotted one plot at a fixed price. According to the writ petitioners none of these societies were genuine housing societies and were dummy creations of Vijay Associates (Wadhwa) Developers. During the hearing of the writ petition, it was shown that the respondent Nos. 5 to 10 had all applied by way of almost identical applications, each of which was by way of a "request for allotment". All the said applications were addressed to the then Chief Minister of Maharashtra and not to CIDCO, which being a statutory corporation, had a separate legal existence. It was pointed out that all the said applications except for one, contained an endorsement of the Chief Minister "to put up the applications" and had been processed with undue haste on the recommendation of the Managing Director of CIDCO.

Ultimately, the said six societies were amalgamated to form Amey Co-operative Housing Society Limited on 17th January, 2005. Thereafter, a Memorandum of Understanding for development was executed by each of the six societies with Vijay Associates (Wadhwa) Developers, being the appellant in the Civil Appeal arising out of SLP (C) No.655/2006, on 30th August, 2004, i.e the day after consent was given by CIDCO for amalgamation.

The writ petitioners alleged that although Amey Co- operative Housing Society Limited submitted the Scheme for Amalgamation to the Joint Registrar of Co-operative Societies on 14th September, 2004 and such merger was allowed only on 17th January, 2005, the Municipal Corporation issued a Commencement Certificate dated 17th September, 2004 to the amalgamated society requiring the applicant to give notice to the Corporation on completion of the construction up to the plinth level and prior to the taking up of commencement of further work.

The submissions made on behalf of the respondents did not find favour with the High Court which appeared to be convinced that the respondents had indulged in fraudulent and illegal activities which could not be accepted by the Court. Referring to several judgments of this Court cited both on behalf of the appellants as well as the respondents, the High Court arrived at the conclusion that the allotments made in favour of the six societies were liable to be quashed and there was no question of regularizing the same. The High Court held that having accepted the writ petitioners' prayer for quashing the allotments made in favour of the respondent Nos. 5 to 10, with a further direction to stop the construction activities, there was no question of considering the alternate prayer made for obtaining a fresh valuation and compensating CIDCO to the extent of its losses, if any. On the basis of its aforesaid conclusion, the High Court quashed the allotments made to the six housing societies, i.e. the respondents Nos. 5 to 10 herein, by letters of intent issued by CIDCO dated 26th March, 2004 and 6th May, 2004. All rights of the persons who had entered into agreements concerning development of the plots nos. 24 to 29, including those of the six housing societies, Amey Co-operative Housing Society Limited which is the amalgamated society and successor to the six housing societies, and Vijay Associates (Wadhwa) Developers would stand extinguished. The said respondent along with its agents and servants were permanently injuncted and restrained from entering upon, remaining in and/or putting up any construction on the said plots. In addition to the above, the entire construction on the said plots Nos. 24 to 29 was to stand forfeited and vested in CIDCO. CIDCO was permitted to enter upon the land and take over the entire construction and appoint its security personnel to guard it. The Navi Mumbai Municipal Corporation was directed to examine as to whether the construction could be regularized and CIDCO was directed to move the Municipal Corporation for that purpose. A further direction was given that if in the opinion of the Municipal Corporation the construction could not be regularized then CIDCO would pull it down and recover its costs for pulling down the structure as well as the removal of debris from Vijay Associates (Wadhwa) Developers. Thereafter, CIDCO would decide whether the plot with constructions should be allotted to genuine housing societies or whether the plot and construction shall be allotted to a builder to be decided by the process of inviting tender. In the event, CIDCO decided that the plot should go to genuine housing societies, it would have to issue an advertisement accordingly and on receiving offers based on the construction cost with appropriate municipal charges it could take necessary decision for allotment. Several other directions were also given by the High Court while making the rule absolute with costs to be paid by Vijay Associates (Wadhwa) Developers to the petitioners assessed at Rs.1 lakh.

When the Special Leave Petition filed by Amey Co- operative Housing Society Limited (SLP (c) No.336/2206) was taken up for consideration on 12th January, 2006, this Court had directed the continuance of the interim order granted by the High Court till 20th January, 2006. On the returnable date the second Special Leave Petition (C) No.655/2006 filed by Vijay Associates (Wadhwa) Developers, was also taken up for consideration along with the earlier special leave petition filed by Amey Co-operative Housing Society Limited and this Court directed notice to issue on both the Special Leave Petitions. In addition, an interim order was passed whereby it was directed that there would be no construction, no sale and no creation of third party rights. CIDCO was directed to take symbolic possession of the entire property and the interim order passed by the High Court when the Writ Petition was disposed of subsequent to the impugned order, was directed to continue.

According to Mr. Nariman, the Corporation decided to consider the cases of individual applicants in terms of the Board Resolution Nos. 8848 and 8886 referred to above. He also urged that the Regulations of 1975 and 1995 were complementary to each other and their provisions did not militate against each other.

Referring to the applications which had been made by the respondent Nos. 5 to 10, Mr. Singh submitted that it would be obvious that all the said applications had been made by one and the same person and had been processed with unusual haste. Even the Corporation seemed to appreciate the urgency involved by granting Commencement Certificate to the appellant, Amey Co

We, therefore, allow the appeals and set aside the directions given by the Bombay High Court in its impugned judgment. The State Government is directed to cause a fresh valuation of all the plots in question as on the date on which the allotments were made, with notice to the petitioner and the respondent-co-operative societies through an independent government valuer and in the event the value is found to be higher than that paid by the respondent-co- operative societies, the difference in value will be paid by Amey Co-operative housing Society Limited, the appellant in Civil Appeal arising out of SLP (c) No.336/2006 to CIDCO, within one month of the demand being made for payment of the same. Till such time as the difference is not paid, the order of injunction passed by this Court on 20th January, 2006, shall continue.

Once such valuation is effected and payment, if any, is made, the injunction shall stand revoked and the respondent co-operative societies will be entitled to continue with the construction work. Needless to say the Navi Mumbai Municipal Authorities will be entitled to take appropriate action against the respondents concerned in the event the construction is found to have violated any of the Building Rules or the Plan as sanctioned by the Municipality. The appeals are thus disposed of with costs to the respondent No.1 assessed at Rs.25,000/-.