Judgment:
Dharmadhikari S.C., J.
1. This is a suit by a Builder and Developer against the Cooperative Housing Society and the occupants, who are in the occupation of flats/tenaments and shops in a building known as Fardoon Apartment, Co-operative Housing Society, situate at 6th Road, Khar (West), Mumbai - 400 052.
2. The relief claimed by the plaintiffs in the Suit proceeds on the basis that the Cooperative Housing Society has, at its General Body Meeting, passed a Resolution, pursuant to which, it is resolved that the existing structure/building would be pulled down or demolished and a new building/structure would be constructed on the plot of land belonging to the Cooperative Housing Society. In this new building all the members would be provided housing accommodation of the same area by the plaintiffs/Developers. To enable them to construct new building and hand over the flats and tenaments to the members of the Co-operative Housing Society that it was resolved that an agreement can be executed incorporating specific clauses and details so that membership rights are not prejudicially and adversely affected. The plaintiffs have also executed individual agreements with the members. Thus, the Society and its members are supporting the action of the plaintiffs and therefore, in furtherance of the Agreement executed in their favour. They can proceed to demolish and pull down the existing structure/building and construct a new building on the land. To enable them to do so, it was expected that all existing members and occupants vacate the premises presently in their occupation and possession. However, although, the majority has decided to confer rights as above on the plaintiff and have consented to the agreement, some persons claiming to have rights in the tenaments/shops/premises in their possession are resisting the execution of the agreement. It is alleged that these persons have no right to obstruct the development work at site. They are bound by the Resolution of the majority and the decision of the Co-operative Housing Society. Even if they are having dispute with the Society, the plaintiffs are ready and willing to earmark and keep aside shops and flats for such persons/defendants. Thus, it is not as if they would not have any protection. As and when they succeed in their challenge to the actions of the Society, they would be allotted the flats and shops earmarked and reserved for them. These premises would remain untouched and would not be disposed off until such time as this Court deems fit and proper is the stand of the plaintiffs. Thus, the plaintiffs and the Society urge that they are ready and willing to protect the minority rights, if any, but at no cost should the development work be stopped or obstructed or else all would suffer.
3. In furtherance of the final relief of removal of obstructions and all impediments to the development work at site, the plaintiffs seek a mandatory interim order and direction so as to remove or cause to remove the nonconsenting parties as according to the plaintiffs their claim is supported by the Co-operative Housing Society and a majority of the members. Thus, they have a strong prima facie case and they have satisfied the Court that irreparable harm and injury will be caused to all occupants if development work is not permitted to be completed at site. More so, when the structure presently at site is unsafe and unsound, it is not fit for human occupation. Therefore, the balance of convenience is also in favour of the plaintiffs and the mandatory interim orders, as prayed, be granted.
4. That is how, the Notice of Motion proceeds and aforerecorded pleas are set out in an affidavit of one Deepak Rao, Managing Director of the plaintiffs. The plaintiffs have stated that they are a Company registered under the Indian Companies Act having their Office at the address mentioned in the title. Defendant No. 1 is the occupier of shop No. 1 and defendant No. 2 is the occupier of shop No. 2. It is alleged that they are expelled by defendant No. 5 Co-operative Housing Society. It is stated that defendant Nos. 3 and 4 are claiming to be legal heirs of Ms. L.D. Shivlani. The deceased was member of the 5th defendant - Society and she was occupying flat No. 3. It is alleged that defendant Nos. 3 and 4 are in arrears of the dues of the Society. Further, they have not produced any documents for enabling transfer of the flat.
5. Defendant No. 5 is a Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act, 1960. The 5th defendant is registered as a tenant Co-Partnership Housing Society bearing No. BOM/HSG/2639. The Society is registered r in the year 1970 and it is owner of final Plot No. 647, CTS No. F/188 admeasuring about 499.15 sq.mtrs. and situate at 6th Road, Khar Pali Road, Khar, Mumbai.
6. It is then alleged that there are 12? members of the Society. The Society in a General Body Meeting dated 30th May, 2004 by a majority of 9 out of 12 members decided to demolish the old building and construct a new building by purchasing FSI/utilising TDR. The necessary Resolution was passed and offers were invited from various builders and developers for re-development of the property. The 5th defendant after receiving these offers duly scrutinized them and ultimately decided that the offer made by the plaintiffs is in the best interest of its members. This offer was accepted and the Managing Committee was authorised to take necessary steps for re-development of the property. Annexure 'A' is a copy of the Resolution dated 6th January, 2008.
7. Thereafter, the Society executed a Development Agreement dated 30th January, 2008 which came to be subsequently registered. In paragraph 4 of the plaint this is what is stated:
4. In pursuance of the said resolution, defendant No. 5 Society entered into a Development Agreement dated 30th January, 2008 registered on 5th April 2008 under No. 2942 for grant of development rights in respect of the said property to the plaintiff. By and under the said agreement, die said Society appointed the plaintiff herein as developers to redevelop die said property on certain terms and conditions and some of the salient feature of the said agreement are as follows:
a. The plaintiff is entided to develop the said property by demolishing die existing building and constructing new building known as Fardoon Apartments Co-operative Society Ltd. in its place stead, by utilizing entire F.S.I. And T.D.R. That can be utilized or as may be available on the said property.
b. The plaintiff agreed to give each of die members occupying their respective premises, 30% additional carpet area on the existing carpet area with ultra modern amenities free of costs as per list annexed to the plaint against die existing area occupied by diem. Similarly, defendant Nos. 1 and 2 will be provided shops/commercial premises, as 30% additional carpet area on the existing area occupied by mem. The reconstructed premises will be provided as more particularly set out in die said Development Agreement. Furtiier, salient features of the said agreement are as follows:
c. The Developers shall pay to the Society as and by way of Corpus Fund a sum of Rs. 1,500/- per sq.ft. Of the existing carpet area (Rupees one thousand five hundred only), which constitutes to the sum of Rs. 76,35,000/- on all the Members vacating their respective Flats/Shops and handing over die vacant possession of die said Flats/Shops to the Developers; die payment and receipt whereof die Society hereby admit and acknowledge.
d. The Developers hereby agree to provide to the 9 members a flat of Carpet Area 600 sq.ft. equivalent to 840 sq.ft. Built-up Area and to the one member Mr. Mohd. Salim Hussein Shaikh flat of Carpet Area 786 sq.ft. i.e. Built-up 1100 sq.ft. With pocket terrace admeasuring 414 sq.ft. and die 2 shops to die members of Carpet Area 505 sq.ft. each i.e. Built-up area of 707 sq.ft. (which includes Flowerbed, Elevation Treatment, thickness of wall, passages, lift, lobby, staircase Niches etc.) to each of die members herein a flat having a Carpet Area 30% more than die existing carpet area presently occupied by the Developers on die said property as and by way of permanent alternate accommodation, free of cost and on ownership basis. The said 10 flats and 2 shops occupied by the members of the Society are shown in the list annexed hereto and marked as Exhibit 'B' giving the details as to the names, flat numbers, floors, present carpet areas, additional 30% carpet areas. None of the members and/or the Society shall be liable to pay any amount to the Developers in respect of die said new Flats/Shops numbering in all 10 flats and 2 shops to be given by the Developers to the members herein. However, if any of die members opt for additional or lesser area in the Flats/Shops in the new building agreed to be constructed by the Developers, then, the Developers shall duty sell or buy the said additional or lesser area to or from such member/s herein for die price and on die terms and conditions to be agreed mutually between die Developers and the concerned member/s. The said 10 Flats/2 Shops in die new building agreed to be allotted by the Developers to the members herein shall be held by diem as members of the Society and for die said purpose, the membership of the Members shall continue to be in existence irrespective of the fact that the existing 10 flats and 2 shops which shall be demolished.
e. The allotment of the said 10 flats shall be from the 2nd floor onwards in view of the fact that the Developers shall be putting up basement car parking spaces and exploiting the 1st floor and the part ground floor for commercial purpose including two (2) shops of and for the members of the society as agreed, other than clubs & beer bar. The Developers shall however provide copies of the sanctioned plans to the Society for its perusal immediately on the said plans being sanctioned by the MCGM. The Developers shall provide 10 car parking spaces for the said 10 members in the basement and the remaining car parking space shall belong to the Developers.
f. The Developers hereby agree to complete the construction of the entire building in all respect within a period of 18 months from the date of the Society and Members handing over the vacant possession of all the flats, building and land to the Developers. In the event of delay of completion of the building within 3 months of the stipulated period, the Developers shall be liable to pay a penalty of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand only) per month to the Society, subject to however that the Developers shall not be liable to pay the said penalty if the delay is on account of circumstances beyond their control such as;
i) War, Civil commotion or Act of God.
ii) Any notice, order, rule, notification of the Government or other public competent authority, provided the same is not on account of any act of omission or commission on the part of the Developer.
iii) Scarcity of Cement, Steel or any other building material.
g. It is agreed by and between the parties hereto that, if the Developers having failed to complete the new building within 18 months of the last of the members existing Flats/Shops being vacated for development purposes and thereafter, within the total grace period of 6 months, the Society shall without prejudice to their rights and remedies under this Agreement or in law be entitled to utilize the amount of Corpus Fund so realized as they deem fit including towards completing the incomplete work. It is further agreed that the Developers undertake to provide the agreed rent amount to the members as specified in Clause 10 as above, for the further extended amount, if such event of delay in construction arise before the parties. In such an event, the Society shall not be accountable to the Developers or the purchasers of free sale Flats/Shops. The Developers shall continue to be liable to the purchasers of free sale Flats/Shops. If, for any reason the cost of completing the building should exceed the said amount of the Corpus Fund, the difference shall be borne and paid by the Developers alone forthwith on demand.
8. It is stated that the construction of the new building was to be completed within a period of 18 months from the date of issuance of a commencement certificate by the Competent Authority. It is stated that the plaintiff has already submitted the plans for construction of the new building. They were sanctioned on 30th June 2008.
9. It is stated that in compliance with the terms of the Development Agreement, the plaintiff has paid to the members corpus funds and rents as per the Statement of Account.
10. It is stated that in terms of the agreement, the Developers/plaintiff were entitled to sell on ownership basis all other remaining shops and/or flats as may be constructed by them on the said property. As per the said agreement, the said Society had agreed and authorized the plaintiff to demolish the existing building standing on the said property and has also agreed to hand over vacant and peaceful possession of the flats so as to enable construction of a new building. A Power of Attorney has also been executed in that behalf. It is stated that in pursuance of this agreement and Power of Attorney, the plaintiff has spent substantial time, money and energy. They have paid Rs. 38,34,465/- towards the fund and rent.
11. However, it is alleged that the plaintiff is unable to demolish the old building, as defendant Nos. 1 to 4 are refusing to vacate the premises in their possession. It is stated that out of 12 members, 9 have already shifted to the respective alternate accommodation. It is stated that defendant No. 5 took a decision to demolish the old building and re-develop the property after prolonged discussions and meetings. Details of the same are set out in paragraph 9. Further, the defaults, allegedly committed, by defendant Nos. 1 to 4 are mentioned in paragraph 10 of the plaint. The details of the expulsion proceedings and complaints are set out in paragraphs 11 to 13 of the plaint. The application to vacate the premises to enable construction of a new building are referred to in paragraph 14 of the plaint. The condition of the building is stated to be very bad. It is dilapidated and structurally unstable. In these circumstances, the obstacle and hindrance of defendant Nos. 1 to 4 to the redevelopment at site is high-lighted. There are several orders allegedly passed in identical circumstances referred in paragraph 20 of the plaint. The project cost is stated to be Rs. 11.75 crores and it is alleged that defendant Nos. 1 to 4 have remained absent at the meeting of the Shareholders/Members. They have not challenged the Resolution till date. In these circumstances, the rights conferred on the plaintiff can be enforced by them. This is the reason for institution of the present Suit. The prayer Clauses (a) and (b) of the plaint read thus:
(a) That this Hon'ble Court may be pleased to order and decree that defendant Nos. 1 to 4 are specifically bound by the covenants/terms contained in the agreement dated 30th January, 2008 being Exhibit 'D' to the plaint and are to vacate and handover the suit premises i.e. Shop No. 1 and Shop No. 2 in occupation of defendant Nos. 1 and 2 respectively, and Flat No. 3 occupied by defendant Nos. 3 and 4, in defendant No. 5 society building i.e. Fardoon Apartments Co-operative Housing Society Ltd., situated at 6th road, Khar (West), Mumbai - 400 052 for the purpose of demolition and/or for the purpose of redevelopment and for commencement of construction work, for the plaintiff, (b) That defendant Nos. 1 to 4 be ordered and decreed to pay to the plaintiff Rs. 16,92,000/- (Rupees Sixteen Lakhs Ninety Two Thousand Only) the amount payable to defendant Nos. 1 to 4 as corpus fund in respect of their respective Suit premises as more particularly explained in the particulars of claim which is annexed herein as Exhibit 'H' on accounts of loss and damages caused to the plaintiffs and further be pleased to order and direct defendant Nos. 1 to 4 each to pay the plaintiff Rs. 50,000/- (Rupees Fifty Thousand Only) the amount per month from the date of filing of the above Suit till they vacates their respective suit premises occupied by them on account of loss, rent, legal expenses suffered by the plaintiffs due to nonvacation of the premises occupied by the defendant Nos. 1 to 4.
12. It is in terms of these final prayers that interlocutory reliefs are claimed by the plaintiff in the present Notice of Motion. The interim relief is of appointment of a Court Receiver and a temporary order and injunction restraining defendant Nos. 1 to 4 by themselves/their servants and agents from interfering with and/or obstructing or creating any impediment in the performance of the obligations under the Development Agreement.
13. At the outset, it must be stated that the 5th defendant Society has filed an affidavit and while supporting the claim of the plaintiffs confirmed that defendant Nos. 1 to 4 are not cooperating in the development. Their rights to use and occupy the premises in their occupation are disputed and finally it is asserted that the building requires to be pulled down.
14. The reply affidavit filed by defendant Nos. 1 and 2 and affirmed on 8th July, 2009 states that there is a clause for Arbitration (Clause 40) in the Agreement dated 30th January, 2008 and therefore, the Suit is not maintainable. That this argument is raised without prejudice to the earlier submission that there is no privity of contract between the plaintiff and defendant Nos. 1 and 2. The Agreement dated 30th January, 2008 is not between the plaintiff and defendant Nos. 1 and 2. Therefore, no Suit can be filed against defendant Nos. 1 and 2. If they are not parties to the Agreement, then, their rights are independent and if that the plaintiff wish to proceed against defendant Nos. 1 and 2, then, they must show how they are entitled to evict them in law. In these proceedings, this fundamental aspect has not been proved and demonstrated even prima facie.
15. It is then contended that if defendant No. 5 Society claims to have expelled defendant Nos. 1 and 2 from the membership, then, the Agreement dated 30th January, 2008 cannot bind them. They must not proceed on the basis that the Suit Agreement binds them. In these circumstances, the Suit is not maintainable.
16. The next contention raised is that it is only defendant No. 5 Society which can claim to have any cause of action against defendant Nos. 1 and 2. It is the Society which alone can enforce the Resolution passed in the General Body Meeting. That dispute is between the Society and defendant Nos. 1 and 2. That would be covered by section 91 of the Maharashtra Co-operative Societies Act, 1960. The Suit is, therefore, not maintainable and this Court does not in any event have jurisdiction to decide the legality and validity of such Resolution.
17. Without prejudice to all the above submissions and contentions, it is urged that the plaintiff has not annexed the complete Development Agreement to the plaint. They have only annexed the first part of the Agreement without in any manner annexing the copies of the annexures to the Agreement. These annexures are very relevant. These annexures are deliberately suppressed from the Court. In these circumstances, the Court should not accept the claim of the plaintiff.
18. As far as the merits of the case are concerned, in paragraph 7 of the affidavit, it is stated that defendant Nos. 1 and 2 were not given any notice of the Meeting held on 6th January, 2008. Further, it is stated that in the plaint, the plaintiff and defendant No. 5 urge that the Meeting dated 6th January, 2008 was called pursuant to a Notice dated 30th December, 2007. However, while annexing a copy of this notice, it is urged that the plaintiff should have given 14 days clear notice of the meeting to all members. The Notice dated 30th December, 2007 does not comply with the requirement of such notice stipulated in the Bye-laws. The notice is only of 7 days. The Meeting itself is, therefore, illegal. If the Meeting is illegal, then, all Resolutions passed at such illegal Meeting do not have any legal effect. If the Development Agreement is executed pursuant to the Meeting and the Resolution thereat, then, even that Agreement is bad and illegal and it cannot be enforced against defendant Nos. 1 and 2.
19. Defendant Nos. 1 and 2 in their affidavit pointed out that in the information provided under the Right to Information Act, defendant No. 5 has stated that the plaintiff will give 30% extra area to the existing members and will give corpus funds of Rs. 3,000/- per sq.ft. of the carpet area. However, in Clause 2 of the Development Agreement, it is mentioned that the plaintiff will give corpus fund of Rs. 1,500/- per sq.ft. Therefore, the agreement is not in the interest of the members as there are vital omissions in the same.
20. It is then stated that defendant Nos. 1 and 2 are having one shop each on the ground floor with frontage on main road of 13 ft. They have obtained I.O.D. and building plans are sanctioned but the same show that the frontage of the shop is reduced from 13 ft. to 11 ft. each. The plaintiff intend to utilize existing open space for putting up a third shop on the ground floor. The plaintiff also intend to use first floor for commercial purpose. Therefore, the re-development scheme is not in the interest of defendant Nos. 1 and 2. Further, defendant Nos. 1 and 2 have raised an objection to the scheme on the ground that the plaintiff does not have any experience of re-development work. This, very plaintiff had undertaken such works in S.R.A. project. The work carried out was very shabby and defective. Photographs of the said work are annexed to this affidavit. Further, it is stated that stop work notice issued by SRA. Thus, the project is incomplete. Defendant No. 5 Society had pointed out all such facts and even now when they are stated on affidavit, defendant No. 5 had not proceeded to cancel the Agreement. In these circumstances and when there are serious allegations that the work carried out elsewhere is defective and shabby, then, defendant Nos. 1 and 2 urged that this is not a fit case for grant of any interim relief.
21. Defendant Nos. 3 and 4 have also filed an affidavit in reply and they urge that the Suit is not maintainable. The issue of maintainability and jurisdiction is raised on the very same grounds and pleas as are raised by defendant Nos. 1 and 2, on affidavit.
22. They are then urging that if interim reliefs as prayed are granted at this stage that would amount to passing a decree for possession at the interim stage. Thus, the Suit would be decreed at this stage itself which is not permissible in law.
23. It is urged by defendant Nos. 3 and 4 that they are the only heirs and legal representatives of the deceased Lachmi D. Shivlani in respect of Flat No. 3. Yet, defendant No. 5 does not wish to bring their names on record and make the necessary changes in the documents. This is intentional and only to deprive defendant Nos. 3 and 4 of their legitimate legal rights. It is stated by defendant Nos. 3 and 4 that there is a genuine dispute with regard to the maintenance amount claimed by the Society. The quantum of outstanding dues is not admitted but disputed. The Society was approached and clarification was sought with regard to the maintenance bill but the Society refuses to do so. Even otherwise, in order to settle the matter amicably, these defendants forwarded a cheque with their covering letter dated 16th September 2008 towards maintenance amount of the flat. However, the cheques though received have not been deposited in the account of the Society. Even after the cheque period having expired by a further cheque of the same amount dated 15th July, 2009, the 4th defendant personally approached the Chairman and tried to tender the charges. However, that attempt has also not succeeded because the Chairman refused to accept it. Thus, the Society has deliberately not accepted the sums towards maintenance and are wrongfully claiming them to be arrears. All this is to avoid bringing on record the names of defendant Nos. 3 and 4 as heirs of the deceased member. This is with a view to prevent defendant Nos. 3 and 4 from claiming membership rights. Further, upon perusal of the documents including the Development Agreement, it is apparent that there are variations and discrepancies therein. The interest of the members are not protected but are compromised. There is a serious prejudice to them inasmuch as the premises of these defendants are on the ground floor of the building having commercial potential. These premises are of higher value and therefore, the Society does not want defendant Nos. 3 and 4 to claim any rights therein. Instead the Society is allowing the developer-plaintiff to benefit itself by utilizing the area. This is another discrepancy which would go to the root of the matter.
24. In paragraph 12 of the affidavit of defendant Nos. 3 and 4 affirmed on 10th August 2009, another serious issue is raised. It is urged that a copy of the Development Agreement and documents filed before the Registrar would show that the consent of the members for appointment of the plaintiff has been obtained by misleading the members and making false representation. Even the Registrar has not been furnished with complete details. Therefore, the Agreement cannot be enforced and executed. These defendants have also raised an issue about the validity of the notice in the said Meeting and have urged that the last notice which they have received was with regard to a Meeting dated 27th April 2006. Thereafter, notices of Meetings have not been served on these defendants. These defendants have denied that they are defaulters. They have also pointed out that a letter was addressed to the Executive Engineer seeking information under R.T.I. Act. Thereafter, the I.O.D. was shown to these defendants. It is revealed from the same that the plaintiff has misled the authorities by pointing out that 3 members have objected to the re-development. Therefore, the matter was taken up with the Architect of the plaintiff but till date, no satisfactory explanation is forthcoming. Thus, the redevelopment work at site is not in the interest of the members and therefore, no interim reliefs be granted.
25. A rejoinder affidavit has been filed by defendant No. 5 -Society. Surprisingly, the Society urges that the decision taken by the majority in the General Body Meeting are binding upon the minority members. Further, the Resolution passed by the General body for re-development of the Society's building, appointment of developer, Development Agreement, Power of Attorney are not challenged by any of the members in the Competent Court till date. In these circumstances, it cannot be said that the decision taken is not in the interest of the Society or the members. Further, defendant Nos. 1 and 2 are already expelled. Therefore, they cannot occupy the Society premises. Once they have no right to occupy the premises, then, as far as the Society is concerned, such members cannot seek any relief. Further, such members also cannot resist the decision to redevelop the property. Therefore, there is no question of defendant Nos. 1 and 2 having any right to oppose the re-development work. In this affidavit in rejoinder of the Society which has been affirmed on 12th August 2009 in paragraphs 10 and 11 it is stated as under:
10. With reference to paragraph No. 7(f) the plaintiff states that the frontage for the shops of defendant Nos. 1 and 2 is more than 13 feet (thirteen feet) and the said fact is evident from the IOD and sanctioned plan issued by MCGM. Hereto annexed and marked as Exhibit '4' is the copy of the plan approved by MCGM depicting the frontage of the shops of defendant Nos. 1 and 2. In the proposed new plan to be submitted after loading TDR on defendant Nos.5 Society's building by the plaintiff, the plaintiff has maintained the 13 feet (thirteen feet) frontage each on the 2 shops belonging to defendants 1 and 2 after leaving the open spaces as required by the D.C. Rules the plaintiff has proposed one shop and also proposed the first floor as commercial usage, it is with this that the plaintiff has to give all the members of defendant No. 5 Society and recover its cost. The plaintiff denies that the commercial interest of the defendant Nos. 1 and 2 will be affected thereby.
11. With reference to paragraph No. 7(g) to 7(j) it appears that the defendants are referring to the plaintiff one of the SRA project at Dharavi, Mumbai. The said project will soon be completed by the plaintiff and the said project is held on the question certain permission held by the planning authority (SRA). The photographs have been taken by the constituted attorney of the defendants and the defendants themselves by impersonating as BMC officers and misrepresented the facts to the occupier of the said building. The said event took place on 28th May 2008, and the occupiers of the SRA society with fear wrote a letter to the plaintiff dated 29th May 2009 asking for clarification as to why the BMC officers came for inspection. Hereto annexed and marked as Exhibit '5' is the copy of the letter dated 29th May 2008. The same was later revealed from one of the Photographs submitted by the defendants to defendant No. 5 Society that it was the defendants who impersonified as BMC officers. Hereto annexed and marked as Exhibit '6' is the copy of the said photographs. Thereafter, the society occupiers of the said building have filed a complaint regarding the said issue. Hereto annexed and marked as Exhibit '7' is the copy of the letter/complaint dated 4th July, 2008. Moreover, the said matter was lastly heard by the High Power Committee pursuant to the Honble Court order in Writ Petition No. 1580 of 2007 and the plaintiff is very optimistic of the outcome of the said proceedings. The plaintiff carves leave to refer to and rely upon the said proceedings when produced. The plaintiff states that till today he has not made a Single paisa profit out of the said project and is still today incurring the expenses for the maintenance of and for other dues of the said building. However, the plaintiff denies that he has done shabby construction in respect of the said building. Further, the death of the child was by accident and not attributable to the job and responsibility of the plaintiff as a competent developer. The society has properly rejected the request of defendant Nos. 1 and 2 to terminate the Development Agreement for the reason and in as much as the same being malicious and made with ulterior motive.
26. It is also contented that the necessary documents were produced before the Deputy Registrar during the course of a hearing before him. This fact is acknowledged by the Power of Attorney holder appearing on be half of defendant Nos. 1 and 2. None of the parties have objected to the decision on the ground that the Deputy Registrar is allegedly misled. The Meeting dated 6th January, 2008 was not an Annual General Meeting. It was a General Body Meeting. A clear notice of 5 days as per Bye-Law No. 100 was issued. Therefore, the Meeting is valid. The Society has given details as to how the decision of re-development was taken. It is contended that Annual General Meeting was held on 12th August 2007. Thereafter, various Meetings were held and the issue of redevelopment of Society Building was discussed extensively. The building is dilapidated. Therefore, the Notice dated 30th December, 2007 came to be issued to discuss this issue. Defendant Nos. 1 and 2 so also defendant Nos. 3 and 4 remained present in various Meetings held between February 2007 to December, 2007. In all these Meetings, the danger posed to the life and property was discussed and it was impressed upon parties that redevelopment is necessary. In these circumstances, defendant Nos. 1 and 2 so also defendant Nos. 3 and 4 have not approached this Court with clean hands. These defendants have received all the documents including copies of the I.O.D. and C.C. There is no question of any reduction of frontage as the plans forwarded to the Society have not indicated any such reduction. In any event, no objection was raised by the defendants for all these this time. For all these reasons, it is urged that the Motion be made absolute.
27. The plaintiff has filed an affidavit in rejoinder and has surprisingly taken up the same pleas as that of defendant No. 5 - Society. It is stated that there is no substance in the objections raised by these defendants. The information disclosed is that defendant Nos. 3 and 4 are chronic defaulters. They are occupying the flat without paying any lands to the Society, Defendant Nos. 3 and 4 are raising the issue of the legality of the development work only because the plaintiff and defendant No. 5 - Society refused to give them any compensation as per commercial valuation. Further, there is no question of any misrepresentation or misleading the Society and the members. Each one of the persons has approached the Society and the plaintiff with open mind and satisfied himself that the redevelopment work is necessary at site. Therefore, there is no substance in this contention of the defendants. This is the affidavit in rejoinder of 12th August, 2009. There is another affidavit in rejoinder of the plaintiff and it appears that they are dealing with the allegations of defendant Nos. 1 and 2. In paragraph 6 of this affidavit, the plaintiffs have asserted that their right to recover possession from defendant Nos. 1 and 2 is governed by the Development Agreement which has been signed by defendant No. 5 - Society. They are enforcing the Resolution passed in the Meeting dated 6th July, 2008. In any event, these defendants claimed to be members of the Society and they must abide by the decision of the majority and vacate the premises in their possession.
28. In paragraph 9 of the rejoinder affidavit, the plaintiff seeks to explain that earlier they had offered a sum of Rs. 3,000/- per sq.ft. to every member of defendant No. 5 -Society. Subsequently, on 8th January, 2008, a Meeting was called wherein members informed the plaintiff that they require extra amenities over and above what the plaintiff is offering them. After due deliberations, it was decided by all members and the plaintiff that as some amount would be spent on the extra amenities, therefore, the figure of corpus fund was reduced from Rs. 3,000/- to Rs. 1,500/- per sq. ft. on the existing carpet area. Reliance is placed upon a letter dated 10th January, 2008 and 16th January, 2008. defendant No. 5, on 3rd February, 2008 wrote a letter to the plaintiff directing the plaintiff to disburse 25% of the corpus fund to its members prior to the registration of the Development Agreement.
29. As far as the frontage for the shop of defendant Nos. 1 and 2 is concerned, it is stated that it is 13 ft. and this fact is evident from IOD and sanctioned plan issued by MCGM. In the new plan proposed after loading TDR, the plaintiff has maintained 13 ft. frontage each on the two shops belonging to defendant Nos. 1 and 2 after leaving open spaces as required by D.C. Rules. The plaintiff has proposed one shop and also the proposed first floor for commercial usage. It is with these provisions that the plaintiff will recover the costs and give flats to the members of defendant No. 5 - Society.
30. The plaintiff has denied the allegations of defendant Nos. 1 and 2 that they have done inferior quality of work in some S.R.A. Project. They have also denied certain incidents allegedly resulting in assaulting of defendant Nos. 1 and. 2. They submit that the Motion be therefore, dismissed.
31. There is sur-rejoinder filed by defendant No. 5 to the reply to defendant Nos. 3 and 4. However, it is not necessary to refer to the statements therein because the Society repeats its stand adverted to hereinabove.
32. Defendant No. 2 has filed a sur-rejoinder on his behalf so also on behalf of defendant No. 1 and once again raised the issue of frontage of the shops. He refers to the building plans and contends that the existing frontage is 8.60 sq.mtrs whereas it is reduced to 8.32 sq.mtrs. Thus, about 2 ft. of frontage will be affected, that too after the plaintiff has allegedly provided 30% more area. In paragraphs 5 and 6 of this sur-rejoinder affidavit affirmed on 26th August 2009, this is what is stated:
5. Similarly, in Clause 5 of the development agreement it is provided that the plaintiff will be exploiting first floor for commercial purpose. However, the sanctioned building plans shows that the first floor is sanctioned for residential purpose. Similarly, under Clause 5 the plaintiff has stated that the plaintiff will be providing basement car parking space. However, in the sanctioned plan, there is no basement. It is further pertinent to note that under the appointment letter dated 6th January, 2008 the plaintiff had agreed to give bank guarantee by way of performance guarantee for 50% of the construction cost. Admittedly, the said condition has not bee changed, yet under the development agreement no bank guarantee is given by the plaintiff.
6. I say that such a development agreement is signed at the behest of one Mr. Mohammed Salim Hussain Shaikh who has an area 605 sq.ft. With 30% extra area he is to get 786 sq.ft. However, in Clause 4 of the development agreement, the plaintiff is giving him a pocket terrace of 414 sq.ft.
33. Further, it is asserted that the Fifth defendant is making false statement on oath. The Meeting of 6th January, 2008 was a Annual General Meeting. This is clear from the Circular allegedly issued by the Society and the alleged Minutes of the Meeting dated 6th January, 2008. Copies of these documents are annexed as Annexures 1 and 2 by defendants 1 and 2 to their affidavit.
34. Further, they seek to rely upon contemporaneous evidence in the form of a letter dated 9th June, 2008 of the Advocate of defendant No. 5 - Society. That letter was addressed to defendant Nos. 1 and 2 and in paragraph 10 of this letter, defendant No. 5 Society's Advocate asserts that the Society has passed a Resolution on 6th January, 2008 at the Annual General Body Meeting. Thus, the argument that the Meeting was not a Annual General Meeting is misleading and false. It pointed out by defendant Nos. 1 and 2 that from the Minutes of the Meeting, it is not apparent that the draft Development Agreement was placed before the Meeting. In other words, this draft Agreement between the plaintiff and defendant No. 5 was not placed before this Meeting and therefore, there is no question of the same being approved.
35. Lastly, it is asserted that the affidavit in rejoinder of the 5th defendant is signed by Mr. S.R. Bhaiji. He claims to be a Secretary of defendant No. 5 - Society. However, he is not even a member of the Society. From the affidavit it is not clear as to whether the Secretary is Mr. J.R. Bhaiji or Mr. S.R. Bhaiji as these persons are not one and the same.
36. Therefore, it is urged that no interim reliefs be granted.
37. The final affidavits that are placed on record is by defendant No. 5 and the plaintiff. They are affirmed on 31st August, 2009 and 2nd September, 2009.
38. Defendant No. 5 in its affidavit states that the argument that incomplete document was annexed to the plaint is not accurate. However, since the issue is raised by the persons who are not present at the meeting only with a view to clarify, the Society is annexing a copy of the list of the amenities. Further, while denying the computation of the area and frontage of the shop of defendant Nos. 1 and 2, it is stated by defendant No. 5 that the total plinth area of the existing building is 8.54 mtrs. If the plinth itself is 8.54 mtrs, the frontage cannot exceed the plinth. Therefore, the argument of defendant Nos. 1 and 2 is incorrect. Assuming that argument is acceptable, yet, the existing frontage is 8.60 mtrs. and the plan annexed to the IOD shows 8.32 mtrs. Even in that eventuality, the alleged reduction is of 0.28 mtrs. which is marginal. The justification of some more area to Mr. Mohmmed Salim Hussain Shaikh is set out in paragraph 9 of this affidavit. It is contended that there is a provision for common terrace above Mr. Shaikh's flat for all the members of the Society. Therefore, the grievance made has no substance. There is a clarification given in paragraph 12 about the discrepancy in the name of Mr. S.R. Bhaiji. It is stated that he is a joint member alongwith his mother Smt. J.R. Bhaiji, of Flat No. 8. Since he is a joint member, he can be the Secretary of the Society and iss thus representing it.
39. The plaintiffs sur-rejoinder is more or less on identical lines as far as the area of the shop of defendant Nos. 1 and 2 are concerned. Further, it is contended that the plaintiff has been authorized by the Society to submit plans and procure sanction for the construction from the Building Proposal Department of B.M.C. The I.O.D. issued is a provisional I.O.D. which is subject to modification, alteration and change. The provisional I.O.D. is issued on the basis of preliminary plan which is sanctioned without the loading of T.D.R. It is stated that another plan after loading the T.D.R. shall be submitted on due compliance of the terms and conditions of the provisional I.O.D. The justification for the flat for the said Mr. Shaikh has also provided by the plaintiff - Developer.
40. It is, therefore, stated that for the aforementioned reasons, the relief be granted.
41. I have heard Mr. Walawalkar, learned Senior Counsel appearing on behalf of the plaintiff, Mr. Vashi, learned Senior Counsel for defendant Nos. 1 and 2, Ms. Bhambwani, learned Counsel appearing on behalf of defendant Nos. 3 and 4 and Mr. Vipin Kamdi, learned Counsel appearing for defendant No. 5. With their assistance, I have perused the record. Mr. Walawalkar has contended that in other matters more particularly referred in the plaint, this Court was dealing with identical controversy. He has relied upon the orders passed by this Court in cases where majority of the members of a Co-operative Housing Society desire re-development by demolition of old building and construction of a new building but minority members opposed. Therefore, the developer moves the Court and seeks removal of obstruction and obstacles to development placed by such minority shareholders.
42. To my mind, there are distinguishing features in this case. Repeatedly, I enquired from the Counsel appearing for defendant No. 5 - Society as to what is the nature of the agreement between the plaintiff and the Society/members. Despite clauses in the agreement being what they are, Counsel for defendant No. 5, on seeking instructions, made a statement that the Agreement (copy of which is annexed as Annexure T)' to the Plaint) is a Development Agreement. Once it is stated to be a Development Agreement by none other than defendant No. 5 - Society which is a party of the first part under the Development Agreement, then, the complexion of the controversy must undergo radical change. Despite defendant No. 5 terming the agreement as a Development Agreement, the plaintiff insists and repeatedly urges that this is not a mere Agreement for Development but the rights in the property are transferred in favour of the plaintiff.
43. In my view, when there is a serious doubt as to the nature of the arrangement between the plaintiff, defendant No. 5 and the occupants/members, then, on this ground alone, it must be held that the plaintiff has failed to make out a prima facie case. The foundation of the claim itself if unclear. The basis of the plaintiffs claim in the Suit is defendant Nos. 1 and 4 are causing obstruction and impediment in the proposed re-development and re-construction of the building. Defendant Nos. 1 and 2 are refusing to vacate their respective shops/flats. All others have co-operated and have vacated the old shops/flats. It is for these defendants that the scheme is held up. There is no progress in the project because the defendants are refusing to vacate their old premises/shops. In paragraph 7 of the plaint it is alleged by the plaintiff that as per the agreement, they were entitled to sell on ownership basis all other remaining premises/shops and/or flats as may be constructed by them on the property. As per the Agreement, the Society agreed and authorized the plaintiff to demolish the existing building standing on the property and to hand over vacant and peaceful possession of the flats occupied by the members to enable the plaintiff to demolish the existing building and construct a new building thereon. It is stated that in pursuance of the Development Agreement, the requisite permissions have been obtained. However, at the same time, in paragraph 17 of the plaint, the plaintiff themselves termed the Agreement as Agreement for Development. At the same time, reliance is placed upon the orders passed by this Court. It is urged that the plaintiff is seeking to enforce the right acquired by them under the Agreement for Development and Power of Attorney. While it may be true that the nomenclature is not decisive, yet, when the Co-operative Housing Society is not supporting the plaintiffs case in this behalf, then, the version cannot be even prima facie accepted.
44. Thus, there is a doubt about the version of the plaintiff. When the plaintiffs version itself is doubtful, then, it is not possible to hold that a prima facie case is made out. The plaint assertions must be clear in such cases. If the Agreement is not a mere Agreement for Development and rebuilding of the old structure or building or construction of a new structure upon demolition of an old building but something more, then, the plaintiff themselves ought to have spelt out their right clearly and unambiguously. If the plaintiff states that there is a right vested in the property itself by virtue of the Agreement, then the nature of the right broadly at least should have been communicated. While it is true that the plaint assertions must be seen together with the documents/Agreement in this case, yet, the difficulties presented by the stand of defendant No. 5 cannot be brushed aside even at this prima facie stage. When one of the important signatories to the Agreement itself states that the Agreement is not that of sale or transfer but mere development of the Society's property, then, I am of the opinion that this case is clearly distinguishable from the orders of this Court in other matters.
45. Hence, I am not able to accede to the arguments of Mr. Walawalkar that the Court must proceed on the footing that the Agreement binds even the minority and they must comply with the terms thereof, although, they are not signatories to it. Mr. Walawalkar's contention is that defendant Nos. 1 to 4 had enough opportunity to become a party to the Agreement. Their names are mentioned in the Agreement. They ought to have come forward and challenged the Agreement or else, their names being mentioned is enough to hold that the Agreement and the Clauses therein bind them. It is difficult to hold prima facie that on the strength of the resolution passed in the Meeting of the Society and the majority having approved the proposal for development, defendant Nos. 1 to 4 cannot obstruct implementation of that agreement. In the present case, despite the Clauses of the Agreement speaking somewhat to the contrary, defendant No. 5 has urged that the same is a Development Agreement repeatedly. This argument was heard throughout the course of hearing before me. Despite the Society filing affidavits and taking a contrary stand, during the course of arguments, it was reiterated that this is a Development Agreement and nothing else. Therefore, the question of acceding to Mr. Walawalkar's submissions that the Agreement is binding on everybody including defendant Nos. 1 to 4 and the plaintiff can seek their removal from the site, even at this prima facie stage, does riot arise. On the doubts created by the version of the plaintiff himself, it must be held that they have failed to make out a prima facie case.
46. However, since arguments are canvassed about the other aspects of the matter as well, I must deal with them.
47. The Agreement proceeds on the footing that the Society is seized and possessed of and otherwise sufficiently well and entitled to the immovable properly and the building/structure known as Fardoon Apartment. The Agreement then proceeds to state that this building comprises of ground and three upper floors. It consists of 10 flats and 2 shops. One flat and two shops are on the ground floor and 3 flats are on the 1st to 3rd floors. The flats and shops are occupied by members, details of whom are mentioned. The building is constructed about 39 years back and it is not in a good condition. It is structurally weak. The Society desires to develop the property by demolishing the existing structure and construction of a new building. The Society did not have enough expertise. The funds were lacking. The Society was on the look out for a developer and therefore, it invites offers from the various developers and builders. It has now decided to engage the plaintiff to carry out the aforesaid acts. In that behalf, in a General Body Meeting held, the members have unanimously approved the engagement of the plaintiff for development of the property. It is contended that the members have agreed that the development will take place by demolishing the existing structure and constructing the new building thereon. For doing so the developer can utilize full F.S.I, of the flat that would be generated after demolition of the existing structure and also by bringing any Transferable Development Rights (TDR) from outside to the maximum extent possible. In Clause 4 of the Agreement, it is stated that the developers have agreed to provide to the members flat of the specifications and area mentioned therein. This would be a permanent alternate accommodation. None of the members and/or the Society shall be liable to pay any amounts to the developers for the new flats/shops numbering in all 10 flats and 2 shops. However, if any of the members have additional or lesser area in the flat/shops in the new building agreed to be constructed by the developers, then, the developer shall duly sell or buy lesser area to or from such members for the price and on the terms and conditions to be mutually agreed between the developers and concerned members. It is stated that 10 flats/2 shops in the new building agreed to be alloted shall be held by the occupants as members of the Society and for that purpose their membership shall continue irrespective of the fact that the existing building is demolished. There are several Clauses in this Agreement which indicate that the Society has purported to create rights in the property itself that is in the land and the structure. Although, the Agreement at several places having referred to the absolute right and authority to consume F.S.I., yet, defendant No. 5 urges that this is not the position. This is only a Development Agreement. The matter does not rest here inasmuch as Mr. Vashi and Ms. Bhambwani, learned Counsel appearing on behalf of defendant Nos. 1 to 4 urge that the record maintained by the Society does not demonstrate that any such rights were agreed to be conferred by the members on the developers. They urge that assuming without admitting that the actions of the majority bind them, yet, these actions are not bonafide. It is urged by Mr. Vashi that if defendant Nos. 1 and 2 are sought to be dispossessed and evicted from site, then, they can be so evicted only by persons who have existing legal rights in the property or have been authorized by defendant No. 5 -Society to so evict them. If the plaintiffs claim that they have been duly and fully authorized to deal with the property by defendant No. 5 and its members, then, according to Mr. Vashi, the documents must specifically and clearly say so. In the instant case, Mr. Vashi submits that the documents do not reflect this position.
48. Mr. Vashi has pointed out to me that though it is urged that none of the defendants have challenged the Resolution and/or Development Agreement before the Competent Authority and/or the Courts, yet, it is not as if their legal rights have come to an end. Since the plaintiff assert their right to evict defendant Nos. 1 and 2 on the basis of the Development Agreement and the Resolution of the Society, then, at least for the purposes of finding out that there were indeed such Resolutions and that they were passed at a Meeting of the members, the Court can look into the documents. Mr. Vashi submits that defendant Nos. 1 and 2 have now discovered that what the Society convened was not a General Body Meeting as alleged but the Annual General Meeting. Further, at this Meeting, there does not appear to have been any draft of the proposed Agreement with the plaintiff placed for perusal of the members. There was no discussion much less in details. The members present were not aware of what the arrangement between the plaintiff and defendant No. 5 Society is. The entire version of the plaintiff that there is a valid Resolution which binds defendant Nos. 1 to 4 itself is erroneous and doubtful. Inviting my attention to paragraph 9 of the affidavit of defendant No. 5 in reply to the Notice of Motion, it is urged by Mr. Vashi that save and except a purported copy of the Minutes of the Resolution nothing has been produced by defendant No. 5 to substantiate that a Meeting was indeed held.
49. I find substance in this contention of Mr. Vashi. Exhibit 4 to the affidavit in reply dated 30th June, 2009 would indicate that the Meeting is termed as an Annual General Body Meeting. It is stated to have been held at 11.00 a.m. on 6th January, 2008. It is stated that it was resolved that the plaintiff has been unanimously appointed by the majority to be the developer for the re-development of the Society and it was decided to authorize the Chairman/Secretary/Treasurer to execute the necessary documents in respect of redevelopment of the Society, Registration and alike on behalf of the Society and its members. This Agreement is stated to have been signed by the occupants of Flat Nos. 4 to 12.
50. It is stated that the Circular for Annual General Body Meeting was issued on 30th December, 2007. A copy of this Circular is annexed. Further, reliance is placed upon the Acts subsequent to this Resolution.
51. However, defendant Nos. 1 and 2 have pointed out on oath that no notice of this Meeting dated 6th January, 2008 was given to defendant Nos. 1 and 2. Secondly, as per existing Bye-laws of the Society, defendant No. 5 is required to give 14 days clear notice to all members. The notice is dated 30th December, 2007 and the Resolution is passed in the meeting held on 6th January, 2008. The notice is thus only of 7 days. On the information given under the Right to Information Act by the Office of the Deputy Registrar, Co-op. Societies, it was found that there were certain discrepancies and differences in the Clauses of the Development Agreement and the letter dated 6th January, 2008 addressed by defendant No. 5 -Society to the Office of the Deputy Registrar. Although, these are matters which are between defendant Nos. 1 to 4 and defendant No. 5 - Society, the documents produced by the Society itself on record coupled with the allegations of defendant Nos. 1 to 4 would go to show that the plaintiff Developer cannot take any assistance of the stand of the Society. If the Society cannot on the basis of its stand in the affidavits seek reliefs against defendant Nos. 1 to 4 in this Court, then, prima fade, I cannot proceed on the basis that the plaintiff has any higher right. The plaintiff is before the Court only on the basis of the agreement executed by it with the Society and the members. The Society will have to initiate appropriate action against those not co-operating in the development or failing to abide by the Resolutions passed at the Meetings. Therefore, the plaintiff cannot be heard to say that defendant Nos. 1 to 4 should be directed to remove themselves or that this Court should issue an injunction by which they would be evicted from their existing premises. This is an additional reason why it is not possible to grant any interim reliefs. Thus, it may not be permissible for me in law to go into the controversy about the legality and validity of the Meeting, yet, for the limited purpose and since the plaintiffs are heavily relying upon the Meetings and the Resolutions, that I have adverted to the rival contentions.
52. Lastly and without concluding the issues but assuming that the rights in the property are created in favour of the plaintiff, yet, defendant Nos. 1 to 4 have pointed out several aspects of the development which cannot be brushed aside. In the sur-rejoinder of defendant Nos. 1 and 2, they have made serious allegations with regard to discrimination and deprivation of the area offered under the Development Agreement. They have pointed out the discrepancies in the plans and the I.O.D. They have made serious grievance that the Development Agreement is signed at the instance of Mohammed Salim Hussain Shaikh, who has an area of 605 sq.ft. with 30% extra carpet area. He is to get 786 sq.ft. However, in Clause 4 of the Development Agreement, the plaintiff is offering him a pocket terrace of 414 sq.ft. As far as this aspect is concerned, what is being pointed out by the Society is that an existing area occupied by the members of the Society are not even in size. Certain flats are not identical. Mr. Mohd. Salim Hussain Shaikh is occupying the largest flat in the entire building of 605 sq.ft. Mr. Mohd. Shaikh was the only person who accepted a flat on the top floor as per the plans. Therefore, he is getting 786 sq.ft. including the extra 30% carpet area. The Society has allowed Mr. Shaikh to use abutting terrace area and reliance is placed on Clause 6 of the letter dated 6th January, 2008. The Society then contends that the developer has proposed two F.S.I, and therefore, the terrace above the flat of Mr. Shaikh will be common for all Society members. Thus, while admitting, that he is getting higher area, the Society denies the charge of discrimination. The version of the plaintiff is identical to that of the Society. Thus, this is a matter which is highlighted before me. This also cannot be brushed aside when a serious allegation is made that even the Deputy Registrar of the Co-operative Societies, Maharashtra State has been mislead by the plaintiffs and defendant No. 5. Therefore, unless these matters are probed further and in depth, the reliefs claimed cannot be granted. Further, the defendant Nos. 1 to 4 version that the entire first floor in the New Building and the Commercial Area on the Ground Floor is handed over to the plaintiffs is worth noticing the Society may now very well say that the agreement is a Development Agreement but it has signed the same. It has such sweeping clauses and yet the Deputy Registrar is not apprised of it. Hence, it cannot be assumed that the agreement is in the interest of all concerned.
53. Another serious aspect which has been highlighted is that the plaintiffs had earlier offered corpus of Rs. 3,000/- per sq.ft. to every member of defendant No. 5 - Society. Subsequently, a Meeting was called on 8th January, 2008, wherein the members informed the plaintiff that they require extra amenities over and above what they offered to them. It is alleged that after due deliberation, it was decided that as amounts would be spent on extra amenities, therefore, the figure of corpus fund was reduced from Rs. 3,000/- per sq.ft. To Rs. 1,500/- per sq. ft. Reliance is placed upon a letter dated 10th January, 2008 addressed by the plaintiffs and the reply thereto dated 16th January, 2008 of the Society. However, nothing has been produced by which it can be even prima facie concluded that the members have agreed to such an arrangement. Thus, there is a serious charge of an under hand dealing but which is denied by the Society.
54. It may be that the allegations of collusion are made by defendant Nos. 1 to 4 because they are getting some lesser area in the re-developed building/premises, yet, taking into account the totality of the facts and circumstances placed on record and the shifting stand of the Society, in my view, it cannot be held that the plaintiff has made out a prima facie case. Even the balance of convenience is not in their favour. Considering that serious and debatable matters and issues are raised before me, the relief that is sought at this interlocutory stage is virtually a decree of possession. If prayer Clause (b) of the Notice of Motion is granted, that would amount to dispossessing defendant Nos. 1 to 4 from the site. In these circumstances, unless and until the plaintiff prove their right to dispossess these defendants, they cannot be evicted from the existing premises. Thus, as far as irreparable loss is concerned as well, the same would be caused to defendant Nos. 1 to 4.
55. There is one more disturbing aspect in these matters. Increasingly, it is found that the developers and builders are approaching the Court seeking eviction and dispossession of non-co-operating members of Cooperative Housing Societies. The Society does not approach the Civil Court as it is aware of the position in law. It is the developer and builder who approaches the Civil Court on the basis of the rights conferred in his favour by the Society. Very often, the clauses in the Agreement between the Society and the Builder/Developer are such that all rights of the Society in the land including the benefits attached to the same in the form of F.S.I., etc. are surrendered to the builder/developer. Thus, the Society not only looses the existing structure and building completely but is divested of its right and title in the land itself. It is also deprived of the benefits attached to the immovable property that is the land. If all such arrangements are accepted at their face value, then, the existence of the co-operative housing society itself is threatened Although, it is assured in Court that the Society continues to exist so also the rights of the members but it is not possible to presume straight away, and in the absence of anything more, that the Society really exists in law. It is ultimately a Housing Society and if till the new structure has come up, there is not going to be any building or tenament or flat, then, mere continuation of membership on paper is of no practical value. Further, the Society itself does not remain the same. The Builder/Developer may be obliged to fulfill his obligation to provide a flat/tenament of the same area as in the existing building to all the members, yet, the rights created in his favour to deal with and dispose off the construction made at site after fully exploiting the F.S.I., and T.D.R. would naturally change the composition of the Society, if not wipe out its existence. The Society then coming into existence will not be just of the existing members but of additional flat/shop purchasers who, in terms of the Clauses of the Agreement would have to be enrolled as members of the Society. This definitely changes the composition and constitution of the Society and in the longer run may affect the rights of the existing members. Further, from the Agreements it does not appear that the Society has retained any control on the plaintiffs/Developer. If the construction does not proceed or for some reason is halted or stopped, then, save and except the penalty and termination, no other protection is available to the members of the Society. In these circumstances, there is no certainty of the permanent alternate accommodation. All these and other aspects merit serious consideration. It appears that the State of Maharashtra has issued Directives in cases of re-development of old buildings of Co-operative Housing Societies. A perusal thereof indicates that several vital aspects are lost sight of and the Rights of the members are not given serious consideration. The Directives do not deal with the aspect of TDR/FSI and other rights attached to the land and how they have to be dealt with. In any event, the instant redevelopment is not as per these Directives. As is apparent from the above prima facie findings, the plaintiff and defendant No. 5 have not followed these Directives. Thus, any such activity at site should not compromise the rights of members and must safeguard the existence of the Society. Co-operative Movement is a Socio-Economic and Moral Movement. It is to fulfill the Constitutional Goal (Article 43) that it is encouraged by the State. It is not a profit making activity nor is it a tool for power politics. Its true role cannot be forgotten of else commerce will displace service.
56. For all these reasons, the Notice of Motion fails and is accordingly dismissed but without any order as to costs.