S.J. Kathawalla, J.
1. By this Writ Petition the Petitioners have prayed for quashing and setting aside of the common order dated 28th March, 2008, passed by the Maharashtra Co-operative Appellate Court, Mumbai in three Appeal from orders bearing Nos. 222 of 2007, 227 of 2007 and 229 of 2007.
2. By an Order of this Court dated 6th May, 2008 the above Writ Petition was admitted and the hearing of the Writ Petition was expedited. Since the Writ Petition pertains to the issue involving redevelopment of seven old dilapidated buildings of the Petitioner No. 1 having 172 members and since one out of the two new buildings of 18 floors i.e. Building C-1, was ready for occupation since the year 2007 and occupation certificate dated 8th August, 2007 also issued by the Mumbai Municipal Corporation (MMC), certain interim orders directing allotment and handing over possession of flats to the members in the said Building C-1 have been passed by this Court from time to time. The Writ Petition is now taken up for final hearing. Mr. Wassoodew, Advocate appearing in Chamber summons No. 275 of 2008 filed by two of the members of the Petitioner No. 1 Society to intervene in the above Writ Petition and support the Petitioners was heard in the matter. Mr. Wassoodew has also submitted 71 Affidavits of individual members of the Society who are willing to shift to Building C-2 which is not constructed till date in view of the obstruction on the part of a minuscule number of members of the Society. Mr. Ajit K.Pingulkar (son of the deceased Respondent No. 2 K. T. Pingulkar) also tendered an unregistered Chamber Summons for self and on behalf of 50 other members seeking to intervene in the above Writ Petition and support the Petitioners. Mr. Pingulkar was allowed to make his submissions in the matter.
3. At the outset, Mr. M. M. Vashi appearing on behalf of the Petitioner No. 1 has submitted that before the Co-operative Court, the Petitioner No. 1 had sought orders/ directions against the occupants of all the seven Buildings A to G. However, the Co-operative Court granted reliefs only against the occupants of three Buildings 'A', 'B' and 'F'. In the present Writ Petition, the Petitioners are pressing for reliefs only against the occupants of Buildings 'A', 'B' and 'F' and not against the occupants of Buildings 'C', 'D', 'E' and 'G'. An Application seeking deletion of Respondent Nos. 2, 4, 6, 9, 10,12, 13, 15, 16, 17, 38 and 39, who are the occupants of Buildings 'C', 'D', 'E' and 'G' is filed by the Petitioners on the ground that the Petitioners are not seeking any reliefs against the said Respondents. The said application is opposed on behalf of the Respondents whose names are sought to be deleted on the ground that the said Application is taken out after the hearing of the Writ Petition has commenced and the said Respondents are already being represented in the above Writ Petition. The relief sought in the Application to delete some of the Respondents is therefore not granted.
4. According to the Petitioners, the following facts are relevant for deciding the above Writ Petition.
5. The Petitioner No. 1 (hereinafter referred to as 'the Society') is a registered Co-operative Housing Society. As of today, there are 7 buildings consisting of 172 flats situate on land bearing Survey No. 106-A(Pt) at Andheri (West), Off. Versova Road, Andheri and admeasuring 1292 sq. yards i.e. 10796 sq. mtrs. (hereinafter referred to as the said property). Most of the members of the Society are the employees of the port trust. The Petitioner No. 2 is a Developer appointed by the Society to redevelop the Society land after demolishing the existing buildings. The Petitioner No. 2 has already constructed on the said property a Building numbered C-1, comprising of 18 floors and the MMC has issued an occupation certificate dated 8th August, 2007 with regard thereto.
6. The Respondents are some of the members of the Society. The Society comprises of seven buildings ( A to G) constructed during the period 1964 to 1970. In all there are 172 members of the Society. The Society consists of three types of flats i.e.
(a) A type .... 368 sq. feet
(b) B type .... 560 sq. feet
(c) C type .... 725 sq. feet
7. As all the seven buildings were in a dilapidated condition and required large scale repairs, which in turn would require every member of the Society to contribute Rs. two lacs (approximately) per flat, the Society in the year 2001 thought of redeveloping the Society property by demolishing the existing seven buildings.
8. At the 37th Annual General Body Meeting of the Society held on 11th August, 2002, (attended by 48 members of the Society), after detailed discussions, it was decided by the majority to redevelop the said property instead of going in for repairs to the seven buildings. At the said meeting the chairman requested that two persons from each building be elected to form a committee which alongwith the Chairman, Hon. Secretary and Treasurer of the Managing Committee will go through the complete details of redevelopment for the best benefit of the members. To enable the committee to proceed further in the redevelopment, the following resolution was passed:
Resolved by majority vote that the Sanstha should go in for redevelopment of the property instead of repairs, and the Managing Committee together with the newly elected committee is authorized to work out details of the redevelopment plans and place the options/offers available from various builders/ Developers before a General Body to be specially convened for the purpose, to enable members to take appropriate decisions.
9. At the Special General Body Meeting convened on 28th February, 2003 (attended by 110 members of the Society) the Consulting Architect of the Society made a slide show to apprise the members present about the dilapidated condition of the buildings and how the redevelopment was proposed to be undertaken in a phased manner. The advantages of redevelopment over repairs were pointed out. It was also pointed out that in the case of redevelopment, the members will be getting free of cost flats in the new buildings to be constructed with an additional carpet area of 120 sq.feet over and above the existing area inclusive of a balcony. The members were informed that to partially neutralize the burden of increased taxes, the Developers are also agreeable to provide a corpus fund to the Society. It was further pointed out to the members that based on the advertisements issued in newspapers (Indian Express, Loksatta and Mid-day) about 20 Developers approached the committee, out of which 10 of them collected the tender documents and three of them submitted their proposals. The tenders were finalized in consultation with the members of the Managing Committee and the Redevelopment Committee. The salient features of these three proposals were explained to the members. It was also pointed out that site visits were arranged for the Managing and Redevelopment Committees, in order to acquaint them about the projects( completed and under-way), by the said three Developers at various locations. Suggestions of all the members present at the meeting were sought and it was explained in great detail as to why the members of the Managing Committee as well as the Redevelopment Committee were unanimously of the view that the redevelopment proposal of the Petitioner No. 2 was more advantageous and in the interest of the Society and its members. The Members of the Society and their children who were Architects were also invited to give their views and to extend cooperation in order to make the redevelopment project successful and beneficial to the members. Young architects (children of the members of the Society) therefore expressed their views at the meeting. The Issue pertaining to allocation of additional 120 sq. feet area per flat was also discussed, since some of the members were of the view that the additional areas should be allocated to the members as per the size of their flats and not uniformly, irrespective of the size of the flats. After detailed discussions, resolutions were unanimously passed (i) confirming that redevelopment of the Society's property was the most ideal proposition (ii) Appointing Shri J.G. Dewoolkar of Ellora Project Consultants as 'Consulting Architect' of the Society. (iii) Appointing M/s Bharat Infrastructure and Engineering Pvt. Ltd. as Developer to develop the Society's property and (iv) authorising the chairman, Hon. Secretary and Treasurer of the Managing Committee in consultation with the Re-development Committee and the consulting Architect to take all necessary actions, decisions etc. qua the redevelopment of the Society's property.
10. Pursuant to the said resolutions, unanimously passed on 28th February, 2003, a Development Agreement dated 8th December,2003 was executed between the Society and the Petitioner No. 2-Developer. Since the parties failed to appear before the Sub-Registrar of Assurances, Bandra within the time limit stipulated under the provisions of the Registration Act, the parties executed a Deed of Confirmation dated 27th August, 2004 and presented therewith the Agreement for Development dated 8th day of December, 2003 for registration. The said Agreement for Development dated 8th December, 2003 was therefore registered on 27th August, 2004. It is inter alia recorded in the said Development Agreement that the tentative layout for the proposed redevelopment and reconstruction of the said property, prepared by the Architects - Ellora Project Consultants, in consultation with the Developers Project Architect shows proposed buildings upto 18 upper floors in which all the 172 Members of the Society will be accommodated.
11. In the said Agreement dated 8.12.2003, it is agreed by and between the Society and the Developer that the Developer shall complete the first phase of construction of Wing 'A' of Building 'C', and handover the same duly completed after obtaining occupation certificate within 18 months of obtaining commencement certificate, to the Society. The occupants of existing Buildings 'A', 'B' and 'F' shall shift to the flats that are constructed in Wing 'A' within the next 2 months. The Developers shall complete the second phase of construction of Wing-'B' of Building 'C' and handover the same to the Society duly completed after obtaining occupation certificate within 21 months of the occupants shifting to Wing 'A' of Building 'C'.
12. In the said Agreement dated 8th December, 2003, the Developers have inter alia agreed to provide the following:
(a) In the new buildings comprising upto 18 upper floors, covered Car parking spaces shall be provided in stilt and podium and also open Car parking spaces free of cost.
(b) 172 flats for the existing members; and additional six flats having an aggregate of 3100 sq. feet carpet area to the Society.
(c) An office for the Society comprising of 200 sq. ft. built up area on the ground floor.
(d) Servant's toilets of 25 sq. ft each on the ground floor.
(e) Health club of 1000 sq. ft. built up area at the podium level with all the modern equipments.
(f) Rs. 2,95,20,000.00 (Rupees Two crores ninety five lacs twenty thousand only)towards hardship compensation to the Society for utilising the said amount with interest thereon only for the exclusive benefit of the existing members and or their heirs, successors and assigns.
(g) Rs. 94,85,00/- (Rupees ninety four lacs eighty five thousand only) being the premium for allowing the Developer commercial use of 18970 sq.feet. The said amount is to be untilised with interest thereon only for the exclusive benefit of the existing members and or their heirs, successors and assigns.
13. 161 out of 172 members of the Society gave consent letters/executed individual Agreements with the Developer. The members, in the individual Agreements executed by them have inter alia recorded/confirmed that they have gone through the development Agreement dated 8th December, 2003 executed by and between the Society and the Developer and have agreed to co-operate in the development of the property of the Society.
14. On 21st March, 2004, Bhoomipujan was done which was attended by a large number of members of the Society including the obstructing Respondents.
15. On 21st July, 2005 seven members of the Society i.e. Respondent Nos. 1, 4, 8, 9, 10, 11 and 12, filed a Suit in the City Civil Court bearing No. 2812 of 2005 for declaration that the appointment of Petitioner No. 2 Developer is illegal and bad in law and for injunction restraining the Petitioner No. 2 from doing any work of construction at the said property. According to the said seven members, the Petitioner No. 2 Developer has never undertaken any projects qua construction of buildings and has only undertaken projects pertaining to construction of roads etc. The Petitioner No. 2 has failed to complete the projects undertaken on time and is 'blacklisted' by the MMC. Interestingly, the said seven members of the Society have, in the suit filed by them, not challenged any of the resolutions passed by the Society as regards the redevelopment of the said property. An application seeking to restrain the Petitioner No. 2 Developer from redeveloping the property of the Society was rejected by an order passed by the City Civil Court, Mumbai dated 21st July, 2007. In the meantime, the Petitioner No. 2 has proceeded with the redevelopment of the property of the Society and has constructed a building of 18 floors on the said property and also obtained occupation certificate from the MMC dated 8.8.2007. Before the pronouncement of this Judgment, this Court was informed that on 25th March, 2010 the said suit was dismissed for default.
16. In July, 2005 i.e. almost three years after the Society at its 37th Annual General Body Meeting dated 11thAugust, 2002 resolved to re-develop the said property, seven members of the Society i.e. Respondent Nos. 2,3,4,5,6,13 and 14 filed Dispute No. CC-IV/187 of 2005 before the Co-operative Court No. IV at Mumbai, inter alia for a declaration that the minutes of the meetings dated 11.8.2002, 28.2.2003 and 8.12.2003 of the Special General Body, and the Annual General Meetings dated 10.8.2003 and 8.8.2004 be held null and void and the persons claiming on behalf of the Society be restrained by an order of the Court to stop all the work of redevelopment unless the same is scrutinized and approved by the members of the Society. The said seven disputants moved an application seeking interim reliefs which was rejected by an order dated 10th August, 2005 by the Fourth Co-operative Court at Mumbai. The said order dated 10th August, 2005 makes a mention of the Development Agreement dated 8th December, 2003 (wrongly typed as 6th December, 2003). The said order also records the submission of the Society that a copy of the said Agreement was made available to all the disputants and the registered document will be made available for inspection at the office of the Society. It is submitted that though under the said Development Agreement the work pertaining to the redevelopment of the Society's property is assigned to the Petitioner No. 2 herein and further though the Development Agreement as well as the lay out plan attached thereto show that buildings upto 18th floors are to be constructed on the said land, the said Agreement is not challenged by any member till date. Thereafter the disputants filed Revision Application No. 64 of 2005 before the Co-operative Appellate Court challenging the order dated 10th August, 2005. However, the Revision Application was also rejected by the Co-operative Appellate Court by its order dated 29th October, 2005.
17. Since no adinterim/interim orders restraining the Society or the Petitioner No. 2 Developer from carrying out the redevelopment work were passed either by the City Civil Court, Mumbai in Suit No. 2812 of 2005 (now dismissed) or the Co-operative Court in Dispute No. CC-IV/187 of 2005, the said work of redevelopment commenced and one of the two Buildings (C-1) comprising of 18 floors was constructed by the Petitioner No. 2 and the MMC also issued an Occupation Certificate bearing No. CE/8323/WS/AK dated 8.8.2007. Thereafter, the Society decided to allot flats to the members of 'A', 'B' and 'F' Buildings in the newly constructed Building C-1, but the Respondent Nos. 1 to 19 prevented allotment of flats to the members by creating a law and order problem.
18. In the meantime, on 4.5.2007, Respondent No. 19 made an application to the Divisional Joint Registrar, Co-operative Societies alleging that the Managing Committee members of the Society had not furnished the indemnity bonds as required under Section 73(1)(A) and (B) of the Maharashtra Co-operative Societies Act, 1960. On 14.11.2007, the Divisional Joint Registrar passed an order appointing an officer as the Administrator of the Society for a period of six months.
19. On 3rd December, 2007, the Society was compelled to file a Dispute bearing No. CCIV/ 124 of 2007 before the Co operative Court seeking directions against Respondent Nos. 1 to 19 and other members of the Society to vacate the exiting flats occupied by them and to cooperate in shifting to the newly constructed building. The Society also sought appointment of a Commissioner for allotment of flats in Building C-1. The Society also made an application seeking interim reliefs in the said Dispute No. CC-IV/124 of 2007 which was opposed by the Respondent Nos. 1 to 19 inter-alia on the following grounds:
i. that the Secretary of the disputant Society has not been authorized by the Society to file the dispute;
ii. that seven members of the Society have filed Dispute No. CC-IV/187 of 2005 before the Co-operative Court in which they have inter alia claimed that the resolutions pertaining to the redevelopment of the said property by demolishing the existing building and appointing Respondent No. 2 (Petitioner No. 2 herein) as builder/Developer are null and void;
iii. that no Special General Body meeting or any other meeting was called to discuss the issue about raising floors above 16 floors in the new buildings, and therefore the construction of two floors above the 16th floor in Building No. C-1 is without the consent of all members of the disputant Society and is therefore illegal.
The Co-operative Court, by an order dated 3rd December, 2007, appointed a commissioner and issued directions to him to allot the flats situated in the newly constructed Building C-1 amongst the occupant members of existing Buildings 'A', 'B' and 'F' and also directed the occupant members of Buildings 'A', 'B' and 'F' who were allotted new flats in C-1 Building to handover peaceful and vacant possession of their present tenements to the Society within a period of one month from the date of the said allotment. No orders were passed by the Fourth Co-operative Court, Mumbai against any of the Respondents residing in Building Nos. 'C', 'D', 'E' and 'G' of the Society.
20. Thereafter, Respondent Nos. 1, 9 and 10 filed three separate Appeals before the Co-operative Appellate Court challenging the order dated 3.12.2007 passed by the Fourth Co-operative Court, Mumbai. The said Appeal was supported by Respondent Nos. 3, 5, 11, and 14. No other Respondents have filed an Appeal impugning the order passed by the Fourth Co-operative Court dated 3rd December, 2007.
21. Against the order appointing an Administrator of the Society dated 14.11.2007 the Society filed an Appeal before the Divisional Joint Registrar. The Appeal was rejected by an order dated 1 8th February, 2008 with a modification i.e. alongwith the Administrator, some of the Respondents were appointed on the board of Administrators. The Society filed Writ Petition No. 1277 of 2008 therefrom before this Court. The Writ Petition was disposed of by recording that the Managing Committee Members are ready and willing to have fresh elections and the application made by the Respondent No. 19 alleging that the first Petitioner Society had not furnished indemnity bonds as required under Section 73(1)(A) and (B) of the Co-operative Societies Act, 1960 was not pressed. The administrator was directed to hold elections on or before 15th May, 2008.
22. On 28th March, 2008, the three Appeals filed by Respondent Nos. 1, 9 and 10 were allowed by a common judgment and order of the Co-operative Appellate Court by which the order passed by the Trial Court dated 3rd December, 2007 in Dispute No. CC-IV/124/2007 was set aside and the Trial Court was directed to dispose of the dispute preferably within a period of six months from the date of the order.
23. Aggrieved by the order dated 28th March, 2008 passed by the Co-operative Appellate Court, the Society and the Developer filed the present Writ Petition before this Court on 9th April, 2008 inter alia praying that the order dated 28th March, 2008 be quashed and set aside. The present Writ Petition was admitted on 6th May, 2008. The newly elected Managing Committee was ordered and directed to convene the Annual General Meeting within 15 days from the committee taking charge and to discuss and take a decision with regard to allotment of the tenements under the redevelopment scheme including Building No. C-1. On 28th April, 2008, the elections were held and the results declared, electing 9 committee members. The Administrator handed over the charge on 11th August, 2008 to the newly elected office bearers of the Society.
24. By an order dated 25th August, 2008, this Court permitted the Society to hold its Annual General Meeting on or before 16th September, 2008. The Annual General Meeting of the Petitioner Society was held on 31 st August, 2008, when a resolution to allot flats to the members of Buildings 'A', 'B' and 'F' in the newly constructed Building C-1 was passed.
25. On 3rd August, 2009, the Society received a notice from the MMC under Section 354 of the MMC Act calling upon the Society to carry out heavy repairs as it was unsafe to stay in the dilapidated buildings.
26. In Notice of Motion No. 529 of 2009 taken out by the Society in the present Writ Petition, an order dated 24.11.2009 was passed by this Court directing the Society to carry out the balance allotments in the Annual General Meeting to be held on 29.11.2009 and to submit a report to the Court. The balance allotments were carried out by a lottery system on 8.12.2009. The Petitioners have filed an affidavit setting out therein the particulars about the balance allotments.
27. Mr. Vashi the learned Advocate appearing for the Petitioners has submitted that the Co-operative Appellate Court without taking cognizance of the aforesaid facts, by its order dated 28th March, 2009, has set aside the order passed by the Co-operative Court dated 3rd December, 2007, inter alia on the following grounds:
i. that, Dispute No. CC-IV/124 of 2007 is filed before the Co-operative Court without the necessary resolution of the Society authorising the Secretary to file the said dispute. Therefore, prima faice, the dispute as filed is not maintainable;
ii. that it was the responsibility of the Trial Court to first consider the application which is pending before it under Order 1 Rule 8 C.P.C. and it is mandatory on the said Court to follow the procedure as mentioned in sub Clause (2) of Order 1 Rule 8;
iii. that, Dispute No. CC-IV/124 of 2007 filed by the seven members before the Co-operative Court is pending/ subjudice and the issue pertaining to the allotment of redevelopment work to the Petitioner No. 2 is also pending/subjudice;
iv. that Building C-1 was to consist of stilt plus 16 floors. Later on, the Developer constructed additional two floors which, according to the members, is dangerous to the RCC structure of the building;
v. that according to the Respondents, there are several defects in the construction and despite their objections, regarding the defects in the said construction, taken from the beginning, the Developer acted highhandedly and did not consider their problems;
vi. that after considering all the aspects, proper adjudication is required and the relief regarding allotment of flats, cannot be granted at an interlocutory stage;
vii. that after careful perusal of the pleadings, it appears that it is a collusive dispute and prayer Clause (c) of the dispute clearly indicates that the secretary of the Society has filed the dispute only for the benefit of the Developers;
viii. that the learned Judge, Co-operative Court did not consider the aspect that the occupants of the existing Building Nos. 'C', 'D', 'E' and 'G' are not necessary parties and the relief sought against them is premature and no cause of action has arisen against them.
28. Mr. Vashi submitted before this Court that the Co operative Appellate Court failed to appreciate:
i. that the resolutions pertaining to the redevelopment of the said property were passed by an overwhelming majority of the members of the Society in the year 2002-2003;
ii. that an Agreement dated 8.12.2003 was executed by and between the Society and the Developer setting out the terms pertaining to redevelopment of the said property. Pursuant to the confirmation deed dated 27th August, 2004 the said re-development Agreement was registered with the office of the Sub-Registrar, Andheri;
iii. that the said Agreement dated 8.12.2003 wherein it is agreed between the Society and the Developer to inter alia construct two buildings of 18 floors each is not challenged till date by any member of the Society in any proceedings;
iv. that 161 out of 172 members of the Society have issued consent letters/signed individual Agreements supporting redevelopment;
v. that only on 4th July, 2005, seven members of the Society filed a Suit bearing No. 2812 of 2005 in the City Civil Court, Mumbai making several allegations against the Society and the Developer appointed by the Society. In the said suit, the resolutions passed by the Society at its meetings are not challenged. In the said suit the Agreement dated 8th December, 2003 entered into between the Society and the Developer is also not challenged. The only relief sought in the said suit is that the appointment of the Developer is illegal, improper and bad in law and the Developer be restrained from doing any work of construction on the property of the Society;
vi. that Dispute No. CC-IV/187 of 2005 was filed by the seven members of the Society on 10th August, 2005 inter alia impugning the minutes/resolutions of the Society, on the ground that due to the redevelopment there will be increase in Municipal taxes, maintenance charges and there will be additional charges for lift which will have to be borne by members including the disputants. It was also contended by the disputants in their said dispute that they are not against the re-development but are against the appointment of Petitioner No. 2 as the Developer, whose appointment is bad and illegal. The Minutes of the meetings of the Society were therefore sought to be set aside by the disputants. In the said dispute there is no challenge to the Agreement dated 8th December, 2003 or to the number of floors to be constructed in Building C-1;
vii. that no interim reliefs were granted to the disputants in the above dispute and the Society was allowed to proceed with the work of redevelopment of the said property;
viii. that an overwhelming number of members are forced to continue staying at the cost of their lives and risk to their property, in totally dilapidated buildings, and despite their wanting to shift to the newly constructed /to be constructed buildings, they are unable to do so in view of the obstruction caused by a minuscule number of members of the Society who are not vacating their tenements in Buildings 'A', 'B' and 'F', thereby causing grave harm and inconvenience to the members and their respective families;
ix. that the Developer has spent more than Rs. 28 crores on the project till date and a minuscule number of members of the Society are obstructing the work of redevelopment, causing severe loss to the Developer.
29. Mr. Vashi has submitted that in the dispute filed before the Co-operative Court, only 19 members of the Society were joined as party opponents. However, the Petitioners had sought reliefs against all the members of the Society. The Co-operative Court granted reliefs only against the occupants of Buildings 'A' 'B' and 'F'. Even the Co-operative Appellate Court was of the view that the question of granting reliefs against the occupants residing in Buildings 'C', 'D', 'E' and 'G' is premature. The Petitioners, therefore, are restricting the reliefs sought by them only against occupants of Buildings 'A', 'B' and 'F'. Since the opponents continued to raise the contention that all the affected occupants are not joined as parties to the dispute or to the present Petition, the Petitioners, after obtaining permission of this Court on 24th November 2009, have joined all the occupants of Buildings 'A', 'B' and 'F' who have not come forward to take possession of the flats allotted to them in the new buildings. Mr. Vashi has pointed out that out of 40 Respondents to the Petition, the Petitioners are claiming reliefs only against Respondent Nos. 1, 3, 5, 8, 11,14, 18, 19, 20 and 22 to 37. Respondent No. 37 is in occupation of Flat No. F-129. There is inter se dispute between Respondent No. 18 and 37 over Flat No. F-129 of which Respondent No. 18 is the owner. From the said Respondents, Respondent Nos. 8, 19 and 36 have accepted the allotments in the new Building C-1. The Writ Petition is disposed of against Respondent Nos. 25, 26, 31 and 33 in terms of the Minutes of Order dated 11th January, 2010. The only occupants of Buildings 'A', 'B' and 'F' who have come forward to oppose this Writ Petition are Respondent Nos. 1, 3, 5, 11, 18, 14, 20, 23, 24, 27, 28, 29, 30 32,34, and 35. Even amongst these occupants Respondent Nos. 11, 20, 23, 24, 27, 28, 29, 30 32, 34, and 35 have signed the consent letters/ individual Agreements in favour of the redevelopment. Before the pronouncement of this Judgment, this Court was informed that Respondent No. 11 has already taken possession of a Flat in the new Building C-1.
30. Mr. Vashi has further submitted that all the buildings (A to G ) were constructed during the period 1964 to 1970. The Structural Engineer of the Society has given a report that the buildings are in a dilapidated condition. Even the MMC has issued a notice dated 3rd August, 2009 under Section 354 of the MMC Act calling upon the Society to carry out heavy repairs as the buildings are unsafe for habitation. Mr. Vashi has relied on an unreported judgment of the Hon'ble Division Bench of this Court in Whiz Enterprises Ltd. v. State of Maharashtra dated 30th July, 2009 in W.P. Lodging No. 28 of 2009 wherein the Hon'ble Division Bench has held that after issuing the notice under Section 354, the MMC must take the notice to its logical end in accordance with law, forthwith. The Corporation cannot and ought not to wait indefinitely until two of the Respondents vacate the tenements in the suit building in their occupation.
31. Mr. Vashi has submitted that the obstruction caused by the Respondents is creating grave prejudice to the Society and its overwhelming number of members. It is submitted that as the MMC has given occupation certificate on 8th August, 2007, the Corporation has started charging property tax on Building C-1 from 8th August, 2007 and as the Buildings A to G are not demolished, the Corporation also continues to collect municipal taxes on the Buildings A to G. The Society is therefore subjected to double taxation. With the result, the MMC has issued a notice to the Society demanding a sum of Rs. 2 crores (approximately) from the Society. The Society has adopted proceedings against the MMC in the Small Causes Court, Mumbai challenging the ratable value.
32. Mr. Vashi has submitted that according to the Co operative Appellate Court the resolution of the Managing Committee authorizing the secretary to file the dispute was not submitted/filed alongwith the dispute and hence the dispute filed by the Society before the Co-operative Court is prima facie defective. Without prejudice to his contention that the resolution authorizing Mr. P.K. Naik to file the dispute before the Co-operative Court was filed alongwith the dispute, Mr. Vashi submitted that Rules 75 and 76 of the Maharashtra Co-operative Societies Rules, 1961 were brought in force in 1973 as at that time before filing the dispute in the Co-operative Court under Section 91 of the Co-operative Societies Act, 1960 a dispute was required to be filed before the Registrar in prescribed Form- 'P'. However, in the year 1982, Section 91 was amended and as per the new Section 91 the disputant can file a dispute directly before the Co-operative Court. Therefore Rules 75 and 76 have become redundant . In support of his contention, Mr. Vashi has relied on the commentary on the Co-operative Societies Act 1960 and the Rules by Mr Divekar, wherein the author has commented after Rule 75 as follows:.this rule and Rules 76 and 77 are now redundant in view of the amendment of 91 in 1982. But the rules still continue to exist.
Mr. Vashi has also relied on the judgment of the Hon'ble Division Bench of this Court in Bandra Green Park Co-operative Housing Society Ltd. and Anr. v. Mrs. Dayadasi Kalia and Ors. : 1982 (1) Bom. CR 879, wherein it is inter alia laid down that Rule 76 cannot override the amended Section 91 after deletion of Section 91(2). Mr. Vashi has therefore submitted that even if the resolution of the Managing Committee of the Society was not annexed to the dispute, the same shall not make the dispute defective.
33. While dealing with the submissions of some of the Respondents that the present Petition is not maintainable since the same ought to have been filed by the Administrator and not the Society, Mr. Vashi has submitted that in the order dated 5th March, 2008, the learned Single Judge (S.C.Dharmadhikari J.) has recorded that the Respondent No. 2 in the said Writ Petition (WP 1277/2008) who had complained regarding non submission of bonds as per Section 73(1)(AB) of the Maharashtra Co-operative Societies Act does not press his complaint. It is therefore submitted that once the complaint is not pressed, the office bearers of the first Petitioner are not displaced. The administrator was appointed only for the limited purpose of holding elections. Therefore it is not correct that on 11th April, 2009, the Secretary had no authority to file the Writ Petition.
34. Mr. Vashi has also relied on the unreported judgment of the Hon'ble Division Bench of this Court dated 10th December, 2009 in Girish Mulchand Mehta and Ors. v. Mahesh S. Mehta and Ors. in Appeal No. 338 of 2009 in Arbitration Petition (L) No. 493 of 2009, wherein the Hon'ble Division Bench has held that the decision taken by the majority of the members of the Society will be binding on the minority unless it is shown by the minority members that the redevelop-ment scheme is sanctioned by fraud, misrepresentation or collusion. It is submitted that in the present matter, it is not the case of the Respondents that the redevelopment scheme is sanctioned by committing a fraud, misrepresentation or collusion.
35. Mr. Vashi has pointed out that 71 members of the Society who are staying in the dilapidated Buildings 'C', 'D', 'E' and 'G' by their individual Affidavits filed in the present Writ Petition have confirmed that they are willing to shift to Building C-2 upon the same being constructed. Mr. Vashi has submitted that unless the occupants of Buildings 'A',' B' and 'F' vacate their respective tenements, the work pertaining to construction of Building C-2 cannot commence, thereby forcing about 90 families to continue residing in dilapidated buildings and cause inconvenience to them on false and frivolous pretext that the Developer has constructed two additional floors in Building C-1 creating danger to the RCC structure of the building and that the Developer has acted highhandedly without considering several defects in construction pointed out by the members. Mr. Vashi, has therefore submitted that the Petitioners, without prejudice to their rights and contentions, are willing to have the structural stability of Building C-1 as well as the alleged defects in construction examined by an independent Architect appointed by this Court and are also willing to rectify the alleged defects in construction of the said Building C-1 if the same are confirmed by the architect so appointed. However, Mr. Vashi submitted that the objecting Respondents to prove their bonafides should also agree that if the said Architect appointed by the Court confirms that the building is safe for occupation and that there are no defects in the construction or defect/s(if any) pointed out by the said Architect, is rectified by Petitioner No. 2 to the satisfaction of the said Architect, the objecting Respondents currently residing in Buildings 'A', 'B' and 'F' shall thereafter forthwith shift to the said Building C-1. However, the objecting Respondents of Buildings 'A', 'B' and 'F' who are represented by their respective Advocates before this Court have turned down the offer made by Mr. Vashi on behalf of the Petitioners. In the alternative Mr. Vashi has also submitted that if for any reason the disputants who have filed Dispute No. CC-IV/187 of 2005 ultimately succeed in having the minutes of the meetings of the Society set aside, the Petitioner Society shall get one of the buildings (i.e. Buildings 'C', 'D', 'E' and 'G') repaired and permanently shift them to the said building, thereby causing no prejudice to them. Mr. Vashi has therefore submitted that the conduct of the opposing occupants in not accepting the above proposal goes to show that the objections raised by some of the occupants are only for the sake of raising objections, which are in fact completely lacking in bonaf ides.
36. Mr. Vashi has therefore submitted that grave and irreparable harm, loss, damage, injury and prejudice will be caused to the life and property of the members of the Society and their families who are continuing to reside in dilapidated buildings, and are waiting since the past several years to shift to the newly constructed/to be constructed buildings, if the order passed by the Co-operative Appellate Court dated 28th March, 2008 impugned in the present Writ Petition is not set aside and the occupants of Buildings 'A', 'B' and 'F' are not directed to handover possession of their present tenements to the Petitioner Society and shift themselves alongwith their family members to the flats allotted to them in Building C-1. Petitioner No. 2 who has already spent more than Rs. 28 crores on the project without receiving any returns till date will also suffer grave loss , damage and prejudice if the present Writ Petition is not allowed by this Court. Mr. Vashi has submitted that the balance of convenience is completely in favour of the Petitioners and against the opposing Respondents.
37. Mr. Wassoodew the learned advocate appearing for the Applicants in Chamber Summons No. 275 of 2008 has submitted that the members of the Society are residing in dilapidated buildings which may collapse due to heavy seepage of water during monsoons resulting in dampness of walls. Hundreds of individuals are living in danger despite a new building of 18 floors being ready for occupation since the year 2007 and the construction of the second building not having commenced only because of the obstruction created by few of the 172 members with malafide motives. He has submitted that grave harm, loss, damage and injury will be caused to an overwhelming number of members of the Society if the Writ Petition is not allowed. As against that no harm, loss, damage or injury will be caused to the obstructing Respondents if the Writ Petition is allowed. Mr. Ajit Pingulkar son of the deceased Disputant No. 1 in Dispute No. CC.IV/187of 2005 has also made submissions similar to those made by Mr. Wassoodew.
38. Mr. Firoze Bharucha, learned Advocate appearing for the Respondent Nos. 1, 3, 5, 7, 11, 14, 24, 27, 28, and 39 has made the following submissions:
i. That the Petitioners have filed the dispute only against 19 members of the Society and have sought reliefs against all the 172 members of the Society thereby denying an opportunity of being heard to 153 members of the Society;
ii. That the Co-operative Court failed to consider that Dispute No. CC-IV/187 of 2005 filed by Respondent Nos. 1, 3, 5, 15 and four other members of the Society is pending before the Co-operative Court and the same is not finally disposed of;
iii. that the provisions of Order 1 Rule 8 C.P.C. do not apply to the proceedings filed under the Maharashtra Co-operative Societies Act, 1960. In view of the same, the dispute filed by the Petitioner Society could not have been filed only against 19 members in their representative capacity;
iv. that the Co-operative Court has not given its findings as regards the maintainability of the dispute itself, instead, the Co-operative Court has granted final reliefs at the interim stage which practice has been deprecated by the Hon'ble Supreme Court in its decisions in State of U.P. and Ors. v. Ramsukhi Devi 2005 I SCC 733; State of UP v. Vishweshwar : 1995 Supp.3 SCC 590 and Bharat Bhusan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. : 1995 Supp. (2) SCC 593;
v. that, the order dated 28th March, 2008 passed by the Co-operative Appellate Court safeguards the interest of the Petitioners by directing the Co-operative Court to dispose of the dispute preferably within six months from the date of the order;
vi. that the impugned order does not suffer from any defect or illegality and the same stands the test of judicial scrutiny and therefore this Court ought not to interfere with the same. Reliance is placed on the decisions of the Hon'ble Supreme Court in Radhye Shyam and Ors. v. Chhabi Nath and Ors. : (2009) 5 SCC 616 and Mohan Pandey and Anr. v. Usha Rani Rajgaria and Ors. : (1992)4 SCC 61.
vii. that the dispute between the parties is a property dispute and the Co-operative Court is a competent Court to grant relief if any to the Petitioners and this Court ought not to allow the Writ Petition on this ground alone;
viii. that since the proposed C-2 Building is to be erected in place of Building 'F' the Petitioners should only seek eviction and demolition of Building 'F';
ix. that the Petitioner No. 2 being a formal party to the Petition cannot seek reliefs of any nature against the Respondents;
x. that since the development of land on which Buildings 'A' and 'B' stand is to commence only upon completion of C-2 Building, the Respondents cannot be evicted before allowing them an opportunity to be heard and lead evidence in order to enable them to put their best case;
xi. that the Petitioners have constructed building of 18 floors instead of 16 floors. The alleged Development Agreement was never in place when the construction of C-1 Building began or was even completed. The Petitioners will have to lead evidence and prove the alleged redevelopment Agreement;
xii. that the decision of the Hon'ble Division Bench of this Court in Girish Mehta and Anr. v. Mahesh Mehta and Anr. (supra) relied upon by the Petitioners shall not apply to the present case since in that case the resolutions for development were not challenged. Whereas, in the present case the resolutions have been challenged and the said dispute is pending adjudication. The Division Bench of the High Court, in its said judgment, has also not taken into account the decision of Hon'ble Supreme Court in Radhyesham and Ors. (supra) and Mohan Pandey and Anr. (supra) and therefore the Division Bench of this Court has not considered the correct position of law as it stood on the date of pronouncement of the said order.
39. After Mr. Bharucha had concluded his arguments, but before Mr. Phal and Mr. Prabhu concluded their arguments, Mr. Vashi drew the attention of this Court to the dispute filed before the Fourth Co-operative Court Mumbai being Dispute No. CC-IV/57 of 2010 by the Respondents who are represented by Mr. Bharucha. The said dispute is inter alia filed by the very same disputants who have filed Dispute No. CC-IV-187 of 2005 challenging the minutes of the meetings of the Society. In the said Dispute No. CC-IV-57 of 2010, the disputants therein have, without making any reference to the earlier Dispute No. CC-IV/187 of 2005 prayed that they should be allotted flats in Building C-2 with the additional area as per the size of the flats under their occupation and not a uniform additional area of 120 sq. ft. Mr. Vashi has pointed out that in the Special General Body Meeting of the Society held on 28th February, 2003 (attended by 110 members of the Society) certain members had suggested that the additional area should be allotted to the members proportionately to the size of the flats occupied by them and not uniformly. However, after discussion, the suggestion of allotting additional area proportionate to the size of flats occupied by the members was not accepted. Thereafter none of the members have objected to the allotment of additional 120 sq. ft. carpet area uniformly to all the occupiers of 172 flats. Mr. Vashi has submitted that in the last 9 years, none of the members have challenged the granting of the uniform benefit of additional 120 square feet carpet area to all the members irrespective of the size of the flats occupied by them and for the first time the Respondents who have earlier challenged the minutes of the meetings and the appointment of Petitioner No. 2 as the Developer have filed the present dispute (Dispute No. CC-IV-57 of 2010) claiming benefit of additional area as per size of the flats occupied by them. Mr. Vashi has submitted that this itself shows that the Respondents are aware that the objections raised by them in the earlier dispute are baseless and untenable and have therefore filed a fresh dispute after about 9 years wherein they have sought allotment of flats in Building C-2 with additional area which the disputants are certainly not entitled to.
40. This Court called upon Mr. Bharucha to explain the fate of the earlier dispute (Dispute No. CC-IV-187 of 2005) impugning the minutes of the meetings of the Society, in view of the present dispute (Dispute No. CC-IV/57 of 2010) filed by the Respondents represented by him wherein no mention is found about the earlier Dispute No. 187 of 2005. According to Mr. Bharucha, the current Dispute No. CC.IV/57 of 2010 is filed without prejudice to dispute No. CC.IV/187 of 2005 filed earlier. However, the contents of Dispute No. CC.IV/57 of 2010 belies Mr. Bharucha's submission.
41. Mr. Prabhu, the learned Advocate appearing for Respondent Nos. 20, 22, 32, 33 34, 35 and 40, before commencing his arguments, tendered an affidavit in reply on behalf of Respondent Nos. 32 and 33. When it was pointed to Mr. Prabhu that the affidavit in reply filed by two of his clients is in Notice of Motion No. 529 of 2009 whereas the Writ Petition is being heard finally by this Court from time to time, Mr. Prabhu submitted that he was under the impression that what was being heard is the Notice of Motion in the Writ Petition and not the Writ Petition. When it was pointed out to Mr. Prabhu that the Writ Petition is regularly appearing on the cause list for final hearing, he submitted that he had not seen the cause list. Mr. Prabhu thereafter started making submissions on behalf of the Respondents whom he represented. However, the submissions made by Mr. Prabhu were contrary to the record. After this fact was repeatedly pointed out to Mr. Prabhu, he informed the Court that he wishes to restrict himself to only one submission namely, that the jurisdiction under Article 226 and 227 of the Constitution of India is ordinarily not exercised if there is some efficacious remedy available. The present Writ Petition involves several conflicting facts and the Writ jurisdiction of this Court cannot be exercised in such a case, more so when the Writ Petition is filed to challenge an interim order passed by the Co-operative Court. Mr. Prabhu has submitted that this is based on the decision of the Hon'ble Supreme Court in the case of Suryadevo Rao v. Ramchandar Rai reported in AIR 2003 wherein the Hon'ble Supreme Court has held that:
(5). Be it a Writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct the errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and (ii) grave injustice or gross failure of justice has occasioned thereby.
42. Mr. Phal the learned Advocate appearing for Respondent Nos. 9 and 13 (against whom Mr. Vashi has not claimed any reliefs) submitted that the Dispute No. CC-IV/124 of 2007, filed by the Society is defective since the same is not accompanied by a Resolution of the Society authorizing its secretary to file the same. According to Mr. Phal, the present Writ Petition is also not maintainable since the same ought to have been filed by the Administrator appointed at the relevant time and not by the Secretary or the Managing Committee of the Society.
43. I have gone through the pleadings and perused documents produced on record as well as the relevant orders, passed from time to time by the Co-operative Court/the Co-operative Appellate Court and this Court and have considered the submissions advanced on behalf of the Petitioners as well as the Respondents. I have also considered the case laws cited by the learned Advocates appearing for the parties.
44. Admittedly seven buildings i.e. Buildings A to G are situated on the said property. The Petitioners have contended that the said buildings are in a dilapidated condition and have also produced before this Court a notice received by the Society from the MMC dated 3rd August 2009 under Section 354 of the MMC Act calling upon the Society to carry out heavy repairs as the buildings are unsafe. Though the opposing Respondents have tried to contend that the said buildings are not in a dilapidated state as alleged by the Society, from the photographs of the buildings produced by the Society as well as the Intervenors before this Court, it is clear beyond any doubt that the buildings are in a dilapidated condition and need substantial repairs. Admittedly there are 172 members who are occupying the tenements in the said seven buildings. The resolution pertaining to the redevelopment of the said property was passed at the 37th Annual General Body Meeting of the Society held on 11th August, 2002. Again resolutions as regards re-development were unanimously passed at the Special General Body Meeting of the Society held on 28th February, 2003 which meeting was attended by 110 members. Thereafter, an Agreement was entered into between the Society and the Developer (Petitioner No. 2) dated 8th December, 2003 which, for the reasons set out in the Deed of Confirmation, was registered on 27th August 2004. The said Agreement dated 8th December, 2003 and the lay out plan annexed thereto shows that the Society and the Developer have agreed to redevelop the said property by inter alia constructing two buildings upto 18 floors. In the said Agreement it is also documented that the occupants of the existing Buildings 'A', 'B' and 'F' shall shift to the flats constructed in Wing 'A' of Building 'C' within two months of the Developer obtaining occupation certificate. It is further agreed that the Developer shall complete the second phase of construction of Wing 'B' of Building 'C' and hand over the same duly completed after obtaining occupation certificate within 21 months of the occupants shifting to Wing 'A' of Building C. Thereafter, 161 out of the 172 members signed consent letters/individual Agreements supporting the redevelopment. In the individual Agreements signed by and between the members and the Developers, the members have inter alia confirmed having gone through the Agreement dated8th December, 2003 executed between the Society and the Developer wherein it is inter alia agreed that the Developer will construct buildings upto 18 floors.
45. Three years after the resolution was passed at the Annual General Body Meeting of the Society on 11th August, 2002, seven of the members (five of whom had filed consent letters/ individual Agreements in support of the redevelopment) filed a suit in the City Civil Court, Mumbai challenging the appointment of Petitioner No. 2 as a Developer. Interim reliefs sought by the seven members of the Society in the said suit were rejected by a speaking order and the Petitioner No. 2 Developer therefore continued to develop the said property and constructed Building C-1 of 18 floors on the said land. The said suit however was dismissed on 25th March, 2010 for default.
46. Again after a gap of almost three years from the date of passing the first resolution in favour of redevelopment of the Society's property i.e. 11.8.2002, seven members of the Society (one of whom is also one of the plaintiffs in the Suit filed in the City Civil Court, Mumbai) filed Dispute CC-IV/187 of 2005 inter alia impugning the minutes of the meeting of the Society on the ground that due to the redevelopment there would be increase in Municipal taxes, maintenance charges and also additional charges for lift, which would have to be borne by the members including the disputants. It was also contended that the disputants are not against the re-development but they are against the appointment of Petitioner No. 2 as the Developer, whose appointment is bad and illegal. Of the said seven members, the son of one of the deceased member Shri K.T. Pingulkar (Respondent No. 2 ,Flat No. D-83) has now filed an affidavit supporting the redevelopment. In the said dispute the application seeking interim reliefs filed by the disputants was rejected by a reasoned order of the Co-operative Court and the revision preferred therefrom was also dismissed by the Co-operative Appellate Court. In view thereof the Society as well as the Developer (Petitioner No. 2) continued with the construction and completed Building C-1 consisting of 18 floors and the MMC also issued an Occupation Certificate dated 8th August, 2007 in regard thereto.
47. As agreed in the Agreement dated 8th December, 2003 the occupants of the existing buildings 'A', 'B' and 'F' were required to shift to the flats constructed in Wing 'A' of Building C-1 within two months from the date of obtaining the occupation certificate. However, upon receipt of the occupation certificate dated 8th August, 2007, when a meeting was fixed by the Society to allot flats in Building C-1 to the occupants of Buildings 'A', 'B' and 'F', Respondent Nos. 1 to 19 obstructed the said allotment because of which about 80 members and their families (with the exception of a few obstructing Respondents) residing in Buildings 'A', 'B' and 'F' could not be allotted flats in Building C-1 and the said occupants were forced to continue their stay, at the cost of risk to their lives and property in the dilapidated buildings. Consequently, Petitioner No. 2 who under the said Agreement dated 8th December, 2003 was to complete construction of Building C-2 and obtain occupation certificate in regard thereto within 21 months of the occupants of Buildings 'A', 'B' and 'F' shifting to Building C-1 could not commence construction of Building C-2, because of which about 90 members alongwith their families (with the exception of a minuscule number of obstructing Respondents) were forced to continue staying in the dilapidated buildings for no fault on their part. Approximately 70 members of the Society have filed their individual Affidavits before this Court, wherein they have expressed their desire/ willingness to shift to Building C-2 upon the same being constructed but are unable to do so in view of the obstructions created by a minuscule number of members. They have in their respective Affidavits appealed to this Court to expedite the implementation of the redevelopment scheme. From the documents submitted by Mr. Vashi, it is clear that the Petitioner No. 2 Developer has already spent an amount of Rs. 28,46,83,076/- (Rupees twenty eight crores, forty six lacs eighty three thousand seventy six only) on the re-development project. In order to avoid inconvenience to the members, the Society had insisted and the Developer had agreed that the occupants of Buildings 'A','B' and 'F' shall continue to occupy their tenements until the flats to be allotted to them in Building C-1 are ready. As submitted by Mr. Vashi, the new Building C-1 is ready for occupation since 2007 and as the Buildings A to G are also not demolished, the Society is required by the Corporation to pay taxes in respect of the new building as well as seven old Buildings (A to G), which the Society cannot afford to pay. As a result, the Society has now received a notice from the MMC to pay up an amount of Rs. 2,00,00,000/- (Rupees two crores) towards taxes.
48. It is under these compelling circumstances that the Petitioner No. 1 Society filed a dispute being No. CC-IV/124 of 2007 seeking directions against the members to vacate the existing flats occupied by them and to co-operate in shifting to the newly constructed Building C-1. Though the Society had joined only 19 objecting members as opponents/ Respondents to the dispute, the Society by way of abundant caution sought reliefs against all the members occupying tenements in all the seven buildings. The Co-operative Court after considering the aforesaid facts granted reliefs only against the occupants of Buildings 'A', 'B' and 'F' and not against occupants of Buildings 'C', 'D', 'E' and 'G'. The Co-operative Appellate Court by the impugned order has set aside the order dated 3rd December, 2007 passed by the Co-operative Court and thereby stalled the entire process of allotment of flats even to the occupants of Buildings 'A', 'B' and 'F' and only expedited the hearing of the dispute by directing the Co-operative Court to dispose of the same preferably within a period of six months. Though there is no order restraining the Co-operative Court from proceeding with the hearing of the dispute filed by the Society and though the Petitioners have not sought any time from the Co-operative Court on the ground that the present Writ Petition is pending before this Court, till date i.e. after more than two years from the date of the impugned order(28th March, 2008), the hearing of the dispute has not even commenced before the Co-operative Court. This itself speaks about the efficacy of the expedition orders routinely passed by the Co-operative Appellate Court. Though the Co-operative Appellate Court has refused to grant any relief to the Society inter alia on the ground that the Dispute No. CC-IV/187 of 2005 filed by seven members of the Society is pending and therefore subjudice, the Co-operative Appellate Court by its impugned order has not expedited the hearing of the said Dispute No. No. CC-IV/187 of 2005 thereby exhibiting total non application of mind.
49. The Hon'ble Division Bench of this Court in its decision dated 10th December, 2009 in Girish Mulchand Mehta and Ors. v. Mahesh H. Mehta and Ors. (supra) has held that the decision taken by the majority of the members of the Society will be binding on the minority unless it is shown by the minority members that the redevelopment scheme is sanctioned due to fraud, misrepresentation, or collusion. It is true that in that case the members had not challenged the resolutions but had only challenged the terms of the development. In the present case, admittedly only 7 out of 172 members of the Society have challenged the minutes of the meetings of the Society pertaining to redevelopment of the said property on the ground that because of the redevelopment there will be increase in Municipal taxes, maintenance charges and there will be additional charges for lift, which will have to be borne by the members including the disputants. It was also contended that the disputants are not against the re-development but they are against the appointment of Petitioner No. 2 as the Developer, whose appointment is bad and illegal. The said minority members, since the year 2005, have failed to even prima facie satisfy the Court that the redevelopment scheme is sanctioned due to fraud, misrepresentation or collusion and obtain ad-interim/interim orders. In fact an Application filed by the said seven members seeking interim reliefs was rejected by a reasoned order dated 10th August, 2005 and the revision preferred therefrom is also rejected. The Agreement dated 8th December, 2003 entered into between the Society and the Developer (Petitioner No. 2) wherein the Society has allowed the Developer to construct two buildings upto 18 floors is not challenged by the disputants or any members till date. A mention of the said Agreement is categorically made in the order dated 10th August, 2005 passed by the Co-operative Court. The decision therefore taken by an overwhelming majority of the members of the Society qua the redevelopment of the said property and the terms and conditions agreed upon by and between the Society and the Developer (Petitioner No. 2) in the Development Agreement dated 8th December, 2003 are binding on all the members. Under the terms and conditions of the said Agreement it is obligatory on part of the members residing in Buildings 'A', 'B' and 'F' to accept allotment of new flats in Building C-1 and handover their present tenements to the Society. In fact, recently the present disputants have filed Dispute No. CC-IV/57 of 2010 seeking a larger area in Building C-2 to be constructed by the Petitioner No. 2 Developer. In view thereof, the submissions of Mr. Bharucha that the decision in Girish Mulchand Mehta and Ors. (supra) is not applicable to the present case inter alia since in that case none of the members had challenged the resolutions passed by the Society cannot be accepted. The contention of Mr. Bharucha that only members of the Building 'F' may be asked to vacate their tenements is also devoid of any merits.
50. In the above facts and circumstances and in view of the law as laid down inter alia in the decision in Girish Mulchand Mehta and Ors. (supra), a few members of the Society cannot be allowed to obstruct the entire redevelopment scheme including allotment of flats in Building C-1 to the overwhelming number of consenting members and consequently delay the construction of Building C-2 on the ground that the dispute filed by seven (now six) of the 172 members impugning the minutes of the meetings of the Society pertaining to the redevelopment of the said property is pending.
51. Without considering the aforestated facts as well as the law, and without considering the fact that the overwhelming number of members of the Society and their family members are residing in dilapidated buildings at a risk to their lives and property, and without considering the grave miscarriage of justice that would be caused to hundreds of individuals including women and children (i.e. 172 members alongwith their respective families, with the exception of the few obstructing Respondents) the Co-operative Appellate Court, by its order dated 28th March, 2008, wrongly proceeded to set aide the order of the Co-operative Court dated 3rd December, 2007 allowing the Society to allot flats to its members in Building C-1 and directing the occupants of Buildings 'A', 'B' and 'F' to handover possession of their respective tenements to the Society, inter alia on the ground that the dispute filed by the seven members of the Society impugning the minutes of the meetings of the Society and the suit filed by the seven members of the Society in the City Civil Court, Mumbai challenging the appointment of Petitioner No. 2 as the Developer is pending/subjudice. The Co-operative Appellate Court without considering the seriousness of the matter and the grave injustice that would be caused to the Petitioners and its members alongwith their families has without any basis boldly proceeded to hold that the Dispute No. CC-IV/124 of 2007 is a collusive proceeding and the prayer clause seeking directions against the members to shift into the new flats and handover their old tenements for demolition indicates that the secretary of the Society has filed the dispute only for the benefit of the Developer.
52. Another ground on which the Co-operative Appellate Court has set aside the interim order passed by the Co-operative Court dated 3rd December, 2007 is that some of the members of the Society have complained that the construction of two additional floors in Building C-1 is without authority and is illegal and is dangerous to the RCC structure of the building. However, the Co-operative Appellate Court lost sight of the fact that the Agreement dated 3rd December, 2003 entered into by and between the Society and the Developer and the layout plan annexed thereto shows that buildings upto 18 floors were to be constructed. In the suit filed in City Civil Court, Mumbai (now dismissed ) and also in Dispute No. CC-IV/187 of 2005 there is no challenge to the building having two additional floors or to the Agreement dated 8th December, 2003. Assuming for the sake of argument that the disputants were not aware of the Agreement dated 8th December, 2003, the said Agreement finds mention in the order of the Co-operative Court dated 10th August, 2005. The willingness of the Society to offer inspection of the registered deed is also recorded in the said order. However, till date the said Development Agreement dated 8th December, 2003 is not challenged by any member of the Society including the disputants /opposing Respondents. These facts also do not support the submission of Mr. Bharucha that the Development Agreement was not in place even when the construction of the building was completed. An overwhelming number of members have not only not objected to the alleged two additional floors but have in their individual Agreements with the Developer specifically stated that they have gone through the Agreement dated 8th December, 2003 between the Society and the Developer and that they have approved the same. The Agreement dated8th December, 2003 is therefore valid and subsisting as of date. The MMC has also issued an occupation certificate dated 8th August, 2007 qua the Building C-1 comprising of 18 floors. In any event, despite the aforesaid facts, if the Co-operative Appellate Court was concerned about the safety/security of the Member occupants, the Court could always have appointed an independent architect/Structural Engineer to examine the structural stability of the building and thereafter passed its orders. However, the Co-operative Appellate Court, took cognizance of some letter Written by the Secretary of the Society to the Developer qua the construction of two additional floors in Building C-1, which letter, in view of the aforestated facts, prima facie appears to be of no consequence and wrongly proceeded to set aside the order dated 3rd December, 2007 passed by the Co-operative Court. In any event, this Court, at the time of admitting the above Writ Petition and also by its subsequent orders has allowed the Society to call for its General Meeting and allot flats to its members residing in Buildings 'A', 'B' and F in the new Building C-1. Approximately 64 members, alongwith their families have started residing in the new Building- C-1 of which 60 of them have been residing there for the past about 18 months. Rejection of the offer made by Mr. Vashi before this Court to have the building examined by an independent architect appointed by this Court provided that the opposing members agree to accept the decision of the said architect as final, also brings out the lack of genuineness in the dispute raised by the objecting members qua the structural stability and the defects in construction of Building C-1.
53. The Cooperative Appellate Court has also refused relief to the Society on the ground that at the interim stage orders/directions pertaining to allotment of flats in the new building cannot be passed. Mr. Bharucha the learned advocate appearing for some of the opposing Respondents has also relied on the decisions of the Hon'ble Supreme Court in State of U.P. and Ors. v. Ramsukhi Devi 2005 I SCC 733; State of UP v. Vishweshwar : 1995 Supp.3 SCC 590 and Bharat Bhusan Sonaji Kshirsagar (Dr.) v. Abdul Khalik Mohd. Musa and Ors. : 1995 Supp. (2) SCC 593; wherein the Hon'ble Supreme Court has deprecated the practice of practically granting the principal reliefs at the interim stage.
54. In the case of State of UP and Ors. v. Ramsukhi Devi (Supra) the learned Single Judge of the High Court had granted final reliefs at the interim stage. The Hon'ble Supreme Court set aside the order of the learned Single Judge by observing that ' for no better reason than that of a prima facie case having been made out without being concerned about the balance of convenience, the public interest and a host of other considerations '. In the case of State of UP and Ors. v. Vishweshwar (supra), the High Court had without adjudicating the claim of the Writ Petitioner to the post of Forest Guard had at the interim stage confirmed the Petitioner on the said post with a direction to pay him salary of a regular employee holding that post. The decision of the Hon'ble Supreme Court in Bharat Bhushan Sonaji Kshirsagar (Dr.)(supra) pertains to the removal of the president of municipality under the Maharashtra Municipalities Act, 1965 (40 of 1965). In the said case, the decision of the High Court was set aside by the Hon'ble Supreme Court because, under Section 55-A of the said Act only the State Government can order the removal of the president of Municipality. However, the High Court, at the interim stage, had allowed the Writ Petition, ordering removal of the President by bypassing Section 55A of the said Act. The above decisions of the Hon'ble Supreme Court deprecating the practice of granting the principal relief at the interim stage are inter alia passed in view of the reasons set out above. The facts and circumstances of those cases and the case in hand are completely different. In the instant case the Co-operative Appellate Court has, without taking into consideration the aforestated facts and the law proceeded to set aside the order of the Co-operative Court which would result in grave harm, loss, damage, injury, prejudice and inconvenience to the Petitioners and the overwhelming number of members of the Petitioner No. 1 Society who have continued to stay in dilapidated buildings alongwith their family members at grave risk to their lives and property and are not being allotted their flats, despite them having passed resolutions in favour of redevelopment in the year 2002; despite one Building (C-1) consisting of 18 floors being ready for occupation since August, 2007 and despite the Petitioner No. 2 Developer having already spent more than Rs. 28 crores on the redevelopment project till date, only because 7 (now six) out of 172 members have challenged the minutes of the meetings of the Society and objected to the appointment of Petitioner No. 2 as a Developer, in which proceedings the said minuscule number of members have till date failed to obtain any interim reliefs. The question therefore of not granting the reliefs as sought by the Petitioners on the ground that granting reliefs to them would amount to granting principal relief to the Petitioners at the interim stage does not arise. In any event, on behalf of the Petitioner, Mr. Vashi has submitted that if the disputants ultimately succeed in their challenge to the redevelopment of the said property, the Petitioners shall not demolish one of the buildings amongst the buildings 'C', 'D' 'E' and 'G' and shall house the successful disputants therein after carrying out repairs to the same which shall fully protect the interest of the disputants who have challenged the minutes of the meetings of the Society. In view thereof even if the reliefs sought by the Petitioner would amount to grant of final reliefs at the interim stage, in view of the facts and circumstances of the case and further in view of the above statement made by Mr. Vashi which fully protects the interest of the disputants this was a fit case for the Co-operative Court to grant reliefs as sought by the Petitioners at the interim stage and the same is wrongly set aside by the Co-operative Appellate Court.
55. The Co-operative Appellate Court has also observed/held that prima faice the dispute filed by the Society appears to be defective since the resolution authorising the secretary to file the said dispute is not filed alongwith the said dispute. This contention is also raised by Mr. Phal on behalf of two of the opposing Respondents . In addition it is also argued that the Writ Petition filed before this Court is not maintainable since at the relevant time an administrator was appointed to look after the affairs/management of the Society. The submissions of Mr. Vashi in this regard are reproduced in paragraphs 32 and 33 above. Though I am prima faicie of the view that Mr. Vashi is correct in his submissions, even if it is assumed that there is a defect qua the filing of the said dispute or the filing of the present Writ Petition, this Court cannot lose sight of the fact that an Affidavit dated 10th January, 2008 was filed before the Co-operative Appellate Court on behalf of majority of members (approximately 90) inter alia confirming that they are in total Agreement with the resolutions passed in the General Body Meetings and also the consequential acts done by the Managing Committee Members and Office Bearers of the said Society. Mr. Vashi has therefore correctly submitted that a majority of the members have inter alia supported the filing of the dispute by the Society, leaving no doubt qua the bonafides pertaining to the filing of the said dispute. This Court has also noted that pursuant to the orders passed by this Court in the present Writ Petition, approximately 64 members have accepted the allotment in the new Building C-1 and about 71 members have filed affidavits informing the Court that they are anxious to take possession of flats in Building C-2. This Court has therefore no doubt that both the proceedings i.e. Dispute No. CC-IV/124 of 2007 and the present Writ Petition are supported by an overwhelming number of members of the Society and such large number of members cannot be deprived of relief on the ground that the dispute as filed, is prima facie defective or the Writ Petition, which is admitted, expedited and in which several interim reliefs are granted ought to have been signed by the Administrator and not by an office bearer of the Society. This Court, under Article 226 of the Constitution of India, is equipped with wide powers to dispense justice. Refusing reliefs which will cause severe loss, injury and prejudice to hundreds of individuals (172 members and their respective families) on the ground that the dispute was not accompanied by a resolution of the Managing Committee and the Writ Petition ought to have been affirmed/ signed by the Administrator and not the member of the Managing Committee would, in my view, amount to dispensing with justice. What ought to have weighed with the Co-operative Appellate Court was protection of the interest of an overwhelming number of members of the Society and their families, who for no fault of theirs are compelled to stay in dilapidated buildings at grave risk to their lives and property despite one building of 18 floors being ready for occupation since the year 2007. The Co-operative Appellate Court erred in not appreciating the fact that the construction of the second building has not yet commenced only due to certain objections raised by 7 out of 172 members of the Society qua the minutes of the meetings of the Society.
56. The Society had in its dispute sought reliefs against the members of buildings A to G of the Society without joining them as party Respondents and only joining 19 members as Respondents to the dispute. The Society was not correct in doing so. However, since the Co-operative Court had granted reliefs only against the members residing in Building 'A', 'B' and 'F', the Co-operative Appellate Court, keeping in mind the interest of an overwhelming number of members of the Society and their families ought to have directed the Society to issue notice to all the opposing members of Buildings 'A', 'B' and 'F' instead of setting aside the order of the Co-operative Court dated 3rd October, 2007. In any event, on an application made by the Society before this Court, my brother Judge Dr. D.Y. Chandrachud J., by his order dated 24th November, 2009 has allowed the Society to join all the obstructing members as party Respondents to the Writ Petition. As set out herein above, the only obstructing members ( residing in Buildings 'A', 'B' and 'F') are Respondent Nos. 1, 3, 5, 1114, 18, 20, 22 to 24, 27,28, 29, 30, 32, 34 and 35 out of which only 16 members i.e. Respondent Nos. 1, 3 ,5, 11, 14, 18, 20, 23, 24, 27, 28, 29, 30, 32, 34, and 35 have come forward to oppose the present Petition. Of the said Respondents, Respondent Nos. 11, 20, 23, 24, 27, 28, 29, 30, 32, 34, and 35 have signed the consent letters/development Agreements in favour of the re-development and have correctly not challenged the same in any proceedings till date. In fact Respondent No. 11 has now accepted allotment of flat in the new Building C-1.
57. Under the circumstances and in view of the above discussion, the order passed by the Co-operative Appellate Court dated 28th March, 2008 setting aside the order of the Co-operative Court dated 3rd December, 2007 allowing allotment of flats to the members of Buildings 'A', 'B' and 'F' in the newly constructed Building C-1 and directing the occupants of Buildings 'A', 'B' and 'F' to handover possession of their present tenements to the Society within four weeks from the date of the new allotment, is erroneous and perverse. For the aforestated reasons the order of the Co-operative Appellate Court would result in manifest miscarriage of justice. The Petitioners, under the circumstances are left with no other alternative but to approach this Court by way of the present Writ Petition. This Court has therefore entertained the present Writ Petition and the submissions advanced by Mr. Bharucha as well as Mr. Prabhu that the Writ Petition is not maintainable because it is allegedly a private dispute involving disputed questions of facts and that the Petitioner No. 2 cannot join himself as a Petitioner and claim any substantive reliefs are rejected. The decisions cited by Mr. Bharucha as well as Mr. Prabhu in this regard are not applicable to the facts and circumstances of this case and renders no assistance to them.
58. Under the circumstances I pass the following order:
i. The order passed by the Co-operative Appellate Court dated 28th March, 2008 is hereby quashed and set aside.
ii. The Petitioners shall allot flats to all the members of Buildings 'A', 'B' and 'F' within one week from the date of this order.
iii. Those members who have already accepted allotments in Building C-1 and have already shifted to Building C-1 shall continue to retain the same.
iv. The Respondents Nos. 1, 3, 5, 14, 18, 20, 22, 23, 24, 27, 28, 29, 30, 32, 34 and 35 shall handover their present tenements in Buildings 'A', 'B' and 'F' to the Petitioner No. 1 Society within a period of four weeks from the date of allotment of flats to them in Building C-1. If any of them fails to do so the Petitioner No. 1 shall be at liberty to take forcible possession of their tenements with the help of the Police.
v. The Co-operative Court shall together hear and dispose of Dispute Nos. CC-IV/187/2005, CC-IV/124/2007 and No. CC-IV/57 of 2010 within a period of one year from today without being influenced by the observations made in this Judgment.
vi. The parties shall appear before the fourth Co-operative Court on 5th July, 2010 at 11 a.m. and after producing a copy of this order before the Co-operative Court seek appropriate directions in Dispute Nos. CC-IV/187/2005, CC-IV/124/2007 and No. CC-IV/57 of 2010.
vii. The statement of Mr. Vashi that if for any reason the disputants who have filed Dispute No. CC-IV/187 of 2005 ultimately succeed in having the minutes of the meetings of the Society set aside, the Petitioner Society shall get one of the buildings (i.e. Buildings 'C', 'D', 'E' and 'G' ) repaired and permanently shift the said disputants to the said building, is accepted.
viii. Rule is made absolute in the above terms.
ix. Chamber Summons No. 275 of 2008 stands disposed of.
In view of this Judgment, Notice of Motion Nos. 415 of 2008, 344 of 2009, and 529 of 2009 are disposed of.