| SooperKanoon Citation | sooperkanoon.com/348169 |
| Subject | Trusts and Societies |
| Court | Mumbai High Court |
| Decided On | Mar-26-2009 |
| Case Number | Writ Petition No. 3030 of 2009 |
| Judge | Anoop V. Mohta, J. |
| Reported in | 2009(4)MhLj304 |
| Appellant | Mahabir Nuniwal |
| Respondent | Neptune Co-operative Housing Society Ltd. Under the Provisions of the M.C.S. Act, 1960 and Vaidehi a |
| Appellant Advocate | Varsha Palav and ;V.C. Singh, Advs. |
| Respondent Advocate | Vijay A. Thorat, Sr. Adv. and ;R.A. Thorat, Adv. for Respondent No. 1 and ;A.Y. Sakhare, Sr. Adv. and ;Lakshmi Murali, Adv. for Respondent No. 2 |
Excerpt:
- [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is appealable under the provisions of the act and if there is any violation in the exercise of the power, then the proper remedy is to lodge an appeal before the appellate authority. thirdly, even assuming that there is some breach in exercise of power s. 132(5) such breach is not so fatal as to warrant quashing the entire order. income tax act 1961 s.132 - search and seizure--order under s. 132(5)--validity of--seized assets handed over the commissionerincome tax act 1961 s.132 - search and seizure--reason to believe--commissioner considering extensive information and anonymous petitions and undertaking detailed scrutiny. income tax act 1961 s.132 - 2. the petitioners being aggrieved by the order of appointment of receiver on applications filed by the respondents-society initially granted by a common order dated 10.12.2008 by the cooperative court, mumbai in disputes filed by the respondents-societies praying for damages, as well as, an interim injunction including an appointment of receiver against the petitioners/opponents in the said disputes. 6. the petitioners dispute with regard to the various resolutions about appointment of the builder including their challenge to the basic amalgamation as well as the requisite 70% is still pending. it is also provided that in case of failure to vacate the existing tenement for the purpose of redevelopment, an appropriate proceedings can be initiated for the purpose of getting tenements vacated from the non-cooperative members. the requisite members/percentage, available at the relevant time and by following due procedure of law, based upon the same, the parties proceeded further and now the development is at advance stage, the grievances, even if any of the persons like the petitioners, unless adjudicated finally, the progress just cannot be halted at the instance of such persons. 11..petitioner cannot make any grievance regarding validity of the order amalgamating the two societies as well as, development agreement entered into by k-3 and k-4 societies and subsequent deed of confirmation executed by the respondent no. on the contrary, considering the scheme and purpose as referred above, it is well within the frame work of law and the record. all the basic elements as required to pass such order is clearly borne out from the record itself.anoop v. mohta, j.1. heard finally by consent of the parties. since the issues involved in all these petitions are common, the same are being disposed of by this common judgment.2. the petitioners being aggrieved by the order of appointment of receiver on applications filed by the respondents-society initially granted by a common order dated 10.12.2008 by the cooperative court, mumbai in disputes filed by the respondents-societies praying for damages, as well as, an interim injunction including an appointment of receiver against the petitioners/opponents in the said disputes.3. the maharashtra cooperative appellate court, mumbai has also maintained the said order by a common order dated 07.03.2009 and thereby dismissed the appeals filed by the petitioners.4. admittedly, as the requisite members, i.e. 70%, were available at the relevant time and after due amalgamation of two societies i.e. k-3 and k-4 and as they decided to redevelop the entire property of both the societies for larger benefits to members and as the buildings were in a dilapidated condition and required to be demolished, based upon various resolutions, resolved to demolish the existing building and decided to construct the new buildings by carrying out development on the said plot, the agreements for developments dated 25.07.2005 and 12.01.2006 have been entered into between the two societies and as respondent no. 2 has been appointed as developer to develop the entire society's properties and as the agreement has been confirmed under the deed of confirmation for development dated 03.03.2007 by respondent no. 1-society and as respondent no. 2 has been proceeding with the redevelopment work, after due registration of respondent no. 1-society, as the development of the plot/property in question is in progress since then.5. the concerned respondent, pursuance to the agreement has spent huge amount of about more than rs. 3 crores (rupees three crores). out of 80 members, 54 members have already vacated their respective premises. the concerned respondent paid rs. 1 lac (rupees one lac) to each member and has been paying rent for their occupation at other place at the rate of rs. 8,000/- per month apart from huge money on the construction of development of plot in question, based upon the approved plan and i.o.d. as amended from time to time.6. the petitioners dispute with regard to the various resolutions about appointment of the builder including their challenge to the basic amalgamation as well as the requisite 70% is still pending. under the scheme of development control regulation for greater mumbai, 1991, the cooperative housing society/developer, if have obtained no objection certificate (noc) from the mhada/mumbai board, thereby sanctioning additional balance fsi with a consent of 70% of its members and where such noc holder has made provision for alternative accommodation in the proposed building (including transit accommodation) then it shall be obligatory for all the occupiers/members to participate in the redevelopment scheme and vacate the 3existing tenement for the purpose of redevelopment. it is also provided that in case of failure to vacate the existing tenement for the purpose of redevelopment, an appropriate proceedings can be initiated for the purpose of getting tenements vacated from the non-cooperative members.7. merely because there are disputes or challenges pending as raised by the petitioners and such other members, that itself cannot be the reason to stop the progress of the development which is at advance stage. the requisite members/percentage, available at the relevant time and by following due procedure of law, based upon the same, the parties proceeded further and now the development is at advance stage, the grievances, even if any of the persons like the petitioners, unless adjudicated finally, the progress just cannot be halted at the instance of such persons.8. in such circumstances, there are always objections and disputes by remaining 30% members or less against such scheme which, in my view, unless decided finally, cannot be the reason to halt the advance development of the project, as it involves huge money which are already spent and as majority of the members have already acted upon the said agreements and are enjoying the benefits out of the same.9. in the present cases,as noted and observed by both the courts, this court in other writ petitions had occasion to consider the similar/identical grievances raised against the concerned respondents. in writ petition no. 5540/2007 in para 5, this court by its order dated 27th september, 2007 has observed as under:5. ...selection of developer and entering into a contract with the developer does not depend upon the whims of one or two members. the respondent no. 2 has been appointed as a developer by the society, and said action has been approved by the general body. thus the appointment of respondent no. 2 as a developer, prima facie appears to be legal, and at any rate, cannot be flouted at this stage.again in writ petition no. 3783/2008, this court by its order dated 6.08.2008 has observed in para 11, the relevant portion of which is as under:11....petitioner cannot make any grievance regarding validity of the order amalgamating the two societies as well as, development agreement entered into by k-3 and k-4 societies and subsequent deed of confirmation executed by the respondent no. 1 society, especially when, the majority members have consented for development agreement. at this stage, it is also worth to mention that way back in 2006 mhada declared both the buildings i.e. k-3 and k-4, as unfit for the habitation. it is also not disputed by ld. counsel for the petitioner that k-4 building has already been demolished. in the set of facts and circumstances of both cases, in my opinion, the redevelopment work cannot be stalled at the instance of the petitioner.10. now, merely because in the disputes filed by the respondent-society, claimed damages against the petitioners for creating obstruction in the project and as prayer are made for injunction/appointment of receiver, the learned courts below, in view of the background referred above, granted an order of appointment of receiver which, in my view, cannot be said to be perverse or without any basis. on the contrary, considering the scheme and purpose as referred above, it is well within the frame work of law and the record. the submission that such dispute itself is not maintainable for damages including such application for receiver as granted in the present facts and circumstances of the case is not correct or at least that cannot be the reason to interfere with the orders passed by the courts below at this stage of the matter.11. sofar as the subsequent amendment to the i.o.c. or entitlement of their area as per their agreement or otherwise is always a matter which can be decided or adjudicated by the society/developer by resolving the problems, if any. all the valid members are entitled to get resolved such disputes even of area or their entitlement as per the scheme or as per the rule. but, if such members instead of submitting to the scheme want to create hurdle or want to obstruct the proceedings/redevelopment of the project in question, at their instance on that ground also such projects just cannot be halted.12. the legitimate members, the builders and the societies as recorded above can resolve the internal dispute with regard to the properties construction area, if any or such other issues on that ground also, i am not inclined to interfere with the order as passed by the courts below.13. i am not considering at this stage basically the maintainability of the suit or the main relief as claimed in the pending suits/the disputes. considering the facts and circumstances, the order appointing the receiver to take possession is only for temporary displacement, there is no dispute about the ownership of the property and the object and purpose of requirement of vacant possession of land. even the temporary accommodation would be provided to the petitioners. it needs to be provided as per the scheme itself. such members will be put back in possession in the new building as per the scheme.14. admittedly, the petitioners are not at present ready to vacate the premises which is definitely affecting the further development of the scheme. in this background i am also of the view that there is sufficient case made out by the concerned respondents for appointment of receiver and order as passed in the present cases. all the basic elements as required to pass such order is clearly borne out from the record itself. the peculiarity of the scheme read with the circumstances including the requirement of the vacant land further supports the grant of such order.15. the petitioners are not willing to give any security to support any interim order or injunction order, if passed by this court stopping the progress of the project, as, admittedly, the concerned respondents have already spent more than rs. 3 crores (rupees three crores) for the project and they are regularly paying the considerable amount to all members who have already shifted for their occupation/rent charges.16. taking all this into account, in my view, it is in the interest of all the parties that such project should be completed as early as possible so that all the members who have already shifted pursuant to the scheme will be in a position to use and utilise redeveloped property.17. resultantly, all these writ petitions are dismissed. no costs.18. the learned counsel for the petitioners seek stay of this order for four weeks from today. considering the reasoning given above, i am not inclined to grant any further protection in this regard.19. however, a statement is made by the learned counsel for respondents 1 and 2 that they shall not take any action pursuance to the impugned order without giving at least two weeks notice to the petitioners. this, according to me, suffice to protect the present position of the petitioners, if any.
Judgment:Anoop V. Mohta, J.
1. Heard finally by consent of the parties. Since the issues involved in all these petitions are common, the same are being disposed of by this common judgment.
2. The petitioners being aggrieved by the Order of appointment of Receiver on Applications filed by the respondents-society initially granted by a common order dated 10.12.2008 by the Cooperative Court, Mumbai in Disputes filed by the respondents-societies praying for damages, as well as, an interim injunction including an appointment of Receiver against the petitioners/opponents in the said Disputes.
3. The Maharashtra Cooperative Appellate Court, Mumbai has also maintained the said order by a common order dated 07.03.2009 and thereby dismissed the Appeals filed by the petitioners.
4. Admittedly, as the requisite members, i.e. 70%, were available at the relevant time and after due amalgamation of two societies i.e. K-3 and K-4 and as they decided to redevelop the entire property of both the societies for larger benefits to members and as the buildings were in a dilapidated condition and required to be demolished, based upon various Resolutions, resolved to demolish the existing building and decided to construct the new buildings by carrying out development on the said plot, the Agreements for Developments dated 25.07.2005 and 12.01.2006 have been entered into between the two societies and as respondent No. 2 has been appointed as Developer to develop the entire society's properties and as the Agreement has been confirmed under the Deed of Confirmation for Development dated 03.03.2007 by respondent No. 1-society and as respondent No. 2 has been proceeding with the redevelopment work, after due registration of respondent No. 1-society, as the development of the plot/property in question is in progress since then.
5. The concerned respondent, pursuance to the Agreement has spent huge amount of about more than Rs. 3 crores (Rupees three crores). Out of 80 members, 54 members have already vacated their respective premises. The concerned respondent paid Rs. 1 lac (Rupees one lac) to each member and has been paying rent for their occupation at other place at the rate of Rs. 8,000/- per month apart from huge money on the construction of development of plot in question, based upon the approved Plan and I.O.D. as amended from time to time.
6. The petitioners dispute with regard to the various Resolutions about appointment of the builder including their challenge to the basic amalgamation as well as the requisite 70% is still pending. Under the Scheme of Development Control Regulation for Greater Mumbai, 1991, the Cooperative Housing Society/Developer, if have obtained No Objection Certificate (NOC) from the MHADA/Mumbai Board, thereby sanctioning additional balance FSI with a consent of 70% of its members and where such NOC holder has made provision for alternative accommodation in the proposed building (including transit accommodation) then it shall be obligatory for all the occupiers/members to participate in the Redevelopment Scheme and vacate the 3existing tenement for the purpose of redevelopment. It is also provided that in case of failure to vacate the existing tenement for the purpose of redevelopment, an appropriate proceedings can be initiated for the purpose of getting tenements vacated from the non-cooperative members.
7. Merely because there are disputes or challenges pending as raised by the petitioners and such other members, that itself cannot be the reason to stop the progress of the development which is at advance stage. The requisite members/percentage, available at the relevant time and by following due procedure of law, based upon the same, the parties proceeded further and now the development is at advance stage, the grievances, even if any of the persons like the petitioners, unless adjudicated finally, the progress just cannot be halted at the instance of such persons.
8. In such circumstances, there are always objections and disputes by remaining 30% members or less against such Scheme which, in my view, unless decided finally, cannot be the reason to halt the advance development of the project, as it involves huge money which are already spent and as majority of the members have already acted upon the said Agreements and are enjoying the benefits out of the same.
9. In the present cases,as noted and observed by both the Courts, this Court in other Writ Petitions had occasion to consider the similar/identical grievances raised against the concerned respondents. In Writ Petition No. 5540/2007 in para 5, this Court by its Order dated 27th September, 2007 has observed as under:
5. ...Selection of developer and entering into a contract with the developer does not depend upon the whims of one or two members. The respondent No. 2 has been appointed as a developer by the society, and said action has been approved by the General Body. Thus the appointment of respondent No. 2 as a developer, prima facie appears to be legal, and at any rate, cannot be flouted at this stage.
Again in Writ Petition No. 3783/2008, this Court by its order dated 6.08.2008 has observed in para 11, the relevant portion of which is as under:
11....Petitioner cannot make any grievance regarding validity of the order amalgamating the two societies as well as, development agreement entered into by K-3 and K-4 societies and subsequent deed of confirmation executed by the respondent No. 1 society, especially when, the majority members have consented for development agreement. At this stage, it is also worth to mention that way back in 2006 MHADA declared both the buildings i.e. K-3 and K-4, as unfit for the habitation. It is also not disputed by ld. counsel for the petitioner that K-4 building has already been demolished. In the set of facts and circumstances of both cases, in my opinion, the redevelopment work cannot be stalled at the instance of the petitioner.
10. Now, merely because in the Disputes filed by the respondent-society, claimed damages against the petitioners for creating obstruction in the Project and as prayer are made for injunction/appointment of Receiver, the learned Courts below, in view of the background referred above, granted an Order of appointment of Receiver which, in my view, cannot be said to be perverse or without any basis. On the contrary, considering the Scheme and purpose as referred above, it is well within the frame work of law and the record. The submission that such Dispute itself is not maintainable for damages including such application for Receiver as granted in the present facts and circumstances of the case is not correct or at least that cannot be the reason to interfere with the orders passed by the Courts below at this stage of the matter.
11. Sofar as the subsequent amendment to the I.O.C. or entitlement of their area as per their Agreement or otherwise is always a matter which can be decided or adjudicated by the society/developer by resolving the problems, if any. All the valid members are entitled to get resolved such Disputes even of area or their entitlement as per the Scheme or as per the Rule. But, if such members instead of submitting to the Scheme want to create hurdle or want to obstruct the proceedings/redevelopment of the Project in question, at their instance on that ground also such Projects just cannot be halted.
12. The legitimate members, the builders and the societies as recorded above can resolve the internal dispute with regard to the properties construction area, if any or such other issues on that ground also, I am not inclined to interfere with the order as passed by the Courts below.
13. I am not considering at this stage basically the maintainability of the Suit or the main relief as claimed in the pending Suits/the Disputes. Considering the facts and circumstances, the order appointing the Receiver to take possession is only for temporary displacement, there is no dispute about the ownership of the property and the object and purpose of requirement of vacant possession of land. Even the temporary accommodation would be provided to the Petitioners. It needs to be provided as per the Scheme itself. Such members will be put back in possession in the new building as per the Scheme.
14. Admittedly, the petitioners are not at present ready to vacate the premises which is definitely affecting the further development of the Scheme. In this background I am also of the view that there is sufficient case made out by the concerned respondents for appointment of Receiver and Order as passed in the present cases. All the basic elements as required to pass such order is clearly borne out from the record itself. The peculiarity of the Scheme read with the circumstances including the requirement of the vacant land further supports the grant of such order.
15. The petitioners are not willing to give any security to support any interim order or injunction order, if passed by this Court stopping the progress of the Project, as, admittedly, the concerned respondents have already spent more than Rs. 3 crores (Rupees three crores) for the Project and they are regularly paying the considerable amount to all members who have already shifted for their occupation/rent charges.
16. Taking all this into account, in my view, it is in the interest of all the parties that such Project should be completed as early as possible so that all the members who have already shifted pursuant to the Scheme will be in a position to use and utilise redeveloped property.
17. Resultantly, all these writ petitions are dismissed. No costs.
18. The learned Counsel for the petitioners seek stay of this order for four weeks from today. Considering the reasoning given above, I am not inclined to grant any further protection in this regard.
19. However, a statement is made by the learned Counsel for respondents 1 and 2 that they shall not take any action pursuance to the impugned order without giving at least two weeks notice to the petitioners. This, according to me, suffice to protect the present position of the petitioners, if any.