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IN THE HIGH COURT OF JUDICATURE AT BOMB AY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 10285 OF 2009 Harsha Coop. Housing Society Ltd. & Ors. .. Vs. Kishandas S. Rajpal & Ors.

)

.. Petitioners

)

.. Respondents

Mr. A. S. S. Murthy i/b Mr. A. P. Steenson i/b A. P. Steenson & Associates for the Petitioners. Mr. N. N. Bhadarshete for Respondent Nos.1 & 2. Mr. R. M. Patne AGP for Respondent No.3. CORAM: MRS. R. S. DALVI, J. DATE : 8th March, 2010. P.C. 1.

The petitioners are the cooperative society, several of its and the developers of the society premises. The respondents are father and son who constitute one member of the society (respondent). The society ed a resolution for development of its premises on 26.08.2008.

This

resolution

came

to

be

ed

pursuant

notice of that meeting given on 20.08.2008 which inturncameto begive n in view of letter signed by 7 out of 122 of the society setting

out

8

issues

relating

to

proper

functioning

of

the society which was required to be attended by the Chairman.

2

One of the matters on the Agenda of the Meeting

mentioned

in

the

notice

of

themeetingwasthe“repairrequest all the ”.This was inter alia discussed atthe meeting.The resolution of the society shows that the Society building was in dilapidated condition and “beyondrepairs”.The tookadecisionforthe“redevelopmentofthesocietybuilding”.Inth esaidmeetingthediscussed various offers ofvariousdevelopers and builders such as Mohini Sheltors,Mayfair, Sheth,CapitalSquare,RadhakishanConstruction.

The



discussed various offers and directed the committee to investigate

about

developers and take steps for redevelopment of the society.

ADV. VINOD SAMPAT 99876 22225 / 93240 38095

shortlisted

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3. It was contended by the respondent that ingof such a resolut ion is illegal because under bye law No.97 the Special General Body Meeting

could

not

transact

any

business

other than what was mentioned in the notice ofthe meeting. 4.

A dispute therefore came to be filed for declaration that the resolution was illegal and for grant ofinjunction restraining the society f rom acting upon it.TheinjunctionwasrefusedbytheCooperativeCourtandgranted by the Cooperative Appellate

Court,

Mumbai. 5. It is contended on behalf of the respondents thatsincetheagenda was“repair”ofthebuildingpremises,“redevelopment” of the premises an d granting the contractto Mohini Sheltors as developers of the society building wasoutside the purview of the byelaw No.97. 6. A reading of the letters received by the ManagingCommittee sett ing out the issues to be discussed, the noticeof the meeting for that pu rpose and the actual meeting heldto discuss the issues which inter alia was the repair of thesocietypremisescannotshowthatthedecisionofthem embers upon deliberation of the meeting that the societypremises was beyond repairs and must be redeveloped afterinvestigation oftheshortli sted developers is outsidethepurview of the byelaw No.97. 7. Foreachofthespecificstepstobetakeninultimatelydecidingtherepairs/red evelopmentofthesocietybuildingandpremises,separatemattersontheage nda need not be shown and separate meetings need notbe held. 8.

The petitioner society is a small housing society consisting of 12 .11 outof those haveconsistentlyag reedforredevelopmentsincethemeetingheldon26.08.2008. Inthatmeetingtheyrequiredtheinvestigation of the shortlisted developer s only.Pursuantto the wishes of the , are short listed develope r wasdeemed fit to develop the society building.

ADV. VINOD SAMPAT 99876 22225 / 93240 38095

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9. Itisnotdisputedthatthesocietybuildingpremises is dilapidated.Yet t he respondents did not agreewiththeredevelopmentofthesocietypremis esbytheShortlisteddeveloper.That,ofcourse,washisprivilegeand choice. However, since he was in an absolute minority,the wishes of the societ y in an absolute majoritywas required to be exceeded to. 10. Itis argued on his behalfthatby GovernmentNotification issued un der Section 79A of the MaharashtraCooperative Societies Act(the Act), a ed architecton the of the Government was to be selecte d and theprocedure as shown therein required to be complied whichis not done and which vitiated decision of the society. 11. The reliance upon the Government Notificationis itself misplaced. When the of the cooperativehousing society which, under la w of cooperation, decidesby a majorityof 11:1 that the societ y premises bedeveloped in a particular fashion by a particular develop er,it would be contrary to principles ofdemocracy by whichthe society i s governed, for the sole dissenting member tointerfereandrequireaproc edure,notrequiredbythemajority of the to be followed which would onlyconsumetimeandbecounterproductive.TheGovernment Reso lution would be required to be followedby the society where the memb ers are unable to come toany decision by a resolution of their own. 12. Thepetitioners’ societyhavingbeen injunctedfromcarryingoutthew ishesofitsfortheredevelopmentofits societyby theimpugned inj unctionorder sought to hold a fresh election for its new managingcom mittee.The new committee came to be appointed by afresh election on 25.09.2009.The new managing committeegave a new notice to hold a Special General Meeting of thesocietyon 30.10.2009.Therespondentwa s given notice. at that meeting agreed with the earlier decisio n. Consequentlytheimpugnedorderbecameinfructuous.Nevertheless the i mpugned order is challenged.13. The respondent as a member would have a righttoappearatthemeeting .

ADV. VINOD SAMPAT 99876 22225 / 93240 38095

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Consequentlythoughitwasstated that he was given notice of the meetin g but failed toappear, the Court directed the society and all the membe rsonceagainmeetandconsidertheaspectoftheredevelopment of the soci ety premises on 7thMarch, 2010.ItwasmentionedtotheCourtthattheresp ondenthadthree other offers which were far superior and hence it wasc onsidered in the fitness of things to reconsider of all theseoffers togeth er. 14.

Thesocietymeetinghasbeenheldyesterday.The respondent as well as ot her have attended.Four offers including the offer of Mohini S heltors together

withcertainamendmentshavebeenconsidered.

Therespondents haveproduced acolumnarstatementof thefour offers. 15. It is contended on behalf of the respondent that,alookatthecolum narstatementshowsthatallof

the

respondent’sthreeoffersarebetterthanthatof Mohini Sheltors. 16.

The columnar statement shows that all the three offered

to

construct

only

developers the

have

residential

premises of the society whereas Mohini Sheltors has offered to construct commercial and residential premises. It need hardly be stated that the commercial premises on the ground floor of the building would itself enure for the benefit of the . 17.

The

absolute

advantage

shown

by

way

of

absolute figure is in clause 8 of the columnar statement in which one of the offers of the respondent shows the corpus which will be

created

at

the

rate

of

7,500

per

square foot ofthe carpet area of the .Advocate on behalf of th erespondentmentioned thatthe respondentwould obtainRs.23.33lacsan dtheentiresocietywouldobtainRs.2.80

crores by that offer.

To see the bonafides of the offer, the

respondent was directed

to call upon his offerer to deposit Rs.2.80 crores in the Court. Advocate on behalf of the respondent stated that no such deposit can be made. 18.

The other aspects ofthe offer in the columnar statement show percentage

amount which are not tangible

to reconsider.

ADV. VINOD SAMPAT 99876 22225 / 93240 38095

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19. Thehavedecidedonceagainbyamajority of 10:2 to confir m the offer of Mohini Sheltors.TheCourt is not, therefore, required to in terfere with the wishesof the majority of the .The d o not seek to act upon the resolution ed in the meeting dated 26.08.2008.

The

impugned

order

has

become

infructuous.

The injunction granted under impugned order is set aside.The haveresolvedtoredeveloptheirsocietybuilding remises.The Courtcannoti nterfere with suchresolution.The Writ Petition is disposed of with above clarification as

the

impugned

order is

the

infructuous. The

columnar statement tendered by the respondent is taken on record.

(R. S. DALVI, J)

ADV. VINOD SAMPAT 99876 22225 / 93240 38095