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Date : 10/07/2024

(2023) 06 BOM CK 0050

In the Bombay High Court
Case No : Writ Petition (L) No.8823 Of 2023, Interim Application (L) No.16143 Of
2023

Nutan Jaibharat Co-Operative Housing APPELLANT

Society Limited
Vs
State Of Maharashtra And Others RESPONDENT

Date of Decision : 23-06-2023

Acts Referred:
Maharashtra Co-Operative Societies Act, 1960 — Section 79A, 91
Citation : (2023) 06 BOM CK 0050
Hon'ble Judges : Milind N. Jadhav, J
Bench : Single Bench
Advocate : Vishal Kanade, Paurusha Narvekar, Kavita Narvekar, Atul Joshi, Vinay
Rane, Uma Palsuledesai, Geroge Thomas
Final Decision : Disposed Of

Judgement
Milind N. Jadhav, J
1. Heard finally by consent of parties.
2. Petition takes exception to order dated 18.03.2023 passed by the Co-operative
Court in dispute Application No.CC/III/118/2023 (for short ‘dispute’) filed by
Respondent Nos.2 and 3 under the provisions of Section 91 of the Maharashtra Co-
operative Societies Act, 1960 (for short ‘MCS Act’).
3. Petitioner is a Co-operative Housing Society having 47 members. Respondent
Nos.2 and 3 are members of the Society residing in flat Nos.10 and 16 therein.
Admittedly, Society building is more than 70 years old and dilapidated. Petitioner
Society is the owner of the plot land on which the Society building is standing.
4. Following facts are relevant for the purpose of adjudication of the present Writ
Petition.
(i) In 2017, Petitioner – Society decided to go for the redevelopment. In the
General Body Meeting held on 05.02.2017, members of the Society decided and
passed the resolution in that respect. Project Management Consultant (for short
‘PMC’) was appointed after following the due process of law. Sometime in August,
2017 pursuant to General Body resolution, PMC floated a tender by public notice
and invited offers for redevelopment. Initially three developers purchased the
tender documents. None of them submitted an offer. By a Special General Body
resolution dated 15.12.2019 time to submit the offer was extended by the Society.
Pursuant to which one Developer – M/s. Arcadia Developers Private Limited
purchased the tender document and submitted its offer dated 01.02.2020 alongwith
the requisite earnest money for redevelopment.
(ii) Society reviewed the offer in its General Body Meeting dated 27.03.2021 and
pursuant to discussions held with the Developer who attended the said General
Body Meeting, submitted a revised offer on 03.04.2021.
(iii) On 07.05.2021, Society addressed a letter to the Deputy Registrar G/S Ward,
Co-operative Societies requesting appointment of an authorized Officer to attend
the Special General Body Meeting in relation to redevelopment. Deputy Registrar
vide letter dated 24.06.2021 appointed Mr. Sunil Marbhal as the authorized Officer
to attend and conduct the meeting as per the procedure laid down. Special General
Body Meeting was held on 19.07.2021 in the presence of the authorized Officer and
the Special General Body accepted the final revised redevelopment offer dated
03.04.2021 in that meeting. In that meeting 32 members were present. Two
members out of the 32 members present objected whereas 30 members consented
for redevelopment and accepted the revised redevelopment offer. It needs to be
noted that Respondents Nos.2 and 3 are disputants in the Co-operative Court
resulting in the impugned order did not attend this General Body Meeting held on
19.07.2021.
(iv) Resolution passed by the General Body was placed before the Deputy
Registrar, Co-operative Societies who accorded his no objection for appointment of
the Developer vide letter dated 09.08.2021. Thus procedure prescribed under
Section 79A was followed.
(v) Society addressed Letter Of Intent (for short ‘LOI’) dated 25.08.2021
appointing the Developer to redevelop the Society property together with rights to
commercially exploit FSI to the extent of 3.00 plus fungible FSI thereon under
DCPR 33(7)(B). On 27.08.2021, the Developer accepted the LOI.
(vi) Society thereafter held several meetings and discussions with the PMC, the
Developer and its Advocates for preparation of the draft Development Agreement
and the Power of Attorney. After finalizing the drafts, the said drafts were
circulated to all the members for their record and perusal including Respondent
Nos.2 and 3, vide circular dated 03.03.2023. On 08.03.2023, Society called for a
Special General Body Meeting to be held on 19.03.2023 to consider and approve
the draft Development Agreement and Power of Attorney.
(vii) Respondent Nos.2 and 3 challenged the notice dated 08.03.2023 calling for the
Special General Body Meeting on 19.03.2023 by raising a dispute, inter alia,
alleging that suggestions given by them were not responded to by the Society. It is
Respondent Nos.2 and 3’s case that suggestions were contained in the letter dated
10.03.2023. There were other letters addressed by Respondent No.2 also.
 (viii) In the dispute Application filed by Respondent Nos.2 and 3, Petitioner –
Society raised a preliminary objection on maintainability stating that in view of the
settled law as laid down by this Court in the case of Mohinder Kaur Kochar V/s
Mayfair Housing Private Ltd. and Ors. AIR 2013 Bom 57 the Co-operative Court did
not have jurisdiction to deal with disputes relating to redevelopment which do not
pertain to the business of the Society.
(ix) On 19.03.2023, Special General Body Meeting was convened on which date
Respondent Nos.2 and 3 and one other member created a ruckus by taking law
into their hands, disturbing the decorum and did not allow the proceedings of the
meeting to carry out. Conduct of these Respondents is recorded in the minutes of
the meeting. In view of the impugned order, Respondent Nos.2 and 3 did not allow
the proceedings of the Special General Body Meeting to be held on 19.03.2023
despite the impugned order having categorically directed the Society to hold the
meeting with directions but had restricted it from taking any policy decisions.
(x) Hence, the present petition.
5. At this juncture, it would be pertinent to reproduce the operative part of the
impugned order dated 18.03.2023 which reads thus:-
“1. The application is partly allowed.
2. The opponent society is hereby restrained form finalizing development
agreement without taking into consideration all the suggestions made by the
disputants (as per suggestions mentioned in the letter dated 10/03/2023) or from
taking any policy decision in meeting to be held on 19/03/2023 at 2.00 pm.
3. The opponent society is hereby directed to supply the documents sought by the
disputants from the society as per letter dated 26/02/2023 within 7 days.
4. The opponent society is at liberty to conduct SGBM on 19/03/2023 as scheduled.
5. The ad-interim injunction granted till next date.”
6. Mr. Kanade, learned Advocate appearing for the Petitioner - Society would
submit that the impugned order has been passed at the behest of two members
(Respondent Nos.2 and 3) of the Society completely overlooking the fact that the
Society has followed the due process of law since 2017 for redevelopment and
most importantly the notice dated 08.03.2023 calling for the Special General Body
Meeting on 19.03.2023 having stated that it was called to “consider” the draft
Development Agreement and the draft Power of Attorney. He would submit that
findings in the impugned order are completely aggravated and hold that Petitioner
– Society has passed resolutions which are allegedly arbitrary and illegal. He would
submit that facts in the present case would show that redevelopment of the Society
commenced since the year – 2017 strictly in accordance with the due process of
law as contemplated by the provisions of the said Act. He would submit that by
virtue of the impugned order, redevelopment of the Society building has been
stalled and restricted at the behest of two members (Respondent Nos.2 and 3) who
are not even dissenting members, but members who have consented for
redevelopment but have made suggestions which are required to be considered by
the General Body in the General Body Meeting. If that be so, the impugned order is
ex-facie illegal and unsustainable. Next he would submit that the impugned order
returns a finding that Petitioner – Society did not file its written statement or reply
to place its objections to the dispute Application. He would submit that it further
holds that the Petitioner – Society did not file its Application under Order VII Rule
11 of the Civil Procedure Code (for short 'CPC') who had raised the objection of
jurisdiction. In this regard he would submit that Petitioner – Society received notice
of the proceedings before the Co-operative Court on 16.03.2023 at 07.45 p.m..
That 17.03.2023 was the only available working day (Friday) and the impugned
order was passed on 18.03.2023 (Saturday). He would submit that objections
raised by the Society to the principal grievance of the disputants is supported by
documentary evidence but most importantly the objection on jurisdiction ought to
have been considered by the learned Co-operative Court once raised and in that
view of the matter, the impugned order passed below Exhibit-5 ought not to have
been passed since a jurisdictional issue was raised by the Petitioner – Society. Next
he would submit that apart from the fact that the impugned order is passed without
jurisdiction, even on merits the disputants (Respondent Nos.2 and 3) being in a
miniscule minority, on their own showing that they are not averse to
redevelopment cannot stall redevelopment. He would submit that the General
Body of the Petitioner – Society was to consider suggestions given by all members
in respect of the drafts circulated to all members, deliberate and discuss the same
and follow the due process of law. However, by virtue of the impugned order a
direct mandate has been given in the said order to the Petitioner to consider all
suggestions given by the disputants which is not only perverse but illegal. By virtue
of the impugned order he would submit that there is an embargo and restraint on
the Petitioner - Society from finalizing the Development Agreement without taking
into consideration the suggestions of the disputants. He would submit that the
impugned order does not stop here but further directs that unless and until the
Society takes into consideration objections of the disputants no policy decision can
be taken by the Society in its General Body Meeting. He would submit that the
impugned order thus is not only contrary to law but manifestly illegal and
arbitrary. He has urged the Court to take into account the fact that the Petitioner –
Society is not averse to consider suggestions of the disputants or for the that
matter any other member of the Society and would be happy to place the same in
the General Body for the General Body to decide after scrutinising them on the
basis of feasibility and viability, but the impugned order mandatorily directs the
Society to consider the suggestions of Respondent Nos.2 and 3 and restrains the
Society from finalizing the redevelopment Agreement without taking them into
consideration even if they are manifestly unreasonable, erroneous, illegal and
arbitrary. He would submit that the effect of such an order is that unless and until
all suggestions (whether reasonable or unreasonable) made by disputants are
considered, the Society is restrained from finalizing the Development Agreement
or taking any policy decision. He would thus submit that the impugned order
jeopardizes the rights of the majority members of the Society at the instance of the
two disputants and has caused tremendous prejudice to all members of the
Society. He has therefore urged that the impugned order deserves to be quashed
and set aside.
7. PER-CONTRA, Mr. Joshi, learned Advocate appearing for the Respondent Nos.2
and 3 – disputants before the Co-operative Court would submit that the impugned
order is appellable before the Co-operative appellate Court and without exercising
the right of appeal the Petitioner – Society cannot invoke the extraordinary
jurisdiction of this Court. He would submit that the conduct of the Petitioner –
Society and more specifically the Managing Committee of the Society is such that it
has violated the provisions of Section 79A of the said Act. On being specifically
asked as to what is the violation, he would submit that the Managing Committee
has overlooked the fact that the Developer appointed by the Society does not have
a sound financial capacity. Next he would submit that the Managing Committee has
not taken into confidence all members of the Society and the steps which are taken
by the Managing Committee are as per the Maharashtra Ownership of Flats Act (for
short ‘MOFA’) and not under Real Estate Regulatory Authority (for short ‘RERA’)
which is the norm for redevelopment as on date. On being asked to make good this
submission, Mr. Joshi is unable to give a reasoned answer. Next he would submit
that the Petitioner – Society has failed to provide necessary documents to the
disputants and there is no transparency in the Development Agreement as only
one Developer has given the offer and he was the one who was selected by the
Managing Committee. He would further submit that time of finalizing the offer of
the present Developer and the appropriate prescribed procedure is not followed.
Once again on being asked to inform the Court as to which prescribed procedure
was not followed, Mr. Joshi is unable to give any cogent reply. He would next
submit that all suggestions and opinions expressed by members of the Society are
to be considered in the meeting and only thereafter finalization of the Development
Agreement ought to take place. He would submit that a number of members have
given suggestions in writing but the Petitioner – Society has not disclosed or
discussed the same and the Managing Committee has allotted the permanent
alternate accommodation at their whims and fancies. He would submit that no
draw has taken place while some members are allotted larger area in the
developed building whereas the Respondent No.2 is discriminated. Next he would
submit that the Petitioner – Society has not supplied all documents but only very
few documents in respect of the redevelopment process, that the revised plan
submitted by the Developer is not circulated to the members. He would however
fairly submit that certain norms required under Section 79A under the Act relating
to solvency Certificate, bank guarantee are not being considered and in that view
of the matter, it is incumbent upon the Petitioner – Society to consider the
suggestions in the larger interest of all Society members. He would therefore
submit that this Court be pleased to uphold the impugned order.
8. The learned AGP appears for Respondent No.1 and would submit that
considering the facts and circumstances of the present case this Court be pleased
to pass appropriate directions and order in the present Petition in so far as the
impugned order is concerned.
9. I have heard Mr. Kanade, learned Advocate appearing for the Petitioner –
Society, Mr. Joshi, learned Advocate appearing for the disputants – Respondent
Nos. 2 and 3, and Mrs. Palsuledesai, the learned AGP appearing for the State and
with their able assistance perused the pleadings in the present case. I have also
heard Mr. Thomas, learned Advocate for the Intervenors to whom I will revert
later.
10. At the outset, it is seen that it is an admitted position that the disputants
(Respondent Nos.2 and 3) have through their Advocate Mr. Joshi submitted that
they are not averse to redevelopment and not against redevelopment. All that the
disputants want is that their suggestions be considered. It is pertinent to note that
all valid and reasonable suggestions from Society members are indeed required to
be considered. The notice dated 08.03.2023 in the agenda item no.2 records as
under:-
“2) To consider and approve the Draft Development Agreement between the
Developer M/s Arcadia Developers Pvt. Ltd; and M/s Nutan Jai Bharat CHS Ltd;
which has been already circulated to all the members vide the circular dated 3rd
March 2023 and to pass all the relevant resolutions for the redevlopment project of
our society.”
11. Perusal of the above agenda item reveals that the General Body of the Society
is to consider and approve the draft Development Agreement. It further records
that the General Body shall pass all relevant resolutions for the redevelopment of
the Society. The timeline which is alluded to in the earlier part of the judgment
hereinabove would clearly show that redevelopment process of the Society building
commenced in February, 2017. At every stage between 05.02.2017 and
27.08.2021 steps taken by the Petitioner – Society are found to be in consonance
with the provisions of the said Act. It is extremely pertinent to note that disputants
– Respondent Nos.2 and 3 have never taken any objection whatsoever to all such
steps taken by the Petitioner – Society during the aforesaid period. It is seen that
the approval dated 09.08.2021 has been granted by the Deputy Registrar strictly in
consonance with the provisions of the said Act. It is seen that out of 47 members
32 members were present and 30 out of the 32 members who were present have
in the presence of the authorized Officer of the Government approved the
appointment of the Developer. It is pertinent to note that Respondent Nos.2 and 3
- the disputants did not even bother to attend the General Body Meeting on
19.07.2021. Therefore it cannot lie in the mouth of the private Respondents to now
revisit and reset the clock back to 2021 and allege that the appointment of the
Developer is invalid due to allegations raised by them pertaining to the Developer’s
financial capacity. Nothing prevented the private Respondents from placing the
alleged objections at the then time which they conveniently did not do so nor even
register their presence at the General Body Meeting. Further allegations relating to
non compliance of the provisions of Section
79-A of the said Act alleged by the private Respondents deserve to be rejected
outrightly. Once the majority of the members of the Society present at the General
Body Meeting after following the due process of law have appointed the Developer
with an overwhelming majority of 93 % members present and consenting for
appointment of Developer, to raise an objection / allegation after almost two years
thereafter by two members of the Society out of the 47 members is wholly
impermissible and cannot be permitted. It can be gathered from the facts that the
disputants have raised the bogey of objections having not considered by the
Society in its General Body Meetings merely to harass the Society. This cannot be
permitted by the Court and more specifically in the manner in which the impugned
order has been passed.
12. It is further seen that the impugned order proceeds on the basis that unless
and until the suggestions given by the disputants as stated in their letter dated
10.03.2023 are taken into consideration the Society cannot proceed with finalising
the Development Agreement or take any policy decision without considering the
said suggestions. Such a direction by the Co-operative Court is contrary to public
policy and cannot be countenanced. Reasonability and feasibility of the alleged
suggestions given is the prerogative of the Society after scrutinising the same in
consonance with the law and facts of each case and to give such an omnibus
direction to consider all suggestions and take them into consideration and not take
any policy decision until then is high handed and arbitrary. It is pertinent to note
that since 2017 the Society has followed the due process of law. The findings
returned by the Co-operative Court that the opponent – Society has failed to
provide documentary evidence to show that the suggestions made by the
disputants are / were considered by the Opponent – Society and that the Opponent
– Society has not taken pain to consider the suggestion of the disputants is
perverse and illegal in the facts and circumstances of the present case. To answer
this question raised by the disputants it would be worthwhile to note the
suggestions given by the dissenting members to the Society for consideration. The
reason to embark on this exercise is only because the condition of the Society
building is extremely dilapidated. The Society building is 70 years old. Any further
delay would be detrimental to the interest of each and every member including the
disputants who are staying in the Society. The suggestions which are contained in
the letter dated 10.03.2023, prima facie, are seen to be considered in the
Development Agreement to a large extent, after due consultations. However,
some of the suggestions demanded by the disputants are far fetched and on the
face of record they would be impossible to be considered by the Developer for
undertaking redevelopment of the Society. Some of the suggestions made by the
disputants, inter alia, pertain to the discussion and deliberation which have taken
place over a period of two years since the appointment of the Developer. It is a
different thing that a member may want the maximum and the best of security for
himself and for all members but process of redevelopment would depend upon
balancing the interest of the existing members of the Society and the Developer
who is undertaking the redevelopment process. If the Society insists on
incorporating obligations which are unreasonable and not acceptable to the
Developer or conditions of payment or bank guarantee or any other financial
obligations which are onerous, then there is every chance that the development
will suffer or get protracted or the Developer will reject the proposal of the Society.
In this view of the matter, though suggestions can be given by the disputants /
members of the Society, it can never be insisted by the disputants who are in the
most miniscule minority in the present case to insist that their suggestions have to
be incorporated in the redevelopment Agreement. That decision is solely of the
General Body and no one else after the Managing Committee deliberates on the
feasibility of any suggestion and resovles to place it before the General Body. An
unreasonable suggestion shall never be acceptable to the Developer and therefore
scrutiny of the suggestions by the Managing Committee is very essential. It is seen
that if some of the suggestions put forth by the disputants in the letter dated
10.03.2023 are incorporated by the Society as per the impugned order, there is
every likelihood that the Developer will never agree to the same as they are
commercial decisions and depend on commercial viability. The draft Development
Agreement in the present case as seen has been arrived at after the appointment
of Developer in 2021 over a period of almost two years. Such is the case that the
suggestions made by the two disputants will not only set the clock back if the
Developer retreats but will be detrimental to the entire redevelopment process.
Nothing prevented the two disputants to raise their suggestions after appointment
of the Developer. There is not even a shred of correspondence on the part of the
disputants until the address of the letter dated 10.03.2023 given by them which is
in reply to the notice dated 08.03.2023. Undoubtedly as suggested by Mr. Kanade
the suggestions given by the members will be considered in the meeting of the
General Body. Every member of the Society has a right including the disputants to
raise their suggestions / objections. Ultimately it is the General Body which would
finally decide on the same. If there is variance and dispute on the suggestions
offered in the General Body, it shall follow the due process of law and put to vote
the resolutions relating to suggestions in the draft Development Agreement.
However to insist that every suggestion given by the disputants has to be
incorporated in the draft redevelopment Agreement is not only contrary to law but
contrary to the democratic process envisaged under the law of co- operation.
13. During the course of submissions Mr. Kanade has submitted and I record that
there is no discrimination whatsoever with respect to any favoritism or advantage
in respect of the Managing Committee members vis-a-vis other members. He
would submit that each and every member of the Society would be entitled to all
benefits at par with each other. The disputants in their pleadings have made bald
allegations on this issue. Such bald allegations cannot be permitted by the Court
and no cognizance of such allegations should ever be taken by any Court. It is seen
that pursuant to the impugned order the Petitioner – Society in the most
democratic manner conducted the meeting on 19.03.2023 as per the directions
contained in the impugned order, the minutes of which are at page Nos.482 to 485
of the Writ Petition. The disputants and one more member have created absolute
chaos in the said meeting despite the fact that the meeting was held as per the
agenda and also as per directions in the impugned order but still was not allowed
to be conducted in the democratic manner by the disputants and one another
member of the Society. It is seen that the Respondent No.2 has in that said
meeting repeatedly kept shouting on the mike that the Co-operative Court had
granted a stay on the said meeting. This has been recorded in the minutes of the
meeting, when there was no such stay. It is further seen that the said members
who resisted and committed chaos in the meeting were completely disinterested in
the meeting and were only interested in not allowing the meeting to take place
resultantly leading to a walk out not only by the other members present but also
the Developer. Perusal of the minutes of meeting dated 19.03.2023 and the
conduct of the disputants stated therein does not reveal a happy picture. It is
disgusting. After hearing their suggestions and Developer’s say on them, the
General Body could have put it to vote. But even that was not allowed by the
disputants despite repeated requests by the Committee. The costs of the entire
meeting held on 19.03.2023 should be recovered by the Society from the
disputants as it failed only because of their high handedness. Society shall be at
liberty to recover the costs by taking out appropriate proceedings against the
errant members as available to it in law.
14. Be that as it may, in view of above observations and findings the impugned
order is wholly unsustainable in law and deserves to be interfered with. The
impugned order is thus quashed and set aside.
15. Mr. Thomas, learned Advocate appearing for Intervenors in Interim Application
(L) No. 16143 of 2023 has impressed upon the Court that he appears for 12
Intervenors who are members of the Petitioner Society. The names of 12
Intervenors is given in the cause title of the Intervention Application. He would
submit that the re-development of the Society is for the benefit of all members
including Intervenors and therefore the Intervenors be heard and / or impleaded in
the present Petition.
16. I have heard Mr. Thomas and considered his submissions. He would submit
that the Intervenors have certain grievances which have not been addressed by
the Society before entering into or taking steps towards finalizing the Development
Agreement with the Developer.
17. At the outset, he would submit that the procedure laid down under Section 79A
of the said Act has not been followed in as much as the Developer has been
appointed on the basis of one single tender when at least three tenders are
required to be looked into. This submission of the Intervenors is rejected outrightly
since the procedure followed by the Society from 2017 as alluded to herein above
clearly shows the transparency which which the Society has appointed the
Developer and also having obtained the requisite no-objection from the Competent
Authority after authorisation by its General Body. Be that as it may, this objection
is unsustainable after a period of almost 6 years since the Society had begun the
process of redevelopment in the year 2017. The democratic process followed by
the Society is clearly documented and it was always open for the Intervenors to
convey their objections to the Society as also during the various General Body
Meetings held in a democratic manner for consideration. Decisions taken by the
Society have been implemented and have not been challenged by the Intervenors
till date and hence, in that view of the matter, this objection is dismissed.
18. Next Mr. Thomas would submit that prima facie, the Intervenors are not
pleased by the behaviour of the Petitioner Society and the Managing Committee
Members and their election and appointment has been challenged before the Co-
operative Court in the year 2022. Be that as it may, once again the said
proceedings will be decided on its own merits, but mere filing of the proceedings
cannot be a ground to stall redevelopment.
19. Next he would submit that as per the tender document, Developers had agreed
to give Rs. 17 Crore as bank guarantee whereas in the Development Agreement,
bank guarantee amount is reduced to Rs. 4 Crore. It needs to be stated at this
stage that the Development Agreement which is proposed to be executed has been
arrived at after negotiations and several rounds of discussions having been held
with the Developer which would obviously be in the interest of members of the
Society. However, this does not still preclude the Intervenors from placing their
objections before the Managing Committee and seeking appropriate response
thereto from the Managing Committee as well as the Developer in the General
Body Meeting which will also be attended by the Developer and the PMC at the
request of the Managing Committee of the Petitioner Society. After hearing
submissions of all sides in the General Body Meeting, it shall be open to the Society
to place any such issue for voting before the General Body for consideration
including the issue of bank of amount of guarantee. It needs to be stated that
furnishing bank guarantee amount is a commercial decision based upon several
considerations which require deliberations. Be that as it may, this objection of the
Intervenors shall be dealt with by the Society on its own merits and the same shall
be placed before the General Body Meeting for a vote on the same so as to
consider the same democratically if so raised. Any demand by members, once
again has to be tested on the grounds of reasonableness and viability. If the
majority members seek a humunguous amount of bank guarantee amount and if
that is not acceptable to the Developer, then there is likelihood of him withdrawing
and redevelopment may suffer. Hence, General Body will consider any such
resolution tabled before it and vote on it.
20. Next he would submit that the Developer has no financial capacity to construct
and complete the project and the Committee Members are not asking the
Developer to give the solvency certificate to the Society. Once again, if this
procedure is not followed and if it is a mandatory condition, it shall be open to the
Society to explain the same in the General Body Meeting and put the said issue to
vote and / or in the alternative the Intervenors can always approach the
competent authority with their grievance.
21. Next he would submit that in view of favours done to the Developers, the
Managing Committee Members would be getting three bedroom flats on the higher
floor in the prominent corner location facing Siddhivinayak Temple and the main
road in the proposed building whereas other members / occupants would be
getting much more less area than their legal entitlement according to DCPR 2034.
This objection is prima facie vague, insufficient, inadequate and a bald allegation.
Nevertheless the procedure for allotment of flat is concerned, it is clarified that the
same has to be strictly in accordance with law and the statute. If the Intervenors
have adequate details about they getting lesser area than the Managing
Committee Members, the details of the same shall be placed before the Managing
Committee so that effective explanation can be sought for in the General Body
Meeting for consideration of the General Body. At this juncture, I would like to
reiterate that Mr. Kanade, learned Advocate for the Society has clearly emphasized
that each member of the Society shall be getting area at par with all other
members and strictly according to their entitlement as per the Development
Agreement. In that view of the mater, this objection is unsustainable.
22. Next he would submit that the voices of the Intervenors have been silenced
despite raising objections time and again in the General Body Meetings. This again
is a general allegation. Needless to state that the Society functions on the basis of
a democratic character and on the basis of the majority wherein the minority is
always going to be unhappy. This does not mean that the voices of the minority
are silenced. Decision by a General Body on the basis of the majority decision by
the members would undoubtedly prevail over the minority decision. That is the
essence of the character of the democratic set up in the General Body. If every
member of the minority group aspires to have their say and rights to be considered
to the detriment of the majority, the same cannot be allowed. Development would
never ever take place in that case. Hence, whatever may be the objections /
suggestions of the Intervenors or for that matter, Respondent Nos. 2 and 3, the
same shall be informed to the Managing Committee of the Society as directed
hereunder and shall be considered by the Managing Committee and if found
reasonable, an effective resolution to that effect shall be placed before the General
Body for consideration and voting. Considering that the submissions made by the
Intervenors have been considered, the Interim Application stands disposed along
with the present Writ Petition with the following directions.
23. As requested by Mr. Kanade and also the request having been endorsed by Mr.
Joshi, I am inclined to issue the following directions for conducting the Special
General Body Meeting of the Society which shall be conducted in accordance with
law:-
(i) It is directed that atleast 15 days advance notice of the Special General Body
Meeting for considering the draft D.A. and draft P.O.A. shall be circulated and
intimated to all members of the Society as prescribed under the said Act, Rules and
bye-laws. Copies of D.A. and P.O.A. shall be circulated to all 47 members
alongwith notice. Objections received from members within one week from the
date of notice shall be placed before the Managing Committee in writing which shall
after due scrutiny and if found relevant and feasible prepare a Resolution to be
tabled before the General Body of the Society for consideration and voting by the
members. It is clarified that it shall not be incumbent upon the Committee to
consider each and every suggestion if it is already considered and incorporated in
the draft Development Agreement. Each suggestion shall be scrutinised on its own
merits and reasonableness. After the resolution is tabled in the meeting, the
member making the suggestion shall be allowed to speak first, followed by the
Chair (M.C.) and thereafter reply by the Developer and PMC who should be
present. Thereafter the Resolution shall be put to vote in accordance with law. The
special General Body Meeting shall be officiated by an Officer appointed by the
Hon'ble Bombay High Court namely Mrs. Chandan J. Bhatt, Company Registrar,
Bombay High Court. She shall be ably assisted by the Managing Committee of the
Society for overall conduct of the meeting as per the agenda. The agenda of the
Special General Body Meeting shall be the same as was intimated to all members
on 08.03.2023. Members raising suggestion shall be given an opportunity to speak
only with the permission of the officiating Officer who shall be in charge of
conducting the entire proceedings strictly in the manner stated hereinabove. All
members requiring to give their suggestions and objections will have to furnish the
same in writing on receiving intimation of the Special General Meeting Agenda
within a period of one week from the date of the notice / intimation. The Special
General Body Meeting shall be held after a period of 15 days from the date of
intimation so as to enable the Managing Committee of the Society to consider the
objections given by the members in writing, prepare summary of the same and
brief the officiating Officer of this Court so that the process of the meeting can be
carried out smoothly and all Resolutions are voted upon.
(ii) Special General Body Meeting will be Video recorded and the copy of such video
recording shall be retained by the Society.
(iii) In view of the above directions, the Dispute Application filed by Respondent
Nos.2 and 3 in the Co-operative Court is dismissed.
(iv) Petitioner Society shall bear the necessary costs and expenses of the
Officiating Officer. The costs of the officiating Officer appointed by this Court to
attend the Special General Meeting is fixed at Rs.30,000/- which shall be borne by
the Petitioner – Society and paid over to the concerned Officer before the meeting
which shall be a condition precedent. The officiating Officer of this Court shall if so
required take necessary assistance of the Police Authorities and procure presence
of lady constables / gent constables in the General Body Meeting so as to avoid any
untoward incident in the meeting. The charges for conduct of meeting and all other
charges shall be borne by the Society including Police Security.
(v) Copies of the minutes shall be given to all members of the Society in
accordance with law by the Society. All contentions of all parties namely the
Petitioner Society, Members, Respondent Nos.2 and 3 and the Intervenors are
expressly kept open.
24. With the above directions, Writ Petition stands disposed.
25. Interim Application stands disposed.