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“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2683-2685 OF 2013
(Arising out of SLP (C) Nos. 30847-30849 OF 2012)
Margaret Almeida & Ors. etc. … Appellants
Versus
Bombay Catholic Co-Operative Housing
Society Ltd. & Ors. … Respondents
WITH
CIVIL APPEAL NOS. 2688-2688 OF 2013
(Arising out of SLP (C) Nos. 30867-30869 OF 2012)
Priti Mungrey & Ors. … Appellants
Versus
Bombay Catholic Co-Operative Housing
Society Ltd. & Ors. Etc. Etc. … Respondents
AND
CIVIL APPEAL NOS. 2689-2690 OF 2013
(Arising out of SLP (C) Nos.28256-28257 OF 2012)
Anthony D’Sa … Appellant
Versus
Bombay Catholic Co-Operative Housing
Society Ltd. & Ors. Etc. Etc. … Respondents
J U D G M E N T
Jagdish Singh Khehar
1. Leave granted in all matters.
2. Through the instant common judgment, we propose to dispose of the
following matters which came to be filed in this Court assailing the order passed
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by a Division Bench of the High Court of Judicature at Bombay (hereinafter
referred to as ‘the High Court’) in Appeal Nos.489 of 2011, 413 of 2011 and 573
of 2011 :
(i) Margaret Almeida & Ors. vs. Bombay Catholic Co-operative Housing
Society & Ors., Civil Appeals arising out of SLP (C) Nos. 30847-30849 of
2012),
(ii) Priti Mungrey & Ors. v. The Bombay Catholic Co-operative Housing
Society Ltd. & Ors., Civil Appeals arising out of SLP (C) Nos.30867-30869
of 2012), and
(iii) Anthony D’Sa v. The Bombay Catholic Co-operative Housing Society Ltd.
Civil Appeals & Ors. (arising out of SLP (C) Nos.28256-28257 of 2012).
During the Course of hearing, Civil Appeals (arising out of Special Leave Petition
no.30847-30849 of 2012) were treated as the lead case. We will, therefore,
mainly rely on the pleadings thereof, for narrating the factual controversy.
Reference will be made to pleadings in the other connected matters only for
recording submissions based thereon, advanced during the course of hearing.
3. The following letter was addressed by the counsel for Margaret Almeida (a
respondent in Appeal no.413 of 2011 before the High Court) intimating her of the
outcome of the aforesaid appeal, and the steps taken by him on her behalf :
“Amardev J. Uniyal,
Advocate High Court
13th August 2012
Margaret Almeida & Ors.,Page 3
Madam/Sirs,
Re : Appeal Nos.413 of 2011, 489 of 2011 and 573 of 2011 filed in
Bombay High Court.
----
1. This is to inform you that the hearing in the aforesaid matters
concluded on 9th august 2012. The Hon’ble Court pronounced the
operative part of the Order directing that the aforesaid appeals are allowed
and interim order dated 5th May 2011 stood vacated. The Counsel
appearing on your behalf immediately requested the Hon’ble Court to stay
the operation and effect of the said order for a reasonable time to allow the
matter to be tested in Appeal.
2. However, the Hon’ble Court did not allow the said application and
inter alia directed that the Sumer Associates Builders (Appellants in Appeal
No.413 of 2011) shall not demolish the structures in which our clients
reside upto 30th September 2012. I have made an application for the
certified copy of the said order and same shall forward the same on its
receipt. In the circumstances, you are advised to kindly file your Special
Leave Petition before the Hon’ble Supreme Court and request for stay of
the effect and implementation of the order dated 9th August 2012 at the
earliest.
Yours faithfully,
Sd/-
for (Amardev J. Uniyal)”
The aforesaid letter was filed before this Court by the appellant Margaret Almeida
by referring to it as the impugned order. When the matter came up for hearing on
14.8.2012, this Court passed the following order :
“As and when the petitioners file the authenticated copy of the impugned
order, list these special leave petitions before the appropriate bench.”
The matter was repeatedly listed thereafter, but was not taken up for
consideration. On 14.9.2012, while directing the listing of the lead matter (along
with other matters) for preliminary hearing on 21.9.2012, this Court extended, at
the asking of the appellants, the interim protection which had remained in place
during the pendency of the instant litigation before the Division Bench of the High
Court (vide its order dated 9.8.2012). The aforesaid interim protection was
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extended from time to time (and continued till the final hearing of these appeals).
On 1.10.2012, notice came to be issued to the respondents, after the impugned
order passed by the High Court dated 9.8.2012 was placed on the record of the
case pending before this Court. On completion of pleadings, the matter was
heard for final disposal.
4. We shall first narrate the sequence of facts out of which the present
controversy has arisen.
5. The Bombay Catholic Co-operative Housing Society Limited (hereinafter
referred to as “the Catholic Society”) was incorporated and registered in 1914.
In 1917 the Catholic Society was registered under the Central Cooperative
Societies Act, 1912.
The objects of the Catholic Society, as per its bye-laws,
were to carry on buying, selling, hiring, letting and developing land. It was also
the object of the Catholic Society to carry on the activity of building, besides such
like allied activities.
6. For the aforesaid objectives, in the first instance at its inception, the
Catholic Society purchased 6 acres of undeveloped land from private parties.
The Catholic Society then purchased another 11 acres of such land in 1918.
Eventually, the Catholic Society acquired ownership of approximately 34.24 acres
of land to carry out the objectives defined in the bye-laws.
The land in question
was situated in Santacruz.
The estate of Catholic Society was named after Lord
Willingdon, the then Governor of Bombay.
Since the aforestated land holding of
the Catholic Society was comprised of three different blocks of land, the blocks
came to be referred to as Willingdon West, Willingdon East and Willingdon
South.
The area in Willingdon West measuring about 17.12 acres was sold to
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shareholders on freehold basis. These owners were referred to as owner
members.
The area in Willingdon South measuring about 11.63 acres was
leased to shareholders for 998 years. These members were referred to as lessee
members.
The subject matter of the present controversy relates to Willingdon
East measuring approximately 5.5 acres.
7. In the land measuring 5.5 acres known as Willingdon East, the Catholic
Society constructed 25 cottages.
These cottages were let out during 1940-45 on
a monthly rental basis.
Out of the 73 tenements in the aforestated 25 cottages,
54 were allotted to members of the Catholic Society.
These tenants were referred to as tenant-members.
15 of the tenements were assigned to tenants
simplicitor. These 15 tenants were not members of the Catholic Society.
8. After coming into force of the Maharashtra Cooperative Societies Act, 1960
(hereinafter referred to as “the Cooperative Societies Act”), all the tenants in
Willingdon East became members of the Catholic Society, for which fresh shares
were issued, at the face value of Rs.50/- per share. Therefore, all the tenants in
Willingdon East, became tenant-members.
The instant controversy relates to a
dispute between the Catholic Society on the one hand; and the tenant-members
on the other hand.
The Catholic Society is the appellant herein, whereas, some
of the tenant-members are the contesting respondents.
9. The first dispute between the rival parties arose when the Catholic Society
resolved to re-develop the land measuring 5.5 acres known as Willingdon East.
The decision to re-develop the land in question was taken on account of the fact,
that the 25 cottages constructed thereon, were scattered all over the land.
It was
felt that by redevelopment, the said land would be effectively utilised for the
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benefit of a larger number of persons.
To give effect to the aforesaid
determination, the Catholic Society passed a resolution on 25.9.1966, wherein it
was resolved to provide for 161 apartment-allotments in the buildings proposed
to be raised in the land known as Willingdon East.
It would be relevant to
mention, that the reconstruction contemplated in the redevelopment of Willingdon
East contemplated the raising of new buildings to house 230 tenements.
Of
these, 161 tenements were meant for allottee-members and the remaining 69 for
the tenant-members already in occupation of the existing 25 cottages as tenants.
The process of redevelopment included demolition of the existing 25 cottages,
and raising of new buildings in their place. The average estimated cost of each
apartment was assessed at Rs.55,000/-, out of which allottee-members for the
161 apartment-allotments were required to deposit Rs.15,000/- each with the
Catholic Society. The average estimated cost was determined in 1966, it must
obviously be much higher now.
The aforesaid resolution dated 25.9.1966 was
assailed by seeking recourse to the remedies available under the Co-operative
Societies Act.
All the efforts made by the tenant-members, however, proved
futile.
It would be relevant to mention, that the aforesaid dispute raised by the
tenant-members under Section 91 of the Cooperative Societies Act was finally
dismissed on 5.3.1971.
The said order dated 5.3.1971 was passed on an appeal
preferred by the tenant-members before the Maharashtra State Cooperative
Tribunal.
The resolution dated 25.9.1966 and order dated 5.3.1971 (passed by
the Maharashtra State Cooperative Tribunal) were challenged by the tenantmembers by filing Misc. Petition no.250 of 1972 before the High Court.
A learned
Single Judge of the High Court dismissed the aforesaid petition on 17.4.1972. An
intra-court appeal, preferred by the tenant-members was dismissed by a Division
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Bench of the High Court on 25.7.1972. The said order attained finality between
the rival parties.
In view of the aforesaid factual position it became open to the
Catholic Society to give effect to its resolution dated 25.9.1966, whereby, it had
decided to re-develop about 5.5 acres of land known as Willingdon East, to
provide for 161 apartment-tenements by raising fresh construction, in place of the
existing 25 cottages scattered all over the said land.
10. After the said dispute under Section 91 of the Cooperative Societies Act
challenging the resolution dated 25.9.1966 attained finality, the Catholic Society
invited applications from its members (holding at least 5 shares) for allotment of
flats in the proposed buildings to be constructed under the new building scheme.
In this behalf the Catholic Society also submitted, for approval and sanction,
building plans to the Bombay Municipal Corporation. Having shortlisted the
successful allottees, the Catholic Society required the selected allottees to
deposit Rs.15,000/- each, towards part payment of the price of the said flats.
About 200 members made advance payment of Rs.15,000/- each. As such, the
Catholic Society collected Rs.30 lakhs for implementing its redevelopment
project, based on the resolution dated 25.9.1966.
11. The tenants in the 25 cottages at Willingdon East again felt threatened.
They accordingly, raised a joint challenge, to the proposed action of
redevelopment referred to above.
On this occasion, the tenant-members filed an
application under Section 18 of the Cooperative Societies Act before the District
Deputy Registrar, Cooperative Societies, Mumbai, praying for the bifurcation of
Willingdon East.
The foundation of the aforesaid claim was based on the fact
that the interest of the tenant-members was not being adequately protected as
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they constituted a miniscule minority amongst the members of the Catholic
Society. In this behalf it was asserted at the hands of the tenant-members, that
there were about 745 members of the Catholic Society, out which an
overwhelming 685 members were not tenant-members. It was also pointed out
by the tenant-members, that the Managing Committee of the Catholic Society is
comprised of 11 members, out of which only two members represented the
tenant-members. As such, it was asserted, that the interest of the tenantmembers was not adequately protected, even at the level of the Managing
Committee.
The prayer made by the tenant-members before the District Deputy
Registrar, Cooperative Societies was, that the Catholic Society should be
bifurcated into two societies. Factually, the instant bifurcation would apply to on
5.5. acres of land known as Willingdon East. Because entire land holding
comprising of Willingdon West had been sold to owner members on freehold
basis, and the entire land holding comprising of Willingdon South had been
leased to lessee-members on lease for a term of 998 years. Thereupon, the
Catholic Society was only managing the affairs of 5.5 acres of land known as
Willingdon East. One of the bifurcated societies, according to their prayer,
should comprise of only tenant-members. And, the other bifurcated society
should comprise of all non tenant-members.
12. On the receipt of the aforesaid application filed by the tenant-members
under Section 18 of the Cooperative Societies Act, the District Deputy Registrar,
Cooperative Societies consulted the Federal Society, i.e., the Bombay-Thane
District Cooperative Housing Society Limited. Having consulted the Federal
Society, the District Deputy Registrar, Cooperative Societies issued a draft order dated 6.9.1979 recording a tentative satisfaction for the bifurcation of the Catholic
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Society into two societies.
Based thereon, a notice was issued to the Catholic
Society seeking its objections, if any, to the tentative satisfaction recorded by the
District Deputy Registrar, Cooperative Societies. To consider its course of
action, the Catholic Society convened an annual general body meeting. The
same was actually held on 16.12.1979. In its annual general body meeting, the
Catholic Society passed a resolution, disapproving and rejecting the proposed
bifurcation of the Willingdon East, in terms of the draft order of the District Deputy
Registrar, Cooperative Societies dated 6.9.1979.
13. In addition to the response filed by the Catholic Society referred to in the
foregoing paragraph, the Catholic Society also took up the matter with the
Federal Society, i.e., the Bombay-Thane District Cooperative Housing Society
Limited.
The Federal Society thereupon re-examined the matter. On such reexamination it prepared a report dated 7.6.1980, wherein, it was concluded that
there was no justification for the bifurcation/division of the Catholic Society.
The
aforesaid report was forwarded by the Federal Society to the District Deputy
Registrar, Cooperative Societies.
The District Deputy Registrar, Cooperative
Societies then reconsidered the draft order dated 6.9.1979 by taking into
consideration the aforesaid report dated 7.6.1980.
During the course of such
reconsideration,
the District Deputy Registrar, Cooperative Societies personally
visited Willingdon East and also personally examined the records of the Catholic
Society.
On such reconsideration, the District Deputy Registrar, Cooperative
Societies, passed an order dated 27.6.1980 by which the draft order dated
6.9.1979 proposing bifurcation/division of the Catholic Society, was withdrawn.
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14. The tenant-members assailed the order dated 27.6.1980 withdrawing the
draft order proposing bifurcation/division of the Catholic Society, by preferring an
appeal.
The Divisional Joint Registrar, Cooperative Societies, accepted the
appeal, and set aside the order dated 27.6.1980. The appellate order required
the District Deputy Registrar, Cooperative Societies, to reconsider the issue of
bifurcation/division of the Catholic Society.
15. The Catholic Society assailed the order of the Divisional Joint Registrar,
Cooperative Societies dated 12.12.1980 by preferring a Revision Petition before
the State Government. The challenge raised by the appellant-society (the
Catholic Society) to the aforesaid order dated 12.12.1980, was allowed,
inasmuch as the order passed by the Divisional Joint Registrar, Cooperative
Societies was set aside.
The revisional authority remanded the matter to the
Divisional Joint Registrar, Co-operative Societies, for passing a fresh order (in
appeal) after hearing the rival parties. After its remand the Divisional Joint
Registrar, Cooperative Societies again allowed the appeal, by an order dated
15.6.1982. By the aforesaid appellate order, the order of the District Deputy
Registrar, Cooperative Societies (dated 27.6.1980) was set aside.
Consequently,
a direction was issued by the appellate authority, to the Assistant Registrar,
Cooperative Societies, to proceed with the matter, from the stage of the passing
of the draft bifurcation order (dated 6.9.1979).
16. The Catholic Society again assailed the order of the Divisional Joint
Registrar, Cooperative Societies dated 15.6.1982 by preferring a revision petition
before the State Government. Since the Catholic Society was not granted any
interim order during the pendency of the revision petition, the Assistant Registrar,
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Cooperative Societies, Mumbai, proceeded with the matter from the stage of the
draft order. By an order dated 22.3.1983 the Assistant Registrar, Cooperative
Societies, Mumbai, ordered the bifurcation/division of the Catholic Society by
creating the following two societies :
i) The Bombay Catholic Cooperative Housing Society Ltd., and
ii) The Bombay Catholic Cooperative (Tenants) Housing Society Ltd.
The society at (i) above, would be comprised of lessee-members, freehold land
owners and others,
whereas the society at (ii) would be comprised of tenantmembers only.
17. The order passed by the Assistant Registrar, Cooperative Societies,
Mumbai dated 22.3.1983 was challenged by the Catholic Society by preferring an
appeal before the Divisional Joint Registrar, Cooperative Societies. The
aforesaid appeal was dismissed by an order dated 19.9.1989, whereupon, the
Catholic Society preferred a revision petition before the State Government. The
said revision petition was also dismissed on 24.6.1991. The orders passed by
the Assistant Registrar, Cooperative Societies, Mumbai (dated 22.3.1983), the
Divisional Joint Registrar, Cooperative Societies, Mumbai (dated 19.9.1989) and
the State Government (dated 24.6.1991) were challenged by the Catholic Society
by filing Writ Petition no.2328 of 1991.
A learned Single Judge of the High Court
dismissed the aforesaid writ petition by an order dated 21/22.10.1999. The
reasons which weighed with the learned Single Judge of the High Court in
dismissing the writ petition, were summarised in paragraph 19 of the aforesaid
judgment, which is being extracted hereunder:
“The facts which I have already noted above which need not to be
repeated, would rather show that the order passed by the Assistant
Registrar for bifurcation of the society is not at all harsh or arbitrary or
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oppressive to the shareholder members. As a matter of fact, it is the tenant
members who have been oppressed and this class of members have
suffered at the hands of the majority members who have no longer
sufficient or substantial interest in the objectives of the society. The
Assistant Registrar has made it clear that the society formed of the tenants
viz. Bombay Catholic Cooperative (Tenants) Housing Society Ltd., shall
offer the tenements occupied by the tenant members in the capacity of
tenants in terms of Bombay Rent Act, to the same occupant tenant
members on ownership basis if desired by the concerned tenant members
against payment of reasonable consideration as may be fixed by the said
society in consultation with the Cooperative Department and till that time,
the status of the tenancy shall not be disturbed. The said direction
indicates that there is no undue favour to the tenant members and a
balance has been struck by the Assistant Registrar by providing clause 7 in
the operative order. So far as the shareholder members are concerned,
the Assistant Registrar in its operative order has clearly set out that the
admission of non-accommodated shareholders to membership of the newly
created society viz., Bombay Catholic Cooperative (tenants) Housing
Society Ltd., shall be strictly according to the chronological order and shall
be gradual as and when tenements get ready for occupation. The
Assistant Registrar further directed that while accommodating such
persons to the membership, it shall be ensured that these members really
intended to secure tenements of the society at the time of acquiring shares
and not for investment or any other purpose other than residential. He also
directed that it would also be ensured that these persons (shareholders
members) are eligible to become members under the revised Bye-laws,
rules and the Act and they are willing and are in a position to contribute and
possess the new tenements. The Assistant Registrar, therefore, has taken
sufficient care in ensuring that no injustice is occasioned to non accommodated shareholders who are genuinely interested in
accommodation and are eligible in securing residential accommodation.
The shareholders who are eligible to become members under the revised
Bye-laws and who genuinely were interested in getting the residential
accommodation, according to their seniority shall get the accommodation
as and when tenements would be ready for occupation. With this
arrangement having been made by the Assistant Registrar how it can be
said that the order of bifurcation shall oppress the class of shareholders or
is detrimental to the interest of this clear. Obviously, the shareholder
members who were only interested investment while becoming member of
the society should be weeded out, because it would not be in the interest of
cooperative movement and for the well-being of the society. Thus, the
contention of the learned counsel for the shareholder members that the
order of bifurcation is oppressive or harsh to this class of society is
unfounded and appears to be at the behest of the petitioner society. As a
matter of fact, the appellate authority has considered the matter extensively
and it cannot be said to have erred when it affirmed the order of Assistant
Registrar, so far as revisional authority is concerned, the matter having
been examined at quite length by the appellate authority, the revisional
authority rightly did not go into the matter in details in its revisional
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jurisdiction and cannot be said to have erred in affirming the order of the
Assistant Registrar and the appellate authority.”
18. The Catholic Society preferred an intra court appeal to assail the order
passed by the learned Single Judge of the High Court dated 21/22.10.1999
(whereby writ petition no.2328 of 1991 was allowed, in favour of the tenantmembers).
A Division Bench of the High Court allowed appeal No.20 of 2000
(arising out of writ petition 2328 of 1991) on 4.8.2007. By the aforesaid order, the
Division Bench set aside the earlier determinations rendered by the Co-operative
authorities, as also, the judgment rendered by the learned Single Judge. While
doing so, the Division Bench remanded the matter to the authorities (under the
provisions of the Co-operative Societies Act), for reconsidering the issue of
bifurcation raised by the tenant-members. The operative part of the order passed
by the Division Bench brining out the effect of the appellate order is being
reproduced hereunder :
“..... In our opinion, therefore, in order to comply with the mandatory
requirement of consultation which is incorporated under sub-section (1) of
Section 18 of the Act,
it was necessary for the Deputy Registrar not only to
take into consideration the opinion expressed by the federation
but in order
to show that he has complied with the mandatory requirements of
consultation and the order that he made should also have shown that he
has applied his mind to the opinion expressed by the federation.
The
requirement of the order made by the authority indicating on the face of it
that the authority has applied its mind to the opinion submitted by the
federation, will have to read into the provisions in order to make the
requirement of consultation effective and meaningful.
In the present case,
admittedly, the opinion expressed by the federation has not been
considered by the Deputy Registrar while deciding to make the order of
bifurcation.
It therefore, suffers from violation of mandatory requirement of
consultation with the federal society, and therefore, we have no alternative
but to set aside that order.
But because the proposal had been submitted
as far back as in the year 1979 and the final decision in that regard has not
yet been taken, we propose to issue directions to the authority so that a
decision can be made by the authority as expeditiously as possible.
5. In the result, therefore, the appeal succeeds and is allowed.
The
order dated 22.2.1983 passed by the Deputy Registrar, Co-operative
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Societies directing bifurcation of the petitioner-society is set aside.
The
orders passed by the Authorities under the Maharashtra Co-operative
Societies Act and the learned Single Judge confirming that order are also
set aside.
The proceedings are remitted back to the Deputy Registrar.
The parties shall appear before the Deputy Registrar on 27.8.2007 with a
copy of this order.
The petitioner shall also serve a notice on the federation
with a copy of this order informing the federation that if it is so advised it
may appear before the Deputy Registrar on 27.8.2007. the Deputy
Registrar shall thereafter permit the parties to file any additional affidavits
and documents that they may want to file and then proceed to pass final
order in the matter in accordance with law.
The Registrar shall proceed as
expeditiously as possible, and the final order shall be made by him in any
case within a period of Eight weeks from 27.8.2007.
It is directed that in
case the Registrar decides to make the order of bifurcation, the Registrar
shall provide in the order that the order shall not take effect for a period of
four week from the date of making of the order.”
19. In compliance with the directions issued by the Division Bench of the High
Court on 4.8.2007, the issue of bifurcation of the Catholic Society came to be
placed before the Deputy Registrar, Co-operative Societies, Mumbai.
Having
heard the submissions advanced on behalf of the rival parties, the Deputy
Registrar, Co-operative Societies, allowed the claim of the tenant-members, vide
an order dated 28.11.2007. By the aforesaid order dated 28.11.2007, the
Catholic Society was ordered to be bifurcated/divided into two societies. The
manner of giving effect to the aforesaid bifurcation, emerges from the order of the
Deputy Registrar, Co-operative Societies, Mumbai dated 28.11.2007. The same
is being extracted hereunder :
“ORDER
I, Dr. P.I. Khandgale, the Deputy Registrar, Co-operative Societies,
H (W), Ward, Mumbai, under the powers conferred upon me under Section
18(1) of Maharashtra Co-operative Societies Act 1960 and Rule 17(2) of
the Maharashtra Co-operative Societies Act, 1961 in the interest of smooth
working, administration and in the interest of members and also in view of
public interest make division of “The Bombay Catholic Co-op Hsg, Society
Ltd., S.V. Road, Santacruz (West), Mumbai – 400 054.
And de-register the society viz. The Bombay Catholic Co-op Housing
Society Ltd. S.V. Road, Santacruz (W), Mumbai – 400 054, havingPage 15
Registration No.1412 of 1917, as per Section 21 of Maharashtra Cooperative Societies Act, 1960 from the date 28/11/2007.
As referred under Section 9(1) of Maharashtra Co-operative
Societies Act, 1960, after division, two separate Housing societies are
being registeredunder registration numbers as mentioned hereunder :
Sr.
No.
Name and address of
society
Members Registration number
and date
1 The Bombay Catholic
(Leasehold, Freehold
and others) Co-operative
Housing Society Ltd.
S.V. Road, Santacruz
(West), Mumbai-54.
Freeholders,
Leaseholders
and others.
MUM/WHW/H
S.G./(TC)/14007/2007-
08, yEAR 2007 DATED
28/11/2007
2. The Bombay Catholic
(Tenants and Allottee)
Coop. Hsg. Society Ltd.,
24, Willingdon East,
Santacruz (W), Mmbai-
400054
Tenant Members
and allottee
members
MUM/WHW/H
S.G./(TC)/14008/2007-
08, yEAR 2007 DATED
28/11/2007
Since above mentioned separate societies are registered, two
separate Managing Committees should be formed and I direct to divide the
property and debts as under :
(As per balance sheet by the end of 31/3/2007)
1) Share Capital To divide the same as collected from the
Members
2) Sinking Fund As per shares actually held by the members.
3) Reserved Fund As per shares actually held by the members.
4) Other reserved
fund
As per shares actually held by the members
5) Amount of
deposits
As collected from the members.
6) Amount in
balance
As collected from the members.
7) Societies dues
payable and
receivable
Shall be made according to the members and the
office bearers of the society shall take decision as
regards arrears.
8) By laws of the It shall be mandatory for new societies to adoptPage 16
society by-laws of the Bombay Catholic (Leasehold,
Freehold and others) Co-operative Housing
Society Ltd.
9) Societies old
office
It shall remain at the earlier place where earlier
office situated and the secretaries of both the
society shall remain custodian of this office and
the records therein shall be remained available
for members of both the societies and the same
shall remain in the possession of the members in
whole societies compound it remains.
10) Land of the
Society
(i) The Bombay
Catholic
(Leasehold,
Freehold and
others) Co-op.
Housing Society
Ltd.
(ii) The Bombay
Catholic (Tenant
and Allottee) Coop. Housing
Society Ltd.
The land of Willingdon South and Willingdon
South and Willingdon
5 ½ acres land of Willingdon East together with
25 t cottage and one shed therein.
11) Staff The existing members shall remain in the
Bombay Catholic (Leasehold, Freehold and
others). The Bombay Catholic (Tenants and
allottee) co-op hsg. Society Ltd. shall make
arrangement for their own staff. After division
both registered societies shall take their own
decisions as regards fixing salaries and other
allowances the managing committee and the
respective societies shall of frame their own rules
regarding service as per provisions of
Maharashtra Co-operative Societies Act, 1960
and Rule 1961
12) Tenants The tenants residing in the premises of the
Bombay Catholic (Tenants and Allottee) Coop.
Hsg. Society Ltd. shall be tenants of the society
and their tenancy rights shall be protected.
13) In order to look after the daily affairs of the two societies formed after
division of the original society, society wise Board of Administrators
is being appointed.Page 17
1. Following persons shall be the members of the managing committee
of the Bombay Catholic (Leasehold, Freehold and others) cooperative Housing Society Ltd., Santacruz (West), Mumbai – 54, to
llok after its affairs.
(a) Shri A.F.E. D’costa, Chairman, managing Committee.
(b) Shri F.J. Naronna, Committee Members,
Managing Committee.
(c) Shri Leo Rodrigues, Committee Members,
Managing Committee
(d) Shri B. Pulgado, Committee Members, Managing Committee
(e) Captain F.S. Vittal, Committee Members,
Managing Committee
2. Following persons shall be the member of Managing Committee to
look after the affairs of The Bombay Catholic (Tenant/Allottee) Coop. Housing Society Ltd., Santacruz (West), Mumbai – 54.
(a)
Smt. C. Castaleno, Chairman, Managing Committee.
(b)
Shri J. Rodrigues, Committee members,
Managing Committee.
(c)
Shri Francis Philips, Committee members,
Managing Committee.
(d)
Shri Anthoni Disa, Committee members,
Managing Committee.
(e)
Smt. A. Fernandes, Committee members,
Managing Committee.
This order is issued on this day, the date 28.11.2007, under my
signature and seal of this office. This order shall be executed after one
month from the date 28.11.2007.”
20. The Catholic Society raised a challenge to the order passed by the Deputy
Registrar, Co-operative Societies, Mumbai, by filing an appeal before the JointPage 18
Registrar, Co-operative Societies, Mumbai. In fact, a separate appeal was also
filed by the tenant-members to assail the order passed by the Deputy Registrar,
Co-operative Societies dated 28.11.2007. The Divisional Joint Registrar, Cooperative Societies, Mumbai disposed of appeal no.246 of 2007 (filed by the
Catholic Society) and Appeal no.27 of 2008 (filed by the tenant-members) by a
common order dated 29.9.2009.
The operative part of the aforesaid appellate
order is being extracted hereunder :
“ORDER
1) The Appeal No.246/2007 & Appeal No.27/2008 are disposed of.
2) The impugned order dated 28.11.2007 passed by the Respondent
Deputy Registrar, C.S.H./West Ward, Mumbai under Sec.18(1) of
the M.C.S. Act, 1960 read with Rule 17 of the M.C.S. Rules, 1961 is
hereby quashed and set aside.
3) The case is remanded back to the Respondent Deputy Registrar
C.S.H./W Ward, Mumbai for afresh consideration and decide the
case in the light of the observations made herein above.
4) This order would not come into effect for a period of 4 weeks as
directed by the Hon’ble High Court in order dated 6.3.2009 in Writ
Petition No.2808 of 2009.
5) No order as cost.”
A perusal of the operative part of the order extracted hereinabove reveals, that
the order passed by the Deputy Registrar, Co-operative Societies, Mumbai under
Section 18(1) of the Co-operative Societies Act (whereby the Catholic Society
was bifurcated/ divided into two societies) was quashed and set aside. All the
same, yet again, the issue of bifurcation was remanded back for redetermination
at the hands of the Deputy Registrar, Co-operative Societies, Mumbai.
21. It would be pertinent to mention, that a challenge to the appellate order
passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai, is
permissible through a revision petition before the competent authority of the State
Page 19
Government. The tenant-members availed of the aforesaid remedy and by
preferring Revision Application no.713 of 2009 before the State Government,
wherein the aforesaid order dated 29.9.2009 passed by the Divisional Joint
Registrar, Co-operative Societies, Mumbai was assailed. It is however, relevant
to notice, that the aforesaid challenge raised by the tenant-members, through the
aforesaid revision petition was withdrawn. This is apparent from the operative
part of the order passed by the State Government disposing of Revision
Application no.713 of 2009 which is being extracted herein :
“ORDER
1. Applicant is allowed to withdraw Revision Application No.713/2009.
2. Order dt.29.9.2009 of the Defendant No.1 Divisional Joint Registrar,
Co-operative Societies, Mumbai Division, Mumbai quashing the
order of division of Defendant No.2 Society, of the Deputy Registrar,
Co-opertive Societies, H/West Ward, Mumbai dt. 28.11.2007 is
hereby confirmed.
3. Order of the Divisional Joint Registrar, Co-operative Societies,
Mumbai Division, Mumbai dt. 29.01.2009 to the extent of issuing
directions to the Deputy Registrar, Co-operative Societies, H/West
Ward, Mumbai, for giving re-hearing afresh again, is hereby
quashed.
4. No Order as to the costs.”
It would also be relevant to mention that while withdrawing Revision Application
no.713 of 2009, the applicant undertook to co-operate with the Catholic Society,
for the redevelopment of 5.5 acres of land known as Willingdon East. It would
also be pertinent to mention, that while withdrawing Revision Application no.713
of 2009, the tenant-members undertook to support the implementation of the
Catholic Society’s resolution dated 6.12.2009.
In sum and substance, therefore,
the State Government disposed of the revision petition by quashing the
bifurcation proceedings. The order passed by the State Government dated
6.12.2009, brought to an end the claim raised by the tenant-members under
Page 20
Section 18 of the Co-operative Societies Act, praying for the bifurcation of the
Catholic Society, with reference to the property known as Willingdon East.
22. In order to understand the effect of the resolution passed by the Catholic
Society on 6.12.2009, it is necessary to extract herein the Catholic Society’s
Resolution dated 6.12.2009. A relevant part of the aforesaid resolution is being
reproduced hereunder :
“RESOLUTION PASSED AT THE SPECIAL GENERAL MEETING HELD
ON 6TH DECEMBER, 2009 AT 4.30 P.M. AT SAINT TERESA’S CONVENT
HIGH SCHOOL HALL, SANTA CRUZ (WEST), MUMBAI – 400054
RESOLVED to accept the proposal of M/s. Sumer Associates as nominee
of M/s. Robin Home Developers Pvt. Ltd. on the following terms and
conditions:
(1) Only the land admeasuring 21,774.10 sq. mtrs. Out of the Willingdon
Estate and also known as Willingdon Colony (Willingdon East)
bearing CTS Nos. H/401, H/402, H/415 to H/438 (hereinafter called
the said land) would be sold to M/s. Sumer Associates as nominee of
Robin Home Developers Pvt. Ltd. for the net price of
Rs.70,00,00,000/- (Rupees Seventy Crores) payable in one lumpsum.
The consideration of Rs.70.00 crores is fixed irrespective of
any charge in Development Control Regulations or any other
applicable rules and regulations or subsequent rulings by any
authority or body (i.e. Heritage Authority, etf.) and subject to all other
conditions agreed upon.
(2) The sale of the said land will be on ‘as is where is’ basis.
(3) All 161 allottee members and 69 tenants/occupants of the Society
shall be attorned to M/s. Sumer Associates. The Society shall issue
a certified list of 161 allottee members and 69 tenants/occupants as
on 17.09.2009to M/s. Sumer Associates which shall form part of the
final conveyance.
(4) M/s. Sumer Associates shall all its own costs, charges and expenses
construct on the said land an aggregate of at least 230 tenements of
which 161 tenements, each admeasuring 600 sq. ft. (carpet area)
shall be sold on ownership basis under MOFA, unless otherwise
mutually decided, to the 161 allottee members at a price of
Rs.1800/- per sq.ft. (carpet area) provided that each of the said 161
allottee members surrender their respective Share Certificate of the
Society for cancellation and proof of relinquishing their rights as
members in the Society.Page 21
(5) The remaining 69 tenements (out of 230 tenements) to be
constructed by M/s. Sumer Associates, on the said land shall be sold
and/or conveyed by M/s. Sumer Associates to the said 69
tenants/occupants either against making payment or free of cost.
The obligation, if any of the said 69 tenants to pay for acquiring their
flats is recorded in the Consent Terms/MOU/Agreement between
some tenants and the Society. So far as remaining tenants out of the
said 69 tenants are concerned, those covered by Undertakings given
in Court or by Decrees, will not be required to pay any amount to
M/s. Sumer Associates for acquiring the flats. The Society shall give
certified true copies of the Undertakings/Consent
Terms/Agreements, which have been already entered into between
the Society and some of the tenants out of the said 69 tenants. M/s.
Sumer Associates shall enter into agreements with the tenants who
are members only upon their surrendering their respective shares to
the Society for cancellation and relinquishing their rights as a tenant
and/or member in the Society.
(6) The Allottee and Tenant members immediately on execution of the
Conveyance of the said land by the Society shall be deemed to have
ceased to be members of the Society in lieu of their right of allotment
and right of acquiring accommodation on the said land as provided
under the said Conveyance.
(7) M/s. Sumer Associates shall part with possession of the new
premises in the 161 allottee members and 69 tenants/occupants
simultaneously with giving possession to any other purchasers to
whom premises are sold.
(8) Upon completion of construction of first five buildings in all aspects,
M/s. Sumer association shall at its own costs charges and expenses
provide one office unit admeasuring 300 sq. ft. (carpet area) to the
Society in the newly constructed building on the said land or they
shall otherwise provide suitable alternate accommodation for the
Society’s office in Santa Cruz (West), provided that only the Stamp
Duty and Registration charges on which shall be paid by the Society.
(9) M/s. Sumer Associates has deposited in escrow the said sum of
Rs.70.00 crores with M/s. Dhruve Liladhar & Co., Advocates,
Solicitors & Notary for the Society with clear instructions that, on and
against execution of Conveyance or within thirty days from the date
of the approval of the settlement/transaction by the Society at an
(Extraordinary_ Special General Meeting the said Advocates &
Solicitors shall, without recourse to M/s. Sumer Associates, release
and/or pay the said sum of Rs.70.00 crores to the Society without
claiming any costs or lien.
(10) All members who have not been accommodated on the said land or
on the Society’s property shall be compensated on pro-rata basis
according to number of shares held by dividing equally the
consideration received net of tax, legal and other expenses but afterPage 22
concealing by process of legal expenses those members who are
untraceable for over 15 years.
(11) M/s. Sumer Associates shall at its own costs, charges and expenses
ensure that, neither the Chavan-Meredia Combine nor Charisma
Builders or the Bawa Group nor Robin Home developers Pvt. Ltd. or
other such party shall make any claim against the society. All of
them shall be settled and/or compromised by M/s. Sumer Associates
at its own costs. Charges and expenses.
(12) Undertakings given to the Hon’ble Courts in the proceedings initiated
against some of the tenants and Consent Terms filed in some of the
said proceedings and MOU’s shall be honoured by M/s. Sumer
Associates and they shall be totally and strictly adhered to by them
and the Society shall not be liable for the same. Where applicable
M/s. Sumer Associates will have to make efforts to modify and/or get
released from the said Undertaking and/or Consent Terms as may
be advised. All undertakings to various Courts given by the Society
shall be observed and fulfilled by M/s. Sumer Associates, and they
shall keep the Society indemnified from and against all the costs and
consequences arising from the same.
(13) The Conveyance should sufficiently indemnify the Society, its
Committee and its members against all liabilities, claims costs and
consequences as a result of this sale and the redevelopment of the
property and for any delay or non-performance of any kind.
(14) To ensure against litigation of any kind these terms can be presented
before the appropriate Court for confirmation or as Consent
Terms/Settlement Terms as may be legally advised.
The aforesaid is without prejudice to the rights and contentions of the
Society including in the pending Appeal before the Ministry of Cooperation, Maharashtra. All reference to M/s. Sumer Associates and/or
Robin Home Developers Pvt. Ltd. shall include their/his partners, directors
or successors as applicable from the context.”
FURTHER RESOLVED that by virtue of the amendment of the Bye Laws
of the Society by insertion of Article 10 as regards the membership
eligibility of a Building Sub-Society by insertion of Article 10 as regards the
membership eligibility of a building Sub-Society as a member of the
Society and consequent changes in the structure of the membership in the
Society, the following covenants to be observed and performed by the
Lessees as presently mentioned in the indenture of Lease executed
between the members and the Society shall stand deleted:
1. Clause 4. That the Lessees will not make any excavation upon any part
of the demised plot nor remove any stone, sand, gravel, clay
or earth therefrom except for the purpose of forming
foundations of buildings.Page 23
2. Clause 5. That the Lessees will use the demised plot and premises for
the purpose of a private residence only and not without the
license in writing of the Lessor first had and obtained to do or
permit any trade or business in any building or upon any part
of the demised plot and premises.
3. Clause 6. That the Lessees will not do or suffer anything to be done on
the demised plot or premises which may cause damage
nuisance or inconvenience to the occupiers of adjacent
houses, the Society or the neighbourhood.
4. Clause 7. That the Lessees will not assign, underlet, for a period
exceeding 3 years or part with possession of the demised
lands hereditaments and premises or of any part thereof to
any person without the written consent of the Society such
consent not to be unreasonably withheld when the proposed
assignee or tenant is a member of the Society and holding five
fully paid shares of the Society.
5. Clause 8. That the Lessees will not make any assignment or other
disposition of the demised premises or part thereof (which
shall have the effect of vesting the demised premises for the
said term or any part thereof in other than one and the same
party or parties at one time).
6. Clause 10. That the Lessee shall submit the plans of this building
privy cess-pools and compounds, wall or fence for the
approval of the Society and shall not start the construction
without such approval.
RESOLVED FURTHER that the status of the leasehold plots which are
under indenture for tenures of 998 years with members be converted to
freehold status at and on the request of the individual members.
RESOLVED FURTHER that the Managing Committee of the Society is
authorized to approve, execute and register individual Agreements or
Indenture or other documents and do such other necessarty acts, deeds
and things as may be requested to effect the above.
RESOLVED THAT the approval for sale and transfer of the property of the
Society known as Willindgon Colony in village bandra, Mumbai Suburban
District bearing CTS Nos. H/401, H/402, H/415 to H/438 also called
Willingdon East located at S.V. Road, Santa Cruz (West( Mumbai – 400
054, and admeasuring 25040 sq. yards equivalent to 21,774 ___ sq. mtrs.
Together with structures standing thereon (“the said Property”) on “as is
where is” basis subject to the rights of 69 tenants and 161 allottee
members lumpsum consideration of Rs.70,00,00,000/- (Rulees Seventy
Crores only) in favour of Messrs. Sumer Associates (“Sumer”), a nominee
of Robin Home Developers Private Limited (‘RHDPL’) is hereby granted.
Page 24
RESOLVED FURTHER THAT the Managing Committee of the Society
authorized to approve, execute and register conveyance and other
documents of the said Property in favour of Sumer as nominees of RHDPL
and do such other necessary acts, deed and things as may be required to
effect the above.”
In compliance with the resolution of the Catholic Society dated 6.12.2009, a
conveyance dated 7.12.2009 came to be executed.
23. Even though all challenges raised by the tenant-members against the resolution of the Catholic Society dated 25.9.1966 had attained finality, and even though the prayer made by the tenant-members of the Catholic Society seeking the bifurcation/division of the Catholic Society, has not culminated in favour of the
tenant-members in spite of the initiation of the proceedings in connection therewith in the seventies, yet the entire matter was sought to be reopened by raising a challenge through Civil Suit nos.144 and 145 of 2010, which were filed
by some tenant-members, wherein the main prayer was, that the Catholic Society should be restrained from taking steps in furtherance of the resolution passed by
the Catholic Society dated 6.12.2009 (as also, the consequential conveyance deed dated 7.12.2009).
24. In order to understand the nature of relief, sought by the tenant-members in
the civil suits filed by them, it would be appropriate to extract hereunder the
prayers made in Suit no.144 of 2010:
“The plaintiffs therefore pray:
(a) for a declaration that the said Resolution dated 6th December, 2009
(Exhibit ‘K’ hereto) and the said Conveyance dated 7th December, 2009
(Exhibit ‘M’ hereto) are invalid, illegal and void ab initio and/or the same
are voidable as against the plaintiffs and the Tenant members of Defendant
No.17 Association. That this Hon’ble Court be pleased to pass order
declaring section 164 of Maharashtra Co-operative Societies Act, as
violation of Article 14 of the Constitution of India and the same ought to be
struck down;Page 25
(b) for a Judgment and Decree directing Defendant No.20 herein to
deliver up the Conveyance dated 7th December, 2009 Exhibit ‘M’ hereto for
cancellation;
(c) that, pending the hearing and final disposal of the present suit, this
Hon’ble Court be pleased to issue an Order and Injunction restraining the
Defendant Nos.1 to 17 and Defendant No.20 from taking any steps in
furtherance of the said purported Resolution dated 6th December, 2009
and/or Conveyance dated 7th December, 2009. (ii) to issue an Order and
Injunction directing Defendant Nos.1 to 16 to deposit in this Hon’ble Court
the sum of Rs.70 crores received from Defendant No.20 under the
Resolution dated 6th December, 2009 and under the Conveyance dated 7th
December, 2009;
(d) for ad-interim reliefs in terms of prayer clause (c) above;
(e) for the costs of the present suit;
(f) for such other and further reliefs as the nature and circumstances of
the present case may require.”
Since the interim prayers, as had been sought in the suits filed by the tenantmembers, were not granted to them, they preferred Notice of Motion no.172 of
2010 (arising out of Suit no.144 of 2010) before the High Court. By an order
dated 11.1.2010, a learned Single Judge of the High Court found favour with the
prayer made by the tenant-members. The operative part of the order granting
interim relief to the tenant-members is being extracted hereunder:
“47. Resultantly the following ad-interim order:
ORDER
(i) No further steps be taken by the concerned parties based
upon the Conveyance dated 07/12/2009.
(ii) The parties to maintain status-quo with respect to the property
in question i.e., Willingdon East.
(iii) The earlier statements already recorded in the order dated 24th
December, 2009 to continue till further order.
(iv) Reply/rejoinder, if any to be filed within two weeks.
Page 26
(v) S.O. to 25/1/2010, for hearing. However, the liberty is granted
to the parties to settle the matter also.
48. The learned counsel Mr.Chetan Kapadia, appearing for some of the
Defendants, makes statement that 18 tenant/members have already
surrendered possession and the tenancy to defendant No.72. However, in
view of the above common order, it is made clear that parties to maintain
status-quo will cover any further steps to these suits.”
It would also be relevant to mention that the High Court also passed a common
order dated 5.5.2011 in Writ Petition no.1769 of 2010, Chamber Summons
no.748 of 2011 and Notice of Motion no.172 of 2010 (arising out of Suit no.144 of
2010) and in Suit no.144 of 2010. Thereby, the Notice of Motion was disposed of
by making absolute the interim order earlier granted (on 11.1.2010) in favour of
the tenant-members. Relevant extract of the order dated 5.5.2011 in the
aforesaid matters is being reproduced hereunder:
“112. In the circumstances, the Notice of Motion is disposed of by making
the same absolute in terms of prayer (a)(i) and by directing all the parties to
maintain status quo in respect of the suit property pending the hearing and
final disposal of the suit. There, however, shall be no order as to costs.”
Even though the controversy, in the manner in which it has been dealt with
hereinabove, seems to be in the nature of final determination between the parties,
yet the instant order, is only a determination of the validity of the interim relief
sought by the tenant-members. In so far as the instant aspect of the matter is
concerned, it would be relevant to mention, that the order extracted above, dated
5.5.2011, was assailed by the Catholic Society before a Division Bench of the
High Court by filing Appeal no.413 of 2011 (in Notice of Motion no.172 of 2010, in
Suit no.144 of 2010). The aforesaid appeal was disposed of by a Division Bench
of the High Court on 7.9.2012. By the aforesaid order, the interim protection
afforded to the tenant-members on 5.5.2001, by a learned Single Judge of the
High Court, was ordered to be vacated. It is the instant order dated 7.9.2012,Page 27
which is the subject matter of challenge (at the hands of the tenant-members),
before us.
25. While adjudicating upon the controversy in hand, and while determining the
validity of the impugned order passed by the Division Bench of the High Court
dated 7.9.2012, we shall apply ourselves to issues relevant for granting or
denying interim prayers, while disposing of the instant appeals.
26. As noticed above, the Catholic Society comprises of about 745 members.
Out of these members there were originally 54 tenant-members and 15 tenants
simplicitor (the tenants simplicitor, were not members of the Catholic Society).
After the coming into force of the Cooperative Societies Act, all the tenants
(including the tenant-members, as also, the tenants simplicitor) became members
of the Catholic Society. It is therefore, that the strength of the tenant-members at
the present juncture is 69. The relief sought in the two suits (i.e. Suit no.144 of
2010 and Suit no.145 of 2010) is a claim for rights,on account of being tenantmembers.
It is important to point out, that the aforesaid suits were filed by only
15 tenant-members. It is these 15 tenant-members, who had pursued their
prayer for interim relief, before the High Court. It is not a matter of dispute, that
the suits referred to above, were not filed in a representative capacity, and as
such, it would be incorrect to assume, that the aforesaid suits can be considered
to have been filed by all the 69 tenant-members. The correct factual position is,
that out of 69 tenant-members only 15 tenant-members had filed the aforesaid
suits. The number of tenant-members who were pursuing their remedy through
the aforesaid suits, has diminished further before this Court, inasmuch as Special
Leave Petition (C) nos.30847-49 of 2012 comprises of 8 petitioners only. It is
Page 28
therefore apparent, that 7 of the plaintiffs in the suits, have now not joined hands
with those who have approached this Court, (and are now appellants, before this
Court). The instant factual narration however proceeds further, inasmuch as, IA
nos.17-19 of 2012 (arising out of SLP (C) nos.30847-49 of 2012) have been filed
by three of the petitioners (now appellants) i.e., petitioner/appellant nos.2, 3 and
4, i.e., Jennifer Pegado, Elwyn D’cruz and Don Donato D’Silva, with a prayer for
transposing them as respondents, as they do not want to pursue the matter any
further (along with the remaining petitioners).
In view of the prayer made in the
aforesaid interlocutory application, it is apparent, that the strength of the tenant members who had initiated the civil suits, referred to above, has successively
diminished from 15 in the civil suits, to 8 at the special leave petition stage, and
further to 5 at the appellate stage (after three of the petitioners have prayed for
transposing them as respondents). Keeping in mind, that the total tenantmembers are 69, and the relief sought in the suits, and now through the instant
petitions/appeals (which are filed on the strength of being tenant-members), has
diminished to 5, it would be inappropriate to consider the grant of any interim
relief, in the absence of any clear determination, that the claim pressed by the
appellants before us, is at the behest of at least a simple majority of the tenantmembers. Out of 69 tenant-members 35 would constitute a simple majority. The
instant petitions/appeals are now being pursued by only 5 tenant-members. In
the aforesaid view of the matter, the acceptance of the prayer made by the
tenant-members for interim directions, would not only be inappropriate but would
be unthinkable.
27. Secondly, the principal contention advanced at the hands of the learned
counsel for the petitioners/appellants before the High Court was, that after the
Page 29
resolution of the Catholic Society dated 6.12.2009 (and the consequential
conveyance deed dated 7.12.2009) is implemented, the petitioners/appellants
would lose their primary membership with the Catholic Society. This, according
to the learned counsel for the petitioners/appellants, would be violative of Section
35 of the Cooperative Societies Act, for the simple reason, that the tenantmembers cannot be compelled to lose their membership of the CooperativeSociety, without the approval of the Registrar, Cooperative Societies. Based on
the aforesaid reasoning, it was submitted, that the resolution dated 6.12.2009
(and the consequential conveyance deed dated 7.12.2009) run counter to the
cooperative principles enshrined in the Cooperative Societies Act.
28. While determining the aforesaid claim canvassed at the hands of the
tenant-members, the Division Bench of the High Court, in the impugned order
dated 9.8.2012, had clearly recorded that there was no question of the tenantmembers losing their cooperative membership. In this behalf it was pointed out,
that all the 69 tenant-members, besides 161 allottee-members would be entitled
to occupy the tenements, consequent upon completion of the building project
emerging out of the resolution of the Catholic Society dated 6.12.2009 (and the
consequential conveyance deed dated 7.12.2009). Accordingly, the High Court
while accepting the plea advanced at the hands of the Catholic Society,
expressed the view, that after the construction of the new tenements at
Willingdon East, they would be occupied by the allottee-members and the tenantmembers. Thereafter, they would have to be enrolled as members of the
Cooperative Society to be formed by the developer, under Section 10 of the
Maharashtra Ownership of Flats (Regulation of the Promotion, Construction,
Sale, Management & Transfer) Act, 1963, read with Rule 10 of the rules framedPage 30
thereunder. Since the aforesaid factual/legal position was not disputed before us,
during the course of hearing, we have no alternative but to accept the same.
Thus viewed, it is not possible for us to conclude that the tenant-members shall
lose their cooperative membership upon the implementation of the resolution of
the Catholic Society dated 6.12.2009 (and the consequential conveyance deed
dated 7.12.2009). We are therefore satisfied, that on the instant aspect of the
matter, the petitioners/appellants before us, will not be subjected to any
irreparable loss.
29. The third contention advanced at the hands of the learned counsel for the
petitioners/appellants, was again on the aspect of irreparable loss. It was sought
to be canvassed at the hands of the appellants, that once the resolution of the
Catholic Society dated 6.12.2009 (and the consequential conveyance deed dated
7.12.2009) is given effect to, the claim made by the tenant-members for the
bifurcation of the Catholic Society under Section 18 of the Cooperative Societies
Act will stand frustrated. It was submitted, that the position would be irreversible,
and as such, it is imperative to injunct the Catholic Society, from giving effect to
the resolution dated 6.12.2009 and the conveyance deed dated 7.12.2009.
30. Even though there may be some truth in the third submissions canvassed
at the hands of the petitioners/appellants (as has been noticed in the foregoing
paragraph), it is not possible for us to accede to the claim of the
petitioners/appellants, in the peculiar facts and circumstances of this case. In so
far as the instant aspect of the matter is concerned, it would be relevant to
mention, that the first dispute between the rival parties arose when the Catholic
Society resolved to redevelop the land measuring about 5.5 acres, known asPage 31
Willingdon East. The aforesaid resolution was passed as far back as on
25.9.1966. The said resolution was assailed by the tenant-members under
Section 91 of the Cooperative Societies Act. The issue attained finality in favour
of Catholic Society, after a Division Bench of the High Court dismissed the intracourt appeal preferred by the tenant-members, on 25.7.1972. The aforesaid
resolution dated 25.9.1966 (which was declared as legal by the High Court),is
sought to be given effect to by the Catholic Society, through its resolution dated
6.12.2009 (and consequential conveyance deed dated 7.12.2009). Five tenantmembers are now desirous of stalling the resolution of 25.9.1966, even though
about 47 years have gone by since then. The narration of the factual position
recorded above reveals that the Catholic Society, left to itself, would have
commenced the redevelopment of Willingdon East, comprising of 230 tenements,
more than four and a half decades prior hereto, had the tenant-members allowed
the Catholic Society to proceed with the matter in terms of its aforesaid
resolution. The instant action of the tenant-members has adversely affected all
those who would have been entitled to tenements, had the petitioners/appellants
herein not obstructed to the redevelopment resolution of the Catholic Society.
Deprivation of the rights of 230 individuals, at the behest of five of them, tilts the
balance of convenience in favour of the majority (230 – 5 = 225), and against a
miniscule minority of 5 members. In this view of the matter also, we are of the
view that the High Court while passing the impugned order dated 9.8.2012 was
fully justified,in vacating the interim order(s) passed by the learned Single Judge
(dated 11.1.2010 and 5.5.2011).
31. The main contention advanced at the hands of the learned counsel for the
petitioners/appellants, is based on a plea canvassed at the hands of the tenant-Page 32
members for the bifurcation/division of the Catholic Society. Unless the aforesaid
issue is examined objectively, the issue in hand cannot be treated to have been
appropriately deal with. In this behalf, it would be pertinent to mention, that the
tenant-members had filed an application under Section 18 of the Cooperative
Societies Act, to protect the interest of the tenant-members of the Catholic
Society. To achieve the aforesaid objective, it was canvassed, that the Catholic
Society should be bifurcated/divided in such a manner, that one of the emerging
societies would comprise of only tenant-members. The second resultant society,
could cater to all non-tenant members. Inspite of the fact, that the aforesaid
process (seeking bifurcation of the Catholic Society) was initiated by the tenantmembers in the seventies, and inspite of the fact that about four decades have
since elapsed, the tenant-members have failed to obtain a final determination
with reference to their prayer for bifurcation/division of the Catholic Society.
32. All the same, we have independently considered the plea of
bifurcation/division raised by the petitioners/appellants noticed above. Even
though the Deputy Registrar, Cooperative Societies, Mumbai vide an order dated
28.11.2007, had allowed the prayer made by the tenant-members for
bifurcating/dividing the Catholic Society, yet the aforesaid order dated 28.11.2007
was quashed by the Divisional Joint Registrar, Cooperative Societies, Mumbai,
while disposing of an appeal preferred by the Catholic Society, on 29.9.2009. As
of now, the tenant-members have not obtained any order for bifurcating/dividing
the Catholic Society. However, what needs to be considered at the present
juncture is, that even the Federal Society, i.e., the Bombay-Thane District
Cooperative Housing Society Limited in its report dated 7.6.1980, had concluded
that there was no justification for the bifurcation/division of the Catholic Society.Page 33
Furthermore, tenant-members had filed Revision Application no.713 of 2009
before the State Government, to assail the order passed by the Divisional Joint
Registrar, Co-operative Societies, Mumbai dated 29.9.2009. It would be relevant
to mention, that the Deputy Registrar, Co-operative Societies, Mumbai, had
ordered the bifurcation/division of the Catholic Society vide an order dated
28.11.2007. The Divisional Joint Registrar, Co-operative Societies had set aside
the aforesaid bifurcation order on 29.9.2009. The Revision Application no.713 of
2009, filed to challenge the quashing order, was withdrawn by the tenantmembers. The tenant-members must, therefore be deemed to have acquiesced
to the order dated 29.9.2009. In a sense, therefore, the plea for bifurcation may
reasonably be taken as having been not pressed, specially when, remand
proceedings are not shown to have proceeded further. Accordingly, it is natural
to infer, that the objective of the tenant-members, for seeking the
bifurcation/division of the Catholic Society, is not being seriously pursued. Even
though the matter has not attained finality as of now, yet it is not possible for us at
this juncture, to record a prima facie finding in favour of the tenant-members.
What needs to be kept in mind, is the effect of the pending consideration.
33. Merely on account of the said pending claim for bifurcation raised by 69
tenant-members, they have exclusively occupied 5.5 acres of land situated in
Santacruz, Mumbai. On the redevelopment of the said land, 230 tenements will
be created. The gains to the tenant-members, are clearly incomparable to the
loss which has ensued on account of continued status quo. 161 beneficiaries, as
per the resolution of the Catholic Society dated 25.9.1966 who had made
deposits in 1966 (at the asking of the Catholic Society) are still waiting. Thus
viewed, even on the aspect of bifurcation/ division of the Catholic Society, therePage 34
can hardly be any justification in the prayer made by the tenant-members, for an
injunction against the resolution of the Catholic Society dated 6.12.2009 (and the
consequential conveyance deed dated 7.12.2009). The balance of convenience,
is surely not in favour of the tenant-members.
34. While we are also satisfied, that the Division Bench of the High Court in the
impugned order dated 9.8.2012 has correctly evaluated the rights of the
petitioners/appellants in their capacity as tenant-members. In so far as the
instant aspect of the matter is concerned, it would be pertinent to mention, that on
the issue whether the tenant-members had a separate identity and right (as
against the other members of the Catholic Society) came to be considered by a
learned Single Judge of the High Court in Misc. Petition no.252 of 1972. The
plaintiffs in the present suits (Suit no.144 of 2010, and Suit no.145 of 2010) are
admittedly the same as the petitioners in Misc. Petition no.252 of 1972. The High
Court having considered the aforesaid issue, namely, whether the
petitioners/appellants had any proprietary right as tenant-members of the Catholic
Society, it held as under:
“This is an entire frivolous petition by the members of a co-operative
society for writs and order under Art.226 of the Constitution quashing the
orders passed by the respondents. The effect of the impugned orders was
that the suit filed by the present petitioners for declarations that the
Resolutions passed at the annual general meeting of the first respondent
society were illegal, void and inoperative in law and that the present
petitioners to quiet and peaceful enjoyment of their respective tenements,
stood dismissed by the appropriate authorities under the Maharashtra
Cooperative Societies Act, 1960. In challenging the said orders by the
present petition, the petitioners have raised various contentions, but I need
refer to only three of them and they are as follows:
(1) that the general body of the first respondent society has no
power to deprive the petitioners of their tenements;
...........Page 35
In support of the first proposition Mr.B.R. Nayak has relied on the
decision of the Full Bench of this Court in the case of Manohar vs. Konkan
Co.op Housing Society (63 Bom. L.R. 1001 at 1006), but I am afraid the
said decision instead of helping Mr.Nayak on the point, is against him in so
far as it lays down in unmistakable terms that it is the society alone which
is the absolute owner of the property and the members of the society have
merely the rights and obligations conferred by the various provisions of the
statute itself. It is, therefore, quite clear that it is the society that, as the
absolute owner of the property, would have all the rights which any other
owner of the property has, and that the petitioners have no proprietary
interest at all in their tenements. Under the circumstances, the petitioners
do not have even a prima facie case on the point that the first respondent
society has no right to depirve them of their tenements.”
The applicants in Misc. Petition no.252 of 1972, assailed the order dated
17.4.1972 (extracted above), by filing Appeal no.74 of 1972. Appeal no. 74 of
1972, was dismissed by a Division Bench of the High Court, on 25.7.1972. The
aforesaid determination attained finality between the rival parties. In the
impugned order dated 9.8.2012, the Division Bench of the High Court by relying
upon the aforesaid determination, further concluded that, the
petitioners/appellants are disentitled in law to claim the relief sought by them. It
is apparent, that the relief sought by the tenant-members, is a relief which can
ordinarily be sought only by individuals/parties who have a proprietary interest, in
the subject matter. While we concur with the Division Bench, to the effect that the
tenant-members have no proprietary interest in the subject matter of the
controversy, it is necessary for us to refrain from further determining, whether or
not the petitioners/appellants in their capacity as tenant-members having no
proprietary interest can still claim an exclusive right to redevelop a part of 5.5
acres of land constituting Willingdon East, (even if it is assumed, that they do not
have a right to redevelop, the entire land of Willingdon East), by seeking a
bifurcation of the Catholic Society. Be that as it may, the Catholic Society has
undoubtedly, on the basis of the instant consideration, made out a prima facie
Page 36
case in its favour (the final determination whereof will only be rendered, at the
culmination of the proceedings, initiated through the civil suits referred to above).
In view of the deliberations recorded hereinabove, yet again it would be
inappropriate to grant an injunction, restraining all redevelopmental activities, in
terms of the prayer made by the petitioners/appellants.
35. In the background of the conclusions drawn by us hereinabove, it is no
longer necessary to examine the matter under any other parameter(s). Be that as
it may, we wish to consider the claim raised by the tenant-members, i.e., the
petitioners/appellants before us, on the basis of their contention that whilst the
conveyance deed dated 7.12.2009 contemplates a consideration of Rs.70 crores
payable to the Catholic Society, the tenant-members had been able to procure a
better offer, wherein, for the same developmental project the consideration
offered was of Rs.75 crores.
36. The instant issue has been examined minutely by the High Court in the
impugned order dated 9.8.2012. While doing so, the High Court has drawn the
following conclusions.
Firstly, that only M/s. Robin Home Developers Pvt. Ltd.
(M/s. Sumer Associates) had come forward with a proposal of redevelopment of
Willingdon East. Due to the pending litigation, no recognized builder was
prepared to make an unconditional offer on “as is where is” basis. Most of the
builders wanted the Catholic Society to settle the pending litigation. Since the
litigation had been pending for the last more than four decades, the Catholic
Society was not in a position to abide by the pre-condition canvassed at the
behest of the recognized builders.
Secondly, the Catholic Society at the time of
the general body meeting held on 6.12.2009, had only one proposal, namely, the
Page 37
proposal of M/s. Sumer Associates.
Thirdly, M/s. Sumer Associates had assured
the Catholic Society of a sum of Rs.70 crores. In fact, the aforesaid amount of
Rs.70 crores was kept in escrow by M/s. Sumer Associates.
Fourthly, during the
general body meeting of the Catholic Society, some of the tenant-members orally
made an offer of Rs.75 crores without depositing a single paisa as against the
concrete proposal of M/s. Sumer Associates.
Fifthly, based on the documents
placed on the record, it was clear, that the offer of Rs.75 crores made by the
tenant-members, was in fact made by a rival builder, namely, Mr. B.Y. Chavan
(who was duly impleaded before the High Court). It is therefore, that the Division
Bench of the High Court in the impugned order dated 9.8.2012, made the
following observations:-
“33. It was urged by the learned counsel for the appellants that Mr.
Chavan is instigating the plaintiffs to carry on the litigation. Bills
submitted by the Attorneys have been placed on record, to show that
Mr. Chavan has been actively instrumental in giving instructions to
the solicitors/counsels for the plaintiffs. The correspondence is
placed on record to demonstrate that the offer of Rs.75 crore has
been made at the behest of Mr. Chavan. Mr. Chavan is a party to
the proceeding and his right, if any, is based on the MOU executed in
his favour by only 8 tenant-members. Mr. Chavan was present at the
conferences held by the plaintiff’ solicitors as evidenced from the
bills sent by the solicitors for the conferences held on 29 September
2009, 4 December 2009, 5 December 2009 and 12 December 2009
regarding writ petitions/suits filed by the plaintiffs against the Society.
Having seen the conduct of the said developer-Mr. Chavan, the
Society had no confidence in him and his associates and has
expressed confidence in the M/s. Sumer Associates. It is for the
Society to decide who should be given the development rights and
not for a small minority of 15 persons like the plaintiffs. The plaintiffs
urged at length before us that the course adopted by the Sumer
Associates is inequitable and bad in law. However, when the
counsel for Mr. Chavan at the end of the hearing made an offer for
higher figure and act exactly in the same manner as M/s. Sumer
Associates, no objection was raised by the plaintiffs. No contention
was then raised that development through Mr. Chavan in the same
manner as M/s. Sumer Associates will affect the claim of plaintiffs of
bifurcation of the Society. Thus upon offer of Mr. Chavan, all
arguments of the plaintiffs based on law and equity vanished. This
conduct of the plaintiffs is relevant when the Court considers passingPage 38
equitable orders. Such conduct of the plaintiffs themselves is
against the spirit of co-operative movement and there can be no
other higher breach of principles of co-operative movement when a
small minority of members stall the decision of overwhelming
majority of members and deprive the members of their legitimate
claim. The Court proceedings cannot be used as an instrument of
harassment and extortion. Prima facie, we find substance in the
contention of the Society that Mr. Chavan is using the plaintiffs as a
tool to block the redevelopment of the Society.”
The aforesaid conclusion drawn by the High Court is sought to be reiterated by
the applicants in Interlocutory Application nos. 17-19 of 2012. As already noticed
hereinabove, the instant interlocutory applications have been filed by three of the
petitioners/appellants, namely, Jennifer Pegado, Elwyn D Cruz and Don Donato
D’Silva.
In paragraph 2 of their aforesaid applications, it was sought to be
averred as under:-
“2. That the above petition was filed by these petitioners at the instance
of B.Y. Chavan and Sagar Builders & Developers i.e. respondent
nos. 17 and 18 in the above petition and who have been instigating
the tenants in the property to pursue a Bifurcation Application and
stall the re-development of the Willingdon (East) property which has
been sold by the respondent no. 1-Society to the respondent no. 20.
The said respondent nos. 17 and 18 have been spending the entire
litigation expenses for the last number of years as also in respect of
the present petition with a view to obstruct re-development of the
Willingdon (East) property in view of they being unsuccessful in
acquiring the same by causing a bifurcation of the Society. These
petitioners have now realized that the above petition being
prosecuted is only in the interest of B.Y. Chavan and Sagar Builders
& Developers, the respondent nos. 17 and 18 in the above matter
and therefore having settled their differences with the respondent no.
1 and respondent no. 2 have addressed letters to Advocates Shally
Bhasin Maheshwari, who has been engaged by the respondent nos.
17 and 18 on behalf of the petitioners calling upon the said
Advocates to forthwith withdraw the above Special Leave Petition.
However, notwithstanding the said instructions the said Advocates
have failed to withdraw the petition and now instead of withdrawing
the petition seek to continue with this Special Leave Petition by
merely dropping these petitioners as petitioners. The petitioner no. 6
Martin James Michael has also settled his differences with
respondent nos. 1 and 20 and his siblings and has also instructed
Advocate Shally Bhasin Maheshwari to withdraw the petition,
however, since then he has sometime in the past few weeks passed
away and therefore he may be dropped as petitioner.”
Page 39
Based on the factual position noticed by three of the petitioners/appellants in I.A.
nos. 17-19 of 2012, the finding recorded by the High Court in respect of the offer
of Rs.75 crores can be stated to have been made at the behest of a rival builder
Mr. B.Y. Chavan. Mr. B.Y. Chavan has even paid for the litigation expenses of
the tenant-members.
The tenant-members readily accepted the offer made by
Mr. B.Y. Chavan, when he proposed before the High Court that he would act in
the same manner as M/s. Sumer Associates.
It is therefore natural to infer, that
the tenant-members are agreeable to the redevelopment of 5.5 acres land
comprising of Willingdon East in the manner contemplated by the resolution of
the Catholic Society dated 6.12.2009 (and the consequential conveyance deed
dated 7.12.2009), which is impugned in the suits filed by the tenant-members.
This also prima facie shows that the action of the tenant-members prima facie
seems to lack bona fides.
We therefore affirm the determination rendered by the
High Court in the impugned order, that
it was for the Catholic Society to decide
who should be given the redevelopmental rights, and not the tenant-members who are a small minority of 15 persons (the number having now diminished to 5) who have initiated the litigation out of which the present proceedings have arisen.
As of now, therefore, it is possible to prima facie infer, that the
petitioners’/appellants’ claim before the High Court does not seem to be bona
fide.
They also do not prima facie seem to have genuinely initiated the instant
litigation. In the above view of the matter, the opinion recorded by the High
Court, that all arguments of the plaintiff based on law and equity vanished, upon
the offer made by Mr. B.Y. Chavan, cannot be stated to be unjustified.
37. For all the reasons recorded hereinabove, we find no merit in the instant
Civil Appeals. The same are accordingly hereby dismissed.
Page 40
…………………………….J.
(P. Sathasivam)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
March 22, 2013.
