By Advocate K K Ramani.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL
APPELLATE JURISDICTION
WRIT PETITION NO. 10285 OF 2009
Harsha Coop. Housing Society Ltd. & Ors. .. Petitioners
Vs.
Kishandas S. Rajpal & Ors. .. Respondents
Mr. A. S. S. Murthy i/b Mr. A. P. Steenson i/b A. P. Steenson & Associates
for the Petitioners. Mr. N. N. Bhadarshete for Respondent Nos.1 & 2. Mr. R.
M. Patne AGP for Respondent No.3.
CORAM : MRS. R. S. DALVI, J. DATE
The petitioners are the cooperative society, several of its members and
the developers of the society premises. The respondents are father and son
who constitute one member of the society (respondent). The society passed
a resolution for development of its premises on 26.08.2008. This resolution
came to be passed pursuant a notice of that meeting given on 20.08.2008
which in turn came to be given in view of letter signed by 7 out of 12
members of the society setting out 8 issues relating to proper functioning of
the society which was required to be attended by the Chairman.
One of the matters on the Agenda of the Meeting mentioned in the
notice of the meeting was the “repair request all the members”. This was
inter alia discussed at the meeting. The resolution of the society shows that
the society building was in dilapidated condition and “beyond repairs”. The
members took a decision for the “redevelopment of the society building”. In
the said meeting the members discussed various offers of various developers
and builders such as Mohini Sheltors, Mayfair, sheth, Capital Square,
Radhakishan Construction. The members discussed various offers and
directed the committee members to investigate about shortlisted developers
and take steps for redevelopment of the society.
It was contended by the respondent that passing of such a resolution is
illegal because under bye law No.97 the Special General Body Meeting
could not transact any business other than what was mentioned in the notice
A dispute therefore came to be filed for declaration that the resolution
was illegal and for grant of injunction restraining the society from acting
upon it. The injunction was refused by the Cooperative Court and granted
by the Cooperative Appellate Court, Mumbai.
It is contended on behalf of the respondents that since the agenda
was “repair” of the building premises, “redevelopment” of the premises and
granting the contract to Mohini Sheltors as developers of the society
building was outside the purview of the byelaw No.97.
A reading of the letters received by the Managing Committee setting
out the issues to be discussed, the notice of the meeting for that purpose and
the actual meeting held to discuss the issues which inter alia was the repair
of the society premises cannot show that the decision of the members upon
deliberation of the meeting that the society premises was beyond repairs and
must be redeveloped after investigation of the short listed developers is
outside the purview of the byelaw No.97.
For each of the specific steps to be taken in ultimately deciding the
repairs/redevelopment of the society building and premises, separate matters
on the agenda need not be shown and separate meetings need not be held.
The petitioner society is a small housing society consisting of 12
members. 11 out of those members have consistently agreed for
redevelopment since the meeting held on 26.08.2008. In that meeting they
required the investigation of the shortlisted developers only. Pursuant to the
wishes of the members, are short listed developer was deemed fit to develop
It is not disputed that the society building premises is dilapidated. Yet
the respondents did not agree with the redevelopment of the society
premises by the shortlisted developer. That, of course, was his privilege and
choice. However, since he was in an absolute minority, the wishes of the
society members in an absolute majority was required to be exceeded to.
10. It is argued on his behalf that by Government Notification issued under
Section 79A of the Maharashtra Cooperative Societies Act (the Act), a
registered architect on the panel of the Government was to be selected and
the procedure as shown therein required to be complied which is not done
and which vitiated decision of the society.
11. The reliance upon the Government Notification is itself misplaced.
When the members of the cooperative housing society which, under law of
cooperation, decides by a majority of 11:1 members that the society
premises be developed in a particular fashion by a particular developer, it
would be contrary to principles of democracy by which the society is
governed, for the sole dissenting member to interfere and require a
procedure, not required by the majority of the members to be followed
which would only consume time and be
Government Resolution would be required to be followed by the society
where the members are unable to come to any decision by a resolution of
12. The petitioners’ society having been injuncted from carrying out the
wishes of its members for the redevelopment of its society by the impugned
injunction order sought to hold a fresh election for its new managing
committee. The new committee came to be appointed by a fresh election on
25.09.2009. The new managing committee gave a new notice to hold a
Special General Meeting of the society on 30.10.2009. The respondent was
given notice. Members at that meeting agreed with the earlier decision.
Consequently the impugned order became infructuous. Nevertheless the
impugned order is challenged.
13. The respondent as a member would have a right to appear at the
meeting. Consequently though it was stated that he was given notice of the
meeting but failed to appear, the Court directed the society and all the
members once again meet and consider the aspect of the redevelopment of
the society premises on 7th March, 2010. It was mentioned to the Court that
the respondent had three other offers which were far superior and hence it
was considered in the fitness of things to reconsider of all these offers
14. The society meeting has been held yesterday. The respondent as well as
other members have attended. Four offers including the offer of Mohini
Sheltors together with certain amendments have been considered. The
respondents have produced a columnar statement of the four offers.
15. It is contended on behalf of the respondent that, a look at the columnar
statement shows that all of the respondent’s three offers are better than that
16. The columnar statement shows that all the three developers have
offered to construct only the residential premises of the society whereas
Mohini Sheltors has offered to construct commercial and residential
premises. It need hardly be stated that the commercial premises on the
ground floor of the building would itself enure for the benefit of the
17. The absolute advantage shown by way of absolute figure is in clause 8
of the columnar statement in which one of the offers of the respondent
shows the corpus which will be created at the rate of 7,500 per square foot
of the carpet area of the members. Advocate on behalf of the respondent
mentioned that the respondent would obtain Rs.23.33 lacs and the entire
society would obtain Rs.2.80 crores by that offer. To see the bonafides of
the offer, the respondent was directed to call upon his offerer to deposit
Rs.2.80 crores in the Court. Advocate on behalf of the respondent stated that
no such deposit can be made.
18. The other aspects of the offer in the columnar statement show
percentage amount which are not tangible to reconsider.
19. The members have decided once again by a majority of 10:2 to confirm
the offer of Mohini Sheltors. The Court is not, therefore, required to
interfere with the wishes of the majority of the members. The members do
not seek to act upon the resolution passed in the meeting dated 26.08.2008.
The impugned order has become infructuous. The injunction granted under
impugned order is set aside. The members have resolved to redevelop their
society building premises. The Court cannot interfere with such resolution.
The Writ Petition is disposed of with the above clarification as the
impugned order is infructuous.
respondent is taken on record.