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IN THE HIGH COURT OF JUDICATURE AT BOMB AY CIVIL APPELLATE JURISDICTION


WRIT PETITION NO. 10285 OF 2009
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M . A. S. S. M% +", &34 M . A. P. S+**'!#' &34 A. P. S+**'!#' . A!!#)&a+*! 5# +"* P*+&+&#'* !. M . N. N. B"a-a !"*+* 5# R*!$#'-*'+ N#!.1 . 2. M . R. M. Pa+'* AGP 5# R*!$#'-*'+ N#.6. CORAM7 MRS. R. S. DALVI8 J. DATE 7 8+" Ma )"8 2010. P.C. 1. 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 notice of that meetin settin out 8 iven on 20.08.2008 which inturncameto be ive relatin to proper functionin of

n in view of letter si ned by ! out of 122 members of the society issues the society which was re"uired to be attended by the #hairman.

$ne of the matters on the % enda of the &eetin notice

mentioned

in

the of

themeetin wasthe'repairre"uest all the members(.This was inter alia discussed atthe meetin .The resolution of the society shows that the )ociety buildin was in dilapidated condition and 'beyondrepairs(.The memberstoo*adecisionforthe'redevelopmentofthesocietybuildin (.+nth esaidmeetin themembersdiscussed various offers ofvariousdevelopers and builders such as &ohini )heltors,&ayfair, )heth,#apital)"uare,,adha*ishan#onstruction. investi ate about The members shortlisted discussed various offers and directed the committee members to developers and ta*e steps for redevelopment of the society.

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4. +t was contended by the respondent that passin of such a resolut ion is ille al because under bye law /o.1! the )pecial 6eneral 7ody &eetin could not transact any business other than what was mentioned in the notice ofthe meetin . 5. % dispute therefore came to be filed for declaration that the resolution was ille al and for rant ofin8unction restrainin the society f rom actin upon it.Thein8unctionwasrefusedbythe#o9 operative#ourtand ranted by the #ooperative %ppellate &umbai. 2. +t is contended on behalf of the respondents thatsincethea enda was'repair(ofthebuildin premises,'redevelopment( of the premises an d rantin the contractto &ohini )heltors as developers of the society buildin wasoutside the purview of the byelaw /o.1!. 6. % readin of the letters received by the &ana in #ommittee sett in out the issues to be discussed, the noticeof the meetin for that pu rpose and the actual meetin heldto discuss the issues which inter alia was the repair of thesocietypremisescannotshowthatthedecisionofthem embers upon deliberation of the meetin that the societypremises was beyond repairs and must be redeveloped afterinvesti ation oftheshortli sted developers is outsidethepurview of the byelaw /o.1!. !. :oreachofthespecificstepstobeta*eninultimatelydecidin therepairs3red evelopmentofthesocietybuildin andpremises,separatemattersonthea e nda need not be shown and separate meetin s need notbe held. 8. The petitioner society is a small housin society consistin of 12 members.11 outof those members haveconsistentlya reedforredevelopmentsincethemeetin heldon26.08.2008. +nthatmeetin theyre"uiredtheinvesti ation of the shortlisted developer s only.0ursuantto the wishes of the members, are short listed develope r wasdeemed fit to develop the society buildin . #ourt,

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1. +tisnotdisputedthatthesocietybuildin premises is dilapidated.;et t he respondents did not a reewiththeredevelopmentofthesocietypremis esbythe)hortlisteddeveloper.That,ofcourse,washisprivile eand choice. <owever, since he was in an absolute minority,the wishes of the societ y members in an absolute ma8oritywas re"uired to be e=ceeded to. 10. +tis ar ued on his behalfthatby 6overnment/otification issued un der )ection !1% of the &aharashtra#ooperative )ocieties %ct(the %ct), a re istered architecton the panel of the 6overnment was to be selecte d and theprocedure as shown therein re"uired to be complied whichis not done and which vitiated decision of the society. 11. The reliance upon the 6overnment /otificationis itself misplaced. >hen the members of the cooperativehousin society which, under la w of cooperation, decidesby a ma8orityof 11?1 members that the societ y premises bedeveloped in a particular fashion by a particular develop er,it would be contrary to principles ofdemocracy by whichthe society i s overned, for the sole dissentin member tointerfereandre"uireaproc edure,notre"uiredbythema8ority of the members to be followed which would onlyconsumetimeandbecounterproductive.The6overnment ,eso lution would be re"uired to be followedby the society where the memb ers are unable to come toany decision by a resolution of their own. 12. Thepetitioners@ societyhavin been in8unctedfromcarryin outthew ishesofitsmembersfortheredevelopmentofits societyby theimpu ned in8 unctionorder sou ht to hold a fresh election for its new mana in com mittee.The new committee came to be appointed by afresh election on 22.01.2001.The new mana in committee ave a new notice to hold a )pecial 6eneral &eetin of thesocietyon 40.10.2001.Therespondentwa s iven notice.&embers at that meetin a reed with the earlier decisio n. #onse"uentlytheimpu nedorderbecameinfructuous./evertheless the i mpu ned order is challen ed.14. The respondent as a member would have a ri httoappearatthemeetin .

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#onse"uentlythou hitwasstated that he was iven notice of the meetin but failed toappear, the #ourt directed the society and all the membe rsoncea ainmeetandconsidertheaspectoftheredevelopment of the soci ety premises on !th&arch, 2010.+twasmentionedtothe#ourtthattheresp ondenthadthree other offers which were far superior and hence it wasc onsidered in the fitness of thin s to reconsider of all theseoffers to eth er. 15. Thesocietymeetin hasbeenheldyesterday.The respondent as well as ot her members have attended.:our offers includin the offer of &ohini ) heltors to ether withcertainamendmentshavebeenconsidered. Therespondents haveproduced acolumnarstatementof thefour offers. 12. +t is contended on behalf of the respondent that,aloo*atthecolum narstatementshowsthatallof respondent@sthreeoffersarebetterthanthatof &ohini )heltors. 16. The columnar statement shows that all the three offered to construct only developers the have the

residential

premises of the society whereas &ohini )heltors has offered to construct commercial and residential premises. +t need hardly be stated that the commercial premises on the round floor of the buildin would itself enure for the benefit of the members. 1!. The absolute advanta e shown by way of

absolute fi ure 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 !,200 per s"uare foot ofthe carpet area of the members.%dvocate on behalf of th erespondentmentioned thatthe respondentwould obtain,s.24.44lacsan dtheentiresocietywouldobtain,s.2.80 To see the bonafides of the offer, the crores by that offer. respondent was directed

to call upon his offerer to deposit ,s.2.80 crores in the #ourt. %dvocate on behalf of the respondent stated that no such deposit can be made. 18. The other aspects ofthe offer in the columnar statement show percenta e to reconsider. amount which are not tan ible

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11. Themembershavedecidedoncea ainbyama8ority of 10?2 to confir m the offer of &ohini )heltors.The#ourt is not, therefore, re"uired to in terfere with the wishesof the ma8ority of the members.The members d o not see* to act upon the resolution passed in the meetin 26.08.2008. The impu ned order has become dated infructuous.

The in8unction ranted under impu ned order is set aside.Themembers haveresolvedtoredeveloptheirsocietybuildin remises.The #ourtcannoti nterfere with suchresolution.The >rit 0etition is disposed of with above clarification as the impu ned order is the infructuous. The

columnar statement tendered by the respondent is ta*en on record.

9R. S. DALVI8 J/

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