Bombay High Court
Rajesh Mishra And Beena Mishra ... vs Shree Ahuja Properties Pvt. Ltd. ... on 16 September, 2021
Bench: S.J. Kathawalla, Milind N. Jadhav
Digitally
signed by
SWAROOP
SWAROOP SHARAD
SHARAD PHADKE appl 11941 of 2021-Final.doc
PHADKE Date:
2021.09.16
20:53:41
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO.11941 OF 2021
IN
NOTICE OF MOTION NO.1318 OF 2019
ALONG WITH
NOTICE OF MOTION NO.1518 OF 2019
IN
SUIT NO.760 OF 2019
WITH
INTERIM APPLICATION (L) NO.11946 OF 2021
Rajesh Mishra and Mrs. Beena R. Mishra
Legal heirs of Beena K. Mishra (Orig. Defendant No.5)
5(a) Rajesh Keval Mishra, aged 54 years,
5(b) Manmohan Keval Mishra, aged 56 years
5(c) Kavita Keval Mishra, Aged 47 years,
All of Mumbai, Indian Inhabitant,
Residing at 505, A Wing, Leela Apartments,
Yari Road, Versova, Andheri (W),
Mumbai - 400 061 ... Appellants
versus
1. Shree Ahuja Properties Pvt. Ltd.
Having its office at Ground Floor, Rajpipla,
Opposite Standard Chartered Bank,
Linking Road, Santacruz (West),
Mumbai - 400 054.
2. Brij Maraj,
Indian Inhabitant, having his address
at C/14, Radhe Niwas, 36th Road,
Bandra (W), Mumbai - 400 050.
2(a) Sushma Puri
2(b) Shakti Bala Capildeo
2(c) Dr. Shashi Bala Kazim
3. Mrs. Vandana Gursahani,
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Indian Inhabitant, having his address
at C/15, The Bandra Trilok Co-op. Housing
Society Limited, 313, Dr. Ambedkar Road,
Bandra (West), Mumbai - 400 050
4(a) Mrs. Asha Nath,
Indian Inhabitant, having her address at
2-1, Emly Apartments, 5th Floor,
15th Road, Khar (W), Mumbai - 400 052.
4(b) Mr. Lala Ravindra Nath,
Indian Inhabitant, having his address at
2-1, Emly Apartments, 5th Floor, 15th Road,
Khar (W), Mumbai - 400 052.
5(a) Mr. Shantilal L. Parmar,
Indian Inhabitant, having his address at
Flat No.401, 4th Floor, Aquarius Towers,
Kanjani CHSL, 21st Road, Khar (W),
Mumbai - 400 052.
5(b) Mr. Jitendra S. Parmar,
Indian Inhabitant, having his address at
Flat No.401, 4th Floor, Aquarius Towers,
Kanjani CHSL, 21st Road, Khar (W),
Mumbai - 400 052.
6. Mr. Brij Ahuja,
Claiming rights of Ahuja Dairy Farm and
Being heir of Late M.C.Ahuja,
Having his address at B, 101,
Versova Denzil CHSL, 3rd Cross Road,
Lokhandwala Complex,
Andheri (W), Mumbai - 400 053.
7. Dr. Bina Wadhawan,
Having her address at Garage No.A-1,
401, St. Anne's Apartment, Off. Pali Mala
Road, Bandra (W), Mumbai - 400 050.
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8. Mr. Prabhat Ruia,
Indian Inhabitant, having his address at
Flat No.2101, H Wing, Marina Enclave,
Off. Marve Road, Jan Kalyan Nagar,
Malad (W), Mumbai - 400 095.
9. Mrs. Poonam Prabhat Ruia
Indian Inhabitant, having his address at
Flat No.2101, H Wing, Marina Enclave,
Off. Marve Road, Jan Kalyan Nagar,
Malad (W), Mumbai - 400 095.
10. Ms. Sayeda Mausuma,
Indian Inhabitant, having his address at B/5,
The Bandra Trilok Co-op. Hsg. Soc. Ltd.,
313, Dr. Ambedkar Road, Bandra (W),
Mumbai - 400 050.
11. The Bandra Trilok Co-op. Hsg. Soc. Ltd.,
A Co-op. Society, registered under the provisions
of Maharashtra Co-operative Societies Act, 1960,
and having its registered office at 313,
Dr. Ambedkar Road, Bandra (W),
Mumbai - 400 050.
12. Municipal Corporation of Greater Mumbai,
having Head Office at Mahapalika Bhavan,
Mahapalika Marg, Fort, Mumbai - 400 001. ... Respondents
APPEARANCES :
Ms. Sunita M. Poddar i/by Ms. Daya S. Jadhav and Mr. Rohan A. Waghmare, for
Appellants.
Mr. Virag Tulzapurkar, Senior Advocate with Mr. Aditya Shiralkar, Mr. Nitesh
Ranavat, Ms. Disha Shetty, Mr. Akash Lodha i/by Wadia Ghandy and Co., for
Respondent No.1.
Mr. Vineet Naik, Senior Advocate with Mr. Karl Tamboly, Mr. Suraj Iyer, Ms. Gauri
Joshi, Mr. Rickin Dang i/by Ganesh and Co., for Respondent No.11.
Mr. Sagar Ptil i/by Mrs. Aruna K. Savla, for MCGM.
Mr. D.N.Kher, Court Receiver, present.
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CORAM: S.J. KATHAWALLA &
MILIND N. JADHAV, JJ.
JUDGMENT RESERVED ON : 6th JULY, 2021
JUDGMENT PRONOUNCED ON : 16th SEPTEMBER, 2021
JUDGMENT : ( PER S.J.KATHAWALLA & MILIND N. JADHAV, JJ.)
1. Three buildings known as Trilok - 'A', Trilok - 'B' and Trilok - 'C' have
been constructed on CTS Nos. C/1651, C/1653 and C/1654 of Village Bandra,
Mumbai Suburban District situated at 313, Dr. Ambedkar Road, Bandra (West),
Mumbai 400 050 ('the suit property'). These buildings were constructed in the year
1965 and are now in a dilapidated condition. The said three buildings consist of 76
flats and 20 garages. The flat purchasers formed and got 'Bandra Trilok Co-operative
Housing Society Limited ('Trilok Society') registered under Registration No.BOM/
HSG/3619 of 1972. Trilok Society has therefore, 74 members / occupants.
1.1. The father of the Appellants was the owner of Flat No.B-37 and a member
of Trilok Society. The Appellants father purchased Garage No. 12 in Trilok 'B' from
one P. S. Ajwaini in June 1971 ('the suit Garage'). The Appellants father subsequently
sold his Flat No. B-37 and only retained the suit Garage with himself. The Appellants
father passed away in the year 1984, leaving his wife Beena Mishra and his children,
the Appellants herein as his only legal heirs. Beena Mishra passed away on 18 th
August, 2012. The Appellants are therefore the only legal heirs of Keval Mishra and
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Beena Mishra.
1.2. Trilok Society filed a Suit being L.C. Suit No.164 of 2007 before the Bombay
City Civil Court at Mumbai complaining that the Appellant's mother Beena Mishra,
who was joined as Defendant No.2 in that Suit, had illegally converted the suit garage
into a shop and she was unauthorizedly carrying on commercial activities. Therefore,
Trilok Society sought a declaration that the conversion of the suit Garage from a car
parking space into a shop is illegal, and sought to restrain the Appellants mother from
using the same for commercial purposes. Trilok society also sought directions against
the Municipal Corporation of Greater Mumbai ('MCGM') to take action in respect of
the same.
1.3. The MCGM also issued a notice dated 23rd May 2013 under section 351 of
the Mumbai Municipal Corporation Act, 1888 ('MMC Act') in respect of the
Appellants user of the suit Garage as a shop. The same was replied to by the
Appellants by their Advocate's letter dated 29 th May 2013. By its order dated 24 th July
2013, the MCGM held the change of user of the suit Garage from a car parking space
to commercial to be illegal and directed the Appellants family to reinstate the user
thereof as a garage. Being aggrieved by the aforesaid notice and order passed by the
MCGM, Appellant No. 1 herein challenged the same by filing L.C. Suit No. 1266 of
2014 before the Bombay City Civil Court at Dindoshi.
1.4. The Suits filed by the Trilok Society as well as the MCGM are pending. In
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the meantime, the members of the Society decided to get the buildings which are 56
years old, redeveloped through the Respondent No.1 - Shree Ahuja Properties Pvt.
Ltd. ('the developer'). Out of 76 members and 20 garage holders, all except 7 out of
seventy six flats and 5 out of 20 garages handed over possession of their respective
flats / garages to the Society / developer for demolition. The developer is paying
approximately Rs.60 Lakhs per month to the flat owners who are out of their
respective flats since the year 2018.
1.5. With the intention of bringing the misery of the members who are out of
their houses since the year 2018 to an end and to also prevent financial loss caused to
the developer, the developer filed the above suit against the Appellants and the other
non co-operating members and also took out Notice of Motion No.1318 of 2019
interalia seeking directions against them to vacate the premises and handover the same
to the Trilok Society and/or to the developer. The developer also agreed to provide
residential flats on ownership basis to the occupants of the garages including the
Appellants on the first floor, the area of which would be equivalent to the area in their
occupation along with an additional area of 38%. The developer has gone to the extent
of stating that he shall give an area as offered to the non-coperative members including
the Appellants, even if they lose the Suit filed by and/or against them on the ground of
change of user i.e. from the car parking place to a commercial garage.
1.6. The Appellants also took out Notice of Motion No.1518 of 2019 in the Suit
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seeking to restrain the developer from interfering with the Appellants' possession of
their premises, and to restore the water connection to the Appellant's premises.
1.7. By his order dated 3rd May, 2021, the learned Single Judge disposed of
Notice of Motion No.1318 of 2019 in favour of the developer by appointing the Court
Receiver, High Court, Bombay interalia in respect of the garage in occupation of the
Appellants for the purposes of demolition of the same in furtherance of the
redevelopment project. By a separate order dated 3rd May, 2021, the learned Single
Judge rejected the Appellants' Notice of Motion No.1518 of 2019 in view of his order
passed in Notice of Motion No.1318 of 2019. The Appellants have challenged both
these orders dated 3rd May, 2021 by way of the present Appeal.
1.8. It is pertinent to note that between the date of filing of the Suit by the
developer and the pronouncement of this order, all the non-coperative members
except the Appellants have handed over their respective flats and/or garages to
the Trilok Society / developer for redevelopment, either on their own accord or
under the Consent Terms filed before this Court. Therefore, the Appellants are
the only individuals refusing to vacate the garage in their occupation, thereby
causing grave inconvenience and harassment to all the other members/occupants
of flats/garages as well as the developer.
2. Before we advert to the submissions made by the learned Counsel for the
respective contesting parties, we may briefly note the following relevant facts.
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2.1 The property of the Trilok Society, which is the subject matter of
redevelopment by the developer is land admeasuring 4,046 square meters bearing
CTS Nos. C/1651, C/1653 and C/1654 of Village Bandra, Mumbai Suburban District
situated at 313, Dr. Ambedkar Road, Bandra (West), Mumbai 400 050 ('the suit
property').
2.2 The suit property was originally owned by one Hardevi Rajpal. Hardevi
Rajpal had executed an Agreement for lease dated 18 th October 1961 in favour of
United Building Corporation, who constructed three buildings on the suit property
known as Trilok 'A', Trilok 'B' and Trilok 'C', inter alia consisting of seventy six flats
and twenty garages. United Building Corporation sold the flats and garages in the
buildings to flat purchasers. These flat purchasers formed and got the Trilok Society
registered, under registration no. BOM/HSG/3619 of 1972. Today there are seventy
four members of the Trilok Society.
2.3 The Appellants father, Keval Mishra, was the owner of Flat No. B-37 on
the suit property, and a member of Trilok society. The Appellants father purchased
Garage No. 12 in Trilok 'B' from one P. S. Ajwaini in June 1971 ('the suit Garage').
The Appellants father subsequently sold his Flat No. B-37 and only retained the suit
Garage with himself. The Appellants father has since passed away in 1984, leaving the
Appellants mother Beena Mishra and the Appellants as his legal heirs.
2.4 By and under a registered deed of conveyance dated 11 th August 2005,
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Hardevi Rajpal conveyed the suit property in favour of the developer.
2.5 Trilok society filed a suit being L. C. Suit No. 164 of 2007 before the
Bombay City Civil Court at Bombay complaining that the Appellants mother Beena
Mishra, who was joined as Defendant No. 2 in that suit, had illegally converted the
suit Garage into a shop, and that she was unauthorisedly carrying on commercial
activities therefrom. Trilok society sought a declaration that the conversion of the suit
Garage from a car parking space into a shop is illegal, and sought to restrain the
Appellants mother from using the same for commercial purposes. Trilok society also
sought directions against the Municipal Corporation of Greater Mumbai ('MCGM')
to take action in respect of the same.
2.6 The Appellants mother - Beena Mishra passed away on 18 th August
2012.
2.7 The MCGM issued a notice dated 23 rd May 2013 under section 351 of
the Mumbai Municipal Corporation Act, 1888 ('MMC Act') in respect of the
Appellants user of the suit Garage as a shop. The same was replied to by the
Appellants by their Advocate's letter dated 29 th May 2013. By its order dated 24 th July
2013, the MCGM held the change of user of the suit Garage from a car parking space
to commercial to be illegal and directed the Appellants family to reinstate the user
thereof as a garage.
2.8 Being aggrieved by the aforesaid notice and order passed by the MCGM,
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Appellant No. 1 herein challenged the same by filing L.C. Suit No. 1266 of 2014 before
the Bombay City Civil Court at Dindoshi.
2.9 The buildings on the suit property, which had been constructed in 1965,
required extensive repairs, which was causing a financial burden on the Trilok society
and its members. Accordingly, the society and its members decided that it would be in
their best interest to get the suit property redeveloped by demolishing the existing
buildings and constructing a new structure thereon. At a special general body meeting
held on 18th March 2013, the general body of the Respondent No. 11 society resolved
to appoint Respondent No. 1 as the developer to redevelop the suit property.
2.10 Certain disputes arose between the society and the developer, due to
which Trilok society filed Suit No. 506 of 2017 before this Court seeking expeditious
execution of the redevelopment scheme by the developer. The disputes came to be
resolved amicably, and the developer and the Trilok Society entered into Consent
Terms dated 29th August 2017. By an order dated 29 th August 2017 passed in that Suit,
the Consent Terms were taken on record and a decree was passed in terms thereof.
Subsequently, Respondent Nos. 1 and 11 entered into supplementary Consent Terms
dated 9th July 2018. The same were taken on record and an order dated 9 th July 2018
was passed in terms thereof in that Suit.
2.11 Thereafter, by registered deed of conveyance dated 31st August 2018, the
developer conveyed the suit property in favour of Trilok Society.
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2.12 By and under a registered lease cum development agreement dated 31 st
August 2018, the Trilok society leased the suit property in favour of the developer,
with permission to redevelop the same by demolishing the existing buildings and
constructing a new building thereon, on mutually agreed terms and conditions.
2.13 Pursuant to the scheme of redevelopment, sixty seven out of seventy
four members of the Respondent No. 11 society vacated their respective premises and
handed over the same to Respondent No. 1. However, since Defendant Nos. 1 to 10 in
the Suit i.e. the Appellants and Respondent Nos. 2 to 10 herein failed / refused to
hand over their respective flats / garages to the developer or to the Trilok Society, the
developer was constrained to file the Suit before this Court in October 2018. The Suit
was originally filed joining the Appellants mother Beena Mishra as Defendant No. 5.
However, in view of her having passed away before the Suit was filed, the Suit has
since been amended and the Appellants were joined as Defendant Nos. 5(a) to (c) in
her place and stead.
2.14 The following are the details of the parties who had failed to hand over
their respective premises to Respondent Nos. 1 or 11 at the time of filing the suit:
Defendant Respondent Flat / Garage No. Status i.e.
No. in Suit No. in Appeal member / non
member
1(a) to (c) 2(a) to (c) Flat No. 14 'C' building Member
2 3 Flat No. 15 'C' building Member
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3(a) and (b) 4(a) and (b) Flat No. 4 'C' building Joint members
4(a) and (b) 5(a) and (b) Flat No. 16 'B' building Joint members
5(a) to (c) Appellants Garage No. 12 (suit garage) Non members
'B' building
6 6 Garage Nos. 8, 9 and 10 'B' Non member
building
7 7 Garage No. 1 'A' building Non member
8 and 9 8 and 9 Flat Nos. 26 and 27 'B' Non members
building
10 10 Flat No. 5 'B' building Non member
2.15 Thus on the date of filing of the Suit by the developer, the occupants of
seven out of seventy six flats, and 5 out of 20 garages on the suit property had not
vacated their respective premises.
2.16 The developer took out Notice of Motion No. 1318 of 2019 in the Suit
seeking appointment of the Court Receiver, High Court Bombay in respect of the
premises set out in the above table including the suit Garage, for the purposes of
demolition in furtherance of the redevelopment scheme. It was also prayed that the
concerned Defendants be restrained from obstructing the redevelopment work.
2.17 The Appellants herein also took out Notice of Motion No. 1518 of 2019
in the Suit filed by the developer, seeking to restrain the developer from interfering
with the Appellants possession of, and carrying on their day to day business from, the
suit Garage. The Appellants further sought restoration of water to the bathroom
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situated in the suit Garage, which they say was disconnected by the developer. The
Appellants also sought to restrain the developer from digging the compound or
demolishing any of the buildings on the suit property.
3. The Appellants filed an Affidavit of Appellant No. 1 dated 22 nd
November 2018 in reply to the developer's Notice of Motion No. 1318 of 2019. The
principle case of the Appellants in their reply is that the suit Garage is legitimately a
commercial premises. The Appellants have contended that their father had purchased
the suit Garage for running the business of his sole proprietorship firm Kewal Art
Production which was a production house. According to the Appellants, the Trilok
society had permitted their father to carry on commercial activities from the suit
Garage and had even given a no objection certificate to him in this regard. According
to the Appellants, even the Appellants father's predecessor in title was using the suit
Garage for commercial purposes. According to the Appellants, the suit Garage was in
fact never a garage and was always a commercial shop since its inception and this was
even acknowledged by the erstwhile developer United Building Corporation, who had
constructed the same. In fact the MCGM has assessed the same as commercial
premises for the purposes of municipal taxes, which also shows that the same is
authorized as commercial premises. According to the Appellants, the Trilok society is
not in possession of the original sanctioned plans of the buildings which were
constructed i.e. Trilok 'A', 'B' and 'C' which would otherwise demonstrate whether
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the suit Garage was constructed as a commercial unit or not. The Appellants have
contended that they are principally not opposed to the redevelopment. However, they
are opposed to the developer offering them only residential premises in lieu of the suit
Garage which they claim to be residential premises. They have submitted that if
Respondent No. 1 agrees to give them commercial premises in lieu of the suit Garage
then they would have no objection to the redevelopment. The Appellants have
contended that the developer is resorting to strong-arm tactics to pressurise them to
vacate the suit Garage, by stopping their access to the suit Garage and disconnecting
the water supply to the same.
4. Appellant No. 1 filed a further Affidavit dated 5 th April 2019 in the
developer's Notice of Motion No. 1318 of 2019, further amplifying the submissions
made in his Affidavit dated 22nd November 2018 in reply to the Notice of Motion.
5. The developer and the Trilok Society by their Affidavits dated 6 th June
2019 and 10th January 2020 respectively, dealt with the contentions raised in the
aforesaid two Affidavits filed by Appellant No. 1. They reiterated that the suit Garage
was merely a car parking space and not commercial premises as the Appellants sought
to contend. They submitted that the Appellants by illegally holding on to the garage
and not surrendering the same for redevelopment on the ground that the Appellants
are entitled to a commercial premises in lieu of the same are causing immense delay
and putting the entire project and the interests of the members of the society at risk.
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6. The developer by its Affidavit dated 12th February 2020 placed on record
the sanctioned plans in respect of the three buildings on suit property i.e. Trilok 'A',
'B' and 'C'.
7. Appellant No. 1 filed his Affidavit dated 17th February 2020 responding
to the Affidavit dated 10th January 2020 filed on behalf of the Trilok society.
8. The MCGM filed two Affidavits dated 20 th July 2020 and 10th February
2021 in the developer's Notice of Motion No. 1318 of 2019. In its Affidavit dated 20 th
July 2020, the MCGM confirmed that it had issued a commencement certificate to the
developer in respect of the redevelopment project. In its Affidavit dated 10 th February
2021, the MCGM confirmed the correctness of the sanctioned plans of the existing
building which had been placed on record through the Affidavit dated 12 th February
2020 filed on behalf of the developer.
9. By two orders dated 3rd May 2021, which have been challenged in the
present Appeal, the learned Single Judge made the developer's Notice of Motion No.
1318 of 2019 absolute, and dismissed the Appellants Notice of Motion No. 1518 of
2019.
10. Prior to the said orders being passed by the learned Single Judge and
thereafter until this order is pronounced, all the other non co-operating members
(except the Appellants) have consented to handover the premises / area occupied by
them to the developer / Trilok Society, leaving the Appellants as the only solitary
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occupiers responsible for causing delay with regard to the entire redevelopment
project. The particulars of the other non co-operating members who have handover
their premises to the developer / Trilok Society to expedite the process of
redevelopment are as under :
(i) Respondent Nos. 5(a) and (b) have handed over possession of Flat No.
16 in Trilok 'B' to the developer as agreed under the Consent Terms dated 15 th
February, 2021.
(ii) Respondent Nos. 8 and 9 have handed over possession of Flat Nos. 26
and 27 in Trilok 'B' to the developer as agreed under the Consent Terms executed
with the developer.
(iii) Respondent No. 10 has handed over possession of Flat No. 5 in Trilok
'B' to the developer prior to the impugned orders being passed by the learned Single
Judge.
(iv) Respondent Nos. 2(a) to (c) have not challenged the order dated 3 rd
May 2021 passed in Notice of Motion No. 1318 of 2019, and have handed over
possession of Flat No. 14 in Trilok 'C' to the Court Receiver.
(v) Respondent Nos. 3 and 4(a) and (b) have not challenged the order
dated 3rd May 2021 passed in Notice of Motion No. 1318 of 2019, and have handed
over possession of Flat Nos. 15 and 4 in Trilok 'C' to the developer.
(vi) Respondent No. 6 against whom the order dated 3rd May 2021 is
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directed in respect of garage nos. 8, 9 and 10 in Trilok 'B' challenged the same by
filing Appeal (L) No. 11878 of 2021 before us. As in the case of the Appellants before
us, the Trilok society had filed a suit against Respondent No. 6 being S. C. Suit No.
163 of 2007 before the Bombay City Civil Court at Dindoshi on the ground that the
garages in his occupation were illegally being used for commercial purposes. Even in
this case, the MCGM had issued a notice under section 351 of the MMC Act, which
was challenged by Respondent No. 6 by filing L. C. Suit No. 1265 of 2014 before the
Bombay City Civil Court at Dindoshi. By our order dated 8th June 2021, the Appeal
filed by Respondent No. 6 was disposed of by consent. The suit filed by Trilok Society
before the City Civil Court against Respondent No. 6 was expedited. Respondent No.
6 was directed to hand over the garages in his possession to the developer / Trilok
Society, who were permitted to demolish the same and commence the redevelopment.
The developer gave an undertaking that in the event the Trilok society fails in the suit
filed by it against Respondent No. 6 before the City Civil Court, it shall provide
commercial premises to Respondent No. 6 on the first habitable floor of the new
building of an area equivalent to the area which was under the occupation of
Respondent No. 6. The developer further undertook that in the event the Trilok
society succeeds in the suit filed by it against Respondent No. 6 before the City Civil
Court, it shall provide residential premises to him in lieu of the garages in his
occupation on par with the occupants of other garages on the suit property.
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Respondent No. 6 handed over possession of garage nos. 8, 9 and 10 in Trilok 'B' to
the developer subsequent to our order dated 8th June, 2021.
(vii) Similarly, Respondent No. 7 challenged the order dated 3rd May 2021
passed by the learned Single Judge in Notice of Motion No. 1318 of 2019 by filing
Appeal (L) No. 13865 of 2021 before us. As in the case of the Appellants and
Respondent No. 6, the Trilok society had also filed a suit against Respondent No. 7
being L. C. Suit No. 159 of 2007 before the Bombay City Civil Court at Dindoshi on
the same ground of illegal use of her garage for commercial purposes. That suit came
to be decreed in favour of the society on 11th December 2012, and Respondent No. 7
was restrained from using garage no. 1 in Trilok 'A" for commercial purposes.
Respondent No. 7 has filed a Notice of Motion in 2013 for setting aside that decree on
the ground that it was passed ex parte. That Notice of Motion is pending. That apart
Respondent No. 7 has also filed her own substantive suit being Suit No. 2467 of 2013
against the Trilok society before the Bombay City Civil Court at Dindoshi. By our
order dated 13th July 2021, the Appeal filed by Respondent No. 7 was also disposed of
by consent by recording the undertaking of Respondent No. 7 herein that she would
vacate her premises within two weeks from the date of the order i.e. by 27 th July 2021.
As in the case of the Appeal filed by Respondent No. 6, the developer gave similar
undertakings that it would provide commercial premises to Respondent No. 7 on the
first habitable floor of the new building of an area equivalent to the area under her
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occupation if she succeeded in obtaining any final judgment holding her premises to be
commercial premises. Respondent No. 1 further undertook to provide residential
premises to Respondent No. 7 in lieu of the garage in her occupation on par with the
occupants of other garage premises, in the event she fails to obtain any such final
judgment in her favour. The pending proceedings before the City Civil Court were
expedited.
(viii) By a praecipe dated 20th July, 2021, the Advocate for Respondent No.7
has moved an application styled as one for 'Speaking to the Minutes' of the aforesaid
consent order dated 13th July, 2021. The order dated 27 th July, 2021 was clarified by
our Order dated 25th August, 2021. However, before passing of the said Order dated
25th August, 2021, Respondent No.7 has handed over possession of the 'garage' to the
developer for the purpose of demolition.
Thus, today, barring the Appellants, all other occupants of the suit
property have vacated the same.
11. We have heard Ms. Sunita Poddar on behalf of the Appellants, and Shri
Virag Tulzapurkar and Shree Vineet Naik, the learned Senior Counsel appearing on
behalf of Respondent Nos. 1 and 11 respectively.
12. Learned Advocate Ms.Poddar made the following submissions on behalf
of the Appellants :
12.1 That L. C. Suit No. 164 of 2007 filed by the Trilok society against the
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mother of the Appellants before the City Civil Court in respect of the suit Garage has
abated. She submitted that the Appellants mother passed away as far back as in the
year 2012. That suit having abated, the developer and Trilok Society are not permitted
to contend that the suit Garage is not a commercial unit. She accordingly submitted
that the developer be directed to provide commercial premises in the redeveloped
building to the Appellants, and on that basis the Appellants can vacate the suit Garage
for the purposes of the redevelopment project. Relying upon the consent order passed
by us on 8th June 2021 in the Appeal filed by Respondent No. 6, Advocate Ms. Poddar
stated that the same can be made applicable to the Appellants also, but subject to the
condition that they be provided commercial premises in the redeveloped building.
12.2 That the Appellants have always shown reasonableness in the
proceedings before the learned Single Judge. At the first hearing itself of the
developer's Notice of Motion No. 1318 of 2019 before the learned Single Judge on 4 th
February 2019, upon the suggestion of the Court, the Appellants were willing to settle
the issue. A valuer was appointed to value the suit Garage to enable the parties to
arrive at a figure at which the developer could outright buy out the Appellants rights in
the suit Garage. A valuation report was filed by the valuer, but the same was not
acceptable to the Appellants, and they filed their objections to the same. This was
considered by the learned Single Judge in paragraph 21 of his order dated 3 rd May 2021
in Notice of Motion No. 1318 of 2019 though the same was never argued by her.
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12.3 That the order passed by the learned Single Judge appointing the Court
Receiver in respect of the suit Garage is a drastic order and a mandatory order of that
nature, would not be permissible at the interim stage in the Suit, and ought to have
awaited evidence being led in the Suit.
12.4 That the Appellants have been in long settled possession of the said
Garage as a commercial unit for over fifty years, and hence the developer ought to be
directed to provide them with a commercial unit on the ground floor of the
redeveloped building. The suit Garage has been a commercial unit since day one. No
vehicle has ever been parked in the suit Garage. The Appellants father has used the
same as a commercial unit in the name of his sole proprietorship firm Kewal Art
Production since its purchase in the year 1971. The same was used as a commercial
unit even by the previous owner of the suit Garage. The Respondent No. 11 society
has given a no objection certificate to the father of the Appellants to use the suit
Garage as commercial premises. The Trilok society cannot today contend that the
same is fabricated or not binding on the society. The society has issued a members
pass book in respect of the suit Garage in the name of Kewal Art Production. The
MCGM has issued a registration certificate under the Bombay Shops and
Establishment Act in favour of the Appellants father at the suit Garage. This shows
that the MCGM has permitted the use of the suit Garage for commercial purposes.
The original owner of the suit property, Hardevi Rajpal, had paid property taxes in
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respect thereof, as a house with shop. The question therefore of there being illegal
conversion of user of the suit Garage as contended by the developer and the Trilok
Society, does not arise.
12.5 That the conveyance dated 11th August 2005 executed by Hardevi Rajpal
in favour of the developer in respect of the suit property clearly records that the nature
of construction on the suit property includes shops, and hence it can be concluded
that commercial premises were constructed thereon contrary to the submissions of the
developer and the Trilok Society.
12.6 That despite the clear obligations cast upon the developer under the
Consent Terms filed in Suit No. 506 of 2017 between the developer and the Trilok
Society, the developer did not execute any lease in favour of the Trilok Society. The
developer has purported to execute a conveyance in favour of the Trilok Society. This
is not substantial compliance of the order of this Court, and hence today nobody owns
the suit property according to Advocate Ms. Poddar. She contended that in view
thereof, her clients have become the owners of the land under the suit Garage and
there is no question of them being asked to vacate the same on the strength of the
documents produced by the developer and the Trilok Society.
12.7 That the Suit had been filed by the developer in collusion with the Trilok
Society. The Suit has been filed only after the cross examination of the witness of the
Trilok Society was recorded in L. C. Suit No. 163 of 2007 filed by the society against
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the Appellants mother in the City Civil Court. The Trilok society's witness has made
many admissions during the course of his cross examination before the City Civil
Court, which are harmful to the society's case against the Appellant's mother.
Realising that the same undermines the society's chances in the suit before the City
Civil Court, the present Suit has been filed by the developer in collusion with the
Trilok society.
12.8 That the developer as well as the Trilok Society have failed to produce
the sanctioned plans in respect of the buildings constructed by the erstwhile builder on
the suit property. The witness of Trilok Society has admitted during his cross
examination before the City Civil Court that the society does not have the sanctioned
plans of the buildings. All of this has been suppressed in the Suit, and disentitles the
developer and the Trilok society to any reliefs.
12.9 That the learned Single Judge has erred in placing reliance upon the
copy of the sanctioned plan produced by the developer. The Learned Single Judge
failed to appreciate that these plans have surfaced for the first time after serious
allegations in that regard had already been made by the Appellants. There are no
sanctioned plans on record which would show that the suit Garage is not a commercial
unit. Even the MCGM has accepted that it does not have the sanctioned plans of the
buildings constructed by the erstwhile builder on the suit property on its record.
12.10 That the MCGM had issued a notice to the Appellants mother under
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section 53(1) of the Maharashtra Regional and Town Planning Act ('MRTP') in the
year 1993 alleging unauthorised enclosure of the stilt area. The Appellants mother
responded by requesting the MCGM to refer to the approved plans of the building.
The MCGM did not take any action after receipt of the Appellants mother's reply,
thereby demonstrating that it was satisfied with the same. This shows that the suit
Garage is a bona fide commercial premises.
12.11 That the developer does not have the financial wherewithal to execute
the redevelopment project on the suit property. The developer is a part of the 'Ahuja
Group' which has been directed in unconnected proceedings by this Court to deposit
several crores of rupees. In this context Advocate Ms. Poddar placed reliance upon an
order dated 14th September 2020 passed in Interim Application No. 1 of 2020 in
Commercial Execution Application (L) No. 528 of 2020. She contended that this
order records that the Ahuja Group is unable to comply with the order of deposit
made in those proceedings and accordingly it was found necessary to direct a
disclosure of the group companies assets. The developer herein forms a part of the
same group and hence there is a serious doubt cast over its ability to redevelop the suit
property. The learned Single judge failed to consider the order dated 14 th September
2020 and has not recorded her submissions made by Advocate Ms. Poddar in this
regard in the orders under challenge in this Appeal.
12.12 That the various judgments and precedents wherein it has been held that
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the minority occupants of a property cannot stall the redevelopment agreed to by the
majority occupants is distinguishable since in all those cases, the persons in minority
were members of the societies in question. In the present case, the Appellants are not
in occupation of any flats in the society, and the society has itself contended that they
are not members of the society. Moreover the Appellants are in possession of
commercial premises on the ground floor of the building. Hence, the learned Single
Judge ought not to have passed a mandatory Order based on the said judgments.
12.13 That the learned Single Judge has not considered the various documents
placed on record by the Appellants in coming to the conclusion that the suit Garage is
a car parking space and not a commercial unit.
12.14 For all of the aforesaid reasons, the orders dated 3 rd May 2021 passed in
Notice of Motion Nos. 1318 of 2019 and 1518 of 2019 in the Suit ought to be set aside.
13. Shri Tulzapurkar, the learned Senior Counsel appearing on behalf of the
developer made the following submissions :
13.1 That barring the Appellants and Respondent No. 7, all the other
members and occupants of the seventy six flats and twenty garages on the suit
property have vacated the same. The Appellants are not members of the Trilok society
and are in occupation of a garage. They are alone stalling the redevelopment of the suit
property and putting the society and its members to tremendous risk and
inconvenience.
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13.2 That by such illegal action, the Appellants have succeeded in causing
tremendous loss to the developer as well. The majority of the occupants of the suit
property had vacated the same since the year 2018. The developer has been paying
them transit rent aggregating to approximately Rupees Sixty Lakhs per month. Despite
the same, and despite the developer having all the resolutions and permissions from
the society and all the relevant development permissions, the developer is not able to
effectively proceed with the redevelopment of the suit property, as the Appellants
have illegally refused to vacate the suit Garage.
13.3 That the suit Garage is not an authorised commercial unit and hence the
Appellants are not legally entitled to demand commercial premises in lieu of the same
by way of permanent alternate premises in the redeveloped building. In this regard, it
is contended that seminal document on the basis of which the Appellants have
founded their claim is the assignment of the suit Garage by P. S. Ajwani in favour of
their father in June 1971. The very letter dated 24 th June 1971 addressed by P. S.
Ajwani to the Appellant's father stipulates the premises to be a 'garage'. On this basis
Shri Tulzapurkar contended that the Appellants case of the suit Garage being a
commercial premises since inception must fail on the strength of their own document.
13.4 That the sanctioned plan of the suit property shows that the suit Garage
is in fact a garage and not a commercial unit. The Appellants or their predecessors in
title have not obtained any authorization from the MCGM for any change of user of
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the said Garage. Hence its use as a commercial premises is illegal. This is also clear
from the fact that the MCGM has issued a notice and an order under section 351 of
the MMC Act owing to the illegal user of the suit Garage as commercial premises by
the Appellants. Though the Appellants have assailed that notice and order by filing L.
C. Suit No. 1265 of 2014 before the City Civil Court, they have failed to obtain any
interim relief in that suit.
13.5 That the alleged NOC of the society on which the Appellants have
placed reliance is not a valid NOC. The document does not bear the stamp or seal of
the society.
13.6 That under clauses 2(h) and 4(vi)(a) of the lease cum development
agreement dated 31st August 2018 executed by the Trilok society in favour of the
developer, the building to be constructed on the suit property by the developer shall be
for residential use only. In that regard, the developer has agreed to provide all garage
occupants, residential premises in the new building which are equivalent to the
existing area of each garage plus thirty eight percent additional area. That this
approach of the developer is most fair.
13.7 That mere use of a garage without any valid authority in that regard does
not entitle the occupant to claim commercial premises in the redevelopment. In this
regard, reliance was placed upon the judgment of a Division Bench of this Court in
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the case of Kankubai Harakhlal Jain v/s MCGM1. It was further contended that an
occupant is only entitled to claim benefits in the redevelopment in respect of the area
which is legally occupied. In this regard, the judgment of this Court in Hari Om Sayaji
Properties LLP v/s Yoga Yog CHSL2 was relied upon.
13.8 That it is settled law that minority members of a cooperative society
cannot obstruct the redevelopment which is agreed upon by an overwhelming majority
of its members. The decisions taken by the majority members which are reflected in
resolutions passed by the general body of the society are binding on all members and
must be given effect to. In this regard Shri Tulzapurkar placed reliance upon the
judgments of this Court in Girish Mulchand Mehta v/s Mahesh S. Mehta3, Disha
Construction vs Jaysen Mastakar4 and National Properties v/s Sindhi Immigrants CHS5.
13.9 That the learned Single Judge has applied the correct tests whilst
allowing Notice of Motion No. 1318 of 2019 in the Suit. The equity and justice of the
case lies in favour of the developer and the Trilok Society and its members and against
the Appellants.
13.10 That for all these reasons, the orders dated 3rd May 2021 passed by the
learned Single Judge in Notice of Motion Nos. 1318 of 2019 and 1518 of 2019 in the
Suit are perfectly valid and do not warrant any interference from this Court.
2 2016 SCC Online Bom 11877 - paragraph 51
3 2010 (2) Mh LJ 657 (DB) - paragraphs 16 - 20
4 2013 SCC Online Bom 1226 paragraphs 62 and 63
5 2019 SCC Online Bom 762 paragraphs 41, 42, 56 - 66
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14. Shri Vineet Naik, the learned Senior Counsel appearing on behalf of the
Respondent No. 11 society adopted the submissions made by Shri Tulzapurkar and
made the following submissions :
14.1 That even the agreement for lease dated 18 th October 1961 executed by
the original owner viz. Hardevi Rajpal in favour of the erstwhile United Building
Corporation sets out that the suit property can only be used for residential purposes.
14.2 That the Appellants had taken out a Notice of Motion for interim reliefs
in L. C. Suit No. 1266 of 2014 filed by them before the City Civil Court challenging
the notice and order issued by the MCGM under section 351 of the MMC Act. The
City Civil Court by its order dated 12th June 2014 declined to grant any interim reliefs
in the Appellants favour.
14.3 That the purported NOC stated by the Appellants to have been issued by
the society permitting the user of the suit Garage for commercial purposes is a forged
and fabricated document. The same does not bear the stamp or seal of the society. The
same would require the approval by resolution passed by the general body or at least
the managing committee of the society. The same would also require the approval of
the MCGM. None of this has been done.
14.4 That the shops and establishment certificate produced by the
Appellants, can never condone the illegal user of the suit Garage as a commercial unit.
In fact, the certificate produced by the Appellants itself contains a caveat that the same
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does not bestow any legality on the structure.
14.5 That the Appellants have failed to produce any sanctioned plan showing
the suit Garage as a commercial unit, or any legal authorisation by the municipal
authorities permitting the same to be used for commercial purposes.
14.6 That the society has passed a valid resolution for redevelopment of its
property. The same has not been challenged before any competent court or authority
and has attained finality. The same is therefore binding on the Appellants who claim
through the erstwhile members of the society.
14.7 That the members of the society who have vacated their premises since
long, and are effectively being held to ransom by the Appellants, who are not even
actually occupying the suit Garage on a day to day basis are put to grave hardship.
14.8 That for the above reasons, the present Appeal be dismissed and the
Appellants be directed to forthwith handover possession of the suit Garage to the
Court Receiver who in turn should be directed to forthwith hand over the same to the
developer for the purposes of demolition of the same.
15. The respective Advocates for the Appellants, the developer and Trilok
Society have filed their written submissions in the matter.
16. We have carefully considered the pleadings and documents filed by the
parties before the learned Single Judge and before us, the orders dated 3 rd May 2021
which are under challenge before us, and the oral and written submissions of the
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contenting parties.
17. The two issues which arise for our consideration in the present Appeal
are as follows :
ISSUE-1
(i) Are the Appellants entitled to claim commercial premises in lieu of the
suit Garage in the proposed new building on the suit property?
ISSUE-2
(ii) Was the learned Single Judge justified in directing the Court Receiver to
take over possession of the suit Garage for the purposes of demolition of
the same ?
18. With respect to the first issue which we have framed above, as we have
noted, the Appellants contend that the suit Garage is an authorised commercial unit,
whereas the developer and the Trilok Society contend that the same is merely a car
parking space which has been illegally converted into a commercial unit by the
Appellants and their family members.
19. Let us therefore examine the documents on record in this regard.
20. The best evidence to show the permitted user of a particular structure or
unit would be the approved / sanctioned plan of the same issued by the planning
authority, or any authorization or permission issued by the competent authority
permitting a particular type of user in respect of the immovable property in question.
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In this regard, Respondent No. 1 has by its Affidavit dated 12 th February 2020 placed
the sanctioned plans in respect of the three buildings on suit property i.e. Trilok 'A',
'B' and 'C' on record. In its Affidavit dated 10 th February 2021, the MCGM
confirmed the correctness of the sanctioned plans of the garages in the existing
building which had been placed on record through the Affidavit dated 12 th February
2020 filed on behalf of Respondent No. 1. The MCGM has further confirmed that the
same are sanctioned only as car parking spaces and not as commercial units or shops.
On the other hand, the Appellants have not produced any permission or authorisation
by the MCGM to use the suit Garage as a shop or commercial unit. The reliance
placed by the Appellants on the MCGM assessment records and the certificate issued
by the MCGM under Shops and Establishment Act in this regard is misconceived.
The assessment of the MCGM produced by the Appellants nowhere show the suit
Garage to be commercial premises. That apart, the assessment of a premises as
commercial by virtue of its de facto user for the purposes of levy of municipal taxes
does not amount to any authorisation of the structure as a commercial unit by the
MCGM. The very shops and establishment certificate relied upon by the Appellants
clearly states that "This is merely a registration certificate and not license and it does not by
itself bestow any legality on the structure ......." On the face of it this shops and
establishment certificate cannot come to the aid of the Appellants in contending that
they are authorised to use the suit Garage as commercial premises. Similarly, the NOC
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dated 3rd August 1973 stated to have been issued by the society cannot amount to any
permission by the competent authority, which in this case is the MCGM, for user of
the said Garage for commercial purposes.
21. In this view of the matter, we find that there is nothing placed on record
by the Appellants which would assist us in concluding that they are authorised to use
the suit Garage as commercial premises. On the contrary, the sanctioned plans of the
garages on the suit property, the authenticity of which has been confirmed by the
MCGM, would prima facie show that the same are constructed as garages. Regulation
2(68) of the Development Control and Promotion Regulations, 2034 for Greater
Mumbai define 'garage' as follows :
"Garage" means a place within a project having a roof and walls on three sides
for parking any vehicle, but does not include an unenclosed or uncovered
parking space such as open parking areas."
A garage is clearly meant to be a space meant to park vehicles. That is how it is
understood in ordinary parlance, as well as under the provisions of the development
control regulations. In the face of the same, we do not think that the Appellants can
today claim as a matter of right that the suit Garage under their occupation is an
authorised commercial unit.
22. At this stage we may note that it was also the stand of the MCGM before
the learned Single Judge that the suit Garage is only a car parking space and not a
commercial unit. The MCGM has taken action in that regard and has issued a notice
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and an order under section 351 of the MMC Act, holding the user of the suit Garage as
a commercial unit to be unauthorised. These are of course the subject matter of
adjudication in L. C. Suit No. 1266 of 2014 filed by the Appellants before the Bombay
City Civil Court at Dindoshi.
23. In view of the above, we find the Appellants submission qua the non
action by the MCGM after issuing a notice to the Appellants mother under section
53(1) of the MRTP to be neither here nor there. The same does not assist the
Appellants in showing that there premises are authorised commercial premises in the
absence of concrete proof to the contrary. Moreover, the MCGM has subsequently
taken action albeit under section 351 of the MMC Act. Hence, this submission does
not carry the Appellants case any further.
24. The other documents on record upon which the Appellants has placed
reliance in fact go against them as well.
25. The principle document on which the learned Advocate for the
Appellants Ms. Poddar places reliance to claim that the father of the Appellants was
the owner of the suit Garage is a letter dated 24 th June 1971 addressed by P. S. Ajwani
as the vendor of the suit Garage to Kewal Art Production, the Appellants father's
proprietorship concern. The letter reads as follows :
"From P. S. Ajwani
32 Trilok A Building
Dr Ambedkar Road, AGREEMENT
Bandra- Bombay 50
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To: M/s Kewal Art Production Reg: Garrage No. 12,
37 Trilok B Building Trilok 'B' Building
Dr Ambedkar Road Dr Ambedkar Road,
Bandra- Bombay 50 Bandra - Bombay 50.
Dear Sirs,
This is to record that I, the undersigned am the absolute owner of the above
mentioned garrage which has been purchased by you from me on 24.6.1971. That I am in peaceful
possession of the above mentioned garrage That there xxxxx are no encumbrances on the garrage
whatsoever. That I have now agreed to surrender all title, rights and interests in the said garrage to
you on receipt by me of a sum of Rs. 2500/- Two thousand five hundred only receipt of which I
hereby acknowledge that I have now no claim whatsoever against you on the said garrage or M/s
United Building Corporation the original builders from whom I purchased the above said garrage
on 31.11.1970. That from this day you will pay all outgoings against the garrage by way of ground
lease amount, Municipal taxes, Society's (Prop) maintenance charges and etc.
Signed in the Signed by:
presence of:
SD SD
Bombay Dated 24.6.1971. Bombay Dated. 24.6.1971
Copy to the Secretary Trilok Co-op Housing Society (Prop) for information and record
I hereby pay Rs. 28/60 being the outstanding dues upto 31.6.1971 vide your bill No. 54
of 14.4.1971 abd Rs. 100/- as donation and Rs. 66/-as ground lease rent from 1.12.70 to 31.6.1971.
Totalling to Rs. 184/50. Please arrange to x transfer the ownership of above garrage in the name of
M/s. Kewal Art Production and thanks."
26. From the above it is clear that the vendor of the suit Garage who has sold
the same to the Appellants father has himself referred to the same as a garage at nine
different places in the above letter. On the basis of the above letter, we are unable to
accept Advocate Ms. Poddar's submission that the suit Garage was a commercial unit
right since its inception. The Appellants father's vendor himself states that he had
purchased the same as a garage from the erstwhile developer United Building
Corporation. Shri Tulzapurkar and Shri Naik are correct in pointing out that this letter
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in fact goes against the case canvassed by the Appellants.
27. Similarly, the Appellants reliance upon the pass book issued by the
Trilok society does not further their cause. On the contrary, the cover page of that
document too describes the premises as a garage.
28. In view of the above, we are unable to find any convincing material which
would persuade us to hold at this stage that the suit Garage is a commercial unit,
which would entitle the Appellants to claim to be entitled to a commercial premises in
lieu of the same, in the redeveloped building as a matter of right. Shri Tulzapurkar is
correct to rely upon the judgment of a Division Bench of this Court in the case of
Kankubai Harakhlal Jain v/s MCGM (supra), the relevant portion of which reads as
follows :
"4. As far as the structure goes, once it is styled as a garage, then, the user
thereof cannot determine the entitlement of the petitioners. The petitioners
have failed to establish any legal right in seeking an alternate commercial
structure against their occupancy of a garage. The term "garage" has a
specific legal connotation. In the Development Control Regulations, it is
either understood as an area or premises for repairing of vehicles or parking of
vehicles by enclosing the same. It is, therefore, understood as a parking space
enclosed or unenclosed, covered or open area. In these circumstances, we do
not think that any relief can be granted to the petitioners once they have no
legal right either to occupy a garage and thereafter use it for commercial
purpose and based on such a user in the old building, claim alternate
commercial area on a permanent basis. Neither any law, rule, regulation or
scheme has been shown to us which guarantees such entitlement."
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29. In regard to this issue, the following observations made by the learned
Single Judge in the order dated 3rd May 2021 in Notice of Motion No. 1318 of 2019
which is under challenge in the present Appeal, are relevant :
"27. I am of the view that without approval of the society and any
application being made for change of user and an order being passed thereon
by the Municipal Corporation, a garage could not have been converted for
commercial use in the manner that appears to have been done. It is in this
respect that I must take note of the affidavit filed on behalf of the Municipal
Corporation by one Dushantkumar Ahirwar, Assistant Engineer (Building
Proposal), "H" Ward, in which he has stated that having gone through the
papers in the matter and pursuant to the orders passed by this court on 11 th
March 2020, defendant no.12-Corporation was impleaded and after the
Corporation was impleaded, the deponent had checked the records of the
society and the plaintiff has submitted a proposal for the subject land and it
was issued a commencement certificate on 14th August 2008. It was
subsequently re-validated on 14th August 2020. The latest amended plans of
the building have been enclosed in the affidavit. There are no commercial
premises approved in the plan. It is therefore clear that in the new building
proposed to be constructed, no commercial premises are proposed to be
included. The question is whether, as far as defendant no.5 is concerned, the
defendant no.5 has made out a prima facie case of legitimate commercial use
of the premises and in that respect, I am afraid the 5 th defendant has failed to
establish his case that he was a commercial user of a shop premises situate
within the property of the society. Firstly, nothing on record indicates that the
original builders - United Building Corporation had constructed the garages
and on structures to be used as shops. They were plain and simple motor
garages. The plaintiff has shown the plan appearing at page no.893 of the
plaint being annexure to the affidavit-in-rejoinder dated 12 th February 2020,
filed as a rejoinder to the affidavit-in-reply dated 28 th March 2019 filed on
behalf of defendant no.6, and that plan clearly shows that the structures in
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occupation of defendant nos.5, 6 and 7 are garages. The other structures
alongside are also seen to be described in the plan, namely, sub-station and
meter room. The reference to the root level and basement level also seen from
the plan of Block-A. The contesting defendants have not been able to show
anything to the contrary. The best evidence they could have produced was the
permissions from the Municipal Corporation for use of the premises as shops.
That is obviously not forthcoming. On the basis of the existing record
therefore one has to consider whether the occupants of the garages had made
out any case in opposition to the plaintiff's case and secondly in support of
their own such as to deny the plaintiff's application. In my view, the answer is
clearly in the negative. In other words, the defendants occupying garages have
failed to show that they were occupying commercial premises from the outset
and that these premises were recognized as commercial premises from the
outset. On the other hand, the society and the plaintiff have in my view
demonstrated beyond reasonable doubt that now almost 90% of the occupants
have consented with the redevelopment and the consent terms having been
arrived at with defendant nos.4(a), 4(b), 8 and 9, these defendants have
submitted to a decree. I may observe that defendant nos.5(a), 5(b) and 5(c) had
filed a rejoinder in reply to the affidavit of defendant no.11-MCGM, once
again seeking to reiterate that the society's contention that the NOC is false
and fabricated document is incorrect and reiterating that the members' pass-
book establishes that the premises is a commercial premises. In my view,
whatever may be the members' pass-book record, it is the Municipal
Corporation who had to permit use of the premises as commercial premises.
The record produced thus far indicates that these premises were clearly motor
garages and were always meant to be used as such. Commercial use was not
legitimate. The records of the Municipal Corporation do not support the
defendants' case of commercial use. Defendant nos.5(a) to 5(c) or defendant
nos.6 and 7 in my view have not demonstrated that the garages were always
meant for commercial use.
28. Defendant nos.5(a), 5(b) and 5(c), who, as I have already stated, have filed
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a suit in the City Civil Court. Their contention that the suit is pending is of no
consequence. The present suit arises out of a project that the society has
entrusted the plaintiff with. An individual who is not even a member of the
society cannot by any stretch of imagination seek to control the manner in
which the society conducts its affairs. Ms. Poddar had also relied upon suit
filed by defendant no.5 against the society, wherein her client has challenged
the Municipal Corporation's notice requiring restoration of the structure from
commercial premises to a garage. That also will not assist defendant nos.5(a)
to 5(c) and in any event they are not members of the society and appear to be
merely occupants, who are claiming under persons who put them in
possession. Defendant nos.5(a) to 5(c) have claimed to have acquired garage
under an agreement which is in respect of a garage and not a shop. The society
has never accepted that it was a shop. Nothing has been shown to this court
that it was shop when it was constructed. If it was used as a shop, later nothing
has been shown to establish that change of user through appropriate
application was filed for permissions. At all material times, the structures have
been used as a garages and it is the plaintiff's case that notwithstanding that
the garages are free of FSI, they are offering additional 38% area to the
occupants in the free-sale components. Thus, I am unable to find any merit in
the case of defendant nos.5(a) to 5(c).
33. The Municipal Corporation has also filed a subsequent affidavit of 10 th
February 2021 at the hearing of this motion and in support of which Mr.
Kamdar appears. The affidavit is of one Ramchandra Sampatrao Sawant,
Assistant Engineer, who has deposed that the original sanctioned plan as of
1961 and the relevant record pertaining thereto is presently not traceable in
the office of the Municipal Corporation. A new file has been opened which is
available online and on the basis of which the earlier affidavit has been filed.
The photocopy of the completion certificate issued by the Architect in 1964 is
annexed to that affidavit. There is also plan available along with that
certificate. There is also one plan available on the record, which is annexed as
Exhibit-B. From that plan, it is evident that the structures shown therein are
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clearly motor vehicle garages. Reference to the meter room, alignment of the
structure, basement in the scanned image at Exhibit-B, read with the building
completion certificate at Exhibit-A in respect of the building B on the said suit
plot of land, as appearing on the Municipal Corporation's record, clearly
establish that there were motor garages and not shops at the relevant time.
The affidavit goes on to state that the record of Assessment Department has
been called for and the Deputy Superintendent S.S. Thakur produced the
record, which indicated that the premises were garages and were converted for
shop use and therefore the department had assessed the same for non-
residential and commercial users. Extracts for the period 1992-96, 2004-09
and 2010, April 2010 to March, 2015 and April 2015 till date have been
annexed.
34. The deponent has affirmed that he has spoken to the License Department
and no license has been issued for carrying out business in these shops. The
license issued to indicate number of persons working and employed in that
premises and only for registration purposes. For that matter, the license itself
contains a disclaimer which reads as "This is merely a registration certificate
and not license and it does not by itself bestow any legality on the structure or
confer any right on the employer so far the date and time of existence of the
structure in which this shop/establishment is located". In conclusion, the
deponent states that as per records of the Municipal Corporation, as it is
available, the premises is sanctioned for car parking space and nothing else.
The documents in support filed by the deponent contained Exhibit-C, which
are records of the Assessment and Collection Department. Initially in March
1965, it is shown as the furniture shop, one garage is shown as tailoring shop.
The building is shown as "Bandra Trilok Co-op." The third garage is also
shown under the head "house with shops". The record of 1992-96 also refers
to garages. All of these are also shown to be assessed as shops / commercial
shops under capital value based assessment extracts filed along with the
affidavit. The question is, will the assessment for the purpose of taxation by
the Municipal Corporation be a ground of permission to run a shop as far as
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the society is concerned? The society being the owner of the property is
undisputed. The members will be only beneficial owners. Occupants even less
so. Mere right of occupancy and/ or beneficial ownership will not in the facts
of the case entitle the defendants to claim unilateral right to convert premises
for commercial use. The society and the Municipal Corporation must also
permit that in accordance with law. Unless the Municipal Corporation as a
Planning Authority permits use of the premises for shops and in accordance
with the provisions of the MMC Act, mere assessment of tax as a commercial
unit cannot legitimate commercial use to begin with, which was not
authorized in the first place. Viewed in this light, it is obvious that reliance
placed on these documents by the defendants cannot help them to continue to
insist and demand commercial premises in the new building to be constructed,
which has been seen from the society's resolution is intended for only
residential use. Despite being non-members, some of them being offered
residential space in the new building and of the enhanced area. True, they may
be carrying on commercial activities from these garages, but will that alone
thwart the attempts of the society to redevelop when an overwhelming
majority have voted for redevelopment and are awaiting fulfillment of that
resolution? The answer is emphatically in the negative.
36. In my view, garages will and must remain garages unless they are
converted within the framework of the law for other uses. Their construction,
existence was meant for a particular purpose. If it is not being put to use for
that purpose and is intended to be used for some other purpose, a change of
user has to be authorized. That authority is the Planning Authority. The
Municipal Corporation in the case at hand has not issued any conversion order
and in that behalf suffice it to say that absent an order for conversion of the
motor vehicle garage, merely on the basis of long and unauthorized use for
commercial purposes, cannot justify continuance of such use and a demand
for being provided with alternate space in a structure that does not exist today
and for commercial use which is presently unauthorized. The case of
defendant nos.5 to 7 cannot therefore succeed. They have been offered
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alternate residential space to the extent of their entitlement and they cannot
insist on being allotted commercial space in the new structure in which no
provision is made for such space. Any such permanent alternate space would
necessarily have to flow from two factors; firstly, the existence of commercial
space and with the consent of the society in a new building. Both these aspects
are not to be found in the case at hand. Thus, in my view, the attempt of the
defendant nos.5 to 7 to secure commercial space in the new building to be
constructed by obstructing redevelopment through their refusal to vacate the
premises cannot succeed."
30. In view of our observations made above, we can find no fault in the above
approach or findings of the learned Single Judge. The learned Single Judge has taken
into consideration all the material on record in this regard and arrived at correct
findings. We are not persuaded to interfere with the same.
31. We find that the reliance by Shri Tulzapurkar on the judgment passed by
one of us (S. J. Kathawalla, J.) in the case of Hari Om Sayaji Properties LLP v/s Yoga
Yog CHSL (supra) to contend that the Appellants can only seek entitlement to area
which is legitimately under their occupation, and they cannot contend that they will
cooperate only if they are provided commercial premises, to be apposite.
32. Issue No.1 set out in paragraph 11 above is therefore, answered in the
negative.
33. Before we part with this issue we must hasten to add that these
observations of the learned Single Judge, as well as the observations made by us above
are prima facie in nature, and in the context of the Suit and Notice of Motion No. 1318
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of 2019 which have been filed by the developer and the rival contentions of the parties
as recorded above. We are conscious of the fact that the Respondent No. 1 society has
filed L. C. Suit No. 164 of 2007 before the City Civil Court seeking substantive reliefs
in respect of the commercial user of the suit Garage by the Appellants mother. We are
also conscious of the fact that the Appellants have filed L. C. Suit No. 1266 of 2014
before the City Civil Court challenging the notice and order issued by the MCGM
under section 351 of the MMC Act in respect of the suit Garage. None of the findings
rendered by the learned Single Judge or by us herein shall in any manner prejudice the
rival rights and contentions of the parties in those suits.
ISSUE-2
34. Let us now examine the second issue which we have framed for our
consideration in paragraph No.11 of this Judgment.
35. As already held above, the Appellants have not made out a case for
entitlement to commercial premises in the new development at this stage. The
question which then arises is whether the Appellants are entitled to hold up the entire
redevelopment scheme which has been agreed to by the majority members of the
Trilok Society.
36. There were seventy six flats and twenty garages on the suit property.
The society has 74 members. All of them have vacated their respective premises.
Respondent Nos. 2 to 6 and 8 to 10 have vacated their respective premises as noted
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above. There are undertakings given by and orders against Respondent No. 7 to hand
over possession of the garage in her occupation for the purposes of demolition. We
have recorded the same in detail earlier. Thus today, the Appellants as occupants of
one garage are alone holding up the development of the entire suit property. Today
they alone are on the suit property. Most of the members have vacated in 2018 as we
have noted above. Some of the remaining occupants have vacated prior to the
impugned orders dated 3rd May 2021 being passed, and the rest of them have vacated
after the same being passed as we have noted in detail above. The development
permissions are in place. The developer has a monthly outlay of approximately rupees
sixty lakhs in terms of transit rent to be paid to the occupants who have vacated. Thus,
any further delay to the redevelopment scheme is to the great peril of, and adds to the
prejudice already suffered by the developer and the members of the society. All of this,
is today due to the Appellants alone, whose obstinance for claiming commercial
premises in the new development cannot be countenanced in view of what we have
found above.
37. Senior Advocate Tulzapurkar is correct in placing reliance upon the
judgments of this Court in the cases of Girish Mulchand Mehta v/s Mahesh S. Mehta,
(Supra) Disha Construction vs Jaysen Mastakar (Supra) and National Properties v/s
Sindhi Immigrants CHS (supra). It is well settled that minority members cannot
obstruct the redevelopment scheme agreed upon by the majority members of the
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society. Certainly not on the basis of the defence taken by the Appellants, which we
have negatived above. The distinction sought to be canvassed by Advocate Ms. Poddar
to the effect that her clients are not considered by the society as its members and
therefore the principles laid down in these judgments, and a plethora of other
judgments delivered by this Court, do not apply to the facts of this case, is extremely
misconceived. On the contrary, the fact that her clients are not recognised members of
the society only makes the Appellants case worse, not better. As non member
occupants the Appellants certainly cannot be allowed to hold up the redevelopment
project. We find that the present case squarely falls within the principles of law laid
down in the judgments cited by Senior Advocate Tulzapurkar.
38. In this regard, we may once again note the observations made by the
learned Single Judge in his order dated 3rd May 2021 in Notice of Motion No. 1318 of
2019 :
"40. I now deal with some aspects canvassed on behalf of the plaintiff;
firstly, that there can be no doubt that minority members cannot obstruct and
prevent redevelopment supported by the majority. In this respect, Section 72
of the Maharashtra Co-operative Societies Act, 1960 is the basis. It falls
under Chapter VII dealing with "management of societies" and reads as
follows :-
"72. Management of Societies :
Subject to the provisions in this Act and the rules, the final
authority of every society shall vest in the general body of members in
general meeting, summoned in such a manner as may be specified in the bye-
laws.
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[Where the bye-laws of a society so provide, the general meeting
shall be attended by delegates appointed by the members, and such meeting
shall be deemed to be the meeting of the general body, for the purpose of
exercising all the powers of the general body]."
41. With specific reference to the applicability of Section 79A of the
Maharashtra Co-operative Societies Act, 1960 and the scope of the directives
issued thereunder, this court has already held that the directives issued are
not mandatory but more of a recommendation. In Harsha Co-op. Housing
Society Ltd. and Ors. Vs. Kishandas S. Rajpal and Ors. 6 a learned Single
Judge of this court has while deciding Writ Petition No.10285 of 2009 held
that the said co-operative society resolved to act in a particular manner to
redevelop the society's property through a particular developer and by a
large majority. It is not necessary to go by the procedure set out in Section
79A or under directives issued under Section 79A. Section 79A directives are
only required to be followed where there is no consensus or unanimity
amongst the members. However, in a more recent decision in the case of
Maya Developers Vs. Neelam R. Thakkar and Ors. 7, after considering a large
number of cases on the subject, this court has observed that in many cases a
number of complaints were received from members against the management
of co-operative societies wherein redevelopment was taking place. This
related to certain common aspects such as not taking the members into
confidence in the process of redevelopment, lack of transparency, arbitrary
appointments of contractors and lack of planning, not adopting procedures
and lack of similarity in agreements. There was no contrary policy in this
respect and it is in this background that the directive with which we are
concerned and which is sought to be enforced upon on the plaintiff and the
defendant-society gains relevance. In Maya Developers (supra), this court
has observed that the directives are more in the nature of a set of guidelines
and the 2009 guideline in particular is more of a recommendation and it is
not mandatory. Here in the facts of the present case, almost close to 90% of
6 Civil Writ Petition No.10285 of 2009 (order dated 8th March, 2010)
7 2016 SCC Online Bom 6947
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the members have opted for redevelopment through the plaintiff. The
reasons for the others to resist are unsustainable and in a co-operative society
and in the light of Section 72 of the MCS Act, it is but obvious that the will
of the majority must hold.
42. This has also been recognized in National Properties Vs. Sindhi
Immigrants Co-op. Housing Society Ltd and Ors. 8 By following the decision
in Maya Developers and Harsha Co-op. Housing Society (supra), this court
has observed that even if the directives apply in the case at hand, the
development agreement had been executed, great amount of progress had
been made towards redevelopment and once a society supports
redevelopment with the consent of the majority, redevelopment must
proceed in accordance with law. The same principle would govern the facts
of the present case.
43. The plaintiff has secured all major permissions, as has been disclosed in
the plaint. The clearance from the Civil Aviation Authorities was then
expected and at this stage with a large and more than healthy majority
supporting the redevelopment, there is no occasion to prevent the plaintiff
from doing so. Thus, non-observance of some of the recommendatory
guidelines cannot render the process of redevelopment bad. As stated earlier,
a large majority of members of the defendant no.11-society have supported
the redevelopment by the plaintiff. This majority has resulted in the general
body, which is the supreme body taking a decision to redevelop the suit
property. The resolution has not been challenged. The resolution of the
general body not having been challenged, it is not open to the minority
members to today seek to oppose carrying out of the objectives of these
resolutions.
44. In Girish Mulchand Mehta and Anr. Vs. Mahesh S. Mehta and Anr. 9 ,
the Division Bench was considering a situation where some members of the
society sought to block the redevelopment sans any challenge to the
resolution of the general body and the court in paragraph 16 observed thus :
8 2019 SCC Online Bom. 762
9 2010 (2) Mh.L.J. 657
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"By now it is well established position that once a person becomes a member of
the Co-operative Society, he loses his individuality with the Society and he has no
independent rights except those given to him by the statute and Bye-laws. The
member has to speak through the Society or rather the Society alone can act and
speaks for him qua the rights and duties of the Society as a body."
45. Reference is made to the Daman Singh and Ors. Vs. State of Punjab 10 in
this respect. The Division Bench also made reference to State of U.P. Vs.
Chheoki Employees Co-op. Society Ltd.11, in which the Apex Court observed
that a member of a society has no independent right qua the society and it is
the society that is entitled to represent as a Corporate Aggregate. Using an
appropriate phrase, the Supreme Court observed that the "stream cannot
rise higher than the source".
46. In that view of the matter, it is not open for the defendant nos.1(a) to 3(b)
and defendant nos.5, 6 and 7 to obstruct the redevelopment process. That
having been said, I must observe that it is only defendants 1(a), 1(b), 1(c), 2,
3(a) and 3(b) who are members or claiming through members. The others,
namely, the occupants of garages, are purchasers. They are not members of
the society. Their attempts at gaining membership has been challenged and
they are yet non-members and merely occupants. Their rights qua the
society are also to be considered on the same platform. The question
therefore arises is whether a non-member / occupant is competent and
entitled to question the resolution passed by the society, whose property he
or she occupies and in my view the answer is clearly in the negative. The
majority having willed redevelopment, it is not possible for a non-member /
occupant to obstruct it.
47. In Mont Blanc Co-operative Housing Society Ltd. Vs. State of
Maharashtra12 and Matru Ashish Co-operative Housing Society Ltd.,
Mumbai Vs. State of Maharashtra13, different Division Benches of this court
10 AIR 1985 SC 973
11 AIR 1997 SC 1413
12 2007 (4) Mh.L.J. 595
13 2012 (1) Mh.L.J. 126
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have taken a view that although the State Government may in public interest
and for the purpose of securing implementation of provisions of the
Maharashtra Co- operative Societies Act, 1960, issue directions to any class
of societies, the interest of the societies cannot be prejudiced by such
directions. The power of the State Government therefore cannot be
exercised in a manner such as to cause prejudice to the interest of the society,
which is the paramount consideration. In the present case, a large majority
have opted for redevelopment. Substantial progress has been made. The
plaintiff has shown its bonafides by conveying the land, upon which the
building is to be constructed to the society. Thereafter the society has
executed the lease-cum- development agreement. Substantial amounts have
been expended towards payment of rent, deposits, bank guarantees have
been established to the value of Rs.115,46,89,716/-.
48. The plaintiff has demonstrated its willingness to perform. The members
have been patiently waiting to see the commencement of redevelopment
activities and they continue to wait in the hope of securing possession of the
newly constructed permanent alternate accommodation. If the defendants'
contentions qua the applicability of the guidelines issued under Section 79A
are to be strictly enforced and that is likely to cause further prejudice to the
society and to the members, these guidelines certainly cannot be wielded as a
sword and indeed it is not intended to be. On the other hand, the guidelines
are meant to protect societies and their members against arbitrary actions of
the managements or of developers, who collude with managements to
deprive the society and its body of members - the corporate aggregate, to be
deprived of the benefits of such redevelopment. It is in such situations that
strict enforcement of the guidelines may be justified.
49. In the present case, the objections taken on behalf of defendants qua
these guidelines are unsustainable given the state of readiness of the plaintiff
to carry out redevelopment work. This aspect has also been considered in
Disha Construction Vs. Jaysen S. Mastakar and Ors.14, in which this court
14 2014 (2) Mh.L.J. 353
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has observed that the plaintiff in that case had incurred considerable
amounts for carrying out work and 27 non-co-operative members, out of a
total of 120, were attempting to stall the redevelopment. The building was in
a dilapidated condition and the balance of convenience is found to be clearly
in favour of the plaintiff-developer and the large number of members of the
society were out of their premises and awaiting the construction of their new
permanent alternate accommodation for more than a year. In the present
case, the agreement has been entered into in the year 2018; yet, there is no
progress. The developer has apparently incurred a large sums of money
towards payment of monthly rent to those who have left the building, left
their apartments and the developer has also provided a bank guarantee in a
sum of Rs.115,46,89,716/- to secure the interest of the society and its
members. There has been no default of any substantial nature that the
members or the defendant no.11 society have complained of, nor have the
non-co-operative members been able to demonstrate any gross illegality,
negligence or neglect on the part of the developer. The view taken by this
court in Girish Mulchand Mehta (supra) has been followed consistently and
indeed that view is binding on this court.
50. In Sarthak Developers Vs. Bank of India Amrut-Tara Staff Co-operative
Housing Society Ltd. And Ors.15, a Division Bench of this court has
considered the effect of dissenting minorities and observed that the
dissenting minority members cannot be allowed to obstruct redevelopment
when the developer has spent large sums of money and had appointed a
Court Receiver considering the fact that the large majority were supporting
redevelopment and had vacated their flats. The court observed that if the
Court Receiver was not appointed, such majority members will be left in the
lurch at the behest of a minuscule minority. It will be useful to make
reference to paragraphs 16 and 17 of the judgment in Sarthak Developers
(supra), which are reproduced below :-
"16. The material before the court is sufficient to indicate that the appellant
15 Appeal (L) No.310 of 2012 (Order dt. 5th December, 2012)
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has a strong prima facie case for the appointment of a receiver, having invested
valuable consideration towards and in execution of the agreement. But most
significantly, the appointment of a Receiver is warranted having due regard to the
fact that unless such an order were to be passed, 149 members of the society, who
are supporting the redevelopment and of whom 143 have vacated their flats, would
be left in the lurch at the behest of a minuscule minority.
17. The appointment of a receiver is undoubtedly a drastic order, but the court
is empowered to do so on well- established principles of it being just and convenient.
There are several reasons which must weigh in favour of the appointment of a
receiver. Firstly, the condition of the property in question is a matter of importance
in the city of Mumbai which is affected by a high degree of saline corrosion. The
buildings are admittedly dilapidated and in urgent need of repair or
redevelopment. The society was not in a position to carry out repairs having regard
to the fact that in August 2007, the cost of repair was estimated at Rs.1.65 crores
by its structural consultant. Hence, the option of redevelopment which has been
accepted in the resolution passed by the Society would have to be respected.
Secondly, in the present case, an overwhelmingly large proportion of the members
of the society have consented to the scheme of redevelopment and have in fact
vacated their premises. The interests of those 149 members who are supporting
redevelopment and of whom 143 have vacated are of paramount concern. Thirdly,
unless a receiver was to be appointed, it will be open to a dissenting minority of a
few members to obstruct and defeat the will of the large majority. Fourthly, each of
the dissenting members is also, like all the members of the society, entitled to
permanent alternate accommodation free of cost in the redeveloped building. An
enhancement of the existing areas in occupation is envisaged in the redeveloped
building. In the meantime, each of the members shall be entitled to compensation
for transit accommodation as agreed with the Co-operative Society and as paid to
all other members. This is not a case where a scheme of redevelopment is oppressive
to the legitimate interests of a minority nor has any such submission been urged."
51. Accordingly, in this case as well, I am of the view that appointment of the
Court Receiver is unavoidable and the only way for the society to comply
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with its obligations achieve intention of the general body of the society.
Moreover, with specific reference to the demand of the garage owners, who
are non-members, this court has in the case of Hari Om Sayaji Properties
LLP Vs. Yoga Yog Housing Society and Ors. 16, held that a member are
entitled to benefits of redevelopment only in respect of area which is
legitimately occupied by them. Although it is not entirely in the context of
the nature of user but rather on the extent of the area, in the present case, the
change of user has been unauthorized. It is not legal and the Municipal
Corporation's affidavits have made it clear that right from the inception,
these were motor garages, they were never shops. To that extent, the demand
for commercial space in the new building and the insistence of defendants
concerned that they would co-operate in the matter of redevelopment only if
they are provided commercial space in the new building cannot be sustained.
These non-cooperative occupants thus appear to be holding the majority to
ransom and a demand of this nature for providing commercial space in a
building, which has been proposed to be exclusively residential, cannot be
sustained. This in the face of the fact that the occupants are not being
deprived of areas occupied by them, but on the other hand, they are being
offered 38% additional area by way of a residential apartment, it matters not
whether a residential apartment of that size is impractical. In the larger
interest of the members of a society, this is the only solution that is in sight.
The minority must make way for the majority. If they are to continue in as
part of the society, they would also be in a position to seek membership of
the society, which they presently do not enjoy. Equally, for the flat owners of
defendant nos.1(a), 1(b), 1(c), 2 and 3 garage occupants, their resistance to
support redevelopment is on the grounds that are specious and cannot be
supported."
39. The learned Single Judge has correctly applied the tests which would
have to be considered in cases such as this. The learned Single Judge has rightly given
16 2016 SCC Online Bom. 11877
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weightage to the decision of the majority members of the society and the rights
claimed and prejudice suffered by them, as opposed to the claim of the Appellants.
Once again, we cannot find any infirmity in the order passed by the learned Single
Judge in this regard.
40. In view of our findings above, we are unable to agree with Advocate Ms.
Poddar's contention that the final order passed by the learned Single Judge being
mandatory in nature could not have been passed at the interlocutory stage of the Suit.
There are a series of legal precedents where the appointment of the Court Receiver in
matters such as this, to take over possession of the premises of minority occupants
obstructing the redevelopment has been found to be warranted at the interim stage of
suits, and have been followed time and again. We accordingly reject this contention on
behalf of the Appellants.
41. We accordingly find that the facts placed before us and which we have
noted above certainly demonstrate that the learned Single Judge was more than
justified in appointing the Court Receiver to take over possession of the suit Garage
for the purposes of demolition of the same. As a sequitur to the same, we also find that
the learned Single Judge was justified in restraining the Appellants from obstructing or
interfering with the redevelopment work in respect of the suit property.
42. In so far as Ms. Poddar's contention that the suit filed by the Respondent
No. 11 society before the City Civil Court against the Appellants mother has abated is
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concerned, we express no opinion in respect of the same. That suit is pending and we
do not wish to express any opinion upon the merits of the same. All rights and
contentions of the parties in this regard are expressly kept open to be canvassed in that
suit before the City Civil Court. Even otherwise, the Suit filed by the Appellants
against Municipal Corporation of Greater Mumbai qua the subject garage is pending
before the City Civil Court.
43. In view of our findings recorded above, we do not find any merit in
Advocate Ms. Poddar's contention that the present Suit has been filed by the
developer in collusion or connivance with the society.
44. With respect to Advocate Ms. Poddar's contention qua the financial
capacity of the developer to complete the redevelopment project, we are not
impressed by the same. The developer enjoys the support of the Trilok society. The
resolutions of the society in that regard have not been challenged. It is not for us to go
behind the commercial wisdom of the society. In this regard, we may quote from
paragraph 34 of the judgment in the case of Hari Om Sayaji Properties LLP v/s Yoga
Yog CHSL (supra) :
"34. I am also in agreement with the submission of the Learned
Counsel of the Plaintiff that the restriction on the transfer of Development
Rights granted by the society to the Developer is a restriction for the benefit
of the society and not an absolute one. An assignment after a General Body
Resolution and a no objection issued by the Assistant Registrar of Co-
operative Societies shows that the procedure followed is more or less the
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same which is required to be followed for the purpose of appointment of the
developer at the first instance and the same would therefore not be in
contravention of the Government of Maharashtra Notification dated
3rd January, 2009 issued under Section 79A of the Maharashtra Co-operative
Societies Act, 1960 more particularly Clause 11(7) of the aforesaid
Notification. No provision in the Co-operative Societies Act or the Rules or
any other legal provisions has been brought to my notice which would curtail
the right of the Society to redevelop the property when the General Body of
the Society intends to do so. Essentially, that is the commercial wisdom of
the General Body of the Soceity. It is not open for the Court to sit over
the wisdom of the General Body as an Appellate Body/Appellate
Authority, merely because some members in minority disapprove of the
decision of the General Body, unless it is shown that the decision was the
product of fraud or misrepresentation or was opposed to some statutory
prohibition. The aforesaid view has consistently been taken by this Court in
(i) Girish Mulchand Mehta v. Mahesh S. Mehta1, (ii) Akash Pruthvi
Lifestyle v. Akash Co-op. Hsg. Soc. Ltd.2 and (iii) Maya
Developers v. Neelam R. Thakkar3. In the present case the General Body
took a conscious decision after due deliberations to redevelop its property. It
is now well settled in the case of Maya Developers (supra) that the 2009
direction is not mandatory when there is substantial compliance. Moreover,
34 out of 37 occupants have vacated the said building without any demur or
protest showing that the majority overwhelmingly supported the
development by the Plaintiffs, amendment of the Bank Guarantee clause and
execution of the Supplementary Deed as well as the Deed of Assignment.
Defendant Nos. 2 to 4 have also addressed a letter dated 27 th May, 2016
(Exhibit-SS to the Plaint) wherein they have stated that they were ready for
an amicable solution so that the redevelopment process goes as per schedule
and that they were not against redevelopment. I find that in the present case
there is substantial compliance and the actions of the Society are supported
by all its members save and except Defendant Nos. 2, 3 and 4."
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[emphasis supplied ]
45. That apart, we are unable to appreciate this submission of the learned
Advocate for the Appellants for another reason. She has pointed out that if
Respondent No. 1 provides the Appellant with commercial premises in the
redeveloped property, the Appellants would not oppose the redevelopment by the
same developer. We are unable to see how Appellants find Respondent No. 1 to be
commercially unfit to redevelop the property if their demands are not met, but
otherwise commercially able if they are willing to provide the Appellants commercial
premises in the new project. These contradictory submissions speak volumes about
the real intent behind the same being made. We accordingly reject this submission of
the Appellants.
46. Before we part with this judgment we must note that the developer has
agreed to provide all garage occupants including the Appellants residential premises in
the new building in lieu of their existing garages, which shall be of an area equal to the
existing garages plus thirty eight percent additional area. We find this to be more than
fair at this stage, considering our observations made above.
47. In view of our findings above, we uphold the order dated 3 rd May 2021
passed by the learned Single Judge in Notice of Motion No. 1318 of 2019 in the Suit.
In that view of the matter, the learned Single Judge was justified in dismissing Notice
of Motion No. 1518 of 2019 taken out by the Appellants in the Suit seeking to protect
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appl 11941 of 2021-Final.doc
their possession and occupation of the suit Garage.
48. We have heard this Appeal on several occasions. The details of the dates
and duration for which this Appeal was heard has been recorded in our order dated 6 th
July 2021 passed in this Appeal. That order records in detail all that has transpired
during the pendency of this Appeal. We are making a note of this herein in view of the
allegation made by the Advocate for the Appellant that she has not been fully heard by
us.
49. We find no merit in this Appeal. The same is dismissed without any
order as to costs. The Appellants are directed to hand over vacant and peaceful
possession of the suit Garage to the Court Receiver on or before 30 th September, 2021.
In the event they fail to hand over possession as directed, the Court Receiver is
directed to take forcible possession of the same, with necessary assistance from the
police if required, without any requirement of seeking directions under a Court
Receivers Report in that regard. The Senior Inspector of the Bandra Police Station is
directed to provide all assistance if and when called upon by the Court Receiver's
office in this regard. Upon the Court Receiver obtaining possession of the suit Garage
from the Appellants, the same shall be forthwith handed over to Respondent No. 1,
who may then demolish the same and proceed with the redevelopment of the suit
property.
50. In view of the dismissal of the Appeal, nothing survives in Interim
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appl 11941 of 2021-Final.doc
Application (L) No. 11946 of 2021 taken out by the Appellants in this Appeal. The
same is accordingly disposed of.
51. We had directed the Court Associate yesterday i.e. on 15 th September,
2021 to place the above matter on the board / causelist of this Court for
pronouncement of Judgment. Accordingly, the board / causelist showing that the
above Judgment would be pronounced today was uploaded on 6.09 p.m. yesterday i.e.
on 15th September, 2021. At 7.28 p.m. on 15th September, 2021 the Advocate for the
Appellants who as can be seen from our earlier order dated 6 th July, 2021 is determined
to prolong this matter on one ground or the other, emailed a praecipe to the Court
Associate stating that there are certain developments in the matter and therefore the
Judgment should not be pronounced. Along with the praecipe, a compilation running
into several pages was also emailed, despite knowing that the Advocates are now not
allowed to send any proceedings through email but are required to file the same
physically. Today, the Appellants as well as their Advocates have chosen to remain
absent before us. We strongly deprecate such conduct. We have therefore proceeded
to pronounce the Judgment in the above matter.
( MILIND N. JADHAV, J.) ( S.J.KATHAWALLA, J. )
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