Bombay High Court
Ramesh Venkagound Kesare vs Manthan Park Sahkari Graha Nirman ... on 29 July, 2025
2025:BHC-AUG:20213
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4465 OF 2024
Ramesh s/o Venkagoud kesare,
Age: 51 years, Occu: Business,
R/o. Kabra Nagar, Nanded,
Tq. & Dist. Nanded.
.....PETITIONER
(orig. Disputant/Appellant)
VERSUS
1. Manthan Park Sahakari Graha
Nirman Sanstha Ltd., Nanded.
Through its Chairman Jyotiba s/o Jayram Kharate
Age: Major, Occu.: Business,
R/o. Anjankhed Mahur, Tq. & Dist. Nanded.
At present: Manthan Park
Sahakari Graha Nirman Sanstha Ltd., Nanded,
Tq. & Dist Nanded.
2. Govind s/o Babagoud Kondalwar,
Age: Major, Occu. Business,
C/o. Manthan Park Sahakari
Graha Nirman Sanstha Ltd., Nanded
3. Vithal s/o Bhimrao Padalwar,
Age: 62 years, Occu. Business,
R/o. C/o Patil dairy and Bakery,
Parasi Anjuman Lane, Vajirabad
Nanded, Tq. And District Nanded.
4. Ashok s/o Shivam Padalwar,
Age: 63 years, Occu.: Pensioner,
R/o. House in front naik College,
Cidco, Nanded, Tq. & District Nanded.
5. United Buildcon Partnership Firm,
Through its Partners.
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i) Dnyaneshwar s/o Rambhau Kadam
Age: 62 years, Occu Building Contractor
R/o. Karanja (G), Tushar Colony,
Darva Road, Plot No.6, Karanja(G)
Washim, Dist. Washim.
ii) Kishor s/o Madhusudanji Lohati,
Age 45 years, Occu: Business/Agri,
R/o Malegaon, Tq. & Dist. Nanded.
.....RESPONDENTS
(Ori. Opponents)
______________________________________________________
Mr Ramesh V. Kesare, Party-in-person
Mr. S. B. Ghatol Patil, Advocate for respondent no.1
______________________________________________________
CORAM : ROHIT W. JOSHI, J.
DATED : 29TH JULY, 2025
JUDGMENT :
-
. The present petition takes exception to order dated
19.05.2023, passed by the learned Judge, Co-operative Court,
Nanded, rejecting application at Exhibit 5, filed by the
petitioner/disputant in Co-operative Case No.27 of 2022 and
the judgment and order dated 21.02.2024, passed by the
learned Member, Maharashtra State Co-operative Appellate
Court, Mumbai, bench at Aurangabad, dismissing Appeal
against Order No.15 of 2023, arising out of the said order
passed by the learned Co-operative Court.
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2. At the outset, it needs to be mentioned that the
respondent nos.1 to 4 have filed affidavit-in-reply today
during the course of hearing. The copy of reply was served on
the petitioner today at around 02:30 PM. However, the
petitioner expressed readiness to proceed with hearing of the
petition. This Court had asked the petitioner if he intended to
go through reply and then advance his submissions on merits
on some other day, however, the petitioner who appeared in
person, stated that since he comes from outstation and that he
want to work out the matter today. In view of the above, the
petition was taken up for hearing although, the copy of reply
was served on the petitioner today at 02:30 PM.
3. Petitioner is a Member of Manthan Park Sahakari Gruha
Nirman Sanstha Limited, Nanded/respondent no.1 in the
present petition. He is founder member and Secretary of the
said society. The said society owned a piece of land over
which a layout comprising of 36 plots was carved out. There
are 36 members in the respondent no.1/society and one plot
was allotted to each member. The petitioner was allotted plot
no.1 on 05.04.1999.
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4. It is the case of petitioner that initially the members of
the society decided to carry out the work of development of
the plots and started looking for a suitable Developer for the
said purpose. The petitioner states that the development
rights were initially assigned in favour of a partnership firm
named; M/s. Blue Star Buildcon, vide agreement dated
04.10.2017. The petitioner states that the said firm expressed
inability to continue with the development work and
therefore, the members decided to execute the work
themselves. He, however, alleges that the respondent nos.3
and 4, who are the Chairman and Vice-Chairman of the
society, clandestinely awarded the development work to the
respondent no.5 vide agreement dated 14.03.2018. According
to this agreement, the said Developer was to allot one
residential flat to each member in the buildings to be
constructed over the land of the society.
5. In this backdrop of facts, the petitioner filed dispute
under Section 91 of the Maharashtra Co-operative Societies
Act, 1960 (hereinafter referred to as MCS Act) being Co-
operative Case No.27 of 2022, inter alia praying for
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declaration that petitioner/disputant was allottee and
possessor of plot no.1 in the layout of society and for
injunction against carrying out any construction work on the
said plot no.1 and for a declaration that the development
agreement and registered power of attorney dated 07.12.2019
executed in favour of the opponent no.5 were illegal, null and
void and also not binding on the petitioner/disputant. This
dispute was filed on 23.02.2022.
6. The petitioner also filed an application for grant of
temporary injunction in the said dispute inter alia praying that
the opponents/respondents should be restrained from making
any construction over his plot during pendency of the dispute.
7. The opponent no.1/society filed reply opposing the
dispute and the application for temporary injunction by
contending that the earlier sanctioned layout plan was
cancelled and revised layout plan was sanctioned with entire
land constituting one single plot for the purpose of
development. It is stated that the petitioner/disputant was
active in completing the said formalities. It was further stated
that the construction was at a very advanced stage and
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therefore, application for grant of temporary injunction was
liable to be rejected. As regards the agreement, it was stated
that the same was executed by passing appropriate resolutions
and following the prescribed procedure. The other opponents
filed reply on similar lines.
8. After hearing the rival submissions on the application
for grant of temporary injunction, the learned Co-operative
Court was pleased to reject the application. The learned Co-
operative Court has found that before entering into agreement
with the Developer/respondent no.5, the respondent
no.1/society had passed a resolution in a special general
meeting for entering into agreement with respondent no.5. It
is stated that permission for construction was sought vide
application dated 19.04.2018 and for the purpose of
completing formalities, an undertaking was also given to the
Airport Authority. The learned Judge has observed that all
these documents were signed by the petitioner/disputant and
signatures on the documents were not disputed. It is observed
that the petitioner merely contended that the signatures were
obtained under coercion. This version is disbelieved by the
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learned Co-operative Court on the ground that the various
documents were executed from time to time from the year
2017 till the year 2021. It is also observed that coercion was
not even pleaded by the disputant. It will be pertinent to
mention that 31 members had filed affidavits in the
proceeding supporting the development agreement. The
learned Court also found that the earlier sanctioned layout
plan under which one plot was allotted to each member was
revised and under the revised sanctioned layout the entire plot
was shown as one single plot for the purpose of development
of the same. As regards equity, it was found that construction
of two buildings was almost completed and therefore, it was
observed that it would be inequitable to grant order of
temporary injunction in favour of the petitioner.
9. The petitioner filed an appeal being appeal against
order no.15 of 2023, challenging the said order. The learned
Appellate Court has concurred with the findings recorded by
the learned Appellate Court. Apart from this, maintainability
of the dispute is also doubted by the learned Appellate Court
on the ground that challenge to development agreement could
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not be raised in a proceeding under Section 91 of the MCS
Act. The learned Appellate Court has held that the Developer
was not a member of the society and was also not claiming
through any member of the society and therefore, dispute was
prima facie not maintainable against the Developer. Apart
from this, as stated above, prima facie merits of the matter
were also seen and the learned Appellate Court by a reasoned
judgment has concurred with the opinion expressed by the
learned Trial Court on merits.
10. Heard the petitioner-in-person. He contends that the
agreement of development and power of attorney are illegal
documents. It is his contention that Administrator was
appointed over the society at the relevant time and as such,
the society did not have right to enter into any agreement
with the Developer. He contends that bogus resolution is
shown to be passed in order to illegally assign the work of
development of property to the respondent no.5. He contends
that the agreement of development is illegal and not binding
on him.
11. Per contra, the learned Advocate for respondent nos.1
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to 4 supports the order by contending that both the learned
Courts have considered the controversy properly and have
arrived at correct conclusion in rejecting the application for
temporary injunction. The learned Advocate contends that
the petitioner has played a proactive role in the matter and is
clearly estopped from challenging development agreement.
He contends that the development activity is being conducted
with consent of all members and the petitioner alone cannot
create any hurdle in the development activity.
12. A perusal of pleadings in the dispute will demonstrate
that the contention regarding appointment of Administrator
over the society, etc., are not raised in the pleadings. These
submissions are made in the petition for the first time without
any foundation with respect to the same in the pleadings.
Perusal of orders passed by both the learned Courts also does
not indicate that this ground was raised before them. The
ground is sought to be raised first time before this Court in
absence of any foundation in the pleadings. The said
contention, cannot therefore be entertained and is liable to be
rejected.
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13. As regards the development agreement, it appears that
earlier, also the society had assigned the work of development
to another firm; since, the said firm could not execute the
work, it appears that the work is assigned to the respondent
no.5. The learned Co-operative Court has clearly observed
that signature on resolution for entering into agreement with
respondent no.5 is not disputed by the petitioner. It is also
observed that the proposal for development is forwarded to
the Planning Authority under the signature of petitioner.
Likewise, application seeking no objection from Airport
Authority is also issued under signature of the petitioner. The
contention regarding coercion in obtaining these signatures is
rightly rejected by the learned Co-operative Courts since, there
is no pleading in that regard. It is seen that the petitioner was
active in revision of the layout plan which initially comprised
of 36 plots; one for each member, which was thereafter
modified to constitute one single plot for the purpose of
development. The development activity has commenced from
the year 2019. The construction is at advanced stage. The
learned Co-operative Court has observed that construction of
two buildings was almost complete. It is also apparent from
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the record that 31 members had filed separate affidavits
supporting the development agreement.
14. Both the learned Courts have considered the matter in
great detail. They have dealt with the rival pleadings and
documents on record. The appreciation of material on record
cannot be said to be perverse by any stage of imagination. The
findings recorded rather are in consonance with the material
on record. The principles governing grant of temporary
injunction are also correctly applied to the facts of the case.
Orders passed by the learned Courts are just and proper and
do not warrant any interference. Petitioner has failed to make
out any case for interference.
15. Writ Petition is therefore liable to be dismissed and is
dismissed as such with no orders as to cost.
16. Civil Application, if any, stands disposed of.
( ROHIT W. JOSHI, J. )
Rushikesh/2025
