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IN THE HIGH COURT OF BOMBAY
Khanwilkar A.M., J.
Siddharth Holding Pvt. Ltd. another .... Petitioners.
Versus
Saidale Co-operative Housing Society Ltd. others.... Respondents.
Writ Petition Nos. 2933, 3679, 3784, 3785, 3332, 3333, 3334, 3411, 3412, 3414, 3382, 3383 of 2002 with Civil Application Nos. 1508, 1509 of 2002, decided on 19/20-3-2003.
Advocates appeared :
Jay Chinai with Rahul Rao, Mahendra Rathod i/b. Ms. Smita S. Ranpise Jayer N. Mamaniya in W.P. No. 2933/2002, with C.A. Nos. 1508, 1509/2002, for petitioner.
Anand Grover with Nandita Rao Firduas Moosa i/b. Prakash Mahadik in W.P. No. 2933/2002, with C.A. Nos. 1508, 1509, 3785, 3332,3333, 3334/2002, for respondent No. 1, in W.P. 3411, 3412, 3414, 3382, 3383/2002, for petitioner.
Jay Chinay i/b. Smt. Javer N. Maniyar in W.P. No. 3679/2002, for petitioner, in W.P. No. 3332, 3333, 3334/2002, for respondents Nos. 2, 4, 6 7.
Anand Grover with Nandita Rao i/b. Mr. Prakash Mahadik in W.P. No. 3679, 3748/2002, for respondent No. 1.
Nipa S. Gupta in W.P. No. 3679/2002, for respondent Nos. 3, 6 7, in W.P. No. 3332, 3333, 3334/2002, for respondent Nos. 3, 5 8.
Mr. Jahagirdar with Mr. Vinit Nayak i/b. Nipa S. Gupta W.P. No. 3784, 3785/2002, for petitioner.
Smt. Javer N. Maniya in W.P. No. 3784, 3785/2002, for respondent Nos. 2, 3, 5 6.
Ravi Kadam i/b. M.P. Savla Co., in W.P. No. 3332, 3333, 3334/2002, for petitioner.
Mr. Jay Chinay with Vinat Nayak i/b. Smt. Javer N. Mamaniya Smt. Nipa S. Gupta in W.P. No. 3411, 3412, 3414, 3382/2002, for respondents.
Smt. Nipa S. Gupta with Vinat Nayak, Smt. Javer N. Mamaniya with Mr. Jay Chinai in W.P. No. 3383, for respondent Nos. 1, 3, 5 6.
is fabricated and had been inserted subsequently. That portion of the resolution had resolved to demolish the entire structure as it exists and to reconstruct new structure so as to accommodate all the 35 members. That is a finding of fact recorded by the two Courts below. The same would be binding on the High Court
Maharashtra Co-operative Societies Act, 1960 - Section 91 - Meaning of dispute, under - Dispute raised, whether Co-operative Court has proper jurisdiction to consider and decide this dispute - Held - Application seeking enrolment as member and also allotment as tenement - It is a composite application - tenement allotment is purely on basis of disputants - Their enrolment and admission in society as its valid member - Both these subjects fall under provisions of Section 91 of the Act. - The fact that the membership application was accepted by the society subsequently would make no difference, especially when the society accepted the application as it is. The right to hold tenement accrued in favour of the disputants because of being admitted as members of the society. Accordingly, the dispute was between the member and the society in respect of allotment of tenement which clearly fell within the purport of Section 91 of the Act. Similarly, there is no infirmity in the approach of the Appellate Court in taking the view that the transaction was not commercial but between the member and the society. The Appellate Court has rightly held that the bye-laws of the society permitted the society to purpose any other plot or plots other than the specified in Clause 2 (a) and to construct tenements on such plots for the use of its members. Understood thus, merely because the society purchased the subject plot does not mean that the same was for purpose other than the one specified in the bye-law, namely, to provide tenement to its members. In the circumstances, the conclusion reached by the Appellate Court that the Co- operative Court had jurisdiction to try and decide the dispute is unexceptionable.
Maharashtra Co-operative Societies Act, 1960 - Section 91 - Dispute - Meaning of. - Dispute between member and society in respect of allotment of tenement covers under Section 91 of Act
Maharashtra Co-operative Societies Act, 1960 - Section 2(19)(a) - Meaning of member - Disputant s right to be treated at par with other members - Whether such right is available to them - Held - Register of members available at society containing names of each disputant - Share certificates also having their names - Held - Society will admit only such persons as its members, to whom the society is sufficient to provide tenements - All members of such a society therefore have in separable right to have no equal treatment with other members. - Both the Trial Court as well as the Appellate Court, have found, as a fact, that the name of each of the disputants is recorded in the register of members maintained by the society. The name of each of the disputants is also mentioned in share certificate as well as the voters list prepared by the society, till recently. The society has been issuing demands towards contribution by each of the disputants. In the circumstances, that finding of fact as recorded by the Courts below cannot be disturbed in exercise of writ jurisdiction. However, at the same time, the conclusion recorded by the Appellate Court with regard to the disputant No. 5 is concerned, there is no hesitation in taking the view that the conclusion is inconsistent with the reasons assigned by the Appellate Court while considering the case of other disputants. Inasmuch as at internal Page 29 of the impugned judgment, the Appellate Court has adverted to the fact that it is admitted fact that the names of the disputants are mentioned in the register of members. The Appellate Court has also observed that: it is further admitted fact that all along earlier to this dispute they were considered members of the society. They were sent circulars. They were demanded contributions etc.. In the circumstances, the Appellate Court found that, it will have to be presumed that the disputants were valid members of the society.
Maharashtra Co-operative Societies Act, 1960 - Section 2(16) - Maharashtra Co-operative Societies Rules, 1961, Rule 10(5)(b) - Meaning of Tenant Co-paretnership having society - Obligations of such a society towards its members - As far allotment of tenement and corresponding rights to its members - For a period they remain their members - Held - Purpose of forming such a society is obligatory to admit only those persons as its members who could be provided tenements - Society members do have non-seperable rights for seeking a house in the society. - The society is under no obligation to provide tenement to its members, there is no clear provision either in the Act or rules, bye-laws in that behalf, that in any case, in the fact situation of the present case such an obligation cannot be fastened on the society because it will be impossible for the society to provide tenement to each of its members on account of the demolition of the upper 8 floors by the Corporation. On the other hand, disputants submit that merely because the upper 8 floors have been demolished that cannot be an excuse for the society to extricate itself from the legal obligation of providing tenement to the members. The purpose of forming a tenant co-partnership housing society is obviously to provide tenement to each of its members as it is obligatory to admit only such number of persons as its members to whom the society can provide tenements. It is true that in the present case when the 35 members were admitted by the society at that point of time, the society had contemplated the construct 35 tenements for the respective members. But later on, the Corporation detected that 8 upper floors were illegal and the same were demolished. In such a case, what should be the nature of the relief to be granted will be considered a little later. Suffice it to note that going by the scheme of the Act, rules and the bye-laws, a tenant co-partnership housing society, such as the present one, is under legal obligation to provide tenements to each of its members. It will be useful to advert to decision of the High Court in the case of Kantilal Dwarkadas Shah v. Shri Shahakari Graha Nirmal Sanstha reported in 2000 (1) Bom CR (AB) 122: 1999 (3) All MR 288. The scheme of the provisions would clearly indicate that there is legal obligation on the part of the tenant co-partnership Housing Society to provide tenement to each of its members and there is corresponding right in the members of such a society of allotment of tenement by the society. It will be useful to advert to another decision of the High Court in the case of Atomica Co- operative Housing Society Ltd., Bombay v. B.R. Ballal and others, reported in 1988 (2) Bom CR 104: 1988 CTJ 292 (Bom). Where the respondents had filed dispute before the Co-operative Court, had failed to pay charges specified by the Managing Committee of the society and on account of their failure, the society decided to cancel shares of the respondents disputants and also allotment of the flats to them. A Tenant Co-partnership. Housing Society is under legal obligation to provide a suitable tenement to each of its members, the member of such a society has an inseparable right to seek house from the society.
Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 - Section 91 - Cooperative Court - Jurisdiction of - Question of jurisdiction have to be decided on basis of averments in plaint. - The appellate Court has rightly observed that the question of jurisdiction will have to be decided on the basis of the averments in the plaint and if so examined, the dispute as filed, was perfectly within jurisdiction of the Co-operative Court.
Maharashtra Civil Services (Regulation of Seniority) Rules, 1982- Section 2 (16) - Maharashtra Cooperative Societies Rules, 1961, Rule 10 (1) (5) - Housing Society - Tenant Copartnership Housing Society - Obligation of - Purpose of forming a Tenant Copartnership Housing Society - To provide tenement to each of its member - To admit only such number of persons as its member to whom society can provide tenements is obligatory part of Tenant Copartner- ship Housing Society - Member of such society has an inseperable right to claim house from society. - The purpose of forming a Tenant Co- partnership Housing Society is obviously to provide tenement to each of its member as it is obligatory to admit only such number of persons as its members to whom the society can provide tenements. It is true that in the present case when the 35 members were admitted by the society at that point of time, the society had contemplated to construct 35 tenements for the respective members. But later on, the corporation detected that 8 upper floors were illegal and the same were demolished. In such a case, what should be the nature of relief to be granted will be considered a litter later. Suffice it to note that going by the scheme of the Act, rules and the bye- laws, a Tenant Copartnership Housing Society, such as the present one, is under legal obligation to provide tenements to each of its members.
A Tenant Co-partnership Housing Society is under legal obligation to provide a suitable tenement to each of its members, the member of such a society has an inseparable right to seek house from the society.
Based on the provided legal document, the key points are as follows:
Jurisdiction of the Co-operative Court: The courts below rightly held that the dispute falls within the jurisdiction of the Co-operative Court, as the dispute pertains to membership and allotment of flats, which are integral to the society's functioning (!) (!) .
Nature of the Dispute: The dispute primarily concerns the rights of members to be allotted flats and the obligations of the society to provide tenements, which are inseparable from membership rights. The dispute is not of a commercial nature but relates to the rights and obligations arising from membership and the society's objectives (!) (!) .
Validity of Membership: The courts below found, as a fact, that the disputants are valid members of the society, with their names appearing in the membership register, share certificates, and voters' lists. This presumption of validity is binding and cannot be disturbed in writ jurisdiction (!) (!) (!) .
Rights of Members: Members of a tenant co-partnership housing society have an inseparable right to seek a flat from the society, which is a fundamental aspect of their membership. The relationship is based on the principles of equality, mutual help, and the purpose of providing housing, not merely on contractual agreements (!) (!) (!) (!) .
Obligation of the Society: The society is under a legal obligation to provide tenements to its members. This obligation remains despite structural demolitions or illegalities, as the primary purpose of the society is to provide housing to its members (!) (!) (!) (!) (!) (!) (!) .
Treatment at Par with Other Members: The disputants, being valid members, are entitled to be treated equally with other members, including the right to allotment of flats. The society's decision to exclude or deny flats to certain members without proper and equitable procedures is contrary to the principles of equality and fairness inherent in the co-operative movement (!) (!) (!) (!) .
Principles of Co-operative Movement: The fundamental principles include voluntary joining, democratic management, self-help, mutual help, open door policy, publicity, neutrality, and equality among members. These principles underpin the rights and obligations of society members and the functioning of the society (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
Relief and Remedies: The Court is empowered to ensure justice and equity by directing the society to explore suitable remedial measures, such as purchasing additional land, constructing new flats, or acquiring flats of similar size elsewhere, to treat all members at par and uphold their rights (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) .
Doctrine of Justice: In cases where the society cannot fulfill its obligation due to structural or legal constraints, the Court may invoke the doctrine of justice and equity to mold appropriate relief, including directions for the society to take any just and equitable steps to ensure fair treatment of all members (!) (!) (!) .
Preservation of the Building and Society's Interests: Until a proper and acceptable remedial measure is devised, the society shall not part with possession or create third-party interests in the existing structure (!) .
Final Disposition: The dispute is allowed in terms that recognize the rights of valid members to be treated equally and to receive flats or suitable alternative arrangements. The society is directed to consider and implement any of the suggested or similar measures to ensure equitable treatment of all members (!) (!) (!) .
Procedural and Ancillary Orders: The Court maintains the status quo for a period, directs recovery of court fees where necessary, and disposes of the writ petitions and civil applications accordingly (!) .
These points highlight the Court’s emphasis on the fundamental rights of society members, the principles of co-operative housing, and the Court’s authority to ensure justice and equity in the resolution of disputes related to membership and allotment of flats.
KHANWILKAR A.M., J.:---In all 12 writ petitions and two civil applications were placed for hearing which concern the same parties, involving common issues. Accordingly, I proceed to decide all the 12 writ petitions and two civil applications together. Five writ petitions have been filed by the Saidale Co-operative Housing Society Ltd. and four writ petitions have been filed by the original disputants before the Co-operative Court. Whereas three writ petitions have been filed by the other members of the society, apprehending that, as a consequence of the order passed by the Appellate Court, they are likely to be affected. The two civil applications are filed for interlocutory directions in the pending writ petitions.
2. Briefly stated; the said society was registered on November 28, 1962 as a tenant co-partnership housing society under the Maharashtra Co-operative Societies Act, 1960 with the object to purchase plot No. IA/566 and IB/565 of Mazgoan division or any other plot or plots with the prior approval of the general meeting and of the Registrar and to construct tenements on such plot or plots for the use of its members. At the relevant time the society did not have any land. However, in the year 1979 the society purchased plot in question, bearing plot No. 701 near Sophiya College Lane, Off Bhulabhai Desai Road, Bombay-400 026. The said plot was the subject-matter of litigation in the suit pending before this Court being Suit No. 653/69. By way of consent terms filed in the said suit, the said plot was allowed to be sold and the society purchased the said plot in 1979. Conveyance in favour of the society has been made in and around February 1979. It appears that before the society had purchased the subject plot, one Srichand Bajaj, brother of Shyam Bajaj had submitted a proposal to the Bombay Municipal Corporation (hereinafter for the sake of brevity referred to as "BMC") for sanction of plan for construction of building on the said plot. After the society purchased the plot in question, said Srichand Bajaj was enrolled as its member. Be that as it may, the building proposal was pursued by the society through the architect appointed by the society. The proposal for construction of building on the said plot was upto 35 flats and which permission was accorded by the Corporation. Pursuant to the permission granted by the Corporation, construction was commenced by the society. By 1984, building structure was completed upto 36 floors. However, on the basis of some discrepancies later on noted by the authorities, the matter was re-examined by the Corporation and it was noticed that the area of the plot was only 7,197 sq. meters, whereas the proposal submitted on behalf of the society for construction of building thereon, mentioned that plot is admeasuring 9,282 sq. meters. In the circumstances, the Corporation initiated action against the society to remove the upper 8 floors which were obviously illegal. The society challenged the said action right upto the Supreme Court. However, the decision of the Corporation for demolition of upper 8 floors came to be confirmed. Naturally, the demolition of the said 8 floors was done sometime in 1989-90. The problem which has arisen in the present petitions is the off shoot of that demolition. In as much as, right from the inception and till prior to the demolition, the society had intended to construct 35 tenements and for that purpose had admitted 35 persons as its members as against respective flats. It needs to be mentioned that right upto the actual demolition of eight upper floors was undertaken by the Corporation, the society pursued the matter at every level to save the structure from demolition. In that process, various proposals were given by the society which, however, was not accepted by the Corporation. It is in this backdrop, the 7 members who apprehended that they would be denied allotment of flats, instituted dispute before the Co-operative Court at Mumbai being Case
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