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High Court of Judicature at Bombay
G.S. PATEL, J.
Ashok Dattatraya Kulkarni, (Chief Promoter Apna Ghar Co-operative Housing Society (Prop.) & Others
Versus
The State of Maharashtra & Others
Notice Of Motion No. 1352 of 2013 In Suit No. 730 of 2013
Decided On : 07-10-2014
Suit for declaration of entitlement to allotment of land and possession of the same, injunction against creation of third party rights, and direction to hand over possession of the land to the plaintiffs. Held, the suit is not maintainable in view of the statutory bar under Section 163(3) of the Maharashtra Cooperative Societies Act, 1960. The plaintiffs cannot get circuitously what they cannot get directly. The reliefs sought would have the effect of wholly defenestrating a registration properly granted after a complete and independent enquiry. The fact that a previous attempt at de-registration failed only makes matters worse; as Ms. Divan says, that issue cannot now be agitated afresh by opening up another front of attack. If, therefore, it is not possible to come to a prima facie conclusion that the final reliefs are tenable, no interim relief in aid of those final reliefs should be granted. The plaintiffs have not made out any sort of prima facie case. The balance of convenience cannot possibly be said to be with the plaintiffs. Indeed, it is against them. As to irretrievable prejudice or injury being caused to the plaintiffs, there is none. Not one of Kulkarni’s fellow claimants is shown even prima facie to be promoter members of the society. They have, between them, paid not a farthing toward the allotment of the land or its attendant costs. For four years, between 2008 and 2012, they sat indolent and idle. None of the tests for the grant of interlocutory orders can be said to be satisfied.
Fact of the Case:
Plaintiffs filed a suit for declaration of entitlement to allotment of land and possession of the same, injunction against creation of third party rights, and direction to hand over possession of the land to the plaintiffs. The land in question was originally owned by BJPL, which entered into an agreement for sale of the land with OLDC in 1981. OLDC subsequently entered into an agreement for sale with one Vasant Mahadeo Tikekar and the 1st plaintiff, Ashok Dattatraya Kulkarni, in respect of a larger piece of land. The agreement was modified by several subsequent writings. These are not immediately germane for our purposes. On 18th February 1981, OLDC entered into an agreement for sale with one Vasant Mahadeo Tikekar and Kulkarni, the 1st Plaintiff. This agreement for sale was in respect of a larger piece of land of about 86 acres. Although the plaint proceeds on the basis that this was the first dealing Kulkarni and Tikekar had in respect of lands in that area, this was not so; both had a history going back to at least 1975 of transactions in respect of other lands in that area, in which OLDC and SDC were both involved. The 1981 Agreement was also with one Mahajan, the Chief Promoter of the Shree Swami Samartha Prasanna Co-operative Housing Society (Proposed), but with which we are not at present concerned. The consideration for this agreement is set out in clause 2 and required the purchasers to make payment in stages at the rate of Rs.10 per square yard. The initial payment was Rs.1.5 lakhs. A further Rs.11.5 lakhs was payable on or before 30th June 1983. The Government of Maharashtra and MHADA disputed BJPL’s and OLDC’s title inter alia to this larger piece of land. In 1991, OLDC, Tikekar and Kulkarni filed Suit No. 3429 of 1991 (“the OLDC Suit”) in this Court against the Government of Maharashtra and MHADA in respect of these 86 acres of land. On 11th November 2004, Kulkarni and Tikekar entered into a Development Agreement with the 4th Defendant, Samartha Development Corporation (“SDC”). Much turns on this Agreement, and the plaint proceeds on the footing that there are two versions of this Development Agreement; the first as originally signed by Tikekar and Kulkarni, and another one that Kulkarni alleges is a fabrication with interpolated pages. The consideration for this agreement is set out in Clause 5, and required the purchasers to make payment in stages at the rate of Rs.10 per square yard. The initial payment was Rs.1.5 lakhs. A further Rs.11.5 lakhs was payable on or before 30th June 1983. On 19th December 2006, Consent Terms were drawn up and tendered in the OLDC Suit. A learned single Judge of this Court declined to pass an order in accordance with those Consent Terms. In appeal, the Trial Court’s order was set aside by an order dated 17th January 2008 and the matter was remanded. A Special Leave Petition was filed to the Supreme Court. Leave was granted, and the Special Leave Petition was renumbered Civil Appeal No. 6245 of 2008. On 23rd November 2008, the Supreme Court passed an order in terms of the Consent Terms. The OLDC Suit was decreed, and the trial court was directed to have the decree drawn up accordingly. These Consent Terms provided for the allotment of the suit land (about 23 acres of the 86 acres to which the suit related) to Kulkarni in his capacity as a Chief Promoter of the proposed Society.
Finding of the Court:
The suit is not maintainable in view of the statutory bar under Section 163(3) of the Maharashtra Cooperative Societies Act, 1960. The plaintiffs cannot get circuitously what they cannot get directly. The reliefs sought would have the effect of wholly defenestrating a registration properly granted after a complete and independent enquiry. The fact that a previous attempt at de-registration failed only makes matters worse; as Ms. Divan says, that issue cannot now be agitated afresh by opening up another front of attack. If, therefore, it is not possible to come to a prima facie conclusion that the final reliefs are tenable, no interim relief in aid of those final reliefs should be granted. The plaintiffs have not made out any sort of prima facie case. The balance of convenience cannot possibly be said to be with the plaintiffs. Indeed, it is against them. As to irretrievable prejudice or injury being caused to the plaintiffs, there is none. Not one of Kulkarni’s fellow claimants is shown even prima facie to be promoter members of the society. They have, between them, paid not a farthing toward the allotment of the land or its attendant costs. For four years, between 2008 and 2012, they sat indolent and idle. None of the tests for the grant of interlocutory orders can be said to be satisfied.
Issues: 1. Whether the suit is maintainable in view of the statutory bar under Section 163(3) of the Maharashtra Cooperative Societies Act, 1960? 2. Whether the plaintiffs have made out any sort of prima facie case? 3. Whether the balance of convenience is with the plaintiffs?
Ratio Decidendi: 1. Section 163(3) of the Maharashtra Cooperative Societies Act, 1960 bars the jurisdiction of civil courts in respect of matters concerned with the winding up and dissolution of a society. The reliefs sought in the suit would have the effect of wholly defenestrating a registration properly granted after a complete and independent enquiry. Therefore, the suit is not maintainable. 2. The plaintiffs have not made out any sort of prima facie case. They have not shown that they are entitled to the allotment of land and possession of the same. They have also not shown that they will suffer any irretrievable prejudice or injury if the reliefs sought are not granted. 3. The balance of convenience is against the plaintiffs. The defendants have a prima facie case and they will suffer irreparable loss if the reliefs sought are granted.
Final Decision: The Notice of Motion is dismissed with costs as indicated.
STRUCTURE/OUTLINE
A. INTRODUCTORY.......................................................... 12
B. THE FACTUAL BACKGROUND...................................15
C. RIVAL SUBMISSIONS & FINDINGS............................ 22
I. The 2004 Development Agreements............................. 24
II. Membership of the 5th Defendant Society.......................31
III. Kulkarni’s Role in Allotment and Transfer of the Land………………..43
IV. The Frame of the Suit and the Reliefs Sought ................ 50
V. The Failure to Give Notice to Kulkarni..........................57
VI. Delay and laches......................................................... 60
VII. Bona fides ...................................................................61
D. CONCLUSION, ORDER & COSTS ............................... 65
A. INTRODUCTORY
1. This dispute pertains to a substantial tract of land admeasuring 94,861.30 sq.mts., roughly 23 acres, at Village Versova, Taluka Andheri in the Mumbai Suburban District. Situated as it is in a prime area in Mumbai’s suburbs, the property is undoubtedly of considerable value.
2. The Plaintiffs claim to be exclusively entitled to an allotment of this land along with Defendants Nos. 61 and 62 (Throughout, a reference to the Plaintiffs includes these two Defendants.).This claim is made on the basis that the ten Plaintiffs and Defendants Nos. 61 and 62 are all members of the Apna Ghar Cooperative Housing Society Limited, the 5th Defendant (“the Society”), of which the 1st Plaintiff, Ashok Dattatraya Kulkarni (“Kulkarni”), is said to be the Chief Promoter, a position he says he has held since the very beginning. The allotment is claimed on the basis of an agreement for sale of 1981 followed by an order of the Supreme Court in 2008. I will return to these facts in some detail presently.
3. The motion seeks injunctive reliefs restraining the Defendant No. 4, a partnership firm of builders and developers, one Samartha Development Corporation (“SDC”) and Defendant No. 5, the Society, from creating any third party rights in respect of this land. A stay is sought of a resolution dated 24th December 2011 passed by the General Body of the Society at a Special General Body Meeting. Much turns on the precise cast of the prayers both final and interim, but in essence all of them, without exception, are founded on the Plaintiffs’ claim to exclusive allotment of the land in question.
4. The defence is mounted vigorously on distinct counts. The membership of Plaintiffs Nos. 2 to 10 and Defendants Nos. 61 and 62 is disputed; none of them are, the Defendants say, the original members of the Society. Kulkarni himself has been removed as the Chief Promoter of the Society. Defendant No.6, Sudhakar Sitaram Jadhav (“Jadhav”) has been appointed in his place. This was done at the Special General Body Meeting of the Society, one that was attended by 10 of the 14 original members of the Society. These 14 members are Defendants Nos. 7, 8, 10, 11, 13, 14, 16, 27, 28, 34, 46, 47, 48 and 55. Kulkarni’s denial of the membership of these Defendants is unconvincing, say the Defendants. The allotment of land is not to Kulkarni personally but only to the Society, which, at the time, was yet to be formed; Kulkarni acted in a representative and fiduciary capacity and served only at the pleasure of the General Body. In any case, the reliefs sought are such that they cannot be granted, there is, firstly, a statutory bar under the Maharashtra Cooperative Societies Act, 1960 (“MCS Act”); secondly, the Plaintiffs have exhausted their remedies in proceedings before the authorities under the MCS Act, as also in subsequent writ proceedings, and cannot indirectly or circuitously re-open these again.
5. Having heard learned Counsel for the appearing parties, and having carefully considered their respective submissions and the large volume of material before me, I am not persuaded that the Plaintiffs have made out any sort of prima facie case for the grant of the injun
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