(i) No further steps be taken by the concerned parties based upon the Conveyance dated 07/12/2009.
(ii) The parties to maintain status-quo with respect to the property in question i.e., Willingdon East.
(iii) The earlier statements already recorded in the order dated 24th December, 2009 to continue till further order.
iv) Reply/rejoinder, if any to be filed within two weeks.
(v) S.O. to 25/1/2010, for hearing. However, the liberty is granted to the parties to settle the matter also.
48. The learned counsel Mr.Chetan Kapadia, appearing for some of the Defendants, makes statement that 18 tenant/members have already surrendered possession and the tenancy to defendant No.72. However, in view of the above common order, it is made clear that parties to maintain status-quo will cover any further steps to these suits.” It would also be relevant to mention that the High Court also passed a common order dated 5.5.2011 in Writ Petition no.1769 of 2010, Chamber Summons no.748 of 2011 and Notice of Motion no.172 of 2010 (arising out of Suit no.144 of 2010) and in Suit no.144 of 2010. Thereby, the Notice of Motion was disposed of by making absolute the interim order earlier granted (on 11.1.2010) in favour of the tenant-members. Relevant extract of the order dated 5.5.2011 in the aforesaid matters is being reproduced hereunder:
“112. In the circumstances, the Notice of Motion is disposed of by making the same absolute in terms of prayer (a)(i) and by directing all the parties to maintain status quo in respect of the suit property pending the hearing and final disposal of the suit. There, however, shall be no order as to costs.” Even though the controversy, in the manner in which it has been dealt with hereinabove, seems to be in the nature of final determination between the parties, yet the instant order, is only a determination of the validity of the interim relief sought by the tenant-members. In so far as the instant aspect of the matter is concerned, it would be relevant to mention, that the order extracted above, dated 5.5.2011, was assailed by the Catholic Society before a Division Bench of the High Court by filing Appeal no.413 of 2011 (in Notice of Motion no.172 of 2010, in Suit no.144 of 2010). The aforesaid appeal was disposed of by a Division Bench of the High Court on 7.9.2012. By the aforesaid order, the interim protection afforded to the tenant-members on 5.5.2001, by a learned Single Judge of the High Court, was ordered to be vacated. It is the instant order dated 7.9.2012, which is the subject matter of challenge (at the hands of the tenant-members), before us.
25. While adjudicating upon the controversy in hand, and while determining the validity of the impugned order passed by the Division Bench of the High Court dated 7.9.2012, we shall apply ourselves to issues relevant for granting or denying interim prayers, while disposing of the instant appeals.
26. As noticed above, the Catholic Society comprises of about 745 members. Out of these members there were originally 54 tenant-members and 15 tenants simplicitor (the tenants simplicitor, were not members of the Catholic Society). After the coming into force of the Cooperative Societies Act, all the tenants (including the tenant-members, as also, the tenants simplicitor) became members of the Catholic Society. It is therefore, that the strength of the tenant-members at the present juncture is 69. The relief sought in the two suits (i.e. Suit no.144 of 2010 and Suit no.145 of 2010) is a claim for rights,on account of being tenant- members. It is important to point out, that the aforesaid suits were filed by only 15 tenant-members. It is these 15 tenant-members, who had pursued their prayer for interim relief, before the High Court. It is not a matter of dispute, that the suits referred to above, were not filed in a representative capacity, and as such, it would be incorrect to assume, that the aforesaid suits can be considered to have been filed by all the 69 tenant-members. The correct factual position is, that out of 69 tenant- members only 15 tenant-members had filed the aforesaid suits. The number of tenant-members who were pursuing their remedy through the aforesaid suits, has diminished further before this Court, inasmuch as Special Leave Petition (C) nos.30847-49 of 2012 comprises of 8 petitioners only. It is therefore apparent, that 7 of the plaintiffs in the suits, have now not joined hands with those who have approached this Court, (and are now appellants, before this Court). The instant factual narration however proceeds further, inasmuch as, IA nos.17-19 of 2012 (arising out of SLP (C) nos.30847-49 of 2012) have been filed by three of the petitioners (now appellants) i.e., petitioner/appellant nos.2, 3 and 4, i.e., Jennifer Pegado, Elwyn D’cruz and Don Donato D’Silva, with a prayer for transposing them as respondents, as they do not want to pursue the matter any further (along with the remaining petitioners). In view of the prayer made in the aforesaid interlocutory application, it is apparent, that the strength of the tenant-members who had initiated the civil suits, referred to above, has successively diminished from 15 in the civil suits, to 8 at the special leave petition stage, and further to 5 at the appellate stage (after three of the petitioners have prayed for transposing them as respondents). Keeping in mind, that the total tenant-members are 69, and the relief sought in the suits, and now through the instant petitions/appeals (which are filed on the strength of being tenant-members), has diminished to 5, it would be inappropriate to consider the grant of any interim relief, in the absence of any clear determination, that the claim pressed by the appellants before us, is at the behest of at least a simple majority of the tenant-members. Out of 69 tenant-members 35 would constitute a simple majority. The instant petitions/appeals are now being pursued by only 5 tenant-members. In the aforesaid view of the matter, the acceptance of the prayer made by the tenant-members for interim directions, would not only be inappropriate but would be unthinkable.
27. Secondly, the principal contention advanced at the hands of the learned counsel for the petitioners/appellants before the High Court was, that after the resolution of the Catholic Society dated 6.12.2009 (and the consequential conveyance deed dated 7.12.2009) is implemented, the petitioners/appellants would lose their primary membership with the Catholic Society. This, according to the learned counsel for the petitioners/appellants, would be violative of Section 35 of the Cooperative Societies Act, for the simple reason, that the tenant-members cannot be compelled to lose their membership of the Cooperative-Society, without the approval of the Registrar, Cooperative Societies. Based on the aforesaid reasoning, it was submitted, that the resolution dated 6.12.2009 (and the consequential conveyance deed dated 7.12.2009) run counter to the cooperative principles enshrined in the Cooperative Societies Act.
28. While determining the aforesaid claim canvassed at the hands of the tenant-members, the Division Bench of the High Court, in the impugned order dated 9.8.2012, had clearly recorded that there was no question of the tenant-members losing their cooperative membership. In this behalf it was pointed out, that all the 69 tenant-members, besides 161 allottee-members would be entitled to occupy the tenements, consequent upon completion of the building project emerging out of the resolution of the Catholic Society dated 6.12.2009 (and the consequential conveyance deed dated 7.12.2009). Accordingly, the High Court while accepting the plea advanced at the hands of the Catholic Society, expressed the view, that after the construction of the new tenements at Willingdon East, they would be occupied by the allottee-members and the tenant-members. Thereafter, they would have to be enrolled as members of the Cooperative Society to be formed by the developer, under Section 10 of the Maharashtra Ownership of Flats (Regulation of the Promotion, Construction, Sale, Management & Transfer) Act, 1963, read with Rule 10 of the rules framed thereunder. Since the aforesaid factual/legal position was not disputed before us, during the course of hearing, we have no alternative but to accept the same. Thus viewed, it is not possible for us to conclude that the tenant-members shall lose their cooperative membership upon the implementation of the resolution of the Catholic Society dated 6.12.2009 (and the consequential conveyance deed dated 7.12.2009). We are therefore satisfied, that on the instant aspect of the matter, the petitioners/appellants before us, will not be subjected to any irreparable loss.
29. The third contention advanced at the hands of the learned counsel for the petitioners/appellants, was again on the aspect of irreparable loss. It was sought to be canvassed at the hands of the appellants, that once the resolution of the Catholic Society dated 6.12.2009 (and the consequential conveyance deed dated 7.12.2009) is given effect to, the claim made by the tenant-members for the bifurcation of the Catholic Society under Section 18 of the Cooperative Societies Act will stand frustrated. It was submitted, that the position would be irreversible, and as such, it is imperative to injunct the Catholic Society, from giving effect to the resolution dated 6.12.2009 and the conveyance deed dated 7.12.2009.
30. Even though there may be some truth in the third submissions canvassed at the hands of the petitioners/appellants (as has been noticed in the foregoing paragraph), it is not possible for us to accede to the claim of the petitioners/appellants, in the peculiar facts and circumstances of this case. In so far as the instant aspect of the matter is concerned, it would be relevant to mention, that the first dispute between the rival parties arose when the Catholic Society resolved to redevelop the land measuring about 5.5 acres, known as Willingdon East. The aforesaid resolution was passed as far back as on 25.9.1966. The said resolution was assailed by the tenant-members under Section 91 of the Cooperative Societies Act. The issue attained finality in favour of Catholic Society, after a Division Bench of the High Court dismissed the intra-court appeal preferred by the tenant-members, on 25.7.1972. The aforesaid resolution dated 25.9.1966 (which was declared as legal by the High Court),is sought to be given effect to by the Catholic Society, through its resolution dated 6.12.2009 (and consequential conveyance deed dated 7.12.2009). Five tenant-members are now desirous of stalling the resolution of 25.9.1966, even though about 47 years have gone by since then. The narration of the factual position recorded above reveals that the Catholic Society, left to itself, would have commenced the redevelopment of Willingdon East, comprising of 230 tenements, more than four and a half decades prior hereto, had the tenant-members allowed the Catholic Society to proceed with the matter in terms of its aforesaid resolution. The instant action of the tenant-members has adversely affected all those who would have been entitled to tenements, had the petitioners/appellants herein not obstructed to the redevelopment resolution of the Catholic Society. Deprivation of the rights of 230 individuals, at the behest of five of them, tilts the balance of convenience in favour of the majority (230 – 5 = 225), and against a miniscule minority of 5 members. In this view of the matter also, we are of the view that the High Court while passing the impugned order dated 9.8.2012 was fully justified,in vacating the interim order(s) passed by the learned Single Judge (dated 11.1.2010 and 5.5.2011).
31. The main contention advanced at the hands of the learned counsel for the petitioners/appellants, is based on a plea canvassed at the hands of the tenant-members for the bifurcation/division of the Catholic Society. Unless the aforesaid issue is examined objectively, the issue in hand cannot be treated to have been appropriately deal with. In this behalf, it would be pertinent to mention, that the tenant-members had filed an application under Section 18 of the Cooperative Societies Act, to protect the interest of the tenant-members of the Catholic Society. To achieve the aforesaid objective, it was canvassed, that the Catholic Society should be bifurcated/divided in such a manner, that one of the emerging societies would comprise of only tenant-members. The second resultant society, could cater to all non-tenant members. Inspite of the fact, that the aforesaid process (seeking bifurcation of the Catholic Society) was initiated by the tenant-members in the seventies, and inspite of the fact that about four decades have since elapsed, the tenant-members have failed to obtain a final determination with reference to their prayer for bifurcation/division of the Catholic Society.
32. All the same, we have independently considered the plea of bifurcation/division raised by the petitioners/appellants noticed above. Even though the Deputy Registrar, Cooperative Societies, Mumbai vide an order dated 28.11.2007, had allowed the prayer made by the tenant-members for bifurcating/dividing the Catholic Society, yet the aforesaid order dated 28.11.2007 was quashed by the Divisional Joint Registrar, Cooperative Societies, Mumbai, while disposing of an appeal preferred by the Catholic Society, on 29.9.2009. As of now, the tenant-members have not obtained any order for bifurcating/dividing the Catholic Society. However, what needs to be considered at the present juncture is, that even the Federal Society, i.e., the Bombay-Thane District Cooperative Housing Society Limited in its report dated 7.6.1980, had concluded that there was no justification for the bifurcation/division of the Catholic Society. Furthermore, tenant- members had filed Revision Application no.713 of 2009 before the State Government, to assail the order passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai dated 29.9.2009. It would be relevant to mention, that the Deputy Registrar, Co-operative Societies, Mumbai, had ordered the bifurcation/division of the Catholic Society vide an order dated 28.11.2007. The Divisional Joint Registrar, Co-operative Societies had set aside the aforesaid bifurcation order on 29.9.2009. The Revision Application no.713 of 2009, filed to challenge the quashing order, was withdrawn by the tenant-members. The tenant-members must, therefore be deemed to have acquiesced to the order dated 29.9.2009. In a sense, therefore, the plea for bifurcation may reasonably be taken as having been not pressed, specially when, remand proceedings are not shown to have proceeded further. Accordingly, it is natural to infer, that the objective of the tenant-members, for seeking the bifurcation/division of the Catholic Society, is not being seriously pursued. Even though the matter has not attained finality as of now, yet it is not possible for us at this juncture, to record a prima facie finding in favour of the tenant-members. What needs to be kept in mind, is the effect of the pending consideration.
33. Merely on account of the said pending claim for bifurcation raised by 69 tenant-members, they have exclusively occupied 5.5 acres of land situated in Santacruz, Mumbai. On the redevelopment of the said land, 230 tenements will be created. The gains to the tenant-members, are clearly incomparable to the loss which has ensued on account of continued status quo. 161 beneficiaries, as per the resolution of the Catholic Society dated 25.9.1966 who had made deposits in 1966 (at the asking of the Catholic Society) are still waiting. Thus viewed, even on the aspect of bifurcation/ division of the Catholic Society, there can hardly be any justification in the prayer made by the tenant-members, for an injunction against the resolution of the Catholic Society dated 6.12.2009 (and the consequential conveyance deed dated 7.12.2009). The balance of convenience, is surely not in favour of the tenant-members.
34. While we are also satisfied, that the Division Bench of the High Court in the impugned order dated 9.8.2012 has correctly evaluated the rights of the petitioners/appellants in their capacity as tenant-members. In so far as the instant aspect of the matter is concerned, it would be pertinent to mention, that on the issue whether the tenant-members had a separate identity and right (as against the other members of the Catholic Society) came to be considered by a learned Single Judge of the High Court in Misc. Petition no.252 of 1972. The plaintiffs in the present suits (Suit no.144 of 2010, and Suit no.145 of 2010) are admittedly the same as the petitioners in Misc. Petition no.252 of 1972. The High Court having considered the aforesaid issue, namely, whether the petitioners/appellants had any proprietary right as tenant-members of the Catholic Society, it held as under:
“This is an entire frivolous petition by the members of a co-operative society for writs and order under Art.226 of the Constitution quashing the orders passed by the respondents. The effect of the impugned orders was that the suit filed by the present petitioners for declarations that the Resolutions passed at the annual general meeting of the first respondent society were illegal, void and inoperative in law and that the present petitioners to quiet and peaceful enjoyment of their respective tenements, stood dismissed by the appropriate authorities under the Maharashtra Cooperative Societies Act, 1960. In challenging the said orders by the present petition, the petitioners have raised various contentions, but I need refer to only three of them and they are as follows:
(1) that the general body of the first respondent society has no power to deprive the petitioners of their tenements;
...........
In support of the first proposition Mr.B.R. Nayak has relied on the decision of the Full Bench of this Court in the case of Manohar vs. Konkan Co.op Housing Society (63 Bom. L.R. 1001 at 1006), but I am afraid the said decision instead of helping Mr.Nayak on the point, is against him in so far as it lays down in unmistakable terms that it is the society alone which is the absolute owner of the property and the members of the society have merely the rights and obligations conferred by the various provisions of the statute itself. It is, therefore, quite clear that it is the society that, as the absolute owner of the property, would have all the rights which any other owner of the property has, and that the petitioners have no proprietary interest at all in their tenements. Under the circumstances, the petitioners do not have even a prima facie case on the point that the first respondent society has no right to depirve them of their tenements.” The applicants in Misc. Petition no.252 of 1972, assailed the order dated 17.4.1972 (extracted above), by filing Appeal no.74 of 1972. Appeal no. 74 of 1972, was dismissed by a Division Bench of the High Court, on 25.7.1972.
The aforesaid determination attained finality between the rival parties. In the impugned order dated 9.8.2012, the Division Bench of the High Court by relying upon the aforesaid determination, further concluded that, the petitioners/appellants are disentitled in law to claim the relief sought by them. It is apparent, that the relief sought by the tenant-members, is a relief which can ordinarily be sought only by individuals/parties who have a proprietary interest, in the subject matter. While we concur with the Division Bench, to the effect that the tenant-members have no proprietary interest in the subject matter of the controversy, it is necessary for us to refrain from further determining, whether or not the petitioners/appellants in their capacity as tenant-members having no proprietary interest can still claim an exclusive right to redevelop a part of 5.5 acres of land constituting Willingdon East, (even if it is assumed, that they do not have a right to redevelop, the entire land of Willingdon East), by seeking a bifurcation of the Catholic Society. Be that as it may, the Catholic Society has undoubtedly, on the basis of the instant consideration, made out a prima facie case in its favour (the final determination whereof will only be rendered, at the culmination of the proceedings, initiated through the civil suits referred to above). In view of the deliberations recorded hereinabove, yet again it would be inappropriate to grant an injunction, restraining all redevelopmental activities, in terms of the prayer made by the petitioners/appellants.
35. In the background of the conclusions drawn by us hereinabove, it is no longer necessary to examine the matter under any other parameter(s). Be that as it may, we wish to consider the claim raised by the tenant-members, i.e., the petitioners/appellants before us, on the basis of their contention that whilst the conveyance deed dated 7.12.2009 contemplates a consideration of Rs.70 crores payable to the Catholic Society, the tenant- members had been able to procure a better offer, wherein, for the same developmental project the consideration offered was of Rs.75 crores.
36. The instant issue has been examined minutely by the High Court in the impugned order dated 9.8.2012. While doing so, the High Court has drawn the following conclusions. Firstly, that only M/s. Robin Home Developers Pvt. Ltd. (M/s. Sumer Associates) had come forward with a proposal of redevelopment of Willingdon East. Due to the pending litigation, no recognized builder was prepared to make an unconditional offer on “as is where is” basis. Most of the builders wanted the Catholic Society to settle the pending litigation. Since the litigation had been pending for the last more than four decades, the Catholic Society was not in a position to abide by the pre-condition canvassed at the behest of the recognized builders. Secondly, the Catholic Society at the time of the general body meeting held on 6.12.2009, had only one proposal, namely, the proposal of M/s. Sumer Associates. Thirdly, M/s. Sumer Associates had assured the Catholic Society of a sum of Rs.70 crores. In fact, the aforesaid amount of Rs.70 crores was kept in escrow by M/s. Sumer Associates. Fourthly, during the general body meeting of the Catholic Society, some of the tenant- members orally made an offer of Rs.75 crores without depositing a single paisa as against the concrete proposal of M/s. Sumer Associates. Fifthly, based on the documents placed on the record, it was clear, that the offer of Rs.75 crores made by the tenant-members, was in fact made by a rival builder, namely, Mr. B.Y. Chavan (who was duly impleaded before the High Court). It is therefore, that the Division Bench of the High Court in the impugned order dated 9.8.2012, made the following observations:-
“33. It was urged by the learned counsel for the appellants that Mr. Chavan is instigating the plaintiffs to carry on the litigation. Bills submitted by the Attorneys have been placed on record, to show that Mr. Chavan has been actively instrumental in giving instructions to the solicitors/counsels for the plaintiffs. The correspondence is placed on record to demonstrate that the offer of Rs.75 crore has been made at the behest of Mr. Chavan. Mr. Chavan is a party to the proceeding and his right, if any, is based on the MOU executed in his favour by only 8 tenant- members. Mr. Chavan was present at the conferences held by the plaintiff’ solicitors as evidenced from the bills sent by the solicitors for the conferences held on 29 September 2009, 4 December 2009, 5 December 2009 and 12 December 2009 regarding writ petitions/suits filed by the plaintiffs against the Society. Having seen the conduct of the said developer-Mr.
Chavan, the Society had no confidence in him and his associates and has expressed confidence in the M/s. Sumer Associates. It is for the Society to decide who should be given the development rights and not for a small minority of 15 persons like the plaintiffs. The plaintiffs urged at length before us that the course adopted by the Sumer Associates is inequitable and bad in law. However, when the counsel for Mr. Chavan at the end of the hearing made an offer for higher figure and act exactly in the same manner as M/s. Sumer Associates, no objection was raised by the plaintiffs. No contention was then raised that development through Mr. Chavan in the same manner as M/s. Sumer Associates will affect the claim of plaintiffs of bifurcation of the Society. Thus upon offer of Mr. Chavan, all arguments of the plaintiffs based on law and equity vanished. This conduct of the plaintiffs is relevant when the Court considers passing equitable orders. Such conduct of the plaintiffs themselves is against the spirit of co-operative movement and there can be no other higher breach of principles of co-operative movement when a small minority of members stall the decision of overwhelming majority of members and deprive the members of their legitimate claim. The Court proceedings cannot be used as an instrument of harassment and extortion. Prima facie, we find substance in the contention of the Society that Mr. Chavan is using the plaintiffs as a tool to block the redevelopment of the Society.” The aforesaid conclusion drawn by the High Court is sought to be reiterated by the applicants in Interlocutory Application nos. 17-19 of 2012. As already noticed hereinabove, the instant interlocutory applications have been filed by three of the petitioners/appellants, namely, Jennifer Pegado, Elwyn D Cruz and Don Donato D’Silva. In paragraph 2 of their aforesaid applications, it was sought to be averred as under:-
“2. That the above petition was filed by these petitioners at the instance of B.Y. Chavan and Sagar Builders & Developers i.e. respondent nos. 17 and 18 in the above petition and who have been instigating the tenants in the property to pursue a Bifurcation Application and stall the re-development of the Willingdon (East) property which has been sold by the respondent no. 1-Society to the respondent no. 20. The said respondent nos. 17 and 18 have been spending the entire litigation expenses for the last number of years as also in respect of the present petition with a view to obstruct re-development of the Willingdon (East) property in view of they being unsuccessful in acquiring the same by causing a bifurcation of the Society.
These petitioners have now realized that the above petition being prosecuted is only in the interest of B.Y. Chavan and Sagar Builders & Developers, the respondent nos. 17 and 18 in the above matter and therefore having settled their differences with the respondent no. 1 and respondent no. 2 have addressed letters to Advocates Shally Bhasin Maheshwari, who has been engaged by the respondent nos. 17 and 18 on behalf of the petitioners calling upon the said Advocates to forthwith withdraw the above Special Leave Petition. However, notwithstanding the said instructions the said Advocates have failed to withdraw the petition and now instead of withdrawing the petition seek to continue with this Special Leave Petition by merely dropping these petitioners as petitioners. The petitioner no. 6 Martin James Michael has also settled his differences with respondent nos. 1 and 20 and his siblings and has also instructed Advocate Shally Bhasin Maheshwari to withdraw the petition, however, since then he has sometime in the past few weeks passed away and therefore he may be dropped as petitioner.” Based on the factual position noticed by three of the petitioners/appellants in I.A. nos. 17-19 of 2012, the finding recorded by the High Court in respect of the offer of Rs.75 crores can be stated to have been made at the behest of a rival builder Mr. B.Y. Chavan. Mr. B.Y. Chavan has even paid for the litigation expenses of the tenant-members. The tenant-members readily accepted the offer made by Mr. B.Y. Chavan, when he proposed before the High Court that he would act in the same manner as M/s. Sumer Associates. It is therefore natural to infer, that the tenant- members are agreeable to the redevelopment of 5.5 acres land comprising of Willingdon East in the manner contemplated by the resolution of the Catholic Society dated 6.12.2009 (and the consequential conveyance deed dated 7.12.2009), which is impugned in the suits filed by the tenant- members. This also prima facie shows that the action of the tenant-members prima facie seems to lack bona fides. We therefore affirm the determination rendered by the High Court in the impugned order, that it was for the Catholic Society to decide who should be given the redevelopmental rights, and not the tenant-members who are a small minority of 15 persons (the number having now diminished to 5) who have initiated the litigation out of which the present proceedings have arisen. As of now, therefore, it is possible to prima facie infer, that the petitioners’/appellants’ claim before the High Court does not seem to be bona fide. They also do not prima facie seem to have genuinely initiated the instant litigation. In the above view of the matter, the opinion recorded by the High Court, that all arguments of the plaintiff based on law and equity vanished, upon the offer made by Mr. B.Y. Chavan, cannot be stated to be unjustified.
37. For all the reasons recorded hereinabove, we find no merit in the instant Civil Appeals. The same are accordingly hereby dismissed.
…………………………….J.
(P. Sathasivam) …………………………….J.
(Jagdish Singh Khehar) New Delhi;
March 22, 2013.