Special General Body Meeting not needed to pass Redevelopment Process of the society

By Accommodation Times Bureau
As submitted by Advocate K K Ramani.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL
APPELLATE JURISDICTION

WRIT PETITION NO. 10285 OF 2009

Harsha Co­op. Housing Society Ltd. & Ors. .. Petitioners

Vs.
Kishandas S. Rajpal & Ors. .. Respondents

Mr. A. S. S. Murthy i/b Mr. A. P. Steenson i/b A. P. Steenson & Associates
for the Petitioners. Mr. N. N. Bhadarshete for Respondent Nos.1 & 2. Mr. R.
M. Patne AGP for Respondent No.3.

CORAM : MRS. R. S. DALVI, J. DATE

The petitioners are the co­operative society, several of its members and

the developers of the society premises. The respondents are father and son

who constitute one member of the society (respondent). The society passed

a resolution for development of its premises on 26.08.2008. This resolution

came to be passed pursuant a notice of that meeting given on 20.08.2008

which in turn came to be given in view of letter signed by 7 out of 12

members of the society setting out 8 issues relating to proper functioning of

the society which was required to be attended by the Chairman.

One of the matters on the Agenda of the Meeting mentioned in the

notice of the meeting was the “repair request all the members”. This was

inter alia discussed at the meeting. The resolution of the society shows that

the society building was in dilapidated condition and “beyond repairs”. The

members took a decision for the “redevelopment of the society building”. In

the said meeting the members discussed various offers of various developers

and builders such as Mohini Sheltors, Mayfair, sheth, Capital Square,

Radhakishan Construction. The members discussed various offers and

directed the committee members to investigate about short­listed developers

and take steps for redevelopment of the society.

It was contended by the respondent that passing of such a resolution is

illegal because under bye­ law No.97 the Special General Body Meeting

could not transact any business other than what was mentioned in the notice

A dispute therefore came to be filed for declaration that the resolution

was illegal and for grant of injunction restraining the society from acting

upon it. The injunction was refused by the Co­operative Court and granted

by the Co­operative Appellate Court, Mumbai.

It is contended on behalf of the respondents that since the agenda

was “repair” of the building premises, “redevelopment” of the premises and

granting the contract to Mohini Sheltors as developers of the society

building was outside the purview of the bye­law No.97.

A reading of the letters received by the Managing Committee setting

out the issues to be discussed, the notice of the meeting for that purpose and

the actual meeting held to discuss the issues which inter alia was the repair

of the society premises cannot show that the decision of the members upon

deliberation of the meeting that the society premises was beyond repairs and

must be redeveloped after investigation of the short listed developers is

outside the purview of the bye­law No.97.

For each of the specific steps to be taken in ultimately deciding the

repairs/redevelopment of the society building and premises, separate matters

on the agenda need not be shown and separate meetings need not be held.

The petitioner society is a small housing society consisting of 12

members. 11 out of those members have consistently agreed for

redevelopment since the meeting held on 26.08.2008. In that meeting they

required the investigation of the short­listed developers only. Pursuant to the

wishes of the members, are short listed developer was deemed fit to develop

It is not disputed that the society building premises is dilapidated. Yet

the respondents did not agree with the redevelopment of the society

premises by the short­listed developer. That, of course, was his privilege and

choice. However, since he was in an absolute minority, the wishes of the

society members in an absolute majority was required to be exceeded to.

10. It is argued on his behalf that by Government Notification issued under

Section 79­A of the Maharashtra Co­operative Societies Act (the Act), a

registered architect on the panel of the Government was to be selected and

the procedure as shown therein required to be complied which is not done

and which vitiated decision of the society.

11. The reliance upon the Government Notification is itself misplaced.

When the members of the co­operative housing society which, under law of

co­operation, decides by a majority of 11:1 members that the society

premises be developed in a particular fashion by a particular developer, it

would be contrary to principles of democracy by which the society is

governed, for the sole dissenting member to interfere and require a

procedure, not required by the majority of the members to be followed

which would only consume time and be

Government Resolution would be required to be followed by the society

where the members are unable to come to any decision by a resolution of

12. The petitioners’ society having been injuncted from carrying out the

wishes of its members for the redevelopment of its society by the impugned

injunction order sought to hold a fresh election for its new managing

committee. The new committee came to be appointed by a fresh election on

25.09.2009. The new managing committee gave a new notice to hold a

Special General Meeting of the society on 30.10.2009. The respondent was

given notice. Members at that meeting agreed with the earlier decision.

Consequently the impugned order became infructuous. Nevertheless the

impugned order is challenged.

13. The respondent as a member would have a right to appear at the

meeting. Consequently though it was stated that he was given notice of the

meeting but failed to appear, the Court directed the society and all the

members once again meet and consider the aspect of the redevelopment of

the society premises on 7th March, 2010. It was mentioned to the Court that

the respondent had three other offers which were far superior and hence it

was considered in the fitness of things to reconsider of all these offers

14. The society meeting has been held yesterday. The respondent as well as

other members have attended. Four offers including the offer of Mohini

Sheltors together with certain amendments have been considered. The

respondents have produced a columnar statement of the four offers.

15. It is contended on behalf of the respondent that, a look at the columnar

statement shows that all of the respondent’s three offers are better than that

16. The columnar statement shows that all the three developers have

offered to construct only the residential premises of the society whereas

Mohini Sheltors has offered to construct commercial and residential

premises. It need hardly be stated that the commercial premises on the

ground floor of the building would itself enure for the benefit of the

17. The absolute advantage shown by way of absolute figure is in clause 8

of the columnar statement in which one of the offers of the respondent

shows the corpus which will be created at the rate of 7,500 per square foot

of the carpet area of the members. Advocate on behalf of the respondent

mentioned that the respondent would obtain Rs.23.33 lacs and the entire

society would obtain Rs.2.80 crores by that offer. To see the bonafides of

the offer, the respondent was directed to call upon his offerer to deposit

Rs.2.80 crores in the Court. Advocate on behalf of the respondent stated that

no such deposit can be made.

18. The other aspects of the offer in the columnar statement show

percentage amount which are not tangible to reconsider.

19. The members have decided once again by a majority of 10:2 to confirm

the offer of Mohini Sheltors. The Court is not, therefore, required to

interfere with the wishes of the majority of the members. The members do

not seek to act upon the resolution passed in the meeting dated 26.08.2008.

The impugned order has become infructuous. The injunction granted under

impugned order is set aside. The members have resolved to redevelop their

society building premises. The Court cannot interfere with such resolution.

The Writ Petition is disposed of with the above clarification as the

impugned order is infructuous.

respondent is taken on record.





Similar Articles

Leave a Reply

Top