Bombay High Court
Vina Arvindlal Siswawala And 2 Ors vs The State Of Maharashtra And 2 Ors on 24 November, 2018
Author: N.J.Jamadar
Bench: K. K. Tated, N.J.Jamadar
wp 1346-15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1346 OF 2015
Smt. Vina Arvindlal Siswawala & Ors. ... Petitioners
V/s.
The State of Maharashtra and Others ... Respondents
----------------
Mr. Gautam Ankhad a/w Mr. Yogendra Rajgor, Ms. Rekha Shinde I/b
M/s. Legal Chartered for the Petitioners.
Mr. Milind More, Addl. Govt. Pleader for the Respondent No.1/State.
Ms. Shamima Taly, Mr. Aziz Shaikh, Mr. Vithoba Masurkar I/b M/s.
S. Mahomedbhai & Co. for Respondent Nos. 2 and 3.
----------------
CORAM : K. K. TATED, &
N.J.JAMADAR, JJ.
RESERVED ON : 23rd OCTOBER 2018
PRONOUNCED ON : 24th NOVEMBER 2018
JUDGMENT (PER : N.J.JAMADAR,J.):
1. In this Petition, under Article 226 of the Constitution of India, the petitioners seek a writ of certiorari or any other writ, order or direction for quashing the 'direction' dated 05 th December 2014 issued by the Deputy Registrar, Co-operative Societies, respondent No.1 (appointing observers for Special General Body Meeting of the respondent No.2 Society) and the 'no objection letter' dated 23rd December 2014, issued by respondent No.1 whereby respondent No.2 Society was Sneha Chavan 1/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc permitted to go for redevelopment of the society premises, and for a direction to the respondent No.1 to ensure that respondent No.2 society follows the Government Resolution dated 03rd January 2009, in the matter of redevelopment of society premises.
2. Shorn of unnecessary details, the background facts, can be stated as under:
a) Petitioner Nos. 1 to 3 are the joint members of respondent No.2, Bhoumik Co-operative Housing Society Limited, a society registered under the provisions of the Maharashtra Co-
operative Societies Act, 1960 (hereinafter referred to as "the Act") M/s. Sanghvi Construction Company constructed three residential buildings on the premises bearing CTS No. 370A and 370A/1 to 14 of village Poisar, Taluka - Borivali, Mumbai Suburban District. The abovenamed society, respondent No.2, a society of the flat purchasers came to be formed and registered with effect from 31 st August 1984. M/s. Sanghvi Construction Company did not convey the land and building to respondent No.2 society. Instead, it transferred the development rights to one M/s. Shubh Associates by an Agreement dated 01st July 2004 Sneha Chavan 2/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc
(b) Mr. Subhash Vasuda Seth, who is the member of the respondent No.2 Society and has held the posts of Chairman and Secretary of the Society, is a partner of M/s. Shubh Associates. Mr. Subhash Seth exerted influence upon the members of the society to grant development rights of the society premises on the assurance that he will arrange for conveyance of the property in favour of the society. Later on, Mr. Subhash Seth introduced Harisidha Project, respondent No.3, as his nominee and represented to the members of respondent No.2 society that if the redevelopment is entrusted to respondent No.3,he will arrange conveyance of the property in favour of respondent no.2. Due to the influence exerted by Mr. Subhash Seth and the representation made by respondent No.3, certain meetings of the General Body of respondent No.2 society were held and resolutions were passed therein to suit the interest of Mr. Subhash Seth and respondent No.3.
(c) The Government has issued a resolution on 03 rd January 2009 which contains elaborate provisions for the process of redevelopment of a housing society including issue of a public notice, floating of tender, calling for competitive bids etc. so as to ensure transparency and collective benefit for housing Sneha Chavan 3/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc society. As respondent No.2 society proceeded to enter into redevelopment transaction with M/s. Harisidha Projects, without adhering to the mandatory procedure stipulated by the Government Resolution dated 03 rd January 2009, the petitioners approached respondent No.1. Thereupon, respondent No.1 by letter dated 01 st December 2014 directed respondent No.2 society to follow the stipulation in the Government Resolution dated 03rd January 2009.
(d) A General Body Meeting of the respondent No.2 society was convened on 21st December 2014, in breach of Government Resolution dated 03rd January 2009. Respondent No.1 by his impugned letter dated 05th December 2014, appointed an observer for the said General Body Meeting convened to appoint a developer. This act of respondent No.1 was in direct conflict with the earlier communication dated 01 st December 2014 whereby respondent No.2 society was directed to follow the Government Resolution dated 03rd January 2009.
(e) The General Body Meeting was held on 21st December 2014 despite the objection raised by several members. In the said meeting, the resolution to appoint respondent No.3 as a developer came to be passed by majority. Respondent No.1 on Sneha Chavan 4/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc the basis of the report of the authorised officer as regards the proceedings of the said meeting, issued the impugned letter dated 23rd December 2014 and gave no objection for redevelopment of the society.
(f) The petitioners repeatedly brought to the notice of respondent No.1, the gross irregularities in the appointment of respondent No.3 as developer. As respondent No.1 did not take effective action and respondent No.2 society proposed to execute the development agreement and other instruments with respondent No.3, the petitioner preferred the Writ Petition for the reliefs, mentioned above.
(g) It is pertinent to note that during the pendency of this petition, respondent No.2 executed the development agreement with respondent No.3. This Court by order dated 10 th March 2015 recorded that "any agreement entered shall be subject to further orders that will be passed by this Court". On 31 st October 2015, M/s. Shubh Associates through Mr. Subhash Seth conveyed the right, title and interest in the land and building in favour of respondent No.2 society free of costs. The petitioners, thus, instituted a suit bearing No. 175 of 2016 against the respondent Nos.2 and 3 in Bombay City Civil Court Sneha Chavan 5/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc for declaration that the Development Agreement dated 31 st October 2015 and the Power of Attorney dated 31 st October 2015 are illegal and void and for other ancillary reliefs.
3. The very foundation of Writ Petition is rested on the premise that the Government resolution dated 03rd January 2009 which professes to regulate the process of the housing societies opting for redevelopment, and contains elaborate stage wise directives, is mandatory in nature. The said government resolution has been observed in breach, in the instant case. Respondent No.2 society, under the undue influence of Mr. Subhash Seth and respondent No.3, has entered into a development agreement with respondent No.3, without adhering to mandatory process and directives in the said Government Resolution dated 03rd January 2009. Respondent No.1, despite being fully aware of the flagrant violation of the said Government Resolution dated 03rd January 2009 by respondent No.2 society, chose not to intervene and instead gave no objection for development by issuing the impugned letter dated 23rd December 2014.
4. It would be contextually relevant to note that the petitioners had instituted suit No. 76 of 2015 in the Bombay City Civil Sneha Chavan 6/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc Court against M/s. Sanghavi Construction Company for conveyance of title in favour of respondent no.2 society and for setting aside of the resolutions passed by respondent No.2 society on 04th August 2013 and 21st December 2014 and other injunctive reliefs as regard the development agreement. No interim relief was granted in the said suit. The said suit came to be subsequently withdrawn.
5. After the execution of development agreement between respondent No. 2 and respondent No.3, the petitioners instituted Suit No. 175 of 2016 against respondent Nos. 2 and 3 in the Bombay City Civil Court for declaration that the development agreement dated 31 st October 2015 and the power of attorney dated 31 st October 2015 are void and also for setting aside the General Body Resolution dated 21 st December 2014, appointing respondent No.3 as the developer. In the said suit also interim relief was not granted. The petitioners preferred an appeal against order, bearing No. 82 of 2016, before the High Court against the order dated 02 nd March 2016 whereby the City Civil Court refused ad-interim relief in the said Suit No. 175 of 2016.
Sneha Chavan 7/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 :::
wp 1346-15.doc
6. The respondent Nos.2 and 3 resisted the petition by tendering the affidavits of Mr. Yogesh Manilal Parikh, the Secretary of respondent No.2 Society dated 10 th January 2015 and 04th March 2015. A preliminary objection was raised to the tenability of the petition under Article 226 of the Constitution of India, on the count that the petitioners have already availed an efficacious remedy by approaching the Civil Court, for the very same cause of action. It was contended on behalf of respondent Nos. 2 and 3 that the petitioners having not only exercised and availed the efficacious remedy of suit, but also sought the reliefs, which have been sought in the instant Writ Petition, cannot be permitted to invoke the writ jurisdiction of this Court. It was further contended that Civil Court declined to grant the interim reliefs and the petitioners have even challenged those orders by preferring appeal thereagainst before this Court. As the very same facts and cause of action constitute the basis of the Civil Suit No. 175 of 2016 and the instant Writ Petition, this Court may not exercise the writ jurisdiction.
7. On merits, it was asserted on behalf of the respondent Nos. 2 and 3 that the society has not committed breach of the Sneha Chavan 8/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc Government Resolution dated 03rd January 2009 and the development agreement dated 31st October 2015 has been executed in conformity with the guidelines contained in the Government Resolution dated 03rd January 2009. Respondent No.2 specifically contends that the Government Resolution dated 3rd January 2009 could not have been resorted to, until the title to the said land was conveyed to the respondent No.2 society. In the light of the fact that the respondent No.3 had agreed to cause the original owners M/s. Sanghvi Construction to execute the conveyance of the suit land in favour of the society simultaneously with the execution of the development agreement by the society in its favour and thereby ensure the vesting of clear title to the property in the respondent No.2 society and further agreed to pay the stamp duty and registration charges for the said conveyance in favour of the society, the respondent No.2 society had considered the proposal of the respondent No.3 and passed the resolution with overwhelming majority.
8. As regards the process followed by respondent No.2 society, it was contended that in the Annual General Body Meeting held on 16.09.2014, a Project Management Consultant for the Sneha Chavan 9/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc redevelopment of the said society premises was appointed. The Project Management Consultant prepared a Feasibility Report which came to be duly approved in the subsequent Annual General Body Meeting held on 23 rd November 2014. On 04th December 2014, the respondent No.1 was approached to depute the officers for the purpose of supervising the proceeding for appointment of developer at the Special General Body Meeting conveyed on 21 st December 2014. In the Special General Body Meeting held on 21st December 2014, 39 out of total 48 members were present. The resolution to appoint respondent No.3 as the developer was approved by 36 out of 39 members. The respondent No.2 society thereafter addressed a letter to the respondent No.1 along with the report of the proceedings of the Special General Body held on 21 st December 2014. The respondent No.1, found the proceedings of the Special General Body Meeting dated 21st December 2014 in order and conformity with the Government Resolution dated 03rd January 2009 and gave no objection for redevelopment of the society vide impugned letter dated 21 st December 2014.
9. Respondent Nos. 2 thus contends that more than 90% of the Sneha Chavan 10/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc members who were present in the Special General Body Meeting took a conscious decision to appoint respondent No.3 as the developer after considering all the relevant factors. Therefore, the petitioners have no cause to challenge the decision of the respondent No.2 society.
10. In the light of aforesaid facts, the primary question that crops up for consideration is whether this Court would be justified in exercising its jurisdiction under Article 226 of the Constitution of India when the petitioners have already invoked the common law remedy by instituting the suit, on the same subject matter?
11. The learned Counsel for the petitioners would urge that this Court would be wholly justified in exercising the writ jurisdiction, despite the pendency of Civil Suit No. 175 of 2016, before the City Civil Court at Bombay, as the issue of scrupulous compliance of directives contained in Government Resolution dated 09th March 2009 is pivotal issue in this petition, and the same cannot be enforced by the City Civil Court qua the respondent No.1. In contrast to this, the learned Counsel for the respondent Nos. 2 and 3 after taking us through the pleadings in the instant Writ Petition and Civil Sneha Chavan 11/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc Suit No. 175 of 2016, especially the reliefs therein, urged that the petitioners having exhausted, and been declined, the remedies before the Civil Court, cannot be heard in writ jurisdiction for the very same cause of action.
12. We have minutely perused the pleadings in the Writ Petition as well as Civil Suit No. 175 of 2016. To retain emphasis, the prayer clauses in the Writ Petition and the Civil Suit are extracted below.
Prayers in Petition Prayers in Suit a) That this Hon'ble Court be (a) That this Hon'ble Court be
pleased to issue a Writ, Order or pleased to declare that the direction calling for the records and Development Agreement dated 31st proceedings from the Respondent October, 2015 along with Power of No.1 and this Hon'ble Court be Attorney also dated 31st October, pleased to issue a Writ of Certiorari 2015 are against the provisions of or such other Writ, Order and Maharashtra Co-operative Societies direction as this Hon'ble Court deems Act read with Maharashtra Co- fit quashing the Order / decision / operative Societies Rules read with direction dated 05th December, 2014 Government Resolution dated 3rd as also the NOC letter dated 23rd January, 2009 and are therefore December, 2014 issued by the void, bad in law and not binding on Respondent No.1 in favour of the the Plaintiffs; Respondent No.2 and the Sneha Chavan 12/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc Respondent No.1 be ordered and directed to see that the Respondent No.2 Society follows the Government Resolution dated 3rd January, 2009.
b) that pending the hearing and (b) That this Hon'ble Court be final disposal of this Petition the pleased to order and direct the Respondent No.2 society is restrained Defendants to execute and register a by an order of injunction of this Deed of Cancellation in respect of the Hon'ble Court from in any manner said Development Agreement dated
(a) holding the General Body 31st October, 2015 along with Power Meeting dated 16th January, 2015 or of Attorney also dated 31st October, any other general body meeting with 2015, the Development Agreement the agenda for execution of dated 31st October, 2015 along with Development Agreement and Power Power of Attorney also dated 31st of Attorney for redevelopment and October, 2015 being illegal,
(b) entering into any Agreement, unlawful, unconscionable and/or Understanding or other deed or void having been obtained by fraud, document in favour of any person for misrepresentation, undue influence. redevelopment of the property being land bearing S. No. 63(p), S.No. 64, Hissa No. 1 and CTS Nos. 370A and 370A/1 to 14 of village Malad (North) without following the guidelines under GR dated 3rd January 2009 or any other General Body Meeting relating to redevelopment of the Respondent Sneha Chavan 13/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc No.2 Society and be further restrained from executing any deed or documents in favour of the Respondent No.3 or any one else without following the guidelines under the aforesaid GR;
(c) That this Hon'ble Court be pleased to pass a decree setting aside the resolution passed by the Defendant No.1 Society in its General Body Meeting dated 21st December 2014 thereby appointing the Defendant No.2 as the developer for development of Society's land being S. Nos. 63(p), S. No. 64, Hissa No.1 and CTS Nos. 370A and 370A / 1 to 14 of village Malad (North), Mumbai Suburban District.
(d) That Hon'ble Court be pleased to pass a decree ordering and directing the Defendant No.1 Society to follow the directives laid down under the GR dated 03rd January 2009 for redevelopment.
13. If we compare and contrast the prayers in Writ Petition and suit extracted above it became abundantly clear that Sneha Chavan 14/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc substratum of the claim of the Petitioner is the alleged non compliance of directives contained in the Government Resolution dated 03rd January 2009. The actions of the respondent No. 1 in issuing the impugned directions dated 05 th December 2014, for supervising the proceeding of the Special General Body Meeting and the no objection letter dated 23 rd December, 2014, subsequent to the Special General Body Meeting dated 21st December 2014 and the subsequent action of respondent No.2 of holding the General Body Meeting dated 16th January 2015, entering into the Development Agreement dated 31st October 2015 and the execution of Power of Attorney dated 31st October 2015 are being faulted at, on the count of non compliance of said directives in the Government Resolution dated 03rd January 2009 and thus void, bad-in-law and not binding upon the plaintiffs/petitioners.
14. The learned Counsel for the petitioners, in the face of aforesaid indisputable facts as regards the pleadings in the Writ Petition and the Suit, tenaciously submitted that the question of tenability of the Writ Petition is required to be determined only after considering the nature and import of the directives contained in Government Resolution dated 03rd January 2009, Sneha Chavan 15/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc issued under Section 79-A of the Act. A submission was sought to be built on the premise that, since the directives issued by the Government, under the Government Resolution dated 03 rd January 2009, flowing from the Section 79-A of the Act, are mandatory in nature, a Writ Petition is tenable and can be legitimately entertained by the High Court.
15. Conversely, according to the learned Counsel for the petitioners, the petitioners were constrained to file the above numbered Civil Suit as the respondent No.2 society went ahead with the process of redevelopment and executed the Development Agreement and Power of Attorney dated 31 st October 2015, in favour of Respondent No.3 in breach of the mandatory directives, and thus, seeking the relief of execution of Deed of Cancellation of those documents became imperative.
16. At this juncture, it may be apposite to extract the relevant part of Section 79A of the Act, which reads as under:
"79A. [Government's power] to give direction in the public interest, etc. (1) [If the State Government, on receipt of a report from the Registrar or otherwise, is satisfied] that in the public interest or for the purposes of securing proper implementation of co-operative production and other development programmes approved or undertaken by Sneha Chavan 16/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc Government, or to secure the proper management of the business of the society generally, or for preventing the affairs of the society being conducted in a manner detrimental to the interests of the members or of the depositors or the creditors thereof, it is necessary to issue directions to any class of societies generally or to any society or societies in particular. [the State Government may issue] directions to them from time to time, and all societies or the societies concerned, as the case may be, shall be bound to comply with the directions. .........."
17. It would be contextually relevant to note that the Government Resolution dated 03rd January 2009 broadly prescribes the guidelines entitled, "Co-operative Housing Societies, buildings, redevelopment directives", containing the procedure to be followed in the matter of redevelopment, comprising 13 clauses. Detail procedure for convening the Special General Body Meeting for taking policy decision for redevelopment, the selection of a panel of Architects, inviting suggestions from the members, appointment of Architect and Project Management Consultant, obtaining feasibility report, publishing the tender notice, inviting the bids from the well-known and experienced developers, presentation by the bidders, selection of developer and execution of the development agreement has been provided in the said Government Resolution.
18. The learned Counsel for the petitioners stoutly submitted that Sneha Chavan 17/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc this Court has ruled that the directives issued by the State Government, in exercise of power conferred by Section 79A of the Act, are mandatory in nature and command scrupulous compliance. To bolster up this submission, the learned Counsel for the petitioners placed a strong reliance upon the ruling of this Court in the case of Mont Blank Co-operative Society Limited and Anr. v/s. State of Maharashtra and others1.
19. In the said case, the challenge was to the Government Order dated 01st August 2001, issued under Section 79A of the Act, whereby the co-operative housing societies registered under the Act were directed not to charge Non Occupancy charges beyond 10% of the service charges (excluding Municipal Taxes), in the backdrop of the grievances that the co-operative housing societies were charging Non Occupancy charges at exorbitant and prohibitory rates. This Court, negative the challenge to the Government Order dated 01 st August 2001 and in the process, inter alia, observed in paragraph no. 16 as under:
"16. So far as the second order dated 13/8/2001 is 1 2007(4) Mh. L. J. 595 Sneha Chavan 18/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc concerned, it is clearly a circular issued by the Deputy Registrar, Co-operative Societies, "D" Division, Mumbai and it is an appeal to the co-operative housing societies to update their bye-laws in line with the model bye-laws. It further stated that copies of model bye-laws were available for Rs. 30/-each and every co-operative society was required to purchase two copies of these model bye-laws and it is not an order or a directive issued by the Deputy Registrar. Even otherwise, as noted earlier, Section 79A(3) provides for penal action if the directions issued under Section 79A(1) and (2) are not complied with, without furnishing any good reason or justification. At the same time, the directions issued under Section 79A by the State Government are binding on the co- operative housing societies as has been held by this Court in the petitions referred to hereinabove. We do not see any reason to take a different view."
(emphasis added)
20. The reliance was also placed on another Division Bench judgment of this Court in the case of Matru Ashish Co- operative Housing Society & Anr. v/s. State of Maharashtra and others,2 wherein after following the aforesaid judgment in the case of Mont Blanc (supra) the petition came to be disposed of holding that the issue in the said petition stood concluded by the judgment of Mont Blanc (supra)
21. The learned Counsel for the petitioners fairly submitted that a learned single Judge of this Court, in the case of Maya 2 2012(4) All MR 639 Sneha Chavan 19/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc Developers v/s. Nilam R. Thakkar & Ors. 3 has, however, taken a view that the directives issued by the Government Resolution dated 03rd January 2009 under Section 79A of the Act in the matter of the redevelopment of the buildings of the housing co-operatives societies are directory in nature.
22. The learned Counsel for the petitioners, took pains to persuade us to distinguish the aforesaid ruling of the learned Single Judge by putting forth a submission that in view of the peculiar facts, obtained in the case of Maya Developers (supra), the learned Judge was impelled to hold that the aforesaid directives were directory in nature.
23. Paragraph Nos. 73 and 74 of the judgment in Maya Developers(supra) are relevant and indicate the reasons for construing the directives as directory. They read as under:-
"73. I will now consider the relevant portions of this Directive. It opens with these words:
Whereas, buildings of Co-operative Housing Societies in the State of Maharashtra are being redeveloped on a large scale. A number of complaints were received from members against managements of Co-operative Societies in which redevelopment is taking place. In respect of most of the Co- operative Housing societies, nature of complaints relating to redevelopment is as under:-
1. Not taking the members in confidence in the process of redevelopment.
3 2016(6) Bom CR 629 Sneha Chavan 20/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc
2. There is no transparency in tender process.
3. Appointing contractors arbitrarily.
4. To work by violating provisions of Co- operative Act, Rules and Bye-Laws.
5. No orderliness in the work of Architect and Project Consultant.
6. Not planning Redevelopment Project Report.
7. Not adopting proper procedure in finalizing tenders.
8. There is no similarity in agreements with Developers.
Whereas there is no concrete policy in respect of all above points of complaint and therefore Co- operation Commissioner and Registrar, Co-operative Societies, Maharashtra State, Pune had appointed a Study Group under the Chairmanship of Joint Registrar, Co- operative Societies (CIDCO) to study the complaints received at various levels and for consultations with all constituents working in the relevant fields. The said Study Group has expressed the opinion that it is essential to frame regulations for redevelopment of buildings of Co-operative Housing Societies after consultation with all the constituents in the field of Co-operative Housing.
Therefore the Government is issuing following directive under Section 79A of the Maharashtra Co- operative Societies Act, 1960 (Emphasis added)
74. This itself makes it clear that, notwithstanding the use of words like 'regulation', what the 2009 Directive seeks to set in place are a set of guidelines. This is also apparent from the fact that the Government chose to issue these under Section 79A Sneha Chavan 21/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc rather than some other section of the Act. What is set out is a broad policy; and this stands to reason, for not every single provision of this Directive lends itself to strict compliance. Clauses 1, 2, 5, 7, 8 and 10 all use the word 'should', not 'must' or 'shall'. Clause 11 in terms says that the Development Agreement 'should' contain some conditions and provisions but these are specifically subject to the terms and conditions approved by the General Body Meeting of the Society. This Directive must be read as a whole, and not in the manner Mr. Pai suggests by plucking out one clause here and another there. Read thus, it is clear that the whole of the 2009 Directive is recommendatory, not obligatory. If it were otherwise, and to be read as Mr. Pai would have me do, it would undermine the authority of the society in general meeting, and the fundamental democratic underpinnings of cooperative societies. When Mr. Pai asks that is it possible that a majority can decide the fate of all, the answer must be an unequivocal yes; that is the basis of the entire edifice of the MCSA, subject to specific statutory exceptions. It is impossible to accept his submission that the 2009 Directive in mandatory. It is, as Mr. Kapadia says, a broad road map, and was brought into existence to provide guidance when there were far too many problems in re- development of societies. Material compliance is more than sufficient; and it in no way undermines or detracts from the overall authority of the general body of a society's members. It is sufficient if participation, notice and disclosure are ensured. Where majority decisions are consistent with material compliance with the provisions of the Directive, that is surely enough."
(emphasis added)
24. The learned Counsel for the petitioners urged that aforesaid Sneha Chavan 22/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc observations of the learned Single Judge are required to be read in the backdrop of the fact that in the facts of the said case there was fullest disclosure and widest of choice, which are conspicuous by their absence in the case at hand. Therefore, when respondent No.2 Society has not at all adhered to the mandate of the directives, and the entire process was driven with the sole objective of entrusting the development work to respondent No.3, the non compliance of the Government Resolution dated 03rd January 2009 cannot be condoned, construing the same as directory and warranting a substantial compliance only.
25. The learned Counsel for the petitioners strenuously urged that in view of the Division Bench judgment in the case of Mont Blank (supra) it has to be held that the directives issued under Section 79A of the Act are mandatory in nature. Consequently, the judgment of the learned Single Judge in the case of Maya Developers (supra), which, according to the learned Counsel for the petitioners, takes a different view, may not command precedence.
26. In the light of the view which we are persuaded to take on the aspect of the tenability of the Writ Petition, in the peculiar Sneha Chavan 23/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc facts of the case, we decline to embark upon the inquiry as to whether there is indeed a divergence of views on the point of mandatory or directory nature of the directives issued by the Government under Section 79-A of the Act. In the facts of the case, the question as to whether there is a cleavage of judicial opinion on the nature of directions issued by the Government under section 79A of the Act, in the backdrop of the rulings in the aforesaid case i.e. Monk Blanc (supra) and Maya Developers (supra), does not warrant determination. We, therefore, decline to consider the said aspect.
27. From the perusal of the pleadings in the instant Writ Petition and Suit No. 175 of 2016, it becomes abundantly clear that the petitioners have instituted a comprehensive suit assailing entire action of respondent No.2, in the matter of redevelopment of the society premises, commencing from initiation of the proposal to culminating in the execution of the Development Agreement and Power of Attorney in favour of respondent No.3. The petitioners have also sought the consequential relief of execution of Deed of Cancelation in respect of the above Development Agreement and the Power of Attorney. The fate of the said suit, inter alia, hinges upon Sneha Chavan 24/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc action of the respondent No.2 being found either in conformity with or in breach of the directives in Government Resolution dated 03rd January 2009.
28. It must be noted that the respondent No.2 questions the very applicability of few of the preliminary directives in the said Government Resolution on the ground that the conveyance of title to the land in favour of respondent No.2 society had yet not been obtained and the decision of respondent No.2 society to entrust the redevelopment to respondent No.3 was part of a bargain to have conveyance of the title simultaneously with the execution of the development agreement with respondent No.3.
29. In the backdrop of the aforesaid nature of the controversy, the question of applicability of the directives contained in the Government Resolution dated 03rd January 2009 may turn upon the determination of disputed questions of facts. There is a clear risk that any finding on facts, nay even an observation, by this Court may foreclosure the adjudication by the City Civil Court.
30. Looked at from any angle the edifice of the challenge to the action of respondent No.2 is the alleged non compliance of Sneha Chavan 25/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc directives in the Government Resolution dated 03 rd January 2009. The Petitioners have taken a conscious, deliberate and infirmed position, in litigation, to pursue the common law remedy before the Civil Court, as is evident from the fact that the earlier suit was withdrawn and the Civil Suit No. 175 of 2016 came to be instituted with comprehensive reliefs. The fact that the respondent No.1 is not a party to the said suit pales in significance and may not constitute a hindrance for petitioners in pursuing the remedies before the Civil Court.
31. In the backdrop of the aforesaid consideration, we are of the view that the exercise of jurisdiction under Article 226 of the Constitution of India may not be justifiable in the facts of the case at hand. It is trite that the jurisdiction of this Court under Article 226 of the Constitution of India is wide yet, it is discretionary. The existence of an efficacious alternate remedy is one of the self-imposed limitation for exercising the writ jurisdiction. In the instant case, the remedy is not only available, but has also been exhausted to the fullest.
32. In this context a useful reference can be made to a ruling of the Supreme Court in the case of The Commissioner of Sneha Chavan 26/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc Income Tax and others v/s. Chhabil Dass Agarwal,4 wherein after a survey of the authorities on this point, the Supreme Court had expounded the legal position as under:
"11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied 4 (2014) 1 Supreme Court Cases 603 Sneha Chavan 27/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."
33. Undoubtedly, in the aforesaid case, the question arose in the backdrop of availability of an equally efficacious alternate statutory remedy i.e. under Income Tax Act, 1961. In the case at hand, the petitioners have resorted to common law remedy by approaching the competent civil court with a comprehensive suit. The principle expounded in the aforesaid Sneha Chavan 28/29 ::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 ::: wp 1346-15.doc case, in our view, would equally govern the situation at hand, especially when the common law remedy is fully exhausted. We are not simply relegating petitioners to approach the Civil Court by merely pointing out the existence of the remedy. On the contrary, the petitioners have been pursuing both the remedies with equal intensity.
34. The upshot of aforesaid discussion and reasons is that we are unable to persuade ourselves to entertain the instant Writ Petition. Resultantly, the Petition deserves to be dismissed.
35. Before parting, we make it clear that we have not adjudicated upon any of the disputed questions of fact and law. The City Civil Court, Bombay, before which Civil Suit No. 175 of 2016 is pending, shall decide the same in accordance with law without being influenced by any of the observations made hereinabove.
36. Hence, the following order.
i) The Writ Petition stands dismissed.
ii) In the facts and circumstances, there shall be no order as to
costs.
(N.J.JAMADAR, J.) (K.K.TATED, J.)
Sneha Chavan 29/29
::: Uploaded on - 24/11/2018 ::: Downloaded on - 26/11/2018 01:34:19 :::