Bombay High Court
Susme Builders Private Limited vs Om Namo Sujlam Suflam on 3 August, 2012
Author: B.R.Gavai
Bench: B.R.Gavai
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1640 of 2012
IN
SUIT NO. 1588 of 2012
Susme Builders Private Limited
having regd. Office at Unit No. F-1,
1st floor, Shanti Nagar Industrial Estate Ltd. Vakola,
Santacruz-East, Mumbai 400055 ... Plaintiffs
V/s.
1. Om Namo Sujlam Suflam
Co-operative Housing Society,
office at Shivaji Nagar,
Shree Chattrapati Shivaji Maharaj Marg,
Vakola Bridge, Santacruz (E),
Mumbai 400 055.
2. J.G. Developers Pvt. Ltd.
Office at Rajabahadu Mansion,
20, Ambalal Doshi Marg, Fort
Mumbai 400023. ... Defendants
Mr. Shekhar Naphade, Sr. Counsel a/w. Pradeep Sancheti, V.B. Naik, H.N.
Thakore, A.A. Joshi, Dhaval Deshpande, Vishal Talsania and D Jones i/b.
T. Jariwala & Assoc. for the plaintiffs.
Mr. Pravin Samdani, Sr. Counsel a/w. Mr. Snehal Shah, Mr. Naushad
Engineer, Ms. Deepti Panda i/b. Narayanan & Narayanan for defendant
no.1.
Mr. V.R. Dhond, Sr. Counsel a/w. Rakesh Agarwal for defendant no.2.
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CORAM : B.R.GAVAI, J.
3rd August, 2012.
ORDER :
The plaintiffs have filed the present Suit for declaration that the letter of termination dated 14th July, 2009 issued by the defendant no.1 Society thereby terminating the Development Agreement i.e. agreement dated 27 th February, 1986, agreement dated 10th July, 1995, Supplemental Agreement dated 7th January, 1998, Supplemental Developmental Agreement dated 5 th September, 2006 and Power of Attorney dated 20 th June, 1995 and 18th May, 2008 are illegal and bad in law. A further declaration is sought that the aforesaid agreements and the Power of Attorneys are valid, subsisting and binding on the parties. A decree for specific performance of the aforesaid Developmental Agreements has also been prayed for. The plaintiff has in the alternative prayed for a decree against the defendants for a sum of Rs. 324 Crores along with interest on Rs. 2.83 Crores at the rate of 15% p.a. from the date of the suit till payment/realisation. Along with the suit a notice of motion has been taken out by the plaintiffs praying for an order, restraining the defendants from acting upon the termination of the aforesaid agreements and/or creating any third party rights in respect of the suit property etc. The plaintiffs have also prayed for ad-interim reliefs in the aforesaid terms.
2. I have heard Shri Naphade, the learned Senior Counsel for the plaintiffs, Shri Samdani the learned Senior Counsel for the defendant no.1 and Shri Dhond, the learned Senior Counsel appearing on behalf of ::: Downloaded on - 09/06/2013 18:56:28 ::: 3/34 nms1640.12.sxw defendant no. 2 at length.
3. Shri Naphade, the learned Senior Counsel appearing on behalf of the plaintiffs submits that the alleged termination of the developmental agreement between the plaintiff and the defendant no.1, by the defendant no.1 in its meeting dated 10th March, 2009 is on the ground that the terms and conditions in development agreement were "jaacak" which according to ordinary English translation would mean unconscionable. The learned Counsel submits that the perusal of none of the terms and conditions would show that they are either unconscionable or unjust. The learned Counsel submits that the agreements were required to be made from time to time in order to give effect to the statutory provisions made in the Development Control Regulations (referred to as "DCR") and the provisions of the Maharashtra Slums Areas (Improvement, Clearance and Redevelopment) Act, 1971 (hereinafter referred to as the "Slum Act"). It is submitted that one of the terms and conditions in one of the agreements which provide that each person would be entitled only to an area admeasuring 225 sq. feet was on account of the statutory provisions, which provide that a person would not be entitled to more than 225 sq. feet carpet area. It is, therefore, submitted that by no stretch of imagination the said terms could be construed to be unconscionable. The learned Counsel submits that in any case the Supplemental Agreement which was entered into between the plaintiff and defendant no.1 was entered into after the approval of the General Body and as such the grievance in that regard is without any substance. The learned Counsel further submits that though the ::: Downloaded on - 09/06/2013 18:56:28 ::: 4/34 nms1640.12.sxw termination as could be found from the Resolution of the General Body of defendant no.1 dated 3rd March, 2009 is on the ground that terms and conditions were unconscionable, the entire case of defendant no.1 as could be seen from the affidavit-in-reply is that the termination is on the ground that the 70% of the members consent was not obtained by the plaintiffs, as is the statutory requirement. The learned Counsel further submits that the said question is no more res integra and submitted that Division Bench of this Court in Writ Petition No. 1301/1999 has in unequivocal terms held that, insofar as present Society is concerned, the consent of the 70% members is not necessary and as such same would operate as a res judicata between the parties. It is, therefore, submitted that it is not open to the defendant no.1 to say that since the consent of 70% members is not obtained, termination is valid.
4. The learned Counsel further submits that since the DCR are further amended in April 2008, the plaintiffs have applied to the Competent Authority on 1st October, 2008 thereby revising the plans and giving an area of 269 sq. feet to the eligible members.
5. Shri Naphade further submitted that the delay in implementation of project was on account of reasons beyond the control of the plaintiffs. He submits that there was a series of litigation pending with respect to the project. It is further submitted that the slum rehabilitation schemes underwent various statutory changes, on account of which the plans had to be revised and re-submitted. It is further submitted that on account of ::: Downloaded on - 09/06/2013 18:56:28 ::: 5/34 nms1640.12.sxw certain complaints a one man committee of Shri Chandrashekhar Prabhu was appointed and due to which the work of the project was stalled. He further submits that on account of the orders passed by the CRZ Authorities, the work came to be stalled. It is, therefore, submitted that there has been no deliberate or willful delay at the hands of the plaintiff. It is submitted that as a matter of fact plaintiffs have already completed two buildings and, therefore, the contention in that regard is without substance. The learned Counsel relying on the provisions of Section 202 of the Indian Contract Act submits that since the plaintiff has an interest in the property i.e. developmental rights which is the subject matter of agency, the agency cannot be terminated to the prejudice of plaintiff's interest. The learned Counsel further relying on the provisions of Section 41(e) read with Section 42 of the Specific Relief Act, 1963 submits that plaintiff is entitled to an injunction as prayed for.
6. The learned Counsel further submits that the case of fraud as pleaded in the affidavit-in-reply needs to be outrightly rejected inasmuch as, in view of provisions of order-6 Rule 4 of CPC, a misrepresentation and fraud has to be specifically pleaded and a general averment in that regard is not sufficient.
7. The learned Counsel, therefore, submits that the plaintiff has made out a prima-facie case for grant of injunction. It is further submitted that test of balance of convenience and irreparable injury are also in favour of the plaintiff. It is submitted that the plaintiff has worked on the said ::: Downloaded on - 09/06/2013 18:56:28 ::: 6/34 nms1640.12.sxw project from 1986, removed the reservation, obtained various permissions, submitted plans, removed all the hindrances for the implementation of the project. It is, therefore, submitted that after doing all this, if the plaintiff is deprived of benefits under the agreement and if the injunction as sought for is not granted, the plaintiff would suffer irreparable injury which cannot be compensated in the monetary terms. The learned Counsel in the rejoinder further submits that the plaintiffs are willing to complete the work within a period of three years. It is further submitted that the plaintiffs are also willing to give the additional benefits as are agreed to be given by the defendant no.2 in his agreement with the defendant no.1.
8. Shri Samdani, the learned Senior Counsel appearing on behalf of the defendant no.1 submits that on account of the plaintiff not complying with his obligations under the aforesaid agreements, the persons who are waiting for redevelopment of their slums from 1986 are deprived of the benefits of the redevelopment scheme and are still required to live in slums. The learned Counsel submits that the present scheme is not a scheme of redevelopment of slum simplicitor, inasmuch as rehabilitation is not being done on the land belonging to the Government or the Municipal Corporation. It is submitted that the persons residing on the land in question have purchased the suit land from its original owners and, therefore, the first agreement of 1986 was an agreement for redevelopment simplicitor. It is submitted that, however, the plaintiffs in order to take advantage of the subsequent statutory enactments giving special benefits for redevelopment of the slum area, has changed the plans and entered into ::: Downloaded on - 09/06/2013 18:56:28 ::: 7/34 nms1640.12.sxw Supplemental Agreements with the Managing Committee. The learned Counsel submits that the earlier Managing Committee in collusion with the plaintiffs had committed various irregularities and misdeeds thereby making the redevelopment project disadvantageous to the Society and its members. The learned Counsel submits that from the beginning the negotiations for redevelopment with the defendant no.1, were made by the plaintiff through one G.A. Shetty. It is submitted that it was specifically agreed between the plaintiffs and the defendant no.1 that the Power of Attorney in favour of G.A. Shetty was to continue till the completion of the project. It is further submitted that the then Managing Committee without the approval of the members has changed the said condition and had executed a Power of Attorney in favour of the defendant no.1 through any of its Directors. It is, therefore, submitted that one of the essential conditions which were agreed earlier has been changed by the Managing Committee. The learned Counsel further submitted that in terms of the earlier agreements, it was necessary for the plaintiff to first complete the redevelopment and only after the tenements were occupied by the members/residents in the redeveloped buildings, the persons who have sold properties in the free salable area were entitled to get any rights in the property. It is further submitted that the members of the Managing Committee had changed that condition to the detriment of the Society and permitted the plaintiffs to sale off the salable area without first the members/occupants occupying the redeveloped premises.
9. The learned Counsel further submits that the contention that the ::: Downloaded on - 09/06/2013 18:56:28 ::: 8/34 nms1640.12.sxw plaintiffs could not complete the construction on account of certain reasons is without any substance. It is submitted that insofar as the contention of the plaintiffs that they could not complete the construction on account of litigations is concerned, the learned Counsel submits that except for a limited period there was no stay to the construction. He further submitted that, in any case, if the plaintiffs could construct two buildings during this period, there was no impediment in constructing the remaining buildings. Insofar as the reason given on account of directions of the CRZ Authorities is concerned, it is submitted that only three additional buildings were to be affected by the directives of the CRZ Authorities. In spite of that the entire project was stalled by the plaintiffs. The learned Counsel further submits that though scheme was sanctioned in 1996, no explanation is given as to why the construction was not made between 1998 to 2001. It is further submitted that the hurdle of CRZ was also cleared in 2005, in spite of that nothing was done from 2005 to 2008.
10. The learned Counsel further submits that the plaintiffs have not challenged the termination of 24th July, 2009 though there is a pleading to that effect in the body of the plaint. It is submitted that the suit as filed by the present plaintiffs is beyond limitation.
11. The learned Counsel further submits that the plaintiffs have made various misstatements in the memo of petition and have also suppressed various material facts and the documents and on this ground alone, they are disentitled to an equitable relief.
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12. Shri Samdani, learned Counsel relying on the judgment of the
Division Bench of this Court in the case of Lokhandwala Infrastructure Pvt. Ltd. v/s. State of Maharashtra & ors. {2011 (3) Bom. C.R. 240} submits that if a developer is not in a position to get consent of the 70% of slum dwellers, the agreement between the Society and the Developer is liable to be terminated. It is, therefore, submitted that the consent of the 70% of the slum dwellers is an essential condition. The learned Counsel also relies on the judgment of the learned Single Judge of this Court in the case of Lokhandwala Infrastructure Pvt. Ltd. v/s. Dhobighat Compound Rahiwasi Seva Sangh & ors. in Suit (L) No. 813/2011.
ig Relying on the judgment of the learned Single Judge of this Court in the case of Barses J.A. D'Souza v/s. Municipal Corporation of Greater Brihan Mumbai & ors. {2003 (6) Bom. C.R. 846}, learned Counsel submitted that execution of Development Agreement would not create any interest in the property in question in favour of the plaintiffs.
13. The learned Counsel, therefore, submits that the plaintiffs have failed to make out a prima-facie case. It is submitted that the test of balance of convenience and irreparable injury are also in favour of the defendants inasmuch if injunction is granted, the members of the defendant Society would be deprived of shifting to redeveloped buildings and would be required to continue to reside in the slums. It is submitted that as against this the plaintiff himself has claimed an alternative decree in the monetary terms. It is, therefore, prayed that prayer for ad-interim relief be rejected.
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14. Shri Dhond, the learned Counsel appearing on behalf of defendant no.2 on the contrary submits that, as to whether a party is willing to perform the obligations under a contract or not has to be inferred from the conduct of the parties. The learned Counsel submits that entire conduct of the plaintiff would show that the plaintiff was never willing to perform its obligations but was only interested in riping the benefits of various schemes framed by the State Government for getting higher FSI.
15. With the assistance of the learned Counsel for the parties, I have gone through the various documents placed on record, statutory provisions and case laws cited.
16. The facts necessary for considering the rival submissions are as under:-
That the suit property was originally owned by one Ardeshir Cursetji Pestonji Wadia Trust and was occupied by about 800 slum dwellers who had formed an association known as Shivaji Nagar Residents Association. Undisputedly, in view of the consent decree passed between the owner and promoters of the proposed Society, the property came to be transferred and conveyed in favour of the promoters of the defendant no.1 Society. The defendant no.1 Society was registered under the provisions of the Maharashtra Co-operative Societies Act, 1960 on 9 th August, 1984.
A General Body meeting of the defendant no.1 held on 15th September, 1985 in which 163 members were present, resolved and authorised Shri G.A. Shetty, Executive Director of the plaintiff to do all the preliminary ::: Downloaded on - 09/06/2013 18:56:28 ::: 11/34 nms1640.12.sxw business i.e. the removal of the reservation, submission of plans, getting more FSI, communication with the concerned departments etc. The General Body also resolved to authorise the working Committee to execute Development Agreement with Shri G.A. Shetty. Accordingly, a Development Agreement came to be executed by the defendant no.1 Society with the plaintiff on 27th February, 1986. As per the said agreement the developer had agreed to construct for the Society free of cost 800 pakka constructed structures being self-contained flats, shops, industrial units each tenement ad measuring about 240 sq. feet built up area i.e. 190 sq. feet carpet area free of costs, for allotment by the Society to its members. It is pertinent to note that said offer was made by the developers on the basis of FSI as available at the relevant time. It is also pertinent to note that under the said agreement developer had also agreed for additional area to those members who were occupying residential premises not exceeding 110 sq. feet at the concessional rate of Rs. 350/- per sq. feet, provided additional FSI was granted by the Government or BMC. As per Clause-9 of the said agreement the construction was to be completed within the period of five years from the date of commencement certificate granted by the Bombay Municipal Corporation. It was also agreed that developer shall endeavour to start construction of the building for the members within six months from the removal of the reservation or in any event within one year from the date of the execution of the agreement.
Accordingly, a power of attorney also came to be executed in favour of Shri Govind A. Shetty on 7th April, 1986.
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17. In the meantime DCR came to be amended and, therefore, the General Body of the defendant again met on 12 th November, 1995 which provided that minimum carpet area of 225 sq. feet per slum dweller was to be provided for under the Slum Redevelopment Scheme. The General Body, therefore, resolved to authorise the Working Committee, to accordingly amend the agreements between the Society members and the Society Developer. Accordingly, second Power of Attorney came to be executed on 20th June, 1995 in favour of A.J. Pattathu and G.A. Shetty, the Chairman and Managing Director of the plaintiff company. In the meantime, letter of intent came to be issued by SRA for development of the property on 5th April, 1995. Thereafter, Articles of Agreement came to be executed between the plaintiff and the defendant no.1 on 10 th July, 1995.
The said agreement states that though under the Scheme of Notified Slum Area and DC Rules, each slum dweller is entitled to a tenement admeasuring 180 sq. ft carpet area, the developer had agreed to give residential area to the slum dwellers admeasuring 225 sq. feet carpet area i.e. additional 45 sq. feet for which the slum dwellers were to pay a sum of Rs. 14,350/- The agreement provides that the developer had prepared a plan in respect of 12 buildings of ground plus seven floors for rehousing the slum dwellers and project affected persons whereas the remaining area of 12497 sq. meter was to be utilized by the developer for the purpose of resale. Clause-13 of the said agreement provides that the developers were to construct buildings for the Society for 779 occupants whether they are members or not. Clause-15 of the said agreement provides that the developer was entitled to sell the flats, shops and garages constructed by ::: Downloaded on - 09/06/2013 18:56:28 ::: 13/34 nms1640.12.sxw them in respect of balance FSI, after providing tenements to slum dwellers and project affected tenements and sign agreements with the Intending purchasers and realise the sale price thereof.
18. In the subsequent meeting of the General Body held on 12 th November, 1995 in which 250 members were present, the General Body considered that in view of the amendment to the DC Regulations, a member cannot be provided an area of more than 225 sq. feet and as such members will be entitled only to 225 sq. feet carpet area i.e. 312 sq. feet built- up area free of cost. The said General Body also resolved that the old agreements between the members of the Society were cancelled and modified agreements were to be entered into. In the meantime, one member namely Mr. Nandkishore Palav had filed writ petition before this Court being Writ Petition No. 497/1997 for cancellation of agreement for redevelopment of the property under the Slum Scheme. However, it appears that the said Writ Petition was withdrawn on 10 th July, 1997. In the next General Body meeting which was held on 10th August, 1997 wherein 130 members were present, the General Body resolved to authorise the Managing Committee to do various things, including to amend the Development Agreement in accordance with the amended DC Rules, to carry out necessary amendment to the Power of Attorney. In the said meeting the further amendment to the DCR No. 33(10) was also considered under which slum rehabilitation authority was constituted. The general body has also taken cognizance that in view of the amendment, consent of the 70% residents was necessary. Again another Supplemental ::: Downloaded on - 09/06/2013 18:56:28 ::: 14/34 nms1640.12.sxw Agreement was entered into between the plaintiff and defendant on 7 th January, 1998 which provided for construction of the tenements for 852 occupants. Said agreement provided that in case the Society was unable to get consent of any member/occupant, the developer shall endeavour to win the occupant/member to obtain the consent for vacating and surrendering their tenements and shifting to the new building/s constructed on the said property. Under Clause-9 the developer was given a right to carry out the construction in joint venture with others and/or by appointing other builders, developers etc. However, the same was on the condition that developer has completed all the tenements of 852 slum dwellers. Clause-
33 of the said agreement provide that said agreement was supplemental to the Development Agreement executed by and between the parties and shall be read and constructed and considered to form part of the Development Agreement dated 10th July, 1995. It appears that, in the meantime, there was a petition before this Court being Writ Petition No. 1301/1999 filed by one Shivaji Nagar resident challenging the scheme sanctioned by the Authority in favour of defendant no.1 on the ground that defendant no.1 Society had not obtained consent of 70% of the members. Said petition came to be dismissed vide order dated 13th December, 1999. It appears that in the meantime there was some exchange of communication between the SRA and the plaintiff regarding the area of plot being affected by the CRZ i.e. Coastal Regulation Zone. In the meantime, the Government had also appointed one man commission of Shri Chandrashekhar Prabhu for enquiring into the complaints. It further appears that in the meantime, the plaintiff and defendant had jointly filed writ petition in this Court being ::: Downloaded on - 09/06/2013 18:56:28 ::: 15/34 nms1640.12.sxw Writ Petition No. 2269/2001 challenging the order passed by the SRA. In the said petition the Division Bench of this Court had granted Rule on 7 th August, 2002. The Court in the said order, in paragraph 4, has observed thus:
"Prima facie, having perused the affidavit of Dr. Munshilal Gautam filed before this Court on 24 th June, 2002 and the documents annexed thereto it does appear that the property in question is affected by CRZ regulations. Respondent nos. 2 and 3 have already placed Coastal Zone remark which is ofcourse impugned in the present petition but until the petitioners are granted relief as prayed, the petitioners cannot raise any construction in the area which is covered by CRZ regulation. We, accordingly observe that during the pendency of petition the petitioners shall not raise any construction in the property in question which is affected by CRZ regulation."
19. Another Writ Petition being Writ Petition No. 1854/2004 was filed by the plaintiff and defendant no.1 jointly, since SRA authorities had informed that all the papers were handed over to Shri Prabhu. As could be reflected from the order passed by the Division Bench of this Court dated 1st March, 2005 in Writ Petition No. 1854/2004, a statement was made on behalf of respondent no.3 therein that the concerned files have been retrieved from said Shri Prabhu who was respondent no.1 therein and decision with respect to the petitioners will be taken within four weeks from the said date. Said petition came to be disposed of with a direction to take decision within four weeks. In 2005 it was clarified by the authorities that the property is not falling in part of CRZ-I but only part of it was ::: Downloaded on - 09/06/2013 18:56:28 ::: 16/34 nms1640.12.sxw falling in CRZ-II. In the meantime, the Architect of the plaintiff had applied for approval of construction of transit accommodation. It appears that vide order dated 18th August, 2005, the SRA had granted permission subject to various conditions including that the agreement with the individual slum dwellers shall be executed before demolition of existing structure on site. It appears that thereafter there were certain complaints regarding the transit camp being constructed and as such the SRA issued notice stopping the work on 14th May, 2006.
20. It appears that further Supplemental Agreement was entered into between the plaintiff and the defendant no.1 dated 5 th September, 2006. Under the said Agreement the Developer has agreed to offer to pay a sum of Rs. 75,000/- to each of the members of the Society whose present structures were not exceeding 17 sq. meter and Rs. 1,00,000/- to those whose structures were exceeding 17 sq. meters by way of exgratia payment. Under the said agreement the developer was to deal only with the Managing Committee. Under the said agreement the developer through any of its directors were to be attorneys of the defendant no.1 Society. In pursuance to the Supplemental Agreement dated 5 th September, 2006 a Power of Attorney came to be executed in favour of the present plaintiffs through any of its Directors. It appears that thereafter there has been some litigation with respect to the transit camp. It appears that in the General Body meeting held on 24 th December, 2006 in which 101 members were present, the Chairman of the General Body informed the members regarding Supplemental Agreement dated 5 th September, 2006. It ::: Downloaded on - 09/06/2013 18:56:28 ::: 17/34 nms1640.12.sxw appears that thereafter elections were held of the Managing Committee of the defendant no.1 Society on 12th August, 2008 which are duly approved by the Competent Authority. It further appears that in the meeting of the General Body held on 22nd February, 2009, in which 313 members were present, it was resolved to terminate all the agreements of the plaintiff. In the subsequent meeting dated 29th March, 2009 wherein 310 members were present ratified the resolution passed in the earlier meeting. On 7 th April, 2008 writ petition filed by the petitioners being Writ Petition No. 2269/2001 was withdrawn.
21. The plaintiffs thereafter invoking the arbitration clause, had filed arbitration petition No. 885/2009 under Section 9 of the Arbitration and Conciliation Act, 1996 before the learned Single Judge of this Court for interim reliefs. It appears that the said matter was adjourned from time to time and on 26th June, 2012 the said petition came to be withdrawn so as to file the suit, qua the subject matter of the petitions. Vide the said order the learned Judge had directed that the Society shall upto 13 th July, 2012 not implement the Resolution passed at the meeting held on 1 st November, 2009. Accordingly, the present suit came to be filed on 10 th July, 2012. The matter was adjourned on some occasions for enabling the parties to file affidavit-in-reply and rejoinder. After the pleadings were complete, Counsel for the parties have been heard at length on 31 st July, 2012, 1st August, 2012, 2nd August, 2012 and today.
22. It appears that in the meantime, the slum rehabilitation authority ::: Downloaded on - 09/06/2013 18:56:28 ::: 18/34 nms1640.12.sxw passed an order under the provisions of Section 13(2) of the Slums Act thereby determining the developmental rights in favour of the plaintiff. The said order has been upheld by the High Power Committee on 16 th June, 2012. However, that is the subject matter of challenge before the Division Bench of this Court. As such, the limited question arises for my consideration is as to whether plaintiff is entitled for injunction as sought for or not?
23. It can thus be seen that the project for redevelopment was initially conceptualized in 1986 and except the construction of two buildings wherein 128 slum dwellers have been rehabilitated, the entire project is at a preliminary stage. As such more than 600 slum dwellers are awaiting their rehabilitation, in the redeveloped premises for the last 26 years.
24. As could be seen from the documents placed on record, the agreements between the plaintiff and the defendant no.1 have undergone change from time to time. Under the original agreement of 1986 which was an agreement simplicitor for development without the developer entitled to any benefits on account of slum redevelopment, the members/slum dwellers were entitled to get 190 sq. feet carpet area/240 sq. feet built up area free of cost. They were also to get an additional area of 110 sq. feet on payment at the rate of Rs. 350 per sq. feet, provided additional FSI was granted by the authorities. It can further be seen that the plaintiffs had agreed to construct the buildings for 800 occupants irrespective of the fact that they were members or not. The perusal of the ::: Downloaded on - 09/06/2013 18:56:28 ::: 19/34 nms1640.12.sxw recitals of the agreement more particularly clause 10 and 16 thereof would reveal that the offer made by the developer was on the basis of FSI as was available after removing the reservations and with the knowledge about reservations and on the "as is where is" basis. It is thus clear that the said agreement was not under the slum redevelopment scheme. The subsequent 1995 agreement was entered into after the DCR providing additional FSI for Slum Rehabilitation Scheme came into effect. As such in view of the Revised Plan the plaintiff would have been entitled to FSI of 2.5 which prior to that i.e. at the time of execution of 1986 agreement was only 1. As per the said agreement the residential slum dwellers were to get 180 sq. feet carpet area free of cost and balance of 45 sq. feet at the rate of 14,350/-. Under the 1998 agreement since according to the plaintiff the SRA did not permit a residential unit of more than 225 sq. feet, each of the occupant was to get a carpet area of 225 sq. feet free of cost. The perusal of the 1995 agreement and particularly paras 15, 16 and 17 would reveal that purchasers from the free sale area were not entitled to any rights till the entire project was completed. The perusal of clause-17 would reveal that the developer has stated that he shall complete the development work within a period of five years from the date of commencement certificate. Clause 26 would reveal that the plaintiff has specifically agreed that Shri G.A. Shetty shall continue to be Managing Director of the company till the entire project of the development of slum dwellers is complete and shall not allow the company to be wound up voluntary or compulsorily. Clause-20 of the 1998 agreement also provides that the purchasers from free-sale area would not acquire any right till the completion of the entire ::: Downloaded on - 09/06/2013 18:56:28 ::: 20/34 nms1640.12.sxw project.
25. It is to be noted that whereas all these agreements/Supplemental Agreements of 1986, 1995 and 1998 have been executed by the Managing Committee in accordance with the authority given to it by the resolutions passed in the meetings of the General Body, the Supplemental Agreement of 5th September, 2006 has been executed by the Managing Committee without it being authorised by the General Body. Though the said agreement will give a prima-facie impression that it grants additional benefit to the occupants, inasmuch as the payment of Rs. 75,000/- had been agreed to be given to those occupants having an area not exceeding 17 sq. meter and Rs. 1,00,000/- to those having an area of 17 sq. meter by way of ex-gratia payment. However, perusal of the said agreement in entirety would reveal that said agreement is not as advantageous to the occupants as, upon prima-facie reading of it, one would get an impression. Vide the said agreement, it is provided that the developer shall deal only with the Managing Committee of the Society alone and shall not be liable and responsible for dealing with the members of the Society. It is to be noted that in the earlier agreements it was provided that in the event the Society was unable to get the consent of the individual occupants, the developer was to make an effort in that regard. Vide said agreement the Society agreed to grant to the plaintiffs fully ascertainable and transferable perpetual licence of the said area on yearly rent of not more than Rs. 50,000/- It has been stated that the Society will sign and execute such lease after obtaining the permission from the General Body of the Society ::: Downloaded on - 09/06/2013 18:56:28 ::: 21/34 nms1640.12.sxw and Registrar of the Co-operative Societies. Vide the said agreement it has been decided to appoint plaintiff through any of the Directors as a power of attorney, whereas earlier it was agreed that till completion of the project it is only Shri G.A. Shetty who shall deal with the Managing Committee of the plaintiff and shall be the Power of Attorney of the defendant. It is to be noted that in the subsequent meeting dated 20th February, 2007 wherein 101 members were present, though the subject of the agreement dated 5 th September, 2006 was not on agenda, the President of the Managing Committee after the entire subjects were over, under the caption of subject "with the permission of the Chairman", has informed the General Body regarding the said agreement. However, the perusal of the minutes of the said meeting would reveal that there is not even a formal approval to the said agreement, leave aside the same being executed with prior approval of the general body.
26. It is the contention on behalf of the defendants that since under the SRA Scheme obtaining consent of 70% of the Slum dwellers is essential and since the plaintiff was not having the consent of 70% members, the termination is valid. In this regard it is the contention of the Counsel for the plaintiff that in view of the judgment of the Division Bench of this Court in Writ Petition No. 1301/1999, the consent of the 70% members is not necessary and that the said issue operates as res judicata between the parties in view of the aforesaid judgment. I shall, therefore, first deal with the issue as to whether judgment of this Court in Writ Petition No. 1301/1999 holds that consent of 70% of the members is not necessary in ::: Downloaded on - 09/06/2013 18:56:28 ::: 22/34 nms1640.12.sxw the facts of the present case. It is to be noted that in the said case the subject matter before the Court was the acceptance of the proposal of the Society by SRA on 20th October, 1992 under 1991 guidelines and a letter of intent dated 5th April, 1995. From paragraph 3 it would reveal that main contention raised on behalf of petitioner in that case was that before submitting proposal under the Scheme of 1991, the Developer has not obtained consent of 70% of the members as required under the said Scheme and, therefore, the grant of sanction was vitiated. The Court in para-4 noted that some 9 slum dwellers had filed Writ Petition No. 1301/1999 raising the identical challenge to the scheme and that the said petition was withdrawn unconditionally. The Division Bench further observed thus:-
"Under the 1997 scheme the builder is required to enter into agreement with individual members and accordingly 582 agreements have already been signed between the parties. There is also no merit in the contention of the petitioners that consent of 70% of slum dwellers was required under the 1991 scheme. On perusal of the said scheme it is clearly seen that consent of 70% of the slum dwellers was not required and what was contemplated was that if 70% of slum dwellers join the society, which is interested in the rehabilitation of the slum dwellers, then such society would be eligible to apply for sanction of the same under DCR 33(10)."
27. It can thus clearly be seen that what has been held by the Court is that under the 1997 scheme the builder was required to enter into agreements with individual members and accordingly 582 agreements were already signed between the parties. The Court found that what was contemplated under 1991 scheme was that the 70% of the slum dwellers ::: Downloaded on - 09/06/2013 18:56:28 ::: 23/34 nms1640.12.sxw joined the Society which is interested in the rehabilitation of the slum dwellers and thereafter such a Society would be eligible to apply for sanction of the same under DCR 33(10). It can thus be seen that Court was considering the issue as to whether under the 1991 scheme the consent of the 70% members was necessary or not and upon perusal of the 1991 scheme the Court found that under 1991 scheme it was not necessary to do so. It is to be noted that subsequently the plaintiff himself has amended the plans so as to get benefit of the DCR which came to be amended in 1997 and which undisputedly is more advantageous. It is also not in dispute that under the 1997 scheme consent of the 70% of slum dwellers is necessary.
28. In that view of the matter, I am unable to accept the contention on behalf of the plaintiffs that the judgment of this Court in the aforesaid case cited supra would operate as a res judicata between the parties. The Division Bench of this Court in the case of Lokhandwala Infrastructure Pvt. Ltd. v/s. State of Maharashtra cited supra had an occasion to consider the matter wherein the Society by requisite majority had decided to terminate the Development Agreement with the earlier builder and further decided to enter into Development Agreement with another builder. The Competent Authority had granted approval to the same. This Court in the said case had held that in such a case it was necessary for the authority to verify as to whether in fact the consent of more than 70% of slum dwellers was obtained or not. As such, the matter was remanded to the authorities for considering afresh. However, certain observations of the Division ::: Downloaded on - 09/06/2013 18:56:28 ::: 24/34 nms1640.12.sxw Bench would be relevant, which read thus:
"15. Now undoubtedly, a developer who has been appointed by a cooperative society is required to fulfill the mandate of DCR 33(10) by securing the implementation of the scheme. Where a developer fails to implement the scheme, that would not preclude the society which represents the interests of hutment dwellers from proceeding to terminate the contract with the developer.
The act of termination may, as in the present case, give rise to a private dispute to which a remedy may be available in accordance with the rights which the contractual arrangement creates between the parties. But, where the society seeks to appoint a new developer, it would be necessary that a proper verification and scrutiny is made of the authenticity of the proposal and of the grounds on which the society seeks to enter into a new contractual arrangement. Section 13(2) of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act 1971 inter alia contemplates that where the Slum Rehabilitation Authority is satisfied that the land has not been developed within the time, if any, specified under such conditions as have been prescribed, the authority may determine to develop the land by entrusting it to any agency recognized by it for the purpose. It was urged on behalf of the cooperative society that Section 13(2) operates where a letter of intent is issued to the developer and would have no application where as in the present case a letter of intent was yet to be issued. We are not prepared to accept the submission which has been urged on behalf of the society that a proposed society of slum dwellers is entitled without any scrutiny or regulation of its activities by the statutory authorities to enter into and terminate development agreements at its own whim and fancy without any application of mind by the authorities concerned. To accept such a submission would only lead to a situation of chaos in the implementation of Slum Rehabilitation Schemes. Members of the managing committees of the societies which are still proposed societies would then be at liberty to pursue their own private ends and to switch loyalties between rival builders on considerations of exigency. Once the proposal has been submitted to the authority under DRC 33(10), the authorities are entitled to scrutinize whether a proposal involving the change of a developer is in the ::: Downloaded on - 09/06/2013 18:56:28 ::: 25/34 nms1640.12.sxw interest of the slum dwellers; whether the developer would fulfill the needs and requirements of the scheme and has the necessary capacity to do so and whether the new developer has the consents of 70% of the slum dwellers. There is absolutely no merit in the submission that while the initial proposal needs to have the consents of 70% of the slum dwellers, a proposal for a change or substitution of a developer need not possess the requisite majority. The acceptance of such a submission would only defeat the object and purpose of the provisions made in DCR 33(10) and Appendix IV and would result in rendering the schemes subject to misuse. Such an interpretation cannot be accepted. We are clearly of the view that the dispute between a society and the developer does not lie purely in the realm of a private contractual dispute. The dispute has an important bearing on the proper implementation of the Slum Rehabilitation Scheme. The dispute has consequences which go beyond the private interests of the society and the developer. The scheme involves other stakeholders in the process including the land owning public bodies and the slum dwellers whose interests are sought to be protected by the scheme."
29. The perusal of the aforesaid para would clearly reveal that the Court in unequivocal terms has held that the developer who undertakes the slum development initially must have a consent of 70% of the slum dwellers and also the subsequent developer is required to have consent of 70% of the slum dwellers. Apart from that, the perusal of the documents placed on record itself would reveal that the plaintiff as well as the defendants had themselves agreed that consent of the 70% occupants would be necessary for the redevelopment scheme. The perusal of the resolution of the general body meeting held on 10th August, 1997 would reveal that the Society in its resolution has stated that it was necessary to carry out necessary amendments in the development agreement so also the Power of Attorney in view of the amendment to the DCR of 1997. In the said resolution the ::: Downloaded on - 09/06/2013 18:56:28 ::: 26/34 nms1640.12.sxw salient features of the said scheme have been reproduced. Clause-3 of the Resolution No.8 passed in the said meeting would reveal that it has been specifically mentioned that 70% residents should consent for the development scheme. Perusal of clauses 1.6 and 1.15 of Appendix 4 to the DCR reveal that 70% or more of the hutment dwellers are required to join rehabilitation scheme and further that an individual agreement is required to be entered into by the owner/developer Co-operative Housing Society/NGO with the eligible hutment dwellers. The perusal of a note of the SRA would reveal that the plaintiff had applied for conversion of approved SRA scheme into new scheme.
ig The authorities have found certain objections in the proposal; one of them was that the individual agreements of the slum dwellers were not furnished. The 2 nd was that out of 770 dwellers, the developer had submitted agreement of 450 slum dwellers and had assured to submit the remaining before the start of the scheme. Vide the communication dated 3 rd September, 1998 the SRA had informed the plaintiff that 70% individual agreements of the slum dwellers should be submitted before further approval. Vide the communication dated 24th December, 1998 the SRA had informed the plaintiff that it was necessary that agreements of minimum 70% slum dwellers should be submitted, however, only 521 agreements were submitted. Vide the communication dated 7th July, 1999 the Architect of the plaintiff addressed a letter to the SRA stating therein that 580 agreements are submitted and that the further agreements to make up 70% would be submitted in due course. It is pertinent to note that vide the communication dated 25 th July, 2001, the SRA informed the plaintiff and its architects that on verification ::: Downloaded on - 09/06/2013 18:56:28 ::: 27/34 nms1640.12.sxw of the agreements it was found that out of agreements submitted, 100 did not tally with annexure certified by the Competent Authority and that 60 number of agreements are in double and 29 number of agreements are found non-protected. As such only 379 agreements were found to be correct. It is to be noted that this verification was done in pursuance to the direction issued by the Division Bench of this Court in its judgment and order dated 13th December, 1999. Again on 18th January, 2000 the SRA had asked the architect of the plaintiff to submit 70% individual agreements of eligible slum dwellers, however, the architects of the plaintiff on 27 th January, 2000 and 5th January, 2001 had asked for waiver of the condition of submission of agreement on the ground of aforesaid judgment of the Bombay High Court. It can thus be clearly seen that the parties understood that under the 1997 scheme the plaintiff was required to submit consent of 70% of the slum dwellers. The contention in that regard by the plaintiffs, therefore, in my view is without substance.
30. Insofar as the contention of the plaintiff that the delay in implementation of the scheme was on account of reasons beyond the control of the plaintiffs is concerned, the plaintiffs submit that delay is on account of removal of reservation, constant changes required to be made in the plans, series of litigation, appointment of one man commission of Shri Chandrashekhar Prabhu, the restraint on construction on account of CRZ and Mithi issues. On the perusal of the IOD issued by the Corporation dated 15th January, 1996 it could be seen that the plaintiff was granted IOD by the Corporation for the 15 buildings. Not only that but the plaintiff has ::: Downloaded on - 09/06/2013 18:56:28 ::: 28/34 nms1640.12.sxw in fact constructed two buildings in pursuance to the said IOD. If it is the contention of the plaintiff that on account of the difficulties mentioned by him he could not complete the construction, then the same analogy would have applied to the two buildings which are already constructed. If the two buildings could be constructed between 1996 to 1998, there was no impediment for the plaintiff to have completed the remaining buildings.
Not only that but as can be seen from the material placed on record, the plaintiff has already utilised the TDR in lieu of construction of the aforesaid two buildings.
31. Insofar as the ground given regarding pendency of various cases in this Court is concerned, it could be seen that there are no interim order in any of these litigations prohibiting the plaintiff from proceeding with the construction, except one unit petition. It is to be noted that the plaintiff along with defendant no.1 approached this Court by way of Writ Petition No. 2269/2001 being aggrieved on account of restraint by the CRZ Authorities. This Court in the said petition vide order dated 7 th August, 2002 had observed that during the pendency of the petition, petitioner shall not raise any construction in the property in question which is affected by CRZ Regulations. Even according to the plaintiff the CRZ issue was cleared in 2005. The order of restraint by this Court prohibiting the construction was only restricted insofar as property which was affected by CRZ Regulations. As such there could have been no impediment in proceeding with the construction after CRZ issue was cleared. In any case after 2005 there was no purpose in keeping the said petition pending and ::: Downloaded on - 09/06/2013 18:56:28 ::: 29/34 nms1640.12.sxw plaintiffs could have very well withdrawn the petition. It can thus clearly be seen seen that there has been a gross delay in completion of the project. I am unable to accept the contention of the plaintiff that the delay is on account of reasons not attributable to the plaintiff.
32. Insofar as the restrain on construction of CRZ is concerned, it could be seen that the issue regarding CRZ was raised for the first time in 2001 and was clarified in 2005 itself. As such it can clearly be seen that there was no impediment insofar as proceeding with the construction prior to 2001 and after 2005. Insofar as the ground regarding subsequent changes in the plan is concerned, the plans were changed by the plaintiffs in order to get additional benefit on account of changes in the schemes made by the Government. However, that cannot be construed to be a ground which would come in the way of proceeding with the construction.
33. In a co-operative Society the General Body is a Supreme Body. The Managing Committee is accountable and responsible to the general body. As already discussed herein above all the earlier agreements that were entered into by the defendant with the plaintiffs were after the approval of the General Body. However, the agreement dated 5 th September, 2006 which makes substantial departure from the terms and conditions agreed earlier was not executed with prior approval of the General Body. In the subsequent meeting dated 24th December, 2006 wherein 101 members were present, though such an important subject was not on Agenda, it has been shown to be discussed under the caption "the subjects discussed with the ::: Downloaded on - 09/06/2013 18:56:28 ::: 30/34 nms1640.12.sxw permission of the Chair". In any case, there is not even a ratification to the said agreement dated 5th September, 2006. It could be seen that though under the earlier agreements it was necessary for the plaintiff to have obtained consent of the individual members, vide the agreement of 2006 that has been done away with. Though under the earlier agreements, the purchasers of the free-sale area were not to get any right till completion of the project, the same has been done away in 2006 and absolute right has been given to the plaintiffs. Not only that but it has been agreed to lease out the land of the defendants to the plaintiffs at annual lease of Rs.
50,000/- or so. On the basis of the said agreement of 2006, the Power of Attorney has been executed on 19th May, 2006 in favour of the plaintiffs through any of the Directors. As could be seen from the earlier resolutions as well as the agreements, the power of attorney was in favour of Shri G.A. Shetty who was required to be a Managing Director of the plaintiff company till completion of the project. However, it is not in dispute that the said Shri G.A. Shetty has nothing to do, any more with the plaintiff.
The Power of Attorney also gives various powers in favour of the plaintiff which cannot be found in the earlier Power of Attorneys. In this background, it appears that the elections of the new Managing Committee were held on 12th October, 2008 wherein a new Managing Committee consisting of the present members came to be elected. The said election has been approved by the Assistant Registrar Co-operative Societies (SRA) vide his order dated 20th November, 2008. The General Body in this background on 22nd February, 2009 where in 313 members were present has resolved to terminate all the agreements between the plaintiffs and the ::: Downloaded on - 09/06/2013 18:56:28 ::: 31/34 nms1640.12.sxw defendants. The said resolution has been ratified in the meeting dated 25 th March, 2009. The General Body has specifically observed that though the plaintiff was not having individual consent or agreement of 70% members, he had fraudulently obtained the sanction. At this stage it is to be noted that Competent Authority in its verification in pursuance to the directions issued by this Court has found that many of the agreements submitted by the plaintiff were of ineligible persons and many agreements have been submitted in double. In the said meeting also 310 members were present. It can thus clearly be seen that the members of the defendant Society have lost the confidence in the plaintiff. In any case, they cannot be blamed for the same. Though initial agreement has been entered with the plaintiff in 1986 i.e. 26 years back with the dream that they would get a new house to stay, they are still required to stay in slums.
34. At this stage it is also relevant to note that Slum Rehabilitation Authority has also terminated the right of the plaintiff for redevelopment of the project concerned by invoking powers under Section 13(2) of the said Act and the said determination has been upheld by the Appellate Authority. However, since that is the subject matter of the writ petition that is pending before this Court, it will not be appropriate to make further comments about the same.
35. The defendant no.1 has already entered into an agreement with defendant no.2 on 14th September, 2009. The same is ratified by the General Body. Under the said agreement the defendant no.2 has agreed to ::: Downloaded on - 09/06/2013 18:56:28 ::: 32/34 nms1640.12.sxw give 269 sq. feet of area free of cost to each of the occupants. Apart from that, the defendant no.2 has agreed to give 72000 sq. feet of carpet area free of cost to the Society which is to be divided amongst the members. As such each member will get approximately an additional area of about 75 sq. feet, free of cost. Apart from that the defendant no.2 had initially agreed to pay Rs. 7500/- per month towards rent for alternative accommodation so as to facilitate redevelopment, which amount has now been increased to Rs.12,000/-. No doubt that the plaintiff has also now stated that he is also willing to give all these benefits to the members of the defendant Society.
However, I find that the offer made by the plaintiffs is too late in the day.
In any case when the defendant Society has lost the confidence in the plaintiffs, the plaintiffs cannot be thrust against wishes of the majority of the members. It is to be noted that the number of members present in the meetings wherein the defendant no.1 has resolved to terminate the agreements with the plaintiffs and the meeting in which the said termination has been ratified is much higher that is 313 and 310 as against the number of members present in the earlier meeting i.e. 163, 123, 250 and 130 respectively.
36. In that view of the matter, I find that the plaintiffs have failed to make out a prima-facie case for grant of injunction as prayed for. In any case I find that the tests of balance of convenience and irreparable injury tilt heavily in favour of the defendant Society rather than the plaintiff. If an injunction as sought for is granted, the members of the defendant Society would be deprived of the redevelopment of the property which has ::: Downloaded on - 09/06/2013 18:56:28 ::: 33/34 nms1640.12.sxw been purchased by them out of their hard earned money and shifting to decent accommodation, for years together and continue to live in slum as they have been living for decades together, even after the redevelopment agreement was executed with the plaintiff in the year 1986. Needless to state that the persons living in slums are required to live in conditions, which are not at times befitting dignity of a human being. If an injunction as prayed for is granted, the members of the defendant Society will be compelled to live in such inhuman condition for decades together. As against this as could be seen from the judgment of the Division Bench of this Court in Writ Petition No. 1301/1999, the plaintiff has constructed two buildings at an estimated cost of Rs. 5 Crores. As could be seen from the particulars of the claim, that even according to the plaintiff, the amount spent by it in connection with and pertaining to suit property and its proposed development is only 2.83 Crores. It is not in dispute that the plaintiffs have already availed a TDR in lieu of construction of two buildings which are already constructed. The rest of the claim of Rs. 324 Crores claimed by the plaintiffs is towards loss of profit, goodwill and business loss and interest. In the event, the plaintiff is in a position to establish that on account of termination by the defendant he has sustained any damages, such damages can always be compensated in the monetary terms and a decree in that regard be passed. Apart from that the SRA vide its order passed under Section 13(2) of the said Act has also directed the damages to be counted and paid to the plaintiff by the redeveloper. However, the plaintiff who has failed to complete redevelopment project and realise the dream of slum dwellers to shift in a decent accommodation, ::: Downloaded on - 09/06/2013 18:56:28 ::: 34/34 nms1640.12.sxw for 26 years, cannot be thrust upon the defendant Society against the wishes of its members.
37. In that view of the matter, I do not find that a case is made out for grant of injunction as prayed for. The prayer for ad-interim relief stands rejected.
38. At this stage Shri Naphade, the learned Counsel appearing on behalf of plaintiff requests for grant of status-quo for a further period of two weeks.
39. Shri Samdani, the learned Counsel appearing on behalf of defendant no.1 states that the arrangement which was made by the learned Judge disposing of arbitration application and which was continued by this Court, would continue to operate till 27th August, 2012.
40. In view of the specific statement made by Shri Samdani, I do not find that any orders are necessary to be passed by this Court.
(B.R.GAVAI, J.) Panjwani.
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