Bombay High Court
Shri Ashok Dattatraya Kulkarni And 9 Ors vs The State Of Maharashtra And 61 Ors on 20 February, 2015
Author: S.C.Dharmadhikari
Bench: S.C.Dharmadhikari
APPL.672.2014.Judgment.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO. 672 OF 2014
IN
NOTICE OF MOTION NO. 1352 OF 2013
IN
SUIT NO. 730 OF 2013
1 Shri Ashok Dattatraya Kulkarni
(Chief Promoter Apna Ghar Co-operative
Housing Society (Prop.)
2 Shri Rajendra Gopal Arankale
3 Shri Milind Bhalchandra Tawade
4 Shri Brijesh Vallabh Italia
5 Keshav Pandurang Tendulkar
6 Mrs. Archana Sunil Desai
7 Shri Aditya Khandu Gupte
8 Mrs. Radhika Sanjay Dongre
9 Shri Sanjeev Anant Kulkarni
10 Shri Umesh Shrikant Agate
Promoter / members of Apna Ghar Co-
operative Housing Society (Prop.)
All of Mumbai, adult, Indian Inhabitants,
having their address at Apna Ghar Co-
operative Housing Society (Prop.), 304B,
Kamalakar Sadan, Samartha Nagar Circle,
Andheri (West), Mumbai - 400 053 ...Appellants
Versus
1 The State of Maharashtra,
Mantralaya, Mumbai
2 Maharashtra Housing & Area
Development Authority, having its office
at Griha Nirman Bhavan, Bandra (East),
Mumbai - 400 051
3 The Collector, Mumbai Suburban District
Collectorate Office, Bandra (E), Mumbai -
400 051
4 Samartha Development Corporation,
A Partnership Firm registered under the
provisions of Indian Partnership Act 1932
and having its address at (i) 11A, Suyash,
Near Amar Hind Mandal, Gokhale Road
(North), Dadar (West), Mumbai - 400 028
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(ii) Parijat, Near Amar Hind Mandal,
Gokhale Road (North), Dadar (West),
Mumbai - 400 028
5 Apna Ghar Coop. Hsg. Soc. Ltd.,
Survey No. 120(P), Village Varsova, A.P.
Marg, Andheri (West), Bombay
(Reg. No. MUM/WKW/HSG/TC/
15145/11-12)
6 Shri Sudhakar Sitaram Jadhav,
Age 41 years, Resi. 103, 1st Floor,
Neelkanth Gokuldas Pasta Road, Dadar
(E), Mumbai - 400 014.
7 Shri Vijay Purushottam Samant,
Age 70 years, Resi. Flat No. 305/306,
Kamalakar Sadan, Shree Swami Samartha
Nagar, Andheri (W), Mumbai - 400 053
8 Shri Madhav Raghunath Kajarekar,
Age 55 years, Resi. 202, Vasudeo
Sahaniwas, 335, Narayan Peth, Near
Ganapati Mandir, Pune - 411 030
9 Shri Bilwakumar Ratnakar Walawalkar,
Age 38 years, Resi.: Flat No. 1005,
Hrishikesh Apartment, F.P. No. 874, Veer
Savarkar Marg, Dadar, Mumbai - 400 028
10 Shri Kewal Prabhakar Kondkar,
Age 60 years, Resi.: Flat No. 204,
Hrushikesh - H, Apna Ghar Unit No.1, Shri
Swami Samartha Nagar, Andheri (W),
Mumbi - 400 053
11 Shri Prabhakar Raghunath Kajarekar,
Age 59 years, Resi.: Flat No.4, Vaibhavgad,
1238, Apte Road, Pune 411 004
12 Shri Prabodh Kashinath Manohar,
Age 50 years, Resi.: C-18, Ultra Coop. Hsg.
Soc. Ltd., Lt. Dilip Gupte Marg, Mahim,
Mumbai - 400 016.
13 Shri Ajit Jagannath Galwankar,
Age 54 years, Resi.: 3rd Floor, Shree
Shailya Apartment, Lane No. 14, 111/118,
Prabhat Road, Pune 411 004
14 Shri Mahesh Ramchandra Natekar,
Age 56 years, Resi.: 204, Kamalakar
Sadan, Shree Swami Samartha Nagar,
Andheri (W), Mumbai - 400 053
15 Shri Hari Narsinh Manerikar,
Age 52 years, Resi.: 113, Chiramangal
Apartments,Shaniwar Peth,Pune-411 030.
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16 Shri Vishwanath Dinanath Banavali,
Age 52 years, Resi.: 303, Indra Lok "A",
Shree Swami Samartha Nagar, Andheri
(W), Mumbai - 400 053
17 Shri Yashwant Vinayak Inamdar,
Age 49 years, Resi.: 604, Pulachiwadi,
Pune - 411 004.
18 Shri Surendra Jaywant Malwankar,
Age 44 years, Resi.: 304, 10-A, Nalanda,
Apna Ghar Unit No.2, Shree Swami
Samartha Nagar, Andheri (W), Mumbai -
400 053
19 Shri Manoj Ravindra Redij,
Age 43 years, Resi.: 103, 1st Floor,
Neelkanth Gokuldas Pasta Road, Dadar
(East), Mumbai - 400 014
20 Smt. Sucheta Ravindra Paradkar,
21
Age 61 years, Resi, Bandhuprem, 376,
Shaniwar Peth, Pune - 411 030
Shri Kamlesh Ashok Joshi,
Age 38 years, Resi.: 103-104, Samartha
Prasad, Shree Swami Samartha Nagar,
Andheri (W), Mumbai - 400 053
22 Smr. Aparna Amol Kondkar,
Age 63 years, Resi." C-25, Suyash, Gokhale
Road (North), Dadar, Mumbai - 400 028
23 Shri Pusharaj Purushottam Mungekar,
Age 29 years, Resi,: Plot No.15, Vargade
Chawl, Kothrud, Pune 411 029
24 Mrs. Rudra Haresh Pandya,
Age 48 years, Resi.: 1302, Samartha
Ashish, Indar Darshan Complex, Oshiwara,
Andheri (West), Mumbai - 400 053
25 Shri Rupesh S. Prabhudesai, Age 39
years, Resi.: 004, Rajmata Coop. Hsg. Soc.
Ltd., Karmaveer Dadasaheb Gaikwad
Road, Andheri (West), Mumbai - 400 053
26 Shri Rajnish Bhikaji Samant,
Age 47 years, Resi,: 203, Kamalakar
Sadan, Shree Swami Samartha Nagar,
Andheri (W), Mumbai - 400 053
27 Dr. Shripad Dinanath Banavali,
Age 51 years, Resi.: 11-A, Jyoti Sadan,
Sitaladevi Temple Road, Mahim, Mumbai -
400 016
28 Adv. Rajendra Sitaram Desai,
Age 56 years, Resi.: 1501, Vainaganga, Sir
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Pochkhanwala Road, Worli, Mumbai - 400
016
29 Shri Vasant Keshav Patwardhan,
Age 68 years, Resi.: D-2/4, Green Field
Society, Paud Road, Shivtirth Nagar, Pune
- 411 038
30 Shri Nandan Sudam Patilhande, Age 50
years, Resi.: 2, Ishkripa, Naigaon Coop.
Hsg. Soc. Ltd., Sadanand Mohan Jadhav
Marg, Naigaon, Dadar (East), Mumbai -
400 014.
31 Shri Tejas Sudam Patilhande, Age 40
years, Resi.: 2, Ishkripa, Naigaon Coop.
Hsg. Soc. Ltd., Sadanand Mohan Jadhav
Marg, Naigaon, Dadar (East), Mumbai -
400 014.
32 Shri Vishnu Bhalchandra Varawadekar,
Age 61 years, Resi.: Flat No. 22, Sheetal
Soc., Pandit Malharrao Kulkarni Marg,
Vazira Naka, Borivali (West), Mumbai -
400 091.
33 Shri Chandrashekhar Bhikaji Samant
Age 57 years, Resi.: 13, Rajratna, Ram
Mandir Road, Borivali (West), Mumbai.
34 Shri Suresh Shantaram Pakale,
Age 57 years, Resi.: 1/1602, Sumer Trinity
Towers, New Prabhadevi Road,
Prabhadevi, Mumbai - 400 025.
35 Dr. Sunil Manohar Nadkarni,
Age 53 years, Resi.: 12, Shanta Soc., 394-
B, Kusalkar Road, Pune - 411 016.
36 Shri Laxmikant Madhav Mahajan,
Age 49 years, Resi.: E-10, Maurya Vihar,
Near Gandhi Bhawan, Kothrud, Pune -
411 038
37 Shri Rajan Bhalchandra Samel,
Age 59 years, Resi.: Flat No. 10, Shivganga
Apartment, S.B. Road, Pune - 411 016.
38 Shri Prashant Vasudeo Sawant,
Age 43 years, Resi.: Meghvarsha, Near
Vindhyawasini Temple At-Post
Dhamnavne, Chiplun, Dist. Ratnagiri - 415
605.
39 Shri Omkar Vijay Samant,
Age 39 years, Resi.: Shri Sahajanand
Saraswati Niwas, Shrikshetra Derwan,
Taluka Chiplun,Dist.: Ratnagiri -415 606.
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40 Shri Prafulla Shrikrishna Godbole,
Age 42 years, Resi.: 203, Ganga Bldg., BKL
Walawalkar Hospital Residential Complex,
At Post Sawarda, Taluka Chiplun, Dist.:
Ratnagiri 415 606.
41 Shri Liladhar Rajarm Sarang,
Age 41 years, Resi.: Samartha Krupa
Complex, A Wing, G-1, Dhwriwada, Near
Topiwala High Schook, Taluka Malwan,
Dist. : Sindhudurg.
42 Adv. Vikas Vasant Warerkar,
Age 51 years, Resi.: 59/D, Nirvan Society,
Bhagoji Keer Marg, Mahim, Mumbai - 400
016.
43 Shri Rajeev Nilkanth Shrikhande,
Age 38 years, Resi.: 42, Kalpak, Artech
Apartments, Madhusudan Kelkar Marg,
44
Bandra (East), Mumbai - 400 051
Shri Sanjeev Diwakar Upalekar,
Age 51 years, Resi.: 302, Gloriosa
Apartments, N.M. Kale Marg, Near Agar
Bazar, Dadar (West), Mumbai - 400 028.
45 Shri Rajeev Diwakar Upalekar,
Age 53 years, Resi.: 1-B, Ameyanand Soc.,
Near Kirti College, Kashinath Dhru Road,
Dadar (West), Mumbai - 400 028.
46 Dr. Sudhir Shriniwas Joshi,
Age 58 years, Resi.: SamarthNarsing
Home, 128, Hindu Colony, Nappu Road,
Dadar, Mumbai - 400 014.
47 Shri Satish Prabhakar Shetye,
Age 51 years, Resi.: 306, Jupiter
Apartments, Apna Ghar Unit No.3, Shree
Swami Samartha Nagar, Andheri (W),
Mumbai - 400 053
48 Shri Sunil Prabhakar Kondkar, Age 58
years, Resi.: 1/215, Kamdhenu Shopping
Centre, Apna Ghar Complex, Samartha
Nagar, Andheri (W), Mumbai - 400 053.
49 Shri Mandar Vasant Phadke,
Age 37 years, Resi.: Chintamani, 17,
Vrundavan Society, Navi Peth, Near Mhatre
Pool, Pune - 411 030.
50 Shri Milind Gajanan Borkar,
Age39 years, Resi.: Shripad Apartment,
City Survey No. 532/15/6, Kalpataru - A
Colony, Varje,Karve Nagar,Pune - 411 052.
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51 Shri Vijay Sidhadharaj Bashte,
Age 56 years, Resi." Gurukrupa
Udyamnagar, Ratnagiri - 415 612.
52 Shri Shirish Dnyandeo Bamne,
Age 54 years, Resi.: House No. 844,
Swaroop Bhandar, Maruti Mandir,
Ratnagiri - 415 612.
53 Shri Harish Shivram Karmarkar,
Age 45 years, Resi.: 18/B, Ranuka Hsg.
Soc., Chintamani Nagar Phase - 1, Bibwe
Wadi, Pune - 411 037.
54 Shri Vijay Purushottam Joshi,
Age 63 years, Resi.: C/704, Agam Darshan
More Baug, Katraj, Pune - 411 046
55 Smt. Charushila Gajanan Mudaliar,
Age 53 years, Resi.: 115/44, Nav Sahyadri
Society, Kanchan Path, Naraje Nagar, Pune
56
- 411 052.
Smt. Hemlata Abhijit Dabholkar,
Age 50 years, Resi.: 50, Mrudgandh
Society, Behind Shivraj Petrol Pump,
Baraokar Nagar, MIDC, Satara.
57 Shri Mihir Sharad Rajguru,
Age 44 years, Resi.: Flat No.9, Kamalsudha
Apartments, 567, Narayan Peth, Pune -
411 030.
58 Shri Hemant Janardan Deorukhkar,
Age 46 years, Resi.: C/4, Ground Floor,
Bhagwansingh Colony, Senapati Bapat
Marg, Mahim, Mumbai - 400 016.
59 Shri Yashwant Pandurang Jadhav,
Age 52 years, Resi.: 003, Satyam
Apartment, Badlapur Karjat Road,
Chinchali, Neral, Taluka Karjat, Dist.:
Raigad.
60 Shri Vinayak Raghunath Kajarekar,
Age 42 years, Resi.: Flat No. 102, Vasudeo
Sahanivas, 335, Narayan Peth, Near Modi
Ganapati Mandir, Pune - 411 030.
61 Shri Jaganath Hrishikesh Pandit,
62 Shri Saidutt Arun Adelkar,
Defendants Nos. 61 and 62 (promoter /
members of Apna Ghar Cooperative Housing
Society (Prop.), Adult, Indian Inhabitants,
having their address at Apna Ghar Cooperative
Housing Society (Prop.) 304 B, Kamalakar
Sadan, Samartha Nagar Circle, Andheri (West),
Mumbai - 400 053 .....Respondents
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Appearances:-
Mr. Pravin Samdani-Senior Advocate with Mr.
Chetan Kapadia, Mr. Ankit Lohia, Mr. Rahul
Totla and Ms. Kausar Banatwala i/b. Mr. Tushar
Goradia for the Appellants.
Mr. U. S. Upadhyay-AGP for Respondent Nos. 1
and 3.
Mr. Shankar P. Thorat for Respondent No. 1.
Mr. P. Chidambaram-Senior Advocate with Mr.
Dinyar Madon-Senior Advocate i/b. Mr. Kunal
Bhanage for Respondent No. 4.
Mr. Iqbal Chagla-Senior Advocate with
Mr.Mustafa Doctor-Senior Advocate i/b. Mr.
Kunal Bhanage for Respondent No. 5.
Mr. Zal Andhyarujina i/b. Mr. Kunal Bhanage for
Respondent No. 6.
Mr. Shailendra Kamdar-Senior Advocate with
Mr. Yashesh Kamdar i/b. Mr. Kunal Bhanage for
Respondent Nos. 7, 8, 10, 11, 13, 14, 16, 27, 28,
34, 46, 47, 48 and 55.
Ms. Madhavi Divan i/b. Mr. Kunal Bhanage for
Respondent Nos. 9, 12, 15 and 17 to 20.
Mr. Vineet Naik-Senior Advocate i/b. Mr. Kunal
Bhanage for Respondent Nos. 21 to 26, 29 to
33, 35 to 45 and 49 to 54.
Mr. Mustafa Doctor-Senior Advocate i/b. Mr.
Kunal Bhanage for Respondent Nos. 56 to 60.
CORAM :- S.C.DHARMADHIKARI &
A.A.SAYED, JJ.
Reserved on :- December 22, 2014
Pronounced on :- February 20, 2015
JUDGMENT :- (Per S.C.Dharmadhikari, J.) This Appeal under clause 15 of the Letters Patent challenges the order of a learned Single Judge of this Court dated 7 th Page 7 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc October, 2014 in Notice of Motion No. 1352 of 2013 in Suit No. 730 of 2013. By this order, the learned Single Judge of this Court has proceeded to dismiss this Notice of Motion with costs.
2) The Appeal is admitted. The contesting Respondents waive service. By consent, the Appeal is heard finally.
3) The original Plaintiffs are in Appeal before us. The Appellants instituted the above Suit in this Court claiming the following reliefs:-
"a. That this Hon'ble Court be pleased to declare that the Plaintiffs and Defendant Nos. 61 and 62 are entitled to allotment and possession of all those pieces of parcels of land or ground bearing (i) Survey No. 120 (part) bearing C.T.S. No. 1374/A/8/1 to 5 admeasuring 39,790.80 sq. mtrs; (ii) Survey No. 120 (part) bearing C.T.S. No. 1374/A/4 admeasuring 41,570.10 sq. meters;
(iii) Survey No. 120 (part) bearing C.T.S. No. 1374/A3 admeasuring 13,500.40 sq. mtrs; in all aggregating to 94,861.30 square meters all of Village Versova, Taluka Andheri, District Mumbai Suburban (the said property).
b. That this Hon'ble Court be pleased to declare that Defendant No. 5 i.e. Apna Ghar Co-operative Housing Society Limited, or Defendant Nos. 6 to 60 are not entitled to be allotted or handed over possession of the said property.
c. That this Hon'ble Court be pleased to set aside or cancel the Resolutions dated 24th December, 2011 passed by Defendant No. 5 and Defendant Nos. 6 to 60 and declare that the same are not binding upon the Plaintiffs.
d. That this Hon'ble Court be pleased to set aside or cancel the Agreement dated 9th April, 2013 executed by Defendant No. 5. e. That this Hon'ble Court be pleased to set aside or cancel the Development Agreement dated 11th November, 2004, being Exhibit 'D' to the Plaint, entered into between the Plaintiff No. 1 in his capacity as the Chief Promoter of Apna Ghar Cooperative Housing Society (Proposed) and Defendant No. 4 and declare that Page 8 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc the same is not binding upon the Plaintiffs and Defendant Nos. 61 and 62.
e(i). That this Hon'ble Court be pleased to declare that the alleged Development Agreement (Exhibit E) hereto is forged, fabricated, null and void and not binding on Plaintiffs and Defendant Nos. 61 and 62."
4) These reliefs were claimed by alleging that all the Appellants are residents of Mumbai. It would be convenient to refer to the Appellants as original Plaintiffs and the Respondents as original Defendants. The Appellant/original Plaintiff No. 1 is the Chief Promoter of Apna Ghar Co-operative Housing Society Limited (proposed). The Appellants/original Plaintiff Nos. 2 to 10 and Respondent/Defendant Nos. 61 and 62 are the present Promoters/Members of Apna Ghar Co-operative Housing Society Limited (proposed).
5) It was further stated that the original Defendant No. 1 is State of Maharashtra. Respondent/Defendant No. 2 is Maharashtra Housing and Area Development Authority ('MHADA' for short) and which is an authority constituted under the Maharashtra Housing and Area Development Act, 1976. The original Defendant No. 3 is the Collector of Mumbai Suburban District. The original Defendant No. 4 is a partnership firm registered under the provisions of the Indian Partnership Act, 1932. The original Defendant No. 5 is a Society allegedly formed and registered under the Maharashtra Co-operative Page 9 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc Societies Act, 1960, but by mis-representation and fraud. The original Defendant No. 6 claims to be the Chief Promoter/Chairman of this Society (original Defendant No. 5) and original Defendant Nos. 6 to 60 are its purported members.
6) The brief facts leading to filing of the above Suit are as follows:
a. Byramjee Jeejeebhoy Pvt. Ltd. and/or its predecessors (hereinafter called 'predecessors') were vested with the entire survey No. 41 in Village Oshiwara by virtue of a Kaul or Grant dated 12th October, 1820. The said grant and/or archival record from Pune mentions the aggregate area of Survey No. 41 at the date of vesting in the said predecessors to be 1270 acres and 20 gunthas out of which 184 acres and 12 gunthas of land is separately shown as 'Khajan' and the remaining 1086 acres and 8 gunthas has also been shown separately.
b. The said predecessors as vendors and one Govindbhai Appaji Bhatte and others as partners of new Swastik Land Development Corporation as purchasers (subsequently named as "Oshivara Land Development Corporation Private Limited" and hereinafter referred to as "the said Oshiwara Development") entered into an agreement for the sale of the entire Survey No. 41 Page 10 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc of Village Oshiwara, as recorded by an agreement for sale dated 25th January, 1964, modified by writings dated 6 th August, 1964, 23rd December, 1964, 9th March, 1966, 18th August, 1966 and 11th September, 1967.
c. Thereafter, the said Oshiwara Land Development entered into an agreement for sale dated 18 th February, 1981 with one Mr.Vasant Mahadev Tikekar and Plaintiff No. 1 (the Chief Promoters of the said Apna Ghar).
d. Due to pending disputes and differences, the said Oshiwara Development along with the Plaintiff No. 1 (Plaintiff No. 4 therein) and others had filed Suit bearing No. 3429 of 1991 (the said Suit) in the Hon'ble High Court at Bombay against Defendant No. 1 i.e. the Government of Maharashtra and Defendant No. 2 i.e. MHADA therein. The said proceedings pertained to disputes in connection with the ownership and entitlement of a larger piece of property that included the property (now numbered as) i.e. all those pieces or parcels of land or ground bearing (i) Survey No. 120 (part) bearing C.T.S. No. 1374/A/8/1 to 5 admeasuring 39,790.80 sq. mtrs; (ii) Survey No. 120 (part) bearing C.T.S. No. 1374/A/4 admeasuring 41,570.10 sq. meters (iii) Survey No. 120 (part) bearing C.T.S. No. 1374/A3 admeasuring 13,500.40 sq. Page 11 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc mtrs; in all aggregating to 94,861.30 square meters all of Village Versova, Taluka Andheri, District Mumbai Suburban (the said property).
e. The said predecessor purportedly claiming certain rights in respect of the said property filed Suit No. 1096 of 2009. The Suit is filed on the basis of writing dated 5.11.1990 said to be executed between the said predecessor and the said Oshiwara Development.
Another purported writing dated 21.10.1999 is also referred in the said Suit along with Mr. Vasant Tikekar, an erstwhile Chief Promoter as Defendant No. 3, the Chief Promoters of proposed Plaintiff Society.
f. On 11th November, 2004, a purported agreement titled as Development Agreement is alleged to have been entered into by Plaintiff No. 1 in the instant Suit, namely, Suit No. 730 of 2013 with Defendant No. 4 thereto. The said agreement was executed on the basis of false assurances, misrepresentations and undue influence. The said agreement was without consideration. The same was not valid in law and was void ab-initio. The said agreement was on a stamp paper of Rs.100/- purchased in the name of Vikas Kamlakar Walawalkar. The stamp paper is dated 3 rd January, 2004, the said agreement runs into 11 pages. On page 3, Page 12 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc the main body of the agreement begins, the said page 3 bears the initial of three persons. Page 4 of the agreement also bears the initials of three persons. The said agreement could have never have been acted upon.
g. An FIR has been registered against the partners of Defendant No. 4 and the alleged Chief Promoters/members of Defendant No. 5 in connection with forgery, cheating and fraud, as they have interpolated and fabricated 2 pages of the said agreement. Even otherwise the said agreement being inadequately stamped cannot be looked into and should have not been acted upon.
h. Consent Terms dated 19th December, 2006 were filed in the said Suit No. 3429 of 1991. The High Court by an order dated 29th June, 2007, declined to pass decree in terms of the Consent Terms on record. Appeal bearing No. 674 of 2007 was filed against the said order dated 29 th June, 2007. The Division Bench of this Court, vide its order dated 17 th January, 2008 quashed and set aside the order dated 29th June, 2007 and the matter was remanded back to the Trial Court for de-novo consideration.
Page 13 of 109J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc i. The said order dated 17th January, 2008 passed by the Division Bench of this Court was challenged/impugned before the Hon'ble Supreme Court, in which, the Hon'ble Supreme Court, in Civil Appeal No. 6245 of 2008 (arising out of SLP (C) No. 9785 of 2008) by its order dated 23rd October, 2008, ordered that Suit No.3429 of 1991 is disposed of by way of Consent Terms dated 19th December, 2006 and Decree be passed and drawn up in the said Suit.
j.
The said Suit No. 3429 of 1991 thus was decreed as per the Consent Terms dated 19th December, 2006 filed therein. The said Consent Terms/Decree inter alia provided that the said property shall be allotted to Mr. Ashok Kulkarni, the Plaintiff No. 1 herein in his capacity as the Chief Promoter of Apna Ghar Co-operative Housing Society Limited (proposed), the proposed Plaintiff's Society.
k. After the passing of the order dated 17 th January, 2008, the Plaintiffs were confronted with various conflicting claims by the said predecessor and the said Oshiwara Development and untenable demands by Defendant No. 4 i.e. Samarth Development Corporation as the Plaintiff No. 1 was also impleaded in Suit No.1096 of 2009 in respect of the said property. An interim order dated 25th August, 2009 was passed therein inter alia requiring Page 14 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc information to be furnished to the said predecessors as directed therein on allotment of land in terms of Consent Terms in Suit No. 3429 of 1991.
l. On 17th April, 2012, the Plaintiffs applied to the Deputy Registrar of Co-operative Societies for registration of the name of the proposed society with copy of the resolution passed by the said Apna Ghar Co-operative Housing Society Limited (proposed).
m.
The Deputy Registrar Co-operative Societies, K-West Ward by its letter dated 15th May, 2012 rejected the application of the Plaintiffs on the grounds that another Society with the very same name, Defendant No. 5 i.e. Apna Ghar Co-operative Housing Society Limited had been formed and registered on 28 th February, 2012 with respect to the said property. The same was on the application of the alleged Chief Promoters/members claiming to be the Chief Promoter and its members.
n. On making enquiries and obtaining papers under the RTI, which documents were received on 9 th April, 2012, the Plaintiffs learnt that:-
(i) An alleged Special General Body Meeting was held on 24th December, 2011 of Apna Ghar Co-operative Housing Society (proposed).Page 15 of 109
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(ii) No notice or intimation thereof had been given to the Plaintiff No. 1 in his capacity as a Chief Promoter and/or member.
(iii) Defendant No. 6 Shri. Sudhakar Sitaram Jadhav was elected/became the Chief Promoter of Apna Ghar Co-
operative Housing Society (proposed) i.e. Defendant No. 5 as proposed in the said meeting.
(iv) It was inter alia recorded therein that the Plaintiff No. 1 was not interested in acting as the Chief Promoter. The status of the Plaintiff No. 1 as a member bears no reference at all.
(v) Vikas Walavalkar the partner of Defendant No. 4 was also present in the said meeting. On the basis of the purported Development Agreement, members were inducted by the said Vikas Walavalkar as members of Defendant No. 5.
(vi) The copy of the Development Agreement enclosed to the application for registration of Defendant No. 5 was interpolated and forged.
(vii) No document was annexed to indicate the manner in which Shri. Sudhakar Sitaram Jadhav became the Chief Promoter.
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(viii) No document was annexed as to whether Plaintiffs were given notice of the alleged meeting or not.
(ix) The application to register was made on 18th February, 2012 and Defendant No. 5 was registered within 10 days on 28th February, 2012.
(x) It is obvious that the Special General Body Meeting and the minutes thereof are sham and bogus.
(xi) The alleged Chief Promoters/members had mis-
represented the Deputy Registrar, Co-operative Societies, K-
West Ward that the Plaintiff No. 1 was now not the Chief Promoter and further that other members were inducted by following proper procedure.
(xii) The application for registration of the Defendant No.5 by Shri. Sudhakar Sitaram Jadhav in the capacity as the purported Chief Promoter is unlawful, invalid, mischievous and fraudulent.
o. Being aggrieved by the order of grant of registration of Defendant No. 5 by the Deputy Registrar, Co-operative Societies, K-West Ward, the Plaintiff No. 1 filed Application No. 22 of 2012 before the Divisional Joint Registrar, Co-operative Societies under section 21A of the said Act for de-registration of Defendant No. 5 Page 17 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc and challenged the grant of impugned Registration Certificate dated 28th February, 2012 issued by the Deputy Registrar, Co-
operative Societies, K-West Ward.
p. The alleged Chief Promoters/members of Defendant No. 5 filed two separate replies in the above matter.
q. The Plaintiff No. 1 filed his affidavit in rejoinder dated 6 th October, 2012 dealing with the contents of the said replies.
Written arguments were also filed.
r. The Divisional Joint Registrar, Co-operative Societies, by his order and Judgment dated 22nd February, 2013 rejected the application filed by the Plaintiff No. 1.
s. Being aggrieved and dissatisfied with the said order dated 22nd February, 2013 passed by the Divisional Joint Registrar, Co-
operative Societies, the Plaintiff No. 1 filed Appeal under section 152 of the said Act before Defendant No. 1.
t. It is thereafter learnt and revealed that the Competent Authority has issued letter dated 2nd February, 2013 in favour of Defendant No. 5 purportedly allotting the said property to Defendant No. 5. The Plaintiff No. 1 has addressed letter dated Page 18 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc 13th May, 2013 to the Attorneys of the said predecessors intimating inter alia about the same.
u. The Plaintiff No. 1 has filed criminal complaint against Defendant No. 4 and its partners and all the members of Defendant No. 5, before 65 th Court at Andheri in connection with the forgery and tampering with the purported Development Agreement. The Magistrate Court has, on 20th March, 2013 passed an order directing the police authorities to investigate and submit its report under Section 156(3) of the Criminal Procedure Code.
FIR in connection therewith has been registered.
v. Defendant No. 1 by its Judgment and order dated 8 th May, 2013 dismissed the said Appeal.
w. The Plaintiffs have, by their letter dated 4 th June, 2013, terminated the said agreement out of abundant precaution as not valid in law and not binding upon the Plaintiffs.
x. The Plaintiffs have filed Civil Writ Petition No. 4882 of 2013 impugning the said orders dated 22 nd February, 2013 and 8th May, 2013. On 6th June, 2013, the Vacation Judge of this Court has passed an order to maintain status quo in connection with the said property.
Page 19 of 109J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc y. At the hearing of the said Writ Petition for ad-interim reliefs, on 6th June, 2013, a reference was made by Advocate for the Defendant No. 5 to an agreement dated 9 th April, 2013 between Defendant No. 3 and Defendant No. 5. The Defendant No. 5 had deliberately suppressed and had not disclosed the said agreement at the time of hearing of the Appeal.
7) Thus, it is alleged that original Defendant No. 4 in collusion and connivance with Defendant Nos. 5 to 60, purportedly, without any authority, have enrolled members and got registered Defendant No. 5.
These acts on their part are vitiated by impersonation. They are termed as mischievous, malafide and fraudulent. The claim is that the registration of the Defendant No. 5 is purportedly done on the basis of a resolution dated 24th December, 2011 but none of the Promoters/Members were present in the said meeting. None of the members, namely, the Plaintiffs, have been given notice of the said meeting. The original Plaintiff No. 1 has never made a statement to Defendant No. 4 that he is not willing to act as a Chief Promoter or Chairman of the proposed Society. There is no basis for the Defendant Nos. 5 to 60 to rely upon any such representation by Defendant No. 4.
Defendant No.5 and/or Defendant No. 6 had no authority to call for a Special General Body Meeting. Defendant No. 4, along with Defendant Page 20 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc Nos. 6 to 60 has fraudulently and behind the back of the Plaintiffs held the Special General Body Meeting of this proposed Society, wherein, Plaintiff No. 1 has been purportedly removed as the Chief Promoter thereof on the false pretext that he was not interested in acting as the Chief Promoter of the proposed Society. No notice of the alleged meeting dated 24th December, 2011 was given to the Plaintiffs. The Chief Promoter, thus, did not lose his status as a member of the Society.
Defendant No. 4 and Defendant Nos. 6 to 60 perpetrated fraud and misrepresented the Competent Authorities in getting the Defendant No.5 Society registered.
8) It is claimed in paras 5 and 6 of the Plaint that since inception, all throughout and till the date of the institution of the Suit, Plaintiff No. 1 has acted as the Chief Promoter of the proposed Society.
The proposed Society of the Plaintiff No. 1 has 11 other members, namely, Plaintiff Nos. 2 to 10 and Defendant Nos. 61 and 62. They were regularly holding meetings and Resolutions have also been passed.
In such circumstances, none of the acts of the Defendant Nos. 6 can be said to be valid and they are vitiated as above.
9) The Development Agreement dated 11 th November, 2004 cannot be looked at, as the same is without consideration. The agreement has been made on a stamp paper of Rs.100/- purchased in Page 21 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc the name of Vikas Kamlakar Walawalkar. The stamp paper is dated 3 rd January, 2004. The agreement runs into 11 pages. On page 3, the main body of the agreement begins and the said page 3 bears the initials of 3 persons. Page 4 of the agreement also bears the initials of 3 persons.
The agreement inter alia proposes to grant Defendant No. 4 development rights of the said property on the terms and conditions as mentioned therein. This agreement was executed on the basis of false assurances, mis-representation and undue influence. The same is void and/or voidable and the Plaintiffs avoid the same. The same is also terminated by letter dated 4 th June, 2013. It has been stated that the Consent Terms/Decree dated 19th December, 2006 filed in Suit No. 3429 of 1991 inter alia provided that the said property shall be allotted to Ashok Dattatraya Kulkarni in his capacity as the Chief Promoter of Apna Ghar Co-operative Housing Society Limited (proposed) i.e. to the Plaintiffs' proposed Society. The Development Agreement dated 11 th November, 2004 was a contingent contract. The contingency is that on the property being allotted to the Plaintiffs, the agreement would come into effect and force. The said agreement recites that the Plaintiffs were seeking to acquire the said property for and on behalf of the Plaintiffs or a Co-operative Housing Society to be registered by the Plaintiffs. The entire agreement is silent about the nature of consideration to be paid by Defendant No. 4. Thus, it is without any consideration and not valid Page 22 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc in law. It is inadequately stamped. There are interpolations therein, which have been made fraudulently and deliberately. Page Nos. 3 and 4 of the agreement have been changed. The alleged Development Agreement produced by Defendant No. 5 in collusion and connivance with Defendant Nos. 6 to 60, before the Deputy Registrar has different page Nos. 3 and 4 and even the clauses/terms as mentioned in the agreement have been changed fraudulently. Defendant No. 4 has, with malafide intention, committed forgery and tampered with the said agreement without knowledge, consent or concurrence of the Plaintiffs.
These and other allegations, as are found in the original and amended Plaint, have led to the institution of the Suit and claiming the aforereproduced reliefs. The original Plaint was filed sometime in 2013. There are amendments made to the Plaint, based on which, prayer clause [e(i)] is inserted and prior thereto, there are certain averments and allegations, essentially to demonstrate as to how the documents executed by the contesting Defendants are vitiated in the manner alleged above.
10) It is in such Suit that the application for interim relief was filed and the events disclosed that on 21st January, 2014, an application for ad-interim reliefs in terms of the prayers of the Notice of Motion was made, but those were refused. In Appeal(L) No. 56 of 2014, this Court Page 23 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc passed an order directing the parties to maintain status quo. The Plaint was amended by order dated 3rd April, 2014.
11) The prayers in the Notice of Motion are essentially of an injunction to restrain the original Defendant Nos. 4 and 5, their servants, agents or nominees and/or persons or entities claiming through or under them and/or their nominees and/or any persons or entities claiming through or under them from creating any third party rights, title and/or interest of whatsoever nature in connection with the said property. That pending the hearing and final disposal of the above Suit, the effect, implementation of the resolution dated 24 th December, 2011 be stayed and/or suspended. There are prayer clauses (c) and (d) to this Notice of Motion, which read as under:-
"(c) That pending hearing and final disposal of the above suit all further proceedings, acts, deeds and/or things done or to be done by Defendant Nos. 4 to 60 or their servants, agents, representatives with a view to take over possession of the said property from Defendant Nos. 1 to 3 to be stayed, suspended and/or kept in abeyance.
(d) That pending the hearing and final disposal of the above suit, Defendant Nos. 4 to 60 or their servants, agents, representatives or persons claiming through or under them be directed to maintain status quo in respect of the said property."
12) This Motion was supported by an affidavit of the Appellant No. 1/original Plaintiff No. 1. There are affidavits filed to oppose grant of any ad-interim relief as also final reliefs. The affidavit of the original Defendant No. 5 dated 9th July, 2013 is stated to be filed for a limited Page 24 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc purpose of opposing ad-interim reliefs. However, we find from a perusal thereof that it is fairly extensive. The objections to the maintainability of the Suit and on various grounds are set out from para 2 and it is urged that the basis of the present Suit is identical to Writ Petition No. 4882 of 2013. Thus, this is a case where both proceedings are identical. In the light of the Suit being a copy of the Writ Petition and containing the same allegations, it was urged that the Suit is not maintainable. Then, it was urged that the Plaintiff No. 1 has, only in the year 2012, enrolled Plaintiff Nos. 2 to 10 and Defendant Nos. 61 and 62 as members of the so called Apna Ghar Co-operative Housing Society Limited (proposed). The Plaintiff Nos. 2 to 10 and Defendant Nos. 61 and 62 are complete strangers. The Suit is thus filed by Plaintiff No. 1 alone. The Plaintiff Nos. 2 to 10 and Defendant Nos. 61 and 62 are put up by the Plaintiff No. 1 to make a semblance of an Association to raise false and frivolous disputes against Defendant No. 5 Society and its members being Defendant Nos. 6 to 60.
13) The Affidavit in reply adopts the stand adopted in a reply affidavit dated 15th June, 2013 filed in Writ Petition No. 4882 of 2013.
Then, without prejudice and alternatively it was submitted that the entire Suit is an abuse to process of the Court. The Plaintiffs seek to re-
agitate issues which are already settled by orders dated 22 nd and 8th May, 2013 (Annexures 'P' and 'T' to the Plaint).
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14) Further, the reliefs are barred by delay and laches. As far back as on 28th February, 2012, vide certificate of registration (Annexure 'K' to the Plaint) Defendant No. 5 Society has been registered and the intent and object thereof being to have allotment of the land, Plaintiff No. 1 is fully aware of this registration and that the 5 th Defendant is interested in obtaining allotment of the land in its favour. The Plaintiffs have acquiesced in the registration of the Defendant No. 5 Society and the allotment of the said land in favour of the Defendant No. 5 Society.
They have allowed the Defendant Nos. 6 to 60 to pay Rs.58,25,30,376/-
and incur several costs and liabilities. The Plaintiffs have allowed the Defendant Nos. 6 to 60 and/or Defendant No. 5 and/or Defendant No.4 to alter their position to their detriment and now, after more than 1 and half year, are belatedly seeking orders against the contesting Defendants. The developments leading to the filing of an application challenging the registration are then set out in para 7(a) to (d) of this affidavit. Then, in para 8, it is submitted that there is no question of this Court passing any order in terms of prayer clause (c) of the Plaint to set aside or cancel the Special General Body Resolution dated 24 th December, 2011, a copy whereof is annexed to Application No. 22 of 2012. That Resolution was passed by the members of the proposed Society inter alia for electing the new Chief Promoter in place of the Plaintiff No. 1, for adopting the Development Agreement dated 24 th Page 26 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc November, 2004 and for registration of the Defendant No. 5 Society.
After registration of the Society, as evidenced by Registration Certificate dated 28th February, 2012, the effect and object of the said Resolution has been worked out. In such circumstances, prayer clause (c) of the Plaint is rendered infructuous. No interim relief can be granted.
15) Para 9 of this affidavit sets out as to how the reliefs in terms of other prayers of the Plaint also cannot be granted. Apart from the Plaintiffs having no right to claim such reliefs, which amounts to interfering with the affairs of the Defendant No. 5, it was pointed out that the aforementioned huge sum has been paid for acquiring the land and Defendant No. 5 is absolute and lawful owner of the land. Reliance was placed upon an agreement dated 9th April, 2013 (Annexure 'X' to the Plaint), which is duly registered with the Sub-Registrar of Assurances. There were several efforts and which have been undertaken by a core group of members, forming the Association, of which, the Plaintiff No. 1 and Shri. V. M. Tikekar were the Promoters.
Defendant No. 4, who is current Managing Partner and Late Mr.Kamlakar Walawalkar have contributed immensely for the purpose of ensuring that the lands are allotted to Defendant No. 5 Society and in consideration thereof, the Development Agreement has been executed.
Since 1979 till 2013, the entire contribution for acquisition of the said Page 27 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc land and incidental expenditure, including cost of litigation for legal proceedings etc., have been incurred by Defendant No. 4. Plaintiff No.1 has not contributed a farthing for the said land or any efforts in the litigation and settlement thereof, resulting in the agreement dated 9 th April, 2013. Thus, dishonest and malafide claim has been made by Plaintiff No. 1 in respect of the said land. Some of the Plaintiffs and Defendant Nos. 61 and 62 are complete strangers and have nothing whatsoever to do with the land or the Society. For all these reasons, it was submitted that no ad-interim relief be granted and the Notice of Motion be dismissed. It was submitted that the allegations in the Plaint are vague and unsustainable. Similar affidavit has been filed by original Defendant No. 28. In this affidavit, nothing has been stated, save and except reiterating the stand of several Defendants in Writ Petition No. 4882 of 2013.
16) Then, there is an affidavit of Defendant No. 4, which is at page 266 (Volume I) of the paper book. The Defendant No. 4 has dealt with the allegations regarding the Development Agreement dated 11 th November, 2004. It has been pointed out that the same is executed jointly by Shri. Vasant Mahadev Tikekar and original Plaintiff No. 1, in their capacity as Chief Promoters of the proposed Apna Ghar Co-
operative Housing Society. The development rights in respect of the Page 28 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc property, which are referred therein have been granted by them on behalf of Defendant No. 5, which subsequently having been registered as a Co-operative Housing Society has ratified and confirmed the Development Agreement dated 11 th November, 2004. It is stated that the Development Agreement is fully stamped and after 9 years of its execution, all the allegations pertaining to its falsity, it being vitiated by mis-representation or undue influence or there being no consideration, are totally unsustainable and untenable. There is no interpolation or fabrication. There is no forgery, cheating or fraud in the execution or implementation of the Development Agreement. The Development Agreement is thus supported and all allegations of the Plaintiffs, as set out in the Plaint and in a FIR (Annexure 'F') to the Plaint, are denied. It was also pointed out that the purported cancellation of the Development Agreement is illegal because the same has been acted upon and in relation thereto, the Resolution of the Special General Body Meeting dated 24th December, 2011 has been relied upon. In para 9 of this affidavit at pages 274 to 277 of this paper book, this is what is stated:-
"9. Without prejudice to the foregoing and in the alternative I say that the Plaintiffs have made false statements on oath and have suppressed from this Hon'ble Court material particulars amongst them the following:-
(a) I say it is a matter of record that the Apna Ghar Co-
operative Housing Society (Proposed) was an Association and formed in 1980 constituted of viz. Defendant Nos. 7, 8, 10, 11, Page 29 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc 13, 14, 16, 27, 28, 34, 46, 47, 48 and 55 along with Plaintiff No. 1 along with one Vasant Mahadev Tikekar.
(b) The said 16 persons had appointed the Plaintiff No. 1 V. M. Tikekar to act as Promoters of Apna Ghar Co-operative Housing Society (Proposed).
(c) I say that the Plaintiff No. 1 is only a representative of the said Association and has no beneficial right or interest in the lands which are subject matter of the suit.
(d) I say that the said Association Apna Ghar Co-operative Housing Society (Proposed) was formed in 1980 under guidance of my late father Mr. Kamlakar Laxman Walawalkar, who then the Managing Partner of the Defendant No. 4 and thereafter I have continued as Managing Partner of Defendant No. 4.
(e) I say that my late father, Mr. K. L. Walawalkar had established the partnership firm, Defendant No. 4, in 1978 or thereabouts. I say the registered office of the partnership firm, Defendant No. 4, since 1978 or thereabouts till date (2013) had been and continues to be at 11-A, Suyash, Near Amar Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028. I crave leave to refer to and rely upon the extract issued by Registrar of Firms to show that since inception and even now the registered address of Defendant No. 4 has been and continues to be 11-A, Suyash, Near Amar Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028.
(f) I say that in the plaint, the Plaintiffs refers to but has not annexed Supplemental Agreement dated 18 February 1981 entered between Oshiwara Land Development Company Private Limited on one hand and Vasant Mahadeo Tikekar and the Plaintiff No. 1 in their capacity as Chief Promoters of Apna Ghar Co-operative Housing Society (Proposed) whereby the lands admeasuring 86 acres was agreed to be acquired, which is the basis for allotment of the said lands, by virtue of Consent Terms (Exhibit 'G' to the plaint) in Suit No. 3429 of 1991.
(g) The Plaintiff No. 1 admits having filed Criminal Complaint No. 101/SW/13 of 2013 before the 65 th Metropolitan Magistrates Court at Andheri and as Exhibit 'A' thereto, he has annexed Supplemental Agreement dated 18 February 1981. I say that the said agreement emanating from the Plaintiff No. 1 himself shows the address of Apna Ghar Co-operative Housing Society (Proposed) as 11-A, Suyash, Near Amar Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028. Thus, on the Plaintiffs' admission full support has been extended by the Defendant No. 4 to Apna Ghar Co-operative Housing Society (Proposed).
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(h) I say that it is not in dispute even by the Plaintiffs that the Development Agreement (Exhibit 'D' to the plaint) or the Development Agreement (Exhibit 'E' to the plaint) refer to the address of Apna Ghar Co-operative Housing Society (Proposed) as 11-A, Suyash, Near Amar Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028 and even the registered address of the Defendant No. 4 in 2004 has been 11-A, Suyash, Near Amar Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028 on this document.
(i) I say that the entire consideration for acquiring the said lands including litigation costs as far back as 1979-1980 has been borne and paid by the Defendant No. 4 alone. The Plaintiff No. 1 who claims to be the promoter has not contributed a farthing."
17) Thus, in this affidavit of 10 th July, 2013, it is asserted that the Suit is a gross abuse of process of law, malafide and does not disclose any cause of action. It is liable to be dismissed. There is an additional affidavit in reply of original Defendant No. 4 and copy of which is at pages 279 to 303 of the paper book. In that affidavit, the partner of Defendant No. 4 has placed on record the explanation with regard to execution of the Development Agreement. He points out that the draft of the Development Agreement has been prepared by M/s.
Mahimtura and Company, the Advocates representing the Plaintiffs in Suit No. 3429 of 1991 for quite some time before November, 2004. The soft copy of the draft Development Agreement was available in the office of Defendant No. 4 and it was printed at the office of Defendant No. 4. The Defendant No. 4 has been requesting the members of the proposed Society to cause Plaintiff No. 1 and V. M. Tikekar, the Chief Promoters to come forward and sign the agreement, which was Page 31 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc engrossed and printed at the office of Defendant No. 4. On 11 th November, 2004, the Development Agreement, in the form annexed as Annexure 'D' to the Plaint, was signed by Plaintiff No. 1 and V. M. Tikekar as Promoters of Apna Ghar Co-operative Housing Society (proposed) and by Defendant No. 4. After signing the Development Agreement, some of the members and Plaintiff No. 1 started making demands on Defendant No. 4 for provision of free flats in the buildings to be constructed on the said land. Defendant No. 4 did not intend to have any dispute on this ground and therefore, he agreed to the demand of the members of the proposed Society, including the Plaintiff No. 1 for provision of flats admeasuring 7,700 square feet built up in the buildings to be constructed on the land, free of cost. That is how clause (1) of the Development Agreement was modified and by an insertion. The Development Agreement, a soft copy of which was available at the office of Defendant No. 4, was thus reprinted with this insertion i.e. by replacement of pages 3 and 4 of the previously executed Development Agreement. After the pages 3 and 4 were replaced in the already executed Development Agreement, Plaintiff No. 1 and Defendant No. 4 initialed the said pages. Mr. Tikekar agreed to this arrangement, but his initials on the said pages remained to be obtained. The insertion of pages 3 and 4 was made at the insistence of the members of the proposed Society, which included Plaintiff No. 1 and Page 32 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc Mr. Tikekar. The same enures for their benefit. Thus, it was denied that that the Development Agreement was executed on some false assurances or misrepresentation or undue influence, as alleged in the Plaint. The Development Agreement was subsequently got adjudicated from the office of the Collector of Stamps and appropriate duty of Rs.51,95,365/- and penalty of Rs.86,24,310/- has been paid. Thus, there is a certificate which has been issued by the authorities under the Stamp Act. The allegation that the Development Agreement was executed on a stamp paper dated 3rd January, 2005 is of no consequence. Further, the allegation that there was any interpolation or fabrication in two pages of the Development, Agreement has been denied.
18) There is an affidavit in rejoinder of the Plaintiff No. 1 dealing with the affidavits in reply. He reiterates the allegations in the Plaint. He alleges that the first affidavit in reply filed by the Defendant No. 5, through its Chairman, is silent as to whether notice of the purported meeting dated 24th December, 2011 was given to the Plaintiffs or not. On the other hand, these Defendants have admitted that the Plaintiff No. 1 was the Chief Promoter of the proposed Society.
Not only in such capacity he was impleaded in Suit No. 3429 of 1991 but has been duly represented in Notice of Motion No. 1644 of 2009 in Page 33 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:39 ::: APPL.672.2014.Judgment.doc Suit No. 1096 of 2009 and after being heard, directed to comply with the order dated 25th August, 2009. Thus, now an attempt is made to create confusion and raise issues which are not germane to the lis. The Defendants have not dealt with the contents of the Plaint. The unanswered assertions of the Plaintiffs are deemed to be admitted.
Then, he points out as to how the Suit is not challenging any orders passed under the Maharashtra Co-operative Societies Act, 1960.
Plaintiff No. 1 has filed a Writ Petition No. 4882 of 2013 impugning these orders. Therefore, none of the preliminary grounds have any substance. The allegation that some of the parties to Suit are strangers has been denied. Plaintiff No. 1 has, in this affidavit in rejoinder, reiterated what is set out by him in the Plaint. He has also raised the issue of the inspection of the documents not being provided or granted.
Then, it is pointed out that there is no inspection given of any record of the alleged 16 members of the Defendant No. 5 Society being Promoters. The Plaintiff No. 1 has set out the names of the original Promoters and in 1980. Thereafter, either on account of inability, death, retirement, resignation, members were added and as on date, the members as mentioned in the Writ Petition and in the Plaint constitute and comprise the proposed Society.
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19) There is a challenge raised to the Development Agreement dated 11th November, 2004 on the basis of the same allegations as are set out in the Plaint. There is a denial that the amount of Rs.58 crores and odd or any other amount has been paid. The writing dated 9 th April, 2013 was earlier suppressed and not mentioned or produced before the Minister. The execution thereof cannot create any right in favour of the Defendants. It is executed deliberately with a view to gain sympathy and create equities in favour of the Defendants. It is denied that the flats have been properly allotted to the Defendants. Thus, all the allegations as set out in the affidavit in reply have been denied including that there is any acquiescence on the part of Plaintiff No. 1.
The allegations of delay and laches have also been denied in this affidavit, copy of which is to be found in Volume II of the paper book at pages 304 to 315. Pertinently, it was set out that the Defendants, as mentioned in para 7(a) of the reply affidavit, were not the original members. It was denied that the proposed Society was formed under the guidance of the father of the Deponent. However, the father of the Deponent and Plaintiff No. 1 were well known and had cordial relations with each other. It was stated that the proposed Society has derived rights in the property on the basis of the agreement dated 18 th February, 1981 read with Consent Terms dated 19th December, 2006 and the order dated 23rd October, 2008 passed by the Hon'ble Supreme Court of India.
Page 35 of 109J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc It was denied that on account of the address on the agreement dated 18th February, 1981 as Suyash, Near Amar Hind Mandal, Gokhale Road (N), Dadar (West), Mumbai 400028, the Plaintiffs have admitted or supported Defendant No. 4. On the other hand, it is admitted that Plaintiff No. 1 was the Chief Promoter. The Defendant No. 4, as an interested party and intending to act as a Developer, may have incurred several expenses and spent amounts and made the address available, but this does not create any right in its favour and in respect of the said property. It was denied that the Suit was barred by limitation or is malafide or gross abuse of the process of law.
20) We find from the record that there was an additional affidavit in reply of the Defendant No. 5 and Sudhakar Sitaram Jadhav Chairman of Defendant No. 5 to clarify as to how there was no ad-
interim order passed on the Notice of Motion against any of the Defendants.
21) Thereafter, on 16th December, 2013, affidavit of original Defendant No. 4 (Respondent No. 4 to this Appeal) is filed in reply to the Notice of Motion and that is to be found from pages 350 to 421 of the paper book. That is an affidavit to place on record the developments which transpired after institution of the Suit. That is with regard to the investigation, which was commenced pursuant to a FIR Page 36 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc registered by Oshiwara Police Station. That was registered consequent upon the order dated 20th March, 2013 passed by Metropolitan Magistrate, 65th Court at Andheri, Mumbai. The principal allegation was that the Development Agreement is fabricated or interpolated. The forgery has been investigated by recording statements and a report under section 156(3) of the Criminal Procedure Code was filed.
Thereafter, reference is made in this affidavit to the final report of the Investigating Officer, who concluded therein that the complaint filed by Plaintiff No. 1 was false.
22) An affidavit in rejoinder was filed by Appellant No. 1 to this reply affidavit of the original Defendant No. 4. That is at pages 422 to 570 of the paper book. In that, we find that the MHADA has handed over original files in connection with the suit property and they are retained in custody of this Court. The MHADA has made a statement that it would not hand over possession of the suit property. That statement has been continuing. The report of the Investigating Officer has been not accepted, inasmuch as the facts in that regard have not been completely set out by Defendant No. 4. There is a reply dated 2 nd December, 2013 filed by the Complainant (original Plaintiff No. 1) in the Metropolitan Magistrate's Court at Andheri against the report of the Investigating Officer and the handwriting expert. The prayer was to Page 37 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc direct a reinvestigation. Then, reference is made in para 6 of this affidavit to an order passed on 26 th November, 2013 by the Hon'ble Supreme Court of India and the list of Promoter members was stated to have been placed on record. There is a contest with regard to the meeting of the Special General Body Meeting held on 24 th December, 2011 and the assertion of the Appellant No. 1 is that none of the Promoter members of this proposed Society were present in the meeting. They, along with the Plaintiff No. 1 were not given any notice of the alleged meeting. In the minutes of the meeting dated 24 th December, 2011, in para (iii), it has been recorded that Samarth Development Corporation (Defendant No. 4) has enrolled members in the proposed Society to now constitute its general body. Thus, this is nothing but an enrollment of the members by Defendant No. 4. None of the members therefore of the proposed Society and represented by Plaintiff No. 1 had any notice nor were they present at the alleged meeting. Then, reference has been made to the contradictory stand taken by the Defendant No. 4 before the police and in affidavits filed in the Notice of Motion. The case that the Development Agreement was prepared in draft and a soft copy was available in the office of Defendant No. 4 or it was signed in the office of Defendant No. 4 have been denied and they are contrary to the statements recorded by the police. The allegations of forgery and particularly of the initials of Page 38 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc Plaintiff No. 1 have been reiterated. This affidavit thus denies the allegations raised in the affidavits of original Defendant Nos. 4 and 5 filed in reply. In such circumstances, it was prayed that the Notice of Motion be made absolute.
23) There are affidavits in sur-rejoinder, which are filed by original Defendant Nos. 4 and 5 and copies of which are from pages 571 to 589 of the paper book. These are dealing with the rejoinder affidavit of the Appellant No. 1/original Plaintiff No. 1. There is no need to make any detailed reference to the same, inasmuch as the parties reiterate their stand and deny what was contrary thereto and contained in the affidavits of the Plaintiff No. 1.
24) The only affidavit which is required to be referred to is an affidavit of the Respondent No. 5/original Defendant No. 5 to the Notice of Motion. That is dated 19 th September, 2014. Thus, the affidavits were filed throughout 2013 and in January and September, 2014. In the affidavit of the original Defendant No. 5, the Plaintiffs' case has been denied. The same case as was set out in the affidavit filed earlier by the Defendant Nos. 4 and 5 is reiterated in para 3 of this affidavit. In para 4 of the affidavit, it was reiterated that original Plaintiff No. 1 is only one of the 16 original Promoter members of the Society. He was elected by the Society to act as Chief Promoter in its Page 39 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc representative capacity. Except as one member of the Association, the Plaintiff No. 1 has no other right whatsoever. Then, reliance is placed on the Special General Body Meeting Resolution dated 24 th December, 2011 replacing the Plaintiff No. 1 with Defendant No. 6. The Plaintiff No. 1 having not contributed anything in terms of financial resources for acquiring the land has now on behalf of interested party concocted the claim and which should not be accepted. Reliance has been placed upon the order dated 21st January, 2014 refusing ad-interim relief. We are not concerned with other allegations as they pertain to the preliminary objections. It is urged that they pertain to the jurisdiction of this Court. In the light of the further orders of the Hon'ble Supreme Court of India and the Notice of Motion being directed to be heard without trying any issues as preliminary issues, no reference is required to be made to the stand of respective parties on such issues.
25) Suffice it to note that the affidavits continued to be filed in reply to the Notice of Motion. Defendant No. 4 filed an affidavit on 19 th September, 2014, which is at pages 682 to 624 of the paper book and in which reference is made to the earlier affidavits and the stand of the parties therein. There are same denials. This affidavit purports to deal with the Plaintiffs' claim. It also deals with the earlier agreements and writings of 1975 and 1981.
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26) To this affidavit, a rejoinder was filed by the original Plaintiff No. 1. Rather he filed rejoinders to two affidavits, one of Defendant No. 4 and one of Defendant No. 5.
27) It is upon the above materials including the Plaint and its Annexures that the learned Judge heard the oral arguments of both sides and by the impugned order, proceeded to dismiss the Notice of Motion.
28) At the hearing of this Appeal and as we indicated to parties that it would be disposed of finally by the present order and Judgment, an agreed compilation and containing all the relevant documents was placed on record by Mr. Samdani, the learned Senior Counsel appearing for the Appellants/original Plaintiffs. Mr. Samdani also tendered some documents so also Mr. Chagla.
29) We would refer to this agreed compilation, so that it would be convenient and enables us to decide the Appeal.
30) Mr. Samdani appearing for the Appellants submits that the Appellants' case has been summarised in the Plaint. It is based on the constitution of the proposed Society. The admitted position is that the Appellant No. 1 was Chief Promoter of the Society. It comprised of 12 members. Mr. Samdani points out as to how an agreement for sale was Page 41 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc executed between Oshiwara Land Development Company Private Limited (OLDC) (Vendor) and Plaintiff No. 1 and V. M. Tikekar, the Promoters of the proposed Society (purchasers) in respect of 86 acres of land being Survey No. 41 at Versova, Mumbai. A consideration of Rs.1,50,000/- is acknowledged as received by the Vendor for the proposed Society. Mr. Samdani submits that Suit No. 3429 of 1991 filed by OLDC along with Plaintiff No. 1 against original Defendant Nos. 1, 2 and others sought a declaration of ownership of this 86 acres of land, which includes the property involved in the present Suit. The Suit had to be filed, as the Government of Maharashtra and MHADA denied ownership rights to OLDC and its predecessor M/s. Byramjee Jeejeebhoy Pvt. Ltd. At that time, Plaintiff No. 1, Vasant Tikekar and OLDC were the joint Plaintiffs. The Suit was instituted by these Plaintiff No. 1 and Vasant Mahadev Tikekar because they were Chief Promoters.
They represented the interest of the members of an Association, of which, they were Chief Promoters. That Suit was in the process of being settled. The land was likely to be allotted to Plaintiff No. 1. In such circumstances, the Development Agreement was entered into between Vasant Tikekar and Plaintiff No. 1 as Chief Promoters of Apna Ghar Co-operative Housing Society (Proposed) with Defendant No. 4 for development of the suit land. Mr. Samdani placed reliance upon clauses 5, 6 and 7 of the proposed terms of settlement, which have been Page 42 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc filed in the Suit. According to Mr. Samdani, the wording of these clauses would show that it was decided by parties that in order to meet the expenses and charges incurred on the property including to initiate and contest litigations, allowing Mr. Kulkarni and Tikekar (Chief Promoters) to enroll members and collect contribution that it was decided to give them appropriate authorisations including to register the Society. It was this proposed Society then and represented by Plaintiff No. 1 and Tikekar, which was to be registered under the Maharashtra Co-operative Societies Act, 1960. Mr. Samdani submits that very wide powers were conferred including execution of a Power of Attorney in favour of the original Defendant No. 4 Samarth Development Corporation. Mr. Samdani relies upon Consent Terms dated 19th December, 2006, copy of which is at page Nos. 102 to 111 of the paper book. He submits that the terms confirm the ownership of MHADA in respect of the said land and allotment thereof in favour of Plaintiff No.1. The Consent Terms also envisage payment to be made, of actual cost of development borne by MHADA, by Plaintiff No. 1. The terms of allotment exempted the Society from provisions of Urban Land (Ceiling and Regulation) Act, 1976 but the Society was required to pay an amount equal to market value prevailing before 10 years. The Society was required to submit list of members within one year for approval of Government, 20% members were to be from backward Page 43 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc classes and no flat more than 700 square feet to be constructed. Mr. Samdani submits that this Suit No. 3429 of 1991 came to be decreed by the Hon'ble Supreme Court on 23rd October, 2008. Mr. Samdani also relies upon another Suit filed in this Court being Suit No. 1096 of 2009.
He relies upon the order passed therein on 26 th August, 2009. Mr. Samdani submits that a payment of Rs.89,16,034/- made to MHADA by Defendant No. 4 is in the name of the proposed Society. Between the decree of the Supreme Court and the year 2011, Plaintiff No. 1 resisted some demands and claims of original Defendant No. 4 Samarth Development Corporation and OLDC in respect of the suit property. The allotment of the suit land was pursued jointly by Plaintiff No. 1 and Defendant No. 4.
31) After these attempts were made and it appeared that the allotment would fructify, that too in favour of the proposed Society and Plaintiff No. 1 as Chief Promoter, that original Defendant No. 4 Samarth Development Corporation engineered a scheme to oust Plaintiff No. 1 and to hijack the control and management of the Society. The intent was to usurp the suit land. It is with a view to achieve the above, Defendant No. 4, in collusion with Defendant Nos. 6 to 60 caused issuance of notice and agenda dated 15th December, 2011 convening Special General Body Meeting. Mr. Samdani invited our attention to Page 44 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc this agenda and submits that it records that 55 members of the proposed Society, as enrolled by Defendant No. 4 pursuant to the Development Agreement dated 11th November, 2004 have been informed that Vasant Tikekar has resigned and Plaintiff No. 1 recently intimated to Defendant No. 4 that he is no longer interested in acting as Chief Promoter of the Society. If Tikekar and Plaintiff No. 1 volunteered to go out of the Society, then, it was expected that a notice together with this agenda would be served on Plaintiff No. 1, so that he remains present at the so called Special General Body Meeting dated 24 th December, 2011. However, no notice was given of this meeting to Plaintiff No. 1. Plaintiff No. 1 has not intimated in writing or otherwise to Defendant No. 4 or anybody else that he is not interested in acting as Chief Promoter of the Society. The 55 members are enrolled by Defendant No. 4 as allegedly authorised under the Development Agreement dated 11th November, 2004. Mr. Samdani heavily criticised the minutes of the Special General Body Meeting and the recordings therein. He submits that none of the statements in the said minutes are supported by any record. There is absolutely nothing on record indicating as to how Plaintiff No. 1 was served and why he was not present at the meeting. In the circumstances, his removal as Chief Promoter in terms of these minutes is highly questionable and doubtful.
It is suspicious because how the meeting could have been convened by Page 45 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc Defendant No. 4, how the 55 members (original Defendant Nos. 6 to
60) could have requested Defendant No. 4 to convene a Special General Body Meeting has not been indicated at all. These 55 members are not the original members of the proposed Society. They have been inducted in the proposed Society by the original Defendant No. 4, without knowledge, acceptance and consent of Plaintiff No. 1. Thus, the intent was to create and establish the Defendant No. 5 Society by excluding Plaintiff No. 1 and others therefrom. This exclusion was completely brought about by the Builder/Defendant No. 4 and who has hijacked the Society. In these circumstances, both, the meeting and the minutes are vitiated. How the control has been taken of this proposed Society by the partner of Defendant No. 4 is evident by presence of the partner of Defendant No. 4 at the Special General Body Meeting. It is he, who brought all the Defendant Nos. 6 to 60 and caused the removal of Plaintiff No. 1.
32) It is acting on such Resolution that Defendant No. 6 applied for name reservation of the Defendant No. 5 Society, which was granted with alarming speed and expedition. Even the registration was done within 10 days. The registration is challenged and is subject matter of distinct proceedings. However, even these were questionable and suspicious acts. The interpolation done in the Development Agreement Page 46 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc would denote as to how a figure of 700 square feet became 7700 square feet and the construction of the flats of this area was to be carried out and thereafter they are to be handed over to the members of the proposed Society. Pages 3 and 4 of the agreement, by which such insertions are made in the Development Agreement dated 11 th November, 2004 would indicate that the initials thereon and particularly of Plaintiff No. 1 are forged. These two pages do not bear the initials of Vasant Tikekar. This agreement is suspicious, doubtful and fabricated because it is stamped only on 16 th January, 2012. The original two pages have been substituted. The construction of 7700 square feet of free constructed area introduced would denote that Plaintiff No. 1 and other Plaintiffs and Defendant Nos. 61 and 62 have been cheated and taken for a ride.
33) Mr. Samdani submits that there is absolutely no question of delay and laches. Similarly, there is no question of Plaintiff No. 1 being put up by somebody to stall the project. Mr. Samdani submits that the learned Single Judge, with great respect, was severe and unduly harsh in his criticism on the alleged misconduct of Plaintiff No. 1. There is absolutely no silence, much less acquiescence on his part. With respect to the learned Single Judge, Mr. Samdani submits that the Suit is virtually dismissed at an interlocutory stage. All the allegations against Page 47 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc the Plaintiffs and made on affidavits have been accepted at the interlocutory stage as if they are proved or established. The inferences and conclusions drawn are but conjectures and surmises. Thus, all findings are vitiated in law. They are not justified and were totally uncalled for at an interlocutory stage. The lengthy order completely shuts out the Plaintiffs.
34) More so, when it has been set out as to how original 12 Promoters of the Society faced several challenges. The composition changes by passage of 32 years and which is normal. The original claim was put up in 1981 and jointly. That litigation continued till 2006 and culminated in final orders of the Hon'ble Supreme Court accepting the Consent Terms. These details have been set out in the Plaint and the affidavits. After culmination thereof, on 12th April, 2012 Plaintiff Nos.1 to 10 and Defendant Nos. 61 and 62 held a meeting of the Association or the proposed Society. The meeting was held for passing necessary formal Resolution appointing Plaintiff No. 1 as Chief Promoter and authorising him in making applications for registration. That is how an application was made for registration of name on 17 th April, 2012 by Plaintiff No. 1, which was rejected on 15 th May, 2012. That was because a Society with the same name was already registered (Defendant No. 5) on 28th February, 2012. That is how the contest in relation to Page 48 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc registration commenced and application under section 21A of the Maharashtra Co-operative Housing Societies Act for de-registration of Defendant No. 5 Society was filed. The proceedings in that behalf have been extensively set out and they continued up to 8 th May, 2013. All this led to Plaintiffs terminating the Development Agreement dated 11 th November, 2004 by the termination notice/letter dated 4 th June, 2013.
This Suit is founded on all this and the termination. In such circumstances, to refuse an interim injunction in the teeth of serious and genuine contest is totally erroneous and the learned Single Judge's order be therefore quashed and set aside.
35) It should be quashed and set aside all the more because though Writ Petition No. 4882 of 2013 challenging the orders in proceedings under section 21A of the Maharashtra Co-operative Societies Act, 1960 has been rejected, that order of the learned Single Judge of this Court has been challenged in the Hon'ble Supreme Court and the Hon'ble Supreme Court has directed status quo to be maintained. That order had a definite bearing on the proceedings before the learned Single Judge. Further, and more importantly, on 15 th January, 2014, the concerned learned Metropolitan Magistrate rejected the 'B' Summary Report filed by the police on 20 th October, 2013. He directed further investigation by his order of 15 th January, 2014. Lastly Page 49 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc and importantly in Appeal (L) No.56 of 2014, which was directed against the refusal to grant ad-interim reliefs, this Court passed an order directing maintenance of status quo. That order of status quo has been continued.
36) Mr. Samdani relied upon the amendments to the Plaint and to submit that important triable issues arise therefrom. The suit is comprehensive and until its trial, the protection and preservation of the suit property becomes necessary. Mr. Samdani has urged and with all vehemence at his command that the whole purpose of the contesting parties is to reap all benefits and in relation to a very valuable property in Mumbai, admeasuring about 90000 square feet at a prime location at Versova, exclusively in favour of a builder, namely Defendant No. 4 Samarth Development Corporation. The attempt is to takeover the affairs from a duly constituted legal entity. Eventually, a Builder and Developer can have no say in enrollment of members, election of office-
bearers and meetings of an Association or body of flat purchasers. He is only concerned with the registration of a co-operative Society. That is an obligation which he discharges under the Maharashtra Ownership of Flats Act, 1963 ('MOFA' for short). The composition and constitution of the Society is not an issue and a matter with which a Developer is concerned. All that he has to make is a list of flat purchasers and Page 50 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc include the same in an application to register a Co-operative Housing Society. It is the Society which is entitled to the buildings and the land beneath it. There may be some delay in applying for registration on account of a litigation and which may have been contested by the proposed Society and the Builder jointly. However, there can never be any question of the Society being controlled or allowed to be controlled by the Builder. No authority in law vests in anybody except an Association or a proposed Society. Its registration under the Maharashtra Co-operative Societies Act, 1960 is but a formalisation of its formation and establishment. It is to give it an identity and registration as a Co-operative Housing Society. A right to form an Association or Society is constitutionally recognised as a fundamental right of a citizen of India (see Article 19(1)(c) of the Constitution). It is but endorsement of a common law and natural right. In the present case, the Society has been virtually taken over. The earlier composition has been altered and to a great extent. This is contrary to the stipulations in the documents. Curiously the Defendant Nos. 4 and 5 are supporting each other. They are drafting each others affidavits.
There is nothing like a Society. It is its alter ego, namely the Samarth Development Corporation, which has the final say. These state of affairs can never be countenanced by a Court of law.
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37) Mr. Samdani has submitted that the learned Single Judge has completely missed the point that there was no dispute with regard to the fact that Plaintiff No. 1 was a Chief Promoter of the proposed Society. Mr. Samdani submits that it was Plaintiff No. 1 who was instrumental in the Suit between OLDC, himself and the proposed Society so also between the State Government and MHADA being settled. Mr. Samdani submits that there is absolutely no dispute about the fact that the draft of the Consent Terms in the Suit of 1991 were finalised by this Plaintiff and the proposed Society. Therefore, it could not have been that with so many efforts undertaken by him from 1981 to 2008 that at the fag end he would disassociate himself with the affairs of the proposed Society. He did not intimate or inform anybody about his alleged disinterest or intent of disassociation with the proposed Society. In any event, all this has yet to be proved by those on whom the burden lies in law. The story which has been put up that this Plaintiff was not pursuing the matter in the interest of the members and therefore a Special General Body Meeting of the proposed Society had to be convened to formally remove him itself denotes as to how Defendant No. 4 hijacked and took over the project. This was a concerted move and by some of those who were interested in excluding the original members of the Association/proposed Society. This itself would indicate as to how the meeting was convened of this Association Page 52 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc by the Builder and Developer. It is the Builder and Developer who finalised the agenda and presided over the meeting. The version that Tikekar indicated that he was not interested in continuing his association with the Society is to support the stand that there was alleged inaction on the Plaintiff No. 1's part. He did not allegedly act expeditiously and in the interest of the members is something which does not emanate from the members themselves but from the Builder and Developer. This would indicate as to how a conspiracy was planned to deprive Plaintiff No. 1 and Plaintiff Nos. 2 to 10 and 61 and 62 from obtaining their tenements and flats. The other version that 7700 square feet was demanded by members of the proposed Society could not have been a mere oral one. There would have been a document to that effect. Thus, the Samarth Development Corporation/original Defendant No. 4 knew fully well its position as a mere Developer. It could not have dealt with the property and in the manner now attempted. Thus, the increased demand for land, its scarcity and its value in the market being at a prime location are all factors which have influenced the Builder and Developer's actions. This has not been seen through unfortunately by the learned Single Judge.
38) Mr. Samdani has invited our attention to the copy of the Plaint in Suit No. 3429 of 1991. He submits that the Suit was filed Page 53 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc jointly by Oshiwara Land Development Company and in which the present Plaintiff No. 1/Appellant No. 1 was Plaintiff No. 3(b). The Suit was filed against the State of Maharashtra, the Collector, the Officer on Special Duty, Minister of Revenue-Government of Maharashtra and MHADA. It was pointed out by Mr. Samdani that at para 13 of the Plaint in that Suit, it was stated that the first Plaintiff OLDC entered into an agreement for sale with the second Plaintiff, namely, Vinod Mahajan, the Chief Promoter of Shri. Swami Samarth Prasanna Co-operative Housing Society (proposed). The Plaint describes as to how the second proposed Society, of which Plaintiff No. 1 herein was Chief Promoter, became entitled to and got benefit of an agreement for sale dated 18 th February, 1981 with Plaintiff Nos. 2 and 3. Mr. Samdani also invited our attention to the prayers in the Plaint in the Suit.
39) Then, Mr. Samdani invited our attention to the copy of the Development Agreement dated 11 th November, 2004. Mr. Samdani relies upon clauses 5, 6, 7 and 13 of this agreement. He submits that this agreement is unstamped. Later it was stamped on 16 th January, 2012. Similarly, he invited our attention to the Consent Terms in Suit No. 3429 of 1991 and particularly the clauses under the caption/title Exhibit 'B'. He invited our attention to the exemptions and the restrictions therein to submit that it is only the Apna Ghar Co-operative Page 54 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc Housing Society Limited (proposed) of which the Plaintiff No. 1 is the Chief Promoter, who was entitled to the land and property and the benefits in terms of the Consent Terms. He thus relied upon the substantive terms as well and particularly the clauses 3, 5 and 9 thereof.
40) Mr. Samdani submits that in the light of the above material, it would be evident that the order and decree of the Hon'ble Supreme Court of India, in furtherance of the Consent Terms in Suit No. 3429 of 1991 is in relation to the entitlement and allotment of the land to the proposed Society, of which Plaintiff No. 1/Appellant No. 1 is the Chief Promoter. In such circumstances, unless and until any positive act is attributed to the Appellant No. 1, he would not be demitting or relinquishing his office as the Chief Promoter of the said proposed Society and the entitlement noted above. Such a positive act has never been committed or alleged to have been committed. What is inferred from the agenda of the meeting of the Special General Body Meeting, which was issued by original Defendant No. 4, is that Plaintiff No. 1 indicated that he is no longer interested in acting as Chief Promoter of the Society. Pertinently, none of the persons to whom such an indication has been given came forward or placed any affidavit, leave alone a writing of this nature. No particulars are set out in the version of the contesting Defendants as to when such alleged indication Page 55 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc was given by Plaintiff No. 1, to whom and where it was given, orally or in writing. In these circumstances, everything about the meeting is doubtful and suspicious. That agenda and the minutes of the meeting both refer to the Development Agreement dated 11 th November, 2004 and the role of Samarth Development Corporation would go to show that it was only at the instance of this Builder and Developer that the agenda was prepared, the meeting allegedly held and the minutes prepared. Since all steps have been taken in pursuance of this so called Resolution of the Special General Body Meeting held on 24 th December, 2011, they stand vitiated in the event Plaintiff No. 1 proves that the meeting itself could not been convened. Convening of such meeting without notice to Plaintiff No. 1 and behind his back is nothing but a fraud perpetrated on the Plaintiffs and Defendant Nos. 61 and 62. If the entitlement of these parties is established successfully and which can be done only at the hearing of the Suit that Mr. Samdani submits that a strong prima facie case has been made out. The balance of convenience is also in favour of the Plaintiffs and they will suffer irreparable loss and injury in the event no interim reliefs are granted.
Further, Mr. Samdani has highlighted the fact that in such an important matter and involving crucial and vital issues relating to public property, both, the State of Maharashtra and MHADA have maintained complete silence. They did not produce any record nor did they proceed to file an Page 56 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc affidavit. In the circumstances, the false and misleading stand of the interested private parties could not have been relied upon by the learned Single Judge to refuse interim reliefs. Though Mr. Samdani has questioned the proceedings in relation to the registration of Defendant No. 5 Society, still, he fairly submits that they are at large in the Hon'ble Supreme Court of India. Mr. Samdani submits that all that the Plaintiffs wish to point out is that no reliance could have been placed by the learned Single Judge on a preliminary agreement and stated to have been executed by the Chairman and Secretary of Defendant No. 5 Society, the Developer, namely, Defendant No. 4 and consenting to take possession of the land on the terms and conditions set out therein.
Apart therefrom, several terms and which have been agreed upon, are totally one-sided.
41) Mr. Samdani has brought to our notice the preliminary agreement stated to have been executed on 9 th April, 2013. He submits that it is preliminary, yet, it purports to create occupancy rights. The occupancy is stated to be of Class II. In that regard, our attention was invited to section 29 of the Maharashtra Land Revenue Code, 1966.
This class of occupancy means no rights can be transferred except with the permission of the State. Therefore, everything is dependent upon such permission. It is submitted that by itself this preliminary Page 57 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc agreement does not create any right. In any event, this agreement is executed by completely excluding the Plaintiffs. In such circumstances, even this agreement, though subsequently executed, that cannot create any equities far from any rights in favour of the contesting Defendants.
Mr. Samdani submits that none of the members, at least those who are Defendants, have been enrolled with the approval of the State of Maharashtra. Therefore, the Society (Defendant No. 5) cannot rely upon this agreement. This agreement is nothing but a fraud on the State.
42) Mr. Samdani submits that the learned Single Judge should have considered the issue arising out of the specific termination of the Development Agreement dated 11th November, 2004 by a party thereto, namely Plaintiff No. 1/Appellant No. 1 before this Court. The Plaintiffs thus deserve a chance to prove their case by leading oral and documentary evidence, that can be only at the trial of the Suit. Until then, the subject matter of the Suit deserves to be protected and preserved. Mr. Samdani has also relied upon the statements which have been made in the additional reply affidavit of Defendant No. 4. He submits that the statements which are to be found in para 2(e) of this additional affidavit, which is filed before the learned Single Judge in July, 2013, would indicate as to how conflicting and contrary stand has been taken. It would therefore support an argument of the Plaintiffs Page 58 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc that the Development Agreement was executed on the basis of false assurances or mis-representation or undue influence, as alleged in the Plaint. Mr. Samdani also invited our attention to the order passed in Appeal (L) No. 56 of 2014 in Notice of Motion No. 1352 of 2013 in Suit No. 730 of 2013. Reliance is also placed upon the order passed by the Hon'ble Supreme Court on 4th August, 2014 and in a Special Leave Petition, which was converted in to a Civil Appeal, namely Civil Appeal No. 7205 of 2014.
43) Then, reliance is placed on the order of the Hon'ble Supreme Court directing parties to maintain status quo.
44) The learned Single Judge's order on the point of delay and laches has also been termed as conclusive. Mr. Samdani submits that if the Plaintiffs' bonafides themselves have been questioned and commented upon, then, that has influenced the learned Single Judge in denying reliefs by holding that there is delay and laches on the Plaintiffs' part. Mr Samdani has submitted that it was the Plaintiffs and more particularly Plaintiff No. 1 who has been pursuing the matter from the date the Decree was passed in the earlier Suit (3429 of 1991) by the Hon'ble Supreme Court. That Decree has been passed on 23 rd October, 2008. In the meanwhile, there is an interim order passed in another Suit, namely 1096 of 2009, which has been brought by M/s. Byramjee Page 59 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc Jeejeebhoy Pvt. Ltd. In these circumstances, it is the Plaintiff No. 1 who has resisted the claim of both Oshiwara Land Development Corporation and M/s. Byramjee Jeejeebhoy Pvt. Ltd. (Suit No. 1096 of 2009). If that Suit is pending and nothing except a payment of Rs.89,16,034/- was made to MHADA in the name of the proposed Society, that too on 23 rd June, 2010, that would indicate as to how there are no delay and laches. The finding that Plaintiffs have not done anything from 2008 till 2012 is thus vitiated by non application of mind to these relevant circumstances. There was no delay and, assuming there was some marginal one, there is a plausible and reasonable explanation for the same. There is thus no silence on the Development Agreement, as is set out in para 81 of the impugned order.
45) For all these reasons, it is submitted by Mr. Samdani that the order of the learned Single Judge deserves to be quashed and set aside. It deserves to be set aside also because of the fact that far from making any prima facie observations, the learned Single Judge went ahead and doubted the bonafides of the litigation. Not only he has expressed mere doubt, but concluded that the litigation is frivolous, speculative and false. He imposed heavy costs. The costs are wholly disproportionate and amount to non-suiting the Plaintiffs. In these circumstances the costs of Rs.20,00,000/- payable to each of the Page 60 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc Defendants are excessive, exorbitant and unreasonable. The order of the learned Single Judge deserves to be quashed and set aside on this ground as well.
46) In support of his submissions, Mr. Samdani has relied upon the following Judgments and authorities:-
1. Shri. Ramji Mandir Narsinhji and Ors. vs. Narsinh Nagar Co- operative Housing Society Ltd. AIR 1979 Gujarat 134.
2. Maneklal Mansukhbhai Co-operative Housing Society vs. Rajendra Kumar Maneklal Shah and Anr. 2002 CTJ 113 (Supreme Court).
3. Madhvi Amma Bhawani Amma and Ors. vs. Kunjikutty Pillai Meenakshi Pillai and Ors. (2000) 6 SCC 301.
4. Kaml Kumar Dutta and Anr. vs. Ruby General Hospital Ltd. and Ors. (2006) 7 SCC 613.
5. Radha Kishan Jaikishan and Ors. vs. Municipal Committee AIR 1934 Privi Council 62.
6. Relevant extract from "The Law of Unincorporated Associations and similar relations" by Sydney R. Wrightington of the Boston Bar.
47) On the other hand, the learned Senior Counsel appearing for the contesting Respondents have entirely supported the order of the learned Single Judge. Mr. Chidambaram, the learned Senior Counsel appearing for Respondent No. 4 submitted that there is gross delay, laches and acquiescence on the part of the Plaintiffs, particularly Plaintiff No. 1. In such circumstances, they cannot claim any equitable and discretionary relief. Relief of injunction is entirely in the discretion of the Court. If the discretion is exercised judiciously and reasonably, Page 61 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc then, this Court cannot interfere with exercise of such discretion, unless that is proved to be palpably erroneous, unreasonable or arbitrary.
Nothing has been demonstrated by the Plaintiffs/Appellants in this behalf. If the Development Agreement, which is styled as not vitiated but an admitted document (DA-I) and dated 11 th November, 2004, then, at least in April, 2012, the Plaintiffs had knowledge of the acts and deeds pursuant to this agreement and attributable to this contesting Defendant No. 4. If that is the date of the knowledge, then, silence therefrom till the termination of the agreement in June, 2013 would indicate as to how the Appellants/original Plaintiffs have acted throughout. Their silence in not objecting to any of the steps taken including payments of heavy amounts or huge sums, execution of preliminary agreement supports the finding on the point of delay and laches.
48) Mr. Chidambaram submits that there is no substance in the contention of Mr. Samdani that Plaintiff No. 1 was not apprised of or had no knowledge of the developments. Mr. Chidambaram submits that Plaintiff No. 1 is estopped from raising such contentions simply because the payments were made by defendant No. 4 in December, 2005 and August, 2009 to Oshiwara Land Development Corporation. A sum of Rs. 4,14,00,000/- was paid during this period. Thereafter, a sum of Page 62 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc Rs.89,16,034/- was paid to MHADA by Defendant No. 4 on 23 rd June, 2010. Thereafter, on 9th April, 2013, a further sum of Rs.61,16,86,900/-
has been paid. All these payments are documented and there are receipts evidencing the same. The payments have been made to public bodies and the details thereof could have been obtained by Plaintiff No. 1 by invoking inter alia the Right to Information Act, 2005. Defendant No. 4 has not invested in any litigation, as is erroneously contended but it was authorised to carry out several tasks, perform duties and discharge obligations in terms of the Development Agreement dated 11th November, 2004 and the decisions taken at the Special General Body Meeting. Even prior thereto, Defendant No. 4 was authorised to protect the interest of the members of Defendant No. 5. Plaintiff No. 1 is and continues to be a member of Defendant No. 5. However, he has stood-by and allowed the aforesaid steps to be taken. In these circumstances, now Plaintiff No. 1 cannot raise any grievance, much less of the nature set out in the Plaint and seek any prohibitory or injunctive relief. Such reliefs are not granted to litigants whose conduct is blameworthy. In these circumstances, the learned Single Judge has rightly refused any interim relief.
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49) It is then submitted that Plaintiff No. 1 has no locus, inasmuch as he has been removed as the Chief Promoter of the proposed Society and is a ordinary member of Defendant No. 5. He has no rights independent of the Co-operative Housing Society (Defendant No. 5), which is duly registered. Once a Co-operative Housing Society is registered and in terms of the Maharashtra Co-operative Societies Act, 1960, then, there is no scope for urging that any unregistered Association continues in existence, leave alone any proposed Society.
Once the legal position is noted, then, Plaintiff No. 1 cannot claim to be the Chief Promoter. Now, a duly constituted Managing Committee is in place and power. If the Plaintiffs are aggrieved by any act of such Committee and in relation to the business or management of the Society, then, there only remedy is to approach the competent Court or authority under section 91 of the Maharashtra Co-operative Societies Act, 1960. The Suit of the present nature cannot be instituted and maintained. For all these reasons, Mr. Chidambaram would submit that the Appeal be dismissed on this ground alone.
50) Alternatively and without prejudice to the aforenoted submissions, Mr. Chidambaram submits that Plaintiff No. 1 has conveniently chosen to ignore the undisputed and admitted facts and events. It is the original Plaintiff No. 1 who affirmed the Consent Terms Page 64 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc in Suit No. 3429 of 1991. It is he, along with Mr. Tikekar, who conferred rights in the original Defendant No. 4 by execution of an agreement dated 11th November, 2004. There is no interpolation or change or modification therein. No pages have removed or inserted as alleged. The additions made in the agreement/clauses therein are duly initialed by the parties including Plaintiff No. 1. In terms of the agreement and by virtue of it, advantages and benefits would be derived by the Co-operative Housing Society. Mr. Chidambaram has invited our attention to the undisputed agreement of development dated 11th November, 2004 and the disputed portion thereof, wherein, a benefit of 700/7700 square feet each is claimed. He has invited our attention to the paragraphs of the Plaint and particularly paras 1, 5, 6 and 9 to urge that Plaintiff No. 1 did not question the Development Agreement executed on 11th November, 2004 till December, 2011. The amended Plaint would denote his silence and that he had no quarrel with the terms and conditions of this agreement. Plaintiff No. 1 claims to have nominated certain persons as members of the proposed Society, because the original members either resigned or expired. However, there are no details set out in the Plaint as to how these nominations came about. Was any meeting convened of the proposed Society to consider the so called nominations received or whether these were granted allegedly by Plaintiff No. 1 of his own. This would indicate as Page 65 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc to how beyond formation of the Association or proposed Society Plaintiff No. 1 has not taken any steps as Chief Promoter thereof. It is belatedly that he has decided to attack the original Development Agreement, and by setting up a case of fraud, forgery/ misrepresentation.
51) Mr. Chidambaram then submits that if the forgery or fraud in the Development Agreement (DA-II) became known to the Appellants/original Plaintiff by means of information obtained under the Right to Information Act, 2005, then, allowing the parties to the said agreement to rely upon it to seek registration of a Co-operative Housing Society, denotes as to how the Appellants/Plaintiffs and particularly Plaintiff No. 1 Kulkarni was not interested in the affairs of the proposed Society, after a certain point of time. Else, he would not have taken one year and two months after such registration, for termination of the agreement particularly when he had sought de-
registration of the Society. Mr. Chidambaram has invited our attention to the termination notice/letter dated 4th June, 2013 and particularly para 6 thereof. He submits that if Plaintiff No. 1 was interested in the affairs of the proposed Society and desired that the said Society obtains all the rights in terms of the Development Agreement, then, it was not necessary for him to wait till 17th April, 2012 for seeking registration or Page 66 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc allotting name to the proposed Society. In any event, if this application was made on 17th April, 2012, there was a response or reply to the same on 15th May, 2012, then, there is no justification for waiting till 4 th June, 2013 to terminate the agreement. Mr. Chidambaram submits that on a reading of para 15 of the termination notice, the intent of the Plaintiffs is clear. They did not unconditionally or absolutely terminate the agreement. However, if they contend that the Development Agreement was invalid since its inception, then, this plea is contradictory to their stand adopted throughout. That stand is that the original Development Agreement and without the alleged interpolation or forgery is valid and binds the parties. Mr. Chidambaram therefore submits that such self-
defeating pleas having been set out, the learned Judge rightly denied a discretionary and equitable relief.
52) Mr. Chidambaram submits that from the above what is apparent is that the Appellants are not impugning the Development Agreement dated 11th November, 2004 without any change or alteration or alleged interpolation therein. This agreement is not challenged.
However, from the above, it is clear that the Appellants/original Plaintiffs are themselves in doubt as to which agreement they must impugn and challenge. If there is interpolation or forgery or fraud, then, the particulars in relation thereto have to be set out. The said Page 67 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc particulars of false assurances or misrepresentations are hopelessly lacking. Therefore, the requirement of Order VI Rule 4 of the Civil Procedure Code, 1908 is not complied with.
53) The learned Senior Counsel then supported the conclusion of the learned Single Judge that the Plaintiffs acted malafide. He submits that the malafides have been referred and set out in details in the impugned order of the learned Single Judge. Thus, the discretion is properly exercised by the learned Single Judge. No interference is therefore called for in the impugned order.
54) Our attention has been invited to the affidavits, which have been placed on record. Reliance is specifically placed on the statements contained in the affidavit of Vikas Walawalkar, the partner of Defendant No. 4, styled as additional affidavit in reply filed on 10 th July, 2013. For these reasons, Mr. Chidambaram submits that the Appeal deserves to be dismissed.
55) Mr. Chidambaram, learned Senior Counsel appearing for Defendant No. 4 has relied upon the following Judgments:-
1. Wander Ltd. and Anr. vs. Antox India Pvt. Ltd. 1990 (Supp) SCC 727.
2. Esha Ekta Apartments Chs.Ltd. and Ors. vs. Municipal Corporation of Mumbai and Anr. (2012) 4 SCC 689.Page 68 of 109
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56) Mr. Chagla, learned Senior Counsel appearing for Defendant No. 5 Society has referred to certain Writ Petitions, wherein, the allotment of land itself and in favour of the Society came to be challenged. For that, Mr. Chagla has tendered a compilation of documents, which were part of the proceedings before the authorities under the Maharashtra Co-operative Societies Act, 1960. Adopting the arguments of Mr. Chidambaram, Mr. Chagla would submit that the Consent Decree and order of the Hon'ble Supreme Court records as to how there is no contravention of the public interest. The public good is subserved because only a portion of the larger property has been granted or allotted to Respondent No. 5 Society. Mr. Chagla would submit that each of the clauses of the Consent Terms have been complied with. He would specifically submit that the portion marked as Exhibit 'B' in the Consent Terms records exemptions and restrictions.
Mr. Chagla would submit that the Government of Maharashtra as also MHADA are parties to these Consent Terms. They do not dispute compliance with the terms and conditions thereof. Further, none of the members of the Society and which includes Plaintiff No. 1 have complained about any non compliance with essential terms and conditions incorporated in the Consent Terms. Thus, this is a purely private interest litigation. There is no public interest involved. The original Plaintiffs do not dispute that for a project of this magnitude and Page 69 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:40 ::: APPL.672.2014.Judgment.doc size, the proposed Society rightly took assistance of a Builder and Developer. It is only with their experience and expertise can a huge plot of land be developed and buildings constructed efficiently and expeditiously. The proposed Society also had approached such Developer and not undertaken the construction or development activities on its own. After entering into Development Agreement dated 11th November, 2004, the Chief Promoter/original Plaintiff No. 1 did not take any steps and to fulfill his obligations so also perform his duties. It is his inaction which led to the members approaching the Developer and requesting him to takeover charge and manage the affairs so as to protect the interest of the Society and its members. In such circumstances, it was not open to the Plaintiffs to have obstructed the development. In any event, if the Development Agreement was one sided or vitiated as alleged, then, it was not necessary for the Appellant to wait for 9 (nine) years to terminate it. If there is no challenge to the original Development Agreement, then, its termination is totally uncalled for. The Appellants cannot seek to derive benefit under the same agreement, which they have terminated purportedly. In these circumstances, their stand was rightly rejected. The Appellants' version cannot be believed because clauses (c) and (d) of the Development Agreement and equally clause (i) thereof are not conferring absolute rights in the Developer. The Developer cannot derive any benefit so Page 70 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc long as he constructs the building/s comprising of the flats to be handed over to the members of the Respondent No. 5 Society. Mr. Chagla has pointed out that by clauses 5, 6 and 7, it is evident that the Chief Promoters of the Apna Ghar Co-operative Housing Society Limited (proposed) did not retain any rights in the property but handed over the same to the Developer. If these clauses are undisputed and unchallenged throughout, then, they have been accepted even by the original Plaintiffs and particularly Plaintiff No. 1 Mr. Ashok Kulkarni.
Therefore it is not open for the Plaintiffs to now allege that the developer has taken over the Society. It is not open to the Plaintiff to undo the steps taken till date including registration of the Co-operative Housing Society. If, after the Development Agreement was executed and till its termination allegedly by the notice and the Suit, nothing was done by the Plaintiffs/Appellants, then, it is futile for them to complain and seek prohibitory orders from this Court. The Notice of Motion has rightly been dismissed. The Appellants/original Plaintiffs could not place any document much less in the form of a letter of complaint to any statutory authority or otherwise, which would evidence that the Appellants had genuine grievance against the Developer. The Development continued in terms of the Development Agreement dated 11th November, 2004. Even the Plaintiff No. 1 is a member of the Defendant No. 5 Society and had his group assumed power, he has no Page 71 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc complaint or grievance against the Developer. So long as the fruits of the development can be availed off and by obtaining larger benefits, then, the Plaintiffs are not complaining. If the Plaintiff No. 1 had been chosen as the Chairman of the Society (Defendant No. 5) and everything goes to his liking, he would find nothing objectionable in the acts of the Developers and others supporting him. Hence, being a member of the Society, the acts of the Society binds the Appellant/Plaintiff No. 1 Ashok D. Kulkarni. He cannot question the registration of the Society or the Development and construction activities at site, which is also for the benefit of the Society and its members. Hence, the Notice of Motion was rightly dismissed by the learned Single Judge and his order be maintained.
57) Since a very lengthy order has been passed by the learned Single Judge and touching virtually everything on merits that we were required to hear the parties extensively. Lengthy and prolonged arguments and heavy reliance on case law and documents have made this order equally lengthy and bulky. We would have loved to avoid all this because tentative and prima facie findings alone are required to be rendered. There is absolutely no need to consider the contents of the documents and in such details as if each one of them are admissible in evidence and relevant and germane for determination of the lis. In a Page 72 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc Judgment in the case of Anand Prasad Agarwalla vs. Tarkeshwar Prasad and Ors. reported in AIR 2001 SC 2367, the Hon'ble Supreme Court has cautioned the Court deciding interlocutory or interim application by observing that they should not hold a mini trial. Further, in the Judgment of the Hon'ble Supreme Court in the case of Dalpat Kumar and Anr. vs. Prahlad Singh and Ors. reported in AIR 1993 SC 276 the principles on which interim injunction have to be granted are summarised by the Hon'ble Supreme Court as under:-
"4.
Order 39, Rule (c) provides that temporary injunction may be granted where, in any suit, it is proved by the affidavit or otherwise, that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by order grant a temporary injunction to restrain such act or make such other order for the purpose of staying and preventing ..... or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit until the disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was brought on statute by S. 88(i)(c) of the Amending Act 104 of 1966 with effect from February 1, 1977. Earlier thereto there was no express power except the inherent power under S. 151, C. P. C. to grant ad interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In other words, the court in exercise of the power of granting ad interim injunction is to preserve the subject matter of the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court's Page 73 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it.
5. Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is "a prima facie case"
in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status quo, an injunction would be issued.
Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad-interim injunction pending the suit.
6. ..... The phrases "prima facie case"; "balance of convenience" and "irreparable loss" are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man's ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. ....."
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58) To our mind, if these principles guide the consideration of an application for interim injunction, then, the learned Judge should have applied them. He should have been guided by them alone and not, with great respect, gone so deep into the matter and in such a detailed manner as would denote a full length trial of the Suit. The minor and minute details were not required to be referred and scrutinised. A broad view of the controversy and with reference to essential stand of the parties was enough. The nature of the reliefs claimed and the frame of the Suit would have enabled the learned Judge to consider as to whether a prima facie case is made out by the original Plaintiffs, whether balance of convenience lies in their favour and whether they will suffer irreparable injury or loss which cannot be compensated in terms of money.
59) We would therefore restrict ourselves and by clarifying at the outset that none of the observations that we make or that have been made in the impugned order of the learned Single Judge shall influence the outcome of the Suit. The observations and findings on the conduct of the Plaintiffs are therefore neither conclusive nor binding at the time of the trial of the Suit. The Plaintiffs can therefore lead oral and documentary evidence to prove their case, as set out in the Plaint and in accordance with law. They are not prohibited in pursuing this course, despite some sweeping conclusions drawn by the learned Judge.
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60) The case of the Plaintiffs is simple. The Plaintiffs are alleging that a group of persons organised themselves because they were interested in obtaining residential tenements in Mumbai. They had therefore approached the owner of the immovable property in Mumbai, namely, M/s. Oshiwara Land Development Company Private Limited, who represented to them by virtue of a Consent Decree dated 15th October, 1969 passed in Suit No. 660 of 1968, which decree is dated 9th November, 1979, the company OLDC became owner of all the residuary land bearing Survey No. 41 in village Oshiwara, Taluka Andheri, Mumbai Suburban District, which, prior to the same belonging to it was belonging to M/s. Byramjee Jeejeebhoy Pvt. Ltd. That is how this Co-operative Housing Society (proposed) approached the owner Company requesting it to transfer and convey the said land to it.
Accordingly, an agreement for sale dated 2 nd December, 1975 and 5th December, 1975 and a supplementary agreement dated 18 th February, 1981 between OLDC and two sets of proposed Societies came to be executed. The Company therefore agreed to sell and the Societies agreed to purchase that piece of parcel of land situated and bearing Survey No. 41 in village Oshiwara, admeasuring 86 acres. It is not necessary to refer to all the terms and conditions of this agreement, save and except, it was containing two Schedules, of which, the second Schedule sets out description of the land stated to be admeasuring 86 Page 76 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc acres. Further, this agreement was signed by Ashok D. Kulkarni, the Plaintiff No. 1.
61) Thereafter, a Suit being Suit No. 3429 of 1991 had been filed in this Court jointly by OLDC and V. M. Tikekar and Ashok D. Kulkarni, the Chief Promoters of Apna Ghar Co-operative Housing Society (proposed). The Suit was filed against the State of Maharashtra and MHADA for a declaration that the Plaintiffs therein are absolute owners of the suit land, more particularly described in Exhibit 'B' to the Plaint and that none of the Defendants have any right, title or interest in the same. Certain orders passed by the authorities under the Maharashtra Land Revenue Code were also challenged in the Suit. In addition, a permanent injunction to restrain the Defendants to that Suit and/or any of them, their servants, agents, from in any manner interfering with and/or disturbing the Plaintiffs' possession of the suit land was claimed. A Development Agreement was signed on 11 th November, 2004 between Plaintiff No. 1/Appellant No. 1 and one V. M. Tikekar in their capacity of Chief Promoters of Apna Ghar Co-operative Housing Society (proposed) and Samarth Development Corporation (Defendant No. 4 in the present Suit), in which, there is a reference to this Suit No. 3429 of 1991 and the parties claimed that they are owners of a large chunk of land admeasuring 86 acres and 32 gunthas in Page 77 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc Survey No. 41, village Oshiwara, Taluka Andheri, District Mumbai Suburban. At that time, MHADA and the State had disputed the claim of the Plaintiffs in Suit No. 3429 of 1991. Clauses (b) and (c) of this agreement reads as under:-
"(b) The parties to Suit No. 3429 of 1991 are in the process of compromising the dispute and initially in 1997 Consent Terms had been signed whereby the Plaintiffs were to get substantial part of the suit property, which is in the residential/development zone, however, in May, 2004 these consent terms have been withdrawn, as now fresh Consent Terms have been entered into in May 2004 whereby it is agreed inter alia that the State of Maharashtra shall allot to the Parties of the First Part amongst others a piece of land, which is subject matter of this Agreement being the land forming part of Survey No. 120 of village Versova, taluka Andheri, district Mumbai Suburban shown in dark blue colour, parrot green colour and brown colour marked with Letter 'A', 'E' and 'F' respectively on the plan annexed hereto as Annexure 'A' (being the same plan as is annexed to the Consent Terms signed in May 2004 in Suit No.3429 of 1991) admeasuring 39,790.01 square meters, 37422.98 sq.mts. and 13348.09 sq.mts. more particularly described as Firstly, Secondly and Thirdly respectively in the Schedule hereunder written (hereinafter referred to as "the said property").
(c) The parties of the First Part are seeking to acquire the said property for and on behalf of members of the co-operative society or societies to be registered under the Maharashtra Co-operative Societies Act, 1960 and to have the said property developed for providing housing for the members of such society or societies."Page 78 of 109
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62) It is very categorically stated in clause (d) of this agreement that the Chief Promoters or the proposed Society does not have the financial means to undertake the development, being the object for which the proposed Society was intending to acquire the said property and that is how these Chief Promoters and the proposed Society entered into an arrangement with Samarth Development Corporation and agreed to grant to the said Samarth Development Corporation rights in respect of the property on the terms and conditions appearing in the agreement. That is how the parties proceeded and the rights that have been granted include one which enables Samarth Development Corporation to obtain or modify the change of user in respect of the property or part thereof under the provisions of the Maharashtra Regional and Town Planning Act, 1966 from any authorities thereunder to obtain sanction and approvals of statutory authorities so as to undertake the development of the property or any part or portion thereof. The rights have been referred to at clauses 2(a to j) and what is relied upon is the right to enroll members for and on behalf of the Promoters and the proposed Society and allot occupancy rights in respect of any flat or premises in the building/s to be constructed in the said property or any part thereof. Equally, the right to assign the benefit of the agreement in whole or in part has also been relied upon. The obligations of Samarth Development Corporation are set out in clauses Page 79 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc 4, 5, 6 and 7, which denote as to how the party of the second part, namely, Samarth Development Corporation therein has been granted rights to develop the property and also deal with the property in the manner set out therein (see clauses 14 to 17).
63) While it is true that there is no Power of Attorney executed in favour of M/s. Samarth Development Corporation in terms of clause 13 of this agreement, but, prima facie, what emerges from a reading of this agreement is that the proposed Society did not have the financial capacity to undertake development activities and therefore it thought it fit to involve this Samarth Development Corporation. It may be that the assistance of this Developer was sought with a view to fulfill the object and purpose of securing residential accommodation. However, the agreement is with a Builder and Developer and to ensure development of the property and the construction of buildings thereon, certain rights have been conferred and created in the Builder and Developer.
Therefore, the learned Judge seems to be right in holding that prima facie the sweep of this agreement is such that Samarth Development Corporation would be put in possession of the property after obtaining it on conclusion of the legal proceedings then pending, take up the matters with the statutory authorities, seek their approvals and permissions, commence and carry out construction and thereafter deal Page 80 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc with the property. The parties intended that such of the persons to whom the flats can be sold by the Builder and Developer in terms of the rights conferred in or created in its favour can be enrolled as members of the Society. Therefore, the clauses in the agreement have been accordingly worded. It may be that with the enrollment of the members of the Society or Societies for and on behalf of the parties of the first part and allotting them occupancy rights in respect of any flat or premises in the building/structure on the said property or any part thereof is for and on behalf of the parties of the first part, but considering that it was a group of persons approaching the Developer and Builder and agreeing with it to takeover the project that the learned Single Judge committed no error in arriving at the prima facie conclusion that the Appellants/Plaintiffs before us are not averse to induction of a Builder and Developer. There may be now some quarrel or dispute on the stipulations in the agreement and according to the Plaintiffs, they confer restricted rights and is not an absolute grant, still, until they prove the case and at the trial of the Suit, they could not have sought a restraint against the Developer from completing the project, which is also in their own interest.
64) If one has a look at the Plaint allegations in the instant Suit, the Plaintiffs seem to suggest that the agreement dated 11 st November, Page 81 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc 2004 is styled as a Development Agreement and alleged to have been entered into by Plaintiff No. 1 with Defendant No. 4. The agreement was executed on the basis of false assurances, mis-representation and undue influence. The said agreement was without consideration. It was not valid in law and is void ab initio. It is further alleged that the said agreement was on a stamp paper of Rs.100/- dated 3 rd January, 2004. The agreement runs into 11 pages. On page 3, the main body of the agreement begins and that page bears the initials of three persons.
Page 4 of the agreement also bears the initials of three persons. This agreement could never have been acted upon. Then, an allegation has been made that there is forgery, cheating and fraud, because the partners of Defendant No. 4 and the alleged Chief Promoters/Members of Defendant No. 5 colluded with each other and interpolated and fabricated two pages of the agreement. At the same time, it is averred that the agreement being inadequately stamped, cannot be looked into and should not have been acted upon. Annexure 'D' to the Plaint is a copy of the Development Agreement and Annexure 'E' is a copy with the alleged interpolated portion. The Plaint further avers that the said Development Agreement (Exhibit 'D' to the Plaint) was a result of mis-
representation and undue influence on the part of Defendant No. 4, inasmuch as Defendant No. 4 persuaded the Plaintiff No. 1 and the said Tikekar to enter into the said agreement (Exhibit 'D') on the Page 82 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc representation that it would strictly adhere to the terms and conditions of the said agreement (Exhibit 'D') with a clear intention from the inception not to abide by the same. The mis-representation and undue influence are clear from the subsequent conduct of Defendant No. 4 of putting up purported members from December, 2011 onwards and orchestrating the meeting dated 24 th December, 2011 leading to registration of Defendant No. 5. The Defendant No. 4 never intended to honour what it had agreed with Plaintiff No. 1 under the Agreement (Exhibit 'D') inasmuch as all actions of Defendant No. 4 are in breach and in violation of the terms of the agreement (Exhibit 'D').
65) There appears to be some substance in the contention of Mr. Chidambaram that either there is no agreement and as understood or intended by parties or alternatively there was a Development Agreement executed and entered into by the Plaintiffs and Defendant No. 4, but they never intended to act upon it, then, such allegations are prima facie, inconsistent and somewhat contradictory. The third aspect of it is that there was a Development Agreement duly executed but one of the parties made changes therein. There was no consent obtained from the other party to these changes. Thus, the alterations and changes are behind their back, therefore, there is a fabrication or forgery by allegedly making insertions on some pages which include the Page 83 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc initials of Plaintiff No. 1. Those have been forged. Thus, the agreement and its execution is not prima facie denied. If it is vitiated by false assurances and mis-representation on the part of Defendant No. 4, then, the Plaintiffs would have to explain as to how the Consent Terms in Suit No. 3429 of 1991 have referred to land admeasuring 86 acres and 32 gunthas, within which the portions delineated on the Plan are to be given to the Chief Promoters of the Apna Ghar Co-operative Housing Society (proposed) and on the terms and conditions set out in Exhibit 'B' of the Consent Terms. There is a Consent Decree, under which, these lands have to be allotted to Apna Ghar Co-operative Housing Society (proposed). The terms which are referred to in Exhibit 'B' read as under:-
"EXHIBIT "B"
The land referred in the consent term is sanctioned for allotment to Apna Ghar Co-operative Housing Society Limited (proposed) on the following exemptions/terms and conditions.
Exemptions
(a) This Society is exempted from the policy by which plots are allotted on lottery system to the public by inviting applications, except the plots which are in the possession of the Government.
(b) This Society is exempted from the policy by which permitted carpet area in respect of flats is assessed on the basis of income group of the members.
(c) When the Government land is granted to co-operative societies then as per the present policy, the Society is required to pay the amount which is equivalent to market value prevailing before 10 years and which is assessed on the basis of income of various groups. But in this matter, various income groups could not be taken into consideration, so the rate is applicable equivalent to market value prevailing before 10 years.
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(d) This Society is exempted from the provisions of Urban Land (Ceiling and Regulation) Act, 1976, in view of that those provisions are not applicable to this land.
Restrictions (1) OLDC is required to withdraw all matters whole are pending in High Court/Civil Court and for which they are permitted to file necessary consent terms in the High Court of Bombay.
(2) The society is required to pay the cost, incurred by MHADA in past for the purpose of development and protection of the land, along with interest thereon.
(3) The Society is required to submit list of members within one year for the approval of the Government.
(4) The Society will not able to construct flats with area more than 700 square foot.
(5) 20% members of this Society must be of backward class."
66) If these are the terms which are sanctioned and approved by the Hon'ble Supreme Court, then, both the original Plaintiffs and the MHADA and the State of Maharashtra ought to have brought to the notice of the Hon'ble Supreme Court that there is a Development Agreement already executed on 11th November, 2004, which is much prior to the approval of the terms of the Hon'ble Supreme Court of India, namely 23rd October, 2008. Thus, further inconsistency in the stand of the Appellants and prima facie appears to be if there was a representation made that the Government land is granted to Co-
operative Societies as per a policy of the Government to make available housing accommodation to specified groups of income of persons, but an exception was made in the present case. It was the Society which was required to pay the costs incurred by MHADA for the purpose of Page 85 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc development and protection of the land, along with interest thereon. It was the obligation of the Society to submit the list of members within one year for the approval of the Government and that the Society will not be able to construct flats with more than 700 square feet. Further, 20% members of the Society must be from backward class. Thus, the terms were executed later on, but in the backdrop of the above policy of the Government. Yet, prior to the execution of the terms, the Development Agreement came to be executed and with the background noted above. That background is the pendency of Suit No. 3429 of 1991. In the recital on internal pages 2 to 4 of the agreement dated 11th November, 2004, there is specific reference to the understanding between the State and the Apna Ghar Co-operative Housing Society Limited (proposed), by which, the land would be obtained by this proposed Society. The land would be acquired by the Chief Promoters of the Apna Ghar Co-operative Housing Society Limited (proposed) and to have the property developed for providing housing accommodation to the members of the Society or Societies. If they did not have the financial means to undertake the development of the property and were therefore desirous of handing over the development rights in relation thereto even before the property was handed over to the proposed Society, then, the execution of the Development Agreement and with the clauses and stipulations thereof, to our mind, should have been Page 86 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc brought to the notice of the Hon'ble Supreme Court. Prima facie, therefore, the Consent Terms were executed between the State and the MHADA and the Plaintiffs in Suit No. 3429 of 1991, which included Appellant No.1/original Plaintiff No. 1 in the present Suit as well, but the present Plaintiff No. 1 Ashok D. Kulkarni, prima facie, did not bring this Development Agreement dated 11 th November, 2004 to the notice of the State, MHADA and the Hon'ble Supreme Court. Thus, from the stage of execution of the Development Agreement till the approval of the Consent Terms by the Hon'ble Supreme Court, the parties were ad-
idem with regard to the execution of the Development Agreement. Even later on one does not find that any dispute raised with regard to the execution of the Development Agreement nor the intent of Defendant No. 4 was questioned prima facie by the Appellants before us. All of them proceeded on the footing that a public property or Government land, though allotted to a proposed Society, can be handed over for development and construction of buildings thereon to a Builder and Developer. Further, the terms of allotment do not prohibit involvement of such a Builder and Developer in the development and construction work or project. In such circumstances, it would be very difficult to accept the argument of Mr. Samdani that right from inception there was an intent not to act upon this Development Agreement or that it is full of false assurances right from inception. Prima facie, we find it difficult Page 87 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc to reconcile the stand of the Appellants at the time of execution of the Development Agreement and even thereafter with the allegations now set out in the Plaint in the present Suit.
67) We find there is absolutely no correspondence with regard to the steps to be taken in furtherance of the Development Agreement.
The Plaint in the present Suit does not recite anything except alleging that after the order of the Hon'ble Supreme Court dated 23 rd October, 2008, the original Appellants before us were confronted with various conflicting claims by the said Oshiwara Land Development Company and untenable demands by Defendant No. 4 i.e. Samarth Development Corporation. Plaintiff No. 1 was also impleaded as a party in Suit No.1096 of 2009 in respect of the said property. He refers to a interim order passed on 25th August, 2009 in that Suit No. 1096 of 2009.
However, the dates and events as set out in the Plaint do not disclose that any steps were taken prima facie for registration of the proposed Society, of which Plaintiff No. 1 claims to be the Chief Promoter. Rather reliance is placed upon a meeting, which was convened allegedly on 24th December, 2011 of the members of the proposed Society for considering the request of Tikekar to relieve himself from the affairs of the proposed Society and to consider the alleged intimation given by Plaintiff No. 1 Ashok D. Kulkarni that he is no longer interested in continuing as the Chief Promoter.
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68) This meeting of 24th December, 2011 has been assailed by the Plaintiffs on several grounds and particularly absence of notice and that it was the Builder and Developer (Defendant No. 4 Samarth Development Corporation) who was instrumental in causing the removal of Plaintiff No. 1 surreptitiously. Thus, all the steps taken allegedly to convene and hold the meeting so also the decisions taken thereat (the minutes of the meeting dated 24 th December, 2011) are challenged in this Suit. That, the Plaintiff No. 1 never informed anybody that he was not interested in continuing as a Chief Promoter of the Apna Ghar Co-operative Housing Society (proposed) and that he had no intimation of the meeting of the members convened on 24 th December, 2014 nor was he aware of any decisions taken thereat are the allegations which have been made extensively in the Plaint, but they will have to be proved by the Appellant No. 1 and other Plaintiffs.
Suffice it to note that from the above, prima facie, at least the execution of the Development Agreement dated 11 th November, 2004, without the alleged interpolations or fabrication therein, appears to have been admitted. Further, prima facie, there has been allegation that some false assurances have been given or that the agreement is full of mis-
representation. There is no allegation forthcoming of undue influence by Defendant No. 4 till the termination notice of 4 th June, 2013 and the institution of the present Suit. Hence, when Appellant No. 1/original Page 89 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc Plaintiff No. 1 acted in the manner noted by us hereinabove, at least till January, 2008, it would not be open for him prima facie to allege that the Development Agreement is vitiated by false assurances from inception or mis-representation or undue influence on the part of Defendant No. 4. This version of the Appellants therefore has been rightly disbelieved at the prima facie stage by the learned Single Judge.
69) As we have already held, other allegations noted above and with regard to the meeting and the removal of Plaintiff No. 1 would have to be established and proved at the trial. The Plaintiffs would definitely get an opportunity to do so at the hearing of the Suit. We have no doubt in our mind that if the original Plaintiffs bring in enough material to prove their allegations, as set out in the Plaint, then, even if steps have been taken in furtherance of the Development Agreement by Defendant No. 4 and that it is acted upon by these Defendants, still, this Court is not prevented from passing appropriate orders and in accordance with law. This Court can even then protect the entitlement of the Plaintiffs in the said property, provided the Plaintiffs establish and prove their case, as set out in the Plaint. This Court has ample powers while decreeing the Suit to pass suitable orders and directions so that the fruits or benefit of the project can be passed on to the Appellant No. 1 and other Plaintiffs. Either they can all become part of the project Page 90 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc and obtain the residential accommodation or their fate will be the same as that of others and depending upon the outcome of the Suit instituted by M/s. Byramjee Jeejeebhoy Pvt. Ltd., namely Suit No. 1096 of 2009.
Hence, rejection of the Motion at this prima facie stage does not mean that the Plaintiffs are non-suited or deprived of any opportunity to establish or prove their case.
70) Since the allegations in the Plaint will have to be considered to determine whether a prima facie case has been made out and by the Plaintiffs that this detailed reference became necessary. We do not think that in acting upon the Development Agreement executed on 11th November, 2004 till the Resolution dated 24 th December, 2011, the steps taken during this period including payments of sums to MHADA can be lost sight of.
71) In that regard, Mr. Chidambaram and Mr. Chagla are right in pointing out that the affidavits denote these payments. They are right in relying on the preliminary agreement by the Society and which is executed in favour of MHADA. They are also right in placing reliance on the registration of Defendant No. 5. Prima facie, these events have taken place. Their legality and validity is in issue but so long as they stand, they cannot be brushed aside or ignored. The payments have been made from 2004-2005 till 22nd June, 2010. These payments have Page 91 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc been quite substantial. In such circumstances, the learned Judge was right in his prima facie conclusion that the Plaintiffs have allowed the Defendant No. 4 to act upon this Development Agreement and to make payments to MHADA/State. Prima facie, long as these payments were helpful and beneficial to the Appellants before us, they did not have any complaint. The complaints started only when no steps were taken allegedly by Plaintiffs and therefore an attempt was made to convene a meeting of the members of the proposed Society.
72) Mr. Chidambaram is therefore right in urging that Plaintiff No. 1 allowed all this to take place. He had no quarrel or dispute with Defendant No. 4 till December, 2011.
73) Once the allegations with regard to the meeting dated 24 th December, 2011 are noted and the obligation in law on the Plaintiffs to prove the same, then, until they are so proved and established, it would not be proper to assume that they are correct. True it is that having obtained a prime land or property in the Mumbai Suburbs, naturally Defendant No. 4 moved in and took charge. Defendant No. 4 and its partners took charge because property prices in Mumbai and the Suburbs, that too in a posh locality like Versova, are increasing day by day. To take advantage of this trend that Defendant No. 4 moved swiftly and may have persuaded those interested to join and become a Page 92 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc part of the project. Prima facie, it is only when the Defendant No. 4 took charge of the Society and brought in members and registered Defendant No. 5 Society that the Appellants seem to have realised that they would have to share the benefits of the project with several persons and enrolled as members by Defendant No. 4. It is, prima facie, therefore the reason for the allegation in the Plaint that the original members, who came together to form the Society informed Plaintiff No. 1 that they would like to nominate others in their place. Some of these members were no longer part of the Society or may have left this world.
However, in the absence of any details of how the changes in the proposed Society of Plaintiffs came about, the learned Judge has rightly faulted Appellant No. 1 at this prima facie stage for his conduct and in not complaining till a certain stage. However, we are not in agreement with Mr. Chidambaram and Mr. Chagla that at this prima facie stage the learned Judge was justified in terming the conduct of Appellant No. 1 and other Plaintiffs, as malafide. That this litigation is sponsored or that it is brought out by somebody else interested in the project are far reaching conclusions and virtually knock out the Plaintiffs. That somebody or sponsorer is termed as a Builder/Devleoper. Its name has no where been placed on record by the contesting Defendants.
Therefore, at this stage it cannot be concluded that the Plaintiffs are a front of a rival Builder and are acting at his behalf. These conclusions Page 93 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc could have been avoided at this prima facie stage. When all that was required to find out is as to whether the allegations in the Plaint and the materials produced at the interlocutory stage are enough to grant an interim relief on the basis of the settled principles noted above, then, the learned Judge should have refrained from making observations and passing remarks or commenting on the conduct of the Appellants/original Plaintiffs and particularly in the terms found in the impugned order.
74) We are of the opinion that even the allegations, which are now made and by amending the Plaint, would have to be proved. The allegations with regard to the agreement being not stamped or insufficiently stamped and therefore cannot be received in evidence need not detain us. The disputed portion of the agreement is commencing from the recital after 2 pages of the agreement and from page 3. In clause (1) there appears to have been an addition of certain words and at page 3 of the agreement 7700 square feet (built up) area to be given free of cost by the party of the second part, namely Samarth Development Corporation to Apna Ghar Co-operative Housing Society Limited (proposed) are prima facie inserted. This flies in the face of the Consent Terms in Suit No. 3429 of 1991 and particularly Exhibit 'B' thereto and the order of the Hon'ble Supreme Court. Thus, a tenement Page 94 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc of 700 square feet was to be constructed for the purpose of this Society and how this figure of 7700 square feet has been inserted and the change is brought about, in what circumstances, would have to be established by the parties at the trial. To that extent, the burden will have to be also on the contesting Defendants prima facie. However, we have perused the disputed portions of the Development Agreement dated 11th November, 2004. What has been termed as interpolations and whether those have been signed and counter signed or initials appearing at the foot of the pages are that of the Plaintiffs would have to be proved only at the trial and by leading evidence. Thus, the allegations of interpolation, forgery and fraud would have to be proved.
Whether the allegations as set out in the Plaint are sufficient or there are no particulars of this forgery and fraud in the pleadings are factors, which must be determined only at the trial. Suffice it to note that the allegations having been made much after the execution of the Development Agreement and in relation to some of the clauses and pages thereof. The learned Judge was right in holding that there is no prima facie case in favour of the Appellants/original Plaintiffs. The Court cannot presume these allegations and made after amendment to the Plaint as true and correct. Even with regard to the relief that can be granted it must await until the Plaintiffs avail of the opportunity to establish and prove their case. We are of the opinion that the Plaintiffs Page 95 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc themselves have started a parallel proceeding. They have made allegations of fraud and forgery not only in relation to the Development Agreement against original Defendant No. 4 but Defendant No. 5 as well. So also, they have challenged the registration of Defendant No. 5 Society. These proceedings may have culminated in an order against the Plaintiffs, but they challenged the same right upto this Court. Being unsuccessful in this Court, they have carried the matter to the Hon'ble Supreme Court. The Hon'ble Supreme Court directed status quo to be maintained with regard to possession of the plot. Therefore, it is not as if any immediate prejudice would be caused by not protecting the alleged claim of the Plaintiffs in the Suit. Suffice it to note that interlocutory orders do not attain finality as is contemplated in relation to final orders and Decrees. The provisions and particularly Order XXXIX Rule 4 of the Civil Procedure Code, 1908 enable the parties to seek variation or modification of interlocutory orders, if they satisfy the Court that there are change in the circumstances. Then, the Court can exercise its powers and the discretion as provided in law. In appropriate cases, the Court can pass fresh interim orders as well. Therefor, it is not as if no interim order being presently granted that the Plaintiffs would suffer. They have an opportunity till the Suit is pending, to invoke the jurisdiction as above. Clarifying that whenever any such attempt is made, the Court will consider the application/s in that behalf on its own Page 96 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc merits and in accordance with law we say nothing further. We also clarify that no equities are created in favour of the Defendants by refusal to grant interim reliefs. All steps, actions and measures including payments made pursuant to the Development Agreement, the registration of the Co-operative Society will have to abide by the final orders of the Hon'ble Supreme Court in the pending proceedings and equally in this Suit.
75) Having perused the lengthy order of the learned Single Judge and finding that the learned Judge was right in refusing the interim reliefs on the grounds noted above, we are of the view that the Appeal can succeed only in part. We do not wish to say anything with regard to the pleas raised by Mr. Chidambaram and Mr. Chagla about delay and laches. Suffice it to note that though the Development Agreement was executed on 11th November, 2004, there was no question of any rights crystallising till January, 2008, even after January, 2008, as we have held prima facie there was no quarrel and dispute till December, 2011. However, the Suit being based on several events including those taking place in December, 2011, we do not express any opinion as to whether the claim therein is barred by limitation.
Similarly, we do not endorse the views of the learned Single Judge and at the prima facie stage on the locus of Appellant No. 1 to maintain the Page 97 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc Suit. If the Appellant No. 1-original Plaintiff No. 1 is asserting that he has been erroneously and wrongfully removed as the Chief Promoter of the proposed Society and by the alleged Resolution of December, 2011, then, so long as he is unsuccessful in proving the allegations in the Plaint, it cannot be held that he has no locus. Prima facie there is substance in the contention of Mr. Samdani that insofar as the affairs of the proposed Society are concerned and prior to its registration under the Maharashtra Co-operative Societies Act, 1960, the relief against removal as Chief Promoter and exclusion from the affairs of the proposed Society can be claimed only in the Civil Suit. If the registration is held to be valid and legal, then, alone the issue of locus may arise. There as well, the outcome of the proceedings is unknown.
Hence, it would not be proper to express any opinion at this stage as to whether Plaintiff No. 1 has locus to maintain the Suit or not. That issue can always be decided at the hearing of the Suit. For, it touches the maintainability thereof.
76) We have found substance in the submission of the contesting Defendants with regard to Plaintiff No. 1's and other Plaintiffs' standing by and allowing the steps pursuant to the execution of the Development Agreement being taken and challenging them belatedly. Therefore, the denial of interim reliefs on that ground and by Page 98 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:41 ::: APPL.672.2014.Judgment.doc holding that no prima facie case is made out insofar as that aspect is concerned, would have to be maintained. It is accordingly maintained.
77) Mr. Samdani's reliance upon certain Judgments must be noted. In the Judgment of a Division Bench of the High Court of Gujarat in the case of Shri. Ramji Mandir Narsinhji and Ors. vs. Narsinh Nagar Co-operative Housing Society Ltd., Navsari and Ors. reported in AIR 1979 Gujarat 134, the principle laid down is that the contract between a non existent Co-operative Society on whose behalf someone purports to act is a nullity, it gives rise to no cause of action. This Judgment deals with a case where the agreement executed by the Plaintiff Society, which was a proposed Society, could be said to be conclusive and binding, enabling it to seek specific performance thereof.
Applying the relevant test and to the given facts and circumstances that the Division Bench concludes that a Co-operative Society becomes a legal person after it is registered and it is after its registration that it acquires the capacity to enter into contract. There is no provision in the Co-operative Societies Act, 1960, under which the Promoters of a Society can act on behalf of the Society before it has been registered and has come into existence. In the present case, this principle can apply only after the Plaintiffs are able to substantiate and prove their allegations regarding registration of Defendant No. 5. It is not necessary to invoke the tests and principles laid down at this stage.
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78) Similarly, the reliance placed on a Judgment of the Hon'ble Supreme Court affirming the view taken by the High Court of Gujarat in the case of Shri. Ramji Mandir Narsinhji and Ors. (supra) also does not render any assistance at this stage. Then reliance is placed by Mr.Samdani on a two Judge Bench Judgment of the Hon'ble Supreme Court in the case of Madhvi Amma Bhawani amma and Ors. vs. Kunjikutty Pillai Meenakshi Pillai and Ors. reported in (2000) 6 SCC
301. This Judgment also would have no application at this stage. We are not deciding the question as to whether any incidental finding on issues not raised would amount to res-judicata. That is essentially to buttress the argument of Mr. Samdani that the Suit in the present case does not raise the same questions and matters which are involved in the proceedings challenging the registration of Defendant No. 5 Society. We have proceeded on the footing that the Appellants could have raised all the contentions irrespective of any overlapping pleas and raised in the Writ Petition. For, the Suit claims broad and wide reliefs and is not restricted to merely challenging the registration of the Society.
Therefore, we have proceeded on this very principle.
79) Then, reliance is placed upon a Judgment on meeting of Board of Directors, convened without proper notice to the Directors [Kamalkumar Dutta and Anr. vs. Ruby General Hospital Ltd. and Ors.
Page 100 of 109J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:42 ::: APPL.672.2014.Judgment.doc (2006) 7 SCC 613]. We are of the opinion that we have disallowed interim reliefs to the Appellants and maintained the order of the learned Single Judge upon a prima facie conclusion that the Appellants have not disputed execution of the Development Agreement dated 11 th November, 2004, they have allowed at least the alleged non-
interpolated parts of the same to be acted upon and further, the Appellants have yet to successfully demolish the registration of Defendant No. 5 Society. We have also not held in favour of the Appellants and at this stage on the preliminary agreement. Suffice it to note that the steps having been taken in furtherance of the 2004 agreement and substantial payments made to MHADA that we did not grant any interim relief. The prima facie satisfaction arrived by us is also based on the Appellants, particularly Plaintiff No. 1 not questioning such of the clauses of the Development Agreement, in which there are no interpolations but a reading of which discloses that a Developer is invited and involved actively. It has been conferred some rights and those rights created in its favour have been extensively noted by us.
Hence, this Judgment is of no assistance at this stage. Besides this, all allegations have yet to be proved.
80) Similar is the position with regard to the Judgment in the case of (Firm) Radha Kishan Jaikishan and Ors. vs. Municipal Page 101 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:42 ::: APPL.672.2014.Judgment.doc Committee, Khandwa reported in AIR 1934 Privy Council 62. For the same reasons, we need not refer to The Law of Unincorporated Associations and Similar Relations by Sydney R. Wrightington of the Boston Bar, relied upon by Mr. Samdani. In the view we have taken, it is not necessary to the settled tests enabling this Court to interfere with an interlocutory order in its appellate jurisdiction. We have applied these very tests.
81) Now, coming to the final order, there, the learned Single Judge has expressly commented on the manner in which the litigation has been initiated and prosecuted. At page 65 of the order under the headings "Conclusion, Order and Costs", the learned Single Judge held as under:-
"88. There is no manner of doubt in my mind that the Plaintiffs cannot possibly be said to have made out any sort of prima facie case. In this assessment, I have not had any regard at all to the previous ad-interim order, or the order of another learned single Judge of this Court dismissing Kulkarni's Writ Petition. The facts and submissions as I have set them out alone lead ineluctably to this conclusion. Given the expenditure made by SDC and the formation of the 5 th Defendant Society, and, too, the fact that among the Defendants are those who appear, prima facie, to be the original promoter members of the Society, the balance of convenience cannot possibly be said to be with the Plaintiffs. Indeed, it is against them. As to irretrievable prejudice or injury being caused to the Plaintiffs, there is none. Not one of Kulkarni's fellow claimants is shown even prima facie to be promoter members of the Society. They have, between them, paid not a farthing toward the allotment of the land or its attendant costs. For four years, between 2008 and 2012, they sat indolent and idle. None of the tests for the grant of interlocutory orders can be said to be satisfied. This is on the assumption that the Plaintiffs are entitled to final reliefs, and that the interim reliefs they seek are a step in aid of those. As I have noted, there is prima facie material to indicate that the Plaintiffs' attempt is to bypass a statutory prohibition and to achieve in a circuitous manner that which they failed to do directly. Reliefs must be denied to the Plaintiffs.Page 102 of 109
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89. There remains the issue of costs. As I have noted, everything points to this being a sponsored litigation, with Kulkarni having lent his name to some other entity. On his account alone, huge amounts have had to be spent in defending this and associated litigations. The present litigation is one I have found to be without the faintest glimmer of merit. It is precisely the kind of litigation - speculative, lacking in bona fides, sponsored, an abuse of the process of law and of the Court, and perhaps even a fraud on the Court -- that our Supreme Court has repeatedly decried and deprecated, even said should be visited with exemplary and penal costs. These should, in my view, be paid to SDC, the 4th Defendant, and the Apna Ghar Co-operative Housing Society Ltd, the 5th Defendant, the two parties most affected. I quantify these costs at Rs.20 lakhs payable to each of these Defendants. Though it may seem high, it is undoubtedly an infinitesimal fraction of the costs actually incurred in opposing this Notice of Motion: SDC's statement of costs and expenses includes an amount of about Rs.3 crores on litigation alone. It is true that SDC, too, is a developer, but it is one with a history of contractual rights that prima facie it appears to have discharged. The costs that I have ordered are little more than a drop in the ocean of the litigation costs that Kulkarni and his fellow claimants have foisted on the contesting Defendants.
90. The Notice of Motion is dismissed with costs as indicated."
82) To our mind, having made these observations, but qualifying them on occasions by the word "prima facie" is not enough to justify making them and to draw the conclusion that the litigation is sponsored or commenced on behalf of somebody else. That somebody is yet to be identified. The sponsorer is not known and not named. The litigation has several shades and to our mind, important of which is the property or prime land. That till date is not handed over. We have already not approved that part of the learned Single Judge's order, where he concludes that the conduct of the Plaintiffs is malafide. We have also held that for interim or prima facie satisfaction it was not necessary for the learned Judge to have made any comments or observations with regard to the nature of the litigation and it being Page 103 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:42 ::: APPL.672.2014.Judgment.doc totally frivolous, speculative, false and driven by a outsider. More so in the absence of clinching evidence. This is too critical and adverse a comment and to be recorded on the basis of the material placed at the interlocutory stage. The allegations have yet to be proved by the parties. As held by the Hon'ble Supreme Court, one cannot hold a mini trial at an interlocutory stage. In the circumstances, while clarifying that none of these observations and conclusions nor the tentative and prima facie findings shall influence the outcome of the Suit or the trial thereof, we are of the opinion that there was also no justification for imposing such huge costs. The Hon'ble Supreme Court, in the case of Satyapal Singh vs. Union of India and Anr. reported in AIR 2010 SC 1138 held as under:-
".....
5. Exemplary costs are levied where a claim is found to be false or vexatious or where a party is found to be guilty of mis-representation, fraud or suppression of facts. In the absence of any such finding, it will be improper to punish a litigant with exemplary costs. When the appellate court did not chose to levy any costs while dismissing the appeal filed by the petitioner after nine years of pendency with interim stay, the High Court, while dismissing the writ petition at preliminary hearing, ought not to have levied exemplary costs with reference to the period of pendency before the Appellate Court. We do not find any ground on which the exemplary costs of Rs.50,000/- could be sustained. Levy of exemplary costs on ordinary litigants, as punishment for merely for approaching courts and securing an interim order, when there was no fraud, misrepresentation or suppression is unwarranted. In fact, it will be bad precedent. ....."
83) We are of the opinion that going by these principles and assuming costs could be imposed at an interlocutory stage, still, they can be imposed provided the claim is found to be false or vexatious or when the parties are found guilty of mis-representation or suppression of facts.
Page 104 of 109J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:42 ::: APPL.672.2014.Judgment.doc Even if the prima facie allegations are not established and proved, it will be difficult to conclude that the claim as raised is utterly false or totally vexatious or frivolous. The Suit itself cannot be thrown out at an interlocutory stage in all cases. Therefore, asking a party to pay Rs.20 lacs as costs for having approached the Court with a claim, which could not be prima facie established and proved is too harsh. That being too harsh, excessive and not justifiable, we set aside that part of the order and direction of the learned Single Judge. Thus, while maintaining his conclusions with regard to the absence of a prima facie case, balance of convenience and on the original Plaintiffs suffering no loss or injury, we proceed to allow this Appeal in part. It is allowed accordingly. There will be no order as to costs.
84) Before parting, we bring to the notice of all concerned something, which is very serious and yet fundamental to this case. The land or property which is claimed by the Appellants/original Plaintiffs and contesting Defendant Nos. 4 and 5 to be their property and exclusively is a public property. It is a land or property which could not have been obtained privately, because its allotment and grant is subject to the powers conferred in the State vide several laws, including the Maharashtra Land Revenue Code, 1966. There are certain rules and regulations and particularly the Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971, which would enable allotment of Government lands Page 105 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:42 ::: APPL.672.2014.Judgment.doc and public properties on certain terms and conditions. Paramount in all this is public interest and ordinarily no public property is allotted except by inviting bids and offers from the public. The intent is that if a public property or land belonging to the Government is to be disposed of, it should fetch the price prevailing in the market. Grant of Government land or public property to private parties without this process is an exception and can never be the Rule. In the present case, it would be vital to note that Oshiwara Land Development Company filed together with Plaintiff No. 1 and some others a Suit in this Court in the year 1981. That was not decreed till the order of the Hon'ble Supreme Court in 2008. The Consent Decree of the Hon'ble Supreme Court is apparent and clear. We have reproduced the important clauses, which would enable the parties to derive benefits of allotment subject to the terms and conditions therein.
That Decree passed in the year 2008 and in relation to Government/public land and public property has yet not been executed by the Decree Holder.
Its enforcement is yet to commence and in the meanwhile, there is a litigation in relation to this land, namely Suit No. 1096 of 2009 by M/s.
Byramjee Jeejeebhoy Pvt. Ltd., who had claimed this land as their own.
That Suit is also pending. If that Suit is also pending so also no steps having been taken by the parties/Decree Holders in Suit No. 3429 of 1991 for enforcement and execution of the Decree in their favour till date, then, we are surprised as to how the Government and a public body, namely MHADA have remained silent, stood by and not taken the requisite steps Page 106 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:42 ::: APPL.672.2014.Judgment.doc expected of them in law. If public interest and public good overrides everything and conflicting private interests should not result in the State being deprived of these properties, then, the least that was expected from the State and MHADA was to file an affidavit either before the Trial Court or before us and clarify their stand. There is substance in the complaint of Mr. Samdani, learned Senior Counsel that the State and MHADA allowed a prime land in Mumbai to be locked in litigation and that too at the behest of Builders and Developers. The allegations of the beneficiaries against each range from misapplication or usurping of the property to fraud and forgers. Civil and criminal proceedings are pending. Yet, no stand is taken by the MHADA or the State. If such is the response and reaction from them, then we shudder to think as to how it can be termed as a welfare state and expected to protect welfare of its citizens. Even now, the time has not gone, inasmuch as the Hon'ble Supreme Court has directed that status quo be maintained in relation to this prime plot of land in Mumbai Suburban District. Therefore, it is still open for the State and MHADA to take steps and if necessary to put an end to the allotment, if any, or to make appropriate applications either before the highest Court in the Country or while resisting the execution and enforcement of the Decree.
We do not think that the State is prevented from doing so, even if the Builders and Developers have invested some amount in the project or have taken preliminary steps in pursuance of a Development Agreement. That being an private arrangement, nothing can prevent the State in law from Page 107 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:42 ::: APPL.672.2014.Judgment.doc protecting the public interest and entitlement. We are emboldened to say so because, even now the proceedings are pending before the Hon'ble Supreme Court in the shape of a challenge to an order of the learned Single Judge passed in a Writ Petition being Writ Petition No. 4882 of 2013, decided on 5th June, 2013. The Hon'ble Supreme Court has, in the pending challenge to this order, directed as under:-
"Post it after four weeks for final disposal on non-miscellaneous day. In the meantime, issue notice indicating as to why the matter be not heard and disposed of finally.
Status-quo shall remain effective until further order on the land in question which is allotted to Apna Ghar Co-operative Housing Society through the petitioner - Chief Promoter (Proposed)."
85) It has been fairly stated by all parties that this order has been continuing till date. This order has been continuing and the above proceedings are pending in the Hon'ble Supreme Court. If that is how the interim order of the Hon'ble Supreme Court is continued, then, all the more the State is not prohibited from stepping in. Beyond this, we do not observe anything nor say anything more.
86) Let a copy of this order be placed before the Principal Secretary, Revenue and Forest Department, Government of Maharashtra and the Chief Executive Officer of the Maharashtra Housing and Area Development Authority (MHADA). The Registry to act accordingly and forward it.
87) After this Judgment was pronounced, Mr. Samdani - Senior Counsel appearing for the Appellants submits that on 11 th November, 2014 there is an ad-interim order passed by this Division Bench, directing Page 108 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:42 ::: APPL.672.2014.Judgment.doc MHADA not to handover possession of the suit property. That order may be continued for a period of 8 weeks to enable the Appellants to peruse this Judgment and consider challenging it in the higher Court.
88) This request is vehemently opposed by Mr. Doctor - Senior Counsel appearing for original Defendant No. 5 Society and Mr. Madon -
Senior Counsel appearing for original Defendant No. 4 Developer. They submit that having lost at both stages, before the Single Judge and Division Bench, such an order would seriously prejudice both parties and equally delay the development and construction work.
89) Having noted the request made by Mr. Samdani and opposition of Mr. Doctor and Mr. Madon, we are of the opinion that interest of justice would be served if we continue the order dated 11 th November, 2014 for a period of 4 weeks from today. It shall not be continued thereafter. No application for extension of the same would be entertained.
(A.A.SAYED, J.) (S.C.DHARMADHIKARI, J.) Page 109 of 109 J.V.Salunke,PA ::: Downloaded on - 23/02/2015 23:58:42 :::