Bombay High Court
Balkrishna Alias Balubhai Kanjibhai ... vs Dev Chhaya Co-Op. Housing Society Ltd. ... on 31 August, 1999
Equivalent citations: (1999)101BOMLR697
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. Mr. M.K. Mudnaney for petitioners Ms. V.B. Thadani with Ms Meena Ruparel for Respondent Nos. 3 and 4.
2. The only contention raised by Mr. Mudnaney learned Counsel for petitioners challenging the order passed by the Maharashtra State Cooperative Appellate Court on 20th February, 1996 is that the Appeal Court erred in directing that if joint occupation was not possible within a period of 3 months from the date of the order, both the properties be sold and the sale proceeds divided between them equally. According to him, such direction is beyond the lis between the parties and the jurisdiction of Cooperative Court.
3. The properties in question are flat No. 26, situate in Dev Chhaya Co-operative Housing Society, Tardeo Road and a garage in that society. In respect of the said properties two Disputes came to be filed. Dispute No. 617 of 1989 was filed by the present petitioners and the other Dispute No. 151 of 1990 was filed by Respondent Nos. 3 and 4 herein. Both the disputes were filed by the respective parties under Section 91 of the Maharashtra Cooperative Societies Act, 1960 and the 5th Co-operative Court, Bombay by the common order dated 19.11.93 disposed of both the disputes. In dispute No. 617 of 1989 filed by 1st petitioner Balkrishna alias Balubhai Kanjibhai Mistry, the 5th Co-operative Court held that disputant is not entitled to exercise of the rights of membership on the death of his elder brother Jamnadas Kanji Mistry and that the society to replace the name of deceased Jamnadas Kanji Mistry by Respondent Nos. 3 and 4 herein (opponent Nos. 3 and 4 therein) on the first part in the shares certificate and the name of the disputant Balkrishna Kanjibhai Mistry (petitioner herein) on the second part of the shares certificate. It was also directed that the Respondent Nos. 3 and 4 herein and the disputant Balkrishna shall be entitled to use the flat equally and flat should be divided equally, one part thereof should be used by disputant Balkrishna and second part to be used and remain in possession of Respondent Nos. 3 and 4 herein. In Dispute No. 151 of 1990 which was filed by respondent Nos. 3 and 4 herein in addition to the directions given in Dispute No 617 of 1989 the 5th Cooperative court ordered that the present Respondent Nos. 3 and 4 (disputant Nos. 1 and 2 in dispute no 151/90) shall be entitled exclusively to garage. Both the parties were not satisfied with the order passed by the 5th Co-operative Court on 19.11.93 and preferred four appeals. Appeal Nos. 597 of 1993 and 598 of 1993 were at the instance of the present petitioners and Appeal Nos. 5 of 1994 and 6 of 1994 were at the instance of Respondent Nos. 3 and 4 herein. The Appeal Court by the common order dated 20th February, 1996 declared that Mrs. Savitaben Mistry, Respondent No. 3. herein and Balkrishna Mistry, Petitioner No. 1 herein have equal shares in the flat and garage in dispute and both the parties are entitled to use the flat and garage jointly. The Appeal Court directed, however, that if joint occupation was not possible within a period of three months from the date of the order, both the properties be sold and the sale proceeds divided between them equally. Mr. Mudnaney the learned Counsel for the petitioners did not challenge the main part of the order passed by the Co-operative Appellate Court that first petitioner herein and third Respondent herein have equal shares in the flat and garage in question and are entitled to use and enjoy both the properties jointly. His challenge is to the further direction given in the order that if joint occupation of the flat and the garage by both the parties was not possible, these properties be sold and sale proceeds be divided equally. Can such direction be said to be beyond the lis and jurisdiction of Co-operative Court. There is no dispute that the parties are not on amicable terms and the dispute between them has reached the proportion where it is not possible for them to stay together and use and enjoy the properties jointly. Once the Court holds that both parties have equal share in the disputed properties as has been held by Cooperative Appeal Court and such declaration is not under challenge and further when the Co-operative Court finds that it may not be possible for the parties to use and enjoy the property jointly, it is always open to such Co-operative Court to pass incidental and ancillary order in exercise of its power under Section 91 to make its order meaningful. While deciding the dispute under Section 91 the Co-operative Court or for that matter the Co-operative Appellate Court exercising its appellate powers can always give incidental directions or grant ancillary reliefs to the order that may be passed under Section 91. In the situation, where both the parties have half share each in the flat and garage and when both the parties are not in a position to occupy the flat and the garage jointly, only few options remain. The first option may be to have the flat and the garage divided equally and each of the parties permitted to occupy either of the portions of the flat and the garage after division if feasible and permitted by the society. The other option is to have the flat and garage sold and equal distribution of sale proceeds. Ms. Thadani, learned Counsel for Respondent Nos. 3 and 4 herein stated that an attempt for division of the flat in question was made and through Mr. Subhash M. Shah, Architects and Interior Designer, a plan of division of the flat in question was got prepared but the division of the flat was not acceptable to the society. Nobody is present on behalf of the society. Yet, I feel one further opportunity may be granted to the parties to move the society for division of flat as per report of Mr. Subhash M. Shah. For the purposes of identification the report of Mr. Subhash M. Shah is taken on record and marked as "x". If for any reason, the society is unable to grant permission for division of flat in question or that the necessary permission is not obtained from the Bombay Municipal Corporation, obviously the only option is to have the flat sold by way of auction with liberty to the parties to participate In the auction sale and distribution of sale proceeds amongst them equally.
4. Accordingly writ petition is disposed of by following order:-
i) The order passed by the Maharashtra State Co-operative Appellate Court on 20th February, 1996 is maintained subject to the following modifications:-
(a) The first petitioner and third Respondent shall within 15 days from today apply to Respondent No. 1 Dev Chhaya Co-operative Housing Society Ltd. for permission of sub-division of flat No. 26 as per report and the plan prepared by Subhash M Shah, the Architect Engineer and Interior Designer, marked "x" and also sub-division of garage. The society (Respondent No. 1 herein) shall consider and take decision on such application made by petitioner No. 1 and Respondent No. 3 herein within 15 days therefrom.
(b) If the society grants permission and any sanction No objection/permission from Bombay Municipal Corporation is required, such application shall be made by first petitioner and Respondent No. 3 immediately thereafter but in no case later than two weeks from the date of decision of the society granting permission of sub-division. Upon "such application being made by the first petitioner and third Respondent before the Bombay Municipal Corporation the Corporation or for that matter its Competent Authority shall take decision on such application within 15 days of receipt of the application.
(c) If the Bombay Municipal Corporation grants permission/no objection/sanction of sub-division of flat and garage, the first petitioner shall ensure that within one month therefrom the work of sub-division is completed. Upon completion of the sub-division of flat and garage, the first petitioner and Respondent No. 3 shall present themselves before the Secretary of Respondent No. 1 society who will draw lots and accordingly, the portion shall be allotted to, first petitioner and Respondent No. 3 respectively and would be put in possession thereof.
(d) The expenses of sub-division shall be borne equally by the first petitioner and third respondent. Similarly arrears of outgoings, maintenance charges, taxes etc. shall be borne equally by first petitioner and third respondent.
(e) It is clarified that if the society or Bombay Municipal Corporation proposes any changes in the proposed sub-division plan given by Subhash M. Shah, the parties shall act and carry out the sub-division work as per changes suggested accordingly. Needless to say that at the time of subdivision of flat and garage, it shall be ensured that the flat and garage are by and large divided equally.
(f) For any reason, the society or Bombay Municipal Corporation does not grant permission of sub-division of flat and garage, the flat and the garage shall be sold by auction. The first petitioner and the third Respondent shall be at liberty to participate in auction sale. If the auction is knocked down either in favour of petitioner No. 1 or the third Respondent, the successful party shall deposit 50% of the purchase price which shall be withdrawn by the other party. The successful party shall be put in possession of flat and garage exclusively. On the other hand, if any party other than the first petitioner and the third Respondent is successful bidder, such bidder shall deposit the entire purchase price which will be distributed equally between the first petitioner and the third respondent. The petitioners herein in that event shall hand over the vacant possession of the flat and garage to third party who is successful bidder.
5. Rule is disposed of in the aforesaid terms. No costs.
Certified copy expedited.
The parties may be provided ordinary copy of this order duly authenticated by Court Sherestedar on payment of usual copying charges and upon production thereof, the society and Bombay Municipal Corporation to act accordingly.