Indian Kanoon - Search engine for Indian Law

8.15 That the IOD was obtained prematurely and without the development agreement being executed, and while applying for IOD, the Plaintiff did not disclose to MCGM that there was a developer appointed by the Society i.e. Defendant No.7 but instead obtained an IOD in the name of the Society showing the redevelopment as a self development. 8.16 That the Defendant No. 7 has wrongly contended that it has incurred an expense of Rs. 8 crores on the project. 8.17 That Defendant No. 7 was not appointed by following the tender process; no certification of registration of Defendant No. 7 Partnership Firm has been provided; Defendant No. 7 has zero experience in redevelopment.

As regards the submission of Defendant Nos. 1 to 3 that the IOD ought to have been applied for by the Society only after the execution of the development agreement, as set out hereinabove, on 15 th May 2015, pursuant to the said bifurcation Order dated 28 th January, 2014 issued by the Deputy Registrar Cooperative Societies, Konkan Bhavan, the Plaintiff and the adjoining Delite CHS applied to the Collector, Mumbai Suburban District (MSD) for the sub-division of the plot of the erstwhile Delite Society (which was the parent society constituting the Plaintiff and Delite CHS) for the Plaintiff and the Delite CHS, which were by then two separate Societies. While considering the said Application for sub-division, the Collector, Mumbai Suburban District (MSD) directed by his letter dated 6 th June 2014 to the said Societies to obtain inter alia the Layout Plan sanctioned by the MCGM. The Members of the Plaintiff held several meetings between October, 2014 and April, 2015 to discuss the draft development agreement forwarded by Defendant No.7. In the course of these meetings, many Members of the Plaintiff, including Defendants Nos. 1 to 3, objected to the execution of the Development Agreement till the Plaintiff's name was brought on the sub-divided Property Register Card. In order to obtain a separate Property Register Card in the name of the Plaintiff, it was absolutely essential to first obtain an Order for Sub-division of the plots of the Plaintiff and the adjacent Delite CHS from the Collector, MSD. Since the Plaintiff was required to obtain , inter alia, the sanctioned Layout Plan for sub-division from the MCGM, the Plaintiff approached MCGM for their approval of the Layout Plan for sub- division. At this stage, MCGM noticed an FSI imbalance of 377 sq. mts. that would arise on account of the proposed sub-division and informed the Plaintiff that the same would be required to be offset by loading of additional equivalent TDR on the plot. Defendant No. 7 purchased the required TDR and loaded the same on the said plot. Thereupon the Project Management Consultant (PMC) of the Plaintiff advised the Plaintiff, that the Plaintiff should apply for an IOD for the proposed building in order to ensure the speedy processing of the Plaintiff's application for the approval of the layout plan for sub-division by the MCGM, which the Plaintiff did. Heeding this advice of the PMC, on 19th July 2015, the Plaintiff convened its Special General Body Meeting seeking approval for the submission of building plans before the Municipal Corporation of Greater Mumbai for the redevelopment of the suit building. At this meeting, various important resolutions were passed in order to speed up the Layout Plan processing. These resolutions included the decision to apply for an IOD in the Plaintiff's name and the decision to approve the proposed building plans, which Resolutions were passed by an overwhelming majority of the Members of the Plaintiff Society. Defendant Nos. 1 to 3 too attended the said Meeting but did not raise any specific objection regarding the process for application of IOD. They merely recorded a vague remark in the Attendance Sheet as "I protest". After applying for the IOD, in pursuance of the said Resolution dated 19th July, 2015 on the PMC's advice, the Layout Plan for sub-division was approved by the MCGM on 23rd December 2015. Within 9 days of the said approval, i.e. on 2nd January, 2016, the Office of Collector, Mumbai Suburban District granted the Plaintiff's application for sub-division, which was pending prior to June 2014. The IOD permission was received on 4 th January 2016. The separate PR Card for the Plaintiff was received from the said Collector, MSD on 11th April 2016. This clearly vindicates the advice of the said PMC. It will not be out of place to mention here that the permission for redevelopment is always applied for in the name of the owner of the property, in this case, the Plaintiff. Even if Defendant No. 7 had applied for sanction of plans, it would have done so in the name of the Plaintiff, under a Power of Attorney. There is no necessity or requirement to apply for an IOD only after entering into a Development Agreement. Again, neither the Plaintiff nor the Defendant No. 7 had derived any additional benefit by applying for the IOD prior to entering into the Development Agreement. The application for IOD in the Plaintiff's name prior to execution of the Development Agreement has not resulted in any sort of violation of legal norms nor any injury or prejudice to the Plaintiff or its Members. The decision necessitating the application for IOD for the proposed buildings prior to the execution of the Development Agreement was taken by an overwhelming majority of the Plaintiff's Members by the Resolution passed in their Special General Body Meeting dated 19 th July 2015. It is therefore also established that there is no misrepresentation on the part of the Plaintiff or Defendant No. 7 as alleged by Defendant Nos. 1 to 3. With regard to the submission of Defendant Nos. 1 to 4, that the Members ought to have been asked to vacate their respective flats after the execution of the development agreement, as correctly explained by the Plaintiff Society, the draft development agreement was already finalized and approved by the Plaintiff in the Special General Body Meeting of the Plaintiff's Members held on 24th January 2016. Therefore, in the Special General Body Meeting of the Plaintiff's Members held on 6th March 2016, it was resolved to seek and obtain vacant possession of the flats from all its Members by 31st March 2016 and to initiate legal proceedings in case of non-co-operative Members, to speed up the redevelopment process. Therefore, in my view, the decisions taken by the Plaintiff Society, which according to Defendant Nos. 1 to 4, constitutes deviations from the guidelines, have been taken in the interest of the progress of the redevelopment project, with full support of an overwhelming majority of the Plaintiff's Members, as expressly permitted in the said Judgment in the case of Harsha CHS Ltd v. Kishandas S Rajpal & ors (supra). None of the resolutions passed by an overwhelming majority of the Plaintiff's Members have till date been challenged by any of the four non-co-operative Members. Therefore, in my view, Defendants Nos. 1 to 3 and/or 4, being a minuscule minority, cannot stall the redevelopment process citing these guidelines, as held in the said Judgement of Harsha CHS . 26.2. Defendant Nos. 1 to 3 have submitted that the suit building is not in dilapidated condition and have relied on 27 photographs purportedly taken on 10th June 2016 to support their contention. The Plaintiff Society has submitted that the photographs taken by Defendant Nos. 1 to 3 are selective and do not represent the true and complete picture qua the stability of the building and ought not to be relied upon. In my view, the submission made by the Plaintiff that the suit building is indeed in a dilapidated condition, and that only in view of certain photographs of the building produced by Defendant Nos. 1 to 3, it cannot be held otherwise, is established from the following:

26.7 The Plaintiff Society has submitted that there is no violation of the IOD conditions as alleged since 62 out of 66 Members (all except Defendants Nos. 1 to 4 herein) have already agreed to vacate their respective premises and given their consent to the Plaintiff in this regard.

The Plaintiff Society has further submitted that since the proposal for redevelopment has been submitted by the Plaintiff and the IOD has been issued in the name of the Plaintiff, there is no need to execute Consent Letters or Individual Agreements as envisaged in condition nos. 55 and 56 of the IOD between the said Members and Defendant Nos. 7 at this stage for the purposes of demolition. It is submitted that the Plaintiff's advocate has already forwarded individual permanent alternate accommodation agreement to Defendant Nos. 1 to 4. In any event, the Plaintiff Society and the developer has now given the following undertakings which are accepted by the Court:

The Plaintiff refuted the contentions and stated that in the said Meeting held on 19th July 2015, the Plaintiff's Advocate informed the Members that mere loading of the TDR would not be sufficient for obtaining sub-division of the Plaintiff's plot. He also informed them that the area of the existing buildings of the Plaintiff and the plot area can also be balanced after demolishing the existing building. The Plaintiff's Advocate did not state that 'demolition of the existing building is essential for obtaining sub- division of the plot', as suggested by Defendants Nos. 1 to 3. The Plaintiff's Advocate also informed the Members that the Plaintiff's Architect (Mr. Kiran Rokadiya) and the Defendant No. 7 have submitted the proposal for sanctioning of building plans for the new proposed building to restart the redevelopment process that had been stalled by the rejection of the proposal for sub-division of the Plaintiff's plot. (Minutes of the Meeting dated 19/07/2015 annexed and marked as Annexure 'An' to the Compilation II to the Written Arguments of Plaintiff dated 11th July, 2016 at page nos. 244 - 254 at page 249, line 6). The Plaintiff's Architect advised the Plaintiff that the issue of FSI imbalance can be best addressed by getting the layout and IOD (Building Plans) sanctioned and the Plaintiff acted on this advice in good faith. There was absolutely no dishonest motive behind the Plaintiff's action, as alleged, or at all. The layout was approved by 23 rd December 2015 and within 9 days, i.e. by 2nd January, 2016, the sub-division order was received from the Office of the Collector (MSD) and the IOD was received on 4th January 2016. This is perfectly in line with the advice of the PMC.It is pertinent to note that neither the Plaintiff nor the Defendant No. 7 had derived any additional benefit by applying for the IOD prior to entering into the Development Agreement. The application for IOD in the Plaintiff's name prior to execution of the Development Agreement has not resulted in any sort of violation of legal norms nor any injury or prejudice to the Plaintiff Society and/or its members. Therefore, the above allegations made by the non-co-operative members are without any substance and are rejected.