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Section 95A of the Act of 1976 was made applicable for getting the tenements vacated from members of societies who were in minority and opposed to redevelopment.

5. Since some portion of the land in occupation of the members of the Society was demolished and since the appellants were resisting redevelopment of the property and inspite of instituting proceedings in Civil Court and Co-operative Court had not obtained any interim order, the Society filed an application before the Executive Engineer of MHADA for taking action under section 95A of the Act of 1976. Show cause notices were issued to the appellants on 16 th May 2011.

The position as on the date of NOC should be seen as the section 95A is not retrospective. The learned counsel by relying on judgments of Apex Court in the cases of (I) Union of India and others vs Mohammad Ramzan Khan -1991 (1) SCC 588; (ii) Prakash Ratan Sinha Vs State of Bihar and others -2009 (14) SCC 690; Hindustan Petroleum Corporation Ltd vs Darius Shapur Chenai and others -2005 (7) SCC 627, contended that the Executive Engineer while deciding an application u/sec.95A of the Act of 1976, has a duty to act judicially and if he fails to do so this Court can set aside the said decision in its power of judicial review. The learned counsel also submitted several documents which were relied upon by the Executive Engineer in his order were not supplied to the appellants and thus there was a serious breach of principles of natural justice and consequently, the order of the Executive Engineer is void. A list of the documents which were not made available to the appellants is enumerated by the appellants in paragraph no.34 of their appeal memo. The learned counsel also urged that a tenement which was in the name of one Harminder Singh ought to have been considered while arriving at the figure of 70% as even though the occupant had expired, his estate had survived. It was also urged by the appellants that their case is not equivalent to a slum redevelopment scheme and reliance placed by the learned Single Judge on his own judgment in Shiv Krupa Builders and Ors vs. State of Maharashtra, 2011 (5) BCR 434 was misplaced. The learned counsel submitted that the appellants desired to develop their own property by themselves and not through any developer and by collusion and fraud on the part of the authorities, the appellants are being deprived of their fundamental rights.

26. The first point that is whether 70% members had given their written consent to the present redevelopment proposal as required u/sec.95A of the Act. The Executive Engineer considered this issue at length as it is one of the criteria that need to be considered u/sec.

95A of the Act. It is an admitted position that the Society had 32 members and out of the 32 members, one member has expired. 22 members have given their consent in writing. It is the contention of the appellants that 9 members were located on the land which was affected by Central Railway Expansion Project. These members according to the appellants, cannot be considered for the purpose of counting the 70 per cent requirement as they ceased to have any right. It was pointed out by the Society to the Executive Engineer that 8 out of 9 members, after signing the development agreement had shifted to the transit camp provided to them. One member out of the nine was a member who had opposed the redevelopment. The Executive Engineer and the learned Single Judge have both held that the said members whose structures were effected by Railways Expansion Programme cannot be considered to have ceased to be members of the Society. As long as the members of the Society continue to be on the register of membership of the Society either they will have to be removed from membership by action taken by the Society or by an order of the competent authority. The Maharashtra Co-operative Societies Act, lays down the procedure for removal of a member from the Society. Admittedly, no such action has been taken. In fact, the appellants even though approaching the Co-operative Court have failed to obtain any order in that regard. The members of the Co-operative Society will lose their membership only as per the provisions of the Maharashtra Co-operative Societies Act. Therefore, for all practical purposes while counting the 70% of members, u/sec.95A, said members will have to be counted. The Executive Engineer has thus correctly held that, since 22 members have accepted the redevelopment proposal, the requirement as regard section 95A of the Act, stands satisfied. No perversity can be found with the finding of the Executive Engineer and the Single Judge in this regard.

36. We may also note the arguments made on behalf of the respondents that once a challenge to the NOC was deleted from the petition filed before the learned Single Judge, there could not have been general omnibus inquiry into the legality of the scheme except to find out whether order u/sec.95A of the Act was validly passed. It appears that the challenge to the NOC was deleted from the prayers in the petition. If that be so, there is no challenge before the learned Single Judge in that regard. Once the NOC, IOD and all other requisite documents are in place and have not been set aside by any Court of law, the Executive Engineer u/sec.95A cannot assume jurisdiction to examine legality of these permissions. The entire thrust of the appellants arguments is that the Executive Engineer u/sec.95A of the Act should have either waited till the proceedings in Court of law were over, or the Executive Engineer must examine those issues on his own. The appellants having failed to obtain any interim relief in either of suit and or in the Cooperative Court cannot demand that an Executive Engineer or a Writ Court should grant them such indulgence. The conduct of the appellant indicates that the appellants are more interested in creating hurdles in the redevelopment than getting their rights adjudicated in the competent Court of law.