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4. On 6 March 2011 a development agreement was entered into between the co-operative society and the Plaintiff which was stamped and registered. The development agreement envisages that 26 members of the society have flats admeasuring 280 sq. ft., while 94 had flats admeasuring 220 sq. ft. One of the recitals in the development agreement states that due to the passage of time, the buildings of the society had become old and were in dilapidated condition, requiring heavy repair. Under the agreement the developer was called upon to redevelop the property on as is where is basis on the area of 5474 sq. mtrs. mentioned in the property register card. Under the agreement the developer was to be entitled to consume a basic FSI corresponding to 5474 sq. PNP 4/15 APPL390-3.10 mtrs. and a further TDR of 5474 sq. mtrs. amounting in all to 10,948 sq. mtrs. 1. The agreement envisaged that upon the developer receiving an IOD and purchasing and loading the TDR, the society and all its members would handover possession of their respective tenements subject to the payment by the developer of hardship compensation, displacement compensation and the furnishing of a bank guarantee2. Under the agreement3 every member of the society was to receive permanent alternate accommodation free of costs on ownership basis. Members whose tenements admeasure 220 sq. ft. would receive on ownership basis an area admeasuring 400 sq. ft. , while those with tenements of 280 sq. ft. were to receive alternate accommodation admeasuring 460 sq. ft. together with a minimum 15% of the existing carpet area as additional usable area constructed free of FSI. The developer and members of the society had to enter into individual tripartite agreements. The developer was granted permission to redevelop the property and to sell the surplus area remaining after the provision of permanent alternate accommodation to the members of the society, to third parties for residential purposes. The agreement envisaged the payment of hardship compensation of Rs.18.11 Crores and displacement compensation of Rs.15,000/- per month for the first twelve months, to be increased subsequently. Clause 24 of the agreement envisaged that within fifteen days of a written intimation by the developer, vacant and peaceful possession of the existing premises would be handed over to the developer. The developer was to issue such an intimation only after (a) the tripartite agreement; (b) loading of the entire TDR and ( c) issuance of a full IOD.

10. On 5 January 2013 the co-operative society issued letters of allotment of permanent alternate accommodation to its members in accordance with the fresh plans which had been submitted after the supplemental agreement. An IOD was received from the Municipal Corporation on 21 January 2013. By a letter dated 21 January 2013 the Plaintiff informed the co-operative society that it had received the IOD for revised plans for construction by the utilization of TDR to the extent of 1.5 FSI. On 3 May 2013 the Collector, Mumbai Suburban District passed an order confirming that the area of the suit plot is 4474 sq. mtrs.

(iii) At this stage, it is an admitted position that while the Municipal Corporation has issued an IOD, no commencement certificate has been received and even an IOD has been restricted to an FSI of 1.5;

(iv) In the absence of a commencement certificate, there was no justification for directing the members of the co-operative society to vacate their flats particularly having regard to the provisions of Section 45 of the Maharashtra Regional Town Planning Act 1966;

PNP 12/15 APPL390-3.10 aggrandise itself at the cost of the majority, the Court would ordinarily defer to the will of the majority of the members of the co-operative society. Nothing has been indicated to the Court to hold that the decision which was consciously taken was vitiated by fraud. As regards the point of time at which the members of the co-operative society are required to vacate their flats, it was unanimously envisaged in the development agreement that the members would vacate their existing tenements only upon the issuance of a full IOD. This was subsequently modified by clause 4 of the second supplemental agreement under which inter alia the members were to handover possession to the developer subject to the issuance of an IOD for 1.5 FSI. That condition has admittedly now been fulfilled since the Municipal Corporation has issued an IOD for an FSI of 1.5. The IOD issued by the Municipal Corporation envisages that the commencement certificate will be issued after the existing buildings have been demolished. That is the premise on which the Municipal Corporation has issued its IOD.