Page 1 “ REPORTABLE”

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2683-2685 OF 2013

(Arising out of SLP (C) Nos. 30847-30849 OF 2012)

Margaret Almeida & Ors. etc. … Appellants

Versus

Bombay Catholic Co-Operative Housing

Society Ltd. & Ors. … Respondents

WITH

CIVIL APPEAL NOS. 2688-2688 OF 2013

(Arising out of SLP (C) Nos. 30867-30869 OF 2012)

Priti Mungrey & Ors. … Appellants

Versus

Bombay Catholic Co-Operative Housing

Society Ltd. & Ors. Etc. Etc. … Respondents

AND

CIVIL APPEAL NOS. 2689-2690 OF 2013

(Arising out of SLP (C) Nos.28256-28257 OF 2012)

Anthony D’Sa … Appellant

Versus

Bombay Catholic Co-Operative Housing

Society Ltd. & Ors. Etc. Etc. … Respondents

J U D G M E N T

Jagdish Singh Khehar

1.Leave granted in all matters.

2.Through the instant common judgment, we propose to dispose of the

following matters which came to be filed in this Court assailing the order passed

Page 2 by a Division Bench of the High Court of Judicature at Bombay (hereinafter

referred to as ‘the High Court’) in Appeal Nos.489 of 2011, 413 of 2011 and 573

of 2011 :

(i)Margaret Almeida & Ors. vs. Bombay Catholic Co-operative Housing

Society & Ors., Civil Appeals arising out of SLP (C) Nos. 30847-30849 of

2012),

(ii)Priti Mungrey & Ors. v. The Bombay Catholic Co-operative Housing

Society Ltd. & Ors., Civil Appeals arising out of SLP (C) Nos.30867-30869

of 2012), and

(iii)Anthony D’Sa v. The Bombay Catholic Co-operative Housing Society Ltd.

Civil Appeals & Ors. (arising out of SLP (C) Nos.28256-28257 of 2012).

During the Course of hearing, Civil Appeals (arising out of Special Leave Petition

no.30847-30849 of 2012) were treated as the lead case. We will, therefore,

mainly rely on the pleadings thereof, for narrating the factual controversy.

Reference will be made to pleadings in the other connected matters only for

recording submissions based thereon, advanced during the course of hearing.

3.The following letter was addressed by the counsel for Margaret Almeida (a

respondent in Appeal no.413 of 2011 before the High Court) intimating her of the

outcome of the aforesaid appeal, and the steps taken by him on her behalf :

“Amardev J. Uniyal,

Advocate High Court

13

th

August 2012

Margaret Almeida & Ors.,

Page 3 Madam/Sirs,

Re : Appeal Nos.413 of 2011, 489 of 2011 and 573 of 2011 filed in

Bombay High Court.

----

1.This is to inform you that the hearing in the aforesaid matters

concluded on 9

th

august 2012. The Hon’ble Court pronounced the

operative part of the Order directing that the aforesaid appeals are allowed

and interim order dated 5

th

May 2011 stood vacated. The Counsel

appearing on your behalf immediately requested the Hon’ble Court to stay

the operation and effect of the said order for a reasonable time to allow the

matter to be tested in Appeal.

2.However, the Hon’ble Court did not allow the said application and

inter alia directed that the Sumer Associates Builders (Appellants in Appeal

No.413 of 2011) shall not demolish the structures in which our clients

reside upto 30

th

September 2012. I have made an application for the

certified copy of the said order and same shall forward the same on its

receipt. In the circumstances, you are advised to kindly file your Special

Leave Petition before the Hon’ble Supreme Court and request for stay of

the effect and implementation of the order dated 9

th

August 2012 at the

earliest.

Yours faithfully,

Sd/-

for (Amardev J. Uniyal)”

The aforesaid letter was filed before this Court by the appellant Margaret Almeida

by referring to it as the impugned order. When the matter came up for hearing on

14.8.2012, this Court passed the following order :

“As and when the petitioners file the authenticated copy of the impugned

order, list these special leave petitions before the appropriate bench.”

The matter was repeatedly listed thereafter, but was not taken up for

consideration. On 14.9.2012, while directing the listing of the lead matter (along

with other matters) for preliminary hearing on 21.9.2012, this Court extended, at

the asking of the appellants, the interim protection which had remained in place

during the pendency of the instant litigation before the Division Bench of the High

Court (vide its order dated 9.8.2012). The aforesaid interim protection was

Page 4 extended from time to time (and continued till the final hearing of these appeals).

On 1.10.2012, notice came to be issued to the respondents, after the impugned

order passed by the High Court dated 9.8.2012 was placed on the record of the

case pending before this Court. On completion of pleadings, the matter was

heard for final disposal.

4.We shall first narrate the sequence of facts out of which the present

controversy has arisen.

5.The Bombay Catholic Co-operative Housing Society Limited (hereinafter

referred to as “the Catholic Society”) was incorporated and registered in 1914. In

1917 the Catholic Society was registered under the Central Cooperative

Societies Act, 1912. The objects of the Catholic Society, as per its bye-laws,

were to carry on buying, selling, hiring, letting and developing land. It was also

the object of the Catholic Society to carry on the activity of building, besides such

like allied activities.

6.For the aforesaid objectives, in the first instance at its inception, the

Catholic Society purchased 6 acres of undeveloped land from private parties.

The Catholic Society then purchased another 11 acres of such land in 1918.

Eventually, the Catholic Society acquired ownership of approximately 34.24 acres

of land to carry out the objectives defined in the bye-laws. The land in question

was situated in Santacruz. The estate of Catholic Society was named after Lord

Willingdon, the then Governor of Bombay. Since the aforestated land holding of

the Catholic Society was comprised of three different blocks of land, the blocks

came to be referred to as Willingdon West, Willingdon East and Willingdon

South. The area in Willingdon West measuring about 17.12 acres was sold to

Page 5 shareholders on freehold basis. These owners were referred to as owner

members. The area in Willingdon South measuring about 11.63 acres was

leased to shareholders for 998 years. These members were referred to as lessee

members. The subject matter of the present controversy relates to Willingdon

East measuring approximately 5.5 acres.

7.In the land measuring 5.5 acres known as Willingdon East, the Catholic

Society constructed 25 cottages. These cottages were let out during 1940-45 on

a monthly rental basis. Out of the 73 tenements in the aforestated 25 cottages,

54 were allotted to members of the Catholic Society. These tenants were

referred to as tenant-members. 15 of the tenements were assigned to tenants

simplicitor. These 15 tenants were not members of the Catholic Society.

8.After coming into force of the Maharashtra Cooperative Societies Act, 1960

(hereinafter referred to as “the Cooperative Societies Act”), all the tenants in

Willingdon East became members of the Catholic Society, for which fresh shares

were issued, at the face value of Rs.50/- per share. Therefore, all the tenants in

Willingdon East, became tenant-members. The instant controversy relates to a

dispute between the Catholic Society on the one hand; and the tenant-members

on the other hand. The Catholic Society is the appellant herein, whereas, some

of the tenant-members are the contesting respondents.

9.The first dispute between the rival parties arose when the Catholic Society

resolved to re-develop the land measuring 5.5 acres known as Willingdon East.

The decision to re-develop the land in question was taken on account of the fact,

that the 25 cottages constructed thereon, were scattered all over the land. It was

felt that by redevelopment, the said land would be effectively utilised for the

Page 6 benefit of a larger number of persons. To give effect to the aforesaid

determination, the Catholic Society passed a resolution on 25.9.1966, wherein it

was resolved to provide for 161 apartment-allotments in the buildings proposed

to be raised in the land known as Willingdon East. It would be relevant to

mention, that the reconstruction contemplated in the redevelopment of Willingdon

East contemplated the raising of new buildings to house 230 tenements. Of

these, 161 tenements were meant for allottee-members and the remaining 69 for

the tenant-members already in occupation of the existing 25 cottages as tenants.

The process of redevelopment included demolition of the existing 25 cottages,

and raising of new buildings in their place. The average estimated cost of each

apartment was assessed at Rs.55,000/-, out of which allottee-members for the

161 apartment-allotments were required to deposit Rs.15,000/- each with the

Catholic Society. The average estimated cost was determined in 1966, it must

obviously be much higher now. The aforesaid resolution dated 25.9.1966 was

assailed by seeking recourse to the remedies available under the Co-operative

Societies Act. All the efforts made by the tenant-members, however, proved

futile. It would be relevant to mention, that the aforesaid dispute raised by the

tenant-members under Section 91 of the Cooperative Societies Act was finally

dismissed on 5.3.1971. The said order dated 5.3.1971 was passed on an appeal

preferred by the tenant-members before the Maharashtra State Cooperative

Tribunal. The resolution dated 25.9.1966 and order dated 5.3.1971 (passed by

the Maharashtra State Cooperative Tribunal) were challenged by the tenant-

members by filing Misc. Petition no.250 of 1972 before the High Court. A learned

Single Judge of the High Court dismissed the aforesaid petition on 17.4.1972. An

intra-court appeal, preferred by the tenant-members was dismissed by a Division

Page 7 Bench of the High Court on 25.7.1972. The said order attained finality between

the rival parties. In view of the aforesaid factual position it became open to the

Catholic Society to give effect to its resolution dated 25.9.1966, whereby, it had

decided to re-develop about 5.5 acres of land known as Willingdon East, to

provide for 161 apartment-tenements by raising fresh construction, in place of the

existing 25 cottages scattered all over the said land.

10.After the said dispute under Section 91 of the Cooperative Societies Act

challenging the resolution dated 25.9.1966 attained finality, the Catholic Society

invited applications from its members (holding at least 5 shares) for allotment of

flats in the proposed buildings to be constructed under the new building scheme.

In this behalf the Catholic Society also submitted, for approval and sanction,

building plans to the Bombay Municipal Corporation. Having shortlisted the

successful allottees, the Catholic Society required the selected allottees to

deposit Rs.15,000/- each, towards part payment of the price of the said flats.

About 200 members made advance payment of Rs.15,000/- each. As such, the

Catholic Society collected Rs.30 lakhs for implementing its redevelopment

project, based on the resolution dated 25.9.1966.

11.The tenants in the 25 cottages at Willingdon East again felt threatened.

They accordingly, raised a joint challenge, to the proposed action of

redevelopment referred to above. On this occasion, the tenant-members filed an

application under Section 18 of the Cooperative Societies Act before the District

Deputy Registrar, Cooperative Societies, Mumbai, praying for the bifurcation of

Willingdon East. The foundation of the aforesaid claim was based on the fact

that the interest of the tenant-members was not being adequately protected as

Page 8 they constituted a miniscule minority amongst the members of the Catholic

Society. In this behalf it was asserted at the hands of the tenant-members, that

there were about 745 members of the Catholic Society, out which an

overwhelming 685 members were not tenant-members. It was also pointed out

by the tenant-members, that the Managing Committee of the Catholic Society is

comprised of 11 members, out of which only two members represented the

tenant-members. As such, it was asserted, that the interest of the tenant-

members was not adequately protected, even at the level of the Managing

Committee. The prayer made by the tenant-members before the District Deputy

Registrar, Cooperative Societies was, that the Catholic Society should be

bifurcated into two societies. Factually, the instant bifurcation would apply to on

5.5. acres of land known as Willingdon East. Because entire land holding

comprising of Willingdon West had been sold to owner members on freehold

basis, and the entire land holding comprising of Willingdon South had been

leased to lessee-members on lease for a term of 998 years. Thereupon, the

Catholic Society was only managing the affairs of 5.5 acres of land known as

Willingdon East. One of the bifurcated societies, according to their prayer,

should comprise of only tenant-members. And, the other bifurcated society

should comprise of all non tenant-members.

12.On the receipt of the aforesaid application filed by the tenant-members

under Section 18 of the Cooperative Societies Act, the District Deputy Registrar,

Cooperative Societies consulted the Federal Society, i.e., the Bombay-Thane

District Cooperative Housing Society Limited. Having consulted the Federal

Society, the District Deputy Registrar, Cooperative Societies issued a draft order

dated 6.9.1979 recording a tentative satisfaction for the bifurcation of the Catholic

Page 9 Society into two societies. Based thereon, a notice was issued to the Catholic

Society seeking its objections, if any, to the tentative satisfaction recorded by the

District Deputy Registrar, Cooperative Societies. To consider its course of

action, the Catholic Society convened an annual general body meeting. The

same was actually held on 16.12.1979. In its annual general body meeting, the

Catholic Society passed a resolution, disapproving and rejecting the proposed

bifurcation of the Willingdon East, in terms of the draft order of the District Deputy

Registrar, Cooperative Societies dated 6.9.1979.

13.In addition to the response filed by the Catholic Society referred to in the

foregoing paragraph, the Catholic Society also took up the matter with the

Federal Society, i.e., the Bombay-Thane District Cooperative Housing Society

Limited. The Federal Society thereupon re-examined the matter. On such re-

examination it prepared a report dated 7.6.1980, wherein, it was concluded that

there was no justification for the bifurcation/division of the Catholic Society. The

aforesaid report was forwarded by the Federal Society to the District Deputy

Registrar, Cooperative Societies. The District Deputy Registrar, Cooperative

Societies then reconsidered the draft order dated 6.9.1979 by taking into

consideration the aforesaid report dated 7.6.1980. During the course of such

reconsideration, the District Deputy Registrar, Cooperative Societies personally

visited Willingdon East and also personally examined the records of the Catholic

Society. On such reconsideration, the District Deputy Registrar, Cooperative

Societies, passed an order dated 27.6.1980 by which the draft order dated

6.9.1979 proposing bifurcation/division of the Catholic Society, was withdrawn.

Page 10 14.The tenant-members assailed the order dated 27.6.1980 withdrawing the

draft order proposing bifurcation/division of the Catholic Society, by preferring an

appeal. The Divisional Joint Registrar, Cooperative Societies, accepted the

appeal, and set aside the order dated 27.6.1980. The appellate order required

the District Deputy Registrar, Cooperative Societies, to reconsider the issue of

bifurcation/division of the Catholic Society.

15.The Catholic Society assailed the order of the Divisional Joint Registrar,

Cooperative Societies dated 12.12.1980 by preferring a Revision Petition before

the State Government. The challenge raised by the appellant-society (the

Catholic Society) to the aforesaid order dated 12.12.1980, was allowed,

inasmuch as the order passed by the Divisional Joint Registrar, Cooperative

Societies was set aside. The revisional authority remanded the matter to the

Divisional Joint Registrar, Co-operative Societies, for passing a fresh order (in

appeal) after hearing the rival parties. After its remand the Divisional Joint

Registrar, Cooperative Societies again allowed the appeal, by an order dated

15.6.1982. By the aforesaid appellate order, the order of the District Deputy

Registrar, Cooperative Societies (dated 27.6.1980) was set aside. Consequently,

a direction was issued by the appellate authority, to the Assistant Registrar,

Cooperative Societies, to proceed with the matter, from the stage of the passing

of the draft bifurcation order (dated 6.9.1979).

16.The Catholic Society again assailed the order of the Divisional Joint

Registrar, Cooperative Societies dated 15.6.1982 by preferring a revision petition

before the State Government. Since the Catholic Society was not granted any

interim order during the pendency of the revision petition, the Assistant Registrar,

Page 11 Cooperative Societies, Mumbai, proceeded with the matter from the stage of the

draft order. By an order dated 22.3.1983 the Assistant Registrar, Cooperative

Societies, Mumbai, ordered the bifurcation/division of the Catholic Society by

creating the following two societies :

i)The Bombay Catholic Cooperative Housing Society Ltd., and

ii)The Bombay Catholic Cooperative (Tenants) Housing Society Ltd.

The society at (i) above, would be comprised of lessee-members, freehold land

owners and others, whereas the society at (ii) would be comprised of tenant-

members only.

17.The order passed by the Assistant Registrar, Cooperative Societies,

Mumbai dated 22.3.1983 was challenged by the Catholic Society by preferring an

appeal before the Divisional Joint Registrar, Cooperative Societies. The

aforesaid appeal was dismissed by an order dated 19.9.1989, whereupon, the

Catholic Society preferred a revision petition before the State Government. The

said revision petition was also dismissed on 24.6.1991. The orders passed by

the Assistant Registrar, Cooperative Societies, Mumbai (dated 22.3.1983), the

Divisional Joint Registrar, Cooperative Societies, Mumbai (dated 19.9.1989) and

the State Government (dated 24.6.1991) were challenged by the Catholic Society

by filing Writ Petition no.2328 of 1991. A learned Single Judge of the High Court

dismissed the aforesaid writ petition by an order dated 21/22.10.1999. The

reasons which weighed with the learned Single Judge of the High Court in

dismissing the writ petition, were summarised in paragraph 19 of the aforesaid

judgment, which is being extracted hereunder:

“The facts which I have already noted above which need not to be

repeated, would rather show that the order passed by the Assistant

Registrar for bifurcation of the society is not at all harsh or arbitrary or

Page 12 oppressive to the shareholder members. As a matter of fact, it is the tenant

members who have been oppressed and this class of members have

suffered at the hands of the majority members who have no longer

sufficient or substantial interest in the objectives of the society. The

Assistant Registrar has made it clear that the society formed of the tenants

viz. Bombay Catholic Cooperative (Tenants) Housing Society Ltd., shall

offer the tenements occupied by the tenant members in the capacity of

tenants in terms of Bombay Rent Act, to the same occupant tenant

members on ownership basis if desired by the concerned tenant members

against payment of reasonable consideration as may be fixed by the said

society in consultation with the Cooperative Department and till that time,

the status of the tenancy shall not be disturbed. The said direction

indicates that there is no undue favour to the tenant members and a

balance has been struck by the Assistant Registrar by providing clause 7 in

the operative order. So far as the shareholder members are concerned,

the Assistant Registrar in its operative order has clearly set out that the

admission of non-accommodated shareholders to membership of the newly

created society viz., Bombay Catholic Cooperative (tenants) Housing

Society Ltd., shall be strictly according to the chronological order and shall

be gradual as and when tenements get ready for occupation. The

Assistant Registrar further directed that while accommodating such

persons to the membership, it shall be ensured that these members really

intended to secure tenements of the society at the time of acquiring shares

and not for investment or any other purpose other than residential. He also

directed that it would also be ensured that these persons (shareholders

members) are eligible to become members under the revised Bye-laws,

rules and the Act and they are willing and are in a position to contribute and

possess the new tenements. The Assistant Registrar, therefore, has taken

sufficient care in ensuring that no injustice is occasioned to non-

accommodated shareholders who are genuinely interested in

accommodation and are eligible in securing residential accommodation.

The shareholders who are eligible to become members under the revised

Bye-laws and who genuinely were interested in getting the residential

accommodation, according to their seniority shall get the accommodation

as and when tenements would be ready for occupation. With this

arrangement having been made by the Assistant Registrar how it can be

said that the order of bifurcation shall oppress the class of shareholders or

is detrimental to the interest of this clear. Obviously, the shareholder

members who were only interested investment while becoming member of

the society should be weeded out, because it would not be in the interest of

cooperative movement and for the well-being of the society. Thus, the

contention of the learned counsel for the shareholder members that the

order of bifurcation is oppressive or harsh to this class of society is

unfounded and appears to be at the behest of the petitioner society. As a

matter of fact, the appellate authority has considered the matter extensively

and it cannot be said to have erred when it affirmed the order of Assistant

Registrar, so far as revisional authority is concerned, the matter having

been examined at quite length by the appellate authority, the revisional

authority rightly did not go into the matter in details in its revisional

Page 13 jurisdiction and cannot be said to have erred in affirming the order of the

Assistant Registrar and the appellate authority.”

18.The Catholic Society preferred an intra court appeal to assail the order

passed by the learned Single Judge of the High Court dated 21/22.10.1999

(whereby writ petition no.2328 of 1991 was allowed, in favour of the tenant-

members). A Division Bench of the High Court allowed appeal No.20 of 2000

(arising out of writ petition 2328 of 1991) on 4.8.2007. By the aforesaid order, the

Division Bench set aside the earlier determinations rendered by the Co-operative

authorities, as also, the judgment rendered by the learned Single Judge. While

doing so, the Division Bench remanded the matter to the authorities (under the

provisions of the Co-operative Societies Act), for reconsidering the issue of

bifurcation raised by the tenant-members. The operative part of the order passed

by the Division Bench brining out the effect of the appellate order is being

reproduced hereunder :

“..... In our opinion, therefore, in order to comply with the mandatory

requirement of consultation which is incorporated under sub-section (1) of

Section 18 of the Act, it was necessary for the Deputy Registrar not only to

take into consideration the opinion expressed by the federation but in order

to show that he has complied with the mandatory requirements of

consultation and the order that he made should also have shown that he

has applied his mind to the opinion expressed by the federation. The

requirement of the order made by the authority indicating on the face of it

that the authority has applied its mind to the opinion submitted by the

federation, will have to read into the provisions in order to make the

requirement of consultation effective and meaningful. In the present case,

admittedly, the opinion expressed by the federation has not been

considered by the Deputy Registrar while deciding to make the order of

bifurcation. It therefore, suffers from violation of mandatory requirement of

consultation with the federal society, and therefore, we have no alternative

but to set aside that order. But because the proposal had been submitted

as far back as in the year 1979 and the final decision in that regard has not

yet been taken, we propose to issue directions to the authority so that a

decision can be made by the authority as expeditiously as possible.

5.In the result, therefore, the appeal succeeds and is allowed. The

order dated 22.2.1983 passed by the Deputy Registrar, Co-operative

Page 14 Societies directing bifurcation of the petitioner-society is set aside. The

orders passed by the Authorities under the Maharashtra Co-operative

Societies Act and the learned Single Judge confirming that order are also

set aside. The proceedings are remitted back to the Deputy Registrar.

The parties shall appear before the Deputy Registrar on 27.8.2007 with a

copy of this order. The petitioner shall also serve a notice on the federation

with a copy of this order informing the federation that if it is so advised it

may appear before the Deputy Registrar on 27.8.2007. the Deputy

Registrar shall thereafter permit the parties to file any additional affidavits

and documents that they may want to file and then proceed to pass final

order in the matter in accordance with law. The Registrar shall proceed as

expeditiously as possible, and the final order shall be made by him in any

case within a period of Eight weeks from 27.8.2007. It is directed that in

case the Registrar decides to make the order of bifurcation, the Registrar

shall provide in the order that the order shall not take effect for a period of

four week from the date of making of the order.”

19.In compliance with the directions issued by the Division Bench of the High

Court on 4.8.2007, the issue of bifurcation of the Catholic Society came to be

placed before the Deputy Registrar, Co-operative Societies, Mumbai. Having

heard the submissions advanced on behalf of the rival parties, the Deputy

Registrar, Co-operative Societies, allowed the claim of the tenant-members, vide

an order dated 28.11.2007. By the aforesaid order dated 28.11.2007, the

Catholic Society was ordered to be bifurcated/divided into two societies. The

manner of giving effect to the aforesaid bifurcation, emerges from the order of the

Deputy Registrar, Co-operative Societies, Mumbai dated 28.11.2007. The same

is being extracted hereunder :

“ORDER

I, Dr. P.I. Khandgale, the Deputy Registrar, Co-operative Societies,

H (W), Ward, Mumbai, under the powers conferred upon me under Section

18(1) of Maharashtra Co-operative Societies Act 1960 and Rule 17(2) of

the Maharashtra Co-operative Societies Act, 1961 in the interest of smooth

working, administration and in the interest of members and also in view of

public interest make division of “The Bombay Catholic Co-op Hsg, Society

Ltd., S.V. Road, Santacruz (West), Mumbai – 400 054.

And de-register the society viz. The Bombay Catholic Co-op Housing

Society Ltd. S.V. Road, Santacruz (W), Mumbai – 400 054, having

Page 15 Registration No.1412 of 1917, as per Section 21 of Maharashtra Co-

operative Societies Act, 1960 from the date 28/11/2007.

As referred under Section 9(1) of Maharashtra Co-operative

Societies Act, 1960, after division, two separate Housing societies are

being registeredunder registration numbers as mentioned hereunder :

Sr.

No.

Name and address of

society

Members Registration number

and date

1The Bombay Catholic

(Leasehold, Freehold

and others) Co-operative

Housing Society Ltd.

S.V. Road, Santacruz

(West), Mumbai-54.

Freeholders,

Leaseholders

and others.

MUM/WHW/H

S.G./(TC)/14007/2007-

08, yEAR 2007 DATED

28/11/2007

2.The Bombay Catholic

(Tenants and Allottee)

Coop. Hsg. Society Ltd.,

24, Willingdon East,

Santacruz (W), Mmbai-

400054

Tenant Members

and allottee

members

MUM/WHW/H

S.G./(TC)/14008/2007-

08, yEAR 2007 DATED

28/11/2007

Since above mentioned separate societies are registered, two

separate Managing Committees should be formed and I direct to divide the

property and debts as under :

(As per balance sheet by the end of 31/3/2007)

1)Share CapitalTo divide the same as collected from the

Members

2)Sinking Fund As per shares actually held by the members.

3)Reserved FundAs per shares actually held by the members.

4)Other reserved

fund

As per shares actually held by the members

5)Amount of

deposits

As collected from the members.

6)Amount in

balance

As collected from the members.

7)Societies dues

payable and

receivable

Shall be made according to the members and the

office bearers of the society shall take decision as

regards arrears.

8)By laws of the It shall be mandatory for new societies to adopt

Page 16 society by-laws of the Bombay Catholic (Leasehold,

Freehold and others) Co-operative Housing

Society Ltd.

9)Societies old

office

It shall remain at the earlier place where earlier

office situated and the secretaries of both the

society shall remain custodian of this office and

the records therein shall be remained available

for members of both the societies and the same

shall remain in the possession of the members in

whole societies compound it remains.

10)Land of the

Society

(i) The Bombay

Catholic

(Leasehold,

Freehold and

others) Co-op.

Housing Society

Ltd.

(ii) The Bombay

Catholic (Tenant

and Allottee) Co-

op. Housing

Society Ltd.

The land of Willingdon South and Willingdon

South and Willingdon

5 ½ acres land of Willingdon East together with

25 t cottage and one shed therein.

11)Staff The existing members shall remain in the

Bombay Catholic (Leasehold, Freehold and

others). The Bombay Catholic (Tenants and

allottee) co-op hsg. Society Ltd. shall make

arrangement for their own staff. After division

both registered societies shall take their own

decisions as regards fixing salaries and other

allowances the managing committee and the

respective societies shall of frame their own rules

regarding service as per provisions of

Maharashtra Co-operative Societies Act, 1960

and Rule 1961

12)Tenants The tenants residing in the premises of the

Bombay Catholic (Tenants and Allottee) Coop.

Hsg. Society Ltd. shall be tenants of the society

and their tenancy rights shall be protected.

13)In order to look after the daily affairs of the two societies formed after

division of the original society, society wise Board of Administrators

is being appointed.

Page 17 1.Following persons shall be the members of the managing committee

of the Bombay Catholic (Leasehold, Freehold and others) co-

operative Housing Society Ltd., Santacruz (West), Mumbai – 54, to

llok after its affairs.

(a)Shri A.F.E. D’costa, Chairman, managing Committee.

(b)Shri F.J. Naronna, Committee Members,

Managing Committee.

(c)Shri Leo Rodrigues, Committee Members,

Managing Committee

(d)Shri B. Pulgado, Committee Members, Managing Committee

(e)Captain F.S. Vittal, Committee Members,

Managing Committee

2.Following persons shall be the member of Managing Committee to

look after the affairs of The Bombay Catholic (Tenant/Allottee) Co-

op. Housing Society Ltd., Santacruz (West), Mumbai – 54.

(a)

Smt. C. Castaleno, Chairman, Managing Committee.

(b)

Shri J. Rodrigues, Committee members,

Managing Committee.

(c)

Shri Francis Philips, Committee members,

Managing Committee.

(d)

Shri Anthoni Disa, Committee members,

Managing Committee.

(e)

Smt. A. Fernandes, Committee members,

Managing Committee.

This order is issued on this day, the date 28.11.2007, under my

signature and seal of this office. This order shall be executed after one

month from the date 28.11.2007.”

20.The Catholic Society raised a challenge to the order passed by the Deputy

Registrar, Co-operative Societies, Mumbai, by filing an appeal before the Joint

Page 18 Registrar, Co-operative Societies, Mumbai. In fact, a separate appeal was also

filed by the tenant-members to assail the order passed by the Deputy Registrar,

Co-operative Societies dated 28.11.2007. The Divisional Joint Registrar, Co-

operative Societies, Mumbai disposed of appeal no.246 of 2007 (filed by the

Catholic Society) and Appeal no.27 of 2008 (filed by the tenant-members) by a

common order dated 29.9.2009. The operative part of the aforesaid appellate

order is being extracted hereunder :

“ORDER

1)The Appeal No.246/2007 & Appeal No.27/2008 are disposed of.

2)The impugned order dated 28.11.2007 passed by the Respondent

Deputy Registrar, C.S.H./West Ward, Mumbai under Sec.18(1) of

the M.C.S. Act, 1960 read with Rule 17 of the M.C.S. Rules, 1961 is

hereby quashed and set aside.

3)The case is remanded back to the Respondent Deputy Registrar

C.S.H./W Ward, Mumbai for afresh consideration and decide the

case in the light of the observations made herein above.

4)This order would not come into effect for a period of 4 weeks as

directed by the Hon’ble High Court in order dated 6.3.2009 in Writ

Petition No.2808 of 2009.

5)No order as cost.”

A perusal of the operative part of the order extracted hereinabove reveals, that

the order passed by the Deputy Registrar, Co-operative Societies, Mumbai under

Section 18(1) of the Co-operative Societies Act (whereby the Catholic Society

was bifurcated/ divided into two societies) was quashed and set aside. All the

same, yet again, the issue of bifurcation was remanded back for redetermination

at the hands of the Deputy Registrar, Co-operative Societies, Mumbai.

21.It would be pertinent to mention, that a challenge to the appellate order

passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai, is

permissible through a revision petition before the competent authority of the State

Page 19 Government. The tenant-members availed of the aforesaid remedy and by

preferring Revision Application no.713 of 2009 before the State Government,

wherein the aforesaid order dated 29.9.2009 passed by the Divisional Joint

Registrar, Co-operative Societies, Mumbai was assailed. It is however, relevant

to notice, that the aforesaid challenge raised by the tenant-members, through the

aforesaid revision petition was withdrawn. This is apparent from the operative

part of the order passed by the State Government disposing of Revision

Application no.713 of 2009 which is being extracted herein :

“ ORDER

1.Applicant is allowed to withdraw Revision Application No.713/2009.

2.Order dt.29.9.2009 of the Defendant No.1 Divisional Joint Registrar,

Co-operative Societies, Mumbai Division, Mumbai quashing the

order of division of Defendant No.2 Society, of the Deputy Registrar,

Co-opertive Societies, H/West Ward, Mumbai dt. 28.11.2007 is

hereby confirmed.

3.Order of the Divisional Joint Registrar, Co-operative Societies,

Mumbai Division, Mumbai dt. 29.01.2009 to the extent of issuing

directions to the Deputy Registrar, Co-operative Societies, H/West

Ward, Mumbai, for giving re-hearing afresh again, is hereby

quashed.

4.No Order as to the costs.”

It would also be relevant to mention that while withdrawing Revision Application

no.713 of 2009, the applicant undertook to co-operate with the Catholic Society,

for the redevelopment of 5.5 acres of land known as Willingdon East. It would

also be pertinent to mention, that while withdrawing Revision Application no.713

of 2009, the tenant-members undertook to support the implementation of the

Catholic Society’s resolution dated 6.12.2009. In sum and substance, therefore,

the State Government disposed of the revision petition by quashing the

bifurcation proceedings. The order passed by the State Government dated

6.12.2009, brought to an end the claim raised by the tenant-members under

Page 20 Section 18 of the Co-operative Societies Act, praying for the bifurcation of the

Catholic Society, with reference to the property known as Willingdon East.

22.In order to understand the effect of the resolution passed by the Catholic

Society on 6.12.2009, it is necessary to extract herein the Catholic Society’s

Resolution dated 6.12.2009. A relevant part of the aforesaid resolution is being

reproduced hereunder :

“RESOLUTION PASSED AT THE SPECIAL GENERAL MEETING HELD

ON 6

TH

DECEMBER, 2009 AT 4.30 P.M. AT SAINT TERESA’S CONVENT

HIGH SCHOOL HALL, SANTA CRUZ (WEST), MUMBAI – 400054

RESOLVED to accept the proposal of M/s. Sumer Associates as nominee

of M/s. Robin Home Developers Pvt. Ltd. on the following terms and

conditions:

(1)Only the land admeasuring 21,774.10 sq. mtrs. Out of the Willingdon

Estate and also known as Willingdon Colony (Willingdon East)

bearing CTS Nos. H/401, H/402, H/415 to H/438 (hereinafter called

the said land) would be sold to M/s. Sumer Associates as nominee of

Robin Home Developers Pvt. Ltd. for the net price of

Rs.70,00,00,000/- (Rupees Seventy Crores) payable in one lump-

sum. The consideration of Rs.70.00 crores is fixed irrespective of

any charge in Development Control Regulations or any other

applicable rules and regulations or subsequent rulings by any

authority or body (i.e. Heritage Authority, etf.) and subject to all other

conditions agreed upon.

(2)The sale of the said land will be on ‘as is where is’ basis.

(3)All 161 allottee members and 69 tenants/occupants of the Society

shall be attorned to M/s. Sumer Associates. The Society shall issue

a certified list of 161 allottee members and 69 tenants/occupants as

on 17.09.2009to M/s. Sumer Associates which shall form part of the

final conveyance.

(4)M/s. Sumer Associates shall all its own costs, charges and expenses

construct on the said land an aggregate of at least 230 tenements of

which 161 tenements, each admeasuring 600 sq. ft. (carpet area)

shall be sold on ownership basis under MOFA, unless otherwise

mutually decided, to the 161 allottee members at a price of

Rs.1800/- per sq.ft. (carpet area) provided that each of the said 161

allottee members surrender their respective Share Certificate of the

Society for cancellation and proof of relinquishing their rights as

members in the Society.

Page 21 (5)The remaining 69 tenements (out of 230 tenements) to be

constructed by M/s. Sumer Associates, on the said land shall be sold

and/or conveyed by M/s. Sumer Associates to the said 69

tenants/occupants either against making payment or free of cost.

The obligation, if any of the said 69 tenants to pay for acquiring their

flats is recorded in the Consent Terms/MOU/Agreement between

some tenants and the Society. So far as remaining tenants out of the

said 69 tenants are concerned, those covered by Undertakings given

in Court or by Decrees, will not be required to pay any amount to

M/s. Sumer Associates for acquiring the flats. The Society shall give

certified true copies of the Undertakings/Consent

Terms/Agreements, which have been already entered into between

the Society and some of the tenants out of the said 69 tenants. M/s.

Sumer Associates shall enter into agreements with the tenants who

are members only upon their surrendering their respective shares to

the Society for cancellation and relinquishing their rights as a tenant

and/or member in the Society.

(6)The Allottee and Tenant members immediately on execution of the

Conveyance of the said land by the Society shall be deemed to have

ceased to be members of the Society in lieu of their right of allotment

and right of acquiring accommodation on the said land as provided

under the said Conveyance.

(7)M/s. Sumer Associates shall part with possession of the new

premises in the 161 allottee members and 69 tenants/occupants

simultaneously with giving possession to any other purchasers to

whom premises are sold.

(8)Upon completion of construction of first five buildings in all aspects,

M/s. Sumer association shall at its own costs charges and expenses

provide one office unit admeasuring 300 sq. ft. (carpet area) to the

Society in the newly constructed building on the said land or they

shall otherwise provide suitable alternate accommodation for the

Society’s office in Santa Cruz (West), provided that only the Stamp

Duty and Registration charges on which shall be paid by the Society.

(9)M/s. Sumer Associates has deposited in escrow the said sum of

Rs.70.00 crores with M/s. Dhruve Liladhar & Co., Advocates,

Solicitors & Notary for the Society with clear instructions that, on and

against execution of Conveyance or within thirty days from the date

of the approval of the settlement/transaction by the Society at an

(Extraordinary_ Special General Meeting the said Advocates &

Solicitors shall, without recourse to M/s. Sumer Associates, release

and/or pay the said sum of Rs.70.00 crores to the Society without

claiming any costs or lien.

(10)All members who have not been accommodated on the said land or

on the Society’s property shall be compensated on pro-rata basis

according to number of shares held by dividing equally the

consideration received net of tax, legal and other expenses but after

Page 22 concealing by process of legal expenses those members who are

untraceable for over 15 years.

(11)M/s. Sumer Associates shall at its own costs, charges and expenses

ensure that, neither the Chavan-Meredia Combine nor Charisma

Builders or the Bawa Group nor Robin Home developers Pvt. Ltd. or

other such party shall make any claim against the society. All of

them shall be settled and/or compromised by M/s. Sumer Associates

at its own costs. Charges and expenses.

(12)Undertakings given to the Hon’ble Courts in the proceedings initiated

against some of the tenants and Consent Terms filed in some of the

said proceedings and MOU’s shall be honoured by M/s. Sumer

Associates and they shall be totally and strictly adhered to by them

and the Society shall not be liable for the same. Where applicable

M/s. Sumer Associates will have to make efforts to modify and/or get

released from the said Undertaking and/or Consent Terms as may

be advised. All undertakings to various Courts given by the Society

shall be observed and fulfilled by M/s. Sumer Associates, and they

shall keep the Society indemnified from and against all the costs and

consequences arising from the same.

(13)The Conveyance should sufficiently indemnify the Society, its

Committee and its members against all liabilities, claims costs and

consequences as a result of this sale and the redevelopment of the

property and for any delay or non-performance of any kind.

(14)To ensure against litigation of any kind these terms can be presented

before the appropriate Court for confirmation or as Consent

Terms/Settlement Terms as may be legally advised.

The aforesaid is without prejudice to the rights and contentions of the

Society including in the pending Appeal before the Ministry of Co-

operation, Maharashtra. All reference to M/s. Sumer Associates and/or

Robin Home Developers Pvt. Ltd. shall include their/his partners, directors

or successors as applicable from the context.”

FURTHER RESOLVED that by virtue of the amendment of the Bye Laws

of the Society by insertion of Article 10 as regards the membership

eligibility of a Building Sub-Society by insertion of Article 10 as regards the

membership eligibility of a building Sub-Society as a member of the

Society and consequent changes in the structure of the membership in the

Society, the following covenants to be observed and performed by the

Lessees as presently mentioned in the indenture of Lease executed

between the members and the Society shall stand deleted:

1. Clause 4.That the Lessees will not make any excavation upon any part

of the demised plot nor remove any stone, sand, gravel, clay

or earth therefrom except for the purpose of forming

foundations of buildings.

Page 23 2. Clause 5.That the Lessees will use the demised plot and premises for

the purpose of a private residence only and not without the

license in writing of the Lessor first had and obtained to do or

permit any trade or business in any building or upon any part

of the demised plot and premises.

3. Clause 6.That the Lessees will not do or suffer anything to be done on

the demised plot or premises which may cause damage

nuisance or inconvenience to the occupiers of adjacent

houses, the Society or the neighbourhood.

4. Clause 7.That the Lessees will not assign, underlet, for a period

exceeding 3 years or part with possession of the demised

lands hereditaments and premises or of any part thereof to

any person without the written consent of the Society such

consent not to be unreasonably withheld when the proposed

assignee or tenant is a member of the Society and holding five

fully paid shares of the Society.

5. Clause 8.That the Lessees will not make any assignment or other

disposition of the demised premises or part thereof (which

shall have the effect of vesting the demised premises for the

said term or any part thereof in other than one and the same

party or parties at one time).

6. Clause 10.That the Lessee shall submit the plans of this building

privy cess-pools and compounds, wall or fence for the

approval of the Society and shall not start the construction

without such approval.

RESOLVED FURTHER that the status of the leasehold plots which are

under indenture for tenures of 998 years with members be converted to

freehold status at and on the request of the individual members.

RESOLVED FURTHER that the Managing Committee of the Society is

authorized to approve, execute and register individual Agreements or

Indenture or other documents and do such other necessarty acts, deeds

and things as may be requested to effect the above.

RESOLVED THAT the approval for sale and transfer of the property of the

Society known as Willindgon Colony in village bandra, Mumbai Suburban

District bearing CTS Nos. H/401, H/402, H/415 to H/438 also called

Willingdon East located at S.V. Road, Santa Cruz (West( Mumbai – 400

054, and admeasuring 25040 sq. yards equivalent to 21,774 ___ sq. mtrs.

Together with structures standing thereon (“the said Property”) on “as is

where is” basis subject to the rights of 69 tenants and 161 allottee

members lumpsum consideration of Rs.70,00,00,000/- (Rulees Seventy

Crores only) in favour of Messrs. Sumer Associates (“Sumer”), a nominee

of Robin Home Developers Private Limited (‘RHDPL’) is hereby granted.

Page 24 RESOLVED FURTHER THAT the Managing Committee of the Society

authorized to approve, execute and register conveyance and other

documents of the said Property in favour of Sumer as nominees of RHDPL

and do such other necessary acts, deed and things as may be required to

effect the above.”

In compliance with the resolution of the Catholic Society dated 6.12.2009, a

conveyance dated 7.12.2009 came to be executed.

23.Even though all challenges raised by the tenant-members against the

resolution of the Catholic Society dated 25.9.1966 had attained finality, and even

though the prayer made by the tenant-members of the Catholic Society seeking

the bifurcation/division of the Catholic Society, has not culminated in favour of the

tenant-members in spite of the initiation of the proceedings in connection

therewith in the seventies, yet the entire matter was sought to be reopened by

raising a challenge through Civil Suit nos.144 and 145 of 2010, which were filed

by some tenant-members, wherein the main prayer was, that the Catholic Society

should be restrained from taking steps in furtherance of the resolution passed by

the Catholic Society dated 6.12.2009 (as also, the consequential conveyance

deed dated 7.12.2009).

24.In order to understand the nature of relief, sought by the tenant-members in

the civil suits filed by them, it would be appropriate to extract hereunder the

prayers made in Suit no.144 of 2010:

“The plaintiffs therefore pray:

(a)for a declaration that the said Resolution dated 6

th

December, 2009

(Exhibit ‘K’ hereto) and the said Conveyance dated 7

th

December, 2009

(Exhibit ‘M’ hereto) are invalid, illegal and void ab initio and/or the same

are voidable as against the plaintiffs and the Tenant members of Defendant

No.17 Association. That this Hon’ble Court be pleased to pass order

declaring section 164 of Maharashtra Co-operative Societies Act, as

violation of Article 14 of the Constitution of India and the same ought to be

struck down;

Page 25 (b)for a Judgment and Decree directing Defendant No.20 herein to

deliver up the Conveyance dated 7

th

December, 2009 Exhibit ‘M’ hereto for

cancellation;

(c)that, pending the hearing and final disposal of the present suit, this

Hon’ble Court be pleased to issue an Order and Injunction restraining the

Defendant Nos.1 to 17 and Defendant No.20 from taking any steps in

furtherance of the said purported Resolution dated 6

th

December, 2009

and/or Conveyance dated 7

th

December, 2009. (ii) to issue an Order and

Injunction directing Defendant Nos.1 to 16 to deposit in this Hon’ble Court

the sum of Rs.70 crores received from Defendant No.20 under the

Resolution dated 6

th

December, 2009 and under the Conveyance dated 7

th

December, 2009;

(d)for ad-interim reliefs in terms of prayer clause (c) above;

(e)for the costs of the present suit;

(f)for such other and further reliefs as the nature and circumstances of

the present case may require.”

Since the interim prayers, as had been sought in the suits filed by the tenant-

members, were not granted to them, they preferred Notice of Motion no.172 of

2010 (arising out of Suit no.144 of 2010) before the High Court. By an order

dated 11.1.2010, a learned Single Judge of the High Court found favour with the

prayer made by the tenant-members. The operative part of the order granting

interim relief to the tenant-members is being extracted hereunder:

“47.Resultantly the following ad-interim order:

ORDER

(i)No further steps be taken by the concerned parties based

upon the Conveyance dated 07/12/2009.

(ii)The parties to maintain status-quo with respect to the property

in question i.e., Willingdon East.

(iii)The earlier statements already recorded in the order dated 24

th

December, 2009 to continue till further order.

(iv)Reply/rejoinder, if any to be filed within two weeks.

Page 26 (v)S.O. to 25/1/2010, for hearing. However, the liberty is granted

to the parties to settle the matter also.

48.The learned counsel Mr.Chetan Kapadia, appearing for some of the

Defendants, makes statement that 18 tenant/members have already

surrendered possession and the tenancy to defendant No.72. However, in

view of the above common order, it is made clear that parties to maintain

status-quo will cover any further steps to these suits.”

It would also be relevant to mention that the High Court also passed a common

order dated 5.5.2011 in Writ Petition no.1769 of 2010, Chamber Summons

no.748 of 2011 and Notice of Motion no.172 of 2010 (arising out of Suit no.144 of

2010) and in Suit no.144 of 2010. Thereby, the Notice of Motion was disposed of

by making absolute the interim order earlier granted (on 11.1.2010) in favour of

the tenant-members. Relevant extract of the order dated 5.5.2011 in the

aforesaid matters is being reproduced hereunder:

“112.In the circumstances, the Notice of Motion is disposed of by making

the same absolute in terms of prayer (a)(i) and by directing all the parties to

maintain status quo in respect of the suit property pending the hearing and

final disposal of the suit. There, however, shall be no order as to costs.”

Even though the controversy, in the manner in which it has been dealt with

hereinabove, seems to be in the nature of final determination between the parties,

yet the instant order, is only a determination of the validity of the interim relief

sought by the tenant-members. In so far as the instant aspect of the matter is

concerned, it would be relevant to mention, that the order extracted above, dated

5.5.2011, was assailed by the Catholic Society before a Division Bench of the

High Court by filing Appeal no.413 of 2011 (in Notice of Motion no.172 of 2010, in

Suit no.144 of 2010). The aforesaid appeal was disposed of by a Division Bench

of the High Court on 7.9.2012. By the aforesaid order, the interim protection

afforded to the tenant-members on 5.5.2001, by a learned Single Judge of the

High Court, was ordered to be vacated. It is the instant order dated 7.9.2012,

Page 27 which is the subject matter of challenge (at the hands of the tenant-members),

before us.

25.While adjudicating upon the controversy in hand, and while determining the

validity of the impugned order passed by the Division Bench of the High Court

dated 7.9.2012, we shall apply ourselves to issues relevant for granting or

denying interim prayers, while disposing of the instant appeals.

26.As noticed above, the Catholic Society comprises of about 745 members.

Out of these members there were originally 54 tenant-members and 15 tenants

simplicitor (the tenants simplicitor, were not members of the Catholic Society).

After the coming into force of the Cooperative Societies Act, all the tenants

(including the tenant-members, as also, the tenants simplicitor) became members

of the Catholic Society. It is therefore, that the strength of the tenant-members at

the present juncture is 69. The relief sought in the two suits (i.e. Suit no.144 of

2010 and Suit no.145 of 2010) is a claim for rights,on account of being tenant-

members. It is important to point out, that the aforesaid suits were filed by only

15 tenant-members. It is these 15 tenant-members, who had pursued their

prayer for interim relief, before the High Court. It is not a matter of dispute, that

the suits referred to above, were not filed in a representative capacity, and as

such, it would be incorrect to assume, that the aforesaid suits can be considered

to have been filed by all the 69 tenant-members. The correct factual position is,

that out of 69 tenant-members only 15 tenant-members had filed the aforesaid

suits. The number of tenant-members who were pursuing their remedy through

the aforesaid suits, has diminished further before this Court, inasmuch as Special

Leave Petition (C) nos.30847-49 of 2012 comprises of 8 petitioners only. It is

Page 28 therefore apparent, that 7 of the plaintiffs in the suits, have now not joined hands

with those who have approached this Court, (and are now appellants, before this

Court). The instant factual narration however proceeds further, inasmuch as, IA

nos.17-19 of 2012 (arising out of SLP (C) nos.30847-49 of 2012) have been filed

by three of the petitioners (now appellants) i.e., petitioner/appellant nos.2, 3 and

4, i.e., Jennifer Pegado, Elwyn D’cruz and Don Donato D’Silva, with a prayer for

transposing them as respondents, as they do not want to pursue the matter any

further (along with the remaining petitioners). In view of the prayer made in the

aforesaid interlocutory application, it is apparent, that the strength of the tenant-

members who had initiated the civil suits, referred to above, has successively

diminished from 15 in the civil suits, to 8 at the special leave petition stage, and

further to 5 at the appellate stage (after three of the petitioners have prayed for

transposing them as respondents). Keeping in mind, that the total tenant-

members are 69, and the relief sought in the suits, and now through the instant

petitions/appeals (which are filed on the strength of being tenant-members), has

diminished to 5, it would be inappropriate to consider the grant of any interim

relief, in the absence of any clear determination, that the claim pressed by the

appellants before us, is at the behest of at least a simple majority of the tenant-

members. Out of 69 tenant-members 35 would constitute a simple majority. The

instant petitions/appeals are now being pursued by only 5 tenant-members. In

the aforesaid view of the matter, the acceptance of the prayer made by the

tenant-members for interim directions, would not only be inappropriate but would

be unthinkable.

27.Secondly, the principal contention advanced at the hands of the learned

counsel for the petitioners/appellants before the High Court was, that after the

Page 29 resolution of the Catholic Society dated 6.12.2009 (and the consequential

conveyance deed dated 7.12.2009) is implemented, the petitioners/appellants

would lose their primary membership with the Catholic Society. This, according

to the learned counsel for the petitioners/appellants, would be violative of Section

35 of the Cooperative Societies Act, for the simple reason, that the tenant-

members cannot be compelled to lose their membership of the Cooperative-

Society, without the approval of the Registrar, Cooperative Societies. Based on

the aforesaid reasoning, it was submitted, that the resolution dated 6.12.2009

(and the consequential conveyance deed dated 7.12.2009) run counter to the

cooperative principles enshrined in the Cooperative Societies Act.

28.While determining the aforesaid claim canvassed at the hands of the

tenant-members, the Division Bench of the High Court, in the impugned order

dated 9.8.2012, had clearly recorded that there was no question of the tenant-

members losing their cooperative membership. In this behalf it was pointed out,

that all the 69 tenant-members, besides 161 allottee-members would be entitled

to occupy the tenements, consequent upon completion of the building project

emerging out of the resolution of the Catholic Society dated 6.12.2009 (and the

consequential conveyance deed dated 7.12.2009). Accordingly, the High Court

while accepting the plea advanced at the hands of the Catholic Society,

expressed the view, that after the construction of the new tenements at

Willingdon East, they would be occupied by the allottee-members and the tenant-

members. Thereafter, they would have to be enrolled as members of the

Cooperative Society to be formed by the developer, under Section 10 of the

Maharashtra Ownership of Flats (Regulation of the Promotion, Construction,

Sale, Management & Transfer) Act, 1963, read with Rule 10 of the rules framed

Page 30 thereunder. Since the aforesaid factual/legal position was not disputed before us,

during the course of hearing, we have no alternative but to accept the same.

Thus viewed, it is not possible for us to conclude that the tenant-members shall

lose their cooperative membership upon the implementation of the resolution of

the Catholic Society dated 6.12.2009 (and the consequential conveyance deed

dated 7.12.2009). We are therefore satisfied, that on the instant aspect of the

matter, the petitioners/appellants before us, will not be subjected to any

irreparable loss.

29.The third contention advanced at the hands of the learned counsel for the

petitioners/appellants, was again on the aspect of irreparable loss. It was sought

to be canvassed at the hands of the appellants, that once the resolution of the

Catholic Society dated 6.12.2009 (and the consequential conveyance deed dated

7.12.2009) is given effect to, the claim made by the tenant-members for the

bifurcation of the Catholic Society under Section 18 of the Cooperative Societies

Act will stand frustrated. It was submitted, that the position would be irreversible,

and as such, it is imperative to injunct the Catholic Society, from giving effect to

the resolution dated 6.12.2009 and the conveyance deed dated 7.12.2009.

30.Even though there may be some truth in the third submissions canvassed

at the hands of the petitioners/appellants (as has been noticed in the foregoing

paragraph), it is not possible for us to accede to the claim of the

petitioners/appellants, in the peculiar facts and circumstances of this case. In so

far as the instant aspect of the matter is concerned, it would be relevant to

mention, that the first dispute between the rival parties arose when the Catholic

Society resolved to redevelop the land measuring about 5.5 acres, known as

Page 31 Willingdon East. The aforesaid resolution was passed as far back as on

25.9.1966. The said resolution was assailed by the tenant-members under

Section 91 of the Cooperative Societies Act. The issue attained finality in favour

of Catholic Society, after a Division Bench of the High Court dismissed the intra-

court appeal preferred by the tenant-members, on 25.7.1972. The aforesaid

resolution dated 25.9.1966 (which was declared as legal by the High Court),is

sought to be given effect to by the Catholic Society, through its resolution dated

6.12.2009 (and consequential conveyance deed dated 7.12.2009). Five tenant-

members are now desirous of stalling the resolution of 25.9.1966, even though

about 47 years have gone by since then. The narration of the factual position

recorded above reveals that the Catholic Society, left to itself, would have

commenced the redevelopment of Willingdon East, comprising of 230 tenements,

more than four and a half decades prior hereto, had the tenant-members allowed

the Catholic Society to proceed with the matter in terms of its aforesaid

resolution. The instant action of the tenant-members has adversely affected all

those who would have been entitled to tenements, had the petitioners/appellants

herein not obstructed to the redevelopment resolution of the Catholic Society.

Deprivation of the rights of 230 individuals, at the behest of five of them, tilts the

balance of convenience in favour of the majority (230 – 5 = 225), and against a

miniscule minority of 5 members. In this view of the matter also, we are of the

view that the High Court while passing the impugned order dated 9.8.2012 was

fully justified,in vacating the interim order(s) passed by the learned Single Judge

(dated 11.1.2010 and 5.5.2011).

31.The main contention advanced at the hands of the learned counsel for the

petitioners/appellants, is based on a plea canvassed at the hands of the tenant-

Page 32 members for the bifurcation/division of the Catholic Society. Unless the aforesaid

issue is examined objectively, the issue in hand cannot be treated to have been

appropriately deal with. In this behalf, it would be pertinent to mention, that the

tenant-members had filed an application under Section 18 of the Cooperative

Societies Act, to protect the interest of the tenant-members of the Catholic

Society. To achieve the aforesaid objective, it was canvassed, that the Catholic

Society should be bifurcated/divided in such a manner, that one of the emerging

societies would comprise of only tenant-members. The second resultant society,

could cater to all non-tenant members. Inspite of the fact, that the aforesaid

process (seeking bifurcation of the Catholic Society) was initiated by the tenant-

members in the seventies, and inspite of the fact that about four decades have

since elapsed, the tenant-members have failed to obtain a final determination

with reference to their prayer for bifurcation/division of the Catholic Society.

32.All the same, we have independently considered the plea of

bifurcation/division raised by the petitioners/appellants noticed above. Even

though the Deputy Registrar, Cooperative Societies, Mumbai vide an order dated

28.11.2007, had allowed the prayer made by the tenant-members for

bifurcating/dividing the Catholic Society, yet the aforesaid order dated 28.11.2007

was quashed by the Divisional Joint Registrar, Cooperative Societies, Mumbai,

while disposing of an appeal preferred by the Catholic Society, on 29.9.2009. As

of now, the tenant-members have not obtained any order for bifurcating/dividing

the Catholic Society. However, what needs to be considered at the present

juncture is, that even the Federal Society, i.e., the Bombay-Thane District

Cooperative Housing Society Limited in its report dated 7.6.1980, had concluded

that there was no justification for the bifurcation/division of the Catholic Society.

Page 33 Furthermore, tenant-members had filed Revision Application no.713 of 2009

before the State Government, to assail the order passed by the Divisional Joint

Registrar, Co-operative Societies, Mumbai dated 29.9.2009. It would be relevant

to mention, that the Deputy Registrar, Co-operative Societies, Mumbai, had

ordered the bifurcation/division of the Catholic Society vide an order dated

28.11.2007. The Divisional Joint Registrar, Co-operative Societies had set aside

the aforesaid bifurcation order on 29.9.2009. The Revision Application no.713 of

2009, filed to challenge the quashing order, was withdrawn by the tenant-

members. The tenant-members must, therefore be deemed to have acquiesced

to the order dated 29.9.2009. In a sense, therefore, the plea for bifurcation may

reasonably be taken as having been not pressed, specially when, remand

proceedings are not shown to have proceeded further. Accordingly, it is natural

to infer, that the objective of the tenant-members, for seeking the

bifurcation/division of the Catholic Society, is not being seriously pursued. Even

though the matter has not attained finality as of now, yet it is not possible for us at

this juncture, to record a prima facie finding in favour of the tenant-members.

What needs to be kept in mind, is the effect of the pending consideration.

33.Merely on account of the said pending claim for bifurcation raised by 69

tenant-members, they have exclusively occupied 5.5 acres of land situated in

Santacruz, Mumbai. On the redevelopment of the said land, 230 tenements will

be created. The gains to the tenant-members, are clearly incomparable to the

loss which has ensued on account of continued status quo. 161 beneficiaries, as

per the resolution of the Catholic Society dated 25.9.1966 who had made

deposits in 1966 (at the asking of the Catholic Society) are still waiting. Thus

viewed, even on the aspect of bifurcation/ division of the Catholic Society, there

Page 34 can hardly be any justification in the prayer made by the tenant-members, for an

injunction against the resolution of the Catholic Society dated 6.12.2009 (and the

consequential conveyance deed dated 7.12.2009). The balance of convenience,

is surely not in favour of the tenant-members.

34.While we are also satisfied, that the Division Bench of the High Court in the

impugned order dated 9.8.2012 has correctly evaluated the rights of the

petitioners/appellants in their capacity as tenant-members. In so far as the

instant aspect of the matter is concerned, it would be pertinent to mention, that on

the issue whether the tenant-members had a separate identity and right (as

against the other members of the Catholic Society) came to be considered by a

learned Single Judge of the High Court in Misc. Petition no.252 of 1972. The

plaintiffs in the present suits (Suit no.144 of 2010, and Suit no.145 of 2010) are

admittedly the same as the petitioners in Misc. Petition no.252 of 1972. The High

Court having considered the aforesaid issue, namely, whether the

petitioners/appellants had any proprietary right as tenant-members of the Catholic

Society, it held as under:

“This is an entire frivolous petition by the members of a co-operative

society for writs and order under Art.226 of the Constitution quashing the

orders passed by the respondents. The effect of the impugned orders was

that the suit filed by the present petitioners for declarations that the

Resolutions passed at the annual general meeting of the first respondent

society were illegal, void and inoperative in law and that the present

petitioners to quiet and peaceful enjoyment of their respective tenements,

stood dismissed by the appropriate authorities under the Maharashtra

Cooperative Societies Act, 1960. In challenging the said orders by the

present petition, the petitioners have raised various contentions, but I need

refer to only three of them and they are as follows:

(1)that the general body of the first respondent society has no

power to deprive the petitioners of their tenements;

...........

Page 35 In support of the first proposition Mr.B.R. Nayak has relied on the

decision of the Full Bench of this Court in the case of Manohar vs. Konkan

Co.op Housing Society (63 Bom. L.R. 1001 at 1006), but I am afraid the

said decision instead of helping Mr.Nayak on the point, is against him in so

far as it lays down in unmistakable terms that it is the society alone which

is the absolute owner of the property and the members of the society have

merely the rights and obligations conferred by the various provisions of the

statute itself. It is, therefore, quite clear that it is the society that, as the

absolute owner of the property, would have all the rights which any other

owner of the property has, and that the petitioners have no proprietary

interest at all in their tenements. Under the circumstances, the petitioners

do not have even a prima facie case on the point that the first respondent

society has no right to depirve them of their tenements.”

The applicants in Misc. Petition no.252 of 1972, assailed the order dated

17.4.1972 (extracted above), by filing Appeal no.74 of 1972. Appeal no. 74 of

1972, was dismissed by a Division Bench of the High Court, on 25.7.1972. The

aforesaid determination attained finality between the rival parties. In the

impugned order dated 9.8.2012, the Division Bench of the High Court by relying

upon the aforesaid determination, further concluded that, the

petitioners/appellants are disentitled in law to claim the relief sought by them. It

is apparent, that the relief sought by the tenant-members, is a relief which can

ordinarily be sought only by individuals/parties who have a proprietary interest, in

the subject matter. While we concur with the Division Bench, to the effect that the

tenant-members have no proprietary interest in the subject matter of the

controversy, it is necessary for us to refrain from further determining, whether or

not the petitioners/appellants in their capacity as tenant-members having no

proprietary interest can still claim an exclusive right to redevelop a part of 5.5

acres of land constituting Willingdon East, (even if it is assumed, that they do not

have a right to redevelop, the entire land of Willingdon East), by seeking a

bifurcation of the Catholic Society. Be that as it may, the Catholic Society has

undoubtedly, on the basis of the instant consideration, made out a prima facie

Page 36 case in its favour (the final determination whereof will only be rendered, at the

culmination of the proceedings, initiated through the civil suits referred to above).

In view of the deliberations recorded hereinabove, yet again it would be

inappropriate to grant an injunction, restraining all redevelopmental activities, in

terms of the prayer made by the petitioners/appellants.

35.In the background of the conclusions drawn by us hereinabove, it is no

longer necessary to examine the matter under any other parameter(s). Be that as

it may, we wish to consider the claim raised by the tenant-members, i.e., the

petitioners/appellants before us, on the basis of their contention that whilst the

conveyance deed dated 7.12.2009 contemplates a consideration of Rs.70 crores

payable to the Catholic Society, the tenant-members had been able to procure a

better offer, wherein, for the same developmental project the consideration

offered was of Rs.75 crores.

36.The instant issue has been examined minutely by the High Court in the

impugned order dated 9.8.2012. While doing so, the High Court has drawn the

following conclusions. Firstly, that only M/s. Robin Home Developers Pvt. Ltd.

(M/s. Sumer Associates) had come forward with a proposal of redevelopment of

Willingdon East. Due to the pending litigation, no recognized builder was

prepared to make an unconditional offer on “as is where is” basis. Most of the

builders wanted the Catholic Society to settle the pending litigation. Since the

litigation had been pending for the last more than four decades, the Catholic

Society was not in a position to abide by the pre-condition canvassed at the

behest of the recognized builders. Secondly, the Catholic Society at the time of

the general body meeting held on 6.12.2009, had only one proposal, namely, the

Page 37 proposal of M/s. Sumer Associates. Thirdly, M/s. Sumer Associates had assured

the Catholic Society of a sum of Rs.70 crores. In fact, the aforesaid amount of

Rs.70 crores was kept in escrow by M/s. Sumer Associates. Fourthly, during the

general body meeting of the Catholic Society, some of the tenant-members orally

made an offer of Rs.75 crores without depositing a single paisa as against the

concrete proposal of M/s. Sumer Associates. Fifthly, based on the documents

placed on the record, it was clear, that the offer of Rs.75 crores made by the

tenant-members, was in fact made by a rival builder, namely, Mr. B.Y. Chavan

(who was duly impleaded before the High Court). It is therefore, that the Division

Bench of the High Court in the impugned order dated 9.8.2012, made the

following observations:-

“33.It was urged by the learned counsel for the appellants that Mr.

Chavan is instigating the plaintiffs to carry on the litigation. Bills

submitted by the Attorneys have been placed on record, to show that

Mr. Chavan has been actively instrumental in giving instructions to

the solicitors/counsels for the plaintiffs. The correspondence is

placed on record to demonstrate that the offer of Rs.75 crore has

been made at the behest of Mr. Chavan. Mr. Chavan is a party to

the proceeding and his right, if any, is based on the MOU executed in

his favour by only 8 tenant-members. Mr. Chavan was present at the

conferences held by the plaintiff’ solicitors as evidenced from the

bills sent by the solicitors for the conferences held on 29 September

2009, 4 December 2009, 5 December 2009 and 12 December 2009

regarding writ petitions/suits filed by the plaintiffs against the Society.

Having seen the conduct of the said developer-Mr. Chavan, the

Society had no confidence in him and his associates and has

expressed confidence in the M/s. Sumer Associates. It is for the

Society to decide who should be given the development rights and

not for a small minority of 15 persons like the plaintiffs. The plaintiffs

urged at length before us that the course adopted by the Sumer

Associates is inequitable and bad in law. However, when the

counsel for Mr. Chavan at the end of the hearing made an offer for

higher figure and act exactly in the same manner as M/s. Sumer

Associates, no objection was raised by the plaintiffs. No contention

was then raised that development through Mr. Chavan in the same

manner as M/s. Sumer Associates will affect the claim of plaintiffs of

bifurcation of the Society. Thus upon offer of Mr. Chavan, all

arguments of the plaintiffs based on law and equity vanished. This

conduct of the plaintiffs is relevant when the Court considers passing

Page 38 equitable orders. Such conduct of the plaintiffs themselves is

against the spirit of co-operative movement and there can be no

other higher breach of principles of co-operative movement when a

small minority of members stall the decision of overwhelming

majority of members and deprive the members of their legitimate

claim. The Court proceedings cannot be used as an instrument of

harassment and extortion. Prima facie, we find substance in the

contention of the Society that Mr. Chavan is using the plaintiffs as a

tool to block the redevelopment of the Society.”

The aforesaid conclusion drawn by the High Court is sought to be reiterated by

the applicants in Interlocutory Application nos. 17-19 of 2012. As already noticed

hereinabove, the instant interlocutory applications have been filed by three of the

petitioners/appellants, namely, Jennifer Pegado, Elwyn D Cruz and Don Donato

D’Silva. In paragraph 2 of their aforesaid applications, it was sought to be

averred as under:-

“2.That the above petition was filed by these petitioners at the instance

of B.Y. Chavan and Sagar Builders & Developers i.e. respondent

nos. 17 and 18 in the above petition and who have been instigating

the tenants in the property to pursue a Bifurcation Application and

stall the re-development of the Willingdon (East) property which has

been sold by the respondent no. 1-Society to the respondent no. 20.

The said respondent nos. 17 and 18 have been spending the entire

litigation expenses for the last number of years as also in respect of

the present petition with a view to obstruct re-development of the

Willingdon (East) property in view of they being unsuccessful in

acquiring the same by causing a bifurcation of the Society. These

petitioners have now realized that the above petition being

prosecuted is only in the interest of B.Y. Chavan and Sagar Builders

& Developers, the respondent nos. 17 and 18 in the above matter

and therefore having settled their differences with the respondent no.

1 and respondent no. 2 have addressed letters to Advocates Shally

Bhasin Maheshwari, who has been engaged by the respondent nos.

17 and 18 on behalf of the petitioners calling upon the said

Advocates to forthwith withdraw the above Special Leave Petition.

However, notwithstanding the said instructions the said Advocates

have failed to withdraw the petition and now instead of withdrawing

the petition seek to continue with this Special Leave Petition by

merely dropping these petitioners as petitioners. The petitioner no. 6

Martin James Michael has also settled his differences with

respondent nos. 1 and 20 and his siblings and has also instructed

Advocate Shally Bhasin Maheshwari to withdraw the petition,

however, since then he has sometime in the past few weeks passed

away and therefore he may be dropped as petitioner.”

Page 39 Based on the factual position noticed by three of the petitioners/appellants in I.A.

nos. 17-19 of 2012, the finding recorded by the High Court in respect of the offer

of Rs.75 crores can be stated to have been made at the behest of a rival builder

Mr. B.Y. Chavan. Mr. B.Y. Chavan has even paid for the litigation expenses of

the tenant-members. The tenant-members readily accepted the offer made by

Mr. B.Y. Chavan, when he proposed before the High Court that he would act in

the same manner as M/s. Sumer Associates. It is therefore natural to infer, that

the tenant-members are agreeable to the redevelopment of 5.5 acres land

comprising of Willingdon East in the manner contemplated by the resolution of

the Catholic Society dated 6.12.2009 (and the consequential conveyance deed

dated 7.12.2009), which is impugned in the suits filed by the tenant-members.

This also prima facie shows that the action of the tenant-members prima facie

seems to lack bona fides. We therefore affirm the determination rendered by the

High Court in the impugned order, that it was for the Catholic Society to decide

who should be given the redevelopmental rights, and not the tenant-members

who are a small minority of 15 persons (the number having now diminished to 5)

who have initiated the litigation out of which the present proceedings have arisen.

As of now, therefore, it is possible to prima facie infer, that the

petitioners’/appellants’ claim before the High Court does not seem to be bona

fide. They also do not prima facie seem to have genuinely initiated the instant

litigation. In the above view of the matter, the opinion recorded by the High

Court, that all arguments of the plaintiff based on law and equity vanished, upon

the offer made by Mr. B.Y. Chavan, cannot be stated to be unjustified.

37.For all the reasons recorded hereinabove, we find no merit in the instant

Civil Appeals. The same are accordingly hereby dismissed.

Page 40 …………………………… .J.

(P. Sathasivam)

…………………………….J.

(Jagdish Singh Khehar)

New Delhi;

March 22, 2013.