Here I have
published four judgments passed by High Court of Mumbai
in the matter of Minority v/s
majority of members agreeing to the proposal of Redevelopment which are contradictory to each other.
However, the High Court
Judgments dated 11/12/2009 and 28/06/2010 over rule all the earlier
Judgments the High Court has given in September, 2007 and on dated 09/12/2009.
All the four cases are summarized here under:
1.
HC JUDGMENT
DATED 31ST AUGUST 07: RULED THAT DISSENTING MINORITY MEMBERS COULD BE EVICTED
FORCIBLY: In the case of
Sahara Co-op Hsg Society (Khar), Justice
A M Khanwilkar of the Bombay High
Court paved the way for easy
redevelopment by ruling that 2 members who had not given their consent to
the builder, could be evicted
forcibly. He ruled that a dissenting minority of flat owners cannot stall redevelopment
plans of their building and could be forcibly evicted from their
homes with the help of the police if necessary. The Judgment
was passed in the favor of the Raja builders on 31st August 07, Mumbai, leaving
the flat owners
with no option but to give their flats to the builder.
2.
HC JUDGMENT
DATED: 09/12/2009: EVEN ONE OBJECTOR CAN’T BE IGNORED DESPITE MAJORITY NOD: Justice S C Dharmadhikari of the Bombay High
Court held that even a single
dissenting member of a co-op housing Society cannot
be thrown out by a builder based on a mere
development agreement with the Society
and a majority of its flat owners for redevelopment of the
building. The Court clearly indicated that a Development Agreement
entered into by the Housing Society with
a builder, despite having the consent of a majority of members, cannot bind the minority
if the reconstruction is not in the
interest of "ALL" members of the Society.
3.
HC JUDGMENT
DATED: 11/12/2009: MINORITY CAN’T OBSTRUCT A REDEVELOPMENT PROJECT: In the case of
Godi Kamgar CHS (Madhuvan) in
Andheri (West), a Division Bench of the Bombay HC
overturned the single judge verdict dated 09/12/2009 and the then Chief Justice Swatanter Kumar and Justice
Ajay Khanwilkar held that “merely because some members in minority
disapprove of the decision, it cannot be the basis to negate the resolution
of the General Body unless
they show that there is some prejudice caused to them
or a fraud has been committed”.
4.
HC JUDGMENT
DATED: 28/06/2010: ORDER AGAINST APPEAL PASSED THAT THE “OBSTRUCTING MINORITY’’
TO VACATE THEIR FLATS WITHIN TWO WEEKS: On June 28,
2010 in the case of Godi Kamgar CHS
(Madhuvan) in Andheri (West), the Bombay High
Court has once again ruled that members of a co-operative housing society
who are in minority cannot obstruct a
redevelopment project and must abide by the majority decision of the society.
The Bombay high court dismissed
an appeal filed by the members who were in minority
to challenge an earlier order Dated 11/12/2010 of the court which too had
gone against them. A bench of Chief
Justice Mohit Shah and Justice S C Dharmadhikari ordered the members to vacate their flats within two weeks.
If the minority
dissenting members do not have points on merits and if the Society
has gone by the law, the minority may ultimately
lose before the law. What is important is the merit in the objections.
Per se, rule of majority is not the
solution, whether it is redevelopment
or any other matter in a Co-operative
Society.
In case of
tenanted Societies also, in a recent ruling, the Bombay High Court has
stated that the issue of minority of
tenants cannot be an obstacle for
redeveloping a property if minimum 70%
of the tenants are ready for the
same.
The judgment
came against a matter of a
redevelopment in Dadar where 17 members were opposing the redevelopment of an old Parsi chawl. Based on the writ
petition filed by the group of dissenting members, Justice D. B. Bhosale granted the permission to BMC
to forcibly evict the families with the police help in case of any opposition
from the others against the redevelopment.
It is important
to note that as per the section 103B of
Maharashtra Housing and Area Development
Act, 1976, with the guidelines for redevelopment of old Municipal Properties
by the Municipal Tenants Co-Operative
Housing Societies on the land
owned by the Corporation under regulation 33(7)
of the Development Control Regulations
for Greater Bombay, 1991,
it is necessary that more than 70%
of the eligible existing Municipal
tenants should give written consent to
redevelop the property under the scheme with a formation of a Co- Operative Society/ Association and an initiative
proposal for the redevelopment.
The court has
held that once 70% or more occupants /tenants give their consent for
redevelopment by forming a co-operative body and if
the scheme is approved by the Corporation,
it is binding to all other occupants.
As per the guidelines, the tenants/ occupants with separate stand, have no
choice but to follow the norms. Being in minority
(about 30% or less than that) the
only choice for them remains is, to give up their tenancy rights
and quit from the scheme.
It is an
established position of law that a Development
Agreement by itself does
not create rights in a property in a developer’s favour. The developer,
thus, has no locus standi and cannot be entertained for eviction of such
dissenting members of the Society. But the society can approach the co-operative court to
enforce its resolution.
In a society, decisions are not necessarily taken by the
application of mind by all. More often than not, some individuals
influence the majority. That is because normally, only a handful are able to
evaluate right and wrong and
distinguish between what is talked about and what is actually being done.
If the minority
dissenting members do not have points on merits and the society has
gone by the law, the minority may ultimately
lose before the law. What is important is
the merit in the objections raised by such
minority dissenting members. Per se, rule of majority is not the solution,
whether it is redevelopment or any other matter in a co-operative
society.
A well drafted
consent of at least ¾ of the Society members must be obtained in writing during the
Society meetings when the subject of
redevelopment is discussed. The consent has to be tendered by the members
in favor of Redevelopment has to be
given once only. However, the minority members of
co-operative housing society cannot obstruct a redevelopment project
unless they show that there is some prejudice caused to them
or a fraud has been committed concludes Adv. R. P. Rathod.
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