Supreme Court of India
MARGARET ALMEIDA & ORS. ETC.versusBOMBAY CATHOLIC CO-OPERATIVE HOUSING SOCIETY LTD. & ORS.
- Citation
- 2013 INSC 195
- Decided
- 22 March 2013
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The Court held that the tenant‑members are not entitled to interim relief as they lack proprietary interest and are a minuscule minority, and the balance of convenience lies with the majority of the Society.
Summary
The Bombay Catholic Co‑operative Housing Society resolved in 1966 to redevelop its Willingdon East land, allocating 161 flats to allottee‑members and 69 to tenant‑members. After decades of litigation, the Society passed a 2009 resolution and executed a conveyance to a developer for Rs 70 crore, which the tenant‑members sought to restrain. The tenant‑members, now reduced to five petitioners, claimed a proprietary right and argued that the resolution violated Section 35 of the Cooperative Societies Act and that they were entitled to interim relief. The Supreme Court held that the tenant‑members have no proprietary interest, that the interim relief would cause no irreparable loss, and that the balance of convenience favours the majority of 225 members. Consequently, the Court dismissed the appeals and affirmed the High Court’s order vacating the interim injunction.
Issues considered
- Whether the tenant‑members are entitled to interim relief restraining the Society's redevelopment resolution and conveyance.
- Whether the tenant‑members possess a proprietary interest in the subject land sufficient to grant injunctions.
- Whether the 2009 resolution and conveyance contravene cooperative principles under the Maharashtra Cooperative Societies Act.
- Whether the pending bifurcation application under Section 18 affects the grant of interim relief.
- Whether the balance of convenience favours the minority tenant‑members or the majority of the Society.
Legislation cited
Subjects
interim reliefco‑operative societyredevelopmentbifurcationbalance of convenienceproprietary interestSection 18Section 91Section 35civil appeal
Judgment
[2013] 5 S.C.R. 871
MARGARET ALMEIDA & ORS. ETC. A
v.
BOMBAY CATHOLIC CO-OPERATIVE HOUSING SOCIETY
LTD. & ORS.
(Civil Appeal N'os. 2683-2685 of 2013)
MARCH 22, 2013 B
[P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]
Interim Relief - Entitlement - Housing Society passes
resolution on 25.9.1966 for re-development of the area which c
was let out to 69 tenant members - As per resolution, after
redevelopment, 230 tenements would be constructed out of
which 161 were meant for allottee-members and 69 for the
tenant-members - The resolution, when challenged by tenant-
members u/s. 91 of Co-operative Societies Act, attained D
finality in favour of the Society- 161 beneficiaries also made
deposits in the year 1966 to the Society - The tenant-
members again challenged the resolution u/s. 18 of the Act
seeking bifurcation of the Society, which issue is still pending
- The Society by its resolution dated 6.12.2009 gave effect E
to its earlier resolution dated 25. 9. 1966 - Consequential
conveyance deed dated 7.12.2009 was executed- 15 out of
the 69 tenant-members, then filed suits seeking direction to
restrain the society from taking steps in furtherance of
resolution dated 6. 12. 2009 and the consequential
conveyance deed - Interim relief not granted - In Notice of F
Motion, Single Judge of High Court granted interim relief and
subsequently made the interim order absolute - Division
Bench of High Court vacated the interim .order - ·Held: The
tenant-members are not entitled to interim relief - By vacating
the interim order no irreparable loss is caused to them - They G
being in minority (initially at the time of filing of suit 15 and
when reached this Court reduced to 5) as against 225
members, balance of convenience is in favour of the majority
871 H
872 SUPREME COURT REPORTS [2013] 5 S.C.R.
A and not the contesting tenant-members - Their plea to
procure a better offer for development than that offered to
Society, also shows that they are agreeable to development
and the initiation of proceedings for restraining development
- lacks bonafide - The tenant-members are also not entitled
B to the interim relief as they do not have proprietary interest in
the subject matter.
The respondent-housing Society developed three
blocks of land namely 'Willingdon West', 'Willingdon
South' and 'Willingdon East'. It sold 'Willingdon West'
C area to shareholders on freehold basis and leased out the
area in 'Willingdon South' to its shareholders. In the
'Willingdon East' the respondent-Society constructed 25
cottages and the same were let out to tenant-members
(including the appellants).
D
The respondent-Society passed a resolution on 25-
9-1966 to redevelop the land in 'Willingdon East' by
raising new apartments by demolishing 25 cottages, to
house 230 tenements. Out of the 230 tenements, 161
E tenements would be meant for allottee-members and the
remaining 69 tenements for the tenant-members who
were already in occupation of 25 cottages.
The tenant-members assailed the resolution uls.91 of
Co-operative Societies Act. After the same was finally
F decided against the tenant members, the respondent-
Society invited applications for allotment of flats as per
the resolution dated 25.9.1966 and collected advance
from about 200 members.
G The tenant-members again challenged the
redevelopment proposal u/s.18 of Co-operative Societies
Act, praying for the bifurcation of the Catholic society into
two i.e. one comprising of only tenant-members and the
other comprising of all non tenant-members. The same
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 873
HOUSING SOC. LTD.
also did not culminate in favour of the tenant-members, A
as the teoant-members ultimately withdrew their
. challenge and undertook to co-operate with the
respondent-Society for redeveloping the Willingdon East
area as envisaged in the resolution of the respondent-
Society dated 6.12.2009. In compliance of the resolution 8
dated 6,12.2009, a conveyance dated 7.12.2009 came to
be executed.
Some of the tenant-members filed two civil suits
praying for direction to the respondent-Society to restrain
from taking steps in furtherance of the resolution dated C
6.12.2009 and the consequential conveyance deed dated
7.12.2009. As the interil'J!_ r-elief was not granted to the
tenant-members, they moved Notice of Motion, wherein
the Single Judge of High Court granted interim relief.
Single Judge by a further order dated 5.5.2011 made the D
Interim order absolute. In appeal, Division Bench of High.
Court vacat_ed the interim order granted by the Single
Judge. Hence the present appeals.
Dismissrng the appeals, the Court
E
HELD: 1. The Catholic Society comprised of about
745 members. Out of these members the strength of the
tenant-members at the present juncture is 69. The relief
sought in the two suits is a claim for rights, on account
of being tenant-members. The suits were filed by only 15 F ·
tenant-members. The suits were not filed in a
representative capacity, and as such, it would be
incorrect to assllme, that the suits can be considered to
have been filed by all the 69 tenant-members. The number
of tenant-members who were pursuing their remedy G
through the afore-said suits, has diminished further before
this Court, inasmuch as Special Leave Petition filed by
them comprises of eight petitioners only. Further, three
of the eight petitioners had prayer for transposing them
as respondents, as they did not want to pursue the matter H
1-
874 SUPREME COURT REPORTS [2013] 5 S.C.R.
A any further (along with the remaining petitioners). Thus,
the strength of the tenant-members who had initiated the
civil suits has successively diminished from 15. Keeping
in mind, that the total tenant-members are 69, and the
relief sought in the suits, and now through the instant
B 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 this Court is at the
C behest of at least a simple majority of the tenant-
members. Therefore, acceptance of the prayer made by
the tenant-members for interim directions, would not only
be inappropriate but would be unthinkable. [Para 26]
[910-8-H; 911-A-E]
D
2. It cannot be said that the tenant-members would
lose their co-operative membership upon implementation
of the resolution of the Catholic Society dated 6.12.2009
(and the consequential conveyance deed dated
E 7.12.2009). 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). Thereafter, they
F would have to be enrolled as members of the Cooperative
Society to be formed by the developer, u/s. 10 of the
Maharashtra Ownership of Flats (Regulation of the
Promotion, Construction, Sale, Management & Transfer)
Act, 1963, r/w. Rule 10 of the rules framed thereunder.
G Thus on the instant aspect of the matter, the petitioners/
appellants will not be subjected to any irreparable loss.
[Para 28] [912-8-C, D-E, F-G]
3.1. In the peculiar facts and circumstances of the
H case, it is not possible for this Court to accede to the
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 875
HOUSING SOC. LTD.
claim of the appellants that their claim for the bifurcation A
of the Catholic Society under Section 18 of the
Cooperative Societies Act would stand frustrated if
resolution dated 6.12.2009 is given effect to. The first
dispute between the rival parties arose when the Catholic
Society resolved to redevelop the land measuring about B
5.5 acres, known as 'Willingdon East', by resolution
passed on 25.9.1966. The said resolution was assailed by
the tenant-members under Section 91 of the Cooperative
Societies Act, and the issue attained finality in favour of
Catholic Society, after a Division Bench of the High Court C
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
0
consequential conveyance deed dated 7.12.2009). Five
tenant-members are now desirous of stalling the
res~lution of25j).1966, even though about 47 years have
gone by since then. Thus the Catholic Society, left to
itself, would have commenced the redevelopment of
'Willingdon East', comprising of 230 tenements, more E
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 F
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 balarice of convenience in favour
=
of the majority (230 - 5 225), and against a miniscule G
minority of 5 members. In this view of the matter also, the
. High Court while passing the impugned order dated
9.8.2012 was fully justified, in vacating the interim order(s)
passed by the Single Judge. [Paras 29 and 30) [913-A-B,
C-H; 914-AB] H· .
876 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 3.2. tenant-members had filed an application
under Section 18 of the Co-operative 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
B 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. lnspite of the fact, that the aforesaid
process (seeking bifurcation of the Catholic Society) was .
c 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. [Para 31] [914-
D D-F]
3.3. Merely on account of the said pending claim lor
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
E land, 230 tenements would 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 Cath.olic
Society dated 25.9.1966 who had made deposits in 1966
F (at the asking of the CathQlic Society) are still waiting.
Thus viewed, even on the aspect of bifurcation/ division
of the Catholic Society, there can hardly be any
justification in the prayer made by the tenant-members,
for an injunction against the resolution of the Catholic
G 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. [Para 33] [915-G-H; 916-A-C]
4. It has been determined by the High Court that the
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 877
HOUSING SOC. LTD.
petitioners/appellants did not have any proprietary right A
as tenant-members of the Catholic Society. This
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/ B
appellants are disentitled in law to claim the relief sought
by them. Thus 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. The Catholic Society has thus made out c
a prima facie case in its favour (the final determination
whereof will only be rendered, at the culmination of the
proceedings, initiated through the civil suits). Therefore,
it would be inappropriate to grant an injunction,
restraining all redevelopmental activities, in terms of the
0
prayer made by the petitioners/appellants. [Para 34] [916-
D; 918-A-C, D-E]
5. As regards the plea of the tenant-members, that
they were able to procure a better offer i.e. 75 crores, for
the same developmental project as against the E
conveyance deed dated 7.12.2009 which contemplated a
consideration of Rs.70 crores payable to the Catholic
Society, the High Court recorded the finding that the offer ·
of Rs.75 crores can be stated to have been made at the
behest of a rival builder who has even paid for the F
litigation expenses of the tenant-members. The tenant-
members readily accepted the offer made by the rival
builder, when he proposed before the High Court that he
would act in the same manner as the builder who had
come forward with proposal of redevelopment G
contemplated by the resolution of the Catholic Society.
Therefore, it can be inferred 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 H
878 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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 tides. Therefore,.this Court affirms the determination
B rendered by the High Court 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
c 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.
D [Para 35 and 36] [918-F-G; 922-D-H; 923-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
2683-2685 of 2013.
From the Judgments & Orders dated 09.08.2012 of the
E High Court of Judicature at Bombay in Appeal No. 413 of 2011
in Notice of Motion No. 172 of 2010 in Suit No. 144 of 2010,
Appeal No. 489 of 2011 in Notice of Motion No. 172 of 2010
in Suit No. 144 of 201 O and Appeal No. 573 of 2011 in Notice
of Motion No. 172 of 2010 in Suit No. 144 of 2010.
F WITH
C.A. Nos. 2686-2688 & 2689-2690 of 2013.
Mukul Rohtagi, J.J. Bhat, C.A. Sundaram, Vineet B. Naik,
Abhinav Vaisht, Rafique Dada, Shyam Divan, L.N. Rao, Shally
G Bhasin Maheshwari, Purnima Bhat, C.D. Mehta, Nikhil Nayyar,
Pritha Srikumar, T.V.S. Raghavendra Sreyas, Lalan Gupta,
Bhavik Mehta, Vatsal Merchant, Pratap Venugopal, Varun
Singh, K.J. John & Co., Aman Vachher, Ashutosh Dubey, Harsh
Sharma Vriti Anand, P.N. Puri, P.S. Sudheer, Abu John
H Mathew, Rishi Maheshwari, Garima Prashad, Ranjeeta Rohtagi
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 879
HOUSING SOC. LTD.
for the appearing parties. A
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. Leave granted in all
matters.
B
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 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 C
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), D
(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
E
(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 F
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. G
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 : H
880 SUPREME COURT REPORTS [2013] 5 S.C.R.
A "Amardev J. Uniyal,
Advocate High Court
13th August 2012
Margaret Almeida & Ors.,
B
Madam/Sirs,
Re : Appeal Nos.413 of 2011, 489 of 2011 and 573 of
2011 filed in Bombay High Court.
c
1. This is to inform you that the hearing in the aforesaid
matters concluded on 9th august 2012. The Hon'ble Court
pronounced the operative part of the Order directing that
the aforesaid appeals are allowed and interim order dated
D
5th 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.
E 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 30th September 2012. I have made an
F 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
G order dated 9th August 2012 at the earliest.
Yours faithfully,
Sd/-
for (Amardev J. Uniyal)"
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 881
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
.The aforesaid letter was filed before this Court by the appellant A
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 8
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 C
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 extended from time to time D
(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 E
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 F
Limited (hereinafter referred to as "the Catholic Society") was
incorporated and registered in 1914. In 1917 the Catholic
Society was registered under the Central Cooperativ.e
Societies Act, 1912. The objects of the Catholic Society, as
per its bye-laws, were to carry on buying, selling, hiring, letting G
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 H
882 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 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
B 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
c to as Willingdon West, Willingdon East and Willingdon South.
The area in Willingdon West measuring about 17.12 acres was
sold to 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
0 998 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
E 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
F 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
G 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
H on the other hand. The Catholic Society is the respondent
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 883
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
herein, whereas, some of the tenant-members are the A
contesting appellants.
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
B
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 benefit of a larger number of persons.
To give effect to the aforesaid determination, the Catholic C
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 D
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 E
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 F
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 G
.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 H
884 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 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
B by a Division 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
c 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
D 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
E 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
F 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
G 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
H the bifurcation of Willingdon East. The foundation of the
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-.OP 885
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
aforesaid clairn was based on the fact that the interest of the A
tenant-members was not being adequately protected as 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 of which an overwhelming 685 members B
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 c
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 D
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 E
managing the affairs of 5.5 acres of land known as Willingdon
East. One of the bifu.rcated 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 F
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 G
Societies issued a draft order dated 6.9.1979 recording a
tentative satisfaction for the bifurcation of the Catholic 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, H
886 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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,
disapproving1 and rejecting the proposed bifurcation of the
B Willingdon East, in terms of the draft order of the District Deputy
Registrar, 6ooperative Societies dated 6.9.1979.
13. In addition to the response filed by the Catholic Society
refe'rred to in the foregoing paragraph, the Catholic Society also
C 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
D 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
E 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
F order dated 6.9.1979 proposing bifurcation/division of the
Catholic Society, was withdrawn.
14. The tenant-members assailed the order dated
27 .6.1980 withdrawing the draft order proposing bifurcation/
G 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
H Catholic Society.
MARGARET ALMEIDA v. BOMBAY CATHOLIC co~oP 887
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
15. The Catholic Society assailed the order of the A
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 B
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 c
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 D
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 E
Government. Since the Catholic Society was not granted any
interim order during the pendency of the revision petition, the
Assistant Registrar; Cooperative Societies, Mumbai,
proceeded with the matter from the stage of the draft order. By
~n order dated 22.3.1983 the Assistant Registrar, Cooperative F
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
G
(ii) The Bombay Catholic Cooperative (Tenants) Housing
Society Ltd.
The society at (i} above; would be comprised of lessee-
H
888 SUPREME COURT REPORTS [2013) 5 S.C.R. ·
A 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
B 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
C 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
D 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:
E
"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 oppressive to the
F 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
G
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
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 889
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
tenant members against payment of reasonable A
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 B
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 c
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
0
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 E
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 F
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 G
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 H
890 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 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 le·arned counsel for the shareholder
B 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
c 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 jurisdiction and cannot be said to
have erred in affirming the order of the Assistant Registrar
D
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
E 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
F 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
G 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
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 891
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
Act, it was necessary for the Deputy Registrar not only to A
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 B
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, wiU have to read
into the provisions iri order to make the requi~ement of
consultation effective and meaningful. In the present case,c
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 D
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.
E
5. In the result, therefore, the appeal succeeds and is
allowed. The order dated 22.2.1983 passed by the Deputy
Registrar, Co-operative Societies directing bifurcation of
the petitioner-society is set aside. The orders passed by
the Authorities under the Maharashtra Co-operative F
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 apJ:>ear
before the Deputy Registrar on 27.8.2007 with a copy of
this order. The petitioner shall also serve a notice on the G
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 snall
thereafter permit the parties to file any additional affidavits
and documents that they may want to file and then proceed H
892 SUPREME COURT REPORTS [2013] 5 S.C.R.
A .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
B 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
C 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
D 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
E hereunder :
"ORDER
I, Dr. P.I. Khandgale, the Deputy Registrar, Co-
operative Societies, H f'N), Ward, Mumbai, under the
F
powers conferred upon me under Section 18( 1) of
Maharashtra Co-operative Societies Act 1960 and Rule
17(2) of the Maharashtra Co-operative So"cieties Act,
1961 in the interest of smooth working, administration and
in the interest of members and also in view of public interest
G make division of "The Bombay Catholic Co-op Hsg,
Society Ltd., S.V. Road, Santacruz f'Nest), Mumbai - 400
054.
And de-register the society viz. The Bombay Catholic
H Co-op Housing Society Ltd. S.V. Road, Santacruz f'N),
..,
·
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 893
HOUSiNG SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
Mumbai -400 054, having Registration No.1412of1917, A
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 B
Housing societies are being registeredunder registration
numbers as mentioned hereunder :
SL Name and address Members Registration
No. of society number and date
c
1 The Bombay Catholic Freeholders, MUM/WHW/H
(Leasehold, Free- Leaseholders S.G./(TC)/
-hold and others) and others. 14007/2007-08,
Co~operative YEAR 2007 D
Housing Society Ltd. DATED 28/11/
S.V. Road, Santacruz 2007
(West), Mumbai-54.
~
2. The Bombay Catholic Tenant MUM/WHW/H E
(Tenants and Allottee) Members and S.G./(TC)/14008
Coop. Hsg. Society allottee /2007-08, YEAR
Ltd., 24, Willingdon members 2007 DATED
East, Santacruz (W), 28/11/2007
Mmbai-400054
F
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) G
(1) Share Capital To divide the same as collected from
the Members
(2) Sinking Fund As per shares actually held by the
members. H
894 SUPREME COURT REPORTS [2013)5 S.C.R.
A (3) Reserved Fund As per shares actually held by the
me;nbers.
(4) Other reserved As per shares actually held
fund by the members
B (5) Amount of As collected from the members.
deposits
(6) Amount in As collected from the members.
balance
c (7) Societies dues Shall be made according to the
payable and members and the office bearers of
receivable the society shall take decision as
regards arrears.
D (8) By laws of the It shall be mandatory for new
society societies to adopt by-laws of the
Bombay Catholic (Leasehold,
Freehold and others) Co-operative
Housing Society Ltd.
E
(9) Societies old It shall remain at the earlier place
office where earlier office situated and the
secretaries of both the society shall
remain custodian· of this office and
the records therein shall be remained
F
available for members of both the
societies and the same shall remain
in the possession of the members in
whole societies compound it
remains.
G
(10) Land of the
Society
(i) The Bombay
Catholic The land of Willingdon South and
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 895
HOUSING SOC. LTD. (JAGDISH SINGH KHEHAR, J.]
(Leasehold, Willingdon South and Willingdon A
Freehold and
others) Co-op.
Housing Society
ltd.
B
(ii) The Bombay 5 Yz acres land of Willingdon East
Catholic (Tenant together with 25 t cottage and one
and Allottee) shed therein
Co-op. Housing
Society Ltd.
c
(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 D
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 E
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 F
(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 G
protected.
(13) In order to look after the daily affairs of the two
societies formed after division of the original
H
896 SUPREME COURT REPORTS [2013) 5 S.C.R.
A society, society wise Board of Administrators is
being appointed.
1. Following persons shall be the members of the
managing committee of the Bombay Catholic
B (Leasehold, Freehold and others) co-operative
Housing Society Ltd., Santacruz (West), Mumbai -
54, to Hok after its affairs.
(a) Shri A.F.E. D'costa, Chairman, managing
Committee.
c
(b) Shri F.J. Naronna, Committee Members,
Managing Committee.
(c) Shri Leo Rodrigues, Committee Members,
Managing Committee
D
(d) Shri B. Pulgado, Committee Members,
Managing Committee
(e) Captain F.S. Vittal, Committee Members,
E 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.
F
(a) Smt. C. Castaleno, Chairman, Managing
Committee.
(b) Shri J. Rodrigues, Committee members,
Managing Committee.
G
(c) Shri Francis Philips, Committee
members, Managing Co_mmittee.
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 897
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
(d) Shri Anthoni Disa, Committee members, A
Managing Committee.
(e) Smt. A. Fernandes, Committee
members, Managing Committee.
This order is issued on this day, the date 28.11.2007, 8
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, c
Mumbai, by filing an appeal before the Jo!nt Registrar, Co-
operative Societies, Mumbai. In fact, a separate appeal was
also fried 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 D
Societies, Mumbai disposed of appeal no.246 of 2007 (frJed
by the Catholic Society) and Appeal no.27 of 2008 (fried by the
tenant-members) by a common order dated 29.9.2009. The
operative part of the aforesaid appellate order is being
extracted hereunder :
E
"ORDER
(1) The Appeal No.246/2007 & Appeal No.27/2008
are disposed of.
(2) The impugned order dated 28.11.2007 passed by F
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.
G
(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.
H
898 SUPREME COURT REPORTS [2013] 5 S.C.R.
A (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."
8
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
C 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.
D
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
E 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
F 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 :
G "ORDER
1. Applicant is allowed to withdraw Revision
Application No.713/2009.
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 899
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
2. Order dt.29.9.2009 of the Defendant No.1 A
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. B
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, C
is hereby quashed.
4. No Order as to the costs."
It would also be relevant to mention that while withdrawing D
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 E
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 Section 18 of the Co- F
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 G
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 :
H
900 SUPREME COURT REPORTS [2013] 5 S.C.R.
A "RESOLUTION PASSED AT THE SPECIAL GENERAL
MEETING HELD ON 6TH 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 Mis. Sumer
B
Associates as nominee of Mis. 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
c 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/-
D (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
E 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.
F (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
G shall form part of the final conveyance.
(4) Mis. 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.
H
MARGARET ALMSOA v. BOMBAY CATHOLIC CO-OP 901
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.) •. .._...
(carpet area) shall be sold on ownership basis -A
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 B
proof of relinquishing their rights as members in the
Society.
(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. c
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 C/onsent
Terms/MOU/Agreement between some tenants and D
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 E
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. Mis. Sumer
Associates shall enter into agreements with the F
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.
G
(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
H
902 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B
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
c 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
D 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
E
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_
F 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.
G
(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
H consideration received net of tax, legal and other
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 903
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
expenses but after concealing by process of legal A
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
B
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.
c
(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/ D
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 E
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 F
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 G
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 H
904 SUPREME COURT REPORTS [2013)-~ S.C.R.
A 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
B
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
c 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
D 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
E
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.
F
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
G 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
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 905
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
or premises which may cause damage A
nuisance or inconvenience to the
occupiers of adjacent houses, the Society
or the neighbourhood.
4. Clause 7. That the Lessees will not assign, underlet,
B
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 c
when the proposed assignee or tenant is
a member of the Society and holding five I
fully paid shares of the Society.
5. Clause 8. That the Lessees will not make any D
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 E
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 F
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 G
the request ofthe 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
H
906 SUPREl'1ic COURT REPORTS [2013] 5 S.C.R.
A 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
B
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
c 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.
D
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
E 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.
F
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
G 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,
H which were filed by some tenant-members, wherein the main
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 907
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
prayer was, that the Catholic Society should be restrained from A
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
8
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:
c
(a) for a declaration that the said Resolution dated 6th
December, 2009 (Exhibit 'K' hereto) and the said
Conveyance dated 7th 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 D
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;
E
(b) for a Judgment and Decree directing Defendant No.20
herein to deliver up the Conveyance dated 7th December,
2009 Exhibit 'M' hereto for cancellation;
(c) that, pending the hearing and final disposal of the F
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 6th December,
2009 and/or Conveyance dated 7th December, 2009. (ii) G
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 6th December, 2009 and under the
Conveyance dated 7th December, 2009;
H
908 SUPREME COURT REPORTS [2013] 5 S.C.R.
A (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."
B
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
C 11.1.2010, a learned Sing re 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:
D
ORDER
(i) No further steps be taken by the concerned parties
based upon the Conveyance dated 07/12/2009.
E
(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 24th December, 2009 to continue till
F Jurtfler,order.
{iv) Reply/rejoinder, if any to be filed within two weeks.
(v) S.O. to 25/112010, for hearing. However, the liberty
is granted to the parties to settle the matter also.
G
48. The learned counsel Mr.Chetan Kapadia, appearing
for some of the Defendants, makes statement that 18
tenaritfmembers have already surrendered possession
and the tenancy to defendant No.72. However, in view of
H the above common order, it is made clear that parties to
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 909
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
maintain status-quo will cover any further steps to these A
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 ~nd B
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 C
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 D
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 E
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
F
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 G
Court, was ordered to be vacated. It is the instant order dated
7.9.2012, 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 H
- - . -- ·---.,- --
910 SUPREME COURT REPORTS [2013] 5 S. C.R.
A 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
8
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
C tenants simplicitor) became members of the Catholic Society.
It is therefore, that the strength of the tenant-merllbers 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,
D 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
E 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-
mem bers who were pursuing their remedy through the
F 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 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
G 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
H and Don Donato D'Silva, with a prayer for transposing them
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 911
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
as respondents, as they do not want to pursue the matter any A
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 B
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 c
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
0
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.
E
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 resolution of the
Catholic Society dated 6.12.2009 (and the consequential
conveyance deed dated 7 .12.2009) is· implemented, the F
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 G
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 H
912 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
8
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
C 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-
D 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
E rules framed 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
F 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.
G
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
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 913
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
conveyance deed dated 7.12.2009) is given effect to, the claim A
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 B
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/ C
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 D
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 E
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- F
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 G
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 H
914 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B 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
C learned counsel for the petitioners/appellants, is based on a
plea canvassed at the hands of the tenant-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
D 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
E 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. lnspite of the fact, that the
aforesaid process (seeking bifurcation of the Catholic Society)
was initiated by the tenant-members in the seventies, and
F 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
G plea of bifurcation/division raised by the petitioners/appell;mts
noticed above. Even though the Deputy Registrar, Cooperative
Societies, Mumbai vide an order dated 28.11.2007, had
allowed the pr.ayer made by the tenant-members for bifurcating/
dividing the Catholic Society, yet the aforesaid order dated
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 915
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
28.11.2007 was quashed by the Divisional Joint Registrar, A
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 B
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.I
Furthermore, tenant-members had filed
Revision Application no. 713 of 2009 before the State c
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 Registr~r. Co-
operative Societies, Mumbai, had ordered the bifurcation/
division of the Catholic Society vide an order dated D
28.11.2007. The Divisional Joirit 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, E
therefore, the plea for bifurcation may reasonably be taken as
haviny 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 F
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 fihding in favour ofthe tenant-
members. What needs to be kept in mind, is the effect of the
pending consideration. G
33. Merely on account of the said pending claim for
bifurcation raised by 69 tenant-members, they have excluslvely
occupied 5.5 acres of land situated in Santacruz, Mumbai. On
the redevelopment of the said land, 230 tenements will be H
916 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B waiting. Thus viewed, even on the aspect of bifurcation/ division
of the Catholic Society, there 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
C 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
D 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
E 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
F 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
G
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
H
MARGARErALMEIDA v. BOMBAY CATHOLIC CO-OP 917
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.] ·
and peaceful enjoyment of their r~spective tenements, A
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: B
(1) that the general body of the first respondent
society has no power to deprive the petitioners of
their tenements;
c
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
Born. LR. 1001at1006), but I am afraid the said decision D
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 E
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
F
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 G
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 H
j
918 SUPREME COURT REPORTS [2013] 5 S.C.R.
A 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
B 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
c 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 case in
0
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
E 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
F 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,
G 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,
H
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 919
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
that only M/s. Robin Home Developers Pvt. Ltd. (M/s. Sumer A
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 B
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 c
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
0
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 E
before the High Court). It is therefore, thatthe Divisipn Bench
of the High Court in the impugned order dated 9.8.20~ 2, made
the following observations:-
"33. It was urged by the learned counsel for the F
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 G
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 H
920 SUPREME COURT REPORTS [2013] 5 S.C.R
A 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
B 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
c 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
I D 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.
E 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
F is relevant when the Court considers passing
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
G 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
H substance in the contention of the Society that Mr.
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 921
fiOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
Chavan is using the plaintiffs as a tool to block the A
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 B
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 C
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 D
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 E
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 F
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 settl~d their
differences with the respondent no.~1 and G
respondent no. 2 have addres;;ed 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 H
922 SUPREME COURT REPORTS [2013) 5 S.C.R.
A 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
B 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,
c however, since then he has sometime in the past
few weeks passed away and therefore he may be
dropped as petitioner."
Based on the factual position noticed by three of the petitioners/
appellants in I.A. nos. 17-19 of 2012, the finding recorded by
D 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
E before the High Court that he wou'ld 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
F 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 tides. We
therefore affirm the determination rendered by the High Court
.G 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
H of now, therefore, it is possible to prima facie infer, that the
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP 923
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
petitioners'/appellants' claim before the High Court does not A
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,
upoQ the offer made by Mr. B.Y. Chavan, cannot be stated to B
be unjustified.
37. For all the reasons recorded hereinabove, we find no
merit in the instant Civil Appeals. The same are accordingly
hereby dismissed.
c
K.K.T. ~peal~ gismis.sed._
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