redevelopment committee
Subhash Macha
CONSTITUTION OF REDEVELOPMENT COMMMITTEE
It is important for the Housing Societies to know the formation of any Sub-Committee like Redevelopment Committee while opting to go for redevelopment.
Whenever a Redevelopment Committee or Sub-Committee is appointed, the Managing Committee has to prepare a set of Rules and Regulations for the functioning of such Committees. The Duties and Functions of the Redevelopment Committee are to assist the Managing Committee during the entire process of redevelopment.
The Rules and Regulations of the Sub-Committee normally should consist of the following points:–
A Member may be expelled from the Membership of the Society, if such Member:
* The acts of the Member are detrimental to the interest or proper working of the Society
* Has persistently failed to pay the charges, dues to the Society
* Has willfully deceived the Society by giving false information,
* Has used his flat for immoral purposes or misused it for illegal purposes habitually,
* How the Committee will be constituted by General Body or by conducting the election.
* How many Members will be selected.
* Representation of Member whether wing-wise or floor wise
* What are the responsibilities of such Redevelopment Committee.
* Whom the Redevelopment Committee will report to.
* Frequency of Meetings of the Redevelopment committee.
* Recording of Minutes of the Meetings .
* Whether the Redevelopment Committee gets dissolved on the dissolution or on the expiry of the term of the Managing Committee or to continue till the redevelopment is completed.
Once the Draft Rules and Regulations of the Redevelopment Committee are prepared, the same should be sent to all the Members of the Society including the Registrar of Cooperative Societies. Get the same approved in the specially called General Body Meeting and then constitute the Committee as per the Rules.
There must be maximum harmony and co-operation amongst the Members of the Managing Committee, Redevelopment Committee and the resident Members of the Society. Any sort of rift between the two Committees should be avoided. Legally and ideally the Redevelopment committee should report to the Managing Committee and all the matters, problems, solutions and decisions should be discussed in the General Body meeting.
Redevelopment committee directly dealing with Members or bringing the matter directly in the General body is not desirable at all and is not legally correct. For all legal purposes, it is the elected Managing Committee who is held responsible and accountable and not the Redevelopment Committee and therefore, there is no mention about the constitution of the Redevelopment Committee in the Government Order dated 3.1.2009 issued for the purpose of redevelopment process to be adopted by the Housing Societies.
It must be ensured that none of the Members of the Managing Committee should be a Member of the Redevelopment Committee as also neither the Members of the Redevelopment Committee shall have any signing powers or an authority to execute any document relating to the redevelopment of Society nor should be permitted to deal with the Developers directly unless accompanied or permitted by the Managing Committee.
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Subhash Macha
MINORITIES CAN NOT OBSTRUCT REDEVELOPMENT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 338 of 2009
HIGHLIGHTS OF JUDGMENT BY JUSTICE
A.M.KHANWILKAR (December 10, 2009) IN ARBITRATION
PETITION LODG NO: 493 OF 2009
Girish Mulchand Mehta & Durga Jaishankar Mehta....Appellants v/s Mahesh S. Mehta, Sole Proprietor of M/s. Suryakirti Enterprises & Harini Cooperative Housing Society Ltd., Ghatkopar (E)....Respondents
“The member who was in minority did not bother to challenge the decisions taken by the General Body of the Society. Even in the present case, the Appellants have not challenged the relevant decisions of the Society to redevelop the suit property and to appoint the Respondent No.1 as the Developer. At best, the Appellants have challenged the Resolution dated 27th April, 2008 which in turn relates to the approval of the Development Agreement which has already been executed between the Respondent No. 1 Developer and the Respondent No. 2 Society. Indeed, in those cases the relief was not on an Application under Section 9 of the MCS Act, but for the reasons recorded hitherto the relief to be granted in this petition would nevertheless be the same.
It was also argued that the property was in good condition and there was no need to redevelop the existing building. In the first place, as noted earlier, the decision of the General Body of the Society to redevelop the suit property has not been challenged at all. Besides, no provision in the Maharashtra Co-operative Societies Act or the Rules or any other legal provision has been brought to our notice which would curtail the rights of the Society to redevelop the property when the General Body of the Society intends to do so.
Essentially, that is the commercial wisdom of the General Body of the Society. It is not open to the Court to sit over the said wisdom of the General Body as an Appellate Authority. Merely because some members in minority disapprove of the decision, that cannot be the basis to negate the decision of the General Body, unless it is shown that the decision was the product of fraud or misrepresentation or was opposed to some statutory prohibition. That is not the grievance made before us.
In the present case, the General Body took a conscious decision after due deliberations for over five years to redevelop its property. Even with regard to the appointment of the Respondent No.1 as the Developer, the record shows that it was decided by the General Body of the Society after examining the relative merits of the proposals received from the Developers and interviewing them.
Even the proposed Development Agreement to be entered with the Developer (Respondent No.1) was approved by the General Body. The Appellants raised untenable pleas to cause obstruction and have belatedly filed proceedings in the Co-operative Court as a counter blast only to protract the redevelopment work to be carried out by the Respondent No.1 herein.
Accordingly, we find no infirmity in the conclusion reached by the Learned Single Judge in making the Petition absolute in terms of prayer clause (a) in the fact situation of the present case. In our opinion, this Appeal is devoid of merits. The same deserves to be dismissed. At the same time, we would clarify that any observation in this decision shall not be treated as an expression of opinion one way or the other in the pending proceedings. The same will have to be proceeded on its own merits in accordance with law. Hence, this Appeal is dismissed with costs”.
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HIGH COURT SHUTS DOORS FOR REDEVELOPMENT CASES IN CO-OP. COURT
Now, a redevelopment disputes between the Developers and Housing Societies in Mumbai as also its members will not be heard by a Co-operative Court, the Bombay High Court has ruled. Justice Shahrukh Kathawalla rejected a plea by a lone obstinate flat owner of a Vile Parle Society that the High Court did not have jurisdiction to hear the case.
Justice Kathawalla ruled that suit between a Developer and the Housing Society or its members cannot be a dispute which can be adjudicated by the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act (MCS Act). He cited earlier judgments on the similar issues.
Justice Kathawalla stated that Sect. 91 of MCS Act covers disputes involving the constitution, management or business of a Society and that the process of redevelopment of any Housing Society by the Developer does not constitute the business of the Housing Society.
The Court directed the Court Receiver to take the help of the police, if necessary, to evict the lone flat owner in case he fails to vacate the premises by September 30, 2013.
“It is clear that the (opposing flat owner) has filed the said dispute (before the Co-operative court) with a view to wrongly obstruct the reconstruction of the property and to cause inconvenience 14 out of the 15 members of the Society who have already handed over possession of their respective flats to the Developer and are waiting for the redevelopment project to be forthwith undertaken,” said the Judge. “The building is in a precarious condition and likely to collapse and endanger the life and property of its occupants as well as other members of the public,” the Judge said.
The redevelopment of Akash Cooperative Housing Society, a 40 year old building having 15 flats, was assigned to Developers Akash Pruthvi Lifestyle in 2012. The Developer was to provide new flats to the existing owners under the scheme. While 14 of the 15 members signed the Agreement and vacated the premises. However, one flat owner refused and filed a suit before the Co-operative Court. He alleged irregularities.
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CONCLUDED CONTRACT A MUST FOR REDEVELOPMENT OF HOUSING SOCIETY - MUMBAI HC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPEAL NO.335 OF 2012 IN NOTICE OF MOTION NO.1394 OF 2012 IN SUIT NO.1330 OF 2012
Mr.Gopi Gorwani … Appellant
VERSUS
Jeevan Prabha Co-operative Housing Society Ltd and ors … Respondents
Mr.Venkatesh Dhond, Senior Advocate i/b Raval Shah & Co. for appellant.
Mr.Sanjay Jain i/b Mustafa Kachwala for respondent No.1
Mr.Simil Purohit i/b Ganesh & Co for respondent No.3
CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR J.
Thursday, August 30, 2012.
P.C
This appeal filed by the original plaintiff takes exception to the order passed by the Trial Judge of this Court dated 4 April 2012 dismissing the Notice of Motion taken out by the appellant praying for an order of injunction pending the suit.
2. The appellant is a developer. The appellant filed the Suit bearing No.1330 of 2012 praying for a declaration that there is a subsisting and binding contract between the appellant and respondent No.1: Jeevan Prabha Co-operative Housing Society Ltd. (hereinafter ‘Society’ for short) for re-development of a building situate at plot no.104, 4th road, T.P.S. IV, Bandra (west) Mumbai.
3. The appellant based his claim on the resolutions dated 31 March 2011 and 26 June 2011 passed by the Society. The appellant contended that in view of the resolutions passed by the Society and the correspondence entered into between the parties, there is a concluded contract between the Society and the appellant. Appellant contended in the suit that in spite of the concluded contract, the Society in a Special General Meeting held on 22 July 2011 unanimously passed a resolution that the appellant is not to be awarded a contract of redevelopment of the Society’s property.
4. The plaintiff took out a Notice of Motion bearing No.1394 of 2012, praying for appointment of a receiver and for a direction that the Society be ordered not to deal with any other developer in respect of the re-development of the Society premises.
5. The learned trial Judge after considering the rival contentions came to a prima facie conclusion that there is no concluded contract between the parties. The draft agreement itself showed that the contract was not finalized. The learned Judge also noted that the Society had executed a Development Agreement on 5 March 2012 with another developer i.e. respondent No.3. The learned Judge found that for loss of profit and for the work executed, if any, at the most the appellant can have a money claim and thus no order of injunction is necessary. The learned trial Judge accordingly dismissed the Notice of Motion by his order dated 4 April 2012.
6. The appellant thus is in appeal before us. We have heard Shri V.R. Dhond learned senior counsel for the appellant, Mr. Sanjay Jain learned counsel for the Society, Mr.Simil Purohit learned counsel for the respondent No.3, the new developer.
7. Mr.Dhond, learned senior counsel submitted that the finding of the learned trial Judge that there is no concluded contract is erroneous. The learned counsel drew our attention to the resolution dated 31 March 2011 passed in the Special General Meeting of the Society. According to the learned counsel a decision was taken to appoint the appellant as a developer. Learned counsel submitted that after this decision, the appellant acted on the said resolution and resolved certain pending issues with the occupants of the flats and the garage. Learned counsel submitted that the appellant invested his time, energy and money in clearing off the obstacles for the redevelopment of the property.
8. The appellant also obtained No Objection Certificate from the Deputy Registrar of Cooperative Housing Societies and thus for all practical purposes the Society had entrusted the work of redevelopment to the appellant. It was urged by the learned counsel that in view of this contract the appellant is entitled to specific performance and interim protection during the pendency of the suit. On the other hand, Mr. Jain for the Society contended that though there was a resolution in favour of the appellant, it was only a preliminary decision and the Society had not finally decided to entrust the work of redevelopment to the appellant.
9. The learned counsel supported the order passed by the learned trial Court. Learned counsel also drew our attention to the letter dated 22 July 2011 written to the appellant in which the Society had pointed out to the appellant that there were several inconsistencies, contradictions in the draft Development Agreement submitted by the appellant. In the said letter the Society had also made a grievance that the appellant had unilaterally tried to take over the garage from a tenant when the appellant was only entitled to negotiate the price, and the Society had lost confidence in the appellant.
10. Having heard the rival contentions, we are of the view that the learned trial Judge was right in coming to a conclusion that the Notice of Motion deserved to be dismissed. Prima facie the correspondence entered in to between the parties clearly indicates that the Development Agreement between the parties was not signed.
11. Before the Development Agreement could be signed the Society by its resolution dated 22 July 2012 decided not to continue with the appellant as their developer. Thus the Society decided not to enter into any agreement with the appellant. The initial resolution dated 31 March 2011; it appears, was merely a decision to explore the possibility of redevelopment through the appellant.
12. This resolution and subsequent correspondence indicates that final decision of entrustment of development work to the appellant was yet to be taken. The learned trial Judge has rightly held that the contention of the appellant may at the most give rise to a money claim for damages.
13. Ultimately the work of redevelopment of a Housing Society is such that the Society must have confidence in its developer. Once the members of the Society had by a unanimous resolution, before executing the final agreement, decided not to get the premises developed through the appellant, the Society cannot be forced to get the redevelopment work done through appellant, when prima facie there is no concluded contract.
14. The balance of convenience is also not in favour of the appellant as work of redevelopment is now already entrusted to respondent No.3.
15. During the appeal proceedings we had suggested the parties to amicably resolve the dispute however the
talks between the parties did not fructify into a mutually accepted solution.
16. There is no merit in this Appeal which is dismissed.
CHIEF JUSTICE
N.M.JAMDAR J
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