Case BriefsHigh Courts

Bombay High Court: Observing that, a developer who has been appointed by the Society and who is eager to proceed with the redevelopment, was in some manner left baffled and dragged into litigation, G.S. Kulkarni, J., held that, non-cooperating members cannot foist a delay on the builder and the society in the commencement of the redevelopment work resulting in the project costs being increased every passing day.

A redevelopment of a 50-year-old dilapidated building of respondent 1 Co-operative Housing Society and the obstruction for such redevelopment by respondents 2 to 4 concerning their four units was the subject matter of the present proceedings filed under Section 9 of the Arbitration and Conciliation Act 1996.

Out of 30 members, 26 members have already vacated the society.

Society considering the dangerous condition of the building had taken up the issue of the urgent need for the redevelopment of the building. Further, the Society took steps to find out a suitable developer. An ‘Annual General Meeting’ was convened wherein by majority of the members it was resolved to appoint the petitioner as the developer.

Thereafter, a further Annual General Meeting of the Society was held in the presence of the officers of Maharashtra Housing Area Development Authority (MHADA). In such meeting, a decision was taken to appoint the petitioner as a developer to undertake the redevelopment of the Society’s premises, was confirmed.

Later, a Development Agreement was executed between the petitioner and the Society. Being appointed as a developer the petitioner, took steps so that the redevelopment work could commence.

Respondents 2,3 and 4 vacated and /or obstructed the redevelopment. They caused hurdles and impediments to the redevelopment work which according to the petitioner and the society caused serious prejudice to the members who had already vacated and who were eagerly awaiting the redevelopment work.

City Civil Court granted a temporary injunction restraining the society and the petitioner in taking any further steps qua the redevelopment of the Society’s building and from disturbing respondent 2’s possession.

Analysis, Law and Decision


Settled Position of Law

The minority members cannot act against the will of the of the majority members of the society and obstruct the redevelopment.

High Court observed that respondents 2 to 4 cannot take a position opposing the redevelopment, which was for the beneficial interest of all the members of the society. They cannot cause suffering to the other members who have already vacated.

“…cannot foist a delay on the petitioner and the Society in commencement of the redevelopment work resulting in the project costs being increased every passing day which would be immensely prejudicial to the petitioner as also the society.”

Further, the Bench added that,

“Respondents no 2 to 4 appear to be carrying an approach that as their residential units in the redevelopment are certainly secured, however the situation of the building going for redevelopment can be exploited to coerce the society and the petitioner for something, which prima facie appears to be, is beyond their normal entitlement. Such an approach is deleterious and detrimental to the majority members of the Society.”

Elaborating further, the High Court noted that, the redevelopment needs to proceed in a manner as agreed between the Society and the Developer and as per the sanction/ approval of the majority members.

In Court’s opinion, it is high time that the members realise that while they raise their grievances, such grievances are really genuine and not of a nature which would unwarrantedly obstruct and delay the proposed redevelopment.

“There needs to be a safeguard against unscrupulous persons who raised frivolous grievances. If such obstructing persons/members fail in proceedings, they would be accountable to the Society for the delay they are causing by such obstructive approach, based on the principle that once a person becomes a member he loses his individuality and has no independent rights except those given to him by the statute and the bye-laws.”

Respondents 2,3 and 4 had already adopted legal proceedings against the Society and the petitioner/developer.

In view of the above discussion, respondents 2,3 and 4 had no right to delay, defeat and prejudice the redevelopment by not vacating their respective units. The petitioner made out a strong prima facie case. [Choice Developers v. Pantnagar Pearl CHS Ltd., 2022 SCC OnLine Bom 786, decided on 13-4-2022]


Advocates before the Court:

Mr. Rajiv Singh a/w. Omprakash Jha, Basu, Gaurav i/b. The Law Point for the petitioner.

Mr. Siddharth a/w. Garima Mehrotra for respondent no. 1-Society.

Mr. A.M. Saraogi for respondent nos. 2 and 4.

Mr. S.L. Mhatre for respondent no. 3. 

Legislation UpdatesRules & Regulations

The Central Government makes National Commission for Protection of Child Rights (Amendment) Rules, 2021 to amend the National Commission for Protection of Child Rights Rules, 2006. They shall come into force on the date of their publication in the Official Gazette.

The Amendment inserts a proviso in Rule 6(3) of National Commission for Protection of Child Rights Rules, 2006:

 

“Provided that a person who has held office for two terms as Member or two terms as Chairperson, shall not be eligible for re-nomination as a Member or Chairperson, as the case may be:

Provided further that a person who has held office-
(i) for two terms as Member; or
(ii) one term as a Member and one term as Chairperson, shall be eligible for one more term as Chairperson”

Appointments & TransfersNews

S.O.1299(E)— In accordance of the Notification dated 21-02-2019 regarding constituting a Development and Welfare Board for Denotified, Nomadic and Semi-Nomadic Communities, as published in the Gazette of India Extraordinary Part-II, Section-3, Sub-Section (ii), the Central Government hereby appoints the following persons for the posts of Chairman and Members with effect from the date of assumption of charge by them:-

(1) Sh. Bhiku Ramji Idate: Chairman
(2) Ms. Mittal Patel: Member
(3) Sh. Otaram Dewasi: Member

The tenure of the aforesaid Chairman and the Members shall be three years from the date of assumption of charge by them.

[F. No. 16014/04/2018-BC-III]

Ministry of Social Justice and Empowerment

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of P.R. Ramachandra Menon and N. Anil Kumar, JJ. allowed a petition challenging the obstruction caused by Auto Rickshaw Union of Irrity area to the driver who was stopped from plying his vehicle despite possession of a valid permit.

Petitioner, owner of a contract carriage (auto rickshaw) obtained a contract carriage permit to ply the said vehicle in the place mentioned therein, subject to the condition that he shall not park it or pick up passengers in it from/within the city. However, he was forcefully obstructed from parking the vehicle at Iritty by the Irrity Auto Rickshaw Union stating that the same could be done only by members of their Union. Petitioner’s representations to the police yielded no results which prompted him to file the instant petition contending that the actions of Irrity Auto Rickshaw Union were contrary to the provisions of law and his vested rights.

The Court held that in so far as the petitioner was plying the vehicle strictly in terms of contract carriage permit obtained by him, there could not be any forceful obstruction from any corner. The petition was disposed of opining that in case of any such obstruction, the same be brought to the notice of Sub Inspector of Police who was directed to intervene then and there and take appropriate remedial measures to abate the threat to the rule of law. [Sumesh M.G. v. District Collector, Collectorate, Kannur, 2018 SCC OnLine Ker 5795, decided on 20-12-2018]

Hot Off The PressNews

The Supreme Court on 26-06-2018 declined to extend the term of three members in the National Consumer Disputes Redressal Commission (NCDRC) until all seven vacancies are filled up.

A Bench headed by Justice Arun Mishra, while refusing to give any relief said that there were many vacancies in the Supreme Court as well but they could not extend the term of Supreme Court judges like that.

The SC extended the tenure of president and other members of NCDRC twice in the past six months due to delay in completion of the selection process. Recently Justice R K Agrawal, who retired from the SC barely four weeks ago, was appointed as the new NCDRC president. However, he is yet to take over. The increasing vacancy has led to the rise in the average period between two hearings in the NCDRC, which increased to 94 days this year against 81 days in 2015.

[Source: New Indian Express]

Case BriefsSupreme Court

Supreme Court: Deciding whether under the Electricity Act, 2003 it is mandatory to have a judicial mind presiding the Central and State Regulatory Commissions and whether the expression “may” should be read as “shall”, the bench of J. Chelameswar and S.K. Kaul, JJ held that Section 84(2) of the said Act is only an enabling provision to appoint a High Court Judge as a Chairperson of the State Commission of the said Act and it is not mandatory to do so. It was further held:

“It is mandatory that there should be a person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge.”

The Court noticed that the State Commission, though defined as a ‘Commission’ has all the ‘trappings of the Court and that:

“Once it has the ‘trappings of the Court’ and performs judicial functions, albeit limited ones in the context of the overall functioning of the Commission, still while performing such judicial functions which may be of far reaching effect, the presence of a member having knowledge of law would become necessary. The absence of a member having knowledge of law would make the composition of the State Commission such as would make it incapable of performing the functions under Section 86(1)(f) of the said Act.”

The bench said that in any adjudicatory function of the State Commission, it is mandatory for a member having the aforesaid legal expertise to be a member of the Bench. It further held that in case there is no member from law as a member of the Commission, the next vacancy arising in every State Commission shall be filled in by a Member of law as mentioned above.

To avoid any confusion, the Court made it clear that it’s verdict will apply prospectively and would not affect the orders already passed by the Commission from time to time. [State of Gujarat v. Utility User’s Welfare Association, 2018 SCC OnLine SC 368, deciding 12.04.2018]