Nirvaana Construction LLP vs Sagar Kiran Co-Operative Housing Society Limited

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.3442 OF 2024

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Nirvaana Constructions LLP …Petitioner Versus Sagar Kiran Co-operative Housing Society …Respondents Limited & Ors.

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WITH

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INTERIM APPLICATION (L) NO.31780 OF 2024

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Agastya Infra …Applicant IN THE MATTER BETWEEN: Nirvaana Constructions LLP …Petitioner Versus Sagar Kiran Co-operative Housing Society …Respondents Limited & Ors.

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Mr. Mukesh Vashi, Senior Advocate a/w. Ms. Manisha Desai and Ms. Hemanshi Gandhi, i/b. M. P. Vashi & Associates, for the Petitioner.

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Mr. Karl Tamboly a/w. Mr. Shakeeb Shaikh and Ms. Paluck Bengali, Advocates, i/b. Ashraf Diamondwala, for the Respondent No.1. Mr. Atul Vanarase, AGP, for the Respondent No.3.

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Mr. Mayur Khandeparkar a/w. Ms. Radha Ved, Ms. Bijal Parikh, Advocates, i/b. Vis Legis Law Practice, for the Intervenor in IAL/31780/2024.

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CORAM: MADHAV J. JAMDAR, J. DATED : 2^nd JANUARY 2025

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P.C.:

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Heard Mr. Mukesh Vashi, learned Senior Counsel appearing

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for the Petitioner, Mr. Karl Tamboly, learned Counsel appearing for

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the Respondent No.1, Mr. Atul Vanarase, learned AGP for the

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Respondent No.3 and Mr. Mayur Khandeparkar, learned Counsel appearing for the Intervenors.

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The challenge in this Writ Petition filed under Article 226 of the Constitution of India is to the following orders:

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(a) Order dated 1^st February 2024 passed by the Deputy Registrar, Co-operative Societies, Mumbai City, Eastern Suburb, MHADA (“Deputy Registrar”) under Section 75(5) of the Maharashtra Co-operative Societies Act, 1960 (“ MCS Act ”). By the said order, the Deputy Registrar has withdrawn the Show Cause Notice dated 27^th December 2023 issued to the Managing Committee of the Respondent No.1-Society.

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(b) Order dated 2^nd February 2024 passed by the Deputy Registrar, by which Authorized Officer has been appointed for selection of developer by the Respondent No.1 – Society.

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(c) Order dated 19^th April 2024 passed by the Divisional Joint Registrar, Co-operative Societies, Mumbai Division, Mumbai in Revision Application No.51 of 2024. In the said Revision Application challenge was to the said orders dated 1^st February 2024 and 2^nd February 2024 passed by Deputy Registrar. The said Revision was dismissed by the impugned order dated 19^th April 2024.

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Mr. Vashi, learned Senior Counsel made following submissions on behalf of the Petitioner :-

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(i) The Petitioner has been removed as developer and the order dated 2^nd February 2024 has been passed by which, the Authorized Officer for selection of developer has been appointed. He submitted that the documents on record show that the Petitioner has complied with the timeline prescribed for redevelopment and therefore, appointment of the Petitioner could not have been terminated. Therefore, the impugned order dated 2^nd February 2024 is illegal. To substantiate the said contention, he has pointed out various documents and events.

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(ii) Learned Senior Counsel submitted that by earlier circular dated 16^th March 2021, MHADA has laid down the condition that there must be tripartite agreement between MHADA, Society and the Developer. He submitted that as per the request of the Society i.e. Respondent No.1-Sagar Kiran Co-operative Housing Society Limited and the Respondent No.2-Aditya Anurag Co-operative Housing Society these two societies were to be amalgamated. Accordingly, steps were taken and these two societies were amalgamated as one Society being Respondent No.1- Sagar Kiran Co-operative Housing Society Limited. He submitted that the amalgamation order was passed by the Deputy Registrar on 25^th March 2022.

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(iii) Thereafter on 18^th July 2022, Respondent-Society forwarded final joint Development Agreement. On 18^th August 2022, the Petitioner has obtained offer letter/NOC of MHADA and paid Rs.65.96 lakhs to MHADA as 1^st installment and 2^nd installment was paid to MHADA on 18^th August 2022 amounting to Rs.1,41,37,126/-. He pointed out various documents to substantiate the contention that the Petitioner has taken timely action.

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(iv) Learned Senior Counsel submitted that as the agreement contemplated was of tripartite agreement, steps were taken and on 8^th September 2022 the Petitioner paid IOA deposit and obtained draft IOA signed by the Executive Engineer. The same was lodged for adjudication on the very day i.e. on 8^th September 2022. On 14^th September 2022, copy of Joint Development Agreement submitted for adjudication was forwarded to the RespondentSociety. He submitted that subsequently on 15^th September 2022, MHADA withdrew the circular regarding tripartite agreement.

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(v) Learned Senior Counsel submitted that therefore, the Petitioner has complied with the timeline prescribed for redevelopment under the Redevelopment Agreement and therefore, the termination of the Petitioner was illegal.

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(vi) Learned Senior Counsel submitted that in fact, to justify the said decision, the Respondent-Society has fabricated certain documents. He submitted that the Resolution passed in Annual General Meeting held on 25^th September 2022 is false and fabricated document. He submitted that on the basis of such documents, the Respondent-Society had applied to the Deputy

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Registrar to cancel the appointment of the Petitioner as developer and to appoint a new developer as per the guidelines issued by the State Government under Section 79-A of the MCS Act.

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(vii) Learned Senior Counsel submitted that in the termination notice, four grounds of termination are given i.e. (i) the Petitioner could not obtain permission even after two years, which is factually incorrect, (ii) failed to get Development Agreement registered, (iii) the redevelopment project of building No.6 and 13 Tagore Nagar undertaken by the Petitioner is still incomplete and (iv) the Petitioner has not clarified anything about the bank guarantee. He submitted that none of these reasons are found in the Minutes of Meeting dated 25^th September 2022 and therefore, it is clear that the Respondent-Society has created false and fabricated Minutes. He submitted that there are two Minutes of alleged meeting held on 25^th September 2022. The said Minutes are fraudulent Minutes. He relied on the report of Mr. Kakde, Certified Auditor/Inspecting Officer. He submitted that the said inspection report submitted under Section 89A of the MCS Act clearly shows that the Respondent No.1 – Society has fabricated the record. He pointed out various factors showing that the said

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Minutes of Meeting dated 25^th September 2022 are fabricated Minutes. He also pointed out certificate dated 25^th September 2022 issued by Mr. Mahadev Rane, Returning Officer showing that meeting of alleged members was conducted on 25^th September 2022 at 11:00 a.m. whereas in the Minutes of Meeting dated 25^th September 2022, wherein the office bearers were elected, the time is shown to be 01:00 p.m. He submitted that the position on record shows that the Respondent-Society has elected new developer and thereafter false record is created to show removal of the Petitioner as developer and appointment of new developer. He submitted that therefore, as the Society has created false and fabricated record, the impugned order dated 19^th April 2024 of Divisional Joint Registrar and order dated 1^st February 2024 of Deputy Registrar be quashed and set aside. He submitted that by the impugned order dated 1^st February 2024, the Deputy Registrar should not have withdrawn the Show Cause Notice dated 27^th December 2023 issued under Section 75(5) of the MCS Act.

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(viii) Learned Senior Counsel further submitted that as the termination of Petitioner as developer is on the basis of fabricated documents, the notice/order dated 2^nd February 2024 appointing

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Authorized Officer for selection of developer should have been quashed and set aside.

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(ix) Learned Senior Counsel submitted that the impugned orders be quashed and set aside and the action taken against the Society under Section 75(5) of the MCS Act be continued.

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On the other hand, Mr. Karl Tamboly, learned Counsel appearing for the Respondent No.1-Society made following submissions :-

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(i) At the outset, Mr. Tamboly, learned Counsel submitted that proceedings filed by the Petitioner challenging impugned orders are not maintainable as the Petitioner has invoked arbitration.

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(ii) He submitted that the Petitioner has no locus to challenge the order dated 1^st February 2024 passed by the Divisional Joint Registrar whereby the Show Cause Notice dated 27^th December 2023 issued under Section 75(5) of the MCS Act has been withdrawn as the Petitioner is not concerned with the Respondent No.1 – Society. He submitted that as none of the requirements of

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Section 75 of the MCS Act were violated, the Show Cause Notice is rightly withdrawn.

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(iii) He submitted that the Petitioner has raised same contention before the Divisional Joint Registrar in Revision Application No.51 of 2024 which has been raised in the arbitration proceedings initiated by the Petitioner. He relied on the order dated 28^th March 2024 passed in Writ Petition (L) No.9602 of 2024 and submitted that even a learned Single Judge has also recorded that the result of proceedings before the Divisional Joint Registrar hinges squarely on the outcome of the order that would have been passed by the learned Sole Arbitrator. He submitted that the learned Sole Arbitrator has already rejected the interim reliefs claimed by the Petitioner and challenge to said Order is pending in the Arbitration Petition No.333 of 2024.

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(iv) He submitted that in the impugned order dated 19^th April 2024 passed by the Divisional Joint Registrar the factors taken into consideration inter alia are dilapidated condition of the building, 15 members out of 32 have already vacated their respective premises due to the dilapidated condition of the building and by

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the order dated 15^th April 2024 passed by the learned Sole Arbitrator, the Application filed by the present Petitioner under Section 17 of the Arbitration and Conciliation Act, 1996 has been dismissed inter alia on the ground that the Development Agreement between the Petitioner and the Respondent-Society is not registered. He submitted that the reasons given by the Divisional Joint Registrar are valid reasons and therefore no interference is warranted.

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(v) He submitted that the directions issued under Section 79-A

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of MCS Act are primarily to protect the members of the Society from being deprived from their rights and from being exploited. The directions contained therein are for the benefit of the Society so as to enforce the provisions in such a manner that it protects the basic right of the members to appoint the developer of their choice. To substantiate the said contention, he relied on the decision of a learned Single Judge in the case of Ornate Housing Pvt. Ltd. vs. Abhyuday Nagar Sahakari Gruhanirman Sanstha Sangh Ltd.¹ and more particularly, on paragraph Nos.23 and 24 of the same. He submitted that as the impugned order emanates from the

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1 2016 SCC OnLine Bom 3876

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proceedings under Section 79-A of the MCS Act, at the instance of the Petitioner whose status is that of developer whose development rights have been terminated by the Society be not entertained.

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(vi) As far as the issue of purported two Resolutions dated 25^th September 2022, he submitted that by Resolution dated 25^th September 2022 (page 300 of the Writ Petition), the RespondentSociety resolved to terminate the appointment of the Petitioner unanimously. Inadvertently a draft of the said Resolution (Page 304 of the Writ Petition) was forwarded to MHADA and therefore, there is ambiguity and on the basis of the same contention is raised that the Resolution is fabricated. In any case, he submitted that the said contention is no more relevant as by the order dated 13^th September 2023 (Page 288 of the Writ Petition), the Deputy Registrar had indicated that the Respondent-Society ought to pass a Resolution with at least 2/3^rd majority for removal of the Petitioner and accordingly fresh meeting was held on 2^nd October 2023 and removal of the Petitioner was confirmed. The said Resolution dated 2^nd October 2023 was subject matter of proceedings before the learned Sole Arbitrator and no relief has been granted as regards the same. He submitted that in any case,

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what is significant to note is that none of the members of the Respondent-Society have challenged the said Resolution before the Competent Co-operative Court and therefore, no interference in the impugned order is warranted. He submitted that there is no fabrication as sought to be contented by the Petitioner and only draft Resolution is forwarded.

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(vii) He submitted that Society addressed correspondence to the Petitioner. However, inspite of correspondence, the Development Agreement is not registered. He pointed out the conduct of the Petitioner as more particularly set out in point No.(J) of his written submissions. He therefore, submitted that the conduct of the Petitioner disentitles him for granting any relief. He submitted that the impugned orders have been rightly passed, no case of forgery has been made out against the members of the Society.

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(viii) Mr. Tamboly, learned Counsel appearing for the Respondent No.1-Society relied on the decision of the Supreme Court in case of Ravi Yashwant Bhoir vs. District Collector Raigad & Ors.² and more particularly, on paragraph Nos.58 to 60 of the same.

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2 (2012) 4 SCC 407

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(ix) He submitted that the Writ Petition has been filed with ulterior motive to harass the Society and its members and therefore, the Writ Petition be dismissed with costs.

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Mr. Mayur Khandeparkar, learned Counsel appearing for the Intervenor i.e. new developer submitted as follows :-

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(i) The Petitioner has no locus standi to challenge the discharge of Show Cause Notice by order dated 27^th December 2023 as well as order whereby, Deputy Registrar has deputed a representative to remain present at the time of extraordinary general body meeting of the Society for the purpose of appointing new developer. He submitted that as the Petitioner is not member of the Society, he cannot challenge the said orders. He submitted that in any case, in view of the initiation of the proceedings in the form of arbitration proceedings by the Petitioner, the Writ Petition be not entertained. He submitted that no case is made out for granting relief under Article 226 of the Constitution of India.

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(ii) He submitted that although the challenge is inter alia to letter dated 2^nd February 2024 of Deputy Registrar, by which

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Authorized Officer has been appointed to remain present in the meeting of the Respondent-Society for selection of the developer, no interference at this stage be entertained as the said order/letter has already been implemented. He submitted that Special General Body Meeting was conducted by the Society on 8^th June 2024 and the Intervenor has been appointed as the new developer. Thereafter, Development Agreement dated 23^rd August 2024 has been executed and registered between the new developer and the Society and therefore, the said challenge has become infructuous.

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Mr. Vashi, learned Senior Counsel appearing for the Petitioner in rejoinder submitted that although contention is raised that the Petitioner has no locus to challenge violation of guidelines issued by the State of Maharashtra under Section 79-A of the MCS Act, however, bye-law No.175(a) which has been adopted by the Respondent No.1-Society provides that redevelopment of the Society property shall be done strictly in accordance and confirmation with the direction issued by the State of Maharashtra vide Government Resolution dated 3^rd January 2009 issued under Section 79-A of the MCS Act. The said guidelines are further modified by the Government Resolution dated 4^th July 2019. He

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submitted that the said guidelines dated 3^rd January 2009 read with Resolution dated 4^th July 2019 clearly shows that all the cooperative societies are required to maintain transparency in redevelopment work. He submitted that as the Petitioner is affected by the actions taken by the Respondent-Society, the Writ Petition is maintainable. He submitted that the contention raised regarding alleged meeting held on 25^th September 2022 by the Respondent-Society is incorrect. He therefore submitted that the reliefs sought in the Writ Petition be granted.

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Mr. Vashi, learned Senior Counsel appearing for the Petitioner-developer has submitted that the Petitioner has complied with timeline prescribed under the Redevelopment Agreement. He has argued the same orally and pointed out many documents on record and in his written submissions, from paragraph Nos.3 to 18, he has set out the details of the same. The said paragraph Nos.3 to 18 are reproduced herein below for ready reference :-

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“3. It is pertinent to note that even before the petitioner was appointed as a developer by the respondent societies, the respondent societies had passed two separate resolutions dated 8^th October 2020 & 11^th October 2020 approving amalgamation of the two societies . The said resolutions are

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annexed as Annexure "4 & 5" to the convenience compilation.

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The respondent society had passed a resolution dated 19^th December, 2020. The said resolution is annexed as Annexure "5A" to the convenience compilation.

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On 16^th March, 2021 circular was issued by MHADA laying down a condition that there must be a tripartite redevelopment agreement between MHADA, society and the developer. The said circular is annexed as Annexure "6" to the convenience compilation.

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After following the procedure prescribed u/s. 79A of the Maharashtra co-operative societies Act, 1960, the petitioner executed two separate development agreements , both dated 2^nd June, 2021 . As the said development agreements are not relevant for the present matter, the same are not annexed to the convenience compilation.

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On 31^st July 2021, the respondent society filed an application to the deputy registrar for passing a provisional order of amalgamation, which was granted by the deputy registrar on 7^th August, 2021 . The said provisional approval order is annexed as Annexure "7" to the convenience compilation.

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On 18^th August, 2021 the petitioner obtained offer letter/ NOC of MHADA and paid Rs. 65.96 lakhs to MHADA as 1ª instalment of FSI premium. The said offer letter and receipt for payment of Rs. 65.96 lakhs are annexed as Annexure "8 & 9" to the convenience compilation.

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Thereafter,

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a. Obtained a joint demarcation letter dated 17^th August 2021 from MHADA.

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b. Obtained an offer letter dated 18^th August 2021 for redevelopment from MHADA .

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c. On 10^th November, 2021 the petitioner sent tentative building plans to the society.

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d. Obtained NOC dated 26^th November 2021 from Adani electricity Mumbai limited for supply of electricity.

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e. Obtained NOC dated 19^th May 2022 from MHADA for availing IOA .

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f. Carried out soil testing , obtained report of August 2022 of the same.

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g. Obtained road remark certificate dated 4^th August 2022 .

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h. Obtained a certificate from solid waste management department of Municipal Corporation of Greater Mumbai dated 12^th August 2022.

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i. Obtained labour insurance dated 17^th August 2022 .

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j. Obtained necessary certificate from the workmen department dated 25^th August 2022 .

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k. Obtained demand letter from MHADA towards issue of IOA and made payment towards the same vide receipt dated 8^th September 2022 .

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Obtained height clearance certificate dated 30^th September 2022 from the Airport Authority of India .

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m. Obtained draft plans of IOA approved by Executive Engineer MHADA.

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The above-mentioned approvals obtained by the developer is annexed as Annexure "10 to 21" to the convenience compilation.

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14^th February, 2022 the respondent society applied for final amalgamation of both the societies. The said final amalgamation order was passed by the deputy registrar on 25^th March, 2022 which is at Annexure "22" to the convenience compilation.

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18^th July, 2022 the respondent societies forwarded final joint development agreement by email, which is annexed as Annexure "23" to the convenience compilation (page 249 of the writ petition).

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In the meantime, the respondent societies addressed letter dated 12^th February, 2022, 10^th March, 2022 etc. calling upon the petitioner to first register the development agreement . It is submitted that if the final joint development agreement was sent by respondent societies only on 18^th July, 2022, the petitioner could not have got the joint development agreement registered before 18^th July, 2022.

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13.On 18^th August, 2022 the petitioner paid 2^nd instalment to MHADA amounting to Rs. 1,41,37,126/- which as Annexure "24" to the convenience compilation (Ex. V page 208 of the writ petition).

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On 8^th September, 2022 , the petitioner informed the society that the petitioner has submitted joint development agreement for adjudication on 29^th August, 2022 to the collector of stamps, who has fixed a date of hearing on 9^th October, 2022 for adjudication. The petitioner also informed the respondent society that the petitioner has got development plans for IOA approved from MHADA, which are required to be signed by the society office bearers for availing final approved IOA and plans. The petitioner had annexed the documents mentioned in the letter. The said letter dated 8^th September, 2022 is annexed as Annexure "25" to the convenience compilation (Ex. PP page 252 of the writ petition).

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On 13^th September, 2022 , Mr. Shrikrishna Sawant one of the office bearers of the society addressed an email requesting the petitioner to share a copy of the joint development agreement , which was sent for adjudication and copies of development agreements which were previously signed by two societies. The same is annexed as Annexure "26" to the convenience compilation (Ex. RR page 264 of the writ petition).

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The petitioner forwarded a copy of the Joint development agreement , which was sent for adjudication and reminded the societies that the petitioner is still waiting for signatures of society office bearers for grant of IOA from MHADA, which is annexed as Annexure "27" to the convenience compilation (Ex. SS page 265 of the writ petition).

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The petitioner forwarded a copy of the old development agreement of building No. 7 to Mr. Shrikrishna Sawant, which is annexed as Annexure "28" to the convenience compilation (Ex. TT page 266 of the writ petition).

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Important dates from above submissions are as under: -

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a. 8^th and 11^th October, 2020 respondent societies had passed a resolution for amalgamation of two societies.

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b. Under a resolution dated 19th December, 2020 petitioner was appointed as a developer.

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c. 16^th March, 2021 MHADA issued circular insisting on execution of tripartite agreement.

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d. 2^nd June, 2021 two separate development agreements executed by the petitioner with the two respondent societies.

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e. 18^th August, 2021, the petitioner paid Rs. 65.96 letter to MHADA as 1st instalment after obtaining offer letter.

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f. 25^th March, 2022 deputy registrar passed final amalgamation order.

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g. 18th July, 2022, the respondent society had forwarded a draft of approved joint development agreement.

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h. 17^th August, 2022 the petitioner paid 2nd instalment of Rs. 1,41,37,126/-.

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i. 8^th September 2022 the petitioner paid IOA deposit and obtained draft IOA signed by Executive Engineer MHADA.

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j. 8^th September, 2022 the petitioner informed the respondent that the joint development agreement is lodged for adjudication.

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k. 13^th September, 2022 the respondent societies requested for a copy of the joint development agreement submitted by the petitioner for adjudication.

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l. 14^th September, 2022 petitioner forwarded to the respondent the joint development agreement submitted for adjudication.

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m. 15^th September, 2022 MHADA withdraw the circular regarding tripartite agreement.”

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It is the further contention of Mr. Vashi, learned Senior Counsel appearing for the Petitioner that the Society has fabricated the documents and that false record is prepared by the Society to show the appointment of new developer in place of the Petitioner. He has raised several contentions in that behalf and the same are set out in point No. (II) and (III) from paragraph Nos.19 to 43 of the written submission, which read as under:

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“ II. The petitioner would like to point out documents which are fabricated by the respondent society .

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The aforesaid facts clearly show that the respondents society had no reasons to terminate the

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development agreement. However, in order to justify its decision to terminate the development agreement, the respondent societies have fabricated the records, which is clear from the following facts.

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The respondent societies issued termination letter dated 28^th October, 2022, which is annexed as Annexure "29" to the convenience compilation (Ex. ZZ page 272 of the writ petition).

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In the said termination letter reference is made to an alleged resolution passed in annual general body meeting allegedly held on 25^th September, 2022 . It has been pointed out on behalf of the petitioner that there are two minutes of meeting dated 25^th September, 2022 . The same are annexed as Annexure "30 & 31" to the convenience compilation (Ex. GGG page 302 & 304, respectively to the writ petition).

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It has been argued on behalf of the respondents that one minutes of meeting is a draft of minutes and the 2^nd minutes is the final minutes, which is totally incorrect. Under the Right to Information Act, the petitioner has obtained an application dated 11^th April, 2023 made by the respondent society to the deputy registrar requesting the deputy registrar to cancel appointment of petitioner as developer and appoint a new developer as per 79A of the government guidelines. With the said letter /application, the respondent had annexed an undated notice of Agenda and resolution dated 25^th September, 2022 . On perusal of the said minutes, its appears that it is titled as "annual general body meeting". The next line says that it is a "special general body meeting", which is supposed to have started at 11 a.m. In para 3 of the said minutes, it is mentioned that a chartered accountant is appointed as an auditor. The name of the chartered accountant

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is blank. The said minutes do not bare anybody's signature. The said application letter dated 11^th April 2023 , along with Agenda and resolution dated 25th September 2022 is annexed as Annexure "32" of the Convenience Compilation.

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It is pertinent to note that in the termination notice four grounds for termination are given i.e. (i) that the petitioner could not obtain permission even after two years, which is factually incorrect. (ii) failed to get development agreement registered (iii) the redevelopment project of building No. 6 and 13 Tagore Nagar undertaken by the petitioner is still incomplete (iv) the petitioner has not clarified anything about the bank guarantee.

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None of the four reasons are found in the said minutes of meeting dated 25th September, 2022.

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There is another minutes of meeting of the alleged meeting held on 25^th September, 2022 . The said meeting is supposed to have started at 10.30 a.m. Resolution No.2 mentions that "M Gada and Associates" are appointed to audit books of account. Surprisingly, the minutes dated 25^th September 2022, mentions that election of society was held on 18^th September 2023. Most important Shrikrishna Sawant, whom the joint development agreement was forwarded as late as on 14^th September, 2022, is shown to be a proposer of the resolution to terminate the development agreement of the petitioner. The reasons given for termination in the said resolution are that the development agreement is not registered and that the petitioner's other projects are delayed, which does not mention building No. 6 and 13 in Tagore Nagar. Other two reasons are not mentioned in the said resolution, which are mentioned in the terminating letter, i.e. (i) the petitioner has failed to obtained permissions

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and (ii) petitioner has not given clarification regarding bank guarantee.

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It is pertinent to note that the respondent society has filed an affidavit in reply to the section 17 application filed by the respondent in para 40 at page 29, the respondent society mentioned on oath that vide a resolution dated 25^th September, 2022, the respondent terminated the development agreement. The said resolution dated 25^th September, 2022 is annexed at Exhibit Z (page 403 of the writ petition) para 40 page 29 and page 403 are annexed as Annexure "33 & 34" to the convenience compilation. The petitioner will rely upon the said affidavit in reply.

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The petitioner has also obtained a statement given by the respondent society to the senior inspector of police in an FIR registered on the complaint of petitioner. In para 40 of the said statement, the society has relied upon a resolution dated 25^th September, 2022, which is annexed and Exhibit N. The said statement and Exhibit N is annexed as Annexure "35 & 36" to the convenience compilation.

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It is pertinent to note that the minutes of meeting dated 25^th September, 2022 annexed to the application dated 11^th April 2023 made by the respondent society to the Deputy Registrar, similarly, annexed to the affidavit in reply filed in arbitral proceedings and submitted to the police authority are now sought to be termed as draft minutes.

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It is pertinent to note that the deputy registrar had appointed one Mr. Kakde to inspect the records of the society and make a report u/s. 89(A) of the co-operative societies Act. Accordingly, the said

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Kakde inspected the record and made a reports which is at Annexure "37" to the convenience compilation (Ex. EEE page 293 to the writ petition).

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In para 5 of the inspection report, the said officer has stated that returning officer Shri. Mahadev Rane had held a meeting on 25^th September, 2022 at 11 a.m. In spite of the same, in the minutes of meeting dated 25^th September, 2022, wherein the office bearers were elected, the time is shown to be 1 p.m. It is further observed that on the same day i.e. on 25^th September, 2022 an Annual general meeting is stated to be held, which is suspicious. The report of officer (Mr. Kakde) is annexed as Annexure "37" to the convenience compilation.

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The returning officer Mahadev Rane has issued a certificate dated 25^th September, 2022, wherein he has clearly mentioned that the meeting to elect members was conducted at 11 a.m. on 25^th September, 2022. The said certificate and English translation thereof is annexed as Annexure "38 & 39" to the convenience compilation. (Ex. HHH page 305 & 306 to the writ petition).

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The said returning officer Mahadev Rane has obtained signature of members of the managing committee which is signed by four persons, who are not office bearers, one Mr. Uday Khot has put his signature and has put the date as 18^th September, 2022. The same is annexed as Annexure "38" to the convenience compilation (Ex. HHH page 305 to the writ petition).

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III. False record created by the society to show appointment of new developer in place of the petitioner.

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In paragraph 8 of the Intervention Application, the intervener has stated that the intervener is appointed as a new developer in a Special General Body Meeting dated 8^th June, 2024. The appointment letter appointing the new developer is annexed as Annexure "40" to the convenience compilation.

¶200

However, the development agreement executed by the new developer with the respondent society at para "O" shows, that in the Extra Ordinary General Meeting of the society held on 11/12/2022, the new developer was appointed. The agreement with the new developer is annexed as Annexure "41" to the convenience compilation (Page 80 to the Interim Application).

¶201

One Mr. Pravin C. Lodhe is one of the partners of M/s Agastya Infra, the new developer, Intervenor. Minutes of Meeting dated 11^th December, 2022 & 18^th December 2022 obtained under RTI are annexed as Annexure "42" to the convenience compilation.

¶202

The complete name of Pravin C. Lodhe, partner of new developer appears, which means that what is mentioned in recital "O" of the development agreement viz. that the new developer was appointed by the society on 11^th December, 2022 appears to be correct, further discussion held and recorded in Minutes of meeting dated 26^th February 2023 & 26^th March 2023 confirms such appointment. Minutes of the meeting dated 26^th February 2023 & 26^th March 2023 obtained under RTI are annexed as Annexure 43 & 44 to the convenience compilation, The said resolution dated 2^nd October, 2023 is annexed as Annexure "44A" to the convenience compilation.

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The appointment of the Petitioner as a first developer was terminated by Termination Notice dated 28/10/2022, on the basis of resolution purportedly passed by the society on 25^th September, 2022. Thereafter, it is the case of the society that the society did not act upon the resolution dated 25^th September, 2022 and passed a fresh resolution on 2^nd October, 2023. It is pertinent to note that the said resolution dated 2nd October, 2023 or the termination letter on the basis of the alleged resolution dated 2^nd October, 2023, are not even served upon the petitioner till today. It is further pertinent to note that under the said resolution dated 2^nd October 2023 resolution dated 19^th December, 2020 is said to have been cancelled. However, the development agreements dated 2^nd June, 2023 are not terminated.

¶207

In any case, if the Petitioner's appointment as a first developer is terminated on 2^nd October, 2023, how can the second developer be appointed as a developer on 11^th December, 2022.

¶208

The Police has registered F.I.R against the office bearers of the society, it is mentioned that on 17^th August, 2023, Rs. 1,52,44,643 is paid to MHADA by the society from an unknown source. In the Anticipatory Bail Application, the accused i.e. the office bearers of the society have referred to the said payment made on 17/8/23 to MHADA and mentioned that the said payment was made by the new developer viz. Agastya Infra. Therefore, it is clear that the society had already started dealing with the second developer without any resolution, without any appointment letter and without any development agreement signed with the second developer. The relevant in this regard are annexed as Annexure "45" to the convenience compilation (Page 9 & 10 to the Rejoinder for anticipatory bail).

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It is pertinent to note that the second developer has made payment of Rs.1,52,44,643 on 17^th August, 2023, whereas for the first time the society has issued an advertisement on 13^th November, 2023 inviting tenders from reputed developers.

¶213

Thus, the purported appointment of new developer is on 11^th December, 2022, payment of Rs. 1,52,44,643 is made by the second developer to MHADA on 17/08/23, the advertisement inviting tenders is given by the society on 13^th November, 2023 and second developer is purportedly appointed on 8^th June, 2024. The payment receipt dated 17^th August 2023 and advertisements are annexed as Annexure "46 & 47" to the convenience compilation.

¶214

41.It is pertinent to note that in the second development agreement, the second developer and the society have relied upon the permissions, NOCs, etc. obtained by the petitioner e.g. at page 180 of the Intervention Application, amalgamation order dated 25^th March, 2022 obtained by the Petitioner is annexed and relied upon. At page 196 of the Intervention Application, offer letter obtained by the Petitioner from MHADA is relied upon. At page 280, IOA dated 03/10/24 obtained by the second developer is relied upon. If the said IOA is perused, the same refers to MHADA Offer letter dated 18/8/21 and consent for C.C dated 19^th May, 2022 obtained by the Petitioner. Thus, the IOA (IOD) is obtained by the second developer on the basis of the permissions and NOCs obtained by the petitioner. The said pages 180, 196 and 280 are annexed as Annexure "48, 49 and 50" to the convenience compilation.

¶215

It is pertinent to note that in order to obtain IOA, four instalments are required to be paid. 2 out

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of 4 instalments are made by the petitioner and only one instalment amounting to Rs. 1,52,44,643 is paid by the second developer.

¶220

The aforesaid facts clearly show that the society records are manipulated at the behest of the second developer, which are required to be looked into by the Divisional Joint Registrar.”

¶221

As regards issue of two resolutions dated 25^th September 2022 it is the submission of the Respondent No.1 – Society that correct resolution is dated 25^th September 2022 (Page 300 of Writ Petition) and not resolution annexed at Page No.304, which was merely a draft of resolution. However, there are many circumstances as raised by the Petitioner which supports the Petitioner’s case. Prima facie, there is substance in the contention which Mr. Vashi, learned Counsel has raised.

¶222

As far as the impugned order dated 1^st February 2024 by which Show Cause Notice dated 27^th December 2024 issued under Section 75(5) of the MCS Act has been withdrawn, it is required to be noted that the said Show Cause Notice dated 27^th December 2024 has been issued on the basis of report dated 13^th December 2023 (Page Nos.294-299 of the Writ Petition) of the Inspecting Officer @ Certified Auditor. The observations of the Inspecting

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Officer @ Certified Auditor recorded in the said report in Column

¶227

No.26 are very important and the same read as under :-

¶228

ß26	rikl.kh vf/kdk&;kps lkekU;	1- dye 24v uqlkj izf’k{k.kkps
-	‘ksjs o lqpuk	mf/n”V izkIr dsysys ukgh] rlsp lnj fu/khph vkdkj.kh o olwyh ns[khy dsysyh ukgh-
		2- dye 79 vUo;s fooj.ki=s Hkj.kk dj.ksckcr dk;Zokgh dsY;kps fnlwu ;sr ukgh rjh lnj izdj.kh
		egkjk”Vª lgdkjh laLFkk vf/kfu;e
		1960 ps dye
		79¼1½]79¼2½]79¼3½]154c&]
		23¼1½¼rhu½] 154c&23¼2½ o
		154c&¼3½ uqlkj dkjokbZ gks.ks dzeizkIr vkgs-
		3- laLFksus bekjrhpk foek mrjfoysyk ukgh-
		4- lu 2022&23 ;k dkyko/khP;k
		ys[kkijh{k.k vgokykr lacaf/kr
		ys[kkijh{kd ;kauh uewn dsysY;k
		‘ks&;kuqlkj laLFksus lu
		2021&22 ;k dkyko/khP;k
		ys[kkijh{k.k vgokykpk nks”k nq:Lrh
		vgoky lknj dsysyk ukgh- rlsp
		dsysY;k okf”kZd loZlk/kkj.k lHksr
		lu 2021&22 ;k dkyko/khpk nks”k
		nq:Lrh vgoky bfro`Rrko:u
		fnlwu ;sr vkgs- lnj okf”kZd
		loZlk/kkj.k lHksP;k uksVh’khe/;s
		ns[khy lu 2021&22 ;k
		dkyko/khpk nks”k nq:Lrh vgoky
		fLod`rhckcr fo”k; ?ks.;kr vkysyk
		ukgh- rFkkfi lnj izdj.kh laLFksP;k
		O;oLFkkid lferhus egkjk”Vª lgdkjh
		laLFkk vf/kfu;e 1960 ps dye
		75¼5½ vUo;s dkjokbZ gks.ks dzeizkIr
		vkgs-\|

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5- fuoM.kwd vf/kdkjh Jh egknso jk.ks ;kapsdMhy bfro`Rrkuqlkj O;oLFkkid lferhP;k lu 2022&27 ;k dkyko/khP;k fuoM.kwd izfdz;snjE;ku fnukad 2509-2022 jksth ldkGh 11 oktrk inkf/kdkjh fuoMhps dkedke R;kauh lq: dsys o inkf/kdkjh fuoMhpk Bjko ikjhr d:u dkedkt laifoysrlsp lnj fnukad 25-09-2022 jksthP;k inkf/kdkjh fuoMhP;k lHksr O;oLFkkid lferh lnL;kaO;frjhDr laLFksP;k brj lHkklnkauk lkfey d:u ?ksrysys vkgs- fnukad 25-092022 jksthP;k lHksP;k mifLFkrhP;k ikukoj ,dk lnL;kus mifLFkrhckcr Lok{kjh dsysyh vkgs- ijarw Lok{kjhP;k [kkyh 18-09 vlk fnukad uewn dsysyk vkgs- rFkkfi laLFksP;k fnukad 25-09-2022 jksthP;k okf”kZd loZlk/kkj.k lHksr inkf/kdkjh fuoMhph izfdz;k nqikjh 01%00 oktrk lq: >kY;kpk mYys[k dsysyk vkgs- lcc laLFksph fnukad 25-09-2022 jksthph okf”kZd loZlk/kkj.k lHkk o fuoM.kwd vf/kdkjh ;kaph inkf/kdkjh fuoMhph fnukad 25-09-2022 jksthph lHkk ;k nksUgh lHkkaP;k dk;Zi/nrhckcr lk’kadrk fuekZ.k gksr vkgs6- ys[kkijh{k.k vgokykrhy ‘ks&;kuqlkj laLFksus fu/khph iw.kZr% xqaro.kwd dsysyh ukgh-Þ

¶233

(Emphasis added)

¶234

English translation of the above as provided by the Petitioner is as

under :-

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“26 General remarks and institution of the Inspecting Officer	1. As per Section 24A, the objective of training has not been achieved, and the said fund has also not been levied and recovered. 2. Regarding filing of returns under section 79. No action appears to have been taken. However, in the said case, action should be taken as per section 79(1), 79(2), 79(3), 154v-23(1) (three), 154b- 23(2) and 154b-(3) of the Maharashtra Co-operative Societies Act, 1960 is in order.
	3. The organization has not insured the building.
	4. As per the comment mentioned by the concerned auditor in the audit report of the year 2022-23, the organization has not submitted the defect rectification report of the audit report of the year 2021-22. Also, it is seen from the minutes of the organization that in the annual general meeting organized by the organization on 29.09.2023, the defect rectification report for the period 2021-22 has not been kept for review. In the notice of the said annual general meeting, the issue of acceptance of defect rectification report for the period 2021-22 was also not taken up. However,in the said

“26 General
remarks
and
institution of the Inspecting
Officer

1. As per Section 24A, the
objective of training has not
been achieved, and the said
fund has also not been levied
and recovered.
2. Regarding filing of returns
under section 79. No action
appears to have been taken.
However, in the said case,
action should be taken as per
section 79(1), 79(2), 79(3),
154v-23(1) (three), 154b-
23(2) and 154b-(3) of the
Maharashtra
Co-operative
Societies Act, 1960 is in order.

3. The organization has not
insured the building.

4. As per the comment
mentioned by the concerned
auditor in the audit report of
the year 2022-23, the
organization has not submitted
the defect rectification report
of the audit report of the year
2021-22. Also, it is seen from
the minutes of the organization
that in the annual general
meeting organized by the
organization on 29.09.2023,
the defect rectification report
for the period 2021-22 has not
been kept for review. In the
notice of the said annual
general meeting, the issue of
acceptance
of
defect
rectification report for the
period 2021-22 was also not
taken up. However,in the said

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case, the managing committee of the organization has violated Section 75(4) of the Maharashtra Cooperative Societies Act, 1960. Action under Section 75(5) of the Maharashtra Co-operative Societies Act, 1960 against the Managing Committee of the Sabab Sanstha is in order.

¶244

According to the minutes of Election Officer Mr. Mahadev Rane, during the election process of the year 2022-27 of the Managing Committee, on 25.09.2022 at 11 am, he started the office selection process and finished the work by passing the office selection resolution. Also, in the said meeting dated 25.09.2022, other members of the organization other than the members of the management committee Attached, the attendance sheet of the meeting dated 25.09.2022 is signed by a member regarding attendance but the date 18.09 is mentioned below the signature. However, in the annual general meeting of the organization dated 25.09.2022, it is mentioned that the process of selection of office bearers started at 01:00 PM. Doubts are being raised regarding the functioning of both the Annual General

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Meeting of Sabab Sanstha
dated 25.09.2022 and the
election officer election
meeting dated 25.09.2022.
6. According to the audit
report, the organization as per
section in the audit report.”

¶249

Thus, the main observation of the Inspecting Officer alias Certified Auditor is with respect to the Minutes of Meeting dated 25^th September 2022. It is the submission of Mr. Vashi, learned Senior Counsel appearing for the Petitioner that to substantiate the contention that the Petitioner’s termination is valid termination, the Society has created false record. As already observed herein above, prima facie, there is substance in the contention of Mr. Vashi, learned Senior Counsel appearing for the Petitioner that the Minutes of the Meeting dated 25^th September 2022 are fabricated documents.

¶250

It is the submission of Mr. Tamboly, learned Counsel for the Respondent No.1 that the Show Cause Notice dated 27^th December 2023 regarding Special General Body Meeting dated 25^th September 2022 is outside the scope of Section 75 of the MCS Act and therefore order directing withdrawal of Show Cause Notice is

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properly passed. There is no substance in the contention raised by the learned Counsel appearing for the Respondent No.1 as Section 75 of MCS Act is inter alia concerning the record of the Society which also includes record of the Society regarding said resolution dated 25^th September 2022. Apart from that observations in Column No.26 are concerning record related with various other aspects apart from said resolution date 25^th September 2022.

¶255

Thus, prima facie, there is substance in the contention raised by Mr. Vashi, learned Senior Counsel.

¶256

Mr. Tamboly, learned Counsel and Mr. Khandeparkar, learneed Counsel submitted that the Petitioner has no locus to challenge the impugned orders. However, the impugned orders are inter alia concerning the resolution passed by the Respondent No.1 – Society terminating appointment of the Petitioner as developer and also concerning further steps by which Petitioner’s rights are affected. Thus the Petitioner is going to be affected by the impugned orders and therefore has locus to challenge the impugned orders.

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At this stage, it is required to be noted the decision of the Supreme Court in the case of Central Council for Research in Ayurvedic Sciences v. Bikartan Das³ inter alia with respect to law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. The relevant paragraphs are paragraph Nos.50 to 52, which reads as under:

¶261

“ 50. Before we close this matter, we would like to observe something important in the aforesaid context:

¶262

Two cardinal principles of law governing exercise of extraordinary jurisdiction under Article 226 of the Constitution more particularly when it comes to issue of writ of certiorari.

¶263

The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ,the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record . A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.

¶264

The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the

¶265

3 2023 SCC OnLine SC 996

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Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not. ”

¶270

As held by the Supreme Court while exercising jurisdiction under Article 226 of the Constitution of India, the High Court does not exercise the powers of the Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. The High Court will interfere in the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior Tribunal. It has been further held by the Supreme Court that in a given case, even if some action or order challenged in the

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Writ Petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the Writ Court, exercising this flexible power to pass such orders as public interest dictates and equity projects. In the light of law laid down by the Supreme Court, it is necessary to consider the challenge in this Writ Petition.

¶275

It is necessary to consider the challenge raised by the Petitioner in this case on the touchstone of well established parameters while exercising power under Article 226 of the Constitution of India.

¶276

It is required to be noted that even assuming that the said Minutes of Meeting dated 25^th September 2022 are fabricated Minutes, the subsequent developments are also important and significant. The same are as follows :-

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(i) By order dated 13^th September 2023 of Deputy Registrar, Co-operative Societies, MHADA (Page 288 to 290), the following directions have been issued by the Deputy Registrar:

¶281

“ fujh{k.k vkf.k fu”d”kZ%&

¶282

lkxj&fdj.k dks&vkWi gkSflax lkslk;Vh fy] bekjr dz- 7 ;k laLFkse/;s 16 lHkkln rj vkfnR; vuqjkx dks&vkWi gkSflax lkslk;Vh fy] bekjr dz- 8 ;k laLFkse/;s 16 lHkkln vls ,dw.k 32 lHkkln vlwu nksUgh laLFkkaps ,df=dj.kkps vkns’k fn-25@03@2022 jksth fuxZfer dj.;kr vkysys vlwu lkxj&fdj.k dks&vkWi gkSflax lkslk;Vh fy] bekjr dz-7 ;k laLFksus uko dk;e dj.;kr vkysys vlY;kps fnlwu ;srs- ,df=dj.kkps vkns’k izkIr >kY;kuarj laLFksus O;oLFkkid lferhph fuoM.kwd ?ks.;klkBh Jh- e-fo- jk.ks ;kaph fuoM.kwd fu.kZ; vf/kdkjh Eg.kwu fu;qDrh dsysyh vlwu fudky fn- 18@09@2022 jksth ns.;kr vkysys vkgs- fuoM.kwd fu.kZ; izkIr gksrkp laLFksus fn- 25@09@2022 jksth fo’ks”k loZlk/kkj.k lHkk vk;ksftr dsysyh vlwu lnj lHkse/;s 19 lHkkln mifLFkr gksrs- R;ke/;s fodkld VjfeusV dj.;kckcr 14 fnolkaph uksfVl ns.;kckcr fu.kZ; ?ks.;kr vkysyk vlY;kps fnlwu ;srs- okLrfod fn-04@07@2019 jksthP;k ‘kklu fu.kZ;krhy rjrqnhuqlkj T;k i/nrhus Eg.kwu ,dw.k lHkklnkP;k 2@3 is{kk vf/kd mifLFkr lHkklnkaP;k lgerhus fodkldkph fu;qDrh >kyh- R;kp i/nrhus fodkldkl dk<wu Vkd.;kpk fu.kZ; fn-25@09@2022 jksthP;k lHksr ?ks.ks vko’;d gksrs- ijarq laLFksus rls u djrk lnj lHksl ,dw.k lHkklnkaP;k 2@3 lHkkln mifLFkr ulrkukgh Bjko dj.;kr vkysyk vlY;kps fnlwu ;srs- lcc] ;kp o v’kk izdkjP;k vusd vk{ksikeqGs@=qVheqGs fodkldkus laLFksfojks/kkr ek- mPp U;k;ky; ;sFks Commercial arbitration petition nk[ky dsysys vkgs-

¶283

lcc] ojhy loZ ckch fopkj ?ksrY;k vlrk] laLFksP;k iqufoZdklklkBh fodkldkus ‘kkldh; ;a=.ks’kh laidZ] i=O;ogkj d:u ijokuX;k vk.kysY;k vkgsr] EgkMk izkf/kdj.kkdMs fizfe;eph jDdr vnk dsysyh vkgs- izFken’kZuh laLFksP;k /kksj.kkeqGs dkxni=kaoj lg;k gksr ulY;keqGs iq<hy izfdz;k Fkkacysyh vlY;kps fnlwu ;srs- rlsp laLFksP;k iqufoZdklkckcr fodkldkus ek- mPp U;k;ky; ;sFks Commercial

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arbitration petition nk[ky dsysyh vlY;keqGs R;ke/;s gLr{ksi d:u fo|eku fodkldkph fu;qDrh jÌ dj.;kph ijokxuh vf/kdkj ;k dk;kZy;kl ulY;keqGs lq/kkfjr mifo/kh dz- 175¼c½ e/khy rjrqnhuqlkj laLFkk Lrjkoj mfpr fu.kZ; ?;kok-

¶288

oj uewn dsY;kizek.ks vtZ vafrer% fudkyh dk<.;kr ;sr vkgs-”

¶289

(Emphasis added)

¶290

English translation of the same as provided by the Petitioner is as follows :-

¶291

“ Sagar - Kiran Co-op Housing Society Ltd, Building No. 7 has 16 members and Aditya Anurag Co-op Housing Society Ltd, Building No. 8 has 16 members in total of 32 members and the merger order of both the organizations has been issued on 25/03/2022 and Sagar Kirana Co-op Housing Society Ltd, Building no. 7. It is evident that the name has been fixed by this organization. After receiving the order of consolidation, the organization decided to elect the managing committee of Shri. M. V. Rane has been appointed as the election decision officer and the result dt. Issued on 18/09/2022. As soon as the election decision was received, the organization organized a special general meeting on 25/09/2022 and 19 members were present in the said meeting . It shows that a decision has been taken to give 14 days notice to terminate the developer. In fact, according to the provisions of the government decision dated 04/07/2019, the developer was appointed with the consent of more than 2/3 of the total members present. In the same manner, the decision to remove the developer. It was required to be taken up in the meeting on 25/09/2022. But it is seen that the

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resolution was passed without 2/3 of the total members present in the said meeting without the organization doing so. Reason, due to this and many such objections / errors, the developer has filed against the organization Hon'ble A commercial arbitration petition has been filed in the High Court.

¶296

Reason, considering all the above matters, for the redevelopment of the institution, the developer has contacted and corresponded with the government system and brought the permissions, the premium amount has been paid to the MHADA authority. Prima facie it appears that due to the organization's policy of not signing the documents, the further process has stalled. Also regarding the redevelopment of the organization, the developer Hon. As a comunercial arbitration petition has been filed in the High Court, this office does not have the authority to intervene and cancel the appointment of the existing developer, amended bye-law no. Appropriate decision should be taken at the organization level as per the provisions of 175 (b) .

¶297

The application is being finally disposed of as mentioned above.”

¶298

(ii) Thus, the Deputy Registrar by the order dated 13^th September 2023 directed the Society to take action as per the amended Bye-law No.175(a). The said amended Bylaw No.175(a) is as follows:

¶299

“ 175.

¶300

a) Redevelopment of the Property/Building of the society including vacant spaces shall be done strictly in accordance and confirmation with the direction issue by the Government of

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Maharashtra has issued Government Resolution No. CHS 2007/M.No. 554/14-S, dated 3^rd Jan. 2009 under section 79(A) of the Maharashtra Cooperative Societies Act, 1960. (as amended from time to time). ”

¶305

The said Bye-law provides that redevelopment of the Society property shall be done strictly in accordance and in confirmity with the directions issued by the State of Maharashtra vide Government Resolution dated 3^rd January 2009 issued under Section 79-A of the MCS Act as amended from time to time.

¶306

(iii) Pursuant to said direction dated 13^th September 2023, Special General Body Meeting of the Respondent No.1Society was held on 2^nd October 2023. In the said Special General Body Meeting 25 members out of 32 were present. Thus, more than 2/3rd members were present. The Special General Body has passed the following Resolution unanimously.

¶307

“ Resolved That , the consent is taken by 2/3 members of building No.7 and 8 to terminate and/or cancel the Resolution dated 19th December, 2020 wherein the Society No.7 and 8 has appointed M/s. Nirvana Constructions LLP to redevelop the sald property and to inform the Deputy Registrar MHADA by, sending the copy of

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Resolution and Termination and/or cancellation of the Resolution dated 19^th December 2020.

¶312

Proposed By- Mr. Suresh K Mabian Seconded By- Mr. Sandeep Hindlekar

¶313

Resolution passed unanimously ”

¶314

(Emphasis added)

¶315

It is significant to note that the said Special General Body Meeting dated 2^nd October 2023 has been attended by 25 members out of 32 member. All 25 members have unanimously passed the aforesaid Resolution. Thus, it is clear that overwhelming majority of the members i.e. about more than 78% of the members have passed the Resolution removing the Petitioner as developer.

¶316

(iv) By the impugned order dated 2^nd February 2024 of Deputy Registrar, Co-operative Societies, MHADA, Authorized Officer has been appointed for selection of developer. It is an admitted position that the Intervenor-Agastya Infra has been appointed as developer by Respondent No.1 – Society by passing Resolution dated 8^th June 2024 in the Special General Body Meeting of the Respondent-Society held on 8^th June 2024. The Intervenor-Agastya Infra has been selected by 26

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members out of total 32 members of the Society i.e. about 81% of the members have selected the Intervenor as their developer. The relevant portion of the said Resolution reads as under:

¶321

ßfnukad 08@06@2024 jksth lkslk;Vhph fo’ks”k loZlk/kkj.k lHkk tkxr efgyk eaMG] dUueokj uxj&1 fcfYMax uacj &1 P;k leksj] fodzksGh ¼iwoZ½ eqacbZ] 40083] ¼79v½ izfdz;k iw.kZ dj.;klkBh lHkk cksyo.;kr vkyh ;k lHksyk mifuca/kd EgkMk ;kaP;k dk;kZy;krhy izkf/kdr vf/kdkjh Jh izeksn dqyd.khZ lgdkjh vf/kdkjh Js.kh&2 o 32 lHkklnku iSdh 26 lHkkln mifLFkr gksrs -

¶322

;k lHkspk bfr:rkar [kkyhy izek.ks-

¶323

lHkk lq: >kY;koj lfpo Jh Jhd`”.k lkoar ;kauh v/;{k JhHkokath oksjk ;kaP;k ijokxuh us vkiY;k lkslk;VhP;k iqufoZdklklaca/kh lHkklnkauk ekfgrh fnyh- o R;koj lkslk;VhdMs iqufoZdklklkBh vkysY;k iq<hy fufonk 1) M/s. Hiranimanthan Builders & Developers, 2) M/s. Agastya Infra 3) M/s. D. D. Infra g;k loZ fufonk okpwu nk[kfoY;k o R;k iSdh ;kaph fnukad 08@06@2024 jksth >kysY;k lHksr mifLFkr loZ 26 lHkklnuh gkr mapkmu laerh n’kZfoyh vkf.k lokZuqers M/s. Agastya Infra ;kaph fodkld Eg.kwu fuoM dj.;kr vkyhlwpd% lat; oksjk ;kauh lqpoysvuqeksnu % jktkjke jko ;kauh fnys-Þ

¶324

Thus, it is clear that the said impugned order dated 2^nd February 2024 has been implemented and the Intervenor has been selected as developer.

¶325

The above factual aspects which are subsequent events are very significant and required to be taken into consideration while deciding the present Writ Petition.

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Apart from that, one more significant aspect is that the building which is belonging to Respondent-Society is more than about 65 years old and dilapidated. It is an admitted position that as the building is dilapidated, 15 members out of 32 members have already vacated the building in question.

¶330

Thus, the position on record clearly establishes following aspects :-

¶331

(i) The subject building of the Respondent No.1-Society is more than 65 years old and the same is dilapidated. Out of 32 members of the Society, 15 have already vacated the building as the building is old and dilapidated.

¶332

(ii) The Petitioner has been removed as developer in the Special General Body Meeting dated 2^nd October 2023.

¶333

(iii) The Intervenor-Agastya Infra has been appointed as developer in the Special General Body Meeting held on 8^th June 2024.

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(iv) The Petitioner has already invoked arbitration proceedings and the same are pending.

¶338

Thus, no case is made out for interference in the impugned orders in view of the subsequent developments as set out herein above. The observations of the Supreme Court in Central Council for Research in Ayurvedic Sciences (supra) in paragraph Nos. 51 and 52 will apply to the present case. The Supreme Court has held that in a given case even if some action or order challenged in the Writ Petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary. In view of the subsequent facts and circumstances as set out herein above, no interference in the impugned orders are warranted on the touchstone of the law laid down by the Supreme Court in Central Council for Research in Ayurvedic Sciences (supra).

¶339