# MARGARET ALMEIDA & ORS. ETC v. BOMBAY CATHOLIC CO-OPERATIVE HOUSING SOCIETY LTD. & ORS

- **Citation:** [2013] 5 S.C.R. 871
- **Court:** Supreme Court of India
- **Decided:** 2013-03-22
- **Case number:** Civil Appeal Nos. 2683-2685 of 2013
- **Bench:** P. Sathasivam, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/margaret-almeida-ors-etc-v-bombay-catholic-co-operative-housing-society-ltd-ors-29212
- **Pages:** 53

## Headnote

A
B
Interim Relief - Entitlement - Housing Society passes
resolution on 25.9.1966 for re-development of the area which c
was let out to 69 tenant members - As per resolution, after
redevelopment, 230 tenements would be constructed out of
which 161 were meant for allottee-members and 69 for the
tenant-members - The resolution, when challenged by tenantmembers u/s. 91 of Co-operative Societies Act, attained D
finality in favour of the Society- 161 beneficiaries also made
deposits in the year 1966 to the Society -
The tenantmembers again challenged the resolution u/s. 18 of the Act
seeking bifurcation of the Society, which issue is still pending
- The Society by its resolution dated 6.12.2009 gave effect E
to its earlier resolution dated 25. 9. 1966 - Consequential
conveyance deed dated 7.12.2009 was executed- 15 out of
the 69 tenant-members, then filed suits seeking direction to
restrain the society from taking steps in furtherance of
resolution dated 6. 12. 2009 and the consequential
conveyance deed - Interim relief not granted - In Notice of F
Motion, Single Judge of High Court granted interim relief and
subsequently made the interim order absolute - Division
Bench of High Court vacated the interim . order - ·Held: The
tenant-members are not entitled to interim relief - By vacating
the interim order no irreparable loss is caused to them - They G
being in minority (initially at the time of filing of suit 15 and
when reached this Court reduced to 5) as against 225
members, balance of convenience is in favour of the majority
871
H
872
SUPREME COURT REPORTS
[2013] 5 S.C.R.
A and not the contesting tenant-members -
Their plea to
procure a better offer for development than that offered to
Society, also shows that they are agreeable to development
and the initiation of proceedings for restraining development
- lacks bonafide - The tenant-members are also not entitled
B to the interim relief as they do not have proprietary interest in
the subject matter.
The respondent-housing Society developed three
blocks of land namely 'Willingdon West', 'Willingdon
South' and 'Willingdon East'. It sold 'Willingdon West'
C area to shareholders on freehold basis and leased out the
area in 'Willingdon South' to its shareholders. In the
'Willingdon East' the respondent-Society constructed 25
cottages and the same were let out to tenant-members
D
(including the appellants).
The respondent-Society passed a resolution on 259-1966 to redevelop the land in 'Willingdon East' by
raising new apartments by demolishing 25 cottages, to
house 230 tenements. Out of the 230 tenements, 161
E tenements would be meant for allottee-members and the
remaining 69 tenements for the tenant-members who
were already in occupation of 25 cottages.
The tenant-members assailed the resolution uls.91 of
Co-operative Societies Act. After the same was finally
F decided against the tenant members, the respondentSociety invited applications for allotment of flats as per
the resolution dated 25.9.1966 and collected advance
from about 200 members.
G
The tenant-members again challenged the
H
redevelopment proposal u/s.18 of Co-operative Societies
Act, praying for the bifurcation of the Catholic society into
two i.e. one comprising of only tenant-members and the
other comprising of all non tenant-members. The same
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP
873
HOUSING SOC. LTD.
also did not culminate in favour of the tenant-members, A
as the teoant-members ultimately withdrew their
. challenge and undertook to co-operate with the
respondent-Society for redeveloping the Willingdon East
area as envisaged in the resolution of the respondentSociety dated 6.12.2009. In compliance of the resolution
8
dated 6,12.2009, a conveyance dated 7.12.2009 came to
be executed.
Some of the tenant-members filed two civil suits
praying for direction to the respondent-Society to restrain
from taking steps in furtherance of the resolution dated C
6.12.2009 and the consequential conveyance deed dated
7.12.2009.

## Text

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[2013] 5 S.C.R. 871
MARGARET ALMEIDA & ORS. ETC.
v.
BOMBAY CATHOLIC CO-OPERATIVE HOUSING SOCIETY
LTD. & ORS.
(Civil Appeal N'os. 2683-2685 of 2013)
MARCH 22, 2013
[P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]
A
B
Interim Relief - Entitlement - Housing Society passes
resolution on 25.9.1966 for re-development of the area which c
was let out to 69 tenant members - As per resolution, after
redevelopment, 230 tenements would be constructed out of
which 161 were meant for allottee-members and 69 for the
tenant-members - The resolution, when challenged by tenantmembers u/s. 91 of Co-operative Societies Act, attained D
finality in favour of the Society- 161 beneficiaries also made
deposits in the year 1966 to the Society -
The tenantmembers again challenged the resolution u/s. 18 of the Act
seeking bifurcation of the Society, which issue is still pending
- The Society by its resolution dated 6.12.2009 gave effect E
to its earlier resolution dated 25. 9. 1966 - Consequential
conveyance deed dated 7.12.2009 was executed- 15 out of
the 69 tenant-members, then filed suits seeking direction to
restrain the society from taking steps in furtherance of
resolution dated 6. 12. 2009 and the consequential
conveyance deed - Interim relief not granted - In Notice of F
Motion, Single Judge of High Court granted interim relief and
subsequently made the interim order absolute - Division
Bench of High Court vacated the interim . order - ·Held: The
tenant-members are not entitled to interim relief - By vacating
the interim order no irreparable loss is caused to them - They G
being in minority (initially at the time of filing of suit 15 and
when reached this Court reduced to 5) as against 225
members, balance of convenience is in favour of the majority
871
H
872
SUPREME COURT REPORTS
[2013] 5 S.C.R.
A and not the contesting tenant-members -
Their plea to
procure a better offer for development than that offered to
Society, also shows that they are agreeable to development
and the initiation of proceedings for restraining development
- lacks bonafide - The tenant-members are also not entitled
B to the interim relief as they do not have proprietary interest in
the subject matter.
The respondent-housing Society developed three
blocks of land namely 'Willingdon West', 'Willingdon
South' and 'Willingdon East'. It sold 'Willingdon West'
C area to shareholders on freehold basis and leased out the
area in 'Willingdon South' to its shareholders. In the
'Willingdon East' the respondent-Society constructed 25
cottages and the same were let out to tenant-members
D
(including the appellants).
The respondent-Society passed a resolution on 259-1966 to redevelop the land in 'Willingdon East' by
raising new apartments by demolishing 25 cottages, to
house 230 tenements. Out of the 230 tenements, 161
E tenements would be meant for allottee-members and the
remaining 69 tenements for the tenant-members who
were already in occupation of 25 cottages.
The tenant-members assailed the resolution uls.91 of
Co-operative Societies Act. After the same was finally
F decided against the tenant members, the respondentSociety invited applications for allotment of flats as per
the resolution dated 25.9.1966 and collected advance
from about 200 members.
G
The tenant-members again challenged the
H
redevelopment proposal u/s.18 of Co-operative Societies
Act, praying for the bifurcation of the Catholic society into
two i.e. one comprising of only tenant-members and the
other comprising of all non tenant-members. The same
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP
873
HOUSING SOC. LTD.
also did not culminate in favour of the tenant-members, A
as the teoant-members ultimately withdrew their
. challenge and undertook to co-operate with the
respondent-Society for redeveloping the Willingdon East
area as envisaged in the resolution of the respondentSociety dated 6.12.2009. In compliance of the resolution
8
dated 6,12.2009, a conveyance dated 7.12.2009 came to
be executed.
Some of the tenant-members filed two civil suits
praying for direction to the respondent-Society to restrain
from taking steps in furtherance of the resolution dated C
6.12.2009 and the consequential conveyance deed dated
7.12.2009. As the interil'J!_ r-elief was not granted to the
tenant-members, they moved Notice of Motion, wherein
the Single Judge of High Court granted interim relief.
Single Judge by a further order dated 5.5.2011 made the D
Interim order absolute. In appeal, Division Bench of High.
Court vacat_ed the interim order granted by the Single
Judge. Hence the present appeals.
Dismissrng the appeals, the Court
HELD: 1. The Catholic Society comprised of about
745 members. Out of these members the strength of the
tenant-members at the present juncture is 69. The relief
sought in the two suits is a claim for rights, on account
E
of being tenant-members. The suits were filed by only 15
F ·
tenant-members. The suits were not filed in a
representative capacity, and as such, it would be
incorrect to assllme, that the suits can be considered to
have been filed by all the 69 tenant-members. The number
of tenant-members who were pursuing their remedy G
through the afore-said suits, has diminished further before
this Court, inasmuch as Special Leave Petition filed by
them comprises of eight petitioners only. Further, three
of the eight petitioners had prayer for transposing them
as respondents, as they did not want to pursue the matter H
1-
874
SUPREME COURT REPORTS
[2013] 5 S.C.R.
A any further (along with the remaining petitioners). Thus,
the strength of the tenant-members who had initiated the
civil suits has successively diminished from 15. Keeping
in mind, that the total tenant-members are 69, and the
relief sought in the suits, and now through the instant
B petitions/appeals (which are filed on the strength of being
tenant-members), has diminished to 5, it would be
inappropriate to consider the grant of any interim relief,
in the absence of any clear determination, that the claim
pressed by the appellants before this Court is at the
C behest of at least a simple majority of the tenantmembers. Therefore, acceptance of the prayer made by
the tenant-members for interim directions, would not only
be inappropriate but would be unthinkable. [Para 26]
[910-8-H; 911-A-E]
D
2. It cannot be said that the tenant-members would
lose their co-operative membership upon implementation
of the resolution of the Catholic Society dated 6.12.2009
(and the consequential conveyance deed dated
E 7.12.2009). All the 69 tenant-members, besides 161
allottee-members would be entitled to occupy the
tenements, consequent upon completion of the building
project emerging out of the resolution of the Catholic
Society dated 6.12.2009 (and the consequential
conveyance deed dated 7.12.2009). Thereafter, they
F would have to be enrolled as members of the Cooperative
Society to be formed by the developer, u/s. 10 of the
Maharashtra Ownership of Flats (Regulation of the
Promotion, Construction, Sale, Management & Transfer)
Act, 1963, r/w. Rule 10 of the rules framed thereunder.
G Thus on the instant aspect of the matter, the petitioners/
appellants will not be subjected to any irreparable loss.
[Para 28] [912-8-C, D-E, F-G]
3.1. In the peculiar facts and circumstances of the
H case, it is not possible for this Court to accede to the
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP
875
HOUSING SOC. LTD.
claim of the appellants that their claim for the bifurcation A
of the Catholic Society under Section 18 of the
Cooperative Societies Act would stand frustrated if
resolution dated 6.12.2009 is given effect to. The first
dispute between the rival parties arose when the Catholic
Society resolved to redevelop the land measuring about B
5.5 acres, known as 'Willingdon East', by resolution
passed on 25.9.1966. The said resolution was assailed by
the tenant-members under Section 91 of the Cooperative
Societies Act, and the issue attained finality in favour of
Catholic Society, after a Division Bench of the High Court C
dismissed the intra-court appeal preferred by the tenantmembers, on 25. 7 .1972. The aforesaid resolution dated
25.9.1966 (which was declared as legal by the High
Court),is sought to be given effect to by the Catholic
Society, through its resolution dated 6.12.2009 (and 0
consequential conveyance deed dated 7.12.2009). Five
tenant-members are now desirous of stalling the
res~lution of25j).1966, even though about 47 years have
gone by since then. Thus the Catholic Society, left to
itself, would have commenced the redevelopment of
'Willingdon East', comprising of 230 tenements, more E
than four and a half decades prior hereto, had the tenantmembers allowed the Catholic Society to proceed with
the matter in terms of its aforesaid resolution. The instant
action of the tenant-members has adversely affected all
those who would have been entitled to tenements, had F
the petitioners/appellants herein not obstructed to the
redevelopment resolution of the Catholic Society.
Deprivation of the rights of 230 individuals, at the behest
of five of them, tilts the balarice of convenience in favour
of the majority (230 - 5 = 225), and against a miniscule G
minority of 5 members. In this view of the matter also, the
. High Court while passing the impugned order dated
9.8.2012 was fully justified, in vacating the interim order(s)
passed by the Single Judge. [Paras 29 and 30) [913-A-B,
C-H; 914-AB]
H · .
876
SUPREME COURT REPORTS
[2013] 5 S.C.R.
A
3.2.
tenant-members had filed an application
under Section 18 of the Co-operative Societies Act, to
protect the interest of the tenant-members of the Catholic
Society. To achieve the aforesaid objective, it was
canvassed, that the Catholic Society should be
B bifurcated/divided in such a manner, that one of the
emerging societies would comprise of only tenantmembers. The second resultant society, could cater to all
.
non-tenant members. lnspite of the fact, that the aforesaid
process (seeking bifurcation of the Catholic Society) was .
c initiated by the tenant-members in the seventies, and
inspite of the fact that about four decades have since
elapsed, the tenant-members have failed to obtain a final
determination with reference to their prayer for
bifurcation/division of the Catholic Society. [Para 31] [914D D-F]
3.3. Merely on account of the said pending claim lor
bifurcation raised by 69 tenant-members, they have
exclusively occupied 5.5 acres of land situated in
Santacruz, Mumbai. On the redevelopment of the said
E land, 230 tenements would be created. The gains to the
tenant-members, are clearly incomparable to the loss
which has ensued on account of continued status quo.
161 beneficiaries, as per the resolution of the Cath.olic
Society dated 25.9.1966 who had made deposits in 1966
F
(at the asking of the CathQlic Society) are still waiting.
Thus viewed, even on the aspect of bifurcation/ division
of the Catholic Society, there can hardly be any
justification in the prayer made by the tenant-members,
for an injunction against the resolution of the Catholic
G Society dated 6.12.2009 (and the consequential
conveyance deed dated 7 .12.2009). The balance of
convenience, is surely not in favour of the tenantmembers. [Para 33] [915-G-H; 916-A-C]
H
4. It has been determined by the High Court that the
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP
877
HOUSING SOC. LTD.
petitioners/appellants did not have any proprietary right A
as tenant-members of the Catholic Society. This
determination attained finality between the rival parties.
In the impugned order dated 9.8.2012, the Division Bench
of the High Court by relying upon the aforesaid
determination, further concluded that, the petitioners/ B
appellants are disentitled in law to claim the relief sought
by them. Thus the relief sought by the tenant-members,
is a relief which can ordinarily be sought only by
individuals/parties who have a proprietary interest, in the
subject matter. The Catholic Society has thus made out c
a prima facie case in its favour (the final determination
whereof will only be rendered, at the culmination of the
proceedings, initiated through the civil suits). Therefore,
it would be inappropriate to grant an injunction,
restraining all redevelopmental activities, in terms of the 0
prayer made by the petitioners/appellants. [Para 34] [916D; 918-A-C, D-E]
5. As regards the plea of the tenant-members, that
they were able to procure a better offer i.e. 75 crores, for
the same developmental project as against the E
conveyance deed dated 7.12.2009 which contemplated a
consideration of Rs.70 crores payable to the Catholic
Society, the High Court recorded the finding that the offer ·
of Rs.75 crores can be stated to have been made at the
behest of a rival builder who has even paid for the
F
litigation expenses of the tenant-members. The tenantmembers readily accepted the offer made by the rival
builder, when he proposed before the High Court that he
would act in the same manner as the builder who had
come forward with proposal of redevelopment G
contemplated by the resolution of the Catholic Society.
Therefore, it can be inferred that the tenant-members are
agreeable to the redevelopment of 5.5 acres land
comprising of 'Willingdon East' in the manner
contemplated by the resolution "of the· Catholic Society
H
878
SUPREME COURT REPORTS
[2013] 5 S.C.R.
A dated 6.12.2009 (and the consequential conveyance deed
dated 7.12.2009), which is impugned in the suits filed by
the tenant-members. This also prima facie shows that the
action of the tenant-members prima facie seems to lack
bona tides. Therefore,.this Court affirms the determination
B rendered by the High Court that it was for the Catholic
Society to decide who should ·be given the
redevelopmental rights, and not the tenant-members who
are a small minority of 15 persons (the number having
now diminished to 5) who have initiated the litigation out
c of which the present proceedings have arisen. As of now,
therefore, it is possible to prima facie infer, that the
petitioners'/appellants' claim before the High Court does
not seem to be bona fide. They also do not prima facie
seem to have genuinely initiated the instant litigation.
D [Para 35 and 36] [918-F-G; 922-D-H; 923-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
2683-2685 of 2013.
From the Judgments & Orders dated 09.08.2012 of the
E High Court of Judicature at Bombay in Appeal No. 413 of 2011
in Notice of Motion No. 172 of 2010 in Suit No. 144 of 2010,
Appeal No. 489 of 2011 in Notice of Motion No. 172 of 2010
in Suit No. 144 of 201 O and Appeal No. 573 of 2011 in Notice
of Motion No. 172 of 2010 in Suit No. 144 of 2010.
F
WITH
C.A. Nos. 2686-2688 & 2689-2690 of 2013.
Mukul Rohtagi, J.J. Bhat, C.A. Sundaram, Vineet B. Naik,
Abhinav Vaisht, Rafique Dada, Shyam Divan, L.N. Rao, Shally
G Bhasin Maheshwari, Purnima Bhat, C.D. Mehta, Nikhil Nayyar,
Pritha Srikumar, T.V.S. Raghavendra Sreyas, Lalan Gupta,
Bhavik Mehta, Vatsal Merchant, Pratap Venugopal, Varun
Singh, K.J. John & Co., Aman Vachher, Ashutosh Dubey, Harsh
Sharma Vriti Anand, P.N. Puri, P.S. Sudheer, Abu John
H Mathew, Rishi Maheshwari, Garima Prashad, Ranjeeta Rohtagi
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP
879
HOUSING SOC. LTD.
for the appearing parties.
A
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. Leave granted in all
matters.
B
2. Through the instant common judgment, we propose to
dispose of the following matters which came to be filed in this
Court assailing the order passed by a Division Bench of the
High Court of Judicature at Bombay (hereinafter referred to as
'the High Court') in Appeal Nos.489 of 2011, 413 of 2011 and
C
573 of 2011 :
(i)
Margaret Almeida & Ors., vs. Bombay Catholic Cooperative Housing Society & Ors., Civil Appeals
arising out of SLP (C) Nos. 30847-30849 of 2012),
D
(ii)
Priti Mungrey & Ors.· v. The Bombay Catholic Cooperative Housing Society Ltd. & Ors., ·civil
Appeals arising out of SLP (C) Nos.30867-30869
of 2012). and
(iii)
Anthony D'Sa v. The Bombay Catholic Cooperative Housing Society Ltd. Civil Appeals &·Ors.
(arising out of SLP (C) Nos.28256~28257 of 2012).
E
During the Course of hearing, Civil Appeals (arising out of
Special Leave Petition no.30847-30849 of 2012) were treated
F
as the lead case. We will, therefore, mainly rely on the
pleadings thereof, for narrating the factual controversy.
Reference will be made to pleadings in the other connected
matters only for recording submissions based thereon,
advanced during the course of hearing.
G
3. The following letter was addressed by the counsel for
Margaret Almeida (a respondent in Appeal no.413 of 2011
before the High Court) intimating her of the outcome of the
aforesaid appeal, and the steps taken by him on her behalf :
H
880
SUPREME COURT REPORTS
[2013] 5 S.C.R.
A
"Amardev J. Uniyal,
Advocate High Court
B
c
D
E
F
G
H
Margaret Almeida & Ors.,
Madam/Sirs,
13th August 2012
Re : Appeal Nos.413 of 2011, 489 of 2011 and 573 of
2011 filed in Bombay High Court.
1. This is to inform you that the hearing in the aforesaid
matters concluded on 9th august 2012. The Hon'ble Court
pronounced the operative part of the Order directing that
the aforesaid appeals are allowed and interim order dated
5th May 2011 stood vacated. The Counsel appearing on
your behalf immediately requested the Hon'ble Court to
stay the operation and effect of the said order for a
'reasonable time to allow the matter to be tested in Appeal.
2. However, the Hon'ble Court did not allow the said
application and inter alia directed that the Sumer
Associates Builders (Appellants in Appeal No.413 of
2011) shall not demolish the structures in which our clients
reside upto 30th September 2012. I have made an
application for the certified copy of the said order and
same shall forward the same on its receipt. In the
circumstances, you are advised to kindly file your Special
Leave Petition before the Hon'ble Supreme Court and
request for stay of the effect and implementation of the
order dated 9th August 2012 at the earliest.
Yours faithfully,
Sd/-
for (Amardev J. Uniyal)"
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP
881
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
. The aforesaid letter was filed before this Court by the appellant A
Margaret Almeida by referring to it as the impugned order.
When the matter came up for hearing on 14.8.2012, this Court
passed the following order :
"As and when the petitioners file the authenticated copy
8
of the impugned order, list these special leave petitions
before the appropriate bench."
The matter was repeatedly listed thereafter, but was not taken
up for consideration. On 14.9.2012, while directing the listing
of the lead matter (along with other matters) for preliminary C
hearing on 21.9.2012, this Court extended, at the asking of the ·
appellants, the interim protection which had remained in place
during the pendency of the instant litigation before the Division
Bench of the High Court (vide its order dated 9.8.2012). The
aforesaid interim protection was extended from time to time
D
(and continued till the final hearing of these appeals). On
1.10.2012, notice came to be issued to the respondents, after
the impugned order passed by the High Court dated 9.8.2012
was placed on the record of the case pending before this Court.
On completion of pleadings, the matter was heard for final
E
disposal.
4. We shall first narrate the sequence of facts out of which
the present controversy has arisen.
5. The Bombay Catholic Co-operative Housing Society
F
Limited (hereinafter referred to as "the Catholic Society") was
incorporated and registered in 1914. In 1917 the Catholic
Society was registered under the Central Cooperativ.e
Societies Act, 1912. The objects of the Catholic Society, as
per its bye-laws, were to carry on buying, selling, hiring, letting
G
and developing land. It was also the object of the Catholic
Society to carry on the activity of building, besides such like
allied activities.
6. For the aforesaid objectives, in the first.instance at its
H
882
SUPREME COURT REPORTS
[2013) 5 S.C.R.
A
inception, the Catholic Society purchased 6 acres of
undeveloped land from private parties. The Catholic Society
then purchased another 11 acres of such land in 1918.
Eventually, the Catholic Society acquired ownership of
approximately 34.24 acres of land to carry out the objectives
B defined in the bye-laws. The land in question was situated in.
Santacruz. The estate of Catholic Society was named after
Lord Willingdon, the then Governor of Bombay. Since the
aforestated land holding of the Catholic Society was comprised
of three different blocks of land, the blocks came to be referred
c to as Willingdon West, Willingdon East and Willingdon South.
The area in Willingdon West measuring about 17.12 acres was
sold to shareholders on freehold basis. These owners were
referred to as owner members. The area in Willingdon South
measuring about 11.63 acres was leased to shareholders for
0
998 years. These members were referred to as lessee
members. The subject matter of the present controversy relates
to Willingdon East measuring approximately 5.5 acres.
7. In the land measuring 5.5 acres known as Willingdon
East, the Catholic Society constructed 25 cottages. These
E cottages were let out during 1940-45 on a monthly rental basis.
Out of the 73 tenements in the aforestated 25 cottages, 54 were
allotted to members of the Catholic Society. These tenants were
referred to as tenant-members. 15 of the tenements were
assigned to tenants simplicitor. These 15 tenants were not
F
members of the Catholic Society.
8. After coming into force of the Maharashtra Cooperative
Societies Act, 1960 (hereinafter referred to as "the
Cooperative Societies Act"), all the tenants in Willingdon East
G became members of the Catholic Society, for which fresh
shares were issued, at the face value of Rs.50/- per share.
Therefore, all the tenants in Willingdon East, became tenantmembers. The instant controversy relates to a dispute between
the Catholic Society on the one hand; and the tenant-members
H on the other hand. The Catholic Society is the respondent
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP
883
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
herein, whereas, some of the tenant-members are the
A
contesting appellants.
9. The first dispute between the rival parties arose when
the Catholic Society resolved to re-develop the land measuring
5.5 acres known as Willingdon East. The decision to re-develop
the land in question was taken on account of the fact, that the
25 cottages constructed thereon, were. scattered all over the
land. It was felt that by redevelopment, the said land would be
effectively utilised for the benefit of a larger number of persons.
B
To give effect to the aforesaid determination, the Catholic
C
Society passed a resolution on 25.9.1966, wherein it was
resolved to provide for 161 apartment-allotments in the buildings
proposed to be raised in the land known as Willingdon East. It
would be relevant to mention, that the reconstruction
contemplated in the redevelopment of Willingdon East
contemplated the raising of new buildings to house 230
D
tenements. Of these, 161 tenements were meant for allotteemembers and the remaining 69 for the tenant-members already
in occupation of the existing 25 cottages as tenants. The
process of redevelopment included demolition of the existing
25 cottages, and raising of new buildings in their place. The
average estimated cost of each apartment was assessed at
Rs.55,000/-, out of which allottee-members for the 161
apartment-allotments were required to deposit Rs.15,000/-
each with the Catholic Society. The average estimated cost was
determined in 1966, it must obviously be much higher now. The
aforesaid resolution dated 25.9.1966 was assailed by seeking
recourse to the remedies available under the Co-operative
Societies Act. All the efforts made by the tenant-members,
however, proved futile. It would be relevant to mention, that the
aforesaid dispute raised by the tenant-members under Section
G
.91 of the Cooperative Societies Act was finally dismissed on
5.3.1971. The said order dated 5.3.1971 was passed on an
appeal preferred by the .tenant-members before the
Maharashtra State Cooperative Tribunal. The resolution dated
25.9.1966 and order dated 5.3.1971 {passed by the
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A
Maharashtra State Cooperative Tribunal) were challenged by
the tenant-members by filing Misc. Petition no.250 of 1972
before the High Court. A learned Single Judge of the High
Court dismissed the aforesaid petition on 17.4.1972. An intracourt appeal, preferred by the tenant-members was dismissed
B by a Division Bench of the High Court on 25.7.1972. The said
order attained finality between the rival parties. In view of the
aforesaid factual position it became open to the Catholic
Society to give effect to its resolution dated 25.9.1966,
whereby, it had decided to re-develop about 5.5 acres of land
c known as Willingdon East, to provide for 161 apartmenttenements by raising fresh construction, in place of the existing
25 cottages scattered all over the said land.
10. After the said dispute under Section 91 of the
Cooperative Societies Act challenging the resolution dated
D 25.9.1966 attained finality, the Catholic Society invited
applications from its members (holding at least 5 shares) for
allotment of flats in the proposed buildings to be constructed
under the new building scheme. In this behalf the Catholic
Society also submitted, for approval and sanction, building
E plans to the Bombay Municipal Corporation. Having shortlisted
the successful allottees, the Catholic Society required the
selected allottees to deposit Rs.15,000/- each, towards part
payment of the price of the said flats. About 200 members
made advance payment of Rs.15,000/- each. As such, the
F
Catholic Society collected Rs.30 lakhs for implementing its
redevelopment project, based on the resolution dated
25.9.1966.
11. The tenants in the 25 cottages at Willingdon East again
G felt threatened. They accordingly, raised a joint challenge, to the
proposed action of redevelopment referred to above. On this
occasion, the tenant-members filed an application under
Section 18 of the Cooperative Societies Act before the District
Deputy Registrar, Cooperative Societies, Mumbai, praying for
H the bifurcation of Willingdon East. The foundation of the
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-.OP
885
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
aforesaid clairn was based on the fact that the interest of the
A
tenant-members was not being adequately protected as they
constituted a miniscule minority amongst the members of the
Catholic Society. In this behalf it was asserted at the hands of
the tenant-members, that there were about 7 45 members of the
Catholic Society, out of which an overwhelming 685 members
B
were not tenant-members. It was also pointed out by the tenantmembers, that the Managing Committee of the Catholic Society
\is comprised of 11 members, out of which only two members
represented the tenant-members. As such, it was asserted, that
the interest of the tenant-members was not adequately c
protected, even at the level of the Managing Committee. The
prayer made by the tenant-members before the District Deputy
Registrar, Cooperative Societies was, that the Catholic
Society should be bifurcated into two societies. Factually, the
instant bifurcation would apply to on 5.5. acres of land known
D
as Willingdon East. Because entire land holding comprising of
Willingdon West had been sold to owner members on freehold
basis, and the entire land holding comprising of Willingdon
South had been leased to lessee-members on lease for a term
of 998 years. Thereupon, the Catholic Society was only
E
managing the affairs of 5.5 acres of land known as Willingdon
East. One of the bifu.rcated societies, according to their prayer,
should comprise of only tenant-members. And; the other
bifurcated society should comprise of all non tenant-members.
12. On the receipt of the aforesaid application filed by the
F
tenant-members under Section 18 of the Cooperative Societies
Act, the District Deputy Registrar, Cooperative Societies
consulted the Federal Society, i.e., the Bombay-Thane District
Cooperative Housing Society Limited. Having consulted the
Federal Society, the District Deputy Registrar, Cooperative
G
Societies issued a draft order dated 6.9.1979 recording a
tentative satisfaction for the bifurcation of the Catholic Society
into two societies. Based thereon, a notice was issued to the
Catholic Society seeking its objections, if any, to the tentative
satisfaction recorded by the District Deputy Registrar,
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A Cooperative Societies. To consider its course of action, the
Catholic Society convened an annual general body meeting.
The same was actually held on 16.12.1979. In its annual general
body meeting, the Catholic Society passed a resolution,
disapproving1 and rejecting the proposed bifurcation of the
B Willingdon East, in terms of the draft order of the District Deputy
Registrar, 6ooperative Societies dated 6.9.1979.
13. In addition to the response filed by the Catholic Society
refe'rred to in the foregoing paragraph, the Catholic Society also
C took up the matter with the Federal Society, i.e., the BombayThane District Cooperative Housing Society Limited. The
Federal Society thereupon re-examined the matter. On such reexamination it prepared a report dated 7.6.1980, wherein, it
was concluded that there was no justification for the bifurcation/.
division of the Catholic Society. The aforesaid report was
D forwarded by the Federal Society to the District Deputy
Registrar, Cooperative Societies. The District Deputy
Registrar, Cooperative Societies then reconsidered the draft
order dated 6.9.1979 by taking into consideration the aforesaid
report dated 7.6.1980. During the course of such
E reconsideration, the District Deputy Registrar, Cooperative
Societies personally visited Willingdon East and also personally
examined the records of the Catholic Society. On such
reconsideration, the District Deputy Registrar, Cooperative
Societies, passed an order dated 27.6.1980 by which the draft
F order dated 6.9.1979 proposing bifurcation/division of the
Catholic Society, was withdrawn.
14. The tenant-members assailed the order dated
27 .6.1980 withdrawing the draft order proposing bifurcation/
G division of the Catholic Society, by preferring an appeal. The
Divisional Joint Registrar, Cooperative Societies, accepted the
appeal, and set aside the order dated 27.6.1980. The appellate
order required the District Deputy Registrar, Cooperative
Societies, to reconsider the issue of bifurcation/division of the
H Catholic Society.
MARGARET ALMEIDA v. BOMBAY CATHOLIC co~oP
887
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
15. The Catholic Society assailed the order of the
A
Divisional Joint Registrar, Cooperative Societies dated
12.12.1980 by preferring a Revision Petition before the State
Government. The challenge raised by the appellant-society (the
Catholic Society) to the aforesaid order dated 12.12.1980, was
allowed, inasmuch as the order passed by the Divisional Joint
B
Registrar, Cooperative Societies was set aside. The revisional
authority remanded the matter to the Divisional Joint Registrar,
Co-operative Societies, for passing a fresh order (in appeal)
after hearing the rival parties. After its remand the Divisional
Joint Registrar, Cooperative Societies again allowed the c
appeal, by an order dated 15.6.1982. By the aforesaid
appellate order, the order of the District Deputy Registrar,
Cooperative Societies (dated 27.6.1980) was set aside.
Consequently, a direction was issued by the appellate authority,
to the Assistant Registrar, Cooperative Societies, to proceed
D
with the matter, from the stage of the passing of the draft
bifurcation order (dated 6.9.1979).
16. The Catholic Society again assailed the order of the
Divisional Joint Registrar, Cooperative Societies dated
15.6.1982 by preferring a revision petition before the State
E
Government. Since the Catholic Society was not granted any
interim order during the pendency of the revision petition, the
Assistant Registrar; Cooperative Societies, Mumbai,
proceeded with the matter from the stage of the draft order. By
~n order dated 22.3.1983 the Assistant Registrar, Cooperative
F
Societies, Mumbai, ordered the bifurcation/division of the
Catholic Society by creating the following two societies :
· (i) The Bombay Catholic Cooperative Housing Society
Ltd., and
(ii) The Bombay Catholic Cooperative (Tenants) Housing
Society Ltd.
The society at (i} above; would be comprised of lesseeG
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A members, freehold land owners and others, whereas the society
at (ii) would be comprised of tenant-members only.
17. The order passed by the Assistant Registrar,
Cooperative Societies, Mumbai dated 22.3.1983 was
B challenged by the Catholic Society by preferring an appeal
before the Divisional Joint Registrar, Cooperative Societies.
The aforesaid appeal was dismissed by an order dated
19.9.1989, whereupon, the Catholic Society preferred a
revision petition before the State Government. The said revision
C petition was also dismissed on 24.6.1991. The orders passed
by the Assistant Registrar, Cooperative Societies, Mumbai
(dated 22.3.1983), the Divisional Joint Registrar, Cooperative
Societies, Mumbai {dated 19.9.1989) and the State
Government {dated 24.6.1991) were challenged by the Catholic
Society by filing Writ Petition no.2328 of 1991. A learned
D Single Judge of the High Court dismissed the aforesaid writ
petition by an order dated 21/22.10.1999. The reasons which
weighed with the learned Single Judge of the High Court in
dismissing the writ petition, were summarised in paragraph 19
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of the aforesaid judgment, which is being extracted hereunder:
"The facts which I have already noted above which need
not to be repeated, would rather show that the order
passed by the Assistant Registrar for bifurcation of the
society is not at all harsh or arbitrary or oppressive to the
shareholder members. As a matter of fact, it is the tenant
members who have been oppressed and this class· of
members have suffered at the hands of the majority
members who have no longer sufficient or substantial
interest in the objectives of. the society. The Assistant
Registrar has made it clear that the society formed of the
tenants viz. Bombay Catholic Cooperative {Tenants)
Housing Society Ltd., shall offer the tenements occupied
by the tenant members in the capacity of tenants in terms
of Bombay Rent Act, to the same occupant tenant
members on ownership basis if desired by the concerned
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP
889
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
tenant members against payment of reasonable
A
consideration as may be fixed by the said society in
consultation with the Cooperative Department and till that
time, the status of the tenancy shall not be disturbed. The
said direction indicates that there is no undue favour to the
tenant members and a balance has been struck by the
B
Assistant Registrar by providing clause 7 in the operative
order. So far as the shareholder members are concerned,
the Assistant Registrar in its operative order has clearly
set out that the admission of non-accommodated
shareholders to membership of the newly created society c
viz., Bombay Catholic Cooperative (tenants) Housing
Society Ltd., shall be strictly according to the chronological
order and shall be gradual as and when tenements get
ready for occupation. The Assistant Registrar further
directed that while accommodating such persons to the
0
membership, it shall be ensured that these members really
intended to secure tenements of the society at the time of
acquiring shares and not for investment or any other
purpose other than residential. He also directed that it
would also be ensured that these persons (shareholders
members) are eligible to become members under the
E
revised Bye-laws, rules and the Act and they are willing
and are in a position to contribute and possess the new
tenements. The Assistant Registrar, therefore, has taken
sufficient care in ensuring that no injustice is occasioned
to non-accommodated shareholders who are genuinely
F
interested in accommodation and are eligible in securing
residential accommodation. The shareholders who are
eligible to become members under the revised Bye-laws
and who genuinely were interested in getting the residential
accommodation, according to their seniority shall get the
G
accommodation as and when tenements would be ready
for occupation. With this arrangement having been made
by the Assistant Registrar how it can be said that the order
of bifurcation shall oppress the class of shareholders or
is detrimental to the interest of this clear. Obviously, the
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[2013) 5 S.C.R.
shareholder members who were only interested investment
while becoming member of the society should be weeded
out, because it would not be in the interest of cooperative
movement and for the well-being of the society. Thus, the
contention of the le·arned counsel for the shareholder
members that the order of bifurcation is oppressive or
harsh to this class of society is unfounded and appears to
be at the behest of the petitioner society. As a matter of
fact, the appellate authority has considered the matter
extensively and it cannot be said to have erred when it
affirmed the order of Assistant Registrar, so far as
revisional authority is concerned, the matter having been
examined at quite length by the appellate authority, the
revisional authority rightly did not go into the matter in
details in its revisional jurisdiction and cannot be said to
have erred in affirming the order of the Assistant Registrar
and the appellate authority."
18. The Catholic Society preferred an intra court appeal
to assail the order passed by the learned Single Judge of the
High Court dated 21/22.10.1999 (whereby writ petition no.2328
E of 1991 was allowed, in favour of the tenant-members). A
Division Bench of the High Court allowed appeal No.20 of 2000
(arising out of writ petition 2328 of 1991) on 4.8.2007. By the
aforesaid order, the Division Bench set aside the earlier
determinations rendered by the Co-operative authorities, as
F
also, the judgment rendered by the learned Single Judge. While
doing so, the Division Bench remanded the matter to the
authorities (under the provisions of the Co-operative Societies
Act), for reconsidering the issue of bifurcation raised by the
tenant-members. The operative part of the order passed by the
G Division Bench brining out the effect of the appellate order is
being reproduced hereunder :
H
" ..... In our opinion, therefore, in order to comply with the
mandatory requirement of consultation which is
incorporated under sub-section (1) of Section 18 of the
MARGARET ALMEIDA v. BOMBAY CATHOLIC CO-OP
891
HOUSING SOC. LTD. [JAGDISH SINGH KHEHAR, J.]
Act, it was necessary for the Deputy Registrar not only to
A
take into consideration the opinion expressed by the.
federation but in order to show that he has complied with
the mandatory requirements of consultation and the order
that he made should also have shown that he has applied
his mind to the opinion expressed by the federation. The
B
requirement of the order made by the authority indicating
on the face of it that the authority has applied its mind to
the opinion submitted by the federation, wiU have to read
into the provisions iri order to make the requi~ement of
consultation effective and meaningful. In the present case, c
admittedly, the opinion expressed by the federation has not
been considered by the Deputy Registrar while deciding
to make the order of bifurcation.