Two verdicts, too many issues
When a division bench of the high court and a single judge pass contrasting orders, the ruling of the division bench will prevail, according to legal experts.mumbai Updated: Dec 14, 2009 01:09 IST
When a division bench of the high court and a single judge pass contrasting orders, the ruling of the division bench will prevail, according to legal experts.
Last week, a single judge of the Bombay High Court said that “valid” objections of non-consenting members, even if they are in a minority, cannot be ignored.
The judge had ruled that the co-operative society can approach the co-operative court to take action against non-consenting members.
Later, on Thursday, a division bench of the high court ruled that a minority of non-consenting members cannot hold up a redevelopment project of a building approved at the annual general meeting by a majority of members.
The order was passed while hearing an appeal filed by two members of Harini Co-operative Housing Society — Girish Mulchand Mehta and Durga Jaishankar Mehta.
“The order of the division bench supersedes that of the single judge,” said advocate Vinod Sampat, who practises in the co-operative court. “Even if some of the facts in cases are different, it won’t matter.”
Senior advocate K.R. Belosay said that even if the facts of each case differ, the principle of ‘majority rules’ applies as laid down by the Maharashtra Co-operatives Act, 1960.
“The rule is one for all and all for one. This can’t be violated,” said Belosay. “Whatever has been decided by the general body of the housing society is binding. You cannot let one person hold up the entire project.”
Divisional Joint Registrar Mahendra Kalyankar, who is the appellate authority in deciding on expulsion of members, refused to comment.
On May 7, 2008, Harini Society in Ghatkopar (East) entered into a redevelopment agreement with M/s Suryakirti Enterprises.
The Mehtas opposed the redevelopment of the 45-year-old building and were expelled from the membership of the society.
The builder invoked arbitration when the society failed to hand over the property.
A single judge of the high court ruled in the developer’s favour and appointed a court receiver to take over possession of Mehtas’ flats.
The Mehtas challenged this before the division bench of the high court.
The high court upheld the order of the single judge saying disapproval of minority members could not be the basis to negate the decision of the general body unless it was a case of fraud or was against a statutory prohibition.