Rights of members are vested with society, individuals cannot claim otherwise: HC

Around 26 members of the society out of the 30 had agreed to the terms and conditions offered by the developer and hence in 2021 vacated their respective premises based on the decision of the society.

Mumbai: Once a member enters a cooperative housing society, he or she loses individual rights and has to abide by the decisions of the society, the Bombay high court has said and directed three dissenting members of a society to vacate their respective premises and hand those over to the developer for redevelopment.

After hearing all sides the bench cited a decision by a division bench which stated, “It be a well-established position in law that once a person becomes a member of a co-operative society, he loses his individuality qua the society” (HT FILE PHOTO)

The court also noted that the dispute raised by the members who refuse to vacate the premise cannot be a ground for delaying the redevelopment project at the cost of the majority of members who have vacated their premises and the dissenting members should avail the remedies available to them rather than stalling the project.

The single-judge bench of justice Girish Kulkarni, while hearing an arbitration petition filed by a developer seeking implementation of arbitration clauses agreed upon between it and a housing society at Ghatkopar, was informed by the advocates Rajiv Singh and Omprakash Jha for the developer that the society which was constructed more than 50 years ago was in a dilapidated condition and hence the society members decided to go for the redevelopment of the structure and appointed them to undertake the redevelopment work.

Around 26 members of the society out of the 30 had agreed to the terms and conditions offered by the developer and hence in 2021 vacated their respective premises based on the decision of the society. However, three members refused to vacate the premise claiming that they had sought the conversion of their residential premises into a commercial one and as the society nor the developer had agreed to the same, they were not going to vacate their premises.

On its part, the society through advocates Siddharth and Garima Mehrotra submitted that after a meeting in February 2021, which was attended by Maharashtra Housing Area Development Authority (MHADA) officers and 22 members of the society, a formal decision was taken by the society to appoint the developer and the deputy registrar of cooperative society also granted a NOC in the same month. Thereafter, the due procedure was followed and based on a vacation notice by the developer in July 2021, 26 members vacated their premises but the remaining four refused to budge, forcing the developer to invoke the arbitration clause.

Advocate AM Saraogi for two of the dissenting members said that though they had applied for changing the status of their premise from residential to commercial the society had failed to do the needful they had no option but to resort to non-cooperation and the HC should issue direction to the society in this regard.

After hearing all sides the bench cited a decision by a division bench which stated, “It be a well-established position in law that once a person becomes a member of a co-operative society, he loses his individuality qua the society, and he has no independent rights except those given to him by the statute and bye-laws. It is held that a member must act and speak through the society or rather the society alone can act and speak for him qua rights or duties of the society as a body.”

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

The bench concluded stating, “It cannot be conceived that till such rights of any such individual member are adjudicated the redevelopment at the sufferance of the majority of the members should wait. If this is the case, the redevelopment will never see the light of the day, apart from the fact it will completely defeat the mandate of the majority members. The redevelopment needs to proceed in a manner as agreed between the Society and the Developer and as per the sanction/ approval of the majority members.”

Thus, saying the court directed the dissenting members to vacate their premises within two weeks and avail of remedies through the proper forum and dismissed the petition.