Writ Petition No. 1909 of 1986

4th October, 1999

Petitioner Counsel: Mr. S. V. SHETTY
Respondent Counsel: Mr. R. K. KULKARNI

JUDGMENT

JUDGMENT :- This Writ Petition is filed by the Petitioner Society, Dharavi Co-operative Housing Society Ltd., having its office at Dr. Baliga Nagar, Jasmine Mill Road, Dharavi, Bombay - 400 017, being aggrieved by the Judgment and Order dated 15th January, 1986, passed by the Maharashtra State Co-operative Appellate Court, Bombay, rejecting the appeal filed by them against the present Respondent, Dhanraj Pukharaj Jain.

2. Few facts, which are required to be stated, are as follows :

The petitioner/Society bearing Registration No. BOM/HSG/1540 of 1967, was constituted as a Housing Society for the purpose of constructing buildings for their members. There are about 330 members of the petitioner/Society. It constructed about 8 buildings at Dr. Baliga Nagar, Jasmine Mill Road, Dharavi, Bombay - 400 017. All these buildings are multi-storied buildings. The Society planned to have shops on the ground floor of Building Nos.5, 7 and 8. Building Nos.5 and 7 were constructed and Building No. 8 was under construction. On 9th February, 1975, General Body of the petitioner/Society passed a resolution to start construction work of Building Nos.7 and 9 by inviting tenders and also adopted resolution to allot the shops in the said buildings to be constructed to the members of the Society, giving them preference and also to allot the remaining shops to outsiders if the said shops were not taken by the members of the Society. In the meeting of the Managing Committee held on 8th May, 1975, it was resolved that the shops should be allotted by the Chairman and the General Secretary of the Society on the basis that preference should be given to the Society's members, who were ready to pay the construction cost in advance. In pursuance of the said resolution, on 9th May, 1975, a notice was put up on the Notice Board of the Society, requesting the members who were interested in having shops, to submit their applications on or before 31st May, 1975, showing their willingness to purchase the shops as per the terms and conditions of the Society. The members of the Society were made aware of the same. On 11th June, 1975 again there was a meeting of the Managing Committee of the petitioner/Society and by unanimous resolution, the Managing Committee authorised the Chairman and Honorary Secretary of the petitioner/Society to allow the shops to the members of the Society, after scrutinizing their applications and satisfying the needs of the members and persons who had applied for.

3. The petitioner/society in the petition has stated that in Building No. 7, initially it was decided to have 14 shops. However, the Bombay Municipal Corporation approved the plan of only 12 shops. The members of the Society were aware of this fact.

4. The case of the petitioner/Society is that the Respondent/Dhanraj Pukharaj Jain was never the member of the Petitioner/Society and that he came to be admitted as a nominal member of the Society. The petitioner's case is that as there were already 12 applications for 12 shops to be constructed in Building No.7, the name of the Respondent was at Sr. No.13 and, therefore, he could not be allotted any shop out of the 12 shops in Building No.7 of which plan was sanctioned by the Bombay Municipal Corporation.

5. The petitioner/Society has further stated that in the mean-time, one Mr. Abdul Usman and one Smt. R. S. Dalnari filed dispute in the Co-operative Court being Dispute No. ABN/IV/117 of 1979 and obtained injunction restraining the petitioner/Society from allotting and giving possession of any shop in Building Nos. 7 and 9 on or before 12th March, 1979. The case of the petitioner/Society is that the Respondent was aware of this fact also and in view of the injunction order, passed by the Co-operative Court, he was hesitating to make the payment, which was required to be made. Thereafter, the petitioner/Society could get the injunction order modified and possession of 10 shops in Building No. 7 came to be given to the allottees as per the list. Since the Respondent was not entitled to allotment of any shop in Building No.7, he was not allotted any shop in the said building.

6. The petitioner/Society's case further is that the Respondent thereafter, approached the District Deputy Registrar, Co-operative Societies in Dispute No.582/2095 of 1979, which was transferred to the Co-operative Societies in Court No. 1, Bombay, praying for declaration against the petitioner/Society to the effect that the Respondent was entitled for possession of Shop No.2 or any other shop, admeasuring 250 sq. ft. in Building No.7 of the petitioner/Society and for injunction restraining the petitioner/Society from handing over possession of any shop to anybody else and for direction that the possession of the said shop be given to him only.

7. In the said dispute, the Respondent's case was, that he was the member of the petitioner/Society and that he had booked Shop No.2 out of the 12 shops in Building No.7 and that the petitioner/Society offered the said shop to him for Rs.25,000/- and that out of the said amount, Rs.22,500/- were remitted by him to the petitioner/Society from time to time from 11th March, 1978 to 25th August, 1978 and that the balance of Rs. 2,500/- was to be paid by him at the time of handing over the possession of the said shop. It was his contention that he was ready and willing to pay the balance amount and, therefore, approached the Secretary of the Society and demanded possession of Shop No.2. He was, however, told by the petitioner/Society that though there were 14 applicants, the shops for allotment were only 12 as per the plan sanctioned by the Bombay Municipal Corporation. It was further alleged by the Respondent/Dhanraj Pukharaj Jain that the Secretary of the petitioner/Society Mr. Kotak suggested that the respondent would be given a shop in Building No.8. The case of the Respondent was that he had made major payment to the petitioner/Society and, therefore, had a prior claim and that the petitioner/Society with malafide intention was not fulfilling his rightful claim and, therefore, he had filed the said dispute against the petitioner/Society.

8. The petitioner/Society appeared in the said dispute and resisted the Respondent's claim inter alia contending that the Respondent was not entitled to any shop as he was not a member and that in any case, since in the said priority list, he was at Sr. No. 13, he could not be given any shop out of the 12 shops since they were already allotted It was asserted by the petitioner/Society that the Respondent was in fact, not ready and willing to make payment in advance when he found that there was injunction order running against the petitioner/Society in the dispute filed by Mr. Abdul Usman and Smt. Dalneri. It was also pointed out that the Respondent wanted to have wrongful gain by disposing of the said shop to third person at a higher premium. All the allegations of malafide made in the dispute were denied by the petitioner/Society. It was further contended that the Respondent was apprised of the fact that there was no shop available for allotment to him since all the shops had already been allotted on the basis of priority and as per the receipt of the amounts from the members and the applicants.

9. The Judge, Co-operative Court, by his Judgment and Order dated 30th October, 1980, after recording evidence and after hearing both the sides, ordered that the Society should hand over possession of the last 12th shop to the Respondent on receiving Rs.2,500/- towards the full and final settlement of the agreed price of Rs.25,000/- for the said shop. The finding of the trial Court was that the Respondent had prior claim over all the applicants, including those who had been given possession of the shop on 1st October, 1979. The learned trial Court also observed that on Society's own showing, there was one shop available for giving possession and that the Respondent was entitled to possession on payment of balance amount.

10. Being aggrieved by the said Judgment and Order of the trial Court, the petitioner/Society filed Appeal No.460 of 1984 in the Co-operative Appellate Court, who by its Judgment and Order dated 15th January, 1986, dismissed its appeal. The Appellate Court, while confirming the Judgment and Award passed by the trial court, directed that it was subject to modification that the Society should allot vacant and peaceful possession of one of the 6 shops on the front side, having an area of 400 sq. ft. each to the Respondent/Dhanraj Pukharaj Jain in Building No.8. It is against this order that the present writ petition has been filed by the petitioner/Society.

11. It is, inter alia, contended by the petitioner/Society that since the Respondent was 13th in the list, it was not possible to allot any Shop in Building No. 7 on the basis of preferential list. It is argued by Mr. Shetty, appearing for the petitioner/Society that the observation of the trial Court that one shop i.e. 12th shop, on Society's own showing was available for allotting to the Respondent was factually incorrect and that shop was already allotted to Mrs. Shanti Gajakos and was already in her possession as she was at Sr. No. 6 in the priority list. The main ground of attack of Mr. Shetty, however, was that the Co-operative Appellate Court erred in granting relief of specific performance giving direction that the Respondent be given possession of one of the 6 shops on the front side, having an area of 400 sq. ft. each in Building No.8. It was pointed out by him that even the prayer of the Respondent in his dispute application was that he should be given possession of Shop No. 2 or any other shop of his choice, admeasuring 250 sq. ft. in Building No.7. It was submitted by Mr. Shetty that the appellate Court by passing the impugned order, went beyond the scope of the relief prayed for by the disputant and granted a relief which was not feasible. He, therefore, prayed that the Judgments and Orders of both the lower Courts are erroneous and the same be set aside.

12. I have heard Mr. Shetty for the petitioner/Society and Mr. Kulkarni appearing for the Respondent. I have also perused the proceedings, including both the Judgements of the Lower Courts and the application made by the Respondent before the District Deputy Registry, Co-operative Societies in which a specific prayer is made, praying that it be declared that he was entitled for possession of Shop No. 2 or any other shop of his choice, admeasuring 250 sq. ft. in Building No.7. As per the priority list given in internal page No.5 of the Judgment of the trial Court, Shop No.2 was already allotted to Mr. N. M. Kadam whose name was at Sr. No. 2. It was, therefore, not feasible at all to grant disputant's prayer. It is an admitted position that at the time of filing of the dispute, possession of the 12 shops was given and this date was 1 st October, 1979. The dispute was filed on 17th October, 1979. Thus, the prayer which was made by the disputant was not feasible to grant. It was, therefore, erroneous on the part of the Co-operative Appellate Court to grant remedy of Specific performance by giving order that possession of one of the 6 shops in Building No. 8 be given to the Respondent. If the Respondent has paid some amount to the petitioner/Society, then he can certainly take necessary steps to recover that amount by way of damages if so advised, but he cannot be granted the relief of specific performance of ordering possession of the shop in Building No.8 as it was not even prayed for, or in Building No.7 when it is not at all feasible. Hence the following order:

Writ Petition No. 1909 of 1986 is made absolute in terms of prayer clause (b). No order as to costs.

As far as payment made by the Respondent is concerned, he is at liberty to adopt appropriate proceedings if so advised.

Certified copy expedited.

Petition allowed.