ACKNUR CONSTRUCTION PVT LTD Vs. SWEETY REJENDRA AGARWAL

JUDGEMENT

(1.) This is a Suit by a Builder and Developer against the Co-operative Housing Society and the occupants, who are in the occupation of flats/tenaments and shops in a building known as Fardoon Apartment, Co operative Housing Society, situate at 6th Road, Khar (West), Mumbai - 400 052.

(2.) The relief claimed by the Plaintiffs in the Suit proceeds on the basis that the Co operative Housing Society has, at its General Body Meeting, passed a Resolution, pursuant to which, it is resolved that the existing structure/building would be pulled down or demolished and a new building/structure would be constructed on the plot of land belonging to the Co-operative Housing Society. In this new building all the members would be provided housing accommodation of the same area by the Plaintiffs/Developers. To enable them to construct new building and hand over the flats and tenaments to the members of the Co operative Housing Society that it was resolved that an agreement can be executed incorporating specific clauses and details so that membership rights are not prejudicially and adversely affected. The Plaintiffs have also executed individual agreements with the members. Thus, the Society and its members are supporting the action of the Plaintiffs and therefore, in furtherance of the Agreement executed in their favour. They can proceed to demolish and pull down the existing structure/building and construct a new building on the land. To enable them to do so, it was expected that all existing members and occupants vacate the premises presently in their occupation and possession. However, although, the majority has decided to confer rights as above on the Plaintiff and have consented to the agreement, some persons claiming to have rights in the tenaments/shops/ premises in their possession are resisting the execution of the agreement. It is alleged that these persons have no right to obstruct the development work at site. They are bound by the Resolution of the majority and the decision of the Co-operative Housing Society. Even if they are having dispute with the Society, the Plaintiffs are ready and willing to earmark and keep aside shops and flats for such persons/ Defendants. Thus, it is not as if they would not have any protection. As and when they succeed in their challenge to the actions of the Society, they would be allotted the flats and shops earmarked and reserved for them. These premises would remain untouched and would not be disposed off until such time as this Court deems fit and proper is the stand of the Plaintiffs. Thus, the Plaintiffs and the Society urge that they are ready and willing to protect the minority rights, if any, but at no cost should the development work be stopped or obstructed or else all would suffer.

(3.) In furtherance of the final relief of removal of obstructions and all impediments to the development work at site, the Plaintiffs seek a mandatory interim order and direction so as to remove or cause to remove the non-consenting parties as according to the Plaintiffs their claim is supported by me Co-operative Housing Society and a majority of the members. Thus, they have a strong prima-facie case and they have satisfied the Court that irreparable harm and injury will be caused to ail occupants if development work is not permitted to be completed at site. More so, when the structure presently at site is unsafe and unsound, it is not fit for human occupation. Therefore, the balance of con venience is also in favour of the Plaintiffs and the mandatory interim orders, as prayed, be granted.