In one case of Re-development
says Adv. R. P. Rathod, the Mumbai High Court has rightly observed
that while redeveloping properties of Co-operative Housing Societies (Chs) when there is
dissent by a few members, the stakeholders and persons concerned in such cases
should include the society, the developer, minority members, consultants, and the
Municipal
authorities. After this observation there are sharp reactions from
such quarters. It is unfortunate that a well-worded and analyzed decision of
the Mumbai High Court has
given rise to apprehensions. In my view, these are baseless.
It is an
established position of law that a development agreement by itself does
not create rights in a property in a developer’s
favor. The developer, thus, has no locus standi and cannot be entertained for eviction
of society members. But remedy is available to the society & a society can
approach the Co-operative Court to
enforce its resolution.
However the propagators
of rule-of-majority should appreciate that the majority of members cannot
sideline Legal provisions and
procedures. The problem arises when a society management, owing to
vested interests, does not act as per rules, isn’t transparent and disregards objections
on merits by minority. Adv. R. P. Rathod further
states that the provisions of laws cannot
be sidelined or overruled by majority of members.
In a society,
decisions are not necessarily taken by the application of mind by
all. More often than not, some individuals influence the majority.
That is because, normally, only a handful are able to evaluate right and wrong
and distinguish between what is talked about and what is actually being done.
However, if the
minority
dissenting members do not have points on merits and the society has gone by the
law,
the minority may ultimately lose before the law. What is important is the merit
in the objections. Per se, rule
of majority is not the solution, whether it is redevelopment or any other
matter in a Co-operative Society.
The Hon’ble Mumbai High Court’s decision came after the developer
represented that in pursuance of the development agreement
and power of
attorney in his favor, he had spent a substantial amount of time,
money, and energy. But the more pertinent point is that at
the time of execution of the documents and while spending, a developer
is fully aware that there is dissent in the society. It is a business risk
knowingly taken.
In this case,
the society
had played illegitimately by not admitting the true legal heirs
as members and by not accepting arrears of dues from members with the
intention of expelling dissenters concludes Adv. R. P.
Rathod.
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