Full Judgment Text
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 565 OF 2011
[Arising out of SLP(C) No.10634/2010]
SUSHILA DIGAMBAR NAIK & ORS.
.......APPELLANTS
Vs.
MAHARASHTRA HOUSING & AREA
DEVELOPMENT AUTHORITY & ORS.
.....RESPONDENTS
O R D E R
Leave granted. Heard.
2. The members of the fourth respondent-Society decided
to redevelop the property - Building No.34,Ganesh-Kripa Co-
operative Housing Society Ltd., Kher Nagar, Bandra (East)
Mumbai, by demolishing the existing building through a
developer (fifth respondent) in the year 2003. An agreement
dated 17.6.2003 was entered between the Society and the
developer in that behalf. It is stated that, at that stage,
9 out of the 54 members had opposed the development through
the fifth respondent.
3. Under the said agreement, the developer had agreed to
provide each member/occupant, a flat with a carpet area of
345 sq. feet and a balcony/dry area of 70 sq.ft. On
9.1.2004, the first respondent (MHADA) issued a NOC for
redevelopment to MHADA. However, subsequently, the
appellants herein, who are 18 in number (referred to as non-
co-operating members of the Society comprising the original
nine plus addition nine members), opposed the development
through fifth respondent. That led to the developer (fifth
respondent) filing a suit against the appellants for a
permanent injunction to restrain them from interfering with
the development. In the said suit an interim injunction was
issued against the appellants.
4. Except the appellants, the other members of the
fourth respondent-Society vacated the premises and shifted
to transit accommodation provided by the developer (or
received an agreed sum as rent in lieu of transit
accommodation). The appellants did not vacate the premises.
Therefore MHADA passed an order of summary eviction against
them under Section 95A of the Maharashtra Housing and Area
Development Act, 1976. That order was challenged by the
appellants in Writ Petition (Lodging) 10/2010. The writ
petition was dismissed by a learned single Judge, by order
dated 4.2.2010. The writ appeal filed by the appellants was
also dismissed by the impugned order dated 12.3.2010. The
said order is challenged by the appellants in this appeal by
special leave.
5. The permissible FSI has been increased considerably
subsequent to the agreement between the fourth respondent-
Society and the fifth respondent-developer. In view of the
above and to put an end to the litigation, Mr. Mukul
Rohtagi, learned senior counsel for the fifth respondent-
developer on instructions from Mr. Yogesh Gupta, the
Executive Director of fifth respondent, who is present in
Court, offered that instead of 345 sq. feet carpet area and
70 sq. feet dry area originally agreed, the fifth respondent
will construct and make available to each of the 54 members
of the fourth respondent-Society, including the appellants,
a flat measuring 525 sq. feet (carpet area) and 116 sq. feet
(dry area) subject to the following conditions:
(i) All appellants shall vacate and deliver vacant
possession of their respective portions to the developer
within six weeks from today.
(ii) The Developer will construct and deliver the flats to
all the 54 members within thirty months from the expiry of
the said six weeks.
(iii) If there is any delay in delivering the flats to the
54 members (that is, within thirty months plus six weeks),
the Developer will pay a compensation of Rs.5,000/- (Rupees
five thousand) per month to each of the 54 members of the
Society [in addition to the transit accommodation/rent-in-
lieu thereof (opted by some members) to which the members
are entitled].
(iv) The corpus amount agreed will continue to be the
same.
6. Mr. Shekhar Naphade, learned senior counsel for the
appellants, on instructions, submits that in view of the
better terms now offered by the Developer, the appellants
are agreeable to join the other members of the Society in
regard to the development of the property. The learned
counsel for the fourth respondent-Society submitted that the
Society was agreeable for the revised benefits. Thus all 54
members of the Society have agreed for the revised benefits
offered by the developer. The said settlement between the
appellants, fourth respondent and the fifth respondent is
recorded.
7. Learned counsel appearing for respondents 1 to 3
submit that as this is a voluntary arrangement between the
fourth respondent and its members with the fifth respondent.
MHADA has no comments to offer or no role in the settlement.
8. All parties submitted that the appeal may be disposed
of accordingly. In view of the above, recording the said
settlement, this appeal is disposed of. Each of the
appellants, the Society and the developer will be entitled
to enforce the above, as a decree, in the event of
default/breach by the other parties to the settlement.
....................J.
( R.V. RAVEENDRAN )
....................J.
( A.K. PATNAIK )
New Delhi;
January 14, 2011.