SMITA AMBALAL PATE Vs. XXX

JUDGEMENT

(1.) By this writ petition under Article 227 of the Constitution of India, the petitioners challenge the Judgment and Order dtd. 30 December 2020 passed by the Cooperative Appellate Court in Appeal No.79 of 2018. The Appellate Court confirmed the Judgment and Award passed in Dispute Nos.410 and 411 of 2014, allowing the claim of the respondent-disputant.

(2.) The relevant facts leading to the filing of this writ petition are as follows. The original disputant, late Dr. Harshad Pandya, was a founder member of the society and owner of Flat No.B-4. After his death during the pendency of the dispute, his legal heirs were brought on record as disputants. The society owns two buildings, "A" Wing and "B" Wing, comprising 16 and 20 flats respectively, having 30 members in all.

(3.) The case of the disputants is that in 1977, the Municipal Corporation of Greater Mumbai acquired a portion of the society's land. In lieu of the setback area used, the Corporation granted additional FSI of 1500 sq. ft. to the society. The society held meetings to consider the use of this FSI. In the Annual General Meeting held on 10 June 1988, the society resolved to utilize the FSI for constructing a bungalow within the society's premises. By notice dtd. 15 March 1988, the office bearers invited tenders with an earnest deposit of Rs.5,000 to be submitted by 1 April 1988. Both members and outsiders submitted tenders. The managing committee opened the tenders on 24 April 1988. The deceased disputant was the highest bidder and his earnest deposit was retained. Subsequently, in the meeting held on 8 January 1989, it was resolved that construction of a private bungalow would reduce open space and limit FSI utilization. Hence, the managing committee decided to allow the disputant to construct additional premises atop Building "B". Later, on advice from the Architect that such extension would be costly, it was agreed that the disputant would pay Rs.7,00,000 towards allotment of the additional FSI of 1500 sq. ft.