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Bombay High Court · body

2014 DIGILAW 1940 (BOM)

Geeta Narayan Parvati v. Vijaya B. Joshi

2014-09-04

R.M.SAVANT

body2014
Judgment 1. The quest of having a roof over one's head can be said to have given rise to the above proceedings as well as companion Writ Petition No.4775 of 2001. 2. The writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India is invoked against the judgment and order dated 17/11/2000 passed by the learned President of the Maharashtra State Co-operative Appellate Court by which order the Appeal filed by the Respondent No.1 herein came to be allowed and resultantly the judgment and order dated 4/9/1999 passed by the learned Judge, Co-operative Court No.1, Mumbai allowing the Dispute came to be set aside. 3. The factual matrix invoked in the above Petition can be stated thus: The Petitioner herein at the relevant time was a lecturer in the Elphinstone College, Mumbai and was a member of the Respondent No.2 Society. Respondent No.2 is a Society registered under the Maharashtra Cooperative Societies Act (for short “the said Act”) some time in April 1979 and is a tenant Co-partnership Society within the meaning of Rule 10 of the said Maharashtra Co-operative Societies Rules 1961 (for short “the said Rules”). The Respondent No.2 would hereinafter be referred to as “the Society”. The Respondent No.2 comprises of ladies who were working with the State Government or its offices at the relevant time. The Respondent No.1 was the Chief Promoter of the Society and was at the relevant time working as an Under Secretary in the Social Welfare Department of the Government of Maharashtra. The Respondent No.1 in the companion Writ Petition No.4775 of 2001 was the Secretary of the Society. It is the Respondent No.1 in the above Petition and the Respondent No.1 in the Companion Petition who can be said to have taken a lead in forming the Society and interacted with the State Government in the matter of procuring the plot for the Society. The State Government allotted the plot of land bearing No.20 at Bandra Reclamation, Mumbai to the Respondent No.2 Society. The said plot was alloted on the terms and conditions mentioned in the allotment letter. The Respondent No.2 Society comprised of 32 members out of which 28 members could be accommodated in the building that was to be constructed on the said plot of land which was allotted to it, and therefore, 4 members were to remain on the waiting list. The Respondent No.2 Society comprised of 32 members out of which 28 members could be accommodated in the building that was to be constructed on the said plot of land which was allotted to it, and therefore, 4 members were to remain on the waiting list. The Petitioner herein was admittedly on the waiting list. Initially it appears that a proposal was mooted for constructing two types of flats being smaller and bigger size flats i.e. flats admeasuring 750 sq.ft. and flats admeasuring 650 sq.ft. The Petitioner herein became the member of the Society and had paid all the amounts which were initially required to be paid by a person desirous of becoming the member of a housing society. It appears that one of the members Ms. Rama Dandekar was not interested even in the smaller flat of 650 sq.ft., as she had expressed her desire to have a flat admeasuring 350 sq.ft. and since it was not possible to have a flat of 350 sq.ft. architecturally, the said Ms. Rama Dandekar was accordingly informed by the Society that it is not possible to accede to her request, upon which the said Rama Dandekar resigned from the membership of the Society. Since a vacancy had arisen in the membership, the Petitioner herein being the next in the list was offered the flat in place of the said Ms. Rama Dandekar. The Petitioner received a letter dated 15/10/1979 from the Society by which she was informed that the Managing Committee of the Society had passed a Resolution on 13/10/1979 that a smaller flat admeasuring an area of 645 sq.ft. which has become available due to withdrawal of the membership by the said Miss Rama Dandekar be offered to the Petitioner being the first member on the waiting list. The Petitioner by the said letter was asked to intimate whether the said offer of the Society was acceptable to her and the Petitioner was asked to communicate her decision within one week as otherwise it would be presumed that she was not interested and the offer would be made to the next person on the waiting list. It seems that the Petitioner vide her letter dated 17/10/1979 communicated her acceptance of the said offer. It seems that the Petitioner vide her letter dated 17/10/1979 communicated her acceptance of the said offer. It appears that since the plot in question was alloted by the State Government to the Respondent No.2 Society, the concerned Hon'ble Minister had informed the Society that all the flats would have to be of the same size. It appears that thereafter the members were asked to fill up a proforma inter alia consisting of the information as regards the size of the flat they would prefer. The said proforma it seems was to be forwarded to the Maharashtra Housing Area Development Authority (MHADA). It was mentioned in the proforma that the flats of bigger sizes would not be funded by availing of loan from the State Government. In so far as the Petitioner in the above Petition is concerned, in view of the fact that she had accepted the offer made by the Society, she had filled up the proforma mentioning therein that her requirement was a flat admeasuring 650 sq.ft., however, she has further clarified that she would not be availing of any loan. The matter had reached the stage of allotment of flats to the members. By Resolution dated 21/09/1980 a decision was taken to number the flats, and the Petitioner in the above Petition and the Petitioner in the Companion Petition No.4775 of 2001 were to be given flats on the back side. The members were asked to remain present at site on some particular dates. However, what is material to note is that the decision to allot the flats was taken in the General Body Meeting of the Society dated 21/9/1980. By the said Resolution it was resolved that the members who had opted for the smaller flats should go with the flats of the Chairman and the Secretary who were allotted the bigger flats. Hence the Petitioner in the above Petition and the Petitioner in the Companion Petition were allotted Flat Nos.2B and 6B respectively on the back side whereas the Respondent No.1 in both the Petitions were allotted Flat Nos.2A and 6A which were on the front side respectively. Hence the Petitioner in the above Petition and the Petitioner in the Companion Petition were allotted Flat Nos.2B and 6B respectively on the back side whereas the Respondent No.1 in both the Petitions were allotted Flat Nos.2A and 6A which were on the front side respectively. It was also decided in the said meeting that the Petitioner in the above Petition and the Petitioner in the companion Petition, and the Respondent No.1 in both the Petitions should enter into an agreement in respect of attachment of the master bedroom, so that the same became binding on the successors of the Petitioners as well as the Respondent No.1. Accordingly the said agreement in the instant case was executed on 02/10/1980. The Petitioner in the above Petition and the Petitioner in the companion Petition had accepted the smaller flats, but their discontent with the allotment of the smaller flats was latent. It seems that the Petitioner was pursuing with the Chairman as also the Secretary of the Society for allotment of a bigger flat. The Society on being refused permission to commercially exploit the space on the ground floor by Resolution dated 28/02/1982, decided to construct two flats on the ground floor in place of the commercial premises which were originally proposed. The Petitioner was pursuing with the Chairman as also the Secretary of the Society for being allotted one of the flats which was to be constructed on the ground floor, which was to be of a bigger size than the flat alloted to the Petitioner. On finding that the said flats on the ground floor were being alloted not to the Petitioner but to a new member, and having found that her request was turned down by the Society, the Petitioner terminated the agreement dated 02/10/1980 by addressing a notice to the Respondent No.1, and filed the Dispute in question. 4. In so far as the instant Petition is concerned, the Dispute is numbered as CC-I-809-84 of 1990. It appears that prior to filing of the said Dispute, in view of the dispute regarding the size of the flat developing into a contentious issue between the Petitioners in both the Petitions and the Respondent No.1, the Respondent No.2 Society in its meeting dated 27/6/1982 passed a Resolution that the parties should get their disputes in respect of the attachment of the master bedrooms resolved amicably or through Court. It was further resolved that pending the resolution of the disputes, no further action to be taken and it was further decided that the said Flat Nos.2A, 2B, 6A and 6B not to be completed and that the Petitioner above named should deposit the balance price of the flat i.e. the price of the master-bed-room which was to be attached to Flat No.2A. The Petitioner accordingly deposited the entire amount of the flat including the master bedroom. In view of the said decision of the General Body, that the Petitioners in both the Petitions were required to file the Disputes in question. The principal reliefs sought in the Dispute in question were to the following effect:- (b) order the opponents to restore the master bedroom of flat No.2B belonging to the disputant to its original form as per the sanctioned municipal plan and handover possession of the same to the disputant forthwith; (c) order the opponent No.1 to pay compensation at the rate of Rs.700/- per month till the disputant is put in possession of the master bedroom; (d) issue an order of temporary injunction restraining the opponents their agents and servants and all persons claiming through or under them from completing the incomplete work in the said master bed room of flat No.2B and/or from selling and/or parting with possession of the said master bed room as part of flat No.2A or otherwise in favour of third persons, pending the hearing and final disposal of the present dispute; The said Dispute was founded on the facts which have already been adverted to herein above. 5. In the Dispute the Respondent No.1 filed her written statement and denied the case of the Petitioner. It was the case of the Respondent No.1 that the Petitioner had accepted the smaller flat of her own choice. It was further the case of the Respondent No.1 that the Resolution passed by the General Body in its meeting dated 21/09/1980 was acted upon and the construction was carried in accordance with the decision taken in the said Resolution. The Respondent No.1 further averred in her written statement that in the light of the Resolution dated 21/09/1980 the Society could not have passed the Resolution dated 27/6/1982. The Respondent No.1 further averred in her written statement that in the light of the Resolution dated 21/09/1980 the Society could not have passed the Resolution dated 27/6/1982. It was further the case of the Respondent No.1 that the Society could not have taken a decision of keeping the master bedroom which was attached to Flat Nos.2A and 6A in an incomplete state having received the full consideration from the Respondent No.1 in terms of the Resolution passed in the meeting held on 21/09/1980. It was further contended by the Respondent No.1 that she is lawfully entitled to occupy the said master bedroom which was attached to her Flat No.2A and that she has completed the entire work. 6. The Society filed its written statement. It was stated in the said written statement that the Society had filed two criminal cases against the Respondent No.1 being Case No. 40/S of 1983 and Case No.313/N/1983 in the Court of the Metropolitan Magistrate, 9th Court, Bandra, Mumbai, and the ame are pending. It was further contended that it is for the Co-operative Court to decide whether the Petitioner i.e. the Disputant in the Dispute is entitled to the reliefs claimed by her in the said Dispute. It was further averred that the Society is a formal party and the Dispute is between the Petitioner and the Respondent No.1. 7. In support of their respective assertions, the parties led evidence. The Petitioner had examined herself whereas the Respondent No.1 had examined herself. Both the parties cross examined each others witnesses. The Co-operative Court as can be seen has framed four issues on the basis of the pleadings of the parties, which for the sake of convenience are reproduced herein under: Issues No.1 : Does the disputant prove that the agreement dated 2nd October 1980 at Exhibit B to the plaint is void, illegal, and not binding on the disputant for the reasons mentioned in the Plaint? Issue No.2 : Does the disputant prove that she is entitled to the possession of the master bed room of flat No.2B, in the society's building? Issue No.3 : Does the opponent No.1 prove that the present dispute is barred by limitation as contained in para 3 of the written statement? Issue No.2 : Does the disputant prove that she is entitled to the possession of the master bed room of flat No.2B, in the society's building? Issue No.3 : Does the opponent No.1 prove that the present dispute is barred by limitation as contained in para 3 of the written statement? Issue No.4 : Does the opponent No.1 prove that the disputant is estopped from claiming possession of the master bed room of flat No.2B as contended in para 4 of her written statement? Issue No.5 : What award? In so far as the said issues are concerned, all were answered against the Respondent No.1. However the Co-operative Court held that the case of the Petitioner that it is on account of misrepresentation that she was made to accept the smaller flat or that there was undue influence exercised by the Respondent No.1 or that on account of fraud or coercion that she had accepted the smaller flat was negatived by the Co-operative Court. However, the Co-operative Court held that the agreement dated 02/10/1980 could not be said to be legal and binding on account of nonregistration and therefore it could not be acted upon and was therefore not binding on the Petitioner. The Co-operative Court held that the Society had received full price for the flat admeasuring 750 sq.ft. from the Petitioner as the Petitioner vide her letter dated 17/5/1982 had forwarded the amount of Rs.19,400/-towards the balance cost of the said Flat No.2B i.e. of the master bedroom. The Co-operative Court further held that though the Petitioner had opted for an area of flat admeasuring 650 sq.ft., the Society had allotted a flat of larger area to the Petitioner and therefore though the Respondent No.1 had obtained possession of the master bedroom, the act of the Respondent No.1 was illegal and the Petitioner i.e. the Disputant was entitled for possession of the master bedroom of the said Flat No.2B. The Co-operative Court further held that in passing the said Resolution dated 27/6/1982, the earlier Resolution passed in the General Body Meeting dated 21/09/1980 was cancelled; that the said Resolution dated 27/6/1982 was therefore binding on the Respondent No.1. However, the Co-operative Court held that since the possession of the master bedroom was obtained by the Respondent No.1 on the basis of the said agreement, the Co-operative Court refused to award compensation to the Petitioner. However, the Co-operative Court held that since the possession of the master bedroom was obtained by the Respondent No.1 on the basis of the said agreement, the Co-operative Court refused to award compensation to the Petitioner. However, as indicated herein above, the Co-operative Court partly allowed the Dispute and directed to restore the master bedroom of Flat No.2B and to hand over the possession of the said master bedroom to the Petitioner within the time stipulated in its order. The operative part of the judgment and order of the Co-operative Court is reproduced herein under for ready reference: “1] The dispute is partly allowed. 2] The Opponents are directed to restore master bed room of flat No.2B belonging to the disputant to its original form as per municipal sanctioned plan. 3] Opponents are also directed to hand over the possession of the master-bedroom of flat No.2B to the disputant within eight days from the date of this order. 4] Rests of the claim of the disputant stands dismissed. 5] Parties to bear their own costs. 6] Award be drawn accordingly.” 8. The Respondent No.1 aggrieved by the judgment and order dated 4/9/1999 passed by the Cooperative Court filed an Appeal before the Maharashtra State Co-operative Appellate Court being Appeal No.158 of 1999. The Co-operative Appellate Court has by its judgment and order dated 17/11/2000 allowed the said Appeal and set aside the judgment and order dated 4/9/1999 passed by the Co-operative Court. In so far as the Co-operative Appellate Court is concerned, the Co-operative Appellate Court has in terms recorded findings in favour of the Petitioner. The learned President of the Co-operative Appellate Court observed that he was convinced that the original Respondent No.1 in the both the Petitions had already decided to acquire bigger flats as they had offered smaller flats to the Petitioners in both the Petitions. The learned President further observed that he was accepting the arguments of the learned advocate appearing for the Petitioners in both the Appeals in the Co-operative Court that when the said Miss. Rama Dandekar resigned from the membership of the Society, the Society ought to have offered regular size flat to the Petitioner who was first on the waiting list and could not have been linked to the case of Ms. Rama Dandekar who wanted a smaller flat. The learned President has further observed that since Ms. Rama Dandekar resigned from the membership of the Society, the Society ought to have offered regular size flat to the Petitioner who was first on the waiting list and could not have been linked to the case of Ms. Rama Dandekar who wanted a smaller flat. The learned President has further observed that since Ms. Rama Dandekar's requirement was specific, it could not be linked to the person who would come in after her resignation. The learned President further observed that he was accepting the submission of the advocate for the Petitioners that the offer given to the Petitioners was not equitable and fair. However, after so recording findings, the learned President has allowed the Appeal on the ground that it could not be said that the said arrangement was arrived at behind the back of the Petitioner and it could not be said that the Petitioner was not aware of the said arrangement. The learned President further observed that assuming that the Petitioner was in a handicapped situation at the time of accepting the offer of the Society, she had every right to resist the inequitable offer of the Society and could have applied for regular size of flat after she became the member of the Society. The learned President observed that the Petitioner had accepted the resolution allotting the smaller size flat to her and therefore came to a conclusion that the said arrangement was made with the consent of the Petitioner. The learned President further observed that once the resolution was passed there was no need of any agreement and that the execution of the agreement was a redundant action as the decision was taken for allotment of smaller flat to the Petitioner in the General Body Meeting dated 21/09/1980. The learned President further observed that there was one more reason to come to a conclusion that the said arrangement was accepted by the Petitioner herein voluntarily. According to the learned President the Petitioners allowed the said arrangement to continue until the flats on the ground floor were allotted to other members and that the rejection of the request of the Petitioner for the flat on the ground floor has triggered of the filing of the Dispute. The learned President therefore observed that had the society not constructed two new flats on the ground floor, then Petitioners would not have filed the Disputes in question. The learned President therefore observed that had the society not constructed two new flats on the ground floor, then Petitioners would not have filed the Disputes in question. The said circumstance according to the learned President clearly showed that the Petitioner herein was aggrieved because of the Society's decision not to allot her the flat on the ground floor and the same therefore fortified his conclusion that the earlier arrangement was voluntary and therefore recorded his answer to the said point in the negative and accordingly allowed the Appeal and set aside the judgment and order passed by the Co-operative Court. As indicated above, it is the said judgment and order dated 17/11/2000 passed by the Co-operative Appellate Court which is taken exception to by way of the above Petition. 9. Heard the learned counsel for the Parties. 10. SUBMISSIONS ON BEHALF OF THE PETITIONER BY THE LEARNED COUNSEL SHRI K Y MANDLIK A] That the Co-operative Appellate Court has erred in allowing the Appeal after recording a finding that the Respondent No.1 had already decided to have a bigger flat in the society and that the case of the Petitioner could not have been linked to the case of Ms. Rama Dandekar who had chosen the smaller flat of 350 sq.ft. B] That the Co-operative Appellate Court after holding that the Petitioner's case could not be linked to the case of Ms. Rama Dandekar had thereafter erred in upsetting the judgment and order passed by the Co-operative Court on the ground that the arrangement which was arrived at was by consent of the Petitioner. C] That the Co-operative Appellate Court had erred in recording a finding that the said arrangement was by consent of the Petitioner when in actual fact the Petitioner had no choice in view of the offer which was made to her vide letter dated 15/10/1979 as otherwise she would have continued to be on the waiting list which is borne out by the cross examination of the Respondent No.1 wherein the Respondent No.1 has in terms admitted that the Petitioner was informed that if she did not accept the offer, she would continue to remain on the wait list. D] That the Co-operative Appellate Court failed to appreciate that the Respondent No.1 being the Chief Promoter of the Society and thereafter the Chairman had taken an active part in the General Body Meeting wherein the decision was taken to attach the master bedroom of the Petitioner's flat to the flat of the Respondent No.1 and had thereby violated the Bye-laws which provide that the office bearers of the Society who had interest in the subject matter, should recluse himself or herself when the said issue is taken up for discussion; E] That the Co-operative Appellate Court had failed to consider the Appeal on the touchstone of the Resolution dated 27/6/1982 which was passed by the Society which resolution concerned the master bedroom of both the Flat Nos.2B and 6B and in terms of which resolution, the Resolution dated 21/9/1980 was virtually set aside. F] That the Co-operative Appellate Court failed to take into consideration the fact that though the Society had taken a decision not to complete the flats being Flat Nos. 2A, 2B, 6A and 6B and kept the said issue pending till the dispute in respect of the master bedroom is resolved by the parties amicably or through the Court, the Respondent No.1 had taken the law in her hands and had completed the construction by force and obtained the possession of the said master bedroom of Flat No.2B and attached it to her flat. G] That the Co-operative Appellate Court had failed to take into consideration the fact that the Respondent No.1 for her acts was also criminally prosecuted by the Society by filing two criminal cases against her which have been mentioned in the written statement of the Society. H] That the Co-operative Appellate Court ought to have considered that in so far as the Flat No. 2B is concerned, the said master bedroom was kept in lock and key by the Society and the possession is neither handed over to the Petitioner nor to the Respondent No.1, the Petitioner was therefore entitled to the possession, whereas the Respondent No.1 in defiance of the said Resolution dated 27/6/1982 has taken the possession of the said master bedroom of Flat No.2B forcibly. 11. 11. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1 BY THE LEARNED COUNSEL SHRI RAJENDRA V PAI i] That the Petitioner having accepted the offer made by the Society of a smaller flat, the said contract was concluded between the Society and the Petitioner and therefore there is no question of there being any equity in favour of the Petitioner; ii] That the Petitioner by accepting the smaller flat whereby the master bedroom was to be attached to Flat No.2A of the Respondent No.1 is now estopped from contending to the contrary. In support of the said contention the learned counsel sought to rely upon the judgments of the Division Bench of the Calcutta High Court in the matter of The Ganges Manufacturing Co. (Defendant) v. Sourujmull and others (Plaintiffs) reported in 5 C.L.R. 533, the judgments of the Apex Court in the matter The Union of India and others v/s. M/s. Anglo Afghan Agencies etc. reported in AIR 1968 SC 718 and in the matter of Haryana State Industrial Development Corporation ltd v/s. Inderjeet Sawhney, reported in AIR 1996 SC 2244 . iii] That the Co-operative Court has held against the Respondent No.1 only on the ground that the agreement was not registered as otherwise on all other issues i.e. mis-representation, undue influence, fraud and coercion, the Co-operative Court has recorded findings against the Petitioner. iv] That the Co-operative Court has also not accepted the case of the Petitioner for compensation as the Co-operative Court has rightly held that the Petitioner had obtained the possession pursuant to the agreement dated 02/10/1980 entered into between the Petitioner and the Respondent No.1. v] That the Co-operative Appellate Court has rightly set aside the judgment and order passed by the Co-operative Court in the teeth of the Resolution dated 21/9/1980 which resolution was passed allotting the smaller flat to the Petitioner. vi] That the Petitioner having filled up the proforma and having opted for the smaller flat of 650 sq.ft. has sought to raise a dispute only after the ground floor flats were allotted to other members and her request for allotment of the flat on the ground floor was refused, and therefore, filing of the said Dispute was an afterthought. CONSIDERATION 12. Having heard the learned counsel for the parties, I have considered the rival contentions. has sought to raise a dispute only after the ground floor flats were allotted to other members and her request for allotment of the flat on the ground floor was refused, and therefore, filing of the said Dispute was an afterthought. CONSIDERATION 12. Having heard the learned counsel for the parties, I have considered the rival contentions. In the instant case, the Co-operative Court has held in favour of the Petitioner and has granted relief of handing over possession of the said master bed room which is the part of the flat of the Petitioner and which was sought to be attached to the flat of the Respondent No.1. However, the Co-operative Appellate Court has allowed the Appeal primarily on the ground that the Petitioner did not object to the Resolution dated 21/09/1980 and also did not protest on the smaller flat being allotted to her. The Co-operative Appellate Court can therefore be said to have held against the Petitioner on the ground of acquiescence and estoppel. It is in the said context that the above Petition would have to be adjudicated. 13. At this stage it would be relevant to refer to the text of the two Resolutions which can be said to be the Resolutions on the basis of which the instant case revolves. In so far as Resolution dated 21/09/1980 is concerned, by the said Resolution tentative allotment of flats to 28 members was made. In so far as the instant Petition is concerned, the following excerpt of the said Resolution is material and is reproduced herein under: “(1) Resolved that the two bigger flats No.2A and 6A on the Front West be finally allotted to the Chairman Mrs. Vijaya Joshi and the Secretary Mrs. Shobhana V Kamat and the two members who have opted for smaller flats should go with them. Proposed by Mrs. Vijaya Joshi Seconded by Smt. Usha Shahane Carried unanimously (2) Resolved further that payment towards the payment of cost be made by the concerned members on the basis rate per square feet of the carpet area and municipal taxes approtioned proportionately Proposed by Mrs. Vijaya Joshi Seconded by Smt. Usha Shahane Carried unanimously (3) Resolved further that the concerned two parties should enter into a legal agreement and the agreements so made be binding on those who become their successors Proposed by Mrs. Aruna Mahajan Seconded by Mrs. Vijaya Joshi Seconded by Smt. Usha Shahane Carried unanimously (3) Resolved further that the concerned two parties should enter into a legal agreement and the agreements so made be binding on those who become their successors Proposed by Mrs. Aruna Mahajan Seconded by Mrs. I.R. Patil Carried unanimously In so far as Resolution dated 27/06/1982 is concerned, the following excerpt of the said Resolution is material and is reproduced herein under:- “114. Mrs. Shahane explained the legal complications cropping up due to revocation of the legal agreement by Mrs. Geeta Parwathi Rao and Mrs. Datar, that existed between Rao and Mrs. Joshi and Mrs. Datar and Mrs. Kamat. She also conveyed the legal advice given by the Society's Advocate Shri Railkar to the members. After the discussion on this matter the following resolutions were passed: In view of the dispute between the member allottees of flat Nos.6A, 6B and 2A and 2B it is hereby resolved as followed: (1) The general body ratifies the action of the managing committee instructing the architect of the society to stop further construction of the flats under dispute and all other, actions persuant to the dispute. (2) The construction of flat Nos.6A, 6B and 2A, 2B should be stopped and status quo as on 9-5-1982 should be maintained till the parties to the dispute of flat Nos.6A, 6B and 2A, 2B resolve their dispute either amicably or through the Court of law and jointly report to the society the decision arrived at between them. (3) If the member allottees of the disputed flats give in writing to the society that the rooms of the flats which are not in dispute should be completed and possession handed over to them, the society should concede to their request and complete the construction of the rooms of the flats which are not in dispute and hand over possession thereof. (4) Till the dispute is resolved the cost, taxes and all expenses pertaining to the room in dispute should be paid to the society by the both the members to the dispute and the society should credit the amount received from the members in suspense account. The disputed room should be left as it is, incomplete and the construction of that room should be taken up by the society on the resolution of the dispute. The disputed room should be left as it is, incomplete and the construction of that room should be taken up by the society on the resolution of the dispute. The expenses for the completion of that room on the resolution of the dispute will have to be borne by the parties concerned. (5) The legal expenses to the society on account of the dispute in respect of the four flats mentioned above shall be borne proportionately by the members who are parties to the dispute. (6) To enable the society to hand over possession to parties to the dispute excluding the room under dispute certain changes will have be effected to keep the disputed room separate. Expenditure on account of such closure etc. and subsequent handing over after the dispute is resolved, will have to be borne by the concerned parties to dispute.” A reading of the said Resolution dated 27/06/1982 therefore discloses that the Society had kept the issue of attachment of the master-bedroom of Flat No.2B and Flat No.6B on hold in view of the dispute which had arisen between the parties i.e. the Petitioners and the Respondent No.1 in the above Petition as well as in the companion Petition. It appears that prior to the said Resolution the Society vide its circular dated 5/5/1982 had called upon the Petitioner to deposit the balance amount payable for the area of the master-bedroom. The Petitioner had accordingly paid the said balance amount and therefore the Petitioner had paid the price of the entire Flat No.2B. 14. In so far as the present Petitioner is concerned, as indicated herein above, it is in the vacancy of one Miss Rama Dandekar that the Petitioner was enrolled as a member. However, what is pertinent to note is that the size of the flat in so far as the present Petitioner is concerned, was sought to be frozen by the office bearers of the Society by informing the Petitioner that one smaller flat was available for allotment, that the Petitioner was being enrolled as a member in place of Miss Rama Dandekar and that the Petitioner should communicate her willingness within a particular time frame. It is therefore clear that the Respondent No.1 to the above Petition and the Respondent No.1 in the companion Petition had already decided to appropriate the master-bedrooms of the flats of the present Petitioner and the Petitioner in the companion Petition, to themselves. This can also be seen from the fact that the area available on account of the Petitioners in both the Petitions being allotted smaller flats was not offered to other members. In fact no attempt was made to see whether any other member was interested in the excess area which had become available. It is towards that end that the said Resolution dated 21/09/1980 came to be passed and it was decided in the said General Body Meeting that the parties should enter into an agreement in respect of the attachment of the master-bedroom of Flat No.2B to the Flat No.2A i.e. the flat of the Respondent No.1 herein, and the master bedroom of Flat No.6B to the Flat No.6A i.e. the flat of the Respondent No.1 in the companion Petition. The Respondent No.1 in her capacity as a Chairman had therefore sought to link the case of the said Miss Rama Dandekar with the case of the Petitioner, though the Petitioner had never prior to her being enrolled as a member informed of any desire of having smaller a flat in the Respondent No.2 Society. If the Petitioner was to be allotted the in place of an outgoing member then she was required to be offered the same area as offered to the other members and could not have been offered a smaller flat which was opted for by the resigning member, Miss Rama Dandekar. The said contention which was urged before the Co-operative Appellate Court was also found to have merit by the Co-operative Appellate Court. However, the Co-operative Appellate Court as indicated above, on the ground of acquiescence and estoppel has held against the Petitioner. 15. It is an undisputed fact that the Respondent No.1 in the instant Petition was at the helm of affairs of the Society being the Chairman along with the Respondent No.1 in the companion Petition who was the Secretary of the Society at the relevant time. 15. It is an undisputed fact that the Respondent No.1 in the instant Petition was at the helm of affairs of the Society being the Chairman along with the Respondent No.1 in the companion Petition who was the Secretary of the Society at the relevant time. In fact in the reply to the notice, which was addressed by the Petitioner to the Advocate for the Respondent No.1, the Advocate for the Respondent No.1 has in terms stated that his client i.e. the Respondent No.1 was responsible for the formation of the Society and for the allotment of the plot in question to the Society. The Petitioner in the Companion Petition Smt. Nirmala Datar has also in one of her letters highlighted the dictatorial manner in which the Chairman and the Secretary i.e. the Respondent No.1 in both the Petitions were conducting the affairs of the Society. Hence the fact that the Respondent No.1 in the capacity of Chairman was the architect of the decision taken in the General Body Meeting cannot be lost sight of. Hence the Petitioner herein had very little choice but to accept the offer of a smaller flat which was made to her by the letter dated 17/10/1979. This she had to accept as otherwise she was informed that she would continue to be on the waiting list which fact has been borne out by the evidence of the Respondent No.1. It is in the said circumstance that she had accepted the offer of a smaller flat and had also executed the agreement in terms of the decision taken in the General Body Meeting dated 21/09/1980. But as indicated above, her discontent on being offered a smaller flat was latent. The Petitioner initially did not come out with her protestations in the open probably in the sanguine hope of getting a bigger flat on the ground floor which was to be constructed later on. However, on the same not materializing, the Petitioner's protestations came out in the open by the Petitioner terminating the agreement dated 2/10/1980 by her advocate's letter dated 11/04/1982 and by filing the Dispute in question. 16. However, on the same not materializing, the Petitioner's protestations came out in the open by the Petitioner terminating the agreement dated 2/10/1980 by her advocate's letter dated 11/04/1982 and by filing the Dispute in question. 16. It is required to be noted that the 28 flats, which were to be constructed, were all to be of equal size and it is an undisputed position that the plans, which were sanctioned by the Mumbai Municipal Corporation, were for the flats having equal size having two bedrooms and attachment of the master-bedroom of the Petitioner's flat to the flat of the Respondent No.1 was admittedly not a part of the sanctioned plans. At the cost of repetition it would also have to be noted that the Hon'ble Minister had informed the Society to have flats all having equal size. However, the Respondent No.1 in both the Petitions who were at the helm of affairs in spite of the aforesaid position, by allotting a smaller flat to the Petitioner, and thereafter, presiding over the passing of the resolution in the General Body Meeting dated 21/09/1980 got themselves a larger flat by detaching the master-bedrooms of the flats of both the Petitioners and attaching it to their flats. It is further required to be noted that the Society in its General Body Meeting dated 27/06/1982 had passed a Resolution which has already been adverted to herein above. Hence in so far as the master-bedroom is concerned, the position was that the Society had directed that the parties should resolve the dispute amicably or through Court. The Respondent No.1 in spite of the said Resolution, did not file any undertaking as contemplated by the said Resolution. The Respondent No.1 also did not challenge the said Resolution. However, in blatant and flagrant violation of the said Resolution took forcible possession of the master-bedroom of the flat of the Petitioner i.e. Flat No.2B, completed the construction of attaching the said master-bedroom to her flat and obtained completion certificate of the said flat individually though the Society had obtained the occupation certificate in respect of the building except the four flats i.e. Flat Nos.2A, 2B, 6A and 6B. It seems that in view of the said act of the Respondent No.1 of taking forcible possession, the Society had filed Criminal Cases being Case No. 40/S of 1983 and Case No.313/N/1983 against her, a reference to which has been made in the written statement of the Society. 17. The Co-operative Court had therefore rightly held that the Agreement being unregistered could not be valid and binding and that on account of the conduct of the Respondent No.1 of taking possession illegally, the possession of the master-bedroom had to be restored to the Petitioner which the Co-operative Court accordingly ordered. However, the Co-operative Appellate Court as indicated above on the ground that the Petitioner did not protest against the said Resolution dated 21/09/1980 and also did not protest against the allotment of the smaller flat held against the Petitioner. The Co-operative Appellate Court thereby has lost sight of the subsequent Resolution dated 27/06/1982 and the conduct of the Respondent No.1 of acting in defiance of the said Resolution. 18. In my view, the Co-operative Appellate Court had erred in holding against the Petitioner on the said two grounds for the reasons which are aforestated. The Co-operative Appellate Court in my view, after recording a finding that the Petitioner could not have been offered a smaller flat and the case of the Petitioner could not have been linked to the case of Miss Rama Dandekar had thereafter erred in allowing the Appeal and setting aside the order of the Co-operative Court. 19. The submission of the learned counsel for the Respondent No.1 that in view of the acceptance of the offer made by the Society to the Petitioner there is a concluded contract and therefore there are no equities in favour of the Petitioner. In my view, the said submission is totally misfounded. It is required to be noted that the instant case is a case where a Society of the Government Servants has been allotted a plot of land by the State Government. The construction of the flats would therefore have to be inconsonance with the directives of the State Government. In the instant case, it has come on record that the Hon'ble Minister has directed the Society to construct the flats all having equal size. The construction of the flats would therefore have to be inconsonance with the directives of the State Government. In the instant case, it has come on record that the Hon'ble Minister has directed the Society to construct the flats all having equal size. The allotment of the flats in the Society therefore is an in house exercise to be carried out by the Society through the modality of passing a resolution in the General Body Meeting of the members of the Society. There is therefore no question of any concluded contract. The question therefore which arises in the instant case is whether the Petitioner could have been offered a smaller flat only because the resigning member had shown her disinclination to accept the regular size flat. The answer has to be a resounding “No”. If a member has resigned, the incoming member is entitled to a flat of the same size as the other members but what was done in the instant case was that the entitlement of the incoming member was sought to be frozen on the basis that the outgoing member had expressed a desire to have a smaller flat. In my view, the conduct of the Society which was obviously at the behest of the Respondent No.1 herein of offering a smaller flat to the Petitioner is highly reprehensible and also malafide as by taking advantage of the situation the Respondent No.1 has sought to usurp the master-bedroom of the flat of the Petitioner. In my view, the said conduct of offering a smaller flat to the Petitioner was iniquitous and therefore the submission of the learned counsel for the Respondent No.1 that there are no equities in favour of the Petitioner would have to be rejected. 20. Now coming to the contention of the learned counsel appearing for the Respondent No.1 that on the basis of the conduct of the Petitioner she is now estopped from contending to the contrary i.e. claiming a bigger flat. In support of the said contention, the learned counsel for the Respondent No.1 has sought to place reliance on the judgments of the Division Bench of the Calcutta High Court as well as the Judgments of the Apex Court. In Ganges Manufacturing Co. Vs. In support of the said contention, the learned counsel for the Respondent No.1 has sought to place reliance on the judgments of the Division Bench of the Calcutta High Court as well as the Judgments of the Apex Court. In Ganges Manufacturing Co. Vs. Sourujmull, the Division Bench of the Calcutta High Court in the context of the facts in that case wherein the purchaser of the goods in the said case had transferred his interest to another and had given that a delivery order purporting to entitle him to present possession and where the original vendor had assented to the transaction by acknowledging the title of the transferee the original Vendor could not afterwards deny the property of the transferee or set up a case for unpaid price against his right of possession at any rate since the transferee has acted on the faith of such acknowledgment. The Division Bench Held “that a man may be estopped not only from giving any particular evidence but from doing any act or relying upon any particular argument or contention which the rules of equity and good conscience prevent him from using as against his opponent. In the case of Union of India Vs. Anglo Afghan Agencies (Supra) the Apex Court was concerned with a promotional scheme announced by the Central Government under which the exporters of woollen to Afghanistan, the exporters were invited to get themselves registered with the Textile Commissioner for exporting woollen goods and it was represented by the said policy that the exporter will be entitled to import raw materials of the total amount equal to 100 per cent of the F.O.B. value of the exports. The exporters i.e. the Respondent had acted upon the representation made in the export promotion scheme that import licences up to the value of the goods exported will be issued and had exported goods, his claim for import licence for the maximum value permissible by the scheme could not be arbitrarily rejected. The Apex Court held that the Textile Commissioner was therefore in the ordinary course required to grant import certificate for the full value of the goods exported, he could only reduce that amount after enquiry contemplated by clause 10 of the Scheme. The Apex Court held that the Textile Commissioner was therefore in the ordinary course required to grant import certificate for the full value of the goods exported, he could only reduce that amount after enquiry contemplated by clause 10 of the Scheme. The Apex court observed that the authority vested in the Textile Commissioner by the rules even though executive in character was from its nature an authority to deal with the matter in manner consonant with the basic concept of justice and fair play. The Apex Court held that even though the case does not fall within the terms of Section 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution. In the case of Haryana State Industrial Development Corporation Ltd. (supra) the facts were that allotment of one acre of land was made by the Government to the Respondent. The said allotment was provisional with a stipulation that it would not give any legal right of allotment unless final allotment was made. Subsequently an offer regarding half acre of land was made due to some administrative difficulties wherein it was stated that with the offer as above, the case will be treated as closed thereafter and request for additional plot will be considered on submission of fresh application. The offer was accepted unconditionally by the Respondent and therefore the final allotment of half acre of land was made. The Respondent thereafter applied for the allotment of balance half acre, the Apex Court held that being accepted the allotment of half acre unconditionally, the allottee was estopped from claiming additional half acre of land. The said judgments therefore lay down the circumstances in which the rule of promissory estoppel becomes applicable. In fact in the instant case, it is the Respondent No.1 herein who stands to gain as apart from the flat allotted to her she has appropriated the master-bedroom of the flat of the Petitioner by attaching the same to her flat. The Petitioner is only claiming what is rightfully hers i.e. the master-bedroom she therefore cannot be estopped from claiming the same. The Petitioner is only claiming what is rightfully hers i.e. the master-bedroom she therefore cannot be estopped from claiming the same. The Petitioner is not claiming anything belonging to any other member. Hence there is no question of application of the principles of promissory estoppel as the Respondent No.1 cannot be said to have changed her position to her detriment. The Respondent No.1 would not be prejudiced in any manner as she would still retain the flat which is of the regular size allotted to her minus the master-bedroom with the attached toilet of the flat of the Petitioner. In fact by attaching the master-bedroom and the attached toilet of the flat of the Petitioner to her flat, the Respondent No.1 has a flat of 3 bedrooms admeasuring 950 sq.ft. In my view, therefore, the judgments cited (supra) by the learned counsel for the Respondent No.1 have no application in the facts of the present case. 21. In my view, the Co-operative Appellate Court had erred in holding against the Petitioner on the said ground for the reasons which are aforestated. The Co-operative Appellate Court ought to have seen that allotment of a smaller flat to the Petitioner by detaching the master-bedroom of her flat and attaching the same to the flat of the Respondent No.1 would be unjust, unfair, iniquitous and also results in discrimination between members interse, when all the other members have been allotted flats of equal size which were constructed in the building of the Society. 22. For the reasons aforestated, the impugned order passed by the Co-operative Appellate Court dated 17/11/2000 cannot be sustained and is therefore required to be quashed and set aside and is accordingly quashed and set aside, and resultantly the judgment and order dated 4/9/1999 passed in Case No.CC.I.809-84 of 1990 by the Co-operative Court No.1, Mumbai stands confirmed. The Respondent No.1, who is in possession of the master-bedroom with the attached toilet, is directed to hand over possession of the said master-bedroom with the attached toilet of Flat No.2B to the Petitioner herein by 30th November 2014. The Respondent No.1, who is in possession of the master-bedroom with the attached toilet, is directed to hand over possession of the said master-bedroom with the attached toilet of Flat No.2B to the Petitioner herein by 30th November 2014. Since the Respondent No.2 by Resolution dated 27/06/1982 has resolved that the parties should get their disputes resolved amicably or through Court, and since the Respondent No.2 in its Written Statement filed in the Dispute stated that it would abide by the decision that would be rendered by the Courts, the Respondent No.2 would see to it that the possession of the master-bedroom with the attached toilet of Flat No.2B is handed over to the Petitioner within the time as stipulated above. The above Petition is accordingly allowed. Rule is accordingly made absolute in the aforesaid terms with parties to bear their respective costs of the Petition.