H I N D U STA N T I M E S , M U M B A I

M O N DAY, D EC E M B E R 1 4 , 2 0 0 9 | metro | 05

Two verdicts, too many issues

REDEVELOPMENT TANGLE Experts say order by HC’s division bench supersedes one given by single judge
HT Correspondent
■ htmetro@hindustantimes.com
MUMBAI: When a division bench
of the high court and a single
judge pass contrasting orders,
the ruling of the division bench
will prevail, according to legal
experts.
Last week, a single judge of
the Bombay High Court said
that “valid” objections of non-
consenting members, even if
they are in a minority, cannot
be ignored.
The judge had ruled that the
co-operative society can
approach the co-operative court
to take action against non-con-
senting members.
Later, on Thursday, a division
bench of the high court ruled
that a minority of non-con-
senting members cannot hold
up a redevelopment project of
a building approved at the
annual general meeting by a
majority of members.
The order was passed while
hearing an appeal filed by two
members of Harini Co-opera-
tive Housing Society — Girish
Mulchand Mehta and Durga
Jaishankar Mehta.
“The order of the division
bench supersedes that of the
single judge,” said advocate
Vinod Sampat, who practises
in the co-operative court. “Even
if some of the facts in cases are
different, it won’t matter.”
Senior advocate K.R. Belosay
said that even if the facts of each
case differ, the principle of
‘majority rules’ applies as laid
down by the Maharashtra Co-
operatives Act, 1960.
“The rule is one for all and
all for one. This can’t be violat-
ed,” said Belosay. “Whatever
has been decided by the gener-
al body of the housing society
is binding. You cannot let one
person hold up the entire proj-
ect.”
Divisional Joint Registrar
Mahendra Kalyankar, who is
the appellate authority in decid-
ing on expulsion of members,
refused to comment.
On May 7, 2008, Harini
Society in Ghatkopar (East)
entered into a redevelopment
agreement with M/s Suryakirti
Enterprises.
The Mehtas opposed the
redevelopment of the 45-year-
old building and were expelled
from the membership of the
society.
The builder invoked arbitra-
tion when the society failed to
ABOUT THE CASE
hand over the property. ■ In May 2008, Harini Society
A single judge of the high at Ghatkopar (E) entered into a
court ruled in the developer’s redevelopment agreement
favour and appointed a court which was opposed by two
receiver to take over possession society members — Girish
of Mehtas’ flats. Mehta and Durga Mehta. The
The Mehtas challenged this builder invoked arbitration.
before the division bench of the ■ A single judge of the high
high court. court ruled in the developer’s
The high court upheld the favour. The HC upheld the
order of the single judge saying order.
disapproval of minority ■ In a similar case last week, a
members could not be the single judge of the Bombay
basis to negate the decision High Court said “valid” objec-
of the general body unless it tions of non-consenting mem-
was a case of fraud or bers, even if they are in a
was against a statutory prohi- minority, cannot be ignored.
bition.

‘30 pc pending cases are

cheque-bouncing cases’
Karthik Balasubramanian
■ htmetro@hindustantimes.com
MUMBAI: Of the nearly 3 crore
pending court cases in India, 1
crore deal with cheque-bounc-
ing claims filed under section
138 of the Negotiable Instrument
Act.
This is what former justice of
Orissa High Court Bilal Nazki
said at the Tata Institute of
Social Sciences during a speech
on contemporary criminal jus-
tice and other judicial issues at
the National Consultation on
Criminal Justice Reforms.
“In Mumbai alone there are
4.5 lakh cases pending filed under
■ Barely a couple of hours after the 40-odd families residing in Bhendi Bazar’s 70-year-old Ahmedi section 138,” he said, “And I heard
Manzil were evacuated, the four-storeyed building came crashing down. HT PHOTO
that in Bangalore there was one
day where 75,000 cases were reg-
istered under section 138.”
Justice Nazki called cases
filed under section 138 “a rich
man’s litigation” as they are filed
by financial institutions like
banks and telephone companies
that did not have to pay any-
thing for the court’s services.
“Overloaded with such cases,
courts are unable to help the
country’s poor, who can’t afford
adequate judicial services
thanks to their poverty,” he said.
Justice Nazki suggested that
30 per cent of the suit filed go
to the court as fees for judicial
infrastructure, allowing courts
to attend to cases of the poor.

Narrow escape for 40

families in bldg crash
HT Correspondent
htmetro@hindustantimes.com
■
MUMBAI: They were lucky to get
a warning.
On Saturday night, just as the
40 or so families of Bhendi
Bazar’s Ahmedi Manzil were
getting ready to retire for the
night, the building 70-year-old
structure started experiencing
tremors.
Despite the panic that
gripped residents, they decid-
ed on the spot that to leave
hearth and home if they want-
ed to save their lives. The evac-
uation process which began on
Saturday night, ended only on
Sunday morning.
Around 3 pm, barely a cou-
ple of hours after evacuation, a
portion of the four-storeyed
building crashed.
There were no casualties.
“Our homes and our lives
turned to dust while we watched
helplessly,” said Shiraz Ahmed,
a resident. “But we’re thankful
to be alive.”
Five fire engines and an
ambulance rushed to the spot.
The area was cordoned off.
“A major mishap was avert-
ed as there was no one in the
building,” said Uday Tatkare,
chief fire officer. Another por-
tion of the structure came down
after two hours. This was more
Our homes have
turned to dust.
severe than the first one. “We
have started the process of We’re thankful
bringing down the entire struc-
ture.” to be alive.
“Two floors had been added SHIRAZ AHMED,
without permission and a large a resident
water tank was placed on the
upper storey which could have
led to the crash,” said a resident
who did not wish to be identi-
fied.
Ahmedi Manzil is currently
owned by the Maharashtra
Housing and Area Development
Authority and is in the list of
dangerous buildings.
There are 16,000 such struc-
tures in the city and there is
hardly any respite for them.
Officials of Brihanmumbai
Municipal Corporation and
Maharashtra Housing and Area
Development Authority visited
the spot.
The officials, however, found
it difficult to clear the debris
due to the narrow and con-
gested lanes in the area.
Due to the collapse, adjacent
buildings — Rehmat Manzil and
Tipwala Mala — also suffered
damages.
Residents of both these struc-
tures were evacuated from their
homes.

HC disapproves trial
court judge’s order
in murder case
HT Correspondent
■ htmetro@hindustantimes.com
MUMBAI: Disapproving of a trial
court’s sentence, the Bombay
High Court converted a murder
charge to culpable homicide not
amounting to murder.
“The judge appears to have
ignored or forgotten the provi-
sions of section 302 (murder),
while passing the judgment,”
said Justice J.H. Bhatia.
The case pertained to the mur-
der of a boy near a circus tent in
Borivli in 1998. The high court
was hearing an appeal filed by
the convict, Mohammad Ansari,
against his conviction in 2003.
Under the Indian Penal Code,
the minimum sentence that can
be awarded to a murder convict
is life imprisonment and a max-
imum of death sentence.
Culpable homicide not amount-
ing to murder invites a sentence
of 10 years.
Justice Bhatia while retain-
ing the sentence, converted
Ansari’s conviction to culpable
homicide not amounting to mur-
der, observing Ansari had no
intention to cause the death of
the victim, Uday Bagave.
“The learned additional ses-
sions judge, who passed the
order of conviction and sen-
tence, was quite a senior judi-
cial officer and was expected to
know that in case of conviction
for offence of murder under sec-
tion 302 of the IPC, only sen-
tence which could be awarded
is either death or life imprison-
ment,” said Justice Bhatia.
“There is no provision of
awarding a lesser imprisonment
under section 302. The judge
appears to have ignored or for-
gotten the provisions of section
302, while passing the judg-
ment,” the judge observed.

ABOUT THE MURDER CASE

■ Bihar residents Mohammad
Ansari and Ramashray Kuril were
part of a circus troupe in Borivli.
■ On December 1, 1998, some
boys were playing cricket near
the circus tent when their cricket
ball entered the circus tent. One
of the boys went in to fetch it, but
did not return for long.
■ When the others went looking
for their friend, they had an argu-
ment with the circus troupe
members. Ansari assaulted
Bagave.
■ Bagave was declared dead on
admission to hospital. Bagave’s
friend later lodged a complaint.
■ In 2003, the sessions court
convicted Ansari for 10 years for
Bagave’s murder.