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.

Vs.

.......APPELLANTS

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.