Bombay High Court · Judgment · 07.05.2021
The 2009 redevelopment directive under Section 79A is not mandatory
The Bombay High Court set aside an injunction obtained by a single member against a society’s redevelopment, holding that the general body is supreme, the majority binds the minority, and substantial compliance with the Section 79A directive is enough.
Key points
- The general body is supreme and the view of the majority binds the minority.
- Directives under Section 79A (the 2009 redevelopment directive) are not mandatory; substantial compliance is sufficient, and they do not bind third parties such as the developer.
- Democratic decisions of the general body are not to be displaced unless they are shown to be obtained by fraud or misrepresentation.
The facts
Abhanga Samata CHS in Malad had passed general body resolutions on redevelopment from 2015 onwards and signed a development agreement with a developer. A member admitted in 2020 filed a suit in the City Civil Court claiming that the arrangement was illegal, and obtained a temporary injunction stopping the redevelopment. The society appealed.
What the Court held
The Court allowed the appeal and set aside the injunction. Relying on earlier decisions, including Maya Developers and the cases it followed, it summarised the law: the general body is supreme; the majority view binds the minority; Section 79A directives are not mandatory and substantial compliance is enough; they do not bind third parties; and democratic decisions are not to be interfered with unless fraud or misrepresentation is shown. The trial court had not recorded findings on prima facie case, balance of convenience and irreparable loss, had overlooked vague pleadings and the absence of particulars of fraud, and had ignored that the resolutions since 2015 had never been challenged and had culminated in a development agreement. A request to stay the order was refused.
Why it matters
This is one of several Bombay High Court decisions that a single dissenting member cannot stall a redevelopment approved by the majority merely by alleging that the Section 79A procedure was not followed to the letter. Societies should still follow the directive as closely as they can, because serious departures or fraud can lead to a different result. Note that the 2009 directive was replaced by a revised directive in 2019.
Twenty-eight-page judgment in English. This page summarises the decision for general information; it is not a substitute for the full text and not legal advice. Check whether the decision has since been appealed, modified or overruled.
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