Cav Judgement
1. The petitions are arising out of the interim orders pending Lavad Suits before the learned Board of Nominee. Since the facts and issues in both the petitions are similar, they are heard and decided together finally at the admission stage with the consent of the learned advocates for the contesting parties.
2. Challenge made in both the petitions is to the orders dated 21.8.2013 passed by the Gujarat State Co-operative Tribunal ('the Tribunal' for short), whereby the Tribunal rejected two different revision applications preferred by the petitioners against the interim orders of injunction passed by the learned Board of Nominee in two different Lavad Suits preferred by the respondent No.1- the Co-operative Housing Society against the petitioners.
3. The facts in nutshell need to be referred for the purpose of deciding the petitions are as under:-
Respondent No.1 is a registered Co-operative Housing Society. The petitioners who purchased the plot Nos.4 and 1 respectively in the Society came to be inducted as members by the Society somewhere in the month of November 2006. It is their case that the Society issued No Objection Certificate to them for putting up commercial construction on their plots and based on such certificate, they got the plans sanctioned from the Ahmedabad Municipal Corporation for putting up the construction for commercial purpose. It is also their case that the plans put up before the Corporation for approval were signed by the Chairman of the society and based on approved plans, they started construction for commercial purpose. It is their further case that such construction was being carried on in the knowledge of respondent No.1 society, however the respondent No.1 Society filed Lavad Suits before the learned Board of Nominee on the ground that the petitioners are not entitled to put up any kind of commercial construction. In such suits, the respondent No.1 Society asked for interim injunction by filing applications at Exh.6 restraining the petitioners from making any kind of commercial construction and using the plots for commercial or any other purpose except the residential purpose and also from transferring, alienating or in anyway assigning the rights to anybody in the plots in question.
The leaned Board of Nominee allowed the said applications and passed orders for maintaining the status-quo in respect of the plots in question.
The above-said orders passed by the learned Board of Nominee were challenged by the petitioners by preferring revision applications before the Tribunal, which came to be allowed by the Tribunal and orders passed below Exh.6 by the learned Board of Nominee were set aside. The respondent No.1 Society challenged the said orders passed by the Tribunal before this Court by filing Special Civil Application Nos.8193 of 2008 and 576 of 2008 and this Court allowed those petitions with other petitions and remanded the matters to the Tribunal to decide the revision applications afresh in view of the observations made by this Court in its judgment. The petitioners challenged such orders of remand before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the S.L.P. with an observation that the Tribunal shall decide the revision applications without being influenced by the findings recorded by the learned Single Judge of the High Court in its judgment and order while remanding the matters to the Tribunal. The case of the petitioners is that the Tribunal still considered the observations made by this Court in earlier petitions and without independently considering the contentions raised by the petitioners rejected their revision applications by the impugned orders.
4. I have heard learned advocates for the parties.
5. Learned advocate Mr. Anshin Desai appearing for the petitioners submitted that there is no prohibition in the bye-laws of the society for making commercial construction on the plots in the Society. Mr. Desai submitted that since the petitioners were inducted as members of the society, they were entitled to develop the plots purchased by them and for that purpose, they asked for NOC of the society for putting up the commercial construction on the plots and the society through its Chairman granted such NOC to the petitioners. Mr. Desai submitted that the Chairman of the Society also signed the plans to be submitted to the Municipal Corporation for commercial construction and thereafter the plans were sanctioned by the Municipal Corporation, pursuant to which the construction for commercial building was commenced by the petitioners on the plots in question. Mr. Desai submitted that commencement of such construction for commercial purpose was though within the knowledge of the society, it did not raise any objection, however, after a period of one year, when the construction was about to be completed, the society filed the suits against the petitioners on the ground that the petitioners are not entitled to put up the commercial construction in the housing society. Mr. Desai submitted that the petitioners of first petition had in fact entered into Banakhat and transferred the possession to one Arihant Corporation which had started the commercial construction on the plot in question and said Arihant Corporation had put up entire construction. Mr. Desai submitted that the society has permitted the commercial construction on other plots. Mr. Desai submitted that since the plots in question on which the commercial constructions have been put up by the petitioners are abutting on the road, it is neither going to cause any hindrance or disturbance to the members of the society nor is contrary to the provisions of the GDCR. Mr. Desai submitted that since the order made by the learned Board of Nominee below Exh.6 was nonspeaking order, the Tribunal ought to have remanded the matter to the learned Board of Nominee by directing the learned Board of Nominee to deal with and decide all the contentions raised by the petitioners on merits instead of deciding such contentions by itself. Mr. Desai submitted that the Tribunal while deciding the revision applications of the petitioners have not followed three solemn principles, viz. balance of convenience, irreparable loss and prima facie case, for deciding the question about the grant of injunction.
5.1. Learned advocate Mr. Desai submitted that the Tribunal has seriously erred in not considering the important fact about the delay in filing the suits by respondent No.1 Society. Mr. Desai submitted that the delay on the part of the society in filing the suits dis-entitled the society from claiming any interim injunction against the petitioners as the petitioners had invested huge amount in putting up the commercial construction. Mr. Desai submitted that granting no objection to the petitioners, signing the plans for approval by the Corporation and delay in filing the suits against the petitioners would amount to acquiescence and waiver on the part of the society to raise any objection against the commercial construction put up by the petitioners. Mr. Desai submitted that the Tribunal has seriously erred in observing that the commercial construction is not permissible under the bye-laws of the society. Mr. Desai submitted that in absence of any prohibition for putting up the commercial construction, the Tribunal was not justified in rejecting the revision application. Mr. Desai submitted that the byelaws of the Society have no overriding effect on the GDCR as also on the provisions of the Corporation Act and therefore, once the plans passed by the Corporation are in consonance with the GDCR and the provisions of the Corporation Act and once there is no specific prohibition in the bye-laws to put up commercial construction on the plots of the society, the Tribunal is not right in observing that since the bye-laws provide only for residential construction, there is no question of making any negative provision in the bye-laws against putting up commercial construction. Mr. Desai submitted that by virtue of the observations made by the Hon'ble Supreme Court to the effect that the Tribunal shall decide the revision applications without being influenced by the observations made by this Court in the orders made in earlier petitions, the Tribunal was required to decide the revision applications independently without being influenced by the observations made by this Court earlier. Still however, the Tribunal has considered the earlier observations and rejected the revision applications filed by the petitioners. Mr. Desai therefore, urged to remand the matters either to the Tribunal or to the Board of Nominee as the learned Board of Nominee has not provided any reason while deciding the applications Exh.6. Mr. Desai submitted that since the petitioners have put up the entire construction and now only finishing touch is required to be given to the buildings, the petitioners may be permitted to complete the construction of the buildings as the petitioners would agree for not using the buildings for any purpose till the suits are decided, especially considering the huge investment made by the petitioners and the suits may also be directed to be disposed of at the earliest.
5.2. Learned advocate Mr. Desai has relied on the following decisions:-
(1) In the case of Co-operative Central Bank Ltd. And others Vs. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and others reported in AIR 1970 SC 245
(2) In the decision of this Court dated 21.1.1999 in the case of Shrenik Cooperative Housing Society Ltd. Vs. A.M.C. in Special Civil Application No.8438 of 1998
(3) In the decision dated 13.12.2004 of this Court in Special Civil Application No.15555 of 2004
(4) In the case of Hardesh Ores (P) Ltd. Vs. Timblo Minerals (P) Ltd. And others reported in (2004)4 SCC 64
(5) In the case of Shivnagar Co-operative Housing Society Ltd. Vs. State of Gujarat and others reported in 2006(2) GLH 444
(6) In the case of Kewal Kishan Gupta Vs. J and K Special Tribunal and others reported in (2005)7 SCC 110
(7) In the case of Amey Coop. Housing Society Ltd. Vs. Public Concern for Governance Trust and others reported in (2007)4 SCC 635
(8) In the case of Greater Kailash Part II Welfare Association and others Vs. DLF Universal Ltd. And others reported in (2007)6 SCC 448
(9) In the case of Mandali Ranganna and others Vs. T. Ramachandra and others reported in AIR 2008 SC 2291
(10) In the case of Mandali Ranganna and others Vs. T. Ramachandra and others reported in (2008)11 SCC 1
(11) In the decision of this Court dated 29.06.2009 in Letters Patent Appeal No.344 of 2009 in the case of The Swastik Cooperative Housing Society Ltd. Vs. Ahmedabad Municipal Corporation
(12) In the case of Kishorsinh Ratansinh Jadeja Vs. Maruti Corporation and others reported in (2009)11 SCC 229
(13) In the case of ECE Industries Limited (2) Vs. S.P. Real Estate Developers Private Limited and Another reported in (2009)12 SCC 776
(14) In the case of Jalaram Developers, Through Partner, Bhikhabhai Virajbhai Vs. Nilaben Mahendrakumar Vaidya and others reported in 2010(1) GLH 354
(15) In the case of M. Supraschand and others Vs. C.Dhandapani and others reported in (2010)15 SCC 735.
6. As against the above arguments, learned senior advocate Mr. Mihir Joshi appearing with learned advocate Mr. P.A. Medh for respondent No.1 society submitted that the whole conduct of the petitioners right from the day of purchase of the plots in question is dishonest and to cheat the society. Mr. Joshi submitted that though the petitioners knew that the respondent No.1 society is a housing society and no commercial construction is permissible, still only with an intention to develop the plots for commercial activities, the petitioners purchased the plots. Mr. Joshi submitted that the society would not permit any commercial construction on its plots contrary to the bye-laws of the society and in fact, the society has not permitted the petitioners to put up any commercial construction, but the petitioners in collusion with the ex-chairman put up the plans before the Corporation for commercial construction and started putting up commercial construction without permission of the society. Mr. Joshi submitted that the Tribunal has rightly observed that NOC on which the petitioners have placed reliance does not contain the names of the petitioners, has no outward number of the society and it has no seal or stamp of the society, and is also not for putting up any commercial construction.
6.1. Learned senior advocate Mr. Joshi submitted that the respondent No.1 society is purely a housing society and each member is entitled to have tenement on the plot of the society. Therefore, permitting to put up any commercial construction on the plot of such society was out of question as the same would work against the very object of the society.
6.2. Learned senior advocate Mr. Joshi submitted that in any case the society has not given no objection certificate to the petitioners for putting up the commercial construction nor even it has passed resolution authorizing the Chairman to sign the plans of the petitioners for commercial construction on their plots.
6.3. Learned senior advocate Mr. Joshi submitted that the petitioners are developers who cannot be permitted to develop plots in the housing society for any commercial activity. Mr. Joshi has drawn the attention of the Court to the notification dated 20.7.1982 prohibiting the class of persons including the developers and contractors to be the members of the society.
6.4. Learned senior advocate Mr. Joshi submitted that the byelaws of the society clearly provide for holding tenement by each member of the society for dwelling purpose and even no change in the construction of the house in the society is permitted without permission of the society.
6.5. Learned senior advocate Mr. Joshi submitted that it is not correct that there is delay on the part of the society in filing the suits against the petitioners. Mr. Joshi submitted that behind the back of the society, only with signature of the Chairman, the petitioners got the plans for commercial construction approved from the Corporation and based on such plans, when the petitioners started digging activities on the plots, the society filed suits. Mr. Joshi submitted that even after the learned Board of Nominee passed the order of status-quo, the petitioners continued their activities of putting up the construction for which the society complained about the breach of the injunction and therefore, the petitioners are not entitled to take the plea of delay, acquiescence and waiver against the respondent No.1 society.
6.6. Learned senior advocate Mr. Joshi submitted that only the member in the society is entitled to hold tenement. If the petitioners are permitted to put up the commercial construction and allot different blocks in such construction to different persons, such persons though will not be entitled to become members of the society, still, shall share common interest with the society members, which will be against the basic objects of the housing society and contrary to the bye-laws of the respondent No.1 society.
6.7. Learned senior advocate Mr. Joshi submitted that the petitioners have put up the commercial construction at their own risk and cost and if such commercial construction is contrary to the bye-laws of the housing society, the petitioners cannot be permitted to contend that since they have put up the construction, the balance of convenience is in their favour.
6.8. Learned senior advocate Mr. Joshi submitted that in the facts of the case, the Tribunal has rightly rejected the revision applications filed by the petitioners and this Court while exercising the powers under Article 226 of the Constitution of India for issuance of writ of certiorari, has got a very limited jurisdiction and such limited jurisdiction is not called for to be exercised in favour of the petitioners who are not only responsible to act contrary to the objects of the society but also continued with the commercial construction even after the learned Board of Nominee granted the order of status-quo.
6.9. Learned senior advocate Mr. Joshi submitted that after the matters were remanded by this Court, the Tribunal having independently decided the revision applications without being influenced by the observations made by this Court as directed by the Hon'ble Supreme Court, this Court may not interfere with the orders passed by the Tribunal in exercise of powers under Articles 226 and 227 of the Constitution of India. Mr. Joshi thus urged to dismiss the petitions.
6.10. Learned senior advocate Mr. Joshi has relied on the following decision:-
(1) In the case of Sant Lal Gupta and others Vs. Modern Cooperative Group Housing Society Limited and others reported in (2010)13 SCC 336.
7. Having heard learned advocates for the parties and having perused the record of the case, it prima facie appears that the object of respondent No.1 society is primarily to permit its members to have dwelling house. Each tenant- member is required to comply with the terms of the bye-laws for his/her tenement. Byelaw No.66 specifically provides that no dwelling offered on lease shall be taken by persons who are not members of the society unless no member is willing to take it. Bye-law provides for activities to be undertaken by the society for houses of its members. Bye-laws also provide for powers of the Managing Committee of the society. It thus prima facie appears that the members are allowed to hold tenement in the society for dwelling purpose.
8. Bye-law No.80 provides for alteration of bye-laws by resolution passed by not less than two-third members present and voting in the general meeting to be approved ultimately by the Registrar.
9. It is required to be noted that there is no specific provision in the bye-law for permitting any of the members of the society to put up commercial construction. Learned advocate Mr. Desai for the petitioners however submitted that since there is no prohibition in the bye-law against putting up the commercial construction, use of the plots of the society will be governed by the GDCR and the provisions of the Corporation Act as per which the commercial construction is permissible on the plot of the society. Such contention of learned advocate Mr. Desai cannot be accepted for the simple reason that what is required to be considered is the intent and purpose contained in the bye-laws. Prima facie, it appears from the bye-laws that respondent No.1 society was incorporated to provide houses to its members. Therefore, every member of the society is well aware that he or she holds tenement as a house or dwelling unit to reside therein. Therefore, absence of prohibition in the bye-laws against making of commercial construction on the plot of the society, could not be taken as a permission for raising commercial construction on the plots of the society which the society never provided for in the bye-laws.
10. Paramount consideration is always the interest of the society having regard to its bye-laws. What is in the interest of the society is primarily alone for the society to decide. Even the Registrar, without there being any proposal for amendment by society to incorporate provision for commercial construction in the bye-laws, will not be empowered to order amendment for such provision in the bye-laws. Section 14 of the Gujarat Co-operative Societies Act provides that if it appears to the Registrar that an amendment of the bye-laws, except in respect of the name and object of a society is necessary or desirable in respect of the society, he may call upon the society to make amendment. Thus, in respect of the name and object of the society, even the Registrar has no power to direct amendment in the bye-laws. Thus original object of the society is given due importance.
11. In above view of the matter and in the context of the provisions of the Act, the Chairman had no authority to sign the plans for commercial construction contrary to the bye-laws of the society, especially when there was no decision by the society in its meeting. If the signing of the plans by the Chairman is to be taken as permission for commercial construction, it would not only be contrary to the Act and the bye-law but would also amount to altering the bye-laws without the decision by the society in its meeting by two-third majority and without there being any approval by the Registrar under the provisions of Section 13 of the Co-operative Societies Act.
12. As it appears from the order of the Tribunal, the Tribunal has independently examined the NOC and question of permitting the commercial construction in absence of the provision in the byelaws. The Tribunal has found that the NOC could not be read for the petitioners and also for putting up the commercial construction and has rightly rejected the contention raised on behalf of the petitioners that in absence of prohibition for commercial construction in the bye-laws, plan could be sanctioned as per the provisions of the GDCR and under the provisions of the Corporation Act.
12.1. In the case of Co-operative Central Bank Ltd. (supra), the Honble Supreme Court has held and observed that the byelaws of the Co-operative Society framed in pursuance of the Act cannot be held to be the law. However, the Honble Supreme Court has further observed that such bye-laws may be binding between the persons affected by them but they do not have force of the Statute.
12.2. In the decision of this Court dated 21.1.1999 in the case of Shrenik Cooperative Housing Society Ltd. (supra), the Court found that the Chairman who was objecting the commercial construction, himself developed his plot for commercial purpose and such fact was not disclosed by the Chairman in his petition and in such circumstances, the Court refused to grant any relief against development of the plot for commercial construction.
12.3. In the decision dated 13.12.2004 of this Court in Special Civil Application No.15555 of 2004 (supra), since the Court reading the bye-laws prima facie found that discretion was with the society to grant commercial permission, the Court declined injunction against the commercial construction.
12.4. In the case of Hardesh Ores (P) Ltd. (supra), new contractor who was given the working of mine was sought to be prevented by interim injunction to continue the mining work. The Honble Supreme Court in the facts of the case found that the new contractor had already commenced mining operations and entered into onerous business commitments and on considering the comparative merits of the case held that the High Court ought not to have passed unconditional order of temporary injunction by ignoring the huge investments made by the old contractor under its contract.
12.5. In the case of Shivnagar Co-operative Housing Society Ltd. (supra), the Court found that the Chief Officer of the Municipality since had considered to regularize the construction which was legally permissible under the Act and the bye-laws, demolition of such construction could be permitted only when the breach of any provision of the Act or the bye-laws was found. In the facts of the case, the Court found that the Collector was not justified in issuing the communication to the Municipality without determining whether the construction was in conflict with the Rules and Regulations governing the construction. In such fact situation, it was left to the Chief Officer to decide whether the construction could be regularized or not.
12.6. In the case of Kewal Kishan Gupta (supra), the Municipality was demolishing the unauthorized construction on the ground that it was in violation of the sanctioned building plan. Honble Supreme Court found that since the area wherein the construction had come up was forming part of the mixed zone, having commercial and other uses, it interfered with the decision taken by the High Court in directing demolition of the offending structure.
12.7. In the case of Amey Coop. Housing Society Ltd. (supra), Public Interest Litigation was filed against allotment of plots to the Co-operative Societies, where Honble Supreme Court found that several floors were constructed by the societies after incurring heavy expenditure and in such circumstances, the Court ordered to lift the injunction against the society on getting valuation effected.
12.8. In the case of Greater Kailash Part II Welfare Association (supra), Honble Supreme Court was not called upon to examine the issue about permitting the commercial construction in the housing society. In the said case, the construction was not being permitted on consideration the implication of traffic flow in the vicinity of the plot. However, the Court found that the concerned authorities issuing development permission were the best authorities to consider such aspect of the matter and therefore, the Court did not interfere with the grant of sanction for change of use.
12.9. In the case of Mandali Ranganna reported in AIR 2008 SC 2291 (supra), Honble Supreme Court found that the respondents therein had spent huge amount on the construction of the property, therefore, directed not to demolish the property.
12.10. In the case of Mandali Ranganna reported in (2008)11 SCC 1 (supra), the dispute was for division of the family properties and the suit for partition was filed. Honble Supreme Court found that huge constructions were made by the respondents and after long lapse of time, the suit was filed. In such circumstances, the Court refused to grant injunction restraining the respondents from raising construction on the suit property and from transferring the suit property.
12.11. In the decision of this Court dated 29.06.2009 in Letters Patent Appeal No.344 of 2009 (supra), the Honble Division Bench was not considering the issue similar to the issue arisen in the present case but it was a case where the Co-operative Society was objecting to develop the plot without leaving the margin. The Court found that the construction which was being put on the plot of the Society was according to the plans for raising construction on the plot and the building will have open margin on all sides in accordance with the GDCR. The Court found that the only side of the common wall will have the construction for which the Society had permitted to another plot holder. In such fact situation, the Court dismissed the appeal of the Society.
12.12. In the case of Kishorsinh Ratansinh Jadeja (supra), the Honble Supreme Court considering the conduct of the land developer of his sleeping over the matter of development for 19 years held that the High Court ought not to have granted injunction against the purchaser from making construction.
12.13. In the case of ECE Industries Limited (2) (supra), Honble Supreme Court found that substantial construction on the suit land was made in alleged breach of the development agreement. The Court ordering the defendants not to claim equity over the construction, granted relief for construction of the property.
12.14. In the case of Jalaram Developers (supra), the Court found that the plaintiff had challenged the registered sale deed but remained silent about the development agreement. The defendants had made huge investment on the suit property. It was further found that the possession was already transferred and third partys rights were created. In such fact situation, the Court permitted the developer to carry out the remaining construction.
12.15. In the case of M. Supraschand (supra), Honble Supreme Court was not called upon to decide the question about permitting the commercial construction in residential society. In the said case, since the Court found that 90% of the shops constructed were sold and vendees were put into possession, the Court permitted to sell remaining built up portion of the property.
13. All the above decisions relied on by learned advocate Mr. Desai for the petitioners will have no application to the facts of the case. In the case on hand, the petitioners want to complete the construction by lifting the injunction order irrespective of the complaint made on behalf of the respondent No.1 society that the petitioners carried on the construction in contravention of the byelaws of the society and in breach of the injunction granted by the learned Board of Nominee. The say of the petitioners is that the construction was on the verge of completion in the year 2008 when the suits were filed. However, by now, more than four years have passed and the position as was prevailing in 2008 has continued to prevail as on today. Though learned advocate Mr. Desai submitted that the petitioners are not responsible for such delay but this Court prima facie finding no case in favour of the petitioners, the petitioners cannot be permitted to complete the construction and making them to take a plea of equity at the time of final hearing of the suits. This Court prima facie finds that the commercial construction put up by the petitioners is not supported by the decision of the society and not in consonance with the bye-laws. This Court finds that the Tribunal has sufficiently dealt with the main contentions raised on behalf of the petitioners while exercising the revisional jurisdiction to decide the question of interim injunction. In this view of the matter, there is no need either to remand the matters to the Tribunal or to the learned Board of Nominee.
14. In the case of Sant Lal Gupta (supra), the Honble Supreme Court has held and observed in para 28 as under:-
œ28. The High court ought to have considered that it was a writ of certiorari and it was not dealing with an appeal. The writ of certiorari under Article 226 of the Constitution can be issued only when there is a failure of justice and it cannot be issued merely because it may be legally permissible to do so. There must be an error apparent on the face of record as the High Court acts merely in a supervisory capacity. An error apparent on the face of the record means an error which strikes one on mere looking and does not need long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. Such errors may include the giving of reasons that are bad in law or inconsistent, unintelligible or inadequate. It may also 16 include the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence. Such a writ can be issued when there is an error in jurisdiction or authority whose order is to be reviewed has acted without jurisdiction or in excess of its jurisdiction or has failed to act. While issuing the Writ of Certiorari, the order under challenge should not undergo scrutiny of an appellate court. It is obligatory on the part of the petitioner to show that a jurisdictional error has been committed by the Statutory Authorities. There must be the breach of principles of natural justice for resorting to such a course.?
15. In light of above and for the reasons stated above, the petitions are dismissed.