Gujarat High Court
Shashikant Ghelabhai Maisuriya & vs Anandnagar Sahakari Ghar Mandali Ltd on 31 January, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/477/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 477 of 2017
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SHASHIKANT GHELABHAI MAISURIYA & 1....Petitioner(s) Versus ANANDNAGAR SAHAKARI GHAR MANDALI LTD.....Respondent(s) ========================================================== Appearance:
MR G.M. JOSHI WITH MS. KITTY S MEHTA, ADVOCATE for the Petitioner(s) No. 1 - 2 MR BAIJU JOSHI, ADVOCATE for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 31/01/2017 CAV ORDER The present petition is arising out of, and is addressed to order dated 30th December, 2016 of Gujarat State Cooperative Tribunal whereby the Tribunal, allowing the Revision Application No.71 of 2016, granted interim injunction to the respondent Cooperative Housing Society-the original plaintiff in the Lavad Suit, in terms of paragraph 7(1) and 7(2) of the Application Exh.5.
1.1 In Lavad Suit No.137 of 2006 instituted by Anandnagar Sahakari Ghar Mandli Limited-the respondent herein against the petitioner for the relief of declaration and permanent injunction, the interim prayers in two folds were prayed by the plaintiff in Exhibit 5 application. In paragraph 7(1) of the Exh.5 Page 1 of 9 HC-NIC Page 1 of 9 Created On Thu Feb 02 02:17:59 IST 2017 C/SCA/477/2017 CAV ORDER application, injunction was prayed for to restrain the defendants-petitioners herein to discontinue the business run by the defendants in the name of Maya Restaurant and Juice Center, at Unit Nos.6 and 7 in the said housing society. Another interim prayer was as prayed for in paragraph 7(2) in the injunction application which was to injunct the defendants from transferring the Plot Nos.6 and 7 whereon the business as aforesaid was run, further to restrain the defendants from getting the licence/ certificate, etc. renewed for the commercial purpose of the restaurant.
2 The Court of Board of Nominees as per its order dated 13th December, 2016 below Exh.5 had granted injunction in terms of para 7(2) of the injunction application whereas injunction prayed in terms of para 7(1) as above was refused. The Tribunal as per the impugned order also granted the part of the prayer which was not granted by the Board of Nominees.
3. Noticing the facts leading to the aforesaid proceedings in the present petition, the respondent society registered under the Gujarat Cooperative Societies Act, 1961 instituted Lavad Suit No.137 of 2016 against the petitioners. It appears that the respondent housing society has 96 units. The petitioner No.1-defendant No.1 happens to be the owner of unit Nos.6 and 7 of the society and a member of the society, whereas petitioner No.2 is a tenant of petitioner No.1 who also holds a power of attorney of the first petitioner. The first petitioner has been residing abroad.Page 2 of 9
HC-NIC Page 2 of 9 Created On Thu Feb 02 02:17:59 IST 2017 C/SCA/477/2017 CAV ORDER 3.1 It is the case of the society in its Lavad Suit that it is a tenants' society and the total land on which the units are situated is of the ownership of the society whereas the members are allowed in the capacity of tenants. Out of the plots on the land of the society, plot Nos.6 and 7 were given to the first petitioner member for the purpose of residence. It is stated that the Nagarpalika had approved residential plans in the year 2014 for construction of ground, first and second floor. It is the further case that the said member-defendant No.1 has not been residing in the said property and has put up certain illegal constructions at the place. It is stated that without prior permission of the society the property is transferred by way of lease to the second defendant who has been running commercial activity in the name of Maya Restaurant and Juice Parlour. As per the case which further proceeds, the second defendant has started a shop on the ground floor and on the first and second floor, restaurant business is commenced. It is the case that the conduct and the activity of the defendants has been in blatant breach of the bye-laws of the society which has generated nuisance and parking problems in the society. Use of the units as well as the transfer in favour of the second defendant, both are in breach of the bye-laws and amount to illegal acts, it is averred. It is further stated that a bogus certificate has been got created to make show that the society had permitted such use, for which the society has also filed a criminal complaint.
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3.2 The injunction application of the plaintiff
society was contested by the defendants who sought to deny the case. It was inter alia contended that the institution of the suit by the society was an instigated action, that the restaurant is run after permission from competent authorities and that other commercial and business enterprises are being run near to the restaurant of the defendants and in the area of society. It was contended that if the injunction to close the business would granted, it would put the defendants to serious hardships. The Board of Nominees initially granted ex-parte injunction on 17th October, 2016 against the transfer and alienation in terms of paragraph 7(2) of the injunction application which was confirmed on 13th February, 2016. Upon the order being carried in Revision Application by the society, the Tribunal granted the other part of relief by way of interim injunction during the pendency of the Lavad Suit, for the reasons recorded in the order.
4. Heard learned advocate Mr.Gautam Joshi with learned advocate Ms.Kitty Mehta for the petitioners and learned advocate Mr.Baiju Joshi for the respondent society.
4.1 It was submitted by learned advocate for the petitioners that the injunction granted by the Tribunal as the adverse consequence of stopping the activity going on since one year without obstruction and amounts to singling out one member for such treatment. It was submitted that at least for a period of one year society was within knowledge and therefore Page 4 of 9 HC-NIC Page 4 of 9 Created On Thu Feb 02 02:17:59 IST 2017 C/SCA/477/2017 CAV ORDER there was an acquiescence on part of the society. It was submitted that the Board of Nominees had passed reasoned order to refuse the part of the injunction which was, according to submission, granted wrongly by the Tribunal. In support of his submissions, learned advocate for the petitioners pressed into service decision of this Court in Sharadbhai Premji Rami vs Vishnubhai Natwarlal Patel being Special Civil Application No.470 of 2013 decided on 06th February, 2013.
4.2 On the other hand, learned advocate for the respondent society defending the order of injunction passed by the Tribunal submitted that it was a clear case of illegal construction put up on the land of the housing society and illegally using it for commercial purpose by member who was residing abroad and who had given away on lease the property for restaurant purpose. He submitted that the action was clearly in breach and the injunction was properly granted. He relied on the decision of this Court in Ambikanagar Cooperative Housing Society Limited vs State of Gujarat being Special Civil Application No.11343 of 2006 and allied petitions decided on 19th April, 2012, by relying on paragraphs 15 to 17 of the judgment so as to highlight the principle of law that a member of cooperative housing society who is allotted land/plot by a cooperative housing society governed by and under the provisions of the Gujarat Cooperative Societies Act, 1961 is not entitled to use or develop such plot for the purpose other than specified in the bye-laws and could not act contrary to the bye-laws and the Page 5 of 9 HC-NIC Page 5 of 9 Created On Thu Feb 02 02:17:59 IST 2017 C/SCA/477/2017 CAV ORDER rules and to raise construction of commercial in nature.
5. In the facts of the case it is not possible to dispute that the plaintiff society is a registered society for housing purpose. In that view, a member using the unit/plot of which he is a tenant in the scheme of the society, for commercial purpose, is without anything else could be viewed as impermissible act and conduct. Case of the plaintiff society is that the defendants started the restaurant business without seeking any permission of the society and by fabricating the document that the society had permitted such activity. The Tribunal considered by the bye-laws of the society in particular bye-law No.11(B), and held that in view of the said bye-law, the act on part of the defendants in part of starting commercial business without permission of the society was not liable to be acceptable in law.
5.1 The order of the Tribunal which contained detail discussion on factual count and took note of the principles of law held that running a commercial activity in the name and style of Maya Restaurant and Juice Center by the defendants in the premises of the housing society was a major violation. When the case of the society is that no permission was issued, when the conduct of the defendants was apparent of undertaking the restaurant business and commercial activity and looking to the bye-laws as considered by the Tribunal, the findings about existence of prima facie case, balance of convenience and legal injury Page 6 of 9 HC-NIC Page 6 of 9 Created On Thu Feb 02 02:17:59 IST 2017 C/SCA/477/2017 CAV ORDER could be said to be eminently just, legal and proper. The Tribunal in the facts and circumstances of the case was entirely justified in holding that a strong prima facie case coupled with balance of convenience was created for the plaintiff society to seek injunction against the defendants to restrain them from transferring the interest in the units-the property and also to injunct the defendants from carrying on the commercial activity of restaurant business.
5.2 The proposition would always underlined as correct that commercial use of the premise in a society which has residential object, could not be permitted. Such proposal clearly emanates from what is held as noted above, by this Court in Ambikanagar Cooperative Housing Society (supra). The decision in Sharadbhai Premji Rami (supra) stand true on its own fact and it does not lay down proposition that a member is permitted to use the premises for commercial purpose and running a restaurant and in the present case, the case is that the bye-laws has been thrown to wind and permission of the society was not obtained. It is true that this aspect has to be finally examined on evidence in course of the trial of the Lavad Suit, however the facts as obtained on record and discussed by the Tribunal, they do not offer any ground, much less a cogent ground to disentitle the society to have an interim injunction during the pendency of the Lavad Suit.
6. The order is an interim order passed during the pendency of the Lavad Suit. In addition to the Page 7 of 9 HC-NIC Page 7 of 9 Created On Thu Feb 02 02:17:59 IST 2017 C/SCA/477/2017 CAV ORDER nature of the order, which is also a relevant consideration for exercise of discretion to interfere, the findings recorded by the Tribunal as highlighted above are just and reasonable and they duly stem from the facts and materials on record considered by the Tribunal. The order of the Tribunal which granted injunction pending the Lavad Suit, could in no way be said to be perverse or unreasonable nor could it said to be based on an material error in consideration of materials on record.
6.1 Even otherwise, by very nature of the order the findings are not the final conclusion and they are to be tested and tried on evidence and the suit would be finally decided. An order of the interim injunction cannot decide the rights of the parties finally. The Lavad Suit would be decided in accordance with law and merits, and on the basis of evidence as may be led. All the contentions of both the sides would be remained open to be finally decided.
7. No case is made out, nor any ground was found to be existing to warrant interference in the impugned order dated 30th December, 2016 passed by the Gujarat State Cooperative Tribunal allowing the Revision Application No.71 of 2016. Petition stands dismissed. It is, however, observed that the Board of Nominees, Surat shall proceed with the Lavad Suit so as to decide the same expeditiously and preferable within a period of six months from the date of receipt of this order.
(N.V.ANJARIA, J.)
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FURTHER ORDER
At this stage, learned advocate Mr.G.M.
Joshi prays for grant of status quo for a period of four weeks.
In the facts of the case, request could not be exceeded and is hereby rejected.
(N.V.ANJARIA, J.) Anup Page 9 of 9 HC-NIC Page 9 of 9 Created On Thu Feb 02 02:17:59 IST 2017