Gujarat High Court
M/S G T Association A Non-Treading Asso vs Chaturbhuj Housing Pvt Ltd & 6 on 9 June, 2016
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/AO/480/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 480 of 2013
With
APPEAL FROM ORDER NO. 482 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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M/S G T ASSOCIATION A NON-TREADING ASSO.....Appellant(s)
Versus
CHATURBHUJ HOUSING PVT LTD & 6....Respondent(s)
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IDENTITY COMMUNICATION & 1....Appellant(s)
Versus
G T ASSOCIATION A NON -TRADING ASSOCIATION REGISTERED UNDER
& 5....Respondent(s)
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Appearance:
MR SUNIT SHAH, ADVOCATE with MR NV GANDHI, ADVOCATE for the
Appellant(s) No. 1 - 1.2
MR PINAKIN M RAVAL, ADVOCATE for the Appellant(s) No. 1 - 2
MR DEEP D VYAS, ADVOCATE for the Respondent(s) No. 7 in Appeal From
Order No.480 of 2013
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HC-NIC Page 1 of 14 Created On Fri Jun 10 21:38:52 IST 2016
C/AO/480/2013 CAV JUDGMENT
MS KALPANA RAWAL, ADVOCATE for the Respondent No.6 in Appeal From
Order No.482 of 2013
MR RS SANJANWALA, LD. Sr. ADVOCATE with MR JC VYAS, ADVOCATE
for the Respondent(s) No. 1 - 4 (in Appeal From Order No.480 of 2013) and for
the Respondent(s) No.2 to 5 (in Appeal From Order No.482 of 2013)
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 09/06/2016
CAV JUDGMENT
1. Both the Appeals arise out of the impugned order dated 18.11.2013 passed by the City Civil and Sessions Court, Ahmedabad (hereinafter referred to as "the trial Court") below Exh. 6/7 in Civil Suit No.2669/2011.
2. The Appeal being Appeal from Order No.480 of 2013 has been preferred by the appellants, who are the original plaintiffs, and the Appeal being Appeal from Order No.482 of 2013 has been preferred by the appellants, who are subsequently impleaded as the defendant Nos.5 and 6 in the suit.
3. The short facts giving rise to the present Appeals are that the appellant M/s. G. T. Association is a non-trading Corporation registered under the Bombay Non-Trading Corporations Act, 1959 (hereinafter referred to as "the Act"). The said Association through its two members has filed the suit against the respondents - defendants, seeking declaration, inter alia, that the permission obtained by the respondent Nos.1 to 4 - defendant Nos.1 to 4 for using the upper basement of the building known as Page 2 of 14 HC-NIC Page 2 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT "Golden Triangle" constructed on the Final Plot No.197/3, Town Planning Scheme No.3, District, Sub-district Ahmedabad, for commercial use was illegal and bad. The appellant Association has also prayed in the suit for mandatory injunction seeking direction against the respondent Nos.1 to 4 to demolish the shops constructed in the said upper basement, and for permanent injunction for restraining them from carrying out any construction therein and from transferring or assigning or parting with the possession of any part of the said upper basement. It has been alleged by the appellant Association, inter alia, that the Association had taken the said plot for its members from the Ahmedabad Municipal Corporation. After getting the necessary plans sanctioned from the Corporation, the building known as "Golden Triangle", having offices and shops, was constructed thereon by the developer M/s.Neha Properties Pvt. Ltd. According to the appellant Association, the said upper basement was initially reserved for parking space, however, the said M/s.Neha Properties Pvt. Ltd., had obtained the permission from the Municipal Corporation for using the said space for commercial purpose, after making payment of impact fee under the Gujarat Regularization of Unauthorized Development Act, 2001 (hereinafter referred to as "the Regularization Act"). It is further case of the appellant Association that the said upper basement was divided into 10 Units Page 3 of 14 HC-NIC Page 3 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT and allotted to one M/s.P.D. Mahansaria Enterprise and M/s.Sikkim Dealwell Traders Limited. The said M/s.P.D. Mahansaria Enterprise thereafter transferred the Unit Nos.1 to 4, and the said M/s.Sikkim Dealwell Traders Limited transferred the Unit Nos.5 to 10 in favour of the respondent Nos.1 to 4 in respect of which the Association did not have any record. However, the respondent Nos.1 to 4 Companies, which are being controlled by the members of one Single Group, were trying to make encroachment upon the common area, which was not transferred to them, and were trying to convert the upper basement into shopping complex by putting up construction of shops and hence, the suit was filed.
4. The appellant - plaintiff had also moved the Notice of Motion Exh.6/7, seeking temporary injunction pending the suit. The trial Court vide the order dated 30.11.2011 had granted ad- interim relief in terms of Paragraph 11(D) of the said Notice of Motion, which reads as under:-
"ÉÉ. (DI) : Aa kamna p/tIvadI Na.É $aI Ì naAo pote jate ke temna ma`so, nokro, AeejN3o, nokro, kulmuqTyar marfte davavalI imlkt ke je DIS§Ik3 sb- DIS§Ik3 Amdavadna taluke is3Ina moje xeqpur- qanpurna 3a]n Plain>g SkIm n.Ë na fa[nl Plo3 n>. ÉÑÏãË va5I jmIn ]pr ba>6vama> Aavel goLDn §ay>gl namna ibLDI>g ke je srdar p3el S3eiDym same Aavel 0e tena Apr bezmeN3ma> Aa kamna p/tIvadI Na.É $aI Ì ne fa5vel ke nhI> fa5vel JGya Amo vadI AesosIAexnnI leqIt pUvRprvangI vgr ko[p` ahIt {sm, VyiKt ke s>S4ane ko[p` p/kare §aNsfr, Aesa{n ke tbdIl kre, krave nhI> ke te imlktnae kbJo ko[p` ahItne {sm VyiKt ke s>S4ane so>pe, so>pave nhI> tevo davo calta su2I kamcla] Page 4 of 14 HC-NIC Page 4 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT mna{ hukm Amo vadIna lawma> t4a Aa kamna p/itvadIAo iv½µ frmavva Nyayna hItma> hukm krxo+."
5. The said ad-interim order was continued till the dismissal of the said Notice of Motion vide order dated 18.11.2013. It appears that while dismissing the said Notice of Motion, the said ad-interim relief was also continued by the trial Court up to 18.12.2013 to enable the appellant to approach this Court. On 17.12.2013, this Court passed the order for maintaining the status-quo, which order is continuing till this date.
6. Pending the present Appeals, the appellant had filed the Application being Civil Application No.13827 of 2014 under the Order XXVI Rule 9 and Order XXXIX Rule 2A of Civil Procedure Code (hereinafter referred to as "the Code"), seeking appointment of Commission to carry out local inspection of the suit premises, and for punishing the Director, Shri Dhavalbhai C. Patel of the respondent Nos.1 to 4 Companies for violating the order of status-quo passed by this Court, alleging, inter alia, that the respondent Nos.1 to 4 had damaged the construction of Cellar i.e. the upper basement by installing additional printing machineries with the help of crane. The respondent Nos.1 to 4 resisted the said application by filing affidavit-in-reply, to which the appellant had filed affidavit-in- rejoinder and the respondent Nos.1 to 4 had filed affidavit-in-sur-rejoinder. The appellant Page 5 of 14 HC-NIC Page 5 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT had also filed the Application being Civil Application No.4136 of 2016 when the arguments of the present Appeal from Orders were being heard, seeking direction to initiate punitive action against the respondent Nos.1 to 4 for committing willful disobedience and breach of order passed by this Court and seeking direction against the respondent Nos.1 to 4 to restore the position as existed earlier. The said application has been resisted by Shri Dhavalbhai C. Patel as the Director of the respondent Nos.1 to 4 by filing the affidavit-in-reply. The said two civil applications are also being decided by this common order.
7. It has been vehemently submitted by the learned Counsel Mr.Sunit Shah for the appellant Association that the respondent Corporation could not have granted the permission for using the parking space for commercial purpose as it was in violation of the provisions contained in the said Regularization Act. Placing heavy reliance upon the decision of the Supreme Court in the case of Esha Ekta Apartments Cooperative Housing Society Limited and Ors. Vs. Municipal Corporation of Mumbai and Ors., reported in (2013) 5 SCC 357, he submitted that the illegal construction cannot be regularized if it was against the larger interest of the public. He also relied upon the decision of this Court in the case of Vrajmoti Corporation Vs. Ambawadi Apartments' Owners Association & Ors., reported Page 6 of 14 HC-NIC Page 6 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT in 2012(2) GLH 654 to buttress his submission that the allottees of the building have the right of enjoyment for common amenities and facilities and the same cannot be deprived by the other members of the Association. Taking the Court to the other documents on record, more particularly the report of the Commissioner appointed by the trial Court and the affidavits filed on behalf of the respondent Nos.1 to 4, he submitted that the respondent Nos.1 to 4 have committed breach of injunction order passed by this Court by replacing the machineries of printing press and by transferring or allotting part of the suit premises to one Chirag Shah and others for running the shop of Air-conditioners. He also submitted that the said respondents had illegally closed the entire area by putting shutters, converting the same into shops.
8. However, the learned Sr. Counsel Mr.Rashesh Sanjanwala, relying upon various documents, more particularly the permission granted by the Corporation to M/s.Neha Construction to use the upper basement for commercial purpose and also on the documents, whereby the appellant Association had ratified the transfer of shares by M/s.P.D. Mahansaria Enterprise and M/s.Sikkim Dealwell Traders Limited in favour of the respondent Nos.1 to 4, and on the certificate issued by the appellant Association, permitting the respondent Nos.1 to 4 to carry on any legal commercial activity as permitted by the Corporation, has Page 7 of 14 HC-NIC Page 7 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT submitted that, the Association itself having permitted the respondent Nos.1 to 4 to use the upper basement for commercial activity, it does not lie in the mouth of the appellant to say that the said respondents were carrying on unauthorized activities. He also submitted that apart from the fact that the suit of the appellant Association suffers from delay, laches and acquiescence, the suit and the Appeal from Orders filed at the instance of the two members Shri Vishvajit N. Sharma and Vasantkumar Raghuvirprasad Modi were not maintainable, as the said two members had no authority to file the suit on behalf of the Association. Referring to the affidavits filed by the Director of the respondent Nos.1 to 4, as also the report of the Commissioner, he vehemently submitted that the suit premises i.e. upper basement was being used for running the printing press before the institution of the suit, and that a part of the said premises was also being used for running the Air-conditioner shop. He also submitted that the shutters were also put on the said premises right from the beginning as transpiring from the Commissioner's report and, therefore, there was no question of committing any breach of the order passed by this Court or by the trial Court as alleged by the appellant.
9. Having regard to the submissions made by the learned Counsel for the parties, and to the documents on record, more particularly the Page 8 of 14 HC-NIC Page 8 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT pleadings of the parties and the impugned order passed by the trial Court, it appears that the trial Court had initially granted an ad-interim injunction in terms of Paragraph 11(D) of the Notice of Motion, by which the respondent Nos.1 to 4 were, inter alia, restrained from transferring, assigning, or parting with the possession of the suit premises i.e. upper basement to any third party pending the Notice of Motion. The said ad-interim injunction was continued till the Notice of Motion was dismissed by the trial Court vide order dated 18.11.2013. As stated herein above thereafter this Court vide the order dated 18.12.2013 had directed the parties to maintain status-quo, which is continuing as on today. Now, the bone of contention raised by the appellants - plaintiffs in the suit is that the permission dated 23.7.2004 granted by the respondent Ahmedabad Municipal Corporation to M/s.Neha Properties Pvt. Ltd. i.e. the developer regularizing the unauthorized development and granting permission to use the upper basement area for commercial purpose instead of parking purpose was illegal and bad, however, there is no explanation coming forth from the appellants - plaintiffs as to why the said permission was not challenged since 2004 till the suit was filed in 2011. It further appears from the documents on record that the said upper basement was divided into 10 Units in the year 1990 and one M/s.P.D. Mahansaria Page 9 of 14 HC-NIC Page 9 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT Enterprise was allotted the unit numbers 1 to 4, admeasuring 8000 sq. ft., and one Sikkim Dealwell Traders Limited was allotted Unit numbers 5 to 10, admeasuring 12000 sq.ft., out of the said 10 Units. Accordingly share certificates were also issued to the said parties by the appellant Association. The said M/s.P.D. Mahansaria Enterprise further transferred Unit numbers 1 to 4 and the said M/s. Sikkim Dealwell Traders Limited transferred Unit Nos.6 to 10 in favour of the respondent Nos.1 to 4 in the year 2000. The said transfers were also ratified by the appellant Association, as per the endorsements made on the backside of the share certificates.
10. It further appears that since the said upper basement was required to be used for parking purpose as per the original sanctioned plans, the Municipal Corporation, at the instance of the developer M/s.Neha Properties Pvt. Ltd., had regularized such unauthorized development and permitted the upper basement to be used for commercial purpose as per the permission granted on 23.7.2004. Thereafter, the appellant Association itself had permitted the respondent Nos.1 to 4 to use the said 10 Units for carrying on legal commercial activity as permitted by the Corporation vide the said order dated 23.7.2004. The learned Counsel for the appellant has not been able to dispute these facts. In view of this undisputed position, it is too late in the light of the day for the appellant Association to Page 10 of 14 HC-NIC Page 10 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT challenge the said permission granted by the Corporation in the suit filed in the year 2011 and to say that the said permission was bad and the respondent Nos.1 to 4 could not have carried on commercial activities in the suit premises. In the opinion of the Court, the trial Court has rightly after appreciating the contentions raised by the parties, dismissed the Notice of Motion of the appellant on the ground that the suit of the appellants - plaintiffs itself was barred by delay, laches and acquiescence. In the facts and circumstances of the case, the judgements cited by the learned Counsel Mr.Shah are also not helpful to the case of the appellant.
11. As regards the breach of the order allegedly committed by the respondent Nos.1 to 4, the Director of respondent Nos.1 to 4 has filed detailed affidavits in Civil Application No.13265 of 2013 and Civil Application No.4136 of 2016 stating, inter alia, that he had not created any third party interest after passing of the order by the trial Court or this Court. He has stated inter alia that the two separate documents dated 17.2.2011 and 28.2.2011 were executed by the said respondents in favour of one Theo Printing, a partnership firm and one Finger Print, a proprietorship concern respectively for using part of the upper basement on licence basis. The said respondents had permitted Galaxy Offset to utilize one portion of the suit premises as the printing press on rental basis. He has also Page 11 of 14 HC-NIC Page 11 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT annexed the relevant documents in this regard as Annexure R-1 to R-3, from which it clearly transpires that a part of the suit premises was already being used for the purpose of printing press prior to the filing of the suit. From the affidavit-in-sur-rejoinder filed on behalf of the respondent Nos.1 to 4 also, it appears that another part of the suit premises was being used for storing the material of air-conditioners, prior to the institution of the suit, by Mr.Chirag Shah and Mr.Jiten Mashar, the Partners of M/s Triotech Systems, by way of permissive use. At this juncture, it is also required to be noted that even in the report of the Commissioner dated 1.12.2011 submitted before the trial Court, there is a mention about the shutters, about the machineries of printing press and about the air- conditioners lying in the part of the said suit premises. As against that the appellants have failed to point out as to how and when the order of status-quo passed by this Court was violated at the instance of the respondent Nos.1 to 4. It is needless to say that the party who alleges of disobedience or breach of order passed by the Court, has to clearly make out the case of breach or disobedience of the order, and the Court cannot hold the other party guilty drawing inferences and surmises. At this juncture, a very pertinent observations made by the Supreme Court in the case of Food Corporation of India Vs. Sukh Deo Prasad, reported in (2009) 5 SCC Page 12 of 14 HC-NIC Page 12 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT 665 may be reproduced, which read as under:-
"38. The power exercised by a court under order 39, Rule 2A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under order 39 Rule 2A, the court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the `order', on surmises suspicions and inferences. The power under Rule 2A should be exercised with great caution and responsibility."
12. In the instant case, the appellant having failed to prove beyond reasonable doubt that the respondent Nos.1 to 4 had committed breach of injunction order passed by this Court, the Civil Applications filed by the appellant in the present Appeals deserve to be dismissed and are accordingly dismissed.
13. The Appeals filed by the appellants, being devoid of merits for the reasons stated above, also deserve to be dismissed and are accordingly dismissed.
(BELA M. TRIVEDI, J.) Page 13 of 14 HC-NIC Page 13 of 14 Created On Fri Jun 10 21:38:52 IST 2016 C/AO/480/2013 CAV JUDGMENT FURTHER ORDER:-
At this juncture, the learned Counsel for the appellants requests to continue the interim order for a period of four weeks with a view to enable the appellants to approach the higher forum. The learned Counsel for the respondents has objected to such request. However, in view of the facts and circumstances of the case, the interim relief, which was continued during the pendency of the proceedings, is further continued up to 9.7.2016.
(BELA M. TRIVEDI, J.) vinod Page 14 of 14 HC-NIC Page 14 of 14 Created On Fri Jun 10 21:38:52 IST 2016