Gujarat High Court
Ashokbhai Hasmukhlal Maniyar vs State Of Gujarat on 6 May, 2024
NEUTRAL CITATION
C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16579 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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ASHOKBHAI HASMUKHLAL MANIYAR & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MEHUL S SHAH, SENIOR ADVOCATE WITH DR VENUGOPAL H
PATEL(7411) for the Petitioner(s) No. 1,2
MR SHIVAM DIXIT, AGP for the Respondent(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2,3
MR APURVA R KAPADIA(5012) for the Respondent(s) No. 4
MR DHAVAL DAVE, SENIOR ADVOCATE WITH MR MRUGEN K
PUROHIT(1224) for the Respondent(s) No. 5,6
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 06/05/2024
ORAL JUDGMENT
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1. It is mentioned during the course of arguments that the petitioner no.1 has shown willingness to withdraw this petition vide communication dated 18.4.2024 and the same has been forwarded with forwarding letter of the advocate-on-record to registry of this Court. Permission as prayed for is granted. This petition is disposed of as withdrawn. Therefore, now the petition is pending qua petitioner no.2 only.
2. This petition is filed for the following prayers:
"(A) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside Rajachitthi (Commencement Letter) dated 21.06.2022 bearing No.06450/110522/A6084/RO/M1 as well as impugned order dated 4.5.2022 passed by Respondent No.2 Corporation, at Annexure-A Colly to this petition.
(B) Pending hearing and final disposal of the petition, the Hon'ble Court may be pleased to stay the Operation, Execution and Implementation of Rajachitthi (Commencement Letter) Dated 21.06.2022 bearing No. 06450/110522/A6084/RO/ M1 by Respondent No.2 Corporation, at Annexure-A colly to this petition.
(C) xxxxx"Page 2 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024
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3. The brief facts leading to filing of this petition, as stated in the memo of the petition are such that the petitioners are the owners and occupiers of the flat no.B/4 and I/2 of the New Ashiyana Apartment floated within New Ashiyana Cooperative Housing Society Limited admeasuring about 3634 sq.mtrs of old tenure of sub plot no.2, final plot no.511 and TPS No.28 (nava wadaj); that the respondent no.4 society is a registered society under the Gujarat Cooperative Societies Act and total 66 flats are constructed and the petitioners are members of the respondent no.4-society; that due to the difference of opinion of some of the members with regard to redevelopment and/or new construction, the present dispute arise and as of now, majority of the flats have been pulled down and to construct a new building, respondent no.4 society has put forward the proposal for passing of plans on behalf of the builder and/or developer in the year 2019, and this very fact is reflecting in the order in the submission of the builder/developer; that on 16.12.2020, certain members have objected to the said proposal and by order dated 16.12.2020, the respondent no.3-corporation has rejected the stand of the society and builder/developer, and accepted the objections of the members; that once again the proposal has been put for the development permission over the said land, but this time, the respondent no.4-society has asked for the same; that the other members and petitioners have submitted Page 3 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined objection application dated 21.5.2021 against the granting of development permission and the respondent no.3 has not considered the objection application of the petitioners nor the petitioners were given opportunity of being heard and has passed order rejecting the objection applications preferred by other members vide order dated 8.7.2021; that being aggrieved by the said order, the petitioners challenged the same by way of Special Civil Application No.12970 of 2021 wherein notice was issued vide order dated 14.9.2021; by way of affidavit-in-reply dated 26.11.2021, it was stated that the impugned order dated 8.7.2021 was cancelled by respondent no.2-corporation and hence petition was disposed of as having become infructuous; that the petitioners and other objections came to know that once again, the respondent nos.4 and 5 have put forward proposal for passing of development plans and objections applications were again filed to the respondent no.2-corporation; that by virtue of communication dated 15.2.2022, the respondent corporation has called the petitioner no.1 but there is no response of the corporation; that under RTI information dated 27.5.2022, the petitioner no.1 was informed that no final order has been passed by the corporation with regard to passing of the plans in pursuant to the hearing dated 22.2.2022; that number of RTI applications have been made by different members/objectors seeking information with regard to passing of the plans and Page 4 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined in response to one of the same, on 21.7.2022, the respondent corporation has provided the copy of the impugned Rajachitti and order dated 4.5.2022 and no response are received till date qua other RTI applications; hence, this petition is filed.
4. Heard learned advocates for the parties.
4.1 Learned senior advocate Mr.Shah for the petitioners has submitted that the corporation cannot sit in appeal on its own order and without change of circumstances, the corporation cannot act at its own wish and wisdom and the corporation cannot act arbitrarily; that the corporation vide letter dated 27.5.2022, the corporation denies that no order has been passed and actually without any decision of order, corporation has proceeded ahead to grant the development permission to the respondent builder/developer herein, which is enough to demonstrate the collusion of the corporation officers with respondent builder/developer; that majority of the flats are purchased by Dhara developers and as per Section 29 of the Gujarat Cooperative Societies Act, one person cannot hold more than 1/5th of total share capital of society other than the government; that no resolution of the society in this regard has been placed on record and no annual general meeting has been called after filing of the present petition; that the builder has taken stand before the Page 5 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined corporation that it is `outright sale' and not redevelopment, hence any argument of the respondent on the concept of redevelopment would not stand in this present petition; that the very fact that majority of the members cannot take away the ownership/possession of the property from minority; that the petition is with regard to challenge of development permission only and hence other litigations are not in the present purview of the prayers of the present petition and therefore the said argument of suppression of facts is not tenable; that there is no express provision either under the Town Planning Act or under the Gujarat Provincial Municipal Corporation Act to challenge the development permission and therefore there is no alternate remedy and the present petition along is maintainable; that with regard to waiver of rights, the objectors have never waived or foregone their rights and in fact, they have objected wherever is permissible; that the resolution of the society of 2014 is with regard to the Bansari realty and the present developer came into picture only in 2019 and without any advertisement, following any generalized procedure even, respondent developer has been entrusted the project vide resolution no.6 alleged to have been passed on 20.1.2019; that in fact, the society has passed resolution no.10 in the meeting dated 3.9.2017, whereby it is specifically resolved that sale of society procedure could be advanced only when each and Page 6 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined every member gives his consent and in the present case, the objectors have not given their consent for outright sale/development to the respondent builder.
4.2 In support of his submissions, he has relied on the following citations:
1. M/s Shreeji Developers V/s State of Gujarat passed in Special Civil Application No.9584 of 2022.
2. Sujal Leasing and Finance Limited V/s Pathal Ganga Tube Well reported in 1998(2) GLH (UJ) 1, paragraph 5.
3. Bhupatlal Govindji V/s Bhanumati Dayalal reported in (1983) 24(2) GLR 1137, paragraphs 8 to 10.
4. Savjibhai Korat Trust through Trustee Jasumatiben Savjibhai Korat passed in SCA No.15508 of 2013, paragraphs 18 to 25.
5. Salim Ahmed Mathada V/s Aminabai Hussein Bela reported in 1995(2) GLH (UJ) 22
6. Bhanubhai Mohanlal Bhatt and Another V/s M/s Vinayak Developers, Bhuj through its partners reported in 1996(1) GLH(UJ) 28
7. AIR 2009 SC 1032, paragraph 14.
8. V.O.John v/s Catholic Syrian Bank Ltd. And Ors., reported in ILR 2009(1) Kerala 596
9. State of Gujarat V/s Mangubhai Kikabhai Halpati through Page 7 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined heirs and legal representatives reported in 1999(3) GLR 2732, paragraphs 8 to 10.
10. Sarojben Kiritbhai Shah since deceased through heirs V/s Ahmedabad Municipal Corporation passed in LPA No.1075 of 2022, paragraph 52.
11. Municipal Corporation of Delhi V/s R.P.Khaitan reported in 1990(0) AIJEL-SC 18435, paragraph 4.
12. Smt.Wangkhem Ningol Pheiroijam Ongbi Nupimacha Devi and Others V/s Kshetrimayum Kulla Singh and another, reported in AIR 1987 Gauhati-16, paragraphs 9 to 12.
5. Per contra, learned senior advocate Mr.Dhaval Dave with Mr.Purohit for the respondent nos.5 to 6 have prayed to reject the petition on the grounds that the petitioner has no locus to challenge the development permission since she has signed and consented to it; that she has signed various resolutions, given her consent and waived her right to raise objections; that the petitioner has suppressed material facts relating to the developer's proposal, proceedings before the Board of Nominees; that the individual who become members of the society lose independent rights except those that are given to them by statute and the bye-
laws; that if the petitioner had any issues with the resolutions passed by the society regarding redevelopment, she ought to have challenged the same before the appropriate Page 8 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined forum in a timely manner; that the administrative decisions like granting of development permission by AMC are subject to judicial review before this Court only on the ground of perversity, patent illegality, irrationality, want of power to take decision and procedural irregularity; the impugned order does not suffer from such infirmities; referring to the various provisions of the Gujarat Development Control Regulations, (GDCR) 2017, learned senior advocate has submitted that if the appellate authority has limited jurisdiction to consider the decision of grant/refusal to grant the development permission, the same cannot be expanded in writ jurisdiction; that the grant/refusal of the development permission is an administrative action and it is not a quasi-judicial function of the competent authority; that it does not decide the ownership rights, easement rights of any other right, title or interest in the building unit for which the building is proposed; that the statutory alternative remedy is available under the law and therefore the petition may not be entertained by this Court; that the right to raise the objections of the petitioners was turned down by the AMC while passing the previous order dated 8.7.2021 and the challenge to the said order in the form of petition was withdrawn without any clarification; that the AMC can always reconsider/review its administrative decisions such as grant of development permission under GDCR subject to Page 9 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined fulfilling of their requirement; that the petition has become infructuous inasmuch as the construction has commenced and developmental permission has already been acted upon; that the redevelopment project does fulfil all the requirement which are mandatory under the law namely the building was more than 25 years old and in dilapidated condition and consent of more than 75% of the members. Thus, he prayed to dismiss this petition.
5.1 In support of his submissions, the following citations are relied upon:
1. Union of India V/s Susaka Private Limited and Others, reported in 2018(2) SCC 182.
2. Pravesh Kumar Sachdeva V/s State of Uttar Pradesh and Others reported in 2018(10) SCC 628.
3. Prestige Lights Ltd. V/s State Bank of India reported in 2007(8) SCC 449
4. K.Jayaram and Others V/s Bangalore Development Authority and Others reported in 2022(12) SCC 815.
5. MV Nikiforos V/s Zatrix Limited, MANU/GJ/1379/2018.
6. OJ Appeal No.18 of 2018 in Admiralty Suit No.37 of 2017.
7. Daman Singh And Others V/s State of Punjab and Others reported in 1985(2) SCC 670.
8. Zoroastrian Cooperative Housing Society Ltd. And Another Page 10 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined V/s District Registrar, Cooperative Societies (Urban) and Others reported in 2005(5) SCC 632.
9. Bengal Secretariat Cooperative Land Mortgage Bank an Housing Society Ltd. V/s Aloke Kumar and Another reported in 2022 SCC Online SC 1404.
10. State of U.P. and Another V/s C.O.D.Chheoki Employees' Cooperative Society Ltd. And Others reported in 1997(3) SCC
681.
11. Sachin Udhyognagar Sahkari Mandli Ltd. V/s State of Gujarat reported in 2020(0) AIJEL-HC 242365.
12. Sarvepalli Ramaiah (dead) as per legal representatives and others V/s District Collector, Chittoor District and Othres reported in 2019(4) SCC 500.
13. Phoenix Arc Private Limited V/s Vishwa Bharati Vidya Mandir and Others reported in 2022(5) SCC 345
14. PHR Invent Educational Society V/s UCO Bank & Ors. of the Hon'ble Apex Court.
6. Learned advocate Mr.Deep Vyas for respondent no.2 and 3-authorities has submitted that the building is 40- 42 years old and it was in dilapidated condition and considering the letter seeking development permission and also the objections raised, in the larger interest of the members of the society, the authorities have granted the impugned permission, which cannot be said to be improper.
Page 11 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined He submitted that when majority of the members have agreed for redevelopment, objectors who are in minority, cannot be given importance looking to the well-being of the larger number of members. Therefore, as it is the duty of the authorities to see that the larger members do not suffer, the impugned permission is granted which is not required to be interfered with. He, therefore, prays to dismiss this petition.
7. Learned advocate Mr.Kapadia for respondent no.4 has submitted that the said flats were constructed before 40 to 42 years; that they were in dangerous and dilapidated condition and therefore with the consent of all the members, the members have voluntarily agreed to redevelop the society and after deliberation the resolution no.7 dated 26.6.2014 was passed in the general meeting of the society and it was decided to redevelop the said society, thereafter, on 21.2.2015 and 3.9.2017 also, the necessary resolutions for redevelopment/outright sale were passed; that on 19.1.2019, a record offer was made to the society and a resolution dated 20.1.2019 was passed by the society and it was resolved that the proposal made by the respondent no.5 be accepted; that except for six members, including the petitioners herein, have not followed the resolutions of the society and vacated their respective flats; that even under the provisions of the Gujarat Page 12 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined Ownership Flats Act,, the members were required to respect the resolution passed by the society; there is no prejudice which would be caused to the petitioner with the redevelopment permission or redevelopment of the scheme.
He, therefore, prayed to dismiss this petition
8. The present petition is filed essentially against the development permission. It transpires that earlier development permission was granted whereby the petitioner has filed the objections, hearing has taken place, thereafter the objections were rejected by the municipal authority, that order is not challenged by the present petitioners which means, that order is accepted by the petitioner.
9. Considering the provisions of Section 41A of the Gujarat Ownership Flats Act, consent of more than 75% members should be there for the purpose of redevelopment or outright sale whatever. The nomenclature may not make any difference considering the fact that all the persons have given consent, not only that they have vacated the premises, demolition has also taken place. Thereafter, new construction is also carried out pursuant to the said permission. Therefore, I am of the opinion that the authorities have also considered the provisions of Town Planning Act as well as GPMC Act in proper context and considering the fact that under GDCR, Page 13 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined the authority has limited jurisdiction to consider the decision of the grant/refusal of the development permission and the same cannot be expanded in the writ jurisdiction. As such, the grant/refusal of the development permission is an administrative action and not a quasi judicial function of the competent authority. The authorities are not deciding the ownership rights or right or title or interest in the building.
10. It is also required to be considered that the petition has practically become infructuous to the extent that now the construction has taken place pursuant to the said development permission and if further any indulgence is granted in absence of any clear violation of any of the rules or provisions of GDCR or GPMC Act and or any provisions of Town Planning Act, wherein in the court could have interfered if any substantial breach is found but in the present case, the authorities have examined, not only that have given earlier opportunity on earlier occasion by considering the objection and deciding the proceedings accordingly. It is also found that the personal hearing in such case to the present petitioner who is objector is also not necessary and proper consideration of the objection by authority is sufficient. Moreover, there is alternative remedy available to petitioners and now, one petitioner is withdrawing this petition, only one petitioner remains as Page 14 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined objector.
11. It transpires from the record that the petitioners are trying to create hindrance in the process of redevelopment process of that society. The petitioners themselves earlier agreed for redevelopment with one of the developers and later on, when it did not work out with that developer and the developer changed and the present respondents were given the contract for redevelopment, the petitioners started raising objections and filing litigations to delay the redevelopment process. The first resolution agreeing for redevelopment was passed in the year 2014 and it has been ten years and the petitioners are fighting tooth and nail to stop the redevelopment. Even as per the provisions of Gujarat Ownership Flats Act, the scheme can go for redevelopment if 75% members have consented for the same.
In this case, there are more than 75% members who have consented. Further, even as per the report of the AMC, the flats were in dilapidated condition and not suitable for residence. In that situation, interest of majority prevails over the minority members who are only two, now only one. The interest of the majority of the members cannot be put at stake for the objections raised by the petitioners, who are in minority. Looking to the conduct of the petitioners, entertaining the petitions of this nature would amount to Page 15 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined giving undue leverage to such litigants who are creating hindrance to such development process or redevelopment process against the interest of larger part of the members of that society.
12. Therefore, considering the conduct of the petitioners also, the powers of this court under Article 226 by way of extra ordinary jurisdiction neither powers under Article 227 of the Constitution of India cannot be exercised by considering the larger interest of the members of the society and also considering the fact that the respondent authority more particularly respondent corporation has not committed any illegality or impropriety in considering the application for redevelopment permission and also considering the objection raised by the present petitioners while deciding such application. It is also required to be kept in mind that the action of the corporation for considering such application can be considered as administrative action, normally the court should not interfere with the said action unless there is patent illegality or irregularity committed by the concerned authority or there is some malafide action of the said authority. In the present case, neither of the said infirmities are found in the impugned action of the respondent.
Therefore, I am of the opinion that no relief can be granted either under Article 226/227 of the Constitution of India.
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13. In view of the above factual background, now, it will be fruitful to refer to the judgments relied on by learned advocates for the parties. There cannot be any dispute with regard to the ratio laid down in the judgments cited by learned advocate for the petitioners. However, considering the facts of the case, when the larger interest of the society is the issue, the ratio laid down in the cases relied on by learned advocate for the petitioners are not applicable to the facts of the present case.
14. In the case of Sarojben Kiritbhai Shah since Deds Through heirs (supra), it is held by this Court in paragraph 52 as under:
"52. At the outset, it requires to be noticed that by calling upon the occupant (respondent No.9) to vacate the premises by issuance of writ of mandamus, there is no order of eviction is passed. The resolution of the general body of members passed by the majority (now all the members having consented for redevelopment except respondent No.9) would indicate that during the period of redevelopment taking place, all the occupants of the existing property who are in occupation of their respective flats would be provided alternate accommodation in a rented premises and rent of the such premises would also be paid by the developer himself. Thus, there is no eviction or dispossession. Eviction Page 17 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined in terms of the prevalent rent laws or ejectment of an occupant from the suit property as contemplated under the Transfer of Property Act would mean to dispossess a person in occupation of a premises under the authority of law by putting an end to such right. In other words, eviction means right to reside or occupy ceasing or such right getting terminated by operation of law. In the instant case, respondent No.9 is neither dispossessed nor evicted but has only been directed to be shifted to an alternate premises which she/they would continue to reside till redevelopment takes place. Temporary shifting of residents of a premises in redevelopment project would not amount to dispossession or eviction as sought to be contended. In fact, appellant is not deprived of the property viz. residential accommodation at all."
In the case of Sujal Leasing and Finance Limited (supra), it is held in paragraph 5 as under:
"5. The chain of events that has taken place as disclosed in the order under appeal leaves no room for any other conclusion then that the appellant-defendant has acted in a manner to overreach the decision of the Court in the manner subjudice before it and to infructuate whole proceedings by his own act. It is not a case where defendant has exercised his right under the Contract, before filing of the suit nor it is a case where he has exercised Page 18 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined such right before notice of application has been served upon him. The fact that law does not favour ad interim ex parte order and requires that orders are made in the presence of the parties does implicitly call restraint from the parties after they are apprised of respective case and the materials, inviting attention of the Court on application for interim relief to desist from indulging into any such activities which results into proceedings getting infructuous and erodes the confidence of the people in the basis efficacy of the Institution of Court as an effective tool of administration of justice."
The head note in the case of Bhanubhai Mohanlal Bhatt and Another (supra), reads as under:
"Code of Civil Procedure, 1908 - O.43 R.1 - Exercise of power under - Learned Extra Asstt - Judge dismissed Exh.5 application tendered with Civil Miscellaneous Appeal, however admitted the said appeal - Held that when the appellate court dealing with Appeal, from Order finds that no case is made out for the grant of interim relief, it must immediately set down the appeal for hearing and decide it with application for interim injunction - The very ground which convinced the learned Judge to reject the application would be the ground to reject the appeal - The course adopted by the learned Judge virtually rendered the appeal meaningless High Court took serious note of repeated Page 19 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined exercise of powers by the learned Judge in this manner - Remanded the matter for decision in appeal directing the learned Judge to decide the same on merits and further to follow proper course in future."
The head note in the case of Salim Ahmed Mathada (supra), reads as under:
"Code of Civil Procedure, 1908 - Or.43 R.1(r) - practice of admitting appeals against order of injunction and also adopting practice of rejecting application for stay - consideration as to requirement of giving interim relief - held, appeal should not be rendered meaningless by adopting this procedure - if Ld.Judge feels that case is one where interim relief is no required to be granted, it is always open to set down entire appeal for hearing and to decide same on merits - impugned judgment quashed and set aside - application allowed."
In the case of R.P.Khaitan (supra), it is held in paragraph 4 as under:
"4. It is true that the extraordinary remedies provided under Articles 226 and 227 of the Constitution are dependent upon the High Court willing to interfere in a matter for which a large measure of discretion rests with it. Its power is so wide so as to envelop not only all aspects of the matter but Page 20 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined orders can be passed of such nature as the High Court thinks fit. The jurisdiction as such is not curtailed to meet questions of parameters. On the other hand, the regular remedy under Section 115, C.P.C. is hedged by the language of the provision. Only errors of jurisdiction and material irregularities in the exercise of jurisdiction bring about a cause within the ambit of that provision. All the same it is worthy of notice that the Forum for the aforementioned three remedies ordinary as well as extraordinary is with the High Court itself. We see no reason then as to why the frame of the cause be determinative. It is for the litigant to choose the remedy and it is for the High Court to grant or deny relief thereon having regard to the facts and circumstances of each case. We may, however, add that the existence of an alternative remedy can by itself be a ground for the High Court refusing to exercise jurisdiction but it is not as if jurisdiction of the High Court is ousted by such existence. The High Court's dependence on Visheh Kumar v. Shanti Prasad in refusing to convert a petition under Section 115, C.P.C. to be one under Article 227 of the Constitution may have been justified on the facts of that case, but the same cannot be treated as a precedent to oust jurisdiction of the High Court vested in it under the law. The High Court certainly is entitled to convert any proceeding instituted before it in one manner to be that of another provided a proper cause has been made out and in the interest of justice."Page 21 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024
NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined In the case of Bhupatlal Govindji (supra), it is held in paragraphs 8 to 10 as under:
"8. The learned Judge then in para 23 of his judgment has concluded as follows:
"23. Therefore, the conclusion would be that the plaintiff has been able to establish that she is the tenant of the premises after year 1975 and that she pays the rent. It is also equally established that the defendant has not paid the rent and that he has no documentary evidence to show that he had paid the rent and the landlord had accepted the same, and that he had incurred the expenses of repairs of the godown. Moreover, his say is that they had no occasion to go to the abovesaid godown after the year 1974. Vaikuntharay the servant must have gone to the godown after 1974 if the defendant was in the possession of the godown for storing certain scrap materials. It, therefore, becomes clear that the learned trial Judge has committed an error in coming to the conclusion that the plaintiff is not the tenant of the premises under dispute. This point, therefore, requires to be decided in affirmative and the same is hereby accordingly decided."
This is a finding of fact and, I, therefore, have to act on it. The net effect of this acceptance of the conclusion is that the plaintiff and her predecessor, husband were in possession of this godown right, from the year 1955. She Page 22 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined was in possession even during the pendency of the suit till the ad interim injunction stood unfortunately vacated, because of the dismissal of the suit at the hands of the learned trial Judge, which took place on 30th June 1982. The letters Exhs. 18 and 19 show that being overjoyed with his success in the trial Court, the defendant put his locks and staples (iron stripes) across the door, so as to prevent the plaintiff from entering the godown, and it is well-nigh possible that he might have introduced into the godown some articles of his own also. The question is whether this advantage taken by the defendant during the short period of nine days, when the injunction did not operate can be said to be amounting to taking an undue advantage of the interregnum or vacuum created by the procedural delays that are inevitable in the modern system of administration of justice. In the facts and circumstances of the case and in the light of the findings recorded by the learned Judge which I am bound to accept, it is to be held that this defendant-appellant tried to change the situation before the appellate Court could do anything in the matter. An appeal is a continuation of the suit and if any one takes advantage of the Court's procedures and changes the situation to the material disadvantage of the other side, in the meantime and if ultimately, the action which facilitated the commission of the act on the part of the person is held unauthorised, the Court should put the party in the position in which it would have been, before that vacuum or interregnum created Page 23 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined by the procedural delays. Mr. S.M. Shah very vehemently submitted that in a situation like this, because of some developments, may be due to the legal technicalities, the proper and the only course left open to the plaintiff was to seek a suitable amendment of the plaint and to seek a relief of possession, but this sort of mandatory injunction coupled with delivery of possession could not be granted by the Court of its own, without there being any formal prayer. The argument, no doubt, is to be considered with concern, but whenever it appears to a court of law that a party is shrewd enough to overreach the legal process, the Court should put its foot down and see that this shrewdness does not stand rewarded. In other words, if necessary, the clock should be made to move back in order to restore the legal position which would have continued, had that, party not taken benefit of that intervening period.
9. In this view of the matter, I find that the learned appellate Judge was right in granting the mandatory injunction. It is no doubt true that the learned appellate Judge while directing the defendant to remove the locks on the premises also has directed to hand over delivery of possession without any court-fees having been paid by the original plaintiff. It is to be remembered that the effective relief that has been granted is the relief of injunction and delivery of possession is a consequential relief. The question of court-fees need not worry the defendant-appellant because ultimately it is for the Court and the Government to deal Page 24 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined with it. I would not say that the question of court-fees would not arise, because what the Court has done has been done by it as a part of its duty to uphold the administration of justice. Here the question of court-fees becomes immaterial.
10. The legal view which I have confirmed alone is a well- recognised one. The judgment that had appealed to the learned District Judge also was cited before me. It is the judgment of the Patna High Court in the case of Joy-narain Sarogi v. Brojendra Nath Misra AIR 1951 Pat 546. In this judgment there is reference to two English judgments and also to three judgments of other High Courts. It is no doubt true that this is a case of granting a mandatory injunction at the interlocutory stage, but in my view, the principles would remain the same when we have to deal with final orders. The principles that stand good at the interim stage for bringing into existence the situation-ante can, and in my view must, be extended to the situation that has been changed during the pendency of the litigation. I would go a step forward and say that if something is good at the interim stage must be necessarily equally good at the final stage."
15. A reference is required to be made to the judgments relied on by learned senior advocate Mr.Dave for the respondents, which are as under:
Page 25 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined In the case of Susaka (P) Ltd. (supra), it is held in paragraphs 26 and 27 as under:
"26. Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Cuilibet licet renuntiare juri pro se introducto. (See Maxwell on The Interpretation of Statutes, 12th Edn. at p. 328)
27. If a plea is available, whether on facts or law, it has to be raised by the party at an appropriate stage in accordance with law. If not raised or/and given up with consent, the party would be precluded from raising such plea at a later stage of the proceedings on the principle of waiver. If permitted to raise, it causes prejudice to other party. In our opinion, this principle applies to this case."
In the case of Prestige Lights Ltd. (supra), it is held in paragraphs 33 to 36 as under:
"33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Page 26 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.
34. The object underlying the above principle has been succinctly stated by Scrutton, L.J., in R. v. Kensington Income Tax Commrs. [(1917) 1 KB 486 : 86 LJKB 257 :
116 LT 136 (CA)] , in the following words:
"[I]t has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts--facts, not law. He must not misstate the law if he can help it--the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside, any action which it has taken on the faith of the imperfect statement."
(emphasis supplied) Page 27 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined
35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.
36. In the case on hand, several facts had been suppressed by the appellant Company. Collusive action has been taken with a view to deprive the respondent Bank from realising legal and legitimate dues to which it was otherwise entitled. The Company had never disclosed that it had created third- party interests in the property mortgaged with the Bank. It had also shifted machinery and materials without informing the respondent Bank prejudicially affecting the interest of the Bank. It has created tenancy or third-party right over the property mortgaged with the Bank. All these allegations are relevant when such petitioner comes before the court and prays for discretionary and equitable relief. In our Page 28 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined judgment, the submission of the respondent Bank is well founded that the appellant is not entitled to ask for an extraordinary remedy under Article 226 of the Constitution from the High Court as also equitable remedy from this Court under Article 136 of the Constitution. A party, whose hands are soiled, cannot hold the writ of the court. We, therefore, hold that the High Court was not in error in refusing relief to the appellant Company."
In the case of K. Jayaram (supra), it is held in paragraphs 10 to 15 as under:
"10. It is well-settled that the jurisdiction exercised by the High Court under Article 226 of the Constitution of India is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all facts before the court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.
11. This Court in Prestige Lights Ltd. v. SBI [Prestige Lights Ltd. v. SBI, (2007) 8 SCC 449] has held that a prerogative remedy is not available as a matter of course.Page 29 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024
NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined In exercising extraordinary power, a writ court would indeed bear in mind the conduct of the party which is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. It was held thus : (SCC p. 461, para 33) "33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter."
12. In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P. [Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P., (2008) 1 SCC 560 : (2008) 1 SCC (Civ) 359] , this Court has reiterated that the writ remedy is an equitable one and a person approaching a superior court must come with a pair of clean hands. Such person should not suppress any material fact but also should not Page 30 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined take recourse to legal proceedings over and over again which amounts to abuse of the process of law.
13. In K.D. Sharma v. SAIL [K.D. Sharma v. SAIL, (2008) 12 SCC 481] , it was held thus : (SCC pp. 492-93, paras 34-39) "34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.
35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commissioners [R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (KB & CA)] in the following words : (KB p. 514) '... it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the Page 31 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined material facts--it says facts, not law. He must not misstate the law if he can help it--the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement.'
36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, 'We will not listen to your application because of what you have done.' The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it.
37. In Kensington Income Tax Commissioners [R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486 :
86 LJKB 257 : 116 LT 136 (KB & CA)] , Viscount Reading, C.J. observed : (KB pp. 495-96) '... Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in Page 32 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant's affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts.
But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.'
38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play "hide and seek"
or to "pick and choose" the facts he likes to disclose and to Page 33 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because "the court knows law but not facts".
39. If the primary object as highlighted in Kensington Income Tax Commissioners [R. v. Kensington Income Tax Commissioners, (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (KB & CA)] is kept in mind, an applicant who does not come with candid facts and "clean breast" cannot hold a writ of the court with "soiled hands". Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court."
Page 34 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined (emphasis in original)
14. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations were or are pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law.
15. In the instant case, since the appellants have not disclosed the filing of the suit and its dismissal and also the dismissal of the appeal against the judgment of the civil court, the appellants have to be non-suited on the ground of suppression of material facts. They have not come to the court with clean hands and they have also abused the process of law. Therefore, they are not entitled for the extraordinary, equitable and discretionary relief."
In the case of Bengal Secretariat Cooperative Land Mortgage Bank and Housing Society Ltd. (supra), it is held in Page 35 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined paragraphs 56 to 61 as under:
"56. It is not in dispute that the General Body of the Appellant Society, which is supreme, has taken up a conscious decision to redevelop the administrative building. The General Body of the Appellant Society has also resolved to appoint the Hi-Rise as the developer. Those decisions having not been challenged at all, the Respondent No. 1 being a member of the Appellant Society is bound by the said decisions. The General Body of the Appellant Society has approved the terms and conditions of the development agreement by overwhelming majority. Merely because the terms and conditions of the development agreement are not acceptable to the Respondent No. 1, who could be said to be in minuscule minority cannot be the basis of not to abide by the decision of the overwhelming majority of the General Body of the Appellant Society. The redevelopment of the property is necessitated in view of the fact that the building is in a dilapidated condition with passage of time. The redevelopment thus, in our view, would be a requirement and a necessity and cannot be termed as business. The Appellant Society in such circumstances did not even require to carry out any amendment to the bye-laws or to include the "redevelopment of the buildings" as one of the objects of the Society before taking any decision to redevelop its property.Page 36 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024
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57. By now it is well established position that once a person becomes a member of the Co-operative Society, he loses his individuality with the Society and he has no independent rights except those given to him by the statute and bye-laws. The member has to speak through the Society or rather the Society alone can act and speaks for him qua the rights and duties of the Society as a body (see : Daman Singh v. State of Punjab, reported in (1985) 2 SCC 670 :
AIR 1985 SC 973). This view has been followed in the subsequent decision of this Court in the case of State of U.P v. Chheoki Employees Co-operative Society Ltd., reported in (1997) 3 SCC 681 : AIR 1997 SC 1413. In this decision, this Court further observed that the member of a Society has no independent right qua the Society and it is the Society that is entitled to represent as the corporate aggregate. This Court also observed that the stream cannot rise higher than the source. Suffice it to observe that so long as the Resolutions passed by the General Body of the Appellant Society are in force and not overturned by a forum of competent jurisdiction, the said decisions would bind the Respondent No. 1. He cannot be permitted to take a stand alone position but is bound by the majority decision of the General Body. Notably, the Respondent No. 1 has not challenged the Resolutions passed by the General Body of the Appellant Society to redevelop the property and more so, to appoint the Hi-Rise as the Developer to give him all the redevelopment rights.Page 37 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024
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58. It was also argued on behalf of the Respondent No. 1 that the property is in a good condition and there is no need to redevelop the existing building. In the first place, as noted earlier, the decision of the General Body of the Society to redevelop the subject property has not been challenged at all. Besides, no provision in the Co-operative Societies Act or the rules or any other legal provision has been brought to our notice which would curtail the right of the Society to redevelop the property when the General Body of the Society intends to do so. Essentially, that is the commercial wisdom of the General Body of the Society. It is not open to the Court to sit over the said wisdom of the General Body as an Appellate Authority. Merely because one single member in minority disapproves of the decision, that cannot be the basis to negate the decision of the General Body, unless it is shown that the decision was the product of fraud or misrepresentation or was opposed to some statutory prohibition. That is not the grievance made before us. In the present case, the General Body took a conscious decision after due deliberations for many years to redevelop its property. Even with regard to the appointment of the "Hi-Rise" as the Developer, the record shows that it was decided by the General Body of the Society after examining the relative merits of the proposals received from the developers.
59. The object of the provision has to be borne in mind.
The entire legislative scheme goes to show that the Co-
Page 38 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined operative Society is to function democratically and the internal democracy of a society, including resolutions passed in accordance with the Act, the Rules, and the bye-laws have to be respected and implemented. The Co-operative Movement is both a theory of life and a system of business. It is a form of voluntary association where individuals unite for mutual aid in the production and distribution of wealth upon principles of equity, reason and common good. It stands for distributive justice and asserts the principle of equality and equity ensuring to all those engaged in the production of wealth a share proportionately commensurate with the degree of their contribution. It provides as a substitute for material assets, honesty and a sense of moral obligation and keeps in view the moral rather than the material sanction. The movement is thus a great Co- operative movement.
60. The basic principles of co-operation are that the members join as human beings and not as capitalists. The Co-operative Society is a form of organization wherein persons associate together as human beings on the basis of equality for promotion of economic interest of its members. This movement is a method of doing the business or other activities with ethical base. "Each for all and all for each"
is the motto of the co-operative movement. This movement not only develops latent business capacities of its members but produces leaders; encourages economic and social virtues, honesty and loyalty, becomes imperative, prospects of better Page 39 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined life, obtainable by concerted effort is opened up; the individual realises that there is something more to be sought than mere material gains for himself. So, in fact, it being a business cum moral movement, and the success of the Co-operative Society depends upon the reality with which one of the members work for the achievement of its objects and purpose. The Committee on Co-operation in India emphasized the moral aspect co-operation, to quote the words:--
"The theory of co-operation is very briefly that an isolated and powerless individual can, by association, with others and by moral development support, obtain in his own degree the material advantages available to wealthy or powerful persons and thereby develop himself to the fullest extent of his natural abilities. By the Union of forces, material advancement is secured and by united action self reliance is fostered and it from the inter-action of these influences that it is hoped to attain the effective realisation of the higher and more prosperous standard of life which has been characterised as better business, better arming and better living; we have found that there is a tendency not only among the outside public but also among supporters of the movement to be little its moral aspect and to regard this as superfluous idealism. Cooperation in actual practice must often fall short of the standard aimed at and details inconsistent with co-operative ideals have often to be accepted in the hope that they may lead to better things.Page 40 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024
NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined We wish clearly to express that it is the true co-operation alone, that is, to a co-operation which recognises the moral accept of the question that Government must look for the amelioration of the masses and not to a psudo co-operative edifice, however imposing, which is built in ignorance of co- operative principles. The movement is essentially a moral one and it is individualistic rather than socialistic. It provides as a substitute for material assets honesty and a sense of moral obligation and keeps in view the moral rather than the material sanction. Pages 5 and 6 of Theory and Practice of Co-operation in India and Abroad by Kulkarni, Volume 1. Co-operation is a mode of doing business, is at present applied as the solution of many economic problems. Co-operation is harnessed to almost all forms of economic activity. Though co-operation was introduced in this country as a remedy for rural indebtedness, it has been applied successfully in a wide range of activities such as production, distribution, banking, supply, marketing, housing and insurance. See Theory and Practice of Co-operation in India and Abroad by Kulkarni Volume 1 Page 2."
61. In the overall view of the matter, we are convinced that the impugned judgment and order passed by the High Court is not sustainable in law and deserves to be set aside. At one point of time, we were inclined to allow this appeal by imposing an exemplary costs on the Respondent No. 1 for unnecessarily dragging the Appellant Society into Page 41 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined a frivolous litigation & not allowing the Appellant Society to go ahead with the project for the past almost two decades. However, we refrain from passing such order of costs in the hope that the Respondent No. 1 realises that the development of the administrative building will be for the betterment of the society. No individual member is going to gain anything from the redevelopment. It is the society as an autonomous body which will gain something."
In the case of Sachin Udhyognagar Sahkari Mandli Ltd. (supra), it is held in paragraphs 17 to 19 as under:
"17. This Court in the case of Narendrabhai Maganbhai Patel Supra in paragraph no.7 has held as under: "7. The examination of the said contention shows that it is not a case where there is no remedy. If any person is admitted as member by the Managing Committee of the Society, may be in contravention to the bye-laws or the rules, and any other members of the Society has any grievance, it will be for such aggrieved member to challenge the legality and validity of the resolution of the Society admitting the person concerned as member and it is only if such resolution is set aside, the legal consequences may follow. Such can be agitated by resorting to the remedy provided under Section 96 of the Act. At that stage, the appropriate forum may examine the legality and validity of the resolution and also Page 42 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined the right, if any to be affected of the person concerned who is already admitted as the member and the creation of an irreversible situation, alteration of the position or otherwise. Therefore, it is not that there is no remedy under the Act, but certainly the remedy under Section 23 of Act which is invoked in the present case, could not have been resorted to." This Court in the case of Harekrishna K. Vadhwani Supra in paragraph 9 has held as under: "9. In any event, when the General Body of the society has taken the decision, I am of the view that even if the petitioner had any grievance against the decision of the General Body of the society, proper course for the petitioner was to challenge the said decision under Section 96 of the Act. It is an admitted position that the decision of the General Body of the society is not challenged by the petitioner under Section 96 of the Act and, therefore, if the decision of the General Body of the society is to operate, the will of the majority of the members itself is to prevail for the purpose of division of the society and if such is the situation, it cannot be said that the petitioner, in the capacity as a member of the society, would be justified in challenging the decision of division only on the ground that he is going to be prejudiced or affected. I am inclined to take such a view because the petitioner has not been able to produce any reliable material to show that any prejudice is caused to him. The question of division in case of direct and clear individual prejudice to the member is kept open. "Page 43 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024
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18. In the opinion of the Court therefore, if respondent no.5 was aggrieved by the application of resolution of the society to respondent no.5 the remedy available was for challenging the same under Section 96 of the Gujarat Cooperative Society Act, where the authority, the procedure and the requirement of such resolution by society could have been examined, however the impugned communication dated 14.09.2016 is clearly a method adopted to circumvent due procedure of challenge to the resolution and still rendered the resolution ineffective insofar as the Respondent no.5 is concerned. If the communication dated 14.09.2016 is to be perused it innocently directs the petitioner society to abide by what is provided under the bye-law-19 which is meant for transfer of the plot. However, such a communication was in response to the grievance made by respondent no.5 (page
91) through a Grievance Redressal Mechanism wherein the description of the grievance would read as under: "Grievance Description: Sir, I hold plot no. 027/5 in Sachin Udhyognagar Sahkari Madnli Ltd., situated in Surat City. The address of the Ind Co-op. Society is as follows:
Vivekanand Chamber, Second Floor, Near Rajeshee Hall, Sagrampura, Surat. PIN 395002, and Phone No. 0261 2353418, my grievances (1) This co-op. Society works under "The Gujarat Co-operative Societies Act 1961 and Rules made under therein. The sub rule No. 19 made by the said Mandali clearly mention that the mandali will charge Rs.1- per. sq. Meter to transfer a plot if sold by the member of Page 44 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined this Society. Though the rule made by the mandli specifically mention Rs.100 per sq.m. The Chairman of the said Mandali has passed a resolution to charge Rs.3000 per sq. meter to transfer a plot in the case of Tamakuwala family. It is against the spirit of the co-operative spirit. (2) I have complained regarding this To (1) Dy. Ind. Commissioner and General Manager, District Ind. Center, C- 2, Multi Story Building Nanpura, Surat (Phone 02612465925 (2) Regisrar Co-op. Mandli, Industry and Joint Director Textile, Block - 7 Second floor, Udhyog Bhavan, Gandhinagar (Phone 07923259482) Dy. Secretary, appeal co-
operation Dept.
19. The grievance itself indicates about a resolution of the society and therefore when the impugned communication was made by the respondent Registrar, he was mindful of the fact of some resolution which would be touching upon the bye-law no.19 exists and therefore it was for the respondent to also take into consideration such resolutions however, by the impugned communication the respondent has completely given a go bye to the resolution as if such resolution is non existent. This in the opinion of the Court is error on the part of the respondent and hence deserves interference."
In the case of Sarvepalli Ramaiah, it is held in paragraphs 40 to 42 as under:
Page 45 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined "40. Administrative decisions are subject to judicial review under Article 226 of the Constitution, only on grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. Except on these grounds administrative decisions are not interfered with, in exercise of the extraordinary power of judicial review.
41. In this case, the impugned decision, taken pursuant to orders of Court, was based on some materials. It cannot be said to be perverse, to warrant interference in exercise of the High Court's extraordinary power of judicial review. A decision is vitiated by irrationality if the decision is so outrageous, that it is in defiance of all logic; when no person acting reasonably could possibly have taken the decision, having regard to the materials on record. The decision in this case is not irrational.
42. A decision may sometimes be set aside and quashed under Article 226 on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise."
In the case of Phoenix ARC (P) Ltd. (supra), it is held in paragraphs 18 to 21 as under:
Page 46 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined "18. Even otherwise, it is required to be noted that a writ petition against the private financial institution -- ARC --
the appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in Praga Tools Corpn. [Praga Tools Corpn. v. C.A. Imanual, (1969) 1 SCC 585] and Ramesh Ahluwalia [Ramesh Ahluwalia v. State of Punjab, (2012) 12 SCC 331 : (2013) 3 SCC (L&S) 456 : 4 SCEC 715] relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers.
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19. Now, so far as the submission on behalf of the borrowers that in exercise of the powers under Article 136 of the Constitution, this Court may not interfere with the interim/interlocutory orders is concerned, the decision of this Court in Mathew K.C. [State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85 : (2018) 2 SCC (Civ) 41] is required to be referred to.
20. In Mathew K.C. [State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85 : (2018) 2 SCC (Civ) 41] after referring to and/or considering the decision of this Court in Chhabil Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603] , it was observed and held in para 5 as under : (Mathew K.C. case [State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85 : (2018) 2 SCC (Civ) 41] , SCC p. 89) "5. We have considered the submissions on behalf of the parties. Normally this Court in exercise of jurisdiction under Article 136 of the Constitution is loath to interfere with an interim order passed in a pending proceeding before the High Court, except in special circumstances, to prevent manifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a Page 48 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal [CIT v. Chhabil Dass Agarwal, (2014) 1 SCC 603] , as follows :
(SCC p. 611, para 15) '15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.' "Page 49 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024
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21. Applying the law laid down by this Court in Mathew K.C. [State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85 : (2018) 2 SCC (Civ) 41] to the facts on hand, we are of the opinion that filing of the writ petitions by the borrowers before the High Court under Article 226 of the Constitution of India is an abuse of process of the court. The writ petitions have been filed against the proposed action to be taken under Section 13(4). As observed hereinabove, even assuming that the communication dated 13-8-2015 was a notice under Section 13(4), in that case also, in view of the statutory, efficacious remedy available by way of appeal under Section 17 of the SARFAESI Act, the High Court ought not to have entertained the writ petitions. Even the impugned orders passed by the High Court directing to maintain the status quo with respect to the possession of the secured properties on payment of Rs 1 crore only (in all Rs 3 crores) is absolutely unjustifiable. The dues are to the extent of approximately Rs 117 crores. The ad interim relief has been continued since 2015 and the secured creditor is deprived of proceeding further with the action under the SARFAESI Act. Filing of the writ petition by the borrowers before the High Court is nothing but an abuse of process of court. It appears that the High Court has initially granted an ex parte ad interim order mechanically and without assigning any reasons. The High Court ought to have appreciated that by passing such an Page 50 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined interim order, the rights of the secured creditor to recover the amount due and payable have been seriously prejudiced. The secured creditor and/or its assignor have a right to recover the amount due and payable to it from the borrowers. The stay granted by the High Court would have serious adverse impact on the financial health of the secured creditor/assignor. Therefore, the High Court should have been extremely careful and circumspect in exercising its discretion while granting stay in such matters. In these circumstances, the proceedings before the High Court deserve to be dismissed."
16. Considering the observations made hereinabove, the judgments referred to hereinabove particularly, the judgments relied on by learned senior advocate Mr.Dave for the respondents which are more applicable to the facts of the present case, and totality of circumstances of the facts and circumstances, I am of the opinion that the present petition under Articles 226/227 of the Constitution of India is meritless. Hence, dismissed. Notice is discharged.
(SANDEEP N. BHATT,J) SRILATHA A request is made by learned advocate Mr.Patel for the petitioner to stay this order.
Considering the fact that the nature of dispute between Page 51 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024 NEUTRAL CITATION C/SCA/16579/2022 JUDGMENT DATED: 06/05/2024 undefined the parties whereby the respondent-developer and the members of the society are facing hardships since so many months and otherwise also, when the Court is dismissing the present petition for the reasons recorded hereinabove, no stay can be granted of the present order. Hence, request is rejected.
(SANDEEP N. BHATT,J) SRILATHA Page 52 of 52 Downloaded on : Wed May 08 20:43:30 IST 2024