Gujarat High Court
Sharadbhai Premaji Rami vs Vishnubhai Natvarlal Patel on 6 February, 2013
Author: Harsha Devani
Bench: Harsha Devani
SHARADBHAI PREMAJI RAMI....Petitioner(s)V/SVISHNUBHAI NATVARLAL PATEL C/SCA/470/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.470 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI ================================================================ 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ SHARADBHAI PREMAJI RAMI....Petitioner(s) Versus VISHNUBHAI NATVARLAL PATEL & 8....Respondent(s) ================================================================ Appearance: MR AJ PATEL, ADVOCATE for the Petitioner MR GM JOSHI, ADVOCATE for the Respondents No. 1 - 6 MR.MRUDUL M BAROT, ADVOCATE for the Respondent No. 8 NOTICE SERVED BY DS for the Respondent No. 7 MR DIPUM S RAMI, ADVOCATE for the Respondent No. 9 ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 06/02/2013 ORAL JUDGMENT
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner (original opponent No.2 in Revision Application No.179/2012) has challenged the order dated 11th January, 2013 passed by the Gujarat Co-operative Tribunal in Revision Application No.179/2012.
2. The facts of the case as appearing from the record are that there was a common plot owned by the respondent No.7 Patidar Co-operative Housing Society Ltd., Panchvati, being Plot No.8, Final Plot No.621, T.P. Scheme No.3, Ellisbridge, Ahmedabad (hereinafter referred to as the subject plot ) which was leased out by the society in the year 1969 to one Darshan Decorators for commercial use with the consent of all its members. It appears that thereafter the society decided to give membership in respect of the subject plot. One Jamnaben Annaji and the petitioner Sharadbhai Premji Rami made an application dated 1st September, 1985 and offered Rs.10 lakhs towards the subject plot. The said application was submitted to the Managing Committee on 5th September, 1985 which came to be accepted and the subject plot came to be allotted to them and share certificate also came to be issued.
3. In the meanwhile, in the year 1981, a suit came to be instituted against Darshan Decorators being H.R.P. Suit No.3735/1981. While allotting the subject plot to the petitioner and Jamnaben, it was agreed that it would be the responsibility of the allottees to prosecute the suit against Darshan. It is the case of the society that at the time when the plot came to be allotted to the petitioner, the wife of the plaintiff No.1 (in the present suit) was a member of the Managing Committee and representatives of the plaintiffs No.2 and 4 were also present at the meeting held on 5th September, 1985. The resolution of 5th September, 1985 was approved in the general meeting of the society and as such, all the members were aware of such allotment and no one had raised any objection or dispute. Subsequently, various changes were made by entering the names of the heirs of Jamnaben. It appears that Darshan Decorators vacated the subject plot in the year 2005, after which, the petitioner was placed in possession thereof. It is the case of the petitioner that the petitioner had constructed a showroom/office for the purpose of his business on the said subject plot.
4. It appears that on 17th September, 2005, the respondent No.7 society passed a resolution, inter alia, permitting commercial use of the plots of the society. The said resolution came to be challenged by the respondent No.6 Balmukund Atmaram Patel and six other members before the Board of Nominees in Lavad Suit No.1154/2005. The said suit was filed in September, 2005. In the said proceedings, an application Exhibit-6 was filed by the plaintiffs therein praying for interim injunction. It appears that the said suit was strongly contested by the respondent No.7 society. By an order dated 22nd June, 2006, the Board of Nominees, Ahmedabad granted permanent injunction, restraining the defendants therein from carrying on any commercial activity till the final disposal of the suit. The petitioner herein was impleaded as defendant No.9 in the said suit.
5. Being aggrieved by the above order dated 22nd June, 2006 passed by the Board of Nominees, the petitioner as well as the society preferred separate revision applications before the Gujarat Co-operative Tribunal, Ahmedabad being Revision Applications No.220/2006 and 261/2006, respectively. By an order dated 10th May, 2007, the Tribunal reversed the order passed by the Board of Nominees by permitting the members of the society to carry on commercial activities on their plots. The said order of the Tribunal came to be challenged by the original plaintiffs of Lavad Suit No.1154/2005 by way of two writ petitions being Special Civil Applications No.13633/2007 and 18549/2007. By a common order dated 29th October, 2007, a learned Single Judge of this court allowed the petitions and reversed the order passed by the Gujarat Co-operative Tribunal. Being aggrieved by the order dated 29th October, 2007 passed by the learned Single Judge in the above referred petitions, the petitioner and the respondent No.7 society preferred Letters Patent Appeals No.39/2008 and 40/2008, respectively, before this court. In the said proceedings, a Division Bench of this court, on 24th December, 2009 passed an order in the following terms:-
It appears that, in view of the injunction order dated 22.6.2006 passed by the Board of Nominees, one or other writ petitions have been preferred. Further, it appears that, in view of such injunction order passed on 22.6.2006, no member of the Cooperative Society can start fresh commercial activities in their respective flat, bungalow, plot, but the said interim order will not affect those who were already involved in the commercial activities since prior to 22.6.2006.
In the circumstances, the parties are directed to state as to why all these appeals be not disposed at the stage of admission.
List these matters on 20.1.2010.
In the meantime, those premises which are used for commercial activities since prior to 22.6.2006 be not disturbed, but they will not alter or renovate their respective premises without prior permission of the Court.
Subsequently, the said Letters Patent Appeals came to be disposed of by a judgment and order dated 12th May, 2010 in the following terms:-
All these appeals arise out of the common judgment and order dated 29th October 2007 passed by the learned Single Judge in Special Civil Application No.13633 of 2007 and connected writ petitions.
Dispute between the parties is pending before the Board of Nominees, Co-operative Societies. The issue is with respect to the use of certain properties and premises in co-operative society. The members who are plaintiffs before the Board of Nominees object to the premises being put to commercial use/activities. The petition was filed at interim stage and Lavad Suits was pending. At that stage, the learned Single Judge passed the impugned order and allowed the petitions and the orders passed by the Tribunal were quashed and set aside and the interim order passed by the Board of Nominees on 22nd June 2006 was restored and ordered to continue till disposal of the suit.
Previously, this Court had on 24th December 2009 provided that no members of the co-operative society can start fresh commercial activities in their respective flat, bungalow, plot but the said interim order will not affect those who were already involved in the commercial activities since prior to the said date. However, it was further provided that in the mean time those premises which are used for commercial activities since prior to 22nd June 2006 will not be disturbed but they will not alter or renovate their respective premises without prior permission of the Court. After some discussion at the Bar, learned counsel appearing for the parties agreed that the order dated 22nd June 2006 passed by the Board of Nominees preventing any commercial use of the properties, may apply prospectively and may debar fresh use of premises / property being put to commercial use. It was agreed that till the suit is disposed of, those persons who have been carrying on the commercial activities in the premises since prior to 22nd June 2006 may not be disturbed.
On behalf of the original plaintiffs, a statement has also been filed to this effect in each of the appeal.
In view of the general consensus, no further order is necessary to be passed in these appeals but suffice it to record that the order dated 22nd June 2006 passed by the Board of Nominees shall prohibit any further commercial use of the properties in the said society but will not come in the way of the those members who have been using such premises for commercial use since prior to 22nd June 2006.
In partial modification of the order dated 24th December 2009, it is provided that the persons carrying on the commercial use of the properties prior to 22nd June 2006 may carry on such renovation of the properties without disturbing the basic structure of the property in question.
On behalf of the appellant in Letters Patent Appeal Nos.41 and 42 of 2008, it was pointed out that in one of the plots, construction was going on. It is clarified that in view of order dated 22nd June 2006, construction may be completed, but the property shall not be put to any commercial use till final disposal of the suit. It is also clarified that we have not expressed any opinion as regards the merits and demerits of the pending disputes between the parties before the Board of Nominees and the pending suit shall be decided in accordance with law unmindful of any observations by this Court in this order or in the orders under challenge in these appeals passed by the learned Single Judge. Learned Judge shall dispose of the suit as expeditiously as possible.
All the appeals stand disposed of with no order as to costs.
On 18th October, 2012, the petitioner entered into a leave and license agreement with the respondent No.8 Al Fresco Fruit Bar and Cafe, a partnership firm, for the purpose of letting out half portion of the subject plot.
6. At this juncture, the respondents No.1 to 6 herein, preferred Lavad Suit No.464/2012 before the Board of Nominees, Ahmedabad against the petitioner, the respondent No.7 society, its Chairman and the respondent No.8 seeking the reliefs which as translated into English read thus:
As per the sanctioned plan, the property bearing plot No.8 situated in the defendant No.1 society has been sanctioned for common plot, garden and club, therefore, any act, writings, resolutions, deeds or transactions of the defendant No.1 society in selling or in any other manner transferring or allotting the said plot to defendants No.2 or 4 are all illegal, unauthorised and void and a direction be issued to hand over the possession of the entire property bearing plot No.8 to the defendant No.1 society.
An order of permanent injunction be granted restraining the defendants, their persons, servants, agents or through any other means from putting up any kuccha/pucca construction or encroaching on plot No.8; inducting the defendants No.2 and 3 Al Fresco Fruit Bar and Cafe on the subject plot and restraining them from carrying on any commercial or business use; and restraining the defendants from selling, transferring or entering into any other transaction with anyone with respect to plot No.8 and further from transferring the possession thereof in favour of anyone else.
7. In the said suit, the plaintiffs (respondents No.1 to 6) also filed an application for interim injunction. By an order dated 6th December, 2012, the Board of Nominees granted ex-parte ad-interim injunction upto 19th December, 2012. On 7th December, 2012, the petitioner preferred an application Exhibit-15 before the Board of Nominees praying for vacating the ex-parte ad-interim injunction granted on 6th December, 2012. In the said proceedings, the respondent No.7 society also filed its reply supporting the petitioner and stating that its members are permitted to carry on commercial activities on their plots. The Board of Nominees after hearing the parties, vide its order dated 27th December, 2012 vacated the ex parte interim injunction granted by it. Being aggrieved by the order passed by the Board of Nominees, the respondents No.1 to 6 herein preferred Revision Application No.179/2012 before the Gujarat Co-operative Tribunal against the respondent No.7 society, the petitioner and the respondents No.8 and 9 herein. By an order dated 11th January, 2013, the Gujarat Co-operative Tribunal partly allowed the revision application and by modifying the order passed by the Board of Nominees below Exh.15 in Lavad Suit No.464/2012 to the effect that the present petitioner should not be disturbed from carrying on his activity in his office on the plot in question and if the petitioner wants to get the office renovated, the same should not be stopped. However, the Tribunal restrained the petitioner from leasing or renting out the plot in question to a third party for commercial purpose. Being aggrieved by the impugned order to the extent the same restrains the petitioner from leasing/renting out the subject plot to a third party for commercial purpose, the petitioner has preferred the present petition challenging the said order.
8. The petitioner has filed a further affidavit in support of the petition dated 28th January, 2013. In response to the averments made in the petition, the respondent No.8 has filed an affidavit-in-reply supporting the case of the petitioner. The respondents No.1 to 6 have also filed an affidavit-in-reply contending that the society could not have sold the common plot to anyone. It is also contended that members cannot put the property to commercial use as per the bye-laws and, therefore, it is not permissible for the petitioner to put the property to commercial use. Even if it is assumed that the petitioner was using the same for non-residential use as an office, at the most, he could continue to do so but he could not have let out the property to a third party for the purpose of carrying out an absolutely new commercial activity, viz., for opening of a food/juice/coffee bar. The petitioner has filed an affidavit-in-rejoinder to the affidavit-in-reply filed by the respondents No.1 to 6 contending that the order passed by the Division Bench does not contemplate that only one kind of commercial activity could be carried on for all times to come till the disposal of the suit. This is because the society is not a static society and changes occur on the death of a member or change of business by a member depending upon circumstances. In the present case, the same business of furniture could not be carried on by the petitioner and, therefore, the petitioner has let out the premises to respondent No.8 for carrying on the commercial activity of fruit products, which is basically not a different commercial activity than the one which was being carried out. It is further stated that the society itself had rented out the subject premises to M/s. Darshan Decorators in 1969 for carrying on commercial activities.
The petitioner purchased the premises/plot in the year 1985 along with the sitting tenant and the society has issued share certificate dated 26th September, 1985 in favour of the petitioner whereby the petitioner has become a member of the society in the year 1985. That the commercial activity which was being carried on the plot continued till the premises were vacated in the year 2005 after which the petitioner used the premises for his own commercial activities. The respondents No.1 to 6 have filed an affidavit-in-sur-rejoinder in response to the affidavit-in-rejoinder filed by the petitioner.
9. Mr. A.J. Patel, learned counsel for the petitioner drew the attention of the court to the order passed by the Board of Nominees to submit that the Board of Nominees after appreciating the evidence on record as well as the order passed by the Division Bench in the letters patent appeals has taken a view that in terms of the said order, no new commercial activity could be commenced after 22nd June, 2006 and that where the commercial activities were already commenced prior to the said date, the same could be continued. It was submitted that the view taken by the Board of Nominees is a plausible view and is not, in any manner, perverse. It was pointed out that the Tribunal was exercising powers of revision under section 150(9) of the Gujarat Co-operative Societies Act, 1961 and as such, in the absence of any perversity in the findings recorded by the Board of Nominees, the Tribunal was not justified in re-appreciating the material on record and arriving at a different conclusion. Reliance was placed upon the decision of the Supreme Court in the case of State of Gujarat and another vs. Gujarat Revenue Tribunal Bar Association rendered in Civil Appeal No.7208/2012 and more particularly, paragraph 9 thereof, for the proposition that there is a basic difference between appellate and supervisory jurisdiction. Appellate jurisdiction confers a right upon the aggrieved person to complain in the prescribed manner to a higher forum, whereas supervisory/revisional power has a different object and purpose as it confers a right and responsibility upon the higher forum to keep the subordinate tribunals within the limits of the law. It is for this reason that revisional power can be exercised by the competent authority/court suo motu, in order to see that subordinate tribunals do not transgress the rules of law and are kept within the framework of powers conferred upon them. Such revisional powers have to be exercised sparingly, only as a discretion in order to prevent gross injustice and the same cannot be claimed as a matter of right by any party. Reliance was also placed upon the decision of the Supreme Court in the case of Wander Ltd. and Another v. Antox India Pvt. Ltd., 1990 (1) SCC 727, for the proposition that an appeal against exercise of discretion, is said to be an appeal on principle. The appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the material at the trial stage, it would have come to a contrary conclusion. It was submitted that the Board of Nominees has exercised its discretion and has taken a view which is a plausible view. Under the circumstances, even if on the same set of facts it was possible to take a different view of the matter, the Tribunal would not be justified in disturbing the discretion exercised by the Board of Nominees. It was reiterated that the Tribunal was exercising revisional powers, and therefore, unless the view taken by the Board of Nominees was immensely perverse or contrary to the evidence on record, the Tribunal ought not to have interfered.
9.1 On the merits of the case, it was submitted that the subject plot had been allotted by the society for commercial purpose in the year 1969 to Darshan Decorators and such activity was continued till 2005 after which the petitioner continued to carry on commercial activities on the subject plot. That by virtue of the leave and license agreement executed by the petitioner in favour of the respondent No.8, a different commercial activity is being carried out on the subject plot. Referring to the order dated 12th May, 2010 passed by the Division Bench in Letters Patent Appeals No.39/2008 and 40/2008, it was submitted that on a plain reading of the said order, it is apparent that the same does not prevent commercial activities of a different nature being carried out on a plot where commercial activities were being carried on prior to 22nd June, 2006. It was submitted that the Tribunal has wrongly interpreted the order of the court to mean that the parties are required to maintain status quo as regards the use of the property and that no different commercial activity can be carried out by the members who were already carrying on commercial activities prior to 22nd June, 2006. It was further submitted that the Tribunal in exercise of its revisional jurisdiction is required to examine as to whether the finding recorded by the Board of Nominees was perverse, however, without examining the said aspect, the Tribunal has, on a different reasoning, by interpreting the order of the Division Bench in a different manner, come to the conclusion that the petitioner cannot be permitted to use the subject premises for any other purpose than the purpose for which he was using it as on 22nd June, 2006. It was submitted that the Tribunal has misused its revisional jurisdiction in two ways; firstly, it could not have freshly evaluated the evidence on record and could have only examined whether the discretion exercised by the Board of Nominees was proper; and secondly, it could only have examined as to whether the Board of Nominees has travelled beyond its jurisdiction. However, the Tribunal has failed to examine either of these two aspects.
9.2 Referring to the order passed by the Division Bench, it was submitted that the same does not prohibit further commercial use and does not come in the way of those using such property for other commercial purposes. The attention of the court was drawn to the General Development Control Regulations issued by the Ahmedabad Urban Development Authority, to submit that certain commercial activities including shops, commercial centre, restaurant, hotel have been permitted in residential areas and that the commercial activity sought to be carried out on the subject plot falls within the said permissible activities. It was contended that the judgment of the Division Bench does not confine commercial activity to mean only one commercial activity which was being carried out on the plots of the society on 22nd June, 2006. It is quite possible that during the time when the suit is pending, a member carrying on one commercial activity may switch over to another commercial activity which the member is capable of. Therefore, it cannot be said that the term commercial activity used in the judgment of the Division Bench would mean only the commercial activity which was being carried on as on 22nd June, 2006 as that was not the intention of the court. It was submitted that under the said order, the nature of the commercial activity could be different, so long as the basic structure is not altered. In the present case, the structure would remain the same; however, instead of the commercial activity carried out by the petitioner, a cafe bar is intended to be operated on the subject plot. In conclusion, it was submitted that the Tribunal went beyond its jurisdiction and hence, it is open to the petitioner to invoke the supervisory jurisdiction of this court. It was further pointed out that the closure of the business would entail a loss of rupees three to four lakhs per year to the petitioner and thereby the balance of convenience is also in favour of the petitioner and that the petition deserves to be allowed.
10. Mr. Mrudul Barot, learned advocate for the respondent No.8 submitted that the order dated 24th December, 2009 passed by the Division Bench only modifies the order of the Board of Nominees dated 22nd June, 2006. It was submitted that earlier the direction was that those who were already involved in commercial activities since prior to 22nd June, 2006, would not be affected by the order of Board of Nominees. Subsequently, by the order disposing of the letters patent appeals, the Division Bench had clarified that the persons carrying on commercial use of the properties prior to 22nd June, 2006 may carry on renovation of the properties without disturbing the basic structure of the property in question. It was submitted that the order dated 24th December, 2009 does not say that fresh commercial activity cannot be commenced if premises are already being used for commercial purposes. It was urged that the order passed by the Division Bench is clear, inasmuch as, the court has recorded that the order dated 22nd June, 2006 passed by the Board of Nominees shall prohibit any further commercial use of the properties in the said society but will not come in the way of those members who have been using such premises for commercial use since prior to 22nd June, 2006. Reference was made to the reply filed by the society in the lavad case instituted by the respondents No.1 to 6 to submit that the subject plot had been allotted to the petitioner on 1st September, 1985 whereas the suit challenging the said transfer has been instituted in the year 2012 after a period of more than 25 years. It was pointed out that in the earlier suit instituted by the respondent No.6 and other members of the society challenging the resolution passed by the society permitting commercial use of its properties, the petitioner herein was impleaded as defendant No.9 and as such, the respondents No.1 to 6 were well aware that the subject plot had been transferred in favour of the petitioner. Despite the aforesaid fact, the transfer had been challenged after a period of 27 years by filing the suit in question. Under the circumstances, the petition deserves to be allowed by setting aside the order passed by the Tribunal and the respondent No.8 is required to be permitted to carry on its activities on the subject plot under the leave and license agreement between the petitioner and the said respondent.
11. Vehemently opposing the petition, Mr. G.M. Joshi, learned counsel for the respondents No.1 to 6 invited the attention of the court to the lease deed executed in favour of Darshan Decorators by the respondent No.7 society to submit that the plot was specifically leased out for commercial purposes.
Subsequently, the society instituted proceedings against Darshan Decorators, however, during the pendency of the suit, Jamnaben and the petitioner Sharad Rami were enrolled as members of the society by allotting plot No.8 to them. It was submitted that one of the conditions of allotment was that the subject plot should be used for residential purposes. It was submitted that the petitioner was an appellant before the Division Bench and as such, he cannot put the property to any other use contrary to the decision of the Division Bench inasmuch as he was a party in the said proceedings in his personal capacity. It was submitted that the Tribunal has rightly interpreted the judgment of the Division Bench and as such, there is no infirmity in the impugned order. According to the learned counsel, the moment the petitioner came to be enrolled as a member, it was incumbent upon him to use the premises in question for residential purposes only and the fact that the plot in question was leased to Darshan Decorators for commercial use would be of no avail in the case of the petitioner. Referring to the reliefs claimed in the suit, it was submitted that the respondents No.1 to 6 had sought a declaration that the petitioner had no right to hold the subject plot which is a common plot and had sought a further relief restraining him from creating further rights on the subject plot. It was urged that the petitioner is at best an allottee of the subject plot and not a purchaser and is, therefore, not the owner thereof. Consequently, when the status of the member is in contradiction to that of a purchaser, the member is bound to use it only for the purpose of residence. Hence, when the plaintiffs (respondents No.1 to 6 herein) wanted the petitioner to be restrained from using the plot for any other purpose, it was their duty to point out that there was an order of the Division Bench and it was necessary to make reference to the said order. It was, accordingly, submitted that the petition being devoid of merit, deserves to be dismissed.
11.1 On the question as to whether the Tribunal had exceeded its revisional jurisdiction, reference was made to the order passed by the Board of Nominees and more particularly to paragraph 3 and 5 thereof. Referring to paragraph 3, it was submitted that the Board of Nominees has opined that the premises on which commercial activities were being carried on prior to 22nd June, 2006 should not be disturbed and that in the suit property, commercial activities were being carried on since 1969 which also continued after 12th May, 2010. It was submitted that the said finding of the Board of Nominees is perverse to the material on record inasmuch as the Division Bench has observed that the order passed by the Board of Nominees will not come in the way of those members who have been using such premises for commercial use since prior to 22nd June, 2006 and not properties which were being used for commercial purposes prior to the said date. It was submitted that the order of the Division Bench permits only those members who were using the plots for commercial purposes since prior to 22nd June, 2006 to continue with such commercial activities and that such order permitting commercial use is limited to the member who was using it and not to the property. Thus, the finding of the Board of Nominees is perverse to the record of the case. Referring to paragraph 5 of the order of the Board of Nominees, it was submitted that it has been observed that the subject premises are being used for commercial purpose wherein Shrikrishna Complex is situated and that the premises in question are being used for commercial purpose since 1969 and, therefore, it is not significant as to who is using the premises as on date, however, what is significant is that the premises are being used for commercial purposes prior to 22nd June, 2006. It was argued that the finding recorded by the Board of Nominees that Shrikrishna Complex is situated on the plot in question is a factually incorrect finding and as such, is perverse. It was argued that in the light of the perversities in the order of the Board of Nominees, the Tribunal was perfectly justified in interfering with the same.
12. In rejoinder, Mr. A.J. Patel, learned counsel for the petitioner submitted that when the petitioner was inducted in the year 1985, he was inducted with a sitting tenant. Therefore, the question of members only using the plot does not arise. It was submitted that the Division Bench was apprised of the fact that this was a residential society, but since the society had permitted commercial use, the members who were already using their premises for commercial purpose were permitted to continue. It was also submitted that other members have also inducted tenants on their premises.
13. In the backdrop of the aforesaid facts and contentions, it may be noted that two separate sets of proceedings have been instituted before the Board of Nominees by different parties. In the first set of proceedings which had been instituted by the respondent No.6 herein and other members of the society, the resolution dated 17th September, 2005 passed by the society permitting commercial use of the properties of the society is subject matter of challenge. In the said proceedings, an application for interim injunction came to be made, pursuant to which, the Board of Nominees passed an order that no member of the co-operative society can start fresh commercial activity in their respective flat, bungalow, plot etc. and granted permanent injunction restraining the defendants therein from carrying on any commercial activity till final disposal of the suit. The said order came to be challenged before the Gujarat Co-operative Tribunal which reversed the order of the Board of Nominees and permitted the members of the society to carry on commercial activities on their plots. In a writ petition instituted by the respondent No.6 and other members before this court, a learned Single Judge of this court set aside the order of the Tribunal and restored the order of the Board of Nominees. In two letters patent appeals preferred by the petitioner and the respondent No.7 society, a Division Bench of this court, on a consensus arrived at by the parties, recorded that the order dated 22nd June, 2006 passed by the Board of Nominees shall prohibit any further commercial use of the properties in the said society but will not come in the way of those members who have been using such premises for commercial use since prior to 22nd June, 2006. Partially modifying its order dated 24th June, 2009, it was provided that the persons carrying on the commercial use of the properties prior to 22nd June, 2006 may carry on such renovation of the properties without disturbing the basic structure of the property in question. It was further ordered that the suit shall be disposed of as expeditiously as possible. It is an admitted position that the said suit is still pending before the Board of Nominees. Thus, insofar as the commercial use of the properties of the respondent No.7 society are concerned, the same is subject matter of the proceedings which are pending before the Board of Nominees in Lavad Suit No.1154/2005.
14. Subsequent to the passing of the said order, it appears that the petitioner has given part of the subject property on leave and license basis to the respondent No.8 for the purpose of establishing Al Fresco Food on the said premises. Such leave and license agreement has been executed on 18th October, 2012. Subsequent to the execution of the aforesaid leave and license agreement, on or about 6th December, 2012, the respondents No.1 to 6 have instituted Lavad Suit No.464/2012 before the Board of Nominees challenging the transfer of plot No.8 in favour of the petitioner as well as seeking a permanent injunction restraining the petitioner, inter alia, from in any manner, transferring the suit properties in favour of the respondent No.8 or permitting commercial use of the said premises in any manner.
15. Since the suit instituted by the respondents No.1 to 6 is still pending before the Board of Nominees, this court would generally refrain from commenting upon the merits of the case except to the extent it is absolutely necessary for the purpose of adjudicating upon the controversy before this court. Under the circumstances, it may be necessary to touch upon some of the aspects which may have some bearing on the merits of the case. From the facts which have come on record, it is apparent that the allotment of the subject plot in favour of the petitioner way back in the year 1985, was well within the knowledge of the other members of the society. The petitioner and Jamnaben Annaji who were jointly allotted the plot had paid Rs.10 lakhs to the society at the relevant time. While allotting the plot to the petitioner, it was also observed that it would be the responsibility of the allottees to prosecute the suit against Darshan Decorators. Subsequently, in the year 2005, upon Darshan Decorators vacating the subject plot, the petitioner came in possession thereof and continued to use the same for commercial purposes. Much later, after the petitioner entered into a leave and licence agreement with the respondent No.8, the present suit came to be instituted after a period of about 27 years from the date of allotment of the subject plot in favour of the petitioner. Evidently, therefore, there is a considerable delay in instituting the said proceedings. Insofar as the relief claimed vide paragraph (b) of the civil suit is concerned, the same appears to be in the context of the orders passed by the Division Bench of this court in the above referred letters patent appeals which relates to a separate proceeding wherein the petitioner and some of the respondents were also parties.
16. In the opinion of this court, the respondents No.1 to 6 while instituting the suit in question appear to have mixed up two issues in the said suit by taking support of the order of the Division Bench in totally unrelated proceedings wherein the allotment of the subject plot in favour of the petitioner was subject matter of challenge. The allotment of land by the society has no nexus with the ultimate user thereof. Besides, it is an admitted position that the petitioner is a defendant in the earlier Lavad Suit No.1154/2005 and was a party in the proceedings up to the stage of the letters patent appeals. Therefore, any act of the petitioner, if the same is in breach of the order made by the Division Bench, would form part of the said proceedings and could have been challenged in the pending suit or by instituting appropriate proceedings for disobedience of the said order. However, while challenging the allotment made in favour of the petitioner in the year 1985, there does not appear to be any justification in placing reliance upon the order of the Division Bench passed in a different proceeding. Therefore, the respondents No.1 to 6 ought to have made out a case for grant of interim relief independent of the order of the Division Bench passed in the other proceeding. As a consequence thereof, instead of considering the relief claimed by the respondents No.1 to 6 in Lavad Suit No.464/2012 on the merits of the said case by examining as to whether or not a prima facie case has been made out; in whose favour the balance of convenience lies; as well as the question of irreparable injury, the Board of Nominees and the Gujarat Co-operative Tribunal have needlessly been called upon to interpret the order passed by the Division Bench and to consider the question of grant of interim relief on the basis of such interpretation. While, seeking interim injunction in the suit under consideration, the respondents No.1 to 6 were required to satisfy the court that they had a prima facie case, that the balance of convenience lies in their favour and that they would suffer irreparable injury, which cannot be compensated in terms of money. However, no such case appears to have been pleaded before the Board of Nominees and the entire submissions revolve round the order passed by the Division Bench which emanated from proceedings wherein the resolution passed by the society permitting its members to put their plots to commercial use was subject matter of challenge.
17. In Wander Ltd. V. Antox India P. Ltd. (supra) the Supreme Court held thus:
Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated is to protect the plaintiff against injury by violation of his rights for which he could not adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the balance of convenience lies . The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie. The court also, in restraining the defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted.
18. Examining the relevant factors for the purpose of grant of interim injunction, as noted hereinabove, the suit has been instituted after a period of about 27 years since the subject plot was allotted to the petitioner and despite the fact that the respondents were aware of such fact, they did not challenge it for such a long period, hence, prima facie there is an inordinate delay in instituting the suit on the part of the respondents No.1 to 6. Insofar as the question of balance of convenience is concerned, it cannot be gainsaid that the subject property has been allotted to the petitioner in the year 1985 and the consideration has also been paid at the relevant time. At that time the subject plot was occupied by Darshan Decorators against whom proceedings had been instituted, which, after the allotment in favour of the petitioner, were to be prosecuted by the petitioner. Darshan Decorators used the said plot for commercial purposes and after the plot came to be vacated in the year 2005 and possession was handed over to the petitioner, he too continued to use the same for commercial purposes and has now given the said plot on leave and license basis to the respondent No.8 for fruit product sale. Thus, since the year 1969 the subject plot has been used for commercial purposes, and on the stipulated date, viz., 22nd June, 2006 the same was being used for commercial purposes. It may be recalled that the Division Bench by its order dated 12.05.2010 has recorded that the order dated 22nd June, 2006 passed by the Board of Nominees shall prohibit any further commercial use of the properties in the said society but will not come in the way of those members who have been using such premises for commercial use since prior to 22nd June, 2006. As to whether change in the nature of the commercial use to which the property was put would amount to further commercial use as contended by the respondents No.1 to 6 or would fall within the ambit of used for commercial purposes on 22nd June, 2006 is a matter of interpretation, and it is possible to interpret the same either way, hence two views are possible.
19. As can be seen from the order passed by the Board of Nominees, the same is a well discussed and reasoned order. The Board of Nominees has, after observing that it is not within the purview of the Board of Nominees to interpret the order of the High Court, expressed the opinion that the said order means that in those premises where commercial activities were commenced prior to 22nd June, 2006, the same could not be disturbed. As noted hereinabove, the interpretation put forth by the Board of Nominees is a plausible one and cannot be said to be, in any manner, perverse. It may be that on a reading of the order of the Division Bench, it may be possible to take a different view, however, it cannot be said that on the facts and in the circumstances of this case, no reasonable man could have formed the view adopted by the Board of Nominees.
20 As discussed earlier, the Tribunal was exercising revisional powers under section 150(9) of the Gujarat Co-operative Societies Act. It is settled legal position that revisional powers have to be exercised sparingly, only as a discretion in order to prevent gross injustice and the same cannot be claimed, as a matter of right by any party. Moreover, as held by the Supreme Court in the case of Wander Ltd. and Another v. Antox India Pvt. Ltd. (supra), an appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. This is exactly what has been done by the Tribunal, inasmuch as, after re-appreciating the evidence on record, it has arrived at a different interpretation of the order passed by the Division Bench. Under the circumstances, the learned counsel for the petitioner is well justified in contending that the Tribunal has exceeded its revisional jurisdiction in reevaluating the evidence on record and arriving at a view different from that taken by the Board of Nominees.
21. The learned counsel for the respondents No.1 to 6 has contended that the order passed by the Board of Nominees is perverse inasmuch as it has been recorded that the order passed by the Division Bench permits commercial use of premises where commercial activities were being carried on prior to 22nd June, 2006. In case of premises where commercial activities were being carried on prior to 22nd June, 2006, the same should not be disturbed. Whereas, the order made by the Division Bench is in the context of use of premises for commercial purpose by members and not commercial use of premises, per se. As discussed earlier, on the same set of facts, it may be possible to arrive at a different interpretation of the order passed by the Division Bench however, it cannot be said that the interpretation put forth by the Board of Nominees is perverse to the evidence on record. Therefore, even if on the same set of facts it was possible to take a different view, the Tribunal was not justified in disturbing the order of the Board of Nominees. As regards the contention that the order passed by the Board of Nominees is perverse inasmuch as it has recorded a factually incorrect finding that on the subject plot Shrikrishna Complex is situated, in the opinion of this court, nothing much turns on the said observation inasmuch as it has been observed by the Board of Nominees that the subject plot was being used for commercial purposes since 1969 and such use has been continued till date. Under the circumstances, the said contention also does not merit acceptance.
22. In the light of the aforesaid discussion, the petition succeeds and is accordingly allowed. The impugned order dated 11th January, 2013 passed by the Gujarat State Co-operative Tribunal in Revision Application No.179/2012 to the extent it restrains the petitioner from leasing/renting out the plot in question to a third party for commercial use is hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs.
23. It is further clarified that any observations made in this order touching the merits of the suit are only prima facie observations made for the purpose of deciding the controversy in issue and the Board of Nominees shall decide the suit without in any manner being influenced by any observations made in this order.
( Harsha Devani, J. ) hki/parmar* Page 27 of 27