Calcutta High Court (Appellete Side)
Sanjay Budhia Family Trust & Ors vs Tripura Enclave Residents' on 14 May, 2014
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present : The Hon'ble Justice Tapan Kumar Dutt
and
The Hon'ble Justice Dr. Mrinal Kanti Chaudhuri
F.M.A. 1218 of 2013
with
C.A.N. 4489 of 2013
Sanjay Budhia Family Trust & Ors.
vs.
Tripura Enclave Residents'
Welfare Association & Ors.
For the appellants : Mr. Shaktinath Mukherjee
Mr. S.P. Roy Chowdhury
Mr. Probal Mukherjee
Mr. Debanjan Mandal
Mr. Biswajit Kumar
Ms. Shruti Swaika
Mr. Sudha Satva Banerjee
For the respondent Nos. 1-10 : Mr. Pratap Chatterjee
Mr. Abhrajit Mitra Mr. Jishnu Chowdhury Mr. M. M. Chandra Mr. Shouoovik Roy Mr. C. Gupta For the respondent No.11 : Mr. Saptangshu Basu Mr. Jasojeet Mukhjerjee Heard on : 26.02.14, 11.03.14, 18.03.14, 20.03.14, 26.03.14, 27.03.14, 01.04.14, 08.04.14.
Judgement on : 14.05.2014 Dr. Mrinal Kanti Chaudhuri, J. :-
This appeal is preferred by the defendant Nos.1 and 2 in Title Suit No.6162 of 2012 against the temporary injunction order dated 20th February, 2013 passed by learned Civil Judge (Senior Division), 2nd court at Alipore.
The respondents being the plaintiffs instituted the aforesaid Title Suit praying for declaration that no part of the first floor of the building namely Tripura Enclave described in the schedule can be used by the appellants/defendant Nos.1 and 2 for any other purpose other than residential and all permission for conversion from residential to commercial or for structural lay out changes to the first floor are illegal, null and void and for perpetual injunction for removing the internal staircase connecting ground floor unit to the first floor and restraining the appellant from making any change/alteration of the first floor and other reliefs. The plaintiffs/respondents also filed a petition praying for temporary injunction restraining the appellant/defendant Nos.1 and 2 from constructing any internal staircase connecting the ground floor flat with the first floor flat at the premises No.59, Ballygunge Circular Road, Kolkata and an order for injunction restraining the appellant/defendant Nos.1 and 2 from using first floor for any purpose other than residential.
The plaintiff/respondent No.1 is Tripura Enclave Flat Owners Association. The plaintiff/respondent Nos.2 to 10 are owners of the flat who are the members of the association. The appellant/defendant Nos.1 and 2 are owners of the first floor and ground floor of the said premises. There is no internal staircase from first floor to ground floor. Both the floors are separate units having separate entrances at different level.
The association was formed on 20th June, 2006 and it was registered on 4th July, 2006. The members of the association are bound to act as per rules and regulations of the association and also as per resolution adopted by the association. According to rules and regulations of the association, prior permission of the governing body of the committee is necessary for any change of nature of use. The appellants/defendants applied on 28.11.2011 for permission for carrying out internal decoration of the first floor flat. The permission was accordingly granted on 2nd December, 2011 with specific indication that no structural and lay out change would be carried out. The plaintiff/respondents came to know that defendants/appellants carried out some structural change and they asked the defendants to stop their work. The appellants/defendants informed on 19.11.2011 that they obtained permission from Kolkata Municipal Corporation for installing of internal staircase for getting access from ground floor to first floor. Accordingly, a special general meeting was held on 26.02.2012 where a resolution was adopted to the effect that all the residential flats from first floor upwards would not be converted into commercial space/office.
The case of the plaintiffs/respondents Nos.1 to 10 was that the appellants/defendants abstained from the meeting. Barring the appellants/defendants, everyone supported the resolution of status of flat as residential. The appellants/defendants fraudulently obtained permission from Kolkata Municipal Corporation on 08.09.2011 for conversion and for structural and lay out change. Kolkata Municipal Corporation was under obligation not to sanction plan and grant permission for conversion from residential to commercial. The permission granted by Kolkata Municipal Corporation is not in conformity with the provision of Kolkata Municipal Corporation Act, rules and regulations. The permission granted by Kolkata Municipal Corporation is, therefore, illegal, null and void. The user of the first floor flat as office would cause nuisance to the residential flat owners. It would create noise and annoyance. It would diminish the value of the residential flats. The appellants/defendants are bound to abide by the rules and regulations of the association and also the decision of the governing body of the association dated 26.02.2012. Hence, the plaintiffs/respondents pray for an order of injunction restraining the appellant/defendant Nos.1, 2 and 3 from constructing internal staircase connecting ground floor with first floor and thereby making any structural change and for a further order of injunction restraining them from using the first floor flat for any purpose other than residential.
The appellants/defendants have contested this temporary injunction petition by filing a written objection and have denied therein all the material allegations made by the plaintiffs/respondents. According to them, the plaintiffs/respondents have no cause of action in filing the petition for injunction. The appellants/defendants did not violate any rules and regulations of the association. They have categorically denied to have violated any relevant law or legal provision or acted in breach of their obligation in the matter. On 02.09.2011, they obtained approval for renovation and installation of internal ladder from Kolkata Municipal Corporation. Licensed Building Surveyor of Kolkata Municipal Corporation issued a certificate on 15.12.2011 to ensure that the installation of internal ladder was done in accordance with the permission granted by the Kolkata Municipal Corporation, Building Department under Section 416 on 02.09.2011 without effecting any structural construction of the building. The appellants/defendants intimated the association the fact of approval of plan, sanction/permission to install internal ladder. On 24.02.2012, the appellants/defendants sent letter to the association referring to the sketch plan approved by the Kolkata Municipal Corporation confirming the proposal of conversion on 01.03.2012. They allotted a space on rent to M/s. Patton Securities Private Limited for opening a branch in the suit flat at the rate of Rs.10,000/- per month. Kolkata Municipal Corporation granted trade licence to M/s. Patton Securities Private Limited on 19.03.2012. The appellants/defendants did not get a copy of notice of special general meeting to be held on 26.02.2012. The plaintiffs/respondents did not make any complaint to the Kolkata Municipal Corporation in connection with the aforesaid dispute. In the instant facts and circumstances, the defendants/appellants have stated that the injunction application was devoid of any merit and they have prayed for rejection of injunction petition with cost.
We have carefully, perused the entire materials on record including the submissions made by senior counsel for the appellants and also the submission made by learned counsel for the respondents.
It is submitted by learned senior counsel for appellants/defendants that the association being plaintiff No.1 and its members being plaintiff Nos.2 to 10 cannot adopt a resolution dated 26.02.2012 which has no legislative support. In other words, learned counsel submitted that the resolution for non-conversion of flat from residential to commercial or nature of user of the flat other than residential does not find any substantive provision in the legislative Act. Therefore, the said resolution being not legally valid has no binding effect upon the defendant Nos.1 to 3. Learned senior counsel has further submitted that the memorandum with its objects and the accompanying regulation of 20th June, 2006 does not denote any such provision which obtained its sanction by legislature. Learned senior counsel has submitted further that the objects of memorandum only denote that it is merely a philanthropic organisation having no relation to the user of flat of Tripura Enclave.
To support the said submission learned counsel has referred to a decision of reported in State of Rajasthan & Ors. vs. Basant Nahata reported in (2005)12 SCC 77. Hon'ble Apex Court held therein "in absence of any substantive provision contained in parliamentary and legislative Act, he cannot be restrained from dealing with the property in any manner he likes. Such statutory interdict would be opposed to one's right of property as envisaged by Article 300-A of the Constitution".
Learned senior counsel for the appellants has submitted that the ground floor flat and first floor flat are two separate units having separate entrance. The access of the first floor is in separate gate from the Eastern side of the building. The ground floor entrance is completely separate from the first floor. Since the entrance of the suit flat is quite separate from the other flats of the building, there can be no apprehension of causing nuisance and annoyance. It is further submitted by learned senior counsel for the appellants that association was formed on 20.06.2006 and it was registered on 04.07.2006. The memorandum of this registered association did not incorporate the rules of 2005 upon which the resolution was adopted on 26.02.2012. It is, therefore, submitted that without annexing the rules of 2005 in the memorandum and regulation, the plaintiffs/respondents cannot say that it is a part of the memorandum and regulation of 2006. The regulation of user of the flat is not within the object of memorandum and, therefore, the rules of 2005 do not become effective. Learned senior counsel has, therefore, cited another decision of Indian Oxygen limited vs. Their workmen reported in AIR 1969 SC 306. In para 11 of the said judgement, Hon'ble Apex Court has made it clear that the "registered union can alter its rule only in the manner provided in these provisions that is, it has to send the amended rides to the Registrar within 15 days from the amendment and until the Registrar is satisfied that the amendments are in accordance with the rules of the union and on such satisfaction registers them in a register kept for that purpose and notifies that fact to the Union's Secretary, the amendments do not become effective".
Learned senior counsel has, therefore, submitted that since rules of 2005 are not incorporated as added or altered regulation of the association, as per provision of West Bengal Society Registration Act, 1961, it is apparently the abandonment of rules of 2005.
On the other hand, learned counsel for the respondents/plaintiffs has submitted that the rules made in April, 2005 contains the provision in serial No.64 which provides "all renovation and alteration work of the flat can be taken up only with the prior permission obtained in writing from the committee. No structural or lay out changes will be permitted to be carried out..............................". It is further submitted that although the added rules were not filed with the Registrar as per Section 9(1) of the West Bengal Society Registration Act, 1961 it cannot render the rules invalid. Learned counsel has submitted further that the rules of 2005, although it has no statutory obligation, has its contractual obligation and, therefore, the appellants are bound to abide by the contract and the decision of majority of the association. Learned counsel for the respondent has further submitted that the word "shall" in the said provision is not mandatory but it is a directory. He has cited several decisions of law. Learned counsel has further submitted that the contention of learned senior counsel for the appellants/defendants do not find place in the written objection and, therefore, said contention and objection cannot be looked into unless there is averment in the written objection. On the aforesaid point learned counsel has referred several decisions of law.
Learned counsel for the respondent/plaintiffs has referred to a decision of Syed and Company & Ors. vs. State of Jammu & Kashmir & Ors. reported in 1995 Supp (4) SCC 422. In the said case the entire case of the State in the suit proceeded only with reference to royalty and interest thereon but not with reference to the price of timber. It was held by Hon'ble Apex Court that no evidence could be led in without the pleading.
We have considered the submissions and scrutinised the relevant provision and decision of law.
For a greater clarification, it is wise to refer the provisions of Sections 4, 5, 6, 7, 8 and 9 of West Bengal Society Registration Act, 1961.
Section 4 speaks that any or more individuals may subscribe their name to a memorandum of association and file it along with a copy of the regulation with the Registrar for registration of the association as a society under this Act.
Section 5 speaks that memorandum shall contain amongst other things the object of the association.
Section 6 speaks that the Registrar shall not accept any memorandum for registration of a society unless it is accompanied by a copy of its regulation.
Section 7 speaks that Registrar has to be satisfied that the memorandum and the regulations accompanying it comply with the requirements of the Act and rules and thereafter he shall certify that the society is registered under this Act.
On a combined perusal of the aforesaid provisions of the law, it is quite apparent that the memorandum of association must accompany the regulation. Memorandum cannot exist without regulation and the regulation cannot remain in isolation from memorandum.
Section 8 speaks of the alteration of memorandum with previous permission of the Registrar. The Section further provides that subject to the provisions of this Act, the rules and the provisions of the memorandum, a society may, by the vote of three-fourths of the members alter its regulations.
Section 9(1) further provides that a copy of every alteration of the memorandum and of the regulations shall be filed with the Registrar within 30 days of such alteration and Section 9(2) provides that the Registrar within 30 days such receipt, shall record the alteration and send an intimation of the fact to the society or communicate to the society his objections to such alteration.
Sub-Section 4 of Section 9 further provides that an alteration shall have effect from the date on which the intimation is received by the society.
In the present case, no copy of rules of April, 2005 being the purported addition or alteration of the regulation of 2006 was ever sent to the Registrar. As a result, the Registrar could not receive the alteration and record the same and send an intimation of the facts of alteration to the society. Therefore, in view of Section 9(4) of the Act, the rules of April, 2005 as the added or altered regulations cannot have its effect as the society did not receive any intimation from the Registrar. Learned counsel for the respondents submitted that transmission of regulation of April, 2005 to the Registrar is directory and not mandatory and, therefore, the non-compliance of Section 9(4) of the Act does not render the regulation void. This submission of learned counsel for the respondent has no merit in view of the provision contained in Section 9(4) read with Section 8, Section 9(1), 9(2) of the Society Registration Act, 1961 elucidated above.
Learned counsel has further referred to a decision of law of Sri Sanatan Dharam Sabha & Anr. vs. Registrar, Firms, Societies and Chits, U.P., Lucknow and Delhi reported in AIR 1989 All 189. The facts and circumstances of the said case is quite distinguishable from the present one. In the said case, a resolution was passed on the general body of the society to change certain by-laws and the said resolution was not communicated to the Registrar. Hon'ble Court held that non- communication of the resolution does not render the resolution void. Hon'ble Court further held that in case, the said resolution was communicated to the authorities after the prescribed period it would not invalidate the valid resolution passed by the general body. In the present case, no such a resolution was passed by the governing body of the association. Rules of April, 2005 was not framed on the decision of the governing body of the association because the association came into existence on 20.06.2006 and it was registered on 04.07.2006. As a result, the rules were not the product of resolution of the governing body of the registered association. Therefore, the aforesaid decision of the Hon'ble Court is not applicable to the present case.
It has been reiterated by the learned counsel for the respondent that although the resolution dated 26.03.2012 have no statutory force, the members are bound by the resolution because it has contractual force. The wish of the majority of members has a contractual force even though one or two members may remain absent.
Learned counsel has cited a decision reported in (2005) 5 SCC
632. In the said decision, Hon'ble Apex Court held that membership in a cooperative society only brings about a contractual relationship among the members forming it subject, of course, to the Act and the rules and they become binding between the persons affected by them but they do not have the force of a statute.
Learned counsel also cited a decision reported in AIR 1946 Bom 516 where it has been held that a society registered under the Societies Registration Act, 1860, has a legal entity apart from the members constituting it. It can sue and be sued in its own name. The action of the majority of members of the society is binding on the minority, specially where one of the rules of the society so provides.
Learned counsel has also cited a decision reported in 2010(2) MHLJ 657 corresponding to 2010(1) Bom CR 31. It has been held therein that the members of the society are bound by the decision of the society. It has been held further that once a person becomes a member of the cooperate society he loses his individuality with the society and he has no independent rights except those given to him by the statute and by-laws. Therefore, members are bound by their majority decision of the general body. The members has to speak through the society or rather the society alone can act and speaks for him qua the rights and the duties of the society as a body.
It is further submitted by the learned counsel for the respondent that the interest of the society and the majority are our paramount consideration. He has cited a decision reported in (2000)9 SCC 295. It has been held that in the interest of society it is primarily for society alone to decide and it is not for an outside agency to say. It has been observed that where the Government or the Registrar exercises statutory power of issuing direction to amend the by-laws such direction should satisfy requirement of interest of the society.
Learned counsel has further referred to a decision reported in (2011)13 SCC 774. At paragraph 26, Hon'ble Apex Court has observed "in matters of internal management of an association, the courts normally do not interfere, leaving it open to the association and its members to frame particular bye-law, rule or regulation which may provide for eligibility and or qualification of the membership and/or providing for limitations/restrictions on the exercise of any right by and as a member of the said association.
It is well-settled legal proposition that once a person becomes a member of the association, such a persons loses his individuality and he has no individual rights except those given to him by the rules and regulations and/or bye-laws of the association."
It is, therefore, submitted that the appellants must abide by the decision of the majority of the members of the association.
Finally, it has been submitted by the learned counsel for the respondent that the issues which have been raised by the learned senior counsel for the appellants were not put forward before the learned trial judge and there is no foundation in the pleading with regards to the issues placed before this Court.
Learned counsel has, cited a decision reported in 1995 Supp (4) SCC 422. Hon'ble Apex Court observed that no evidence could be led in without the pleading. The learned counsel also cited a decision reported in AIR 1965 SC 1752. Hon'ble Apex Court observed in the said decision that the High Court rightly ruled that this new contention could not be raised for the first time in appeal.
Learned counsel for the respondents cited decisions of law elucidated above. There is no dispute with regards to the principle of law held by Apex Court in the judgements mentioned above. It is submitted by the learned counsel for the respondents that no amount of evidence can be looked into which was never put forward. It is also submitted that the written objection filed by the appellants/defendants does not contain such case which was argued and submitted by learned senior counsel for the appellant. Learned counsel also cited a decision reported in (2000) 4 SCC 50 and also other decision already cited above as well as 1995 Supp (4) SCC 422. The legal principle in the aforesaid decision are not disputed. But the fact remains that the appellants/defendants in the written objection to the injunction petition have categorically stated that they did not violate any rules and regulations of the plaintiff/association or any law or legal provision relevant to the work of renovation or installation of internal staircase and they did not act in breach of any of their obligations in any manner whatsoever. Therefore, it cannot be stated that the submission made by learned senior counsel for the appellants/defendants are out of pleading. The decisions of law cited by the respondents have no application in the present case.
Finally, learned counsel for the respondentss concludes his submission to the effect that appellants being members of the society are bound to abide by the decision of the majority and, therefore the appeal preferred by appellants must fail.
On a close and careful scrutiny of the memorandum, its object and also its accompanying regulation on the basis of which the society was registered on 0407.2006, it is manifestly clear that the objects of the association are social, benevolent and welfare, cultural activities. The nomenclature of the association is clearly a welfare association as it appears from its object. Its extra objects are related with the duty of maintenance of building named "Tripura Enclave" including lift, staircase, generator and repair of the building with walls, gate, grills, landing in proper shape and condition. Another object of the association is to improve and alter any building or its portion for the convenient use of the society. The regulations relate to the rights and obligation of members and its expulsion, removal, meeting of governing body, duties of office bearers, addition and alteration of rules and regulation of the society by three-fourth majority in general body meeting in accordance with Section 8 of West Bengal Society Registration Act, 1961.
Learned counsel for the respondents referred to the rules of April, 2005 which provides in serial No.64 that all renovation and alteration work in the flats can be taken up only with prior permission obtained in writing from the committee. No structural or lay out changes will be permitted to be carried out. But the rules of April, 2005 cannot at all be treated as an added regulation of the association which was formed on 20.06.2006 and obtained certificate of registration on 04.07.2006 on the ground elucidated in the earlier paragraphs.
The memorandum of the association dated 20.06.2006 along with its regulations does not contain any such prohibitory clause of nature of user of flat. Naturally, the appellants did not seek any permission for renovation. The letter dated 28.11.2011 of the appellants to the Secretary of association only reveals a request to instruct the security personnel to allow the masons to enter into the building to do the job of interior renovation and decoration of the flat. Although the prohibition of structural or lay out change was imposed by the society vide its letter dated 02.12.2011, the appellants did not make any structural or lay out change as it appears from the report of L.B.S. of Kolkata Municipal Corporation dated 15.12.2011. The certificate of L.B.S. reveals that "the works in the ground floor and first floor of the "Tripura Enclave" situated at 59, Ballygunge Circular Road, Kolkata was carried out in accordance with the permission granted by Kolkata Municipal Corporation, Building Department under Section 416 dated 02.09.2011 without effecting the structural construction of the building and the job stood completed and the flats are ready for use."
The appellants by letter dated 19.12.2011 ensured the association that the construction of internal ladder for accessing to the first floor was done by the appellant after obtaining sanction/permission of approved plan granted by Kolkata Municipal Corporation without making any structural change and the copy of the sanctioned plan was also annexed to the letter. In compliance with the letter of association dated 26.12.2011, the appellants issued a letter dated 24.02.2012 by sending sketch plan approved by Kolkata Municipal Corporation and also confirmation of proposal for conversion from residential to office use as per Kolkata Municipal Corporation rules.
It is pertinent to note that the resolution of the association was adopted on 26th February, 2012. Prior to taking this resolution the appellants completed the renovation, decoration and installation of internal ladder as it appears from letter of L.B.S. dated 15.122011. Therefore, the resolution dated 26.02.2012 which was adopted in violation of the memorandum of the association dated 20.06.2006 has no binding effect upon the appellant. The submissions of learned counsel for the respondent that the rules of April, 2005 on the basis of which the resolution dated 26.02.2012 was taken, binds the appellants, has no merit, inasmuch as the rules were made purportedly long before the formation and registration of the association and those rules were not made part of the memorandum as per provision of West Bengal Society Registration Act, 1961. Since those rules were not made by registered association, those rules have no legislative support. The submission of learned counsel for the respondent that although the rules of April, 2005 were not sent to the Registrar under the provision of Section 9(1), the rules cannot be rendered in effective, has no merit because those rules were not made by registered association. Consequently, the resolution of 26.02.2012 on the basis of rules April, 2005 has no binding effect upon the appellant. The decisions cited by learned counsel with regads to the implication of the word "shall" that it is not mandatory but a directory does not help the respondents in any way. The decision cited by learned counsel for the respondent reported in AIR 1999 All 189 has no application. In the said case, the decision of amendment of society bye- laws by general resolution was not communicated through Registrar. In that case, amendment of society bye-laws by the general body resolution was not communicated. Hon'ble High Court at Allahabad held that non- compliance of Section 4 of the Society Registration Act, 1860 by not communicating the resolution to the Registrar does not render the resolution as void. In the present case, the rules of April, 2005 were not framed by the governing body of the registered association and those rules were not made part of the rules of association by due process of law on any subsequent period. Therefore, the question of statutory interpretation of the word 'shall" in Section 9(1) of the Act whether mandatory or directory does not arise. The said decision is of no help to the respondent in the present facts and circumstances already elucidated above.
Learned counsel for the respondents also submitted that every member is bound to abide by the decision of majority. He has cited the decisions of law referred to above. There is no dispute about the aforesaid legal position. But the fact remains that the rules of April, 2005 is not a part of the bye-laws/regulations of the registered association and the resolution of the committee dated 26.02.2012 is not based upon the objects and regulations of the association. The rules of April, 2005 cannot be termed as contract or regulation of the registered association and, therefore, these rules did not obtain any statutory/legislative support. Hon'ble Apex Court in (2005)5 SCC 632 held that membership in a cooperative society only brings about a contractual relationship among the members forming it subject, of course, to the Act and the rules. In the present case, acts and rules of the registered association do not provide for adopting the resolution dated 26.02.2012 which results from the rules of April, 2005. Therefore, the decision of law of Hon'ble Apex Court in State of Rajasthan & Ors. vs. Basant Nahata reported in (2005)12 SCC 77 has its application in the present case. Hon'ble Apex Court in the said decision held that no one can be restrained from dealing with his property in any manner he likes in absence of any substantive provision contained in parliamentary and legislative Act.
The governing body of the association cannot legally adopt any resolution which is outside the purview of the objects and regulation of memorandum of the association. Therefore, the appellants/defendants did not violate any rules and regulations of the registered association and did not act in breach of obligation as alleged by the respondents.
This Court is, therefore, of considered view that the resolution of the governing body dated 26.02.2012 has no legal sanction and rules of April, 2005 is not a part of the object and regulation of the memorandum of association dated 20.06.2006.
The appellants obtained necessary permission for installation of internal ladder and conversion of first floor flat from residential to an office. It is alleged that the appellants obtained permission from Kolkata Municipal Corporation for conversion by practising fraud. But the respondent did not take any such step before the appropriate forum for cancellation of sanctioned plan and permission granted by Kolkata Municipal Corporation. On the contrary, Kolkata Municipal Corporation was deleted from category of defendant No.4 as no relief was sought for against Kolkata Municipal Corporation.
The ratio of decisions cited by learned counsel for the respondents mentioned above, are not disputed. But the facts and circumstances of those cases are quite distinguishable from the present one. Therefore, those decisions cannot have any application in the present case in view of the facts and circumstances already elucidated above.
It is submitted by learned senior counsel for the appellants that the entrance of ground floor flat and the access to the first floor flat through internal ladder in the ground floor are completely separate and there is no scope of causing any nuisance and annoyance to the other flat owners. Learned senior counsel for the appellant has further submitted that no case of excessive noise to the flat owners or case of annoyance in the form of security hazards, movement of outsiders, causing of damage to the common area or causing hindrance to the peaceful enjoyment of the flat owners has been made out and no such case is made out to the effect that the conversion of user will inevitably result into nuisance.
On scrutiny of the materials on record we find that the submission of learned senior counsel for the appellant has sufficient merit. In fact, the object of injunction is protection of property from substantial damages. Access to first floor through the internal ladder in the ground floor which has its separate entrance cannot cause any nuisance or annoyance. No case of likelihood of future nuisance or annoyance is made out by the respondents. The act of the appellants does not appear to cause any actionable nuisance to the respondents. Therefore, in view with the decision of this Court in Lalit Mohan Mitra & Ors. vs. Samirendra Kumar Ghosh & Ors. reported in 81 CWN 870, respondents/plaintiffs is not entitled to get an order of injunction unless the appellants/defendants' act amounts to an actionable nuisance. The plaintiffs/respondents could not make out any prima facie case of actionable nuisance.
The appellants have been using the ground floor for commercial purpose and they have also obtained permission from Kolkata Municipal Corporation for the use of office in the first floor flat and also permission for internal decoration, renovation and installation ladder from ground floor to first floor and inducted one M/s. Patton Security Private Limited for opening their branch office in the first floor flat premises with effect from 1st March, 2012. Kolkata Municipal Corporation also granted trade licence to that effect. In case, the defendants/appellants are restrained from using the first floor flat as office by way of injunction they will face hardship and inconvenience. Therefore, balance of convenience or inconvenience does not appear in favour of the plaintiffs/respondents. No case of irreparable loss and injury or mischief has been made out by the plaintiffs/respondents.
Learned trial court failed to scrutinise that the object and regulations of the association dated 20.06.2006 do not contain any clause of restriction of the user of the flat by the flat owners. Learned court below also failed to observe that the resolution of the flat owners dated 26.02.2012 in the matter of restriction on the user of flat has no legislative support and, therefore, it has no binding effect upon the appellants/defendants. Learned court below also failed to note that in case, the prayer of injunction is allowed, it would cause hardship and inconvenience to the defendants/appellants and if it is refused no hardship will be caused to the plaintiffs/respondents. Learned trial court capriciously exercised its discretion. Since learned trial court ignored the relevant provisions of law and legal principle and the facts and circumstances mentioned above, it would be open to this Appellate Court to interfere with the discretion exercised by learned trial court.
Therefore, learned trial court was not justified in passing the impugned order of injunction restraining the defendants/appellants from using the first floor flat in any way other than residential.
The appeal succeeds. The impugned order dated 20.02.2013 passed by learned trial court is set aside. The application praying for injunction by the plaintiffs/respondents, therefore, stands rejected.
CAN bearing No. 4489 of 2013 is accordingly disposed of.
No order as to costs.
(Dr. Mrinal Kanti Chaudhuri, J.) I agree, (Tapan Kumar Dutt, J.) Later :
After the aforesaid judgement was delivered in open Court, the learned advocate for the plaintiffs/respondents pray for stay of operation of the above judgement.
Considered the submission of the learned advocates for the respective parties and this Court rejects such prayer for stay.
Urgent certified xerox copy of the judgement, if applied for, shall be given to the parties as expeditiously as possible upon compliance of all necessary formalities.
(Dr. Mrinal Kanti Chaudhuri, J.) I agree, (Tapan Kumar Dutt, J.)