Gujarat High Court
Savitaben Amarshibhai Kanani (Patel) vs Shree Nehrunagar Co Op Housing Society ... on 6 April, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/5980/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 5980 of 2017
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SAVITABEN AMARSHIBHAI KANANI (PATEL)....Petitioner(s)
Versus
SHREE NEHRUNAGAR CO OP HOUSING SOCIETY LTD &
10....Respondent(s)
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Appearance:
MR NIRUPAM NANAVATI, SR. COUNSEL with MR SATYAM Y CHHAYA,
ADVOCATE for the Petitioner(s) No. 1
MR BHARAT T RAO, CAVEATOR for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 06-07/04/2017
ORAL ORDER
1. Heard learned senior counsel Mr. N. D. Nanavaty with learned advocate Mr. Satyam Chhaya for the petitioner and learned advocate Mr.B. T. Rao for the Respondent/s, who is appearing on caveat.
2. Perused the record, which runs into more than 200 pages. The basic issue at this stage is with reference to interim relief only. However, when learned advocate for the petitioner has submitted that since order of status quo is in existence since filing of the suit, it may be continued with the directions to the Court of Board of Nominees to decide the suit in stipulated time period but when Respondent Nos.2 and 3 have not Page 1 of 32 HC-NIC Page 1 of 34 Created On Wed Apr 19 01:30:51 IST 2017 1 of 34 C/SCA/5980/2017 ORDER agreed to such proposal, there is need to pass detailed order irrespective of heavy board and though at this stage of interim relief it would be inappropriate to discuss the detailed merits of the case which would otherwise prejudice either side at the time of final hearing of such petition. There is reason to say so because at this stage of admission and granting of interim relief, matter is argued by Respondent Nos. 2 and 3 in detail as if matter is to be decided finally, at this stage. However, considering the roster and more particularly, when caveat is filed by Respondent Nos. 2 and 3 only and thereby when rest of the Respondents including Respondent No.1 which is party before the trial Court is yet to be heard and considering the facts and circumstances emerging from record, the matter needs consideration and, therefore, Rule needs to be issued to all the Respondents. All the Respondents are directed to complete their pleadings within 60 days from the date of receipt of writ of this order so as to expedite the matter. Respondent Nos. 2 and 3 though have filed detailed reply, they are also free to file additional affidavit, if they so desire. So far as some of the Respondents are concerned, at present though Page 2 of 32 HC-NIC Page 2 of 34 Created On Wed Apr 19 01:30:51 IST 2017 2 of 34 C/SCA/5980/2017 ORDER learned advocate for the petitioner has orally requested to delete some of them since such amendment is pursuant to written request dated 22.03.2017 and since such request is allowed, it would be appropriate for the petitioner to make written request for any such amendment.
3. So far as interim relief is concerned, though matter is argued at length and since I propose to give my reasons for the same, at this stage disclosing each and every issue in detail may unnecessarily prejudice final hearing and, therefore, I would try to make the order as precise as it can be, based upon the rival submission and material available on record. However for the reasons followed herein after let there be an interim relief in terms of order dated 01.02.2017 in previous Special Civil Application No. 5446 of 2016 between the parties wherein Co ordinate Bench has in paragraph 7 states as under:
"7. Therefore, when the final rights of the parties are yet to be adjudicated and determined by the Tribunal for which the petitioner will have to establish his case, in order to balance the rights between the parties at this stage, interests Page 3 of 32 HC-NIC Page 3 of 34 Created On Wed Apr 19 01:30:51 IST 2017 3 of 34 C/SCA/5980/2017 ORDER of justice would be served by directing that till the Tribunal takes an appropriate decision, Respondent Nos.8 and 9 are permitted to make the use of the building but for residential purpose. The rest of the questions shall be decided by the Tribunal on merits."
4. In view of such interim relief already granted on 01.02.2017 and which was in fact operative till impugned order was passed, at present let there be an interim relief in similar terms whereby though Respondent Nos. 2 and 3 are permitted to make use of the building for residential purpose, they are restrained from utilizing the property for commercial purpose and more particularly to run a hospital where several persons would come and go. In addition to it, when petition is challenging the impugned order, the impugned order dated 16.03.2017 in revision application No. 26 of 2017 by the Gujarat Co Operative Society tribunal is hereby stayed.
5. Petitioner herein has filed one Lavad Suit No. 123 of 2015 before the Court of Board of Nominees at Rajkot on or about 27.11.2015 for declaration that a permission for a commercial construction in plot No.4A of the Nehrunagar CoOperative Housing Society Page 4 of 32 HC-NIC Page 4 of 34 Created On Wed Apr 19 01:30:51 IST 2017 4 of 34 C/SCA/5980/2017 ORDER situated at Nanmava main road, Rajkot is illegal. It is undisputed fact that such permission is granted by Respondent No.1 herein in favour of Respondent Nos. 2 and 3 who are defendant Nos. 1, 2 and 3 respectively in such suit. There are several other reliefs including an interim relief for restraining the Respondents from continuing the commercial use of premises in question. The record shows that initially the Court of Board of Nominees has passed an order directing the defendants to maintain status quo of the disputed property till 09.12.2015 and then it was continued till final decision of the application at exhibit 4 for interim relief in such Lavad Suit No. 123 of 2015. By an order dated 22.03.2016, the Court of Board Nominees at Rajkot has rejected such application and vacated the order regarding stay.
6. It seems that initially petitioner has challenged such order by filing Special Civil Application No.5446 of 2016 before this High Court, when tribunal was not available In such petition, as already recorded herein above, since alternative remedy was available before the tribunal, the petition was disposed of with certain observations and Page 5 of 32 HC-NIC Page 5 of 34 Created On Wed Apr 19 01:30:51 IST 2017 5 of 34 C/SCA/5980/2017 ORDER directions amongst which material directions are reproduced herein above, by which co ordinate bench has restricted the Respondent from utilizing the premises for the purpose other then residential purpose. Thereupon petitioner has preferred the Revision Application No. 26 of 2017 before the Gujarat State Co operative Tribunal, Ahmedabad challenging the order dated 22.03.2016 by the Court of Board of Nominees, Rajkot. The tribunal has, however, by impugned order dated 16.03.2017 dismissed the revision application and confirmed the order below exhibit 4 in Lavad Suit No. 123 of 2015. While dismissing the revision by impugned order, tribunal has, after recording submissions by both the sides observed that the dispute raised between the parties is a question of evidence and that when the Commercial activity is continued in other properties hold by other members of the society and when society has permitted the same and the members holding and plot on main road and when there is no discrimination by the society, there is no case in favour of the present petitioner - original complainant. The tribunal has also recorded that issue regarding amendment of byelaws is an administrative issue and if society is not Page 6 of 32 HC-NIC Page 6 of 34 Created On Wed Apr 19 01:30:51 IST 2017 6 of 34 C/SCA/5980/2017 ORDER acting according to byelaws and laws, petitioner may apply before the District Registrar. But when general body of the society has taken some decision and when it is observed that medical services is an activity of charity and when petitioner - plaintiff has raised objections after completing the construction and that administration of society is internal matter and when local bodies have granted permission, all the three conditions are in favour of Respondent. The tribunal has also recorded that Respondent Nos. 2 and 3 have invested Rs. 5 Crores whereas petitioner has came forward with ulterior motive and, therefore, petitioner is not entitled to interim relief. The tribunal has also recorded that though there are several affidavits produced on record, it is a question of evidence and, therefore, there is no error in the order by the Court of Board of Nominees and hence revision is dismissed.
7. Though matter is argued at length so as to avoid interim relief, the fact remains that at present i.e. at the admission stage, the Court has to verify that matter needs consideration or not and that whether interim relief can be granted or not.
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8. Whether if we peruse the impugned judgment, details of which are disclosed herein above now it becomes clear that though tribunal has on two occasions specifically admitted that several issues are matter of evidence, the tribunal has audacity to confirm that plaintiff has filed a revision with ulterior motive. It cannot be said that only because society has acted through majority, they have right and that only because Respondent Nos. 2 and 3 have invested Rs.5 Crores, they can continue the illegal use of the properties which is not permissible in law. It is quite clear that laws and byelaws do not permit the commercial use of residential property.
9. It can never be stated that activities of hospital are charitable activity because all such activities are not only for earning livelihood but earning butter over the bread and, therefore, it cannot be stated that such activities are charitable activity and, therefore, it can be continued even if it results into illegality or irregularity in any manner, whatsoever. It cannot be ignored that if hospital is permitted to be functional in residential zone then there would be more traffic and there is also Page 8 of 32 HC-NIC Page 8 of 34 Created On Wed Apr 19 01:30:51 IST 2017 8 of 34 C/SCA/5980/2017 ORDER possibility of infection in surrounding areas if hospital fails to maintain proper standards of hygiene.
10. At this stage, I do not wish to reproduce the submissions and citations by the petitioner since I am admitting the matter and to avoid repeated exercise since the matter is yet to be argued in detail and would be decided on its own merits at the time of final hearing. However, when interim relief is opposed vehemently with detailed argument, it needs to be considered and answered at present. Thereby, it can be said that grounds taken in pleading by the petitioner are prima facie sufficient to grant interim relief at present.
11. So far as submissions of learned advocate Mr.B.T. Rao for Respondent Nos.2 and 3 are concerned, they are summarized, discussed and answered as under.
12. It is submitted by learned advocate Mr.B.T. Rao for Respondent Nos.2 and 3 that when Respondent Nos.2 and 3 have not hidden anything, their action should not be questioned. For the purpose, he is relying upon an application submitted by them for Page 9 of 32 HC-NIC Page 9 of 34 Created On Wed Apr 19 01:30:51 IST 2017 9 of 34 C/SCA/5980/2017 ORDER becoming a Member of the Society; copy of which is produced at Annexure `I' (Page No.7576). It is submitted that in the column for purpose of purchasing plot / building, when it is stated as `hospital', there is disclosure by Respondent Nos.2 and 3 and knowledge by Respondent No.1 that plot is being purchased for constructing or running hospital. With due respect and since it is at interim stage, by all means, the document is to be read as it is unless it is proved before the trial Court with requisite formalities of proof whereby in alternatively, it can be said that the disclosure of word `hospital' in such column may or may not be considered to confirm that plot was purchased only for construction of hospital. I have reason to say so because in the same document, there is disclosure in the form of Bank by the petitioner which confirms that he will construct the building as per byelaws of the society and for the purpose for which society is formed. In any case, all such issues are to be dealt with after evidence is recorded before the trial Court but at this stage, prima facie it cannot be said that only because of some disclosure by Respondent Nos.2 and 3 or some permission if any granted by Respondent No.1 which is Page 10 of 32 HC-NIC Page 10 of 34 Created On Wed Apr 19 01:30:51 IST 2017 10 of 34 C/SCA/5980/2017 ORDER otherwise not in accordance with law and similarly even if local bodies have granted some permission without considering the relevant provisions of law to confirm that whether a permission for constructing commercial building can be granted in a plot of residential cooperative housing society, only because, everyone including Respondent No.1 has committed some irregularity or error, it cannot be said that once it is permitted by so many persons, it should be continued forever, more particularly, when petitioner being occupant of adjoining plot is objecting to run a hospital in a residential premises adjoining his residential house.
13. As against that, it is contended that when petitioner has agreed in general meeting of the society to permit the Respondent Nos.2 and 3 to construct a hospital and when he was aware about the ongoing construction for almost 18 months and when he has not objected for 18 months, now, he is not allowed to take objections. It is further submitted that when construction was ongoing, petitioner has never opposed the construction. However, it cannot be ignored that starting of construction on day one cannot confirm that Page 11 of 32 HC-NIC Page 11 of 34 Created On Wed Apr 19 01:30:51 IST 2017 11 of 34 C/SCA/5980/2017 ORDER whether it is for commercial purpose or residential purpose and, therefore, as and when it is confirmed that property is being constructed for being utilized for commercial purpose, petitioner has initiated proceedings and it is not beyond such time frame when such issue cannot be considered in detail. It is also alleged that by not objecting the construction at the initial stage, there is some malafide and ulterior motive on the part of the petitioner. However, such pleading or submission alone is not sufficient to prove any malafide or ulterior motive which is also admitted by the Tribunal and, therefore, it is a question of evidence.
14. So far as the aspect of delay is concerned, learned advocate Mr.B.T. Rao appearing for Respondent Nos.2 and 3 is relying upon following decisions: [a] Prabhakar v. Joint Director Sericulture Department reported in 2015(15) SCC 1, wherein, Hon'ble Supreme Court has observed that right not exercised for long time is not existent and even when there is no limitation period prescribed by any statute relating to certain proceeding in such cases, Courts can apply doctrine of latches / delay / Page 12 of 32 HC-NIC Page 12 of 34 Created On Wed Apr 19 01:30:51 IST 2017 12 of 34 C/SCA/5980/2017 ORDER acquiescence and non suit litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Such observation is based upon the doctrine of delay and latches relating to application of maxim of equity `delay defeats equities.' Though there cannot be any issue as to such observation, such judgment needs to be scrutinized and relied upon and applied it its proper perspective, inasmuch as, in the given case an order of termination was challenged after a period of more than 14 years by a labourer under the Industrial Disputes Act. Whereas, in the present case, there is no such inordinate delay and, therefore, only because of some such observations in one case, there cannot be a strait jacket formula in all the cases to confirm that because of some delay, no relief can be granted at all. It is settled legal position that procedural law including delay should not come in way of rendering of justice.
[b] Mandali Ranganna v. T. Ramachandra reported in 2008(11) SCC 1, wherein, Hon'ble Supreme Court has observed and held that while considering the application for grant Page 13 of 32 HC-NIC Page 13 of 34 Created On Wed Apr 19 01:30:51 IST 2017 13 of 34 C/SCA/5980/2017 ORDER of injunction, the Court will not only take into consideration the basic elements in relation thereto, viz., existence of a prima facie case, balance of convenience and irreparable injury, but it must also take into consideration the conduct of the parties. With reference to such citation, it is submitted that in the present case, the conduct of the petitioner in challenging the use of construction only after its completion needs to be considered. However, as already discussed hereinabove, there is no inordinate delay and petitioner has challenged the use at the relevant time and, therefore, it cannot be said that only because of some such observation in some cases, interim relief cannot be granted in any case.
[c] Ramrameshwari Devi v. Nirmala Devi reported in 2011 (8) SCC 249, wherein, Hon'ble Supreme Court has, in paragraph 47 and 48, (which are read out by learned advocate Mr.Rao) observed as under: "47. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the Page 14 of 32 HC-NIC Page 14 of 34 Created On Wed Apr 19 01:30:51 IST 2017 14 of 34 C/SCA/5980/2017 ORDER wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab (2000) 5 SCC 668 this court was constrained to observe that perjury has become a way of life in our courts.
48. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoer."
However, though it may be the position in some cases, in absence of specific evidence to that effect, it cannot be presumed that every plaintiff or petitioner wants to continue the injunction indefinitely only to get some disadvantage. With due respect, I have no option but to record that if such principle is applied in all cases, then, probably provisions of Order 39 - Rule 1 and similar such provisions and powers of all judicial authorities would be futile. Therefore, in a given case, certainly considering the facts and circumstances and evidence as well as applicable law, the Court Page 15 of 32 HC-NIC Page 15 of 34 Created On Wed Apr 19 01:30:51 IST 2017 15 of 34 C/SCA/5980/2017 ORDER may grant interim relief which is always subject to final determination after extending reasonable opportunities to all the concerned.
[d] Zenit Mataplast Pvt. Ltd. v. State of Maharashtra reported in 2009(10) SCC 388, wherein, Mr.Rao, learned advocate for Respondent Nos.2 and 3 has relied upon observations in paragraphs 30, 31, and 38 which read as under: "30. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694)
31. Grant of an interim relief in regard to the nature and extent Page 16 of 32 HC-NIC Page 16 of 34 Created On Wed Apr 19 01:30:51 IST 2017 16 of 34 C/SCA/5980/2017 ORDER thereof depends upon the facts and circumstances of each case as no straitjacket formula can be laid down. There may be a situation wherein the defendant/Respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721. Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra).
38. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case."
Page 17 of 32HC-NIC Page 17 of 34 Created On Wed Apr 19 01:30:51 IST 2017 17 of 34 C/SCA/5980/2017 ORDER The bare reading of above three paragraphs on the contrary confirms that in a given case, interim relief can certainly be granted. Therefore, in absence of inordinate delay, it cannot be confirmed that petitioners are not entitled to any relief only because he has come after some time before the Court raising his grievances and, therefore, I do not see any reason to deny interim relief only on the ground of delay and latches.
[e] Surya Dev Rai v. Ram Chander Rai reported in 2003(6) SCC 675, wherein, Mr.Rao, learned advocate for Respondent Nos.2 and 3 has relied upon observations in paragraphs 26 and 27 of such judgment and submitted that this Court should not exercise its supervisory jurisdiction under Article 227 against the impugned order when two Courts' below have considered the fact and when there are concurrent findings. However, if we peruse the entire judgment, it becomes clear that in paragraphs 26 and 27, though Hon'ble Supreme Court has discussed some issues, ultimately a conclusion in nut shell is endorsed in paragraph 38. Though Mr.Rao, learned advocate for Respondent Nos.2 and 3 has read out some Page 18 of 32 HC-NIC Page 18 of 34 Created On Wed Apr 19 01:30:51 IST 2017 18 of 34 C/SCA/5980/2017 ORDER sub paragraphs of paragraph 38 submitting that it restricts the right of the Court to exercise its powers under Article 227, on overall reading of the judgment, it is very much clear that infact the Hon'ble Supreme Court has nowhere stated that High Court has no power or jurisdiction at all in such matters and if we consider the fact of the case before the Hon'ble Supreme Court, though there were concurrent findings by two Courts' below, the Hon'ble Supreme Court has held that the High Court has failed in refusing to entertain the petition filed by the Appellants holding it as nonmaintainable and, thereby, allowed the appeal setting aside the order by the High Court and, thereafter the petition was ordered to be restored on the file of the High Court to be dealt with by an appropriate bench consistently with the Rules of the High Court. Therefore, when Hon'ble Supreme Court has discussed the issue regarding jurisdiction of the High Court under Article 227, certainly Hon'ble Supreme Court has dealt with the submissions of both the sides pertaining to the issue that whether or not High Court can exercise the jurisdiction and after discussing issue on both the sides, even in cited case, when Hon'ble Supreme Page 19 of 32 HC-NIC Page 19 of 34 Created On Wed Apr 19 01:30:51 IST 2017 19 of 34 C/SCA/5980/2017 ORDER Court has confirmed that High Court has erred in not exercising the jurisdiction under Article 227 of the Constitution of India, it cannot be said that this Judgment is restraining the powers of the High Court in entertaining such petition. Therefore, this judgment would not be helpful at this stage to Respondent Nos.2 and 3.
[f] Mr.Rao, learned advocate for Respondent Nos.2 and 3 has also relied upon judgment of coordinate bench in the case of Vidyanagar Cooperative Housing Society v. Sheela D. Patel dated 13.12.2004 in Special Civil Application No.15555 of 2004 with Special Civil Application No.15561 of 2004 wherein, according to Respondents, Commercial activity was permitted by the High Court in residential society. However, pursuant to decision in the case of Ambica Nagar Co operative Housing Society Ltd. V. State of Gujarat reported in 2013(5) GLR 3740, wherein, it is made clear in paragraph 14.7 that pursuant to decision in Zoroastrian Co operative Housing Society, the decision in Special Civil Application No.15555 of 2004 with Special Civil Application No.15561 of 2004 is impliedly overruled and, therefore, I Page 20 of 32 HC-NIC Page 20 of 34 Created On Wed Apr 19 01:30:51 IST 2017 20 of 34 C/SCA/5980/2017 ORDER need not discuss it any further. Whereas, factually, there is difference in the cited case on hand i.e. in the cited case, the concerned area was declared as a commercial zone but in the present case, though it is submitted that considering the busy main road, this area has become commercial zone, it cannot be said that it is a commercial zone and, therefore, permission can be granted.
[g] Mr.Rao, learned advocate for Respondent Nos.2 and 3 has relied upon similar decision in the case of Sharadbhai Premjibhai Rami v. Vishnumbhai Natvarlal Patel in Special Civil Application No.470 of 2013 wherein also, the coordinate bench has, allowed the leasing or renting out the plot in question to a third party for a commercial use. However, at this interim stage, without considering the factual details, I do not see any reason to rely upon such when judgment of Hon'ble Supreme Court in the case of Zoroastrian Co operative Housing Society (Supra) is prevailing.
However, such case has been dealt with by coordinate bench in Special Civil Application Page 21 of 32 HC-NIC Page 21 of 34 Created On Wed Apr 19 01:30:51 IST 2017 21 of 34 C/SCA/5980/2017 ORDER No.477 of 2017 in the case of Shashikant Ghelabhai Maisuriya v. Anandnagar Sahkari Ghar Mandali Limited wherein relying upon the case of Ambica Nagar Cooperative Housing Society Ltd. (Supra) wherein it is held that the decision in Sharadbhai Premjibhai Rami (Supra) rendered on its own facts and it does not lay down proposition that a member is permitted to use the premises for commercial purpose and to run a restaurant. It is further observed that such aspect is to be finally examined on evidence in the course of the trial of the Lavad suit. Therefore, this judgment would not be helpful to Respondent Nos.2 and 3.
[h] Mr.Rao, learned advocate for Respondent Nos.2 and 3 has also relied upon Harekrishna K. Vadhwani v. Vasupujya Smruti CoOp. Housing Society Limited reported in 2004(1) GLH 257 and relied upon paragraph 9 of the judgment submitting that when general body of the society has taken a decision, unless such decision is challenged under Section 96, plaintiff has no case. It cannot be ignored that issue before the coordinate bench in cited case was with reference to bifurcation of the society and when it was decided by the Page 22 of 32 HC-NIC Page 22 of 34 Created On Wed Apr 19 01:30:51 IST 2017 22 of 34 C/SCA/5980/2017 ORDER general body of the society in three different phases, the Court has held that it is an issue which is to be dealt under Section 96 of the Act. Therefore, only because of such judgment, which is purely on altogether a different footing and facts would not restrict for interim relief in favour of the petitioner for the facts and circumstances and evidence which is produced on record.
15. In support of above submissions, Mr.Rao, learned advocate for Respondent Nos.2 and 3 is also relying upon the provisions of Section 73 of the Gujarat Cooperative Societies Act, 1961. However, the bare perusal of the Act makes it clear that there is no substance in the submissions by Respondent Nos.2 and 3 that byelaws can be deemed to be amended when general body has taken any decision. It is categorically provided under such Statute that subject to the provisions in this Act and the Rules, the authority of every society shall vest in general body of the members in general meeting but it nowhere confirms that byelaws of the society are to be treated as deemed to be amended when general body has taken any decision. If said section is to be Page 23 of 32 HC-NIC Page 23 of 34 Created On Wed Apr 19 01:30:51 IST 2017 23 of 34 C/SCA/5980/2017 ORDER interpreted as suggested then primarily there is no need to have byelaws in the form of documents approved by competent authority and published for reference for all purpose by all the concerned. It cannot be ignored that byelaws can be amended only after following the procedure which is prescribed under Section 13 of the Act which provides for amendment of byelaws of society and confirms that no amendment of the byelaws of the society shall be valid without forwarding it to the Registrar and that Registrar may allow the amendment only if it is not contrary to the Act and Rules. Sub Section (3) of Section 13 confirms that byelaws would be effective only when Registrar issues a certified amendment to the Society.
Date : 07/04/2017
16. Therefore, none of the legal issues raised by the Respondents No.2 and 3 are sufficient to restrict the interim relief prayed for by the petitioner.
17. It cannot be ignored that majority of the members of the cooperative society alone cannot change the statutory provision and, therefore, only because society has resolved by majority to permit the Respondents to carry out commercial construction, when by Page 24 of 32 HC-NIC Page 24 of 34 Created On Wed Apr 19 01:30:51 IST 2017 24 of 34 C/SCA/5980/2017 ORDER laws of the society so also other statutes and decision of the Court, more particularly in the case of Ambica Nagar Cooperative Housing Society (supra) specifically confirm that commercial activity cannot be carried out in residential zone, and more particularly, in plot or house of Co operative Housing Society, the petitioner has got a prima facie case in his favour. It cannot be ignored that prima facie case, balance of convenience and irreparable injury, cannot tilt in favour of the wrongdoer merely because of support rendered by majority members of the cooperative society.
18. Similarly, when byelaws of the society as well as other laws and rules relating to construction, restrict the use of the plot under reference to be utilised for commercial activity, only becuase local authorities have granted permission, the Respondents No.2 and 3 do not have absolute right to utilise such property for commercial purpose when his neighbour has raised the issue regarding illegal permission and construction. Therefore, when it is settled legal position that prima facie case is to be looked into based upon the statutory provision, then, it Page 25 of 32 HC-NIC Page 25 of 34 Created On Wed Apr 19 01:30:51 IST 2017 25 of 34 C/SCA/5980/2017 ORDER is certain that prima facie case is certainly in favour of the petitioner so as to restrain the Respondents from using the property in question for being utlised for commercial purpose. Thereafter, consideration of balance of convenience and irreparable loss would follow the aspect of prima facie case inasmuch as only because someone is a Doctor and has spent some amount for the disputed construciton, it cannot be said that balance of convenience is in his favour and because of his investment against right of the petitioner to stay in a safe residential zone free from infection, contamination, pollution and other hazards, which may occur if hospital is permitted to be functional in residential zone. Therefore, balance of convenience would certainly tilt in favour of the person, who is having residence in residential zone rather than the person, who is trying to utilise the residential zone for carrying out commercial activities. It is wellknown that Doctors are not providing their services as charity, but they are charging handome amount towards their consultancy and other charges and, therefore, only because Respondents want to run hospital, it cannot be said that balance of convenience is in their favour.
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19. It is also clear and obvious that Respondent Nos.2 and 3 have tried to affiliate their hospital with several agencies for cashless treatment and, therefore, there would be more flow of patients in the given area. Thereby, when balance of convenience is also not in favour of the Respondents, petitioner is entitled to interim relief as prayed for. So far as irreparable loss is concerned, it is wellknown fact that developing a hospital in a residential area would be far cheaper than developing a hospital in commercial area and, therefore, practically, Respondents No.2 and 3 are saving huge amount for carrying out illegal construciton in residential zone and, therefore, irreparable loss is not caused to them, but if health of the petitioner and her family members is affected due to infection and other probable health hazards because of adjoining hospital, then, in fact irreparable loss would result to the petitioner. It seems that the Tribunal has failed to realise all such aspects.
20. It would be appropriate to recollect that in case of Ambica Nagar Cooperative Housing Society Ltd. (supra), the Court has considered all the cases on the subject, Page 27 of 32 HC-NIC Page 27 of 34 Created On Wed Apr 19 01:30:51 IST 2017 27 of 34 C/SCA/5980/2017 ORDER which are 33 in number and after detailed discussion on the subject, came to the conclusion that : "[i] In a cooperative housing society, a member cannot use land for commercial purpose, namely, the purpose other than residence as per byelaws, rules and provisions of the Act of 1961 irrespective of permission granted by any authority either under the Town Planning Act, GDCR or under the BPMC Act or like wise.
[ii] When there are specific byelaws in cooperative housing society for use of house allotted to a member for residence, land cannot be permitted to be converted into commercial use or purpose including for the purpose of establishing medical clinic, nursing home, etc. [iii] The land was granted to cooperative housing society by the State Government in the facts of Special Civil Application No.11343 of 2006 subject to restrictions in Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 and also under Sections 65 and 65A of the Bombay Land Revenue Code, 1879 and without removing such restrictions and permission so granted by the Competent Authority under the Bombay Tenancy and Agricultural Lands Act, 1948, and the Bombay Land Revenue Code, 1879, permission for use of commercial purpose of such land granted by the Authority under the Page 28 of 32 HC-NIC Page 28 of 34 Created On Wed Apr 19 01:30:51 IST 2017 28 of 34 C/SCA/5980/2017 ORDER Town Planning Act is inconsequential, when the development and use of the land allotted by the Cooperative Housing Society to the member was contrary to byelaw, rules and the provisions of the Act, 1961."
Most judgments relied by the Respondents, including the judgment in the case of Satnarayan B.Sharma Vs. A.L. Dineu reported in 2004(2) GLR 1055 are dealt with in this case and therefore, there is no reason to deviate from such decision.
21. Petitioner is also relying upon the case between Dhanesh Bhikhubjao Patel & Anr. Vs. Shantiniketan Cooperative Housing Society Ltd. reported in 2014(2) GLR 1638 in addition to reliance placed on the case of Ambica Nagar Cooperative Housing Society Ltd. (supra). Therein also, the Coordinate Bench has after referring as many as 15 previous decisions observed as under: "9. It is required to be noted that there is no specific provision in the byelaw for permitting any of the members of the society to put up commercial construction. Learned advocate Mr. Desai for the petitioners however submitted that since there is no prohibition in the byelaw against putting up the commercial construction, use of the plots of the society will be governed by the GDCR and the provisions of the Page 29 of 32 HC-NIC Page 29 of 34 Created On Wed Apr 19 01:30:51 IST 2017 29 of 34 C/SCA/5980/2017 ORDER Corporation Act as per which the commercial construction is permissible on the plot of the society. Such contention of learned advocate Mr. Desai cannot be accepted for the simple reason that what is required to be considered is the intent and purpose contained in the byelaws. Prima facie, it appears from the byelaws that Respondent No.1 society was incorporated to provide houses to its members.
Therefore, every member of the society is well aware that he or she holds tenement as a house or dwelling unit to reside therein. Therefore, absence of prohibition in the bye laws against making of commercial construction on the plot of the society, could not be taken as a permission for raising commercial construction on the plots of the society which the society never provided for in the byelaws.
10. Paramount consideration is always the interest of the society having regard to its byelaws. What is in the interest of the society is primarily alone for the society to decide. Even the Registrar, without there being any proposal for amendment by society to incorporate provision for commercial construction in the byelaws, will not be empowered to order amendment for such provision in the byelaws. Section 14 of the Gujarat Cooperative Societies Act provides that if it appears to the Registrar that an amendment of the byelaws, except in respect of the name and object of a society is necessary or desirable in respect of Page 30 of 32 HC-NIC Page 30 of 34 Created On Wed Apr 19 01:30:51 IST 2017 30 of 34 C/SCA/5980/2017 ORDER the society, he may call upon the society to make amendment. Thus, in respect of the name and object of the society, even the Registrar has no power to direct amendment in the bye laws. Thus original object of the society is given due importance."
22. In view of above facts and circumstances, as already recorded herein above, the interim relief as prayed for is granted.
23. Learned advocate Mr.B. T. Rao for Respondent Nos.2 and 3 is requesting to stay this order submitting that since there is no interim relief in favour of the petitioner from the date of impugned order till date, the Respondent Nos.2 and 3 have already started the hospital.
24. However, matter was under active consideration since day one when it was listed before this Court, it was argued in piecemeal because of paucity of time and at least on one occasion it is adjourned because of the strike by the advocates. Therefore, I do not see any reason to stay this order which is mainly based upon the legal issue that whether commercial activity can be allowed in a residential housing society or not. Therefore, request is rejected.
Page 31 of 32HC-NIC Page 31 of 34 Created On Wed Apr 19 01:30:51 IST 2017 31 of 34 C/SCA/5980/2017 ORDER (S.G. SHAH, J.) * Vatsal/Binoy/Drushti Page 32 of 32 HC-NIC Page 32 of 34 Created On Wed Apr 19 01:30:51 IST 2017 32 of 34 C/SCA/5980/2017 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 5980 of 2017 [On note for speaking to minutes of order dated 06/04/2017 in C/SCA/5980/2017 ] ========================================================== SAVITABEN AMARSHIBHAI KANANI (PATEL)....Petitioner(s) Versus SHREE NEHRUNAGAR CO OP HOUSING SOCIETY LTD &
10....Respondent(s) ========================================================== Appearance:
MR SATYAM Y CHHAYA, ADVOCATE for the Petitioner(s) No. 1 MR BHARAT T RAO, CAVEATOR for the Respondent(s) No. 2 - 3 ========================================================== CORAM: HONOURABLE MR.JUSTICE S.G. SHAH Date : 18/04/2017 ORAL ORDER Learned advocate for the petitioner Mr. Satyam Y. Chhaya has pointed out that in absence of separate line regarding rule, matter is shown as disposed of in computerised data base. Therefore, though there is specific directions in para 2 that "Rule needs to be issued to all the Respondents." With further directions that; "All the Respondents are directed to complete their pleadings within 60 days from the date of receipt of writ of this order so as to expedite the matter.", let there be an additional line at the bottom of the order on page 32 "Rule returnable on 08.06.2017". Thereby, Registry is directed to rectify the data base accordingly. Note for speaking to minutes is disposed of.Page 1 of 2
HC-NIC Page 33 of 34 Created On Wed Apr 19 01:30:51 IST 2017 33 of 34 C/SCA/5980/2017 ORDER (S.G. SHAH, J.) drashti Page 2 of 2 HC-NIC Page 34 of 34 Created On Wed Apr 19 01:30:51 IST 2017 34 of 34