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2018 Supreme(Bom) 1112
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Royal Manor Co-operative Housing Society Ltd., & Ors. - Petitioners
Versus
Angana Bharali Das & Ors. - Respondents
Writ Petition No.9262 of 2015
Decided On : 12-09-2018
For the Petitioner:Mr. Pravin Samdhani, Senior Advocate a/w Mr. Chirag Modi, Mr. Gautam Ankhad, Mr. Sunny Shah, Mr. Viral Shukla, Ms. Priti Patel, Ms. Rohina Shaikh and Mr. Darshan Ashar i/by Shukla & Associates.
For the Respondents: Mr. Mayur Khandeparkar a/w Mr. Chetan Yadav a/w Mr. Ravish A. Mishra and Mr. Vijay B. Dhingreja.
Headnote:
Constitution of India - Article 227 - MCS Act - Section 91 and 95 - Code of Civil Procedure, 1908 - Section 9A and Section 151 - Co-operative Societies Act, 1960 - section 95(4) and 98 - Granting mandatory interim injunction - Parking space allotted - Impugned the order - Sale deed - By this petition filed under Article 227 of Constitution of India petitioner has impugned order passed by Co-operative Appellate Court thereby dismissing Appeal No-79 of 2014 filed by petitioner herein arising out of interim order passed by Co-operative Court No-II granting mandatory interim injunction in favour of respondent nos-1 and 2 below Exhibit-5 - Society and sold various flats to various prospective buyers - It is case of petitioner that said developer had allotted car parking in said building - Stilt parking as well as open car parking - In year 2005 petitioner was incorporated as a society under provisions of Maharashtra Co-operative Societies Act 1960 (for short “ said MCS Act”) – Held, principles laid down by Honble Supreme Court in cases clearly applies to facts of this case - In my view Co-operative Court ought to have expedited hearing of dispute filed by respondent nos -1 and 2 and could not have exercised such discretionary power of granting mandatory interim injunction in facts of this case when there is no space available for parking in compound of petitioner in view of admitted fact that all 24 car parking spaces are already allotted to existing members of petitioner - Interim relief is dismissed
Based on the provided legal document, here are the key points:
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The petition challenges an order passed by the Cooperative Appellate Court that dismissed an appeal and upheld a mandatory interim injunction in favor of respondents seeking parking rights within a cooperative housing society (!) .
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The dispute involves members of a society who purchased flats without parking spaces and later sought to enforce their right to parking under the society’s bye-laws and applicable statutes (!) (!) .
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The society’s bye-law No.81 permits allotment of multiple parking spaces to a member only if spaces remain unallotted and on a year-to-year basis, provided they are not required by another member who has not been allotted any parking (!) (!) .
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The existing parking capacity of the society exceeds the number of members, with all spaces already allocated, and there is no record of additional allotments being approved by the society’s resolution (!) (!) .
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The courts below granted interim relief allowing respondents to park a vehicle in the society’s compound, despite the fact that all parking spaces were already allotted, and the respondents had withdrawn their original prayer for specific allocation (!) (!) (!) .
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The courts relied heavily on the society’s bye-law and the provisions of the relevant statutes, asserting that the enforcement of such bye-laws can be directed through the Registrar and that declarations granted can be enforced through proper procedures (!) (!) .
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The petitioner’s argument that the withdrawal of a specific prayer clause from the dispute negates the court’s power to grant interim relief was considered, but the courts held that the primary declaration sought could still be granted and enforced (!) (!) .
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The courts emphasized that the allocation of parking spaces must follow the society’s bye-laws, which restrict multiple allocations to the same member unless spaces are unallotted and available, and that no member is entitled to more than one parking space by default (!) (!) .
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The courts expressed that granting mandatory interim relief to create additional parking space was inappropriate given the existing capacity and the absence of extraordinary circumstances, and that the proceedings should be expedited for a final resolution (!) (!) .
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The final order quashed the interim orders and dismissed the application for interim relief, emphasizing that the dispute should be resolved through the regular process within a specified timeframe, and that no costs would be awarded (!) (!) (!) .
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The overall approach underscores the importance of adhering to the society’s bye-laws, the procedural requirements for enforcement of rights, and the limits on courts’ discretionary powers in granting interim mandatory injunctions, especially when existing capacities are fully allocated.
1. By this petition filed under Article 227 of the Constitution of India, the petitioner has impugned the order dated 27th August 2015 passed by the Co-operative Appellate Court thereby dismissing the Appeal No.79 of 2014 filed by the petitioner herein arising out of the interim order passed by the Co-operative Court No.II, Mumbai on 29th October 2014 granting mandatory interim injunction in favour of the respondent nos.1 and 2 below Exhibit-5.
2. Mr. Samdhani, learned senior counsel for the petitioner states that all the respondents are served. None appeared for the respondent nos.3 and 4. By consent of the petitioner and the respondent nos.1 and 2, the matter is heard finally at the admission stage. Some of the relevant facts for the purpose of deciding this petition are as under:-
3. During the period between 2000 and 2004, M/s. Lalani Construction Pvt. Ltd. constructed the building premises of the petitioner- Society and sold various flats to various prospective buyers. It is the case of the petitioner that the said developer had allotted the car parking in the said building i.e. stilt parking as well as open car parking. In the year 2005, the petitioner was incorporated as a society under the provisions of the Maharashtra Co-operative Societies Act, 1960 (for short “the said MCS Act”).
4. In so far as the flat No.A/301 on the first floor of 'A' wing in the building of the petitioner is concerned, the said flat was purchased by Mrs.Bernadattee Lopesand Mr.Gilbert Lopes from an original member of the petitioner. It is the case of the petitioner that the said original members did not have any parking space allotted to them. On or about 4th April 2012, the said flat bearing No.A/301 was sold by the original owners to the respondent nos.1 and 2 by a registered sale deed.
5. On 29th April 2012, the share certificate in respect of the said Flat No.A/301 was transferred in the name of the respondent nos.1 and 2. On 25th August 2012, the respondent nos.1 and 2 applied for allotment of car parking space in the compound of the petitioner society. On 10th January 2013, the respondent nos.1 and 2 through their advocate's notice called upon the petitioner to allot a permanent car parking space in the compound of the petitioner. Since there was no response to the two notices, the respondent nos.1 and 2 filed a dispute on 15th March 2013 under Section 91 of the said MCS Act and also filed an interim application (Exhibit-5) seeking interim relief before the Cooperative Court No.II.
6. In the said dispute, the respondent nos.1 and 2 had prayed for declaration that the disputants were entitled to park one car in the society building compound. In prayer clause (c) of the said dispute, the respondent nos.1 and 2 prayed that the petitioner be ordered to allot one of the parking space from the second parking in possession of the opponent nos.2 and 3 to the said dispute i.e. the respondent nos.3 and 4 in this writ petition. It was the case of the respondent nos.1 and 2 in the said dispute that the said respondent nos.3 and 4 herein were allotted two car parkings whereas the respondent nos.1 and 2 did not have any car parking allotment in their favour. The petitioner society as well as the respondent nos.3 and 4 filed their respective written statements to the said dispute filed by the respondent nos.1 and 2. The respondent nos.1 and 2 filed a rejoinder to the said written statements.
7. It is the case of the petitioner that during the pendency of the said application (Exhibit-5) filed by the respondent nos.1 and 2, the petitioner disputed the jurisdiction of the Co-operative Court to try and entertain the said dispute. On 22nd September 2014, the Co-operative Court passed an order that the said Court had jurisdiction to try and entertain the said dispute. On 29th October 2014, the Co-operative Court partly allowed the said interim application (exhibit-5) filed by the respondent nos.1 and 2 and granted mandatory interim injunction against the
