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2016 Supreme(Guj) 1954
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R. Subhash Reddy and Vipul M. Pancholi, JJ.
Dena Parivar Co-operative Housing Society Limited & Others – Appellants
Vs.
Krishna Hiteshbhai Patel & Others – Respondents
Letters Patent Appeal No. 1019 of 2016 In Civil Application Nos. 6859, 10262 of 2016 In Special Civil Application No. 9116 of 2016
Decided On : 20-10-2016
For the Appellants : Mr. B.S. Patel with Chirag B. Patel.
For the Respondents: Mr. S.I. Nanavati with Mr. Saurabh Mehta for Ms. Anuja S. Nanavati.
The importance of conduct of the parties, balance of convenience, and protection of rights in vacating interim relief.
Headnote:
Cooperative Society - Development Permission - Section 30 of Gujarat Cooperative Societies Act, Rule 18 of Gujarat Cooperative Societies Rules - The court discussed the development permission granted to a cooperative society for commercial construction, the authority of the society to grant such permission, and the rights of bona fide purchasers. The court emphasized the importance of conduct of the parties, balance of convenience, and protection of rights in vacating the interim relief.
Fact of the Case:
The appellants, a cooperative society, challenged the development permission granted to a member for commercial construction without society's consent. The interim relief granted in favor of the society was vacated by the Single Judge, leading to the appeal.
Finding of the Court:
The court found that the society's conduct, delay in filing the petition, and the investment made by the purchaser weighed in favor of vacating the interim relief. The court emphasized the importance of conduct of the parties, balance of convenience, and protection of rights.
Issues: The issues revolved around the authority of the cooperative society to grant permission for commercial construction, the rights of bona fide purchasers, and the conduct of the parties in seeking interim relief.
Ratio Decidendi: The court considered the conduct of the parties, balance of convenience, and protection of rights as crucial factors in vacating the interim relief. It emphasized the importance of timely action and the impact of investments made by the purchaser.
Final Decision: The appeal was dismissed, and the court requested the Single Judge to expedite the disposal of the main petition. The conditions imposed by the Single Judge, including the deposit of a specified amount, were permitted to be fulfilled within an extended timeframe.
VIPUL M. PANCHOLI, J.
1. The appellants-original opponents-original petitioners have filed this appeal under Clause 15 of the Letters Patent against the order dated 21.9.2016 passed by the learned Single Judge in Civil Application (for vacating interim relief) No. 6859 of 2016, by which the learned Single Judge has allowed the said application and thereby vacated the interim relief granted in favour of the present appellants.
2. The brief facts leading to filing of this appeal are as under:
2.1 The appellants-original petitioners have filed Special Civil Application No. 9116 of 2016 in which the appellants have challenged the development permission dated 13.10.2015 granted by the original respondent no. 1 in favour of the original respondent no. 2. It is the case of the appellants that the original petitioner no. 1-society is a cooperative society and the object of petitioner no. 1-society is to construct houses for residential purpose and the petitioner no. 1-society purchased the land bearing revenue survey no. 813/3 which is known as Town Planning Scheme No. 3 and after getting the plan approved through the concerned authority, the petitioner no. 1-society had constructed residential houses for 16 members. It is the grievance of the petitioners that without previous permission of the petitioner no. 1-society, 3 members of the said society who were having occupation as well as ownership rights over the residential units which were existed on the plot owned by the petitioner no. 1-society sold their respective plot nos. 1, 2 and 13 in favour of the original respondent no. 2 by registered sale deeds dated 20.7.2015 It is the grievance of the petitioner that though commercial activities and commercial construction are not permissible as per the bye-laws of the petitioner no. 1-society, the respondent no. 1 has granted development permission in favour of the respondent no. 2.
2.2 It is further the case of the petitioners that petitioners have filed Lavad Case No. 3 of 2016 before the Board of Nominees along with the stay application below Exh.5 wherein they have prayed that respondent no. 2 be restrained from constructing the commercial complex in the plot in dispute. However, in the said Lavad Suit, development permission is not under challenge as the development permission was obtained by the petitioners under the Right to Information Act after the Lavad Suit is filed.
2.3 Learned Single Judge by an order dated 21.6.2016, while issuing the notice granted ad-interim relief in terms of paragraph 9(B) in the petition. The original respondent no. 2 therefore filed Civil Application No. 6859 of 2016 in Special Civil Application No. 9116 of 2016 under Article 226(3) of the Constitution of India for vacating ex-parte ad-interim relief granted in favour of the original petitioners. Learned Single Judge by the impugned order dated 21.9.2016 allowed the said Civil Application and thereby vacated the ad-interim relief granted in favour of the original petitioners-present appellants. However, the learned Single Judge has also protected the rights of the parties and to maintain the balance of conflicting claims, the said interim relief was vacated on certain conditions. The appellants-original petitioners have therefore filed the present appeal.
3. Heard learned advocate Mr. B.S Patel appearing with Mr. Chirag Patel for the appellants and learned Senior Advocate Mr. S.I. Nanavati assisted by learned advocate Mr. Saurabh Mehta for Ms. Anuja Nanavati for respondent no. 1-herein.
3.1 Learned advocate Mr. Patel mainly submitted that the petitioner no. 1-society is a cooperative housing society and members of the society cannot sell the residential unit for commercial purpose. In past, three members of the society namely Mr. N.D. Desai, Mr. Manoj H. Parmar, Smt. Shardaben N. Suthar and Mr. Harendra M. Suthar who are occupying plot nos. 1, 2 and 13 respectively asked for permission for commercial construction. However, some of the members object
