Point of Law: If a member of a Cooperative Housing Society is of the view that the bye-laws or the rules & regulations framed by the society are in any manner violative of any of the provisions of the Constitution of India or are infringing his or her fundamental rights or any other legal rights, then he or she can challenge it before the appropriate forum in accordance with law, but cannot on his own defy such bye-laws or the rules & regulations and act contrary to the same

JUDGMENT :

J.B. Pardiwala, J.

1. By this writ-application under Article 226 of the Constitution of India, the writ-applicants have prayed for the following reliefs:

"(A) be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 17.3.2016 passed by respondent no.1 at Annexure-A to the petition and also ordered the application at Exh. 5 in Lavad Case No. 104 of 2015 at Annexure-P to the petition be allowed;

(AA) Your Lordship will be pleased to issue a writ of mandamus or any other appropriate order or direction quashing and setting aside the Development Plan dated 01/06/2016 and the BU Permission dated 06/06/2016 at Annexure-Y to the petition issued by the respondent no. 3.

(B) Pending admission and final disposal of this petition, Your Lordships will be pleased to restrain respondent no. 2 for utilizing the plot/bungalow no. 40 of petitioner no. 1 society or part thereof for any other purpose than residential purpose;

(BB) Your Lordships will be pleased to restrain the respondent no. 2 from utilizing the premises on Plot No. 40 or any part thereof for any other purpose than the residential purpose.

(C) Be pleased to award the cost of this petition;

(D) Such other and further relief that is just, fit and expedient in the facts and circumstances of the case may be granted."

2. The facts giving rise to this writ-application may be summarised as under:

3. The writ-applicant no.1 is a society registered under the provisions of the Gujarat Cooperative Societies Act, 1961. The writ-applicant no. 2 is the Chairman of the Society. One Niranjanaben Manubhai Patel was the member of the Society. She was the owner of the Bungalow No. 40 in the Society. Niranjanaben decided to sell her Bungalow No. 40 to the respondent no. 2 herein, namely, Shri Pankaj A. Karnavat.

4. In such circumstances, Niranjanaben preferred an application dated 24th February 2010 addressed to the Chairman of the Society, seeking permission to sell the Bungalow No. 40 to the respondent no. 2.

5. The respondent no. 2 also preferred an application dated 24th February 2010 addressed to the Chairman of the Society, seeking permission to purchase the Bungalow No. 40 in the Society from Niranjanaben Manubhai Patel.

6. The Society, vide letter dated 13th March 2010, granted permission to the respondent no. 2 to purchase the Bungalow No. 40 in the Society by admitting him as a nominal member.

7. On 20th June 2010, a meeting of the committee members of the Society was convened to discuss few issues relating to the administration of the Society and for the purpose of passing appropriate resolutions in that regard. One of the items in the agenda in the meeting of the Society was with respect to Niranjanaben Manubhai Patel resigning as a member of the Society and the sale of her Bungalow No. 40 in favour of the respondent no. 2.

8. In the said meeting, a resolution was passed permitting Niranjanaben Manubhai Patel to resign as a member of the Society on account of her financial difficulties. At the same time, the committee members also passed a resolution admitting the respondent no. 2 as a member of the Society by accepting the share transfer fees and also with a distinct understanding that the respondent no. 2 would abide by the bye-laws of the Society.

9. The respondent no. 2 executed an undertaking in writing on oath on a stamp paper duly notarized by the notary public stating as follows:

"I, Pankaj Ajitraj Karnavat, aged: 35, religion: Hindu, Occupation-Chartered Accountant, residing at: 1004, Padmakruti Apartment, City Light, Surat, C/o, Bungalow No. 40, Mahadevnagar Co.Op. Housing Society, Ltd., Surat, on this 20th day of June, 2010, Gujarati Samvat: 2066, Sunday, do hereby, enter into an agreement with Mahadev Nagar Co.Op. Housing Society, Majura Darwaja, Surat-395002 and admit that:-

(1) I shall act harmoniously with all the members and neighbours of the society and live peace