1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.1949 of 2008 Dr. Pramod Jain & anr. Petitioners Vs. Sai Mandir CHS Ltd. Respondent Mr.Harinder Toor with Mr.Basant Tilokani i/b. M/s.Jhangiani, Narula & Associates for petitioners. Mr.E.R.Naik with Ms.Sujata Babar for respondent. CORAM: B.H.MARLAPALLE, J. April 23, 2008 P.C. 1. Heard Mr.Toor i/b. M/s.Jhangiani, Narula & Associates for the petitioners and Mr.Naik with Ms. Sujata Babar for the respondent - Co-operative Housing Society. The Society filed Dispute No.310 of 2006 under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (for short "the Act") along with an application for temporary injunction. The reliefs prayed for in the main dispute are as under: "(b) that opponent Nos.1 and 2 be directed to bring the structure of Flat No.A-003 to its original position. 2 (c) that Opponent Nos.1 and 2 be prevented forthwith from changing the user of Flat No.A-003 into Hospital / Clinic." 2. In the application for temporary injunction it was prayed for an order of injunction restraining the Opponent Nos.1 and 2 from using the flat as clinic / hospital and thereby allowing the disputant society to lock the door from outside. The Co-operative Court was pleased to dismiss the application for temporary injunction by its order dated 22/3/2007 which order came to be challenged by the Society in A.O. No.79 of 2007 and by the impugned order dated 30/8/2007 the said appeal was allowed by the Maharashtra State Co-operative Appellate Court. The operative order reads as under: 1. A.O. No.79 of 2007 is allowed. The order dated 22/3/2007 passed by the learned Judge of the Co-operative Court No.IV, Mumbai is set aside and the respondent nos.1 and 2 are restrained from using the disputed flat No.A-003 as a hospital/clinic, till hearing and final disposal of the dispute bearing No.CC-IV-310 of 2006. 3 2. As far as the dispute is concerned the same is expedited and to be disposed of as expeditiously as possible as per the convenience of the learned Judge. 3. The petitioners, who are Opponent Nos.1 and 2 before the Co-operative Court, are aggrieved by the injunction order passed by the lower Appellate Court and hence this petition under Article 227 of the Constitution. 4. The only issue that requires consideration is whether the lower Appellate Court was justified in reversing the order passed by the Co-operative Court and granting injunction against the present petitioners. 5. There is no dispute that the subject building of the respondent no.1 - Society was constructed in the year 1982 and occupation certificate by the Corporation was issued on 14/8/1984 and 12/4/1986. The Society was registered on 13/7/1987. Flat No.A-001 and Flat No.A-002 were residential flats of 4 the petitioners who were the owners of the said flats by way of the share certificates granted by the respondent no.1 - Society. Flat No.A-003 is the adjacent flat on the ground floor and it was originally held by Shri B.S.Patil and Shri M.S.Patil. It was purchased by Shri B.C.Gang as per the agreement for sale dated 18/12/2004 and said Shri B.C. Gang, father of the present petitioner no.1, died in August 2005. The said flat was also a residential flat right from the beginning. It is the contention of the petitioners that the petitioner no.1 being the successor of his father, submitted an application to the Society for transfer of Flat No.A-003 in his name but the Society has not yet done so. On the other hand, the Society contends that when Shri Gang was admitted as a member, he submitted an affidavit on 22/12/2004 that the flat would be used only for residential purpose, and on that basis membership was granted. In the mean while the Society allegedly noticed that Flat No.A-003 was changed structurally and also for use i.e. from residential to nursing home / clinic. Complaints were made to the Corporation on 12/6/2005. On 2/8/2006 site inspection was carried out and it was noted by the Corporation that Flat No.A-003 was 5 altered and it was also changed to the use of clinic. Consequently the Corporation issued a notice under Section 347 of the Mumbai Municipal Corporation Act, 1881 on 20/9/2005 pointing out that the petitioners had contravened the provisions of Section 342 and 347(1) of the said Act. It is also an admitted fact that Flat No.A-001 and A-002 were originally residential flats and subsequently as per the permission granted by the Municipal Corporation on 3/9/2005, changed to nursing home. Mr.Naik states that the said order is under challenge before this Court in some other writ petitions. It appears, in the mean while the petitioners submitted a proposal on or about 18/10/2005 in respect of Flat No.A-003 for user change from residential to clinic and as per the order dated 18/4/2006 the same was refused due to non-compliance of certain documents. The Assistant Commissioner issued another notice on 12/8/2006 to the petitioner under Section 347(1) of the Act and passed an order on 20/7/2007 directing the petitioners to restore Flat No.A-003 to its original position. 6. The learned Judge of the Co-operative Court in his order dated 22/3/2007 did not refer to the 6 inspection of the subject flat made by the Corporation officials and the subsequent orders passed by the Assistant Municipal Commissioner. though he referred to the order dated 20/9/2005. He also referred to the scheme of Rule 51 of the DCR and noted that the Society failed to make out a prima facie case in its favour. The learned Judge of the lower Appellate Court by his reasoned order which is impugned in this petition, noted that the change of user was refused by the Corporation and at the same time the subject flat was not transferred yet by the Society by transferring the share certificate from the name of Shri B.C.Gang to the name of the petitioner no.1 and, therefore, a prima facie case of unauthorised change of user as well as of change of structure was noted by the lower Appellate Court. 7. The learned counsel for the petitioners tried to submit before this Court that in fact no permission was required to be sought from the Corporation if the petitioners wanted to convert flat no.A-003 into a clinic and in support of these contentions he relied upon the scheme of Regulation No.51(ii) of the DCR which reads as under: 7 "51. 51. 51. Purely Residential Zone (R-1 Zone) - Purely Residential Zone (R-1 Zone) - Purely Residential Zone (R-1 Zone) - Ancillary Ancillary Ancillary uses permitted - uses permitted - uses permitted - Apart from residential use, the following uses and specified ancillary uses to the extent of 50 per cent of the floor space of the principal use shall be permitted in buildings, premises or plots in the purely residential zone:- (i) ... ... ... (ii) Medical and dental practitioners’ dispensaries or clinics, including pathological or diagnostic clinics with a restriction of one dispensary or clinic per building to be permitted on the ground floor, on the floor just above the stilts or on the first floor." . I am afraid, the learned counsel for the petitioners is not justified in relying upon the above Regulation in support of his submissions that even without permission from the Corporation, the petitioners could use the subject flat for a clinic or dispensary. It is clear from the language of DCR 51(ii) that the restriction of one dispensary or one 8 clinic per building operates. In the instant case, admittedly Flat No.A-001 and Flat No.A-002 have already been converted (on the ground floor and adjacent to Flat No.A-003) into Nursing Homes. In my view this Regulation, prima facie, does not support the case of the petitioners and, therefore, the view taken by the lower Appellate Court in granting temporary injunction cannot be faulted with. 8. The petition is rejected summarily. (B.H.MARL