1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO.66 OF 2008. 1. Shri Kantu Shankar Dessai, major in age and his wife, 2. Smt.Shaila Kantu Dessai, Both residents of H.No.168. WardVeroda, Cuncolim, Salcete, Goa .... Appellants / Original defendants. Versus Sociedade Agricola Dos Gauncares De Cuncolim E Veroda, having its office at Ward No.9, in front of Our Lady of Health Church, Cuncolim, Salcete, Goa ..... Respondent/ Original Plaintiff. Mr. Sudesh Usgaonkar, Advocate for the appellants. Mr. S. D. Lotlikar, Senior Advocate with Ms Jimmi John, Advocate for the respondent. CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE JUDGMENT : 7 TH JANUARY, 2009. DATE OF PRONOUNCING THE JUDGMENT:13 TH JANUARY, 2009 . JUDGMENT : 1. Rule, returnable forthwith. Heard with consent. 2 2. This is an appeal filed by the defendants against the order of injunction passed. 3. The facts are given as follows : The plaintiff/ respondent has instituted a suit for declaration that the lease deed executed in favour of the defendants, is void and also for injunction. The plaintiff submitted that the plaintiff is a registered society and is the owner of the suit property. When Mr. Pio Lawrence was the president of the plaintiff society, number of suits were instituted by several persons against the said society. One of such matters had come up before the High Court wherein the then president of the society, gave undertaking before the High Court that he shall not alienate the properties of the society. This fact is reflected in the order passed by the High Court on 12.03.96. It is the contention of the plaintiff that in spite of said undertaking having been given by Pio, he executed a lease deed in favour of the defendants for 99 years. It is also the contention of the plaintiff that the premium that has been fixed, is so meager that the transaction between the plaintiff and the defendants, can be said to be unconscionable. It is contended by the plaintiff that the transaction is result of collusion between the then president and defendants and is void. It is further the contention of the plaintiff that 3 the defendants have caused immense damage to the property of the plaintiff in as much as they have damaged large portion of the property and are, in fact, destroying and damaging the entire property. In order to preserve the property, it is the contention of the plaintiff that an injunction be issued against the defendants. 4. The defendants had resisted the application and the main contention of the defendants, is that there is a lease of 99 years in their favour. The lease deed is quite valid and under the said lease deed, the rights of development, have been given to them. They submit that since the rights of development have been given to them, they have every right to deal with the property and to develop it. They submit that whatever they have been doing, is for the purpose of development of the property. They are not causing any damage whatsoever to the said property. It is contended that there is no prima facie case in favour of the plaintiff and, therefore, the application is liable to be rejected. 5. The learned Judge of the Trial Court, found that the defendants have been causing damage to the property and are not developing the property as such. Holding so, he granted injunction. The defendants, therefore, feel aggrieved and prefer this appeal. 6. I have heard the learned Counsel for the defendants/ 4 appellants and plaintiff/ respondent. 7. The first thing the Court is required to see, is whether the plaintiff has made out prima facie case or not. It is the defendants' contention that they hold a lease in their favour for development of the suit plot and what they have been doing, is to merely develop the plot and not damage it as such at all. 8. There is a lease deed of 99 years in favour of the defendants. The main contention of the plaintiff, is, however, that the lease deed is executed by the then president of the society in breach of the undertaking given to the High Court without any resolution by the general body of the society. It is also the contention that the said lease is in breach of bye-laws of the society and the premium fixed, is so inadequate that it would give rise to an inference that it is unconscionable and, is outcome of collusion between erstwhile president and the defendants. 9. The lease deed shows that the land in question, is 95,750 square metres. The extent of the land is certainly very vast and the premium of Rs.500/-, fixed for 99 years of such a large property, is certainly peanut. One can certainly take judicial notice of the prices of the properties in Goa. If the premium, period of lease and extent of land 5 are considered, prima facie, inference can be drawn to say that the bargain is unconscionable and could be an outcome of collusion. The defendants have been unable to show any resolution passed by the society to lease out the land to them. In the absence of such resolution, it must, prima facie, be said that the president has acted in his own capacity and to the detriment of the society. He had no right to encumber the land, which virtually amounts to sale of the property. It must be borne in mind that the office bearers are virtually the trustees of the property of the society and they cannot deal with the property in a manner in which they choose. Here, all the members of the society, have not passed any kind of resolution, on the other hand, the president ignoring others, has executed the lease deed. 10. Shri Usgaonkar, learned Counsel for the appellants/ defendants further submits that these things need not be gone into at this stage and what the Court is required to see, is that whether the defendants have lease in their favour and have right to develop the property or not. He submits that the defendants have made out the case on both counts and, therefore, the plaintiff has no right to object. The submission has no force. The plaintiff is seeking declaration that the lease is void since it is against the bye-laws and is unconscionable and in breach of the undertaking given to the High Court. The plaintiff has certainly shown that the lease transaction is unconscionable. In the 6 circumstances, it must be said that the plaintiff has certainly made out a case that the defendants should not be allowed to act upon the lease deed. 11. The next question that needs consideration, is what right of development of the property the defendants have. If the contents of the lease deed are read, it would be clear that they are as vague as they could be. It could be said, prima facie, that they are void for uncertainty. The word 'development' would mean even beautifying the property or beautifying the plot by planting trees etc. Here,what the defendants have done, is that they have razed the hillocks completely. The photographs show that the hillocks having height of 30 to 35 feet, have been completely razed. Since the terms and nature of development are not mentioned in the lease deed, the defendants have no, prima facie, right to raze hillocks to make the area plain. 12. The very object of Rule 1 of Order XXXIX of Civil Procedure Code, is to prevent any damage being caused to the suit property and preserve it from being wasted. If the defendants are allowed to carry out the so called developments, immense damage would be caused to the property and its very nature would be changed. The damage that can be caused, would be irreparable and would not be such, which could be compensated in terms of money. Unless, 7 therefore, the rights of the parties are finally determined under the lease and the validity of the lease is made clear, it would be improper to allow the defendants to carry out the so called developments else, that will frustrate the suit. In the circumstances, I do not find that the learned Judge of the Trial Court, committed any error in granting injunction. There is no substance in the appeal. It is dismissed. 13. Rule is discharged. C. L. PANGARKAR, J. SMA