:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 260 OF 2008 Ranjeet Mohite ...Petitioner Versus Yashwant Ghadgenagar Co-operative Housing Society Ltd and Ors. ....Respondents ====== Mr.Y.S.Jahagirdar, Learned Senior Counsel with Mr.Vineet Naik, S.B.Khurjekar i/by. Ms.Deepa Ahuja, Adv. for the petitioners. Mr.C.J.Sawant, Learned Senior Counsel i/by. Mr.A.S. Desai for respondent no.1. Mr.V.G. Mujumdar for respondent no.2. CORAM: S.C.DHARMADHIKARI, J. DATED: 22ND FEBRUARY,2008. P.C. P.C. P.C. : : : 1. This Writ Petition is by the original Appellant in Appeal No. 84 of 2007. He is aggrieved by the dismissal of this Appeal and upholding of the interim order of the Trial Court. The petitioner challenged the interim order dated 11.5.2007 passed by the Learned Judge, Co-operative Court No.8, Pune in Dispute Application No.49 of 2007. :2: :2: :2: 2. This dispute is filed by respondent no.1/ Yeshwant Ghadgenagar Co-operative Housing Society Ltd against the petitioner who is the original opponent thereto. 3. An application for interim injunction was made by the Original Disputant Society against the petitioner which Application was granted. Aggrieved thereby, the petitioner preferred the above Appeal which has been dismissed. 4. I have heard Mr.Jahagirdar, learned Senior Counsel appearing for the petitioner and Mr.Sawant learned Senior Counsel appearing for the Original Disputant. 5. The petitioner is a member of the First Respondent Society. Admittedly, the Society is of plot holders. The petitioner held a plot and continues to hold the same. Upon this plot, a Bungalow was constructed and he approached the First Respondent with a request that he desires to demolish this old and :3: :3: :3: dilapidated building and put a new construction thereon. Apparently, at this stage there was no dispute between the parties. The difference of opinion arose on account of correspondence preceding the Dispute Application in which the Society was informed by the petitioner allegedly that he desired to put up a construction which will not necessarily be a residential but either a mixed one or a commercial. The petitioner denied this position all throughout. But upon examination and scrutiny of the Plan submitted by the petitioner to the Pune Municipal Corporation, the Society apprehended that the construction if allowed at the site, would not be within the four corners of its Bye-laws and would even otherwise harm and prejudice the interest of the First Respondent Society. It therefore proceeded and filed a dispute and the prayers in the dispute reads thus :- "(a) It be declared that the Opponent has no right to carry on out any construction of Multi Storied building consisting of flats, shops, offices etc. or construction/building for non residential usage on the plot no.2 allotted to the Opponent in the Disputant Society. (b) It be declared that the Opponent is entitled to carry out construction of :4: :4: :4: residential building on plot no.2 consisting of ground + upper floor only for the use of Opponent and his family members. (c) That the Opponent may kindly be permanently restrained from carrying out any construction on plot No.2 and further restrained from creating any third party interest, parting with the possession or transferring or leasing or alienating or entered into any transaction with regard to plot no.2 in any manner whatsoever through his agents, servants power of attorney holders or any one through the Opponent. (d) That the Opponent may kindly be directed to furnish an undertakings in writings to the Disputant Society to the effect that he shall cause construction of residential building/house on the plot no.2 consisting of ground plus upper floor for himself. (e) Temporary injunction in terms of prayers above may kindly be granted pending final disposal of the present dispute. " 6. The petitioner is made party to the said dispute and the aforesaid prayers which are set out and reproduced above including a prayer for permanent injunction, an Application for temporary injunction was moved in terms thereof. The prayers in the said Application are also reproduced for ready reference. "(a) That the Opponent may kindly be temporarily restrained from carrying out any :5: :5: :5: construction on plot no.2 and further restrained from creating any third party interest, parting with the possession or transferring or leasing or alienating or entered into any transaction with regard to plot no.2 in any manner whatsoever through his agents, servants, power of attorney holders or any one through the Opponent till the final decision of the dispute. (b) That the Opponent may kindly be directed to furnish an Undertaking in writing to the Disputant Society to the effect that he shall cause construction of residential building/house on the plot no.2 consisting of ground plus upper floor for himself. (c) Ad-interim injunction in terms of prayer of (a) and (b) granted. (d) Other just and equitable order be passed. " 7. In para-16 of this injunction Application and the preceding paragraphs, it has been contended by the First Respondent that the petitioner has not yet started any construction activity. The intentions of the petitioner are clear and the correspondence and the stand taken therein, would indicate that he is about to commit breach of the relevant statutes and the Bye-laws, so also, the conditions in the Lease Deed. It is in such circumstances, that the above reliefs were sought. :6: :6: :6: 8. The petitioner contested this Application by filing a reply and thereafter there was an counter Affidavit. Number of documents were produced before the Trial Court and ultimately the Trial court, upon hearing the parties passed an interim order in the following terms. ". The Opponent No.1 is hereby temporarily restrained fro carrying out any construction on the plot No.2 and further restrained from creating any third party interest, parting with the possession or transferring or leasing, alienating or entering into transaction with regard to plot No.2 in any manner whatsoever through his agent, servants, power of attorney holder till final decision of the dispute. . Or otherwise, the Opponent No.1 shall furnish an Undertaking in writing to the society, to the effect that he shall cause construction of residential/house on plot no.2 consisting of ground plus upper floor for himself only. . The construction which the Opponent No.1 has already made is subjected to the final decision of the dispute. . In view of this interim application Exhibit-5 is hereby allowed. . Parties to bear their own cost. " :7: :7: :7: 9. Aggrieved by the order passed by the Trial Court, the above Appeal has been filed, which has been dismissed. Hence, this Writ Petition under Article 227 of the Constitution of India. 10. Mr.Jahagirdar, learned counsel appearing in support of the petition, has invited my attention to the interim order which according to the Learned Counsel does not prohibit any construction activity because the Trial Court has permitted the petitioner to carry out the construction, if he files an Undertaking in writing to the Society to the effect that there will be construction of residential building/house on Plot No.2 consisting of ground plus upper floors only. Further, the same would be occupied by him only. This is in consonance with the averments in the dispute and the prayers therein. He invites my attention to the Undertaking, copy of which is at page 122 of the petition paper-book and submits that once this stand was taken throughout the proceedings, there was no occasion to restrain any construction activity. He submits that the courts below have misconstrued and misapplied the relevant bye-laws and have rather :8: :8: :8: concluded the issue that the bye-laws prohibit the construction of the building which is intended to be used for commercial purpose. He submits that the bye-laws speaks of "usage" rather than any "construction". There is no question of any restraint on the construction itself. If such is the nature of the bye-laws and the terms and conditions, so also, the petitioners Undertaking being on record, there was no necessity of granting any blanket restraint order. All this has amounted to allowing the dispute itself at this stage. He has invited my attention to the observations of the lower Appellate Court, in the order consisting and running into about 43 pages which in his submission concludes and finally deals with and decides some issues. 11. Additionally, he has filed an Affidavit-cum-Undertaking of the petitioner before this court which reads as under : "That I hereby expressly state that I am going to construct residential cum commercial buildng only comprising of two floors on stilt parking for self use. That this Affidavit is made and executed to state that I am redeveloping the plot by :9: :9: :9: demolishing existing bungalow and I am constructing only stilt + 2 floors over there by observing Development Control Rules of Pune Municipal Corporation for self use only. " 12. Mr.Sawant learned Senior Counsel appearing for the First Respondent supports the impugned order by inviting my attention to the correspondence, so also, the Plans. He submits that the Plans as forwarded to the society identifies and designates certain portions in the property for commercial usage and therefore the intention and designation appears to be clear. Further, he points out that the car parking facility for about 200 vehicles including 2 (two) wheelers is contemplated and that is how the Society apprehends that large scale commercial user will be commenced and even the construction is on the said line. For all these reasons, the concurrent findings require no interference. 13. With the assistance of the learned Senior Counsel appearing for both sides, I have perused the petition and the Annexures thereto. I have also reproduced the prayers in the main application and the :10: :10: :10: application for temporary injunction, so also, the Undertaking given to this court. Prima-facie the courts below proceeded on the basis and rather erroneously that no construction activity at all is permitted at site. That is not the Tenor of the correspondence nor has the said society objected to the construction at site totally. Even before me the argument is that the Society is not objecting to the construction of ground plus two storeys as an residential building and for occupation by the petitioner himself. What the society has objected is the construction of a multi-storeyed commercial building with the basement being used for for parking of about 67 cars and 200 two-wheelers. If this is the extent to which the property is being used, then, there would be prejudice to the other members and inconvenience as well, is the submission. Mr.Jahagirdar, after taking instructions from the petitioner has pointed out to me that the petitioner shall construct upon the said plot a building consisting of ground plus two upper floors, so also, the stilt with a parking for self use only. All this would be done as per the sanctioned building Plan and :11: :11: :11: in accordance with the D.C.Rules of the Pune Municipal Corporation. In furtherance of the Affidavit filed on 5.2.2007, this additional Undertaking is given to this court. The petitioner has also undertaken not to use the proposed construction for commercial purposes without obtaining prior approval of respondent no.1-Society. Further, he has undertaken not to create any third party rights or transfer, so also, alienate the plot and the construction until the dispute is decided. 14. To my mind, it will not be proper to make any observations as that is likely to prejudice the case of both sides on merits. In my view, in the light of the clear statement made before me and the clarification given by Mr.Jahagirdar that the petitioner shall make such construction as is in consonance with the Undertaking given to this court, so also, if the construction activity at site requires any steps to be taken, so as, to bring in confirmity with the Undertaking, then, all such steps as are required in law would be duly taken, nothing further need to be directed. However, the Society contends that the above :12: :12: :12: construction be done only after the Plans are submitted for approval of the Society. It is only after the First Respondent grants a No-Objection Certificate, that the construction be permitted. I am unable to uphold this contention. The prayers in the Dispute Application and even the Interim orders proceed on the basis that a Building of ground plus Two Floors for self use as residence can always be constructed. That is the stand of the society. I have permitted only that construction. The plans in that behalf can be sanctioned by the PMC subject to the petitioner complying with the Rules and Regulations in that behalf. If there are sanctioned plans already on record but PMC insists that they be modified so as to bring them in confirmity with the Undertakings as above, then, the petitioner is ready to take such steps. However, considering the pleas of the First Respondent before the Courts below and this court, it will not be possible to issue any orders and directions as prayed by the society. 15. Further, it is doubtful, at this stage that the Bye-laws and more particularly Bye-law No.88(6), :13: :13: :13: which is relied upon, prohibit any construction or transfer completely, prima-facie, it is permissible and only the "utilisation" of the same for the purposes enumerated is contemplated after approval by the Society. Therefore, the blanket injunction is a complete prohibition which is patently unsustainable. More so, when the Society has permitted Banks, fitness centre etc. within the complex, prima-facie. 16. The Undertaking that is submitted to this court on 16.2.2008, although providing and stating that the proposed building is residential-cum-Office building, in my view, in the light of the further clarification given by the counsel appearing for the petitioner, there is no basis for the apprehension of the First Respondent society and no necessity as well to continue the interim orders in the form in which they have been passed. 17. After perusing the entire material, at this prima-facie stage and when the Society prima-facie does not object to the construction at site, then, the interim orders require modification and they stand :14: :14: :14: modified as under : (a) Pending the hearing and final disposal of Dispute Application No.49 of 2007 the petitioner-original opponent thereto is permitted to construct a building of ground plus two upper floors with stilt parking for self use on the subject plot provided, the said construction is in accordance with the sanctioned Building Plan and also complies with the Development Control Rules framed by the Pune Municipal Corporation. (b) That the petitioner shall not in any manner alienate, encumber or part with possession of, the plot or the structure/building or any part thereof, nor shall transfer or encumber the same till the hearing and final disposal of the dispute. However, this does not prevent the petitioner from approaching the Society for its prior :15: :15: :15: sanction for using the said structure/building or any part thereof as an Office or for any other commercial purpose and the First Respondent Society to consider the said request/application in confirmity with the bye-laws. (c) The construction activity so also the usage, if permitted, for non-residential purpose, shall abide by the final orders in the dispute and no equities can be claimed by the petitioner in case the orders in the Dispute Application are adverse to him. (D) All contentions of both sides in the pending dispute are expressly kept open. (e) The court below to decide the dispute without being influenced by any observations made in its order or the appellate order or the modification of its interim order as made by this court. :16: :16: :16: (f) the Dispute Application be decided expeditiously. 18. Needless to state that this order shall not be construed in any manner, as approval of the Plans as submitted by the petitioner to the society and needless to state, that the petitioner will have to take steps to have the Plans modified, if necessary, so that the Construction activity is in confirmity with the order passed by this court and the Undertaking recorded above. 19. At this stage, Mr.Sawant learned Senior Counsel appearing for the first Respondent Society prays for stay of that part of the order which permits the petitioner to construct on the open plot in accordance with the Plans sanctioned by the Pune Municipal Corporation. This request is opposed by Mr.Jahagirdar. Since, the construction activity at the site has to be in confirmity with the Plans as sanctioned by the PMC, so also, any modification thereto as necessiated by the Municipal Corporation and :17: :17: :17: when there is a dispute with regard to the interpretation of the bye-laws in question, which must be finally decided at the trial, I see no reason to stay this order. More so, when the society does not oppose the construction. 20. Petition allowed in the above terms. No costs. sd/- ******