1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1812 OF 1987 Gladhurst Coop.Housing Society Ltd. .. Petitioners Versus Dr.(Mrs) V.B.Shah & Anr. .. Respondents WITH FIRST APPEAL NO.129 OF 2003 Milan P. Shah & Ors. .. Appellants Versus M/s.D.S.Raheja & Co. & Ors. .. Respondents CORAM : S.C.DHARMADHIKARI, J. DATE : 5th May 2006. ORAL JUDGEMENT:- . These matters are directed to be heard together as they involve common question of law 2 and fact. Accordingly, they were heard together and being disposed of by this common Judgment. 2. W.P.1812 of 1987 invokes this Court’s jurisdiction under Article 227 of Constitution of India to challenge a judgement and order of Maharashtra State Coop.Appellate Court dated 19th February 1987 in Appeal No.468 and 469 of 1986. A copy of this judgement and order is annexed as Annexure ’K’ to the petition. 3. The first appeal is directed against a judgement and decree of City Civil Court, in L.C.Suit No.3005 of 1985. This judgement and order is dated 24th April/ 2nd May 2002. 4. Petitioner in Writ Petition is also appellant in the first appeal. The petitioner is appellant No.9. It was original defendant No.5 in the above civil suit. It would be convenient to refer to the facts in the first appeal for 3 appreciating rival contentions. 5. The above suit was filed by the original plaintiff (Appellant Nos. 1 to 8) against M/s.D.Raheja and Company, Mr.B.M.Shah and Dr.Mrs.Vibha B.Shah as also Municipal Corporation and Gladhurst Cooperative Housing Society Ltd. (hereinafter referred to as the Society). Prayer in the plaint is that City Civil Court should issue a decree and order of permanent injunction restraining defendants, their servants and/or agents or any person or persons claiming by or under or through them from undertaking, carrying out or proceeding with the work of any changes in the original plan and designs of the building and/or in the external appearance of elevation and/or flat Nos. 1 and 2. In substance, the prayer is that the Building Gladhurst situate at P.M.Road, Santacruz (W), Mumbai 400 054 in which flat Nos. 1 and 2 are situate should not be used for any purpose other than private housing. A 4 mandatory injunction is sought against defendants to the suit to restore the said flats to their original condition and to remove, alter or demolish the changes unauthorisedly effected in the said flats. There is a prayer for mandatory order and direction directing Municipal Corporation to revoke, cancel and withdraw the permission, if any, granted to defendant Nos. 2 and 3 for change of user of the said flats for any other purpose than residential one. 6. Parties to the appeal shall be referred to by their original nomenclature. The plaintiffs are purchasers of residential flats in the building Gladhurst. By diverse agreements for sale entered into by them with the first defendant builder, they purchased flats for residential use and occupation. According to them, the agreements are covered by the provisions of Maharashtra Ownership Flats (Regulation of the permission of construction, 5 sell, management and transfer) Act, 1963 (for short Ownership Flats Act.) 7. After referring to the agreement and more particularly clause 12 thereof, which provides that the flat holders shall not use flats for any purpose other than residence, it is contended that all purchasers agreed to purchase their respective flats on solemn undertaking and on the basis that no non residential user of any of the flats in the building will be permissible. It was pointed out that:- . The defendant Nos. 2 and 3 have agreed to purchase from 1st defendant Flat Nos. 1 and 2 in the B Wing on the ground floor of the said building. Around the end of March, 1985 the plaintiff and other members of the said committee learnt that the defendant Nos. 2 and 3 proposed to use the said flats exclusively for a non-residential purpose by starting their Nursing 6 Home, Dispensary, polyclinic, etc. in the said premises and proposed to carry out additions and alterations within and outside the said flats in diverse ways. Thereupon, the said Committee took up the matter with the 1st defendants vide its letter dated 27th March 1985 and sought from them clarifications and explanations on the said issue. . On 7th April 1985 a General Body meeting of the said flat purchasers was held at which defendant Nos.2 and 3 were also present. At the said meeting, the issue of the proposed change of use of the said flat No.1 and 2 by defendant Nos. 1 and 2 was discussed, when defendant No.2 in terms agreed that he and his wife would not start a Nursing Home in the said premises. However on 22nd April 1985 the defendant Nos. 2 and 3 undertook and carried out various extensive alterations and changes in the said flat such as removal of partition walls, changing location and 7 size of door and windows in the said flat and/or closing the originally provided doors and windows and opening new ones in place and stead thereof. Not content with the said internal changes unauthorisedly carried out by them, they proceeded to carry out substantial changes in the structure of the said building so as to destroy, damage or disturb the external elevation and uniformity of the said building as enumerated below:- (i) In place of the windows as originally provided in the eastern wall of the living room of Flat No.2, the defendant Nos. 2 and 3 provided an entrance door and a widow by demolishing the said wall and shifting the position of the said window. The alteration is in the structure of the building for which none of the flat purchasers including the plaintiffs ever consented. 8 (ii) A small window in the Eastern wall of the living room of Flat No.1 was removed and replaced by a far bigger window by demolishing part of the said wall which resulted in the change and alteration in the plans and specifications of the said building. (iii) Stilted portion marked by letter "C" on Exh.A to the plaint constitutes common area not sold or saleable to any individual flat purchaser. The defendant nos. 2 & 3 demolished the eastern wall of the said stilted portion and fixed a door therein with a view to providing a direct access to flat No.1 from the open space, around the said property. In the process the said defendants destroyed part of the garden in the open space adjoining the said portion. This change 9 is indicated by letter "D" on Exh.A to the plaint and clearly constitutes change and alterations in the said building. (iv) In the southern wall of the open garage shown by letter E on Exh.A the defendant Nos. 2 and 3 fixed a door so as to include the said open garage in the said flat No.1. The said newly opened door is shown by letter E on the Exh.A. Defendant Nos. 2 and 3 proposed to make use of the said open garage meant exclusively for parking cars, as a waiting room for the patients of defendant No.3. The defendant Nos. 2 and 3 hastened to carry out the said work with utmost speed on a holiday with a view to forstalling the action which the other flat purchasers or the committee would take against them. They carried out the said work 10 without the consent of the committee or the other flat purchasers and/or without regard to safety, security and/or their comfort or convenience. 8. In the plaint, it is thereafter alleged that when the committee sought clarification from first defendant, it denied having permitted any change of user. They pointed out that the stilted portion indicated by letter "C" at Exh.A to the plaint was not sold by it to defendant Nos. 2 and 3. They assured the Committee to look into the matter and suitably advice defendant Nos. 2 and 3 to desist from using the flat for non residential purpose without obtaining permission and consent of all flat purchasers. The impression given, according to plaintiffs, by defendant No.1 is that consent with regard to the changes also would be sought by the defendant Nos. 2 and 3. The plaint proceeds to allege that defendant No.1 indeed talked with defendant Nos. 2 and 3 and advised 11 them to stop their activities. The work was stopped since 25th April 1985, leaving the plaintiffs to believe that defendant Nos. 2 and 3 have realised their mistake. However, activities recommenced and that is how the suit came to be filed claiming aforesaid reliefs. 9. Reliance was placed in the plaint on the fact that the activities have not been permitted by the ad-hoc committee of society. The builder also having denied granting any permission or approval, the activities are not in accordance with law. That apart, section 7(1) of the ownership Act does not permit any alterations in the structure without prior consent of the plaintiffs. The activities are also contrary to the D.C. Rules then prevailing for the city. The plaint refers to several rules and then proceeds to set out the nature of the reliefs sought in the plaint. 12 10. It appears from the record that the first defendant, in interlocutory proceedings in the suit, filed an affidavit and took a specific stand that flat Nos. B-1 and B-2 on ground floor of the building were purchased by defendant Nos. 2 and 3 on the terms and conditions contained in the agreement for sale dated 10th January 1985. Under the agreement for sale, every flat holder has to use the flat as private residence and one parking space is provided for parking vehicle. By a separate letter, defendant Nos. 2 and 3 requested defendant No.1 to allow them to use the said flat as a nursing home and assured defendant No.1 that other flat purchasers in the building will have no objection for such use by them. Defendant Nos. 2 and 3 also stated that they will manage with Municipal Corporation. On such representation and assurance, defendant Nos. 2 and 3 obtained no objection from defendant No.1 - Builder. The said letter clearly stated that if, other flat purchasers have no objection, then, 13 the first defendant also has no objection to the change of user by defendant Nos. 2 and 3. Defendant No.1 pointed out that defendant Nos. 2 and 3 obtained their permission for three door openings in the said two flats. However, other flat purchasers did not give no objection for this act and vehemently opposed use of the flat for the purpose of nursing home. The builder has blamed defendant Nos. 2 and 3 for taking advantage of the cooperation extended and under the garb of the same, extensive repairs have been carried out by defendant Nos. 2 and 3 and alterations and changes of permanent nature have been made. The builder confirmed that the members of the ad hoc committee of the flat purchasers approached it and objected defendant Nos. 2 and 3 using the flats for the purpose of nursing home. An attempt was made to contact defendant Nos. 2 and 3. The assurances given by defendant No.3 have been noted in this reply so also the reply confirms the objections of the 14 ad-hoc committee in the meeting and the assurances given therein by defendant Nos.2 and 3 not to open nursing home and restrict the user of the part of the flats for consultation. 11. Defendant Nos. 2 and 3 filed written statements and while denying all the allegations averred that the flats have been purchased by them from defendant No.1. They denied the authority of the ad-hoc committee. The written statement having been drafted by party in person, it does not make a proper reading and some times there are assertions coupled with denials. The denials are of the statements in the meeting. It is contended that the door openings in the flat are legal and permitted. There is permission by the Municipal Corporation for use of nursing home. It is contended that there is permission to enclose a portion marked "C" by collapsible gate. Reliance is placed on permissions given by B.M.C. Thus, the suit according to defendant 15 Nos. 2 and 3 is not maintainable and deserves to be dismissed. The written statement is annexed to the compilation tendered during the course of submissions at page 20 to 30. 12. The stand of Municipal Corporation appears to be that, the defendant Nos. 2 and 3 through their Architect Patil and Associates made an application by the letter dated 24th January 1985 for the change of user from residential to Nursing Home, dispensary for Flat No.B-1 and B-2 of ground floor in the building along with no objection issued by the defendant No.1. as also ground floor plan indicating the proposed change of user in Flat No.B-1 and B-2 and requested to grant the said permission, after considering the defendant No.2 and 3’s application for the proposed change of user from residential to nursing home. The Corporation approved the said application for change of user on 26th February 1985, on certain terms and conditions. According 16 to the said approval the Corporation issued a letter dated 5th March 1985 informing Architect of defendant Nos. 2 and 3 that there is no objection to change the user of flat No.B-1 as detailed in the accompanying plan subject to the conditions mentioned therein. In reply to the said approval letter dated 5th March 1985, the Corporation received a letter dated 24th May 1985 from the Architect of defendant Nos. 2 and 3 stating therein that the work for the change of user as shown on the plan approved has been carried out under his supervision and the said work commenced on 5th April 1985 and the same was completed on 23rd April 1985. Thereafter, completion certificate was requested for by defendant Nos. 2 and 3 under section 353(A) of the Corporation’s Act. According to the Corporation, it had already approved the plans according to the provisions of the Act, building bye-laws and D.C.Rules on 5th March 1985 and as per the letter dated 24th May 1985 defendant Nos. 17 2 and 3 have carried out the work. According to Corporation, plaintiff’s suit has, therefore, become infructuous and the same be dismissed. According to Corporation, on 8th May 1985 it received an application for change of user in flat No.B-2 for which the Corporation approved the plans on 28th May 1985 informing the Architect of defendant Nos. 2 and 3 that there is no objection to change of user of the flat No.B-2 as detailed in the accompanying plans subject to the conditions of the approval letter issued by Corporation. According to Corporation plans for change of user from residential to nursing home were approved as per building bye-laws and D.C.Rules and provisions of law. Before sanctioning the plan for flat No.B-2 the plaintiff rushed to this Court and filed the present suit for obtaining mandatory injunction order to revoke, cancel and withdraw the permission granted by defendant Nos. 2 and 3. Defendant Nos. 2 and 3 have carried out the work 18 as per the approved plans by Corporation. Under the circumstances, the suit has become infructuous. Therefore, the plaintiff is not entitled to any relief in terms of prayer of suit. Thus, their stand is that the suit is misconceived and in any event rendered infructuous. 13. As far as the writ petition is concerned, the same arises out of appellate proceedings before the Cooperative Appellate Court. These appeals were directed against the judgement and award in two cases filed by the Society in Coop.Court bearing Case Nos.1005 and 1006 of 1985. First case was filed to claim declaration that respondent Nos. 1 and 2 (original appellants) have no right to retain Flat No.B-2 for non residential use and they be directed to demolish illegal additions, alterations and to restore the flat to its original condition. They should also be directed to reinstate the garden 19 adjoining the flat and remove encroachment on the stilts and other portions of the society. In other words a restraint order be placed on their using or converting the flat for nursing home or maternity home or hospital or clinic or dispensary. 14. The second case 1006 of 1986 also instituted by the society as disputants, claims similar declaration with regard to Flat No.B-1. 15. The written statement of original defendant Nos. 2 and 3 who were the only opponent in these coop.cases, was filed and the assertions therein are more or less same as that of the written statement in the suit. The case is that the flats have been purchased for the purpose of use as nursing home and that other purchasers were aware of the same. 16. The above cases/ disputes was placed 20 before the Coop.Court and by a common judgement rendered therein, the following award was made:- "1. Opponents are hereby declared as not entitled to use premises for nursing home purposes in disputant society’s building and opponents servants and agents are hereby restrained from using flat no. B-1 and B-2 in disputant society’s building, Gladhurst for Nursing Home purposes". 17. Aggrieved by this judgement and award, defendant Nos. 2 and 3 who were original opponents preferred appeals to the Coop.Appellate Court and Appeal Nos. 468 and 469 of 1989 were allowed by the Coop.Appellate Court by the judgement and order dated 19th February 1987. In other words, judgement and order of the Coop.Court (Trial Court) is set aside. The common judgement of the appellate court in the 21 above appeals is subject matter of challenge in the present petition. 18. As far as civil suit is concerned, the same, after pleadings were complete, was taken up for hearing and final disposal. The issues were framed and issues 1 and 2 are relevant and they were answered thus:- (1) Whether the permission of change of user granted by the Defendant No.4 in favour of Defendant Nos. 2 and 3 was granted in violation of the D.C.Regulation and the provisions under the B.M.C. Act:- IN THE NEGATIVE. (2) Do the plaintiffs prove that for change of user from residential to commercial their permission is essential under the terms and conditions of Deed of Agreement in between the plaintiff/ flat 22 purchaser and the builder/ Developer Defendant No.1.: IN THE NEGATIVE 19. The evidence-in-chief of plaintiff No.13 (V.V.Kamat) was recorded on affidavit, whereas defendant No.2 who is appearing before me in person stepped into witness box. As far as Corporation is concerned, on its behalf, defendant No.4 stepped into witness box. He was cross examined by the appellants herein. These witnesses have been cross-examined by parties. 20. The trial court, by an exhaustive judgement has held that the appellants are not entitled to succeed in the light of its findings on issue Nos. 1 and 2. The suit was, therefore, dismissed with costs. The judgement and decree of the trial court to the above effect is dated 24th April 2002. 23 21. Since Issue Nos. 1 and 2 in the suit and in the case before Coop.Court are identical so also parties being common to both proceedings, writ petition and first appeal were directed to be decided together. 22. Mr.R.V.Pai, learned Counsel appearing for Society has urged that the controversy in coop. Court case as well as the suit stands fully covered by a decision of the Supreme Court in the case of Dadar Avanti Coop.Hsg. Vs. M.C.G.B. reported in 1996 (2) S.C.C. 695. He submits that identical controversy was before the Supreme Court and the Supreme Court has observed that at the relevant time, the D.C.Rules for Greater Bombay did not permit any non residential user in residential zone and/or premises. Once this is the conclusion in law, then both, the judgement of the Coop.Appellate Court as well as Trial Court are patently unsustainable, erroneous and deserve to be set aside. In his submission, 24 before the City Civil Court, during the course of the proceedings, the judgement of the Supreme Court (supra) was available. He submits that despite clear pronouncement of law therein, the trial court has unnecessary gone into completely extraneous and irrelevant issues. In his submission, there is no scope of interpretation of relevant D.C.Rules. On the other hand, the broad categorisation by Supreme Court with regard to user of the premises being residential and non residential, there cannot be any justification for going into the aspect as to whether Nursing home is covered by the term "clinics", as used in D.C.Regulations. He submits that in the light of the pronouncement with regard to identical regulations by the Supreme Court, it is clear that D.C. Regulations in question does not cover nursing home. Therefore, the issue as to whether it is clinic or not does not survive for consideration. 25 23. Mr.Pai has invited my attention to the judgement of the Civil Court in the suit and has challenged the findings of the learned Judge to the effect that the term "clinic" as found in Rule 7(iii) of the D.C.Rules for Mumbai excludes nursing home and the terms clinic and nursing home are synonyms of each other. 24. He submits that reliance by the trial court on the judgement/order delivered in Appeal From Order No.662 of 1986 dated 19th September 1986 by this Court is misplaced. He submits that the deletion of the word "Group Medical Centre" from the D.C.Rule 7(iii) and further aspect as to whether the same would cover nursing home or not is something which is not surviving after the Supreme Court decision. The Supreme Court decision is clear inasmuch as prior to their amendment in 1991, the D.C. Rules did not contemplate any non residential user. 26 25. Mr.Pai has submitted that admittedly there is no provision enabling the non residential user on the ground floor in this case. He submits that as far as the non registration of the society and the possession and user of the defendant Nos. 2 and 3 is concerned, the case would be governed by clause 12 of the agreement for sale of the flats in question. Both sides viz., builder as well as defendant Nos. 2 and 3 have submitted to clause 12. It is prescribing restrictions upon user and the said clause cannot be held to be void. He submits that the finding of the trial court is erroneous. Mr.Pai has invited my attention to the Civil Court observation on validity of clause 12. He submits that it is erroneous to contend that prohibition contemplated by the clause is contrary to the provisions contained in the B.M.C. Act, M.R.T.P. Act and D.C. Rules, then in force. He submits that such clauses being ab initio void and incapable of being acted upon is 27 a finding rendered by the civil court, contrary to the statutory provisions as also the materials placed on record. If the clause is void ab initio and not binding upon parties to the agreement, then, it was not necessary for the civil court to scrutinise, so called concessions granted by the builder to defendant Nos. 2 and 3. He submits that the civil court has ignored the affidavit filed by the builder. The statements therein have remained uncontroverted. In any event, if the clause cannot be acted upon in the light of the D.C. Rules, then, the judgement of Supreme Court interpreting the D.C. Rules in question was binding upon the civil court and such binding decision of the Highest Court of the land should not have been brushed aside. 26. Mr.Pai was at pains to emphasise the fact that in a housing society, a member cannot be permitted to use the premises meant for residence 28 for non residential purpose in contravention of the provisions of law, for that would go against the very spirit of Cooperative movement. The flat purchasers in a