:1: IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 915 OF 1989 WRIT PETITION NO. 915 OF 1989 WRIT PETITION NO. 915 OF 1989 WITH WITH WITH CIVIL APPLICATION NO. 2239 OF 2003 CIVIL APPLICATION NO. 2239 OF 2003 CIVIL APPLICATION NO. 2239 OF 2003 Lalchand Manrupji Parmar ... Petitioner Lalchand Manrupji Parmar ... Petitioner Lalchand Manrupji Parmar ... Petitioner versus versus versus 1. Panvel Industrial Co.op. 1. Panvel Industrial Co.op. 1. Panvel Industrial Co.op. Estate Ltd.; Estate Ltd.; Estate Ltd.; 2. Khemchand Manrupji Parmar, 2. Khemchand Manrupji Parmar, 2. Khemchand Manrupji Parmar, since deceased, through heirs since deceased, through heirs since deceased, through heirs and legal representatives : and legal representatives : and legal representatives : a) Radhabai Khemchand Parmar, a) Radhabai Khemchand Parmar, a) Radhabai Khemchand Parmar, b) Surendra Khemchand Parmar,’ b) Surendra Khemchand Parmar,’ b) Surendra Khemchand Parmar,’ c) Prakash Khemchand Parmar, c) Prakash Khemchand Parmar, c) Prakash Khemchand Parmar, d) Ashok Khemchand Parmar, d) Ashok Khemchand Parmar, d) Ashok Khemchand Parmar, e) Jaywant Khemchand Parmar, e) Jaywant Khemchand Parmar, e) Jaywant Khemchand Parmar, f) Pankuben Pratapchand Parmar, f) Pankuben Pratapchand Parmar, f) Pankuben Pratapchand Parmar, g) Neeru Dhanpal Sanghavi, g) Neeru Dhanpal Sanghavi, g) Neeru Dhanpal Sanghavi, h) Shyama Rajendra Gandhi. ... Respondents h) Shyama Rajendra Gandhi. ... Respondents h) Shyama Rajendra Gandhi. ... Respondents ... ... ... Mr. N. V. Walawalkar, for Mr. G.H. Keluskar, for Mr. N. V. Walawalkar, for Mr. G.H. Keluskar, for Mr. N. V. Walawalkar, for Mr. G.H. Keluskar, for the Petitioner. the Petitioner. the Petitioner. Mr. D.S. Sawant, for Respondent No.1. Mr. D.S. Sawant, for Respondent No.1. Mr. D.S. Sawant, for Respondent No.1. :2: Mr. A. Y. Sakhare, Senior Counsel, with Mr. V.B. Mr. A. Y. Sakhare, Senior Counsel, with Mr. V.B. Mr. A. Y. Sakhare, Senior Counsel, with Mr. V.B. Rajure, for Respondents Nos.2a to 2h. Rajure, for Respondents Nos.2a to 2h. Rajure, for Respondents Nos.2a to 2h. ... ... ... CORAM : A.M.KHANWILKAR,J. CORAM : A.M.KHANWILKAR,J. CORAM : A.M.KHANWILKAR,J. 9th June 2004 9th June 2004 9th June 2004 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 01. This writ petition under Article 227 of 01. This writ petition under Article 227 of 01. This writ petition under Article 227 of the Constitution of India takes exception to the the Constitution of India takes exception to the the Constitution of India takes exception to the judgment and order passed by the Maharashtra judgment and order passed by the Maharashtra judgment and order passed by the Maharashtra State Co-operative Appellate Court, Bombay, dated State Co-operative Appellate Court, Bombay, dated State Co-operative Appellate Court, Bombay, dated January 27, 1989 in Appeal No. 52 of 1987. January 27, 1989 in Appeal No. 52 of 1987. January 27, 1989 in Appeal No. 52 of 1987. Briefly stated, the Petitioner, along with Briefly stated, the Petitioner, along with Briefly stated, the Petitioner, along with Respondent No.2, who happens to be his brother, Respondent No.2, who happens to be his brother, Respondent No.2, who happens to be his brother, were jointly allotted Plot No. 81 by the were jointly allotted Plot No. 81 by the were jointly allotted Plot No. 81 by the Respondent No.1 Society. The allotment was Respondent No.1 Society. The allotment was Respondent No.1 Society. The allotment was obviously subject to certain compliances to be obviously subject to certain compliances to be obviously subject to certain compliances to be done by the allottees, inter alia, that the done by the allottees, inter alia, that the done by the allottees, inter alia, that the allottees should commence their unit within a allottees should commence their unit within a allottees should commence their unit within a period of six months after the allotment of shed period of six months after the allotment of shed period of six months after the allotment of shed :3: is made. The joint allotment in favour of the is made. The joint allotment in favour of the is made. The joint allotment in favour of the Petitioner and Respondent No. 2 was made some Petitioner and Respondent No. 2 was made some Petitioner and Respondent No. 2 was made some time in 1974. However, since the said time in 1974. However, since the said time in 1974. However, since the said requirement was not complied with, Respondent No. requirement was not complied with, Respondent No. requirement was not complied with, Respondent No. 1 Society had sent intimation to the Petitioner 1 Society had sent intimation to the Petitioner 1 Society had sent intimation to the Petitioner on 30th December 1978 followed by letters dated on 30th December 1978 followed by letters dated on 30th December 1978 followed by letters dated 8th January 1979, 30th January 1979, 16th May 8th January 1979, 30th January 1979, 16th May 8th January 1979, 30th January 1979, 16th May 1979 and 30th July 1980. Eventually, the 1979 and 30th July 1980. Eventually, the 1979 and 30th July 1980. Eventually, the allotment came to be cancelled by the Board allotment came to be cancelled by the Board allotment came to be cancelled by the Board resolution dated 4th October 1980. It is resolution dated 4th October 1980. It is resolution dated 4th October 1980. It is relevant to note that the Petitioner, at the relevant to note that the Petitioner, at the relevant to note that the Petitioner, at the relevant time, was one of the Directors in the relevant time, was one of the Directors in the relevant time, was one of the Directors in the Management Board of the Respondent No. 1 Management Board of the Respondent No. 1 Management Board of the Respondent No. 1 Society. After the cancellation of the joint Society. After the cancellation of the joint Society. After the cancellation of the joint allotment, the Petitioner made application to the allotment, the Petitioner made application to the allotment, the Petitioner made application to the Respondent No. 1 Society for allotting another Respondent No. 1 Society for allotting another Respondent No. 1 Society for allotting another plot and in his individual capacity, which plot and in his individual capacity, which plot and in his individual capacity, which request was accepted and Respondent No.1, in request was accepted and Respondent No.1, in request was accepted and Respondent No.1, in turn, allotted Plot No. 46 some time in June turn, allotted Plot No. 46 some time in June turn, allotted Plot No. 46 some time in June 1991 to the Petitioner. In due course, 1991 to the Petitioner. In due course, 1991 to the Petitioner. In due course, Respondent No. 1 threatened cancellation of the Respondent No. 1 threatened cancellation of the Respondent No. 1 threatened cancellation of the said allotment, for which reason the Petitioner said allotment, for which reason the Petitioner said allotment, for which reason the Petitioner immediately rushed to the Co-operative Court by immediately rushed to the Co-operative Court by immediately rushed to the Co-operative Court by way of dispute, being Dispute No. 430 of 1981. way of dispute, being Dispute No. 430 of 1981. way of dispute, being Dispute No. 430 of 1981. In the said dispute, ad interim order was granted In the said dispute, ad interim order was granted In the said dispute, ad interim order was granted :4: in favour of the Petitioner, which was eventually in favour of the Petitioner, which was eventually in favour of the Petitioner, which was eventually confirmed by judgment and order dated 3rd confirmed by judgment and order dated 3rd confirmed by judgment and order dated 3rd February 1983. After that order, the matter was February 1983. After that order, the matter was February 1983. After that order, the matter was finally resolved between the Petitioner and finally resolved between the Petitioner and finally resolved between the Petitioner and Respondent No.1 Society. As per the said Respondent No.1 Society. As per the said Respondent No.1 Society. As per the said agreement, Plot No. 46 has been finally allotted agreement, Plot No. 46 has been finally allotted agreement, Plot No. 46 has been finally allotted to the Petitioner and the Petitioner is enjoying to the Petitioner and the Petitioner is enjoying to the Petitioner and the Petitioner is enjoying the said plot. Incidentally, Plot No. 46, which the said plot. Incidentally, Plot No. 46, which the said plot. Incidentally, Plot No. 46, which has been allotted to the Petitioner admeasures has been allotted to the Petitioner admeasures has been allotted to the Petitioner admeasures around 10,500 sq. ft., whereas the plot in around 10,500 sq. ft., whereas the plot in around 10,500 sq. ft., whereas the plot in question being Plot No. 81 admeasures only 8,450 question being Plot No. 81 admeasures only 8,450 question being Plot No. 81 admeasures only 8,450 sq.ft. Be that as it may, it appears that since sq.ft. Be that as it may, it appears that since sq.ft. Be that as it may, it appears that since the Respondent No. 1 Society subsequently the Respondent No. 1 Society subsequently the Respondent No. 1 Society subsequently re-allotted Plot No. 81 in favour of the re-allotted Plot No. 81 in favour of the re-allotted Plot No. 81 in favour of the original Respondent No. 2 some time in April original Respondent No. 2 some time in April original Respondent No. 2 some time in April 1984, the Petitioner, for reasons best known to 1984, the Petitioner, for reasons best known to 1984, the Petitioner, for reasons best known to him, decided to question not only the resolution him, decided to question not only the resolution him, decided to question not only the resolution cancelling the earlier allotment, but also cancelling the earlier allotment, but also cancelling the earlier allotment, but also resolution passed in favour of Respondent No. 2 resolution passed in favour of Respondent No. 2 resolution passed in favour of Respondent No. 2 re-allotting the same plot to Respondent No.2 by re-allotting the same plot to Respondent No.2 by re-allotting the same plot to Respondent No.2 by way of present dispute, which came to be way of present dispute, which came to be way of present dispute, which came to be instituted only in October 1986. The Judge of instituted only in October 1986. The Judge of instituted only in October 1986. The Judge of the Co-operative Court, Raigad Ratnagiri at the Co-operative Court, Raigad Ratnagiri at the Co-operative Court, Raigad Ratnagiri at Alibag, by judgment and order dated September 24, Alibag, by judgment and order dated September 24, Alibag, by judgment and order dated September 24, 1987, was pleased to allow the dispute as filed 1987, was pleased to allow the dispute as filed 1987, was pleased to allow the dispute as filed :5: by the Petitioner by passing the following order: by the Petitioner by passing the following order: by the Petitioner by passing the following order: "1. The Opponent No. 1 Society "1. The Opponent No. 1 Society "1. The Opponent No. 1 Society is directed to allot Plot No. 81 is directed to allot Plot No. 81 is directed to allot Plot No. 81 in joint name of Disputant and in joint name of Disputant and in joint name of Disputant and Opponent No. 2 subject to the Opponent No. 2 subject to the Opponent No. 2 subject to the payment of entire cost of payment of entire cost of payment of entire cost of construction of the shed jointly construction of the shed jointly construction of the shed jointly by disputant and Opponent No.2 by disputant and Opponent No.2 by disputant and Opponent No.2 and subject to the production of and subject to the production of and subject to the production of no objection certificate by the no objection certificate by the no objection certificate by the disputant from Industries disputant from Industries disputant from Industries Commissioner within three months Commissioner within three months Commissioner within three months from the date of issue of the from the date of issue of the from the date of issue of the order. order. order. 2. Parties to bear their own 2. Parties to bear their own 2. Parties to bear their own cost." cost." cost." 02. Against this decision, Respondent No. 1 02. Against this decision, Respondent No. 1 02. Against this decision, Respondent No. 1 Society carried the matter in appeal, being Society carried the matter in appeal, being Society carried the matter in appeal, being Appeal No. 52 of 1987, before the Maharashtra Appeal No. 52 of 1987, before the Maharashtra Appeal No. 52 of 1987, before the Maharashtra State Co-operative Appellate Court, Bombay. The State Co-operative Appellate Court, Bombay. The State Co-operative Appellate Court, Bombay. The Appellate Court, however, allowed the appeal Appellate Court, however, allowed the appeal Appellate Court, however, allowed the appeal preferred by Respondent No. 1 Society. The preferred by Respondent No. 1 Society. The preferred by Respondent No. 1 Society. The :6: Appellate Court reversed the finding reached by Appellate Court reversed the finding reached by Appellate Court reversed the finding reached by the First Court and, instead, took a view on the First Court and, instead, took a view on the First Court and, instead, took a view on reappreciation of evidence on record that the reappreciation of evidence on record that the reappreciation of evidence on record that the Petitioner was afforded ample opportunity of Petitioner was afforded ample opportunity of Petitioner was afforded ample opportunity of being heard before the cancellation of allotment being heard before the cancellation of allotment being heard before the cancellation of allotment in respect of the disputed plot, vide Board in respect of the disputed plot, vide Board in respect of the disputed plot, vide Board Resolution dated 4th October 1980. It has also Resolution dated 4th October 1980. It has also Resolution dated 4th October 1980. It has also found that, in fact, the Petitioner was the found that, in fact, the Petitioner was the found that, in fact, the Petitioner was the Director at the relevant time and was fully aware Director at the relevant time and was fully aware Director at the relevant time and was fully aware about the developments in that behalf. about the developments in that behalf. about the developments in that behalf. Accordingly, the appeal preferred by Respondent Accordingly, the appeal preferred by Respondent Accordingly, the appeal preferred by Respondent No. 1 Society came to be allowed. Against this No. 1 Society came to be allowed. Against this No. 1 Society came to be allowed. Against this decision, the present writ petition came to be decision, the present writ petition came to be decision, the present writ petition came to be filed by the Petitioner. filed by the Petitioner. filed by the Petitioner. 03. When this writ petition was pending, 03. When this writ petition was pending, 03. When this writ petition was pending, Civil Application was filed by the Petitioner Civil Application was filed by the Petitioner Civil Application was filed by the Petitioner pointing out that certain relevant documents were pointing out that certain relevant documents were pointing out that certain relevant documents were not placed on record either by the Respondent No. not placed on record either by the Respondent No. not placed on record either by the Respondent No. 1 Society or by the Petitioner during the trial 1 Society or by the Petitioner during the trial 1 Society or by the Petitioner during the trial of the dispute. This Court by order dated 27th of the dispute. This Court by order dated 27th of the dispute. This Court by order dated 27th August 2003 allowed the said application in the August 2003 allowed the said application in the August 2003 allowed the said application in the interest of justice by permitting the Petitioner interest of justice by permitting the Petitioner interest of justice by permitting the Petitioner to amend the pleadings. In view of the amended to amend the pleadings. In view of the amended to amend the pleadings. In view of the amended pleadings, it was thought necessary to refer the pleadings, it was thought necessary to refer the pleadings, it was thought necessary to refer the :7: matter to the Co-operative Appellate Court for matter to the Co-operative Appellate Court for matter to the Co-operative Appellate Court for further evidence and also for inviting findings further evidence and also for inviting findings further evidence and also for inviting findings on the following two issues : on the following two issues : on the following two issues : "(1) As to whether the bye law "(1) As to whether the bye law "(1) As to whether the bye law which is sought to be relied upon which is sought to be relied upon which is sought to be relied upon pursuant to the amendment was pursuant to the amendment was pursuant to the amendment was prevalent at the relevant time ? prevalent at the relevant time ? prevalent at the relevant time ? and and and (2) As to whether the action (2) As to whether the action (2) As to whether the action taken by the Respondent Society taken by the Respondent Society taken by the Respondent Society is in contravention of the bye is in contravention of the bye is in contravention of the bye law now sought to be relied upon law now sought to be relied upon law now sought to be relied upon ?" ?" ?" 04. The original bye-law which was produced 04. The original bye-law which was produced 04. The original bye-law which was produced is in Marathi. The substance of the requirement is in Marathi. The substance of the requirement is in Marathi. The substance of the requirement of bye-law D.2.3.10 was that, before the of bye-law D.2.3.10 was that, before the of bye-law D.2.3.10 was that, before the allotment is cancelled, the Board shall afford allotment is cancelled, the Board shall afford allotment is cancelled, the Board shall afford opportunity of at least 7 days to the allottee by opportunity of at least 7 days to the allottee by opportunity of at least 7 days to the allottee by giving notice, so as to enable the allottee to giving notice, so as to enable the allottee to giving notice, so as to enable the allottee to submit explanation, if any, and thereafter after submit explanation, if any, and thereafter after submit explanation, if any, and thereafter after considering the explanation so offered be considering the explanation so offered be considering the explanation so offered be satisfied that there was no substance in the satisfied that there was no substance in the satisfied that there was no substance in the :8: explanation as offered and that cancellation of explanation as offered and that cancellation of explanation as offered and that cancellation of allotment was imperative. The Appellate Court, allotment was imperative. The Appellate Court, allotment was imperative. The Appellate Court, in terms of the directions given in order dated in terms of the directions given in order dated in terms of the directions given in order dated 27th August 2003, allowed both the parties to 27th August 2003, allowed both the parties to 27th August 2003, allowed both the parties to adduce further evidence and after considering the adduce further evidence and after considering the adduce further evidence and after considering the said evidence has recorded finding on the said evidence has recorded finding on the said evidence has recorded finding on the aforesaid two issues in its judgment dated 7th aforesaid two issues in its judgment dated 7th aforesaid two issues in its judgment dated 7th October 2003, which has been forwarded to this October 2003, which has been forwarded to this October 2003, which has been forwarded to this Court for considering the same for final disposal Court for considering the same for final disposal Court for considering the same for final disposal of this writ petition. of this writ petition. of this writ petition. 05. The only question that is canvassed on 05. The only question that is canvassed on 05. The only question that is canvassed on behalf of the Petitioner to assail the resolution behalf of the Petitioner to assail the resolution behalf of the Petitioner to assail the resolution passed by Respondent No. 1 Society dated 4th passed by Respondent No. 1 Society dated 4th passed by Respondent No. 1 Society dated 4th October 1980 cancelling the original allotment in October 1980 cancelling the original allotment in October 1980 cancelling the original allotment in respect of the disputed plot is that the same is respect of the disputed plot is that the same is respect of the disputed plot is that the same is not in conformity with the requirement of the not in conformity with the requirement of the not in conformity with the requirement of the aforesaid bye-law. According to Mr. Walawalkar, aforesaid bye-law. According to Mr. Walawalkar, aforesaid bye-law. According to Mr. Walawalkar, for the Petitioner, the appellate authority for the Petitioner, the appellate authority for the Petitioner, the appellate authority neither in the first judgment nor in the present neither in the first judgment nor in the present neither in the first judgment nor in the present judgment has considered that there was failure of judgment has considered that there was failure of judgment has considered that there was failure of compliance of relevant bye-law. On the other compliance of relevant bye-law. On the other compliance of relevant bye-law. On the other hand, the appellate Court has erroneously hand, the appellate Court has erroneously hand, the appellate Court has erroneously proceeded on the reasoning that the Petitioner proceeded on the reasoning that the Petitioner proceeded on the reasoning that the Petitioner had knowledge about the proposed resolution to be had knowledge about the proposed resolution to be had knowledge about the proposed resolution to be :9: passed by the Managing Board of Respondent No.1 passed by the Managing Board of Respondent No.1 passed by the Managing Board of Respondent No.1 Society. It is submitted that mere knowledge is Society. It is submitted that mere knowledge is Society. It is submitted that mere knowledge is not sufficient and cannot take the colour of the not sufficient and cannot take the colour of the not sufficient and cannot take the colour of the notice as was required to be given by virtue of notice as was required to be given by virtue of notice as was required to be given by virtue of bye-law D.2.3.10. He, therefore, submits that bye-law D.2.3.10. He, therefore, submits that bye-law D.2.3.10. He, therefore, submits that the decision under challenge cannot be sustained the decision under challenge cannot be sustained the decision under challenge cannot be sustained and, instead, the resolution in question will and, instead, the resolution in question will and, instead, the resolution in question will have to be set aside and the consequential have to be set aside and the consequential have to be set aside and the consequential intimation to the Petitioner of cancellation of intimation to the Petitioner of cancellation of intimation to the Petitioner of cancellation of the allotment of the disputed plot will have also the allotment of the disputed plot will have also the allotment of the disputed plot will have also to be set aside and the allotment as was made to be set aside and the allotment as was made to be set aside and the allotment as was made earlier will have to be restored to the earlier will have to be restored to the earlier will have to be restored to the Petitioner. Petitioner. Petitioner. 06. Mr. Sawant, for the Respondent No. 1 06. Mr. Sawant, for the Respondent No. 1