Rohit Chambers Premises Co Op Hsg Soc Ltd vs Mohammed Umar Khan
2025 Latest Caselaw 9011 Bom

Bombay High Court

Rohit Chambers Premises Co Op Hsg Soc Ltd vs Mohammed Umar Khan on 17 December, 2025

Author: Amit Borkar

Bench: Amit Borkar

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                       Shabnoor
                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION

                                             WRIT PETITION NO.16994 OF 2025
SHABNOOR
AYUB                   Rohit Chambers Premises Cooperative
PATHAN
Digitally signed by    Housing Society Ltd.                          ... Petitioner
SHABNOOR AYUB
PATHAN
Date: 2025.12.17
                                 V/s.
17:08:48 +0530
                       Mohammed Umar Khan                            ... Respondent

                       Mr. Surel S Shah, Sr. Advocate a/w Mr. Sumit S. Kate,
                       for the Petitioner.
                       Mr. Rishi Soni a/w Minhas Joshi i/b Economic Law P,
                       for Respondent.



                                                      CORAM    : AMIT BORKAR, J.

                                                      DATED    : DECEMBER 17, 2025
                       P.C.:

1. Arguable questions are raised. Hence, Rule.

2. On a plain reading of the pleadings, it emerges that the petitioner has called in question a resolution passed by the General Body of the respondent society. By the said resolution, members of the commercial society have been restrained from carrying on certain specified activities. It is this restraint imposed by the General Body which forms the subject matter of challenge in the present petition. The resolution, as placed on record, reads thus.

"Resolved that any member of the society, or person occupying the premises in the society, SHALL NOT carry out any of the activities mentioned herein below:

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I. Eating House ii. Restaurant iii. Liquor Bar iv. Tea Shop v. Convenience Store/ General Store vi. Massage Parlour / Spa vii. Gymnasium / Yoga Centre viii. Lottery Shop ix. Hotel / Lodging & Boarding x. Flour Mill xi. Any similar activity which is likely to cause nuisance & inconvenience, or effect the structural stability of the building.

3. The petitioner had applied to the society for issuance of a No Objection Certificate to start a restaurant in the premises. However, before the dispute came to be instituted, it is not in dispute that the respondent had already let out the said premises for a purpose other than a restaurant. This had occurred prior to the Cooperative Court considering the prayer for interim relief. Despite this position, in the dispute challenging the validity of the resolution, the respondent sought interim relief by way of a mandatory direction to the society to grant a No Objection Certificate.

4. It is significant to note that the premises had already been let out before the impugned order came to be passed. This factual aspect assumes relevance while examining the prayer for interim

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mandatory relief.

5. The Cooperative Court, taking note of the submission advanced on behalf of the petitioner, found that the disputant had suppressed the material fact that the premises were let out for a different purpose prior to the filing of the dispute. On this ground, the Cooperative Court rejected the application seeking temporary mandatory relief. The Appellate Court, however, interfered mainly on the premise that any decision taken by the General Body of the society must conform to the framework of law. The Appellate Court has not demonstrated in its judgment as to how the impugned resolution travels beyond the permissible limits of the cooperative movement, particularly when a clear majority of the members resolved to restrict the use of the premises to specified purposes and to prohibit certain activities. The only reason indicated appears to be that such use is otherwise permissible under the Development Control Rules.

6. It is a settled position of law that a person who acquires premises in a cooperative society does not enjoy absolute freedom in the use of such premises. His right of enjoyment remains regulated by the Act, the Rules, and the Bye laws of the society. Section 72 of the Maharashtra Cooperative Societies Act, 1960, places the General Body at the apex of the decision making structure. The General Body represents the collective will of the members. Its resolutions bind all members so long as they operate within the four corners of law. Courts do not sit in appeal over the wisdom of such decisions. Interference is justified only when the resolution is on the face of it illegal, arbitrary, or opposed to the

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statutory framework. In the absence of such infirmity, no interim relief can be granted which has the effect of neutralising or overriding a resolution of the General Body.

7. Another important circumstance was available on record. The premises in question had already been let out for a different purpose for a fixed period of five years. That period had not expired when the Appellate Court granted interim mandatory relief. This was not a marginal or incidental fact. It went to the root of the matter. Grant of interim mandatory relief in such a situation would disturb an existing state of affairs and would virtually grant final relief at an interlocutory stage. The law on this aspect is clear. The Supreme Court in Dorab Cawasji Warden v. Coomi Sorab Warden (1990) 2 SCC 117 has held that an interim mandatory injunction can be granted only in rare and exceptional cases. The Court must be satisfied that there exists a strong prima facie case and that denial of relief would result in serious injustice. These conditions were not examined, much less satisfied.

8. The only reason discernible from the impugned order is that such user of the premises is otherwise permissible under the Development Control Rules. This, by itself, cannot be decisive. Permissibility under planning regulations does not ipso facto confer an enforceable right upon a member to disregard the binding resolutions of a cooperative society. The Development Control Rules operate in a distinct field. They regulate land use from the standpoint of town planning. They do not dilute the authority of the General Body to regulate the manner in which the premises in the society are to be used, so long as such regulation

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does not offend the Act, the Rules, or the Bye laws. Mere permissibility under the Development Control Rules, therefore, cannot furnish a valid ground to override a resolution passed by the collective will of the members.

9. In the present case, there is no prima facie case made out that the impugned resolution violates the Act, the Rules, or the Bye laws. There is also no material to suggest that the resolution was procured by fraud, misrepresentation, or suppression of facts. In the absence of such foundational findings, the Cooperative Appellate Court could not have compelled the society to issue a No Objection Certificate. Such a direction amounts to enforcing a right which is yet to be established. The petitioner has, therefore, demonstrated a clear case for protection against the impugned interim order. Interim relief, in the facts of the case, deserves to operate in favour of the petitioner.

10. Until disposal of the petition, there shall be interim relief in terms of prayer clause (b).

(AMIT BORKAR, J.)