Notice of Motion No.3525 of 2000,Suit No.4437 of 2000

19th January, 2001

Petitioner Counsel: Mr.E.P.BHARUCHA , Mr.M.P.S.RAO , Mr.RUMI H. MIRZA
Respondent Counsel: Mr.M.P.VASHI , Mr.VASU

Cases Cited:
Jamshedji Cursetjee Tarachand vs. Soonabai, Vol.XXXIII I.L.R. 122 [Para 5]
Ratilal Panachand Gandhi vs. State of Bombay, AIR 1954 SC 388 [Para 5]
Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay, AIR 1962 SC 853 [Para 5]
Bramchari Sidheswar Shai vs. State of W.B., (1995) 4 SCC 646 [Para 5]
Laxminarayan Temple vs. L.M. Chandore, AIR 1970 Bombay 23 [Para 5]
Shrisht Dhawan (Smt) vs. M/s.Shaw Brothers, (1992) 1 SCC 534 [Para 5]
S.P.Chegal Varaya Naidu (dead) by Lrs. vs. Jagannath (dead) by Lrs., (1994) 1 SCC 1 [Para 5]
The Talmakiwadi Co-operative Housing Society Ltd. vs. The Divisional Joint Registrar, Co-operative Societies, 1999(1) Bom.C.R. 393 [Para 6]
Zoroastrian Co-operative Housing Society Ltd. vs. District Registrar, Co-op. Societies, AIR 1997 Gujarat 136 [Para 6]
Kantibhai D.Patel vs. Sudhir M. Mitra, (A.O.No.486 of 1999) [Para 7]
St.Anthony's Co-operative Society Limited vs. The Secretary (Co-operation & Textile Department), (Writ Petition 1357 of 2000) [Para 7]

JUDGMENT

JUDGMENT :- Heard Mr.Bharucha in support of these two Notice of Motions which are taken out by the plaintiff and Mr.Vashi appears for the defendant.

2. The plaintiff is a Society registered under the Societies Registration Act, 1860, and amongst others its aims and objects are to undertake, organize and perform beneficial acts in the interest of Parsi Zoroastrians meaning thereby persons who are Parsi by birth being born of Parsi parents and also professing Zoroastrian religion. This plaintiff-Society is a owner of land situated at Oshiwara, Jogeshwari (West), Mumbai known as "Behram Baug". Over the years, it has developed a residential colony meant for the Parsi Zoroastrians on that land. The persons who are interested in staying in that residential colony had to be Parsi Zoroastrians as stated above and had to sign necessary declarations for that purpose.

3. The case of the plaintiff-Society is that husband of defendant No.1, one Nariman Gustad Jogina hailing from Agra, wanted to settle down in Mumbai and, therefore, sought a flat in this residential colony. He gave a declaration in the necessary form on 9th of May 1995 and, therefore, the plaintiff, by its letter dated 20th July 1995 agreed to allot the flat to him. Subsequently, an agreement of sale was signed with Nariman Jogina on 22nd of April 1996. This Nariman Jogina expired on 16th October 1996 before being put in possession leaving behind him his wife (defendant No.1) and son (defendant No.2). Defendant Nos.1 and 2 gave a declaration on 13th February 1997 that they will not allow any non-Zoroastrian to use the flat. Thereafter defendant Nos.1 and 2 were put in possession of the flat. Later on a Co-operative Housing Society governed under the Maharashtra Co-operative Societies Act, 1960 was formed known as Behramshah Shroff Co-operative Housing Society Ltd. to take care of this housing colony.

4. It so transpired that later this defendant No.2 married defendant No.3 on 24th of August 2000. Defendant No.3 happens to be a non-Parsi lady. The plaintiff was aware that such a marriage was in the offing and on 23rd August 2000 this suit has been filed seeking a decree against the defendants to hand over the possession of their flat bearing No.102 in building No.1 situated in this Housing Society. At the time when the suit was filed, defendant No.3 was not joined as a party defendant. She has been subsequently joined by amendment. Before joining defendant No.3, a Motion was taken out against defendant Nos.1 and 2 on 23rd August 2000 (bearing Notice of Motion No. ....... of 2000 in Suit Lodging No.3500 of 2000) praying that defendant Nos.1 and 2 be restrained by an injunction from inducting or allowing residence of non-Zoroastrian in the suit premises. The defendants have filed a reply thereto. That Motion is still not numbered. The plaintiff will get it numbered within two weeks from today. Subsequent to the amendment, the second Motion has been taken out bearing No.3525 of 2000. Mr.Vashi, learned Counsel appearing for the defendants, states that the reply filed by the earlier Motion may be treated in substance as the reply to the Motion No.3525 of 2000. Both the learned Counsel submit that these two Motions be heard and decided together. Accordingly, the same are being heard and decided.

5. Mr.Bharucha, learned Counsel appearing for the plaintiff, advanced the following submissions in support of these prayers.

(a) That the alleged wrongful act on the part of the defendants was ultra vires the objects of the Trust constituting the plaintiff-Society and, therefore, defendant No.3 could not be permitted to continue to stay in the housing colony. Mr.Bharucha in this behalf relied upon an unreported judgment of a Single Judge of this Court (Davar, J.) delivered on 27th November 1908 wherein in the case of Sir Dinsha Manockji Petit vs. Sir Jamsetji Jeejeebhoy the learned Judge held that merely because a person is married to a Zoroastrian or he is converted into a Zoroastrian faith by his or her performing Navjyot he cannot claim to belong to Parsi community. Mr.Bharucha's submission is that the occupant concerned has to be both Zoroastrian as well as Parsi. The further submission of Mr.Bharucha in this behalf is that the religious beliefs of a community have to be honoured by a secular judge and he relied upon a judgment, again of Justice Davar in the case of Jamshedji Cursetjee Tarachand vs. Soonabai reported in Vol.XXXIII The Indian Law Reporter 122 which is subsequently quoted with approval by the apex Court in the case Ratilal Panachand Gandhi vs. State of Bombay reported in AIR 1954 SC 388.

(b) The second submission of Mr.Bharucha was that such restrictive covenants were protected by Articles 25, 26 and 29 of the Constitution. He relied upon a judgment of the apex Curt in the case of Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay reported in AIR 1962 SC 853 wherein by a majority judgment of the Constitution Bench, the right of excommunication was upheld as valid under the Bombay Prevention of Excommunication Act in so far as it destroys the right of excommunication was held to be void for being in violation of Article 26(b) of the Constitution of India. Mr.Bharucha then relied upon a judgment of the apex Court in the case of Bramchari Sidheswar Shai vs. State of W.B. reported in (1995) 4 SCC 646 and that of this Court in the case of Laxminarayan Temple vs. L.M. Chandore reported in AIR 1970 Bombay 23 wherein it has been held that right to own and acquire movable and immovable properties governed under Article 26(c) of the Constitution is a part of the freedom to manage religious affairs.

(c) The third submission of Mr.Bharucha was that Late Nariman Jogina as also defendant Nos.1 and 2 had agreed to abide by the terms required by the plaintiff-Society. They having acted to the contrary, the agreement under which they were put in possession is voidable at the option of the party whose consent is obtained by misrepresentation. He relied upon a judgment in the case of Shrisht Dhawan (Smt) vs. M/s.Shaw Brothers reported in (1992) 1 SCC 534 in this behalf as also one in the case of S.P.Chegal Varaya Naidu (dead) by Lrs. vs. Jagannath (dead) by Lrs. reported in (1994) 1 SCC 1 to submit that fraud vitiates all transactions.

(d) The fourth submission of Mr.Bharucha is that the defendants had committed a breach of the agreement and in the premises the defendants ought to be directed to hand over the vacant possession of the flat.

(e) Lastly, it was submitted by Mr.Bharucha that although an arbitration clause was provided in the agreement viz. Clause 36, it was not applicable since the 2nd and 3rd defendants were not party to the agreement.

6. Mr.Vashi, learned Counsel appearing for the defendants, on the other hand, submitted that as far as the settlement of the Trust and the responsibility cast on the plaintiff-Society are concerned, these developments are prior to the agreement being entered into between the plaintiff and Late Shri. Nariman Jogina. He submits that under section 10 of the Maharashtra Ownership Flats Act, 1963, the promoter of a housing complex is duty bound to take steps to form a Co-operative Housing Society or a Company. The Society now formed is going to control the affairs of the housing complex and its activities are controlled under the Maharashtra Co-operative Societies Act, 1960. Under section 22(1)(a) of the said Act, every individual who is competent to contract under the Indian Contract Act is eligible to become a member and under section 23, a Society cannot refuse admission to membership to any person duly qualified except without sufficient reason. Mr.Vashi further submitted in this behalf that a model agreement as prescribed under the Act is binding on the parties and the agreement which was sought from the defendants was contrary thereto. This submission is made in view of the submission of Mr.Bharucha that clause 11 of the agreement for sale laid down that the flat purchaser had agreed that at all times the flat will be used only for the residence of Parsi/Irani Zoroastrians and will not be sold or let to a person other than Parsi Zoroastrians. The submission of Mr.Vashi is that the particular clause and all such provisions of the agreement are contrary to the model agreement as also the provisions of sections 22 and 23 of the Maharashtra Co-operative Societies Act. Mr.Vashi relies upon a judgment of a learned Single Judge of this Court (A.V.Savant, J. as he then was in this Court) in the case of The Talmakiwadi Co-operative Housing Society Ltd. vs. The Divisional Joint Registrar, Co-operative Societies reported in 1999(1) Bom.C.R. 393. In that case also the relevant bye-law No.7 of the Society provided that all members have to belong to the Kanara Saraswat community. The Divisional Joint Registrar had directed the Society to amend the bye-laws to bring them in consonance with the model bye-laws. That direction was challenged by the Society. Amongst others, the validity of the bye-law of the Society was considered by the learned Judge on the touch-stone of sections 22 and 23 of the Maharashtra Co-operative Societies Act, 1960 and thereafter the learned Judge held that the said bye-law was liable to be struck down as ultra vires the above-referred provisions of the Statute. The learned Judge relied upon a large number of judgments in support of the conclusion arrived at including a detailed judgment of a learned Single Judge of Gujarat High Court (M.S.Parikh, J.) in the case of Zoroastrian Co-operative Housing Society Ltd. vs. District Registrar, Co-op. Societies (Urban) reported in AIR 1997 Gujarat 136.

7. A similar mater had come before me in A.O.No.486 of 1999 in the case of Kantibhai D.Patel vs. Sudhir M. Mitra. In that mater also there was a bye-law which provided that non-patidars could not become members of the concerned Society. In the teeth of that bye-law, a learned Judge of the City Civil Court had granted injunction in favour of the respondents who are non-patidars and who were occupants in a flat in that Society. The appeal had been preferred against that order and the learned Counsel appearing for the respondents had relied upon the judgment in the case of The Talmakiwadi Co-Op.Hsg.Sty. (supra). In Para 7 of my order I have referred to it and I have accepted the submission made in that behalf. The appeal was accordingly dismissed by my order passed on that A.O. on 18th June 1999. An appeal was preferred from that order to the apex Court being Special Leave to Appeal (Civil) No.9818 of 1999 and the same came to be dismissed by a one line order "The special leave petition is dismissed" passed on 6th August 1999. Mr.Vashi has lastly relied upon a judgment of another Single judge of this Court (Dr.D.Y.Chandrachud, J.), dated 18th August 2000 in Writ Petition 1357 of 2000 in the case of St.Anthony's Co-operative Society Limited vs. The Secretary (Co-operation & Textile Department) wherein the learned Judge has also taken a similar view in the context of a Co-operative Society meant for christians only.

8. I have carefully considered the rival submissions. The statutory provisions of the Maharashtra Ownership Flats Act, 1963 and the Maharashtra Co-operative Societies Act, 1960 are binding on the Society concerned and any bye-law or restriction to the contrary would be hit by those provisions. The reliance by Mr.Bharucha on the apex Court's judgment in the case of Sardar Syedna Taher Saifuddin Saheb (supra) is, in my view, misplaced. In that matter, the Court was concerned with the validity of the concerned Act regarding excommunication and the Act was held to be void for being in violation of Article 26(b) of the Constitution. It is very relevant to note that in the majority judgments (Per Das Gupta, J.) in Para 44 there is a specific reference to Article 25(2) of the Constitution which provides in sub-clause (a) thereof that nothing in the particular article providing for freedom of conscience shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with the religious parties. Thereafter it is observed in Para 44 that "Quite clearly, the impugned Act cannot be regarded as a law regulating or restricting any economic, financial, political or other secular activity". In the present case, these two Acts are Acts regulating the secular activity of ownership of flats and formation of Co-operative Societies and they lay down the requirements in that behalf. It is not disputed that the concerned Society is governed under these two Acts. That being so, any restriction which is contrary to the provisions of these Statutes cannot be defended. In fact, such provisions would be protected under Article 25 (2)(a) of the Constitution and would not be hit by Article 26(c) on which a reliance was placed by Mr.Bharucha by contending that the religious denominations have the freedom to manage their own affairs and own and acquire movable and immovable properties. When an agreement is contrary to the statutory provision it is the statutory provision which will prevail and one cannot insist on enforcement of the clauses of the agreement contending that now the agreement has become voidable by relying upon the clause thereof which is contrary and violative of the statutory provision. The submission of Mr.Vashi has been that it is true that the necessary agreement was signed by Late Nariman Jogina and necessary declarations were given by defendant Nos.1 and 2. That was in 1997, but this is a subsequent development namely the marriage which took place in August 2000 and in his submission, the plaintiff-Society cannot be granted injunction which is sought since it would be violative of the provisions of the two Statutes as also the protection which is granted to such Statutes under the Constitution. In my view, the submission of Mr.Vashi is well taken.

9. For the reasons stated above, the injunction as sought by the plaintiff cannot be granted. Both the Motions are dismissed. Detailed reasons, as recorded above, have been given since Mr.Bharucha submitted that the suit will take a number of years to come up for hearing. Hence the submissions canvassed have been dealt with in details.

10. Certified copy expedited. Authenticated copy of this order be made available to the parties.

Order accordingly.