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TMI Blog2009 (4) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... of convenience and inconvenience; and (iii) irreparable loss and injury. None of the said principles have been considered by the High Court while passing the second and third interim orders dated 22nd April, 2008 and 7th May, 2008, nor has the High Court taken into account the long silence on the part of the Respondent No.1 Corporation in filing a suit after 19 years. In our view, while passing the interim order dated 7th May, 2008, the High Court ought to have considered the effect which its order would have on the 280 transferees to whom some portions of the land had already been sold and who had commenced construction thereupon, particularly when they were not even parties in the appeal, nor were they heard before they were injuncted from continuing with the construction work. Such an order affecting third party rights in their absence, as they were not parties to the proceedings, cannot be sustained having further regard to the manner in which the said order was passed. An application for an order which would have far and wide reaching consequences was sought to be disposed of by the Division Bench on the very next day without giving an opportunity of controverting the al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e granted. 2. The appellant and the Respondent Nos.2 to 7 are owners of agricultural land in Survey No.36 measuring 32 acres and 38 gunthas situated in Village Nanamauva, Taluka District Rajkot (hereinafter referred to as the `suit land'). On 19th March, 1980, the appellant and the other joint owners of the suit land entered into an Agreement with Tirupati Cooperative Housing Society - a proposed Cooperative Housing society - for development of the said land upon obtaining necessary permission under Section 20 of the Urban Land (Ceiling Regulation) Act, 1976 (hereinafter referred to as the `Land Ceiling Act, 1976') for exemption and for construction of houses for the weaker sections. The application made by the proposed Society on 29th April, 1988, under Section 20 of the Land Ceiling Act, 1976, was rejected and according to the appellant and other joint owners, on the failure of the proposed Society to get such permission, the Agreement could not be performed and, therefore, by Public Notice dated 24th April, 1988, the Agreement was declared to have been cancelled. 3. A legal notice was received from one Sharad N. Acharya, Advocate, denying that the Agreement had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property. In response thereto, the appellant also caused a Public Notice to be published on 10th March, 2008, clarifying that no injunction order had been passed by the Gujarat High Court. The said fact was brought to the notice of the Gujarat High Court by the Respondent No.1 by way of an additional affidavit on the basis whereof, the High Court passed an order on 22nd April, 2008, directing that the property in question should not be sold. Thereafter, on 6th May, 2008, a further application for injunction No.5618/2008 was filed in the pending First appeal by the Respondent No.1 herein indicating that constructions were being raised on the land in question. On the basis of the above, the Division Bench of the Gujarat High Court, on 7th May, 2008, passed the following order impugned in these appeals : By this application, learned counsel for the applicant submits that inspite of the directions of this court issued vide orders dated 29.02.2008 and 22.04.2008, the constructions are being raised in the disputed land. Learned counsel Mr. Pahwa, the respondent No.2 submits that the constructions were raised about 6 months back, and part of the property was already sold. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Mr. Ranjit Kumar urged that the owners of the property had never entered into any agreement with Maruti Corporation-Respondent No.1 herein, which filed a suit identical to that filed by Tirupati Cooperative Housing Society, relying on the same cheques by which Tirupati had advanced certain sums to the owners of the property. Mr. Ranjit Kumar also urged that, in any event, even if the case of the Respondent No.1 is accepted as correct, for 19 years it had not applied for exemption to develop the land under Section 20 of the Land Ceiling Act, 1976, without which it was not possible to develop the property. It is only after the repeal of the Land Ceiling Act, 1976, on 19th March, 1999, that the Respondent No.1 filed the aforesaid suit seeking enforcement of an agreement alleged to have been entered into between the parties on 19th May, 1980, when exemption under Section 20 of the said Act was no longer required. 9. Mr. Ranjit Kumar submitted that initially when the First Appeal of the Respondent No.1 was admitted in the Gujarat High Court, an order was also passed in Civil Application No.2405 of 2008 to the effect that if the property in question was dealt with in any way th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the First Appeal. Mr. Ranjit Kumar submitted that the basic principles for granting injunction involving the making out of a prima facie case, the balance of convenience and inconvenience, and irreparable loss and injury, were not even taken into consideration when the orders of injunction were passed. 12. In addition to the above, Mr. Ranjit Kumar also referred to the decision of this Court in Mandali Ranganna others vs. T. Ramachandra [(2008) 11 SCC 1] wherein an additional principle was sought to be enunciated relating to grant of injunction by way of an equitable relief. This Court held that in addition to the three basic principles, a Court while granting injunction must also take into consideration the conduct of the parties. It was observed that a person who had kept quiet for a long time and allowed others to deal with the property exclusively would not be entitled to an order of injunction. The Court should not interfere only because the property is a very valuable one. Grant or refusal of injunction has serious consequences depending upon the nature thereof and in dealing with such matters the Court must make all endeavours to protect the interest of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court could be requested to dispose of the First Appeal which is pending before it expeditiously. 17. Mr. Huzefa Ahmadi, who appeared for the Respondent No.1 - Maruti Corporation in Special Leave Petition (Civil) No. 12855 of 2008, while adopting Mr. Sorabjee's submissions, urged that the Tirupati Cooperative Housing Society had been created by Maruti Corporation with a definite object in mind. He submitted that the lands in question were agricultural in nature and could not, therefore, be acquired by any other body other than a cooperative society. It was on account of such bar that the Tirupati Cooperative Housing Society was proposed to be created on grounds of expediency and was yet to be registered. He also submitted that the payments made to the owners by Tirupati Cooperative Housing Society had been made from the account of Maruti Corporation and consequently when exemption under Section 20 of the Land Ceiling Act, 1976, was not granted to the proposed Cooperative Society, the Respondent No.1 filed a separate suit for specific performance of the agreement which had been entered into with the Maruti Corporation and the payments made by Tirupati Cooperative Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout even giving the owners of the lands an opportunity of contesting the application. In fact, the application was disposed of by a cryptic order which does not even contain any reason for passing the same. The Division Bench has merely indicated that to avoid further complications and multiplicity of litigation, the order was being passed not to raise constructions on the disputed land, without even taking into consideration the several transferees who were to be adversely affected by such an order. Even the appellant herein and the Respondents No.2 to 7 were not given an opportunity of filing any affidavit to counter the statements and allegations made in the application for injunction. 20. It is quite obvious that the High Court was completely oblivious to the facts of the case and passed different orders at different times on the applications filed at regular intervals by the Respondent No.1 Corporation. 21. The reasoning provided in the interim order dated 22nd April, 2008, is, to say the least, legally untenable. Having passed an order earlier on 29th February, 2008, based on the principle of lis pendens, the Division Bench of the High Court in its second order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is the order which was passed at the first instance on 29th January, 2008, based on the principles of Section 52 of the Transfer of Property Act, 1882. The restraint order on the transferees must, therefore, be held to be bad and liable to be set aside. 24. As far as the lands which the appellant and the other joint owners have been restrained from alienating by the second order dated 22nd April, 2008, are concerned, we are of the view that in the event the order of 22nd April, 2008, is set aside, the Respondent No.1 can be compensated in terms of money and no irreparable loss and injury will be caused to it on account thereof. On the other hand, if the owners of the property remain restrained from developing the same, it is they, who will suffer severe prejudice, as they will be deprived of the benefit of the user of their land during the said period. The balance of convenience and inconvenience is against grant of such injunction. The success of the suit for specific performance filed by the Respondent No.1 depends to a large extent on tenuous proof of genuineness of the agreement sought to be enforced after 19 years, despite the finding of the Trial Court that the suit was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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