Gujarat High Court
Oral Order vs The on 28 December, 2011
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 343 of 1997
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RANCHHODBHAI KIKABHAI ICHHAPORIYA
Versus
JAIJALARAM CO OP HOUSING SOCIETY LTD
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CORAM : MR.JUSTICE J.M.PANCHAL
Date of Order: 29/01/97
ORAL ORDER
By means of filing this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed to quash order dated December 5, 1996 passed below Exh.5 by by the Board of Nominees in Lavad Suit No.763 of 1996 as well as the order dated January 2, 1997 passed by the Gujarat State Cooperative Tribunal in Revision Application No.259 of 1996.
The respondent no.1 is a society registered under the provisions of the Gujarat Cooperative Societies Act, 1961. The petitioner is one of the members of the respondent no.1 society. In respect of the open plot belonging to the society, a resolution was passed regarding development of the common plot of the society. Pursuant to the said resolution, the respondents no.6 and 7 are permitted to develop the common plot. The petitioner has filed Lavad case before the Board of Nominees, Surat and claimed several reliefs including the relief of staying the said resolution. During the pendency of Lavad case, the petitioner filed the application exh.5 for obtaining interim relief. Ex-parte interim relief as prayed for was granted by the Board of Nominees. The respondents appeared and contested the application Exh.5 filed by the petitioner. The petitioner also filed the rejoinder to the reply filed by the respondents. After hearing the parties, the Board of Nominees by order dated December 5, 1996 vacated the ad-interim relief granted on September 4, 1996 by which the respondents were directed to maintain status-quo regarding the common plot. However, the Board of Nominees further directed that the respondents would be entitled to put up construction only after obtaining necessary permission from Municipal Corporation of Surat. Feeling aggrieved by the said order the petitioner has filed Revision Application NO.259/96 before the Gujarat State Cooperative Tribunal. During the pendency of the Revision Application the petitioner applied to grant interim relief. The Tribunal by order dated January 2, 1997 has rejected the application for interim relief, giving rise to the present petition.
The submissiom that the plea to the effect that the respondents no.6 and 7 are permitted to develop the common plot contrary to the several provisions of the Gujarat Cooperative Societies Act, 1961 and Rules is not examined either by the Board of Nominees or the Tribunal and therefore the petition should be entertained, has no substance.
The Board of Nominees has observed that in the general meeting held on July 28, 1996 the petitioner had participated and also signed the consent letter which is produced at mark 55/36. The Board of Nominees has also examined the contention raised by the petitioner that the petitioner had not signed the letter which is produced at mark 55/36. After comparing the admitted signature of the petitioner with the disputed signature prima-facie the Board of Nominees has held that the letter mark 55/36 is signed by the petitioner. The Board of Nominees has also referred to the Building Regulations framed by Surat Municipal Corporation and the relevant regulation on which reliance is placed by the Board of Nominees reads as under :
"The said C.O.P. in residential zone only may be allowed to be constructed subject to a maximum of 25% of its area for such community purposes as religious centre, public library. education centre, electric sub-station and indoor games centre. Not exceeding 50% of the plinth area of such construction of C.O.P. may be allowed to be used for shops or stalls.
Provided however in the C.O.P. not more than ground plus one storey structures can be constructed upon and no residential use shall be made by constructions made or allowed in the C.O.P."
After referring to the documents produced at mark 55/12 and 55/13 the Board of Nominees has prima-facie concluded that no property of the society has been transferred at all. Under the circumstances, the Board of Nominees vacated ad-interim relief granted earlier and has directed the respondents not to put up construction till necessary permission to construct is granted by Municipal Corporation of Surat.
Feeling aggrieved by the above quoted order the petitioner has filed Revision Application before the Tribunal which is pending. The Tribunal has refused interim relief to the petitioner. There is no manner of doubt that for reasons best known to the petitioner, the petitioner is approbating and reprobating. Such a course is not permissible to the petitioner. As Lavad Case and Revision Application are pending before Board of Nominees and the Tribunal respectively, it is neither necessary nor it is prudent for the Court to examine the submissions made by the learned counsel for the petitioner and conclude the matter one way or the other in the present petition. However, in view of the building regulation framed by the Corporation, prima facie I do not find substance in any of the submissions advanced on behalf of the petitioner. There is no manner of doubt that subject matter of challenge in the petition is an interlocutory order. It cannot be said that Board of Nominees or for that matter, the Tribunal has acted without jurisdiction or not considered the matter in detail. In my view, the interim order passed by the Tribunal is not liable to be interfered with in the present petition which is essentially filed under Article 227 of the Constitution in view of the decisions rendered by the Supreme Court in cases of (1) Mohd. Yunus V. Mohd. Mustaquim., AIR 1984 S.C. 38 and (2) Laxmikant R. Bojwani V. P.M. Pardesshi deceased through his heirs and legal representatives, 1996 (1) G.L.H. 455.
For the foregoing reasons, I do not find any substance in the petition. The petition therefore fails and is dismissed. Notice is discharged with no order as to costs.
Having regard to the facts of the case, the Tribunal is directed to dispose of Revision Application pending before it as early as possible and without any avoidable delay. The Tribunal shall decide the matter on merits and in accordance with law without being influenced in any manner either by this order or its earlier order which is impugned in the petition.
Date:-29-1-1997.(J.M. Panchal, J.)