Gujarat High Court
Satyanarayan B. Sharma vs A.L. Dineu on 25 July, 2003
Equivalent citations: (2004)2GLR1055
Author: K.A. Puj
Bench: K.A. Puj
JUDGMENT K.A. Puj, J.
1. Special Civil Application No. 4653 of 2003 is filed under Article 227 of the Constitution of India challenging the order dtd.01.04.2003 passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Revision Application No. 94/2003 reversing the order passed by the Board of Nominees Court, Ahmedabad below an application Exh. 6 in Laved Case No. 1979/2002 on 20.08.2002.
2. Special Civil Application No. 5964/2003 is filed under Article 226 of the Constitution of India seeking prayer for quashing and setting aside the action of the respondent Bharat Sanchar Nigam Limited (B.S.N.L.) and respondent No.3 of attempting to install a telephone exchange in the residential society contrary to law based on the order alleged to have been obtained by misrepresentation and bogus documents. The petitioner has also prayed for the direction to the District Registrar (Rural) of the Cooperative Societies to produce the copies of the Audit Reports, remarks, records pertaining to the office bearers of the society, which were available on his record and to state as to what action was taken or proposed to be taken against the disqualified defaulter office bearers for usurping the offices of the Society.
3. As far as Special Civil Application No. 4653/2003 is concerned, the petitioners who are the original plaintiffs have filed Laved Suit No. 1979/2002 before the Board of Nominees Court, Ahmedabad against the respondent No.1 and the respondent No.2 in the present petition i.e. Shri A.K. Dubey and Vedmata Cooperative Housing Society Ltd. respectively. Though B.S.N.L. has not been joined as defendant in the Laved Suit, relief was prayed for against B.S.N.L. The petitioners have prayed for in the said suit that the present respondent No.1 i.e. Mr. A.K. Dubey has given his Tenament on lease to B.S.N.L. for installing telephone exchange and thereby the said Tenament was given for non-residential purposes. The present petitioners being the owners of Tenament No.413, 414 and 415 have therefore prayed stay against making use of the Tenament of the respondent No.1 for any commercial purpose. The Board of Nominees has granted stay vide its order dt. 20.08.2002 and also passed an order to seal the said premises.
4. Being aggrieved by the said order of the Board of Nominees Court, the present respondent No.1 has filed Revision Application No. 94/2003 before the Gujarat State Cooperative Tribunal, Ahmedabad and vide its order dt. 01.04.2003, the Tribunal has allowed the said Revision Application and cancelled the order passed by the Board of Nominees Court, Ahmedabad below an application Exh.6 in Arbitration Suit No. 1979/2002 and also ordered to remove the seal on the premises given to B.S.N.L. for installing telephone exchange.
5. Being aggrieved by the said order of the Tribunal, the present petitioners have filed this petition under Article 227 of the Constitution of India.
6. As far as Special Civil Application No. 5964/2003 is concerned, the petitioner is the owner of one of the tenements of Vedmata Cooperative Housing Society Ltd. and he has also raised more or less the same dispute as was raised in S.C.A. No. 4653/2003. He has ventilated his grievance in the present petition against the respondents stating that the respondents have created nuisance, noise and great deal of discomfort in the residential area by attempting to open the telephone exchange based on a lease deed between B.S.N.L. and the respondent No.3 in the present petition with the help of bogus and fabricated documents created with the help of respondent No.4 Society.
7. Since the common issue is involved in both the petitions, the same were heard together and are being disposed of by this common judgment.
8. It is the case of the petitioners in both the petitions that Vedmata Cooperative Housing Society Limited is a housing society and the tenements are used for residential purposes. It is further stated that one Mr. A.K. Dubey i.e. respondent No.1 in the first petition had attempted to give away his residential premises to B.S.N.L. for establishing the telephone exchange, which is a full-fledged commercial activity leading to a tremendous amount of nuisance and discomfort to all the residents of the Society, and as such, the Society being residential housing society, the said Mr. A.K. Dubey had no legal rights to change the use of the Tenament unlawfully. It is further stated that the Board of Nominees Court had rightly protected the petitioners' legal interest by way of granting interim relief in their favour. However, the Gujarat State Cooperative Tribunal has allowed the Revision Application no. 94/2003 and vacated the said interim relief. It is stated that a false No Objection Certificate was produced before the Tribunal as the person who has signed the said certificate has no authority to sign such certificate and on the basis of the said certificate, the Tribunal has observed in its order that the Society has given N.O.C. on its letter pad on 30.01.2002. It is further stated that the Tribunal has committed great error by reappreciating the evidence which is not permissible while exercising its revisional jurisdiction. It is further submitted that by giving the residential premises for commercial use to B.S.N.L. on lease, the respondent No.1 has committed the breach of AUDA permission and the Tribunal has not taken into consideration the said aspect of the matter. It is further submitted that against an ad-interim order passed by the Board of Nominees, the respondent No.1 and the Society both have filed Revision Application No. 280/2002 which was unconditionally withdrawn. It is further submitted that when the society itself not having defended its stand and N.O.C., the Tribunal should not have believed the say of the respondent No.1 alone because the documents are still to be proved during the course of the trial.
9. Mr. R.D. Raval, learned advocate appearing for the petitioners in both the petitions has strongly urged that the order passed by the Tribunal is contrary to the facts and evidence on record and also contrary to the settled principles of law, equity and justice. He has further submitted that the Society was not properly represented as no legally constituted Managing Committee was in force. He has further submitted that despite several requests having been made from time to time, the elections were not held and the administration was not given to the members of the Society. It is further submitted that Mr. A.K. Dubey has not obtained any permission of the Society and the permission of the Registrar has also not been obtained. He has further submitted that said Mr. Dubey has obtained the order from the Tribunal on the basis of false and fabricated documents dt. 30.01.2002. It is further submitted that the petitioners in S.C.A. No. 5964/2003 have made inquiry with the office of District Registrar (Rural), Ahmedabad about the records of the Society and found that the so-called office bearers of the Society had been disqualified to continue as office bearers which would be evident from the copy of Audit Report of 1997 - 1998. He has further submitted that there were no Audit Reports for the year 1998 - 99 to 2002 - 03 and it therefore appears that the so-called committee of the Society has not maintained the record of the Society properly and in accordance with the provisions of the Act, Rules as well as Byelaws. He has, therefore, submitted that when it is not permissible under the law to give residential premises for non residential use to any person and when a false and fabricated document is produced before the Tribunal and order is obtained in favour of the respondent No.1 and there was no proper record maintained by the Society, the exercise of power by the Tribunal and allowing the Revision Application and vacating the interim relief is not proper and justified and hence, the order requires to be quashed and set aside.
10. Mr. Raval has further submitted that though the order of the Tribunal is challenged in the present petitions, the petitioners are entitled to raise the issue regarding proper administration and management of the Society and also entitled to call for the interference of the District Registrar who is having the jurisdiction over the Cooperative Societies in his area to see to it that the societies administration and management should be properly managed and since it is not done, necessary relief was also sought for in S.C.A. No. 5964/2003. In support of his submission, he has relied on the decision of Hon'ble Supreme Court in the case of UNITED INDIA INSURANCE CO. LTD. V/s. RAJENDRA SINGH AND OTHERS (2000 A.I.R. SCW 835) wherein it is held that For a High Court in India to say that it has no power even to consider the contention that the awards secured are the by-products of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and people's faith in the efficacy of the High Courts would corrode. It is further held in this judgment by the Hon'ble Supreme Court that it is the settled proposition of law that the judgment or decree obtained by playing fraud on the Court is a nullity and non est. in the eyes of law. Such a judgment/decree by the first Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be challenged in any Court even in collateral proceedings.
11. On the basis of the above referred judgment, Mr. Raval has submitted that this being the collateral proceedings, the petitioners have every right to challenge the authority of the Society and failure on the part of the District Registrar to take any action against the so-called office bearers of the Society and since no action has so far been taken, the petitioners have prayed for the direction from this Court to the respondents more particularly the Society as well as the District Registrar to properly manage the affairs and hand over the administration and management of the Society to the real members.
12. Mr. Shirish Joshi, learned advocate appearing for the respondent No.1 in S.C.A. No. 4653/2003 and for respondent No.3 in S.C.A. No. 5964/2003 has filed affidavit-in-reply of the said respondent. He has submitted that both the petitions are not maintainable on the ground that the petitioners have suppressed the material facts. He has further submitted that only with a view to haress the respondents, false litigations were initiated against the respondent No.1. He has further submitted that in the Society, many commercial activities were going on since long, to which at no point of time, any objections have been raised. He has further submitted that there is a school in the Society and there are around 1200 students studying in the school. There are also Hospital, Bank and other commercial establishment located in the Society itself. The petitioners have suppressed this fact not only before this Court but also before the Board of Nominees as well as the Tribunal. He has further submitted that installation of a telephone exchange by B.S.N.L. would not cause any harm or nuisance or discomfort to the residents of the Society, in view of the fact that there will be an ultra-modern Telephone Exchange of around 2000 telephone lines which is known as "Pocket Telephone Exchange" for which only two rooms are required. He has further submitted that the said Telephone Exchange is an Electronic Computerized Exchange, and it is totally 'hum free' and, therefore, there will be no noise pollution or any vibration, etc. and, therefore, there is no question of any discomfort or harm or nuisance to the residents of the respondent No.4 Society. He has further submitted that as per the building rules and zonal rules of residential area, such installation of Telephone Exchange in the residential premises is permissible and, therefore, the contract entered into between the respondent No.1 and the B.S.N.L. is perfectly legal, valid and proper and, therefore, the grievance raised in the present petition would not survive. He has further submitted that No Objection Certificate was granted by the Society and hence, it is not open for a few members of the Society to pass any resolution opposing the installation of the Telephone Exchange in the premises of the respondent No.1.
13. Mr. Ravindra Shah, learned advocate appearing for the respondent No.4 i.e. Vedmata Cooperative Housing Society Ltd. in S.C.A. No. 5964/2003 and for respondent No.2 in S.C.A. No. 4653/2003 has submitted that both the petitions deserve to be dismissed in limine with exemplary costs as the petitioners have suppressed vital and material facts from the knowledge of this Court and have made incorrect and misleading averments in the memo of petitions. He has further submitted that the petitioners have raised certain facts which are seriously disputed by the respondents in the petitions and while exercising powers under Article 226/227 of the Constitution of India, the Court should not go into the disputed question of facts. He has further submitted that the respondent Society is a cooperative housing society and is a body corporate as per the Provisions of Section 37 of the Gujarat Cooperative Societies Act. The Society is holding Annual General Meeting every year as per Section 77 of the Act and the Managing Committee of the Society is elected every year in the Annual General Meeting by the members of the Society. He has further submitted that one Mr. Dipak Arjanbhai Patel is the Elected Secretary of the Society and a member of the Managing Committee. In the past also, for the year 2001 - 02 and 2002 - 03, he was functioning as a Secretary of the Society and one Mr. Pankajbhai Amratbhai Patel was elected as a member of the Managing Committee of the Society in the last term of the Managing Committee and was the Chairman of the Society in that term. He has further submitted that the Books of Accounts of the Society are regularly audited by the Auditor and the Audit of the last year of the Society has also been over.
14. Mr. Shah has further submitted that the Society is situated on the Town Planning Scheme Main Road known as O.N.G.C. Road, Chandkheda. On the said road, there are several number of cooperative housing societies which are abutting the Town Planning Scheme Road for the necessity of the members of the society and the public in the vicinity, several shops etc. have been constructed so as to fulfill the commercial need of the public residing nearby. He has further submitted that all the units of such societies are abutting to Town Planning Scheme Road and have put to commercial use since years together and the same activity is uninterruptedly carried on for more than a decade. He has further submitted that the respondent Society is consisting of several units and since more than a decade, several members have put their units to non-residential use and the same is within the knowledge of all the members of the society, much less the present petitioners. Neither the petitioners nor other members have in the past, at any point of time, taken any objections to the non-residential use by such members and on the contrary, have taken advantage and benefit of the commercial activities carried on in the society. The society has never raised objection against the non-residential use by its members and it is in this view of the matter, Mr. Pankajbhai Amratbhai Patel had issued No Objection Certificate on behalf of the society to the respondent No.1 which is produced by the petitioners in the present petition.
15. Mr. Shah has further given the long list of commercial establishments in the Society and he has submitted that in Tenament No. 316, there are Mukesh Medical Stores, Khanti Provision Store, Nupur Selection and Nupur Beauty Parlour. In Tenament No. 388 to 393, a primary secondary and higher secondary school named Saraswati School is going on since several years in which more than thousand students are studying. In Tenament No. 432, a tuition class as well as Dinglighar is running. In Tenament No. 434, there is a hardware store and a store selling building materials. In Tenament No. 434, a Tailor's shop is situated. In Tenament No. 436, there is a flour mill which is operating since number of years. In Tenament No.468, building material is sold as well as marble items are also sold. Tenament No. 500 comprises of a 24 hour Nursing Home of Dr. Atul Gandhi who is a Physician and Surgeon and there is a Medical Store situated therein. Tenament No. 511 comprises of Jay Ambe Dairy, Priyanka Beauty Parlour and an electric store. Tenament No. 515 consists of Cement wholesale dealer and STD - PCO booth. In Tenament No. 516, there is Gurudev Motor Garage, Bhavani Provision Stores, Rasbihar Cold-drinks Store and a STD-PCO Booth. He has therefore submitted that all these activities are going on for the last many years and it is within the knowledge of the petitioners. But the same has been malafide and deliberately suppressed not only in the memo of the petition but also in the Laved Suit which is filed by the petitioners before the Board of Nominees.
16. Mr. Shah has further submitted that the conduct of the petitioners in S.C.A. No. 4653/2003 is also not bonafide, right from the beginning. In Laved Suit No. 1979/2002, the petitioners obtained experts prohibitory order against the present respondents on 25.07.2002 and the notice was made returnable on 08.08.2002. The petitioners did not serve the process of the laved suit upon the respondent society and only served the respondent No.1 i.e. Mr. A.K. Dubey and a panchnama of the property in question was made on 25.07.2002. Thereafter, behind the back of the present respondents and without serving any copy upon them, application for sealing the premises was moved. It is rather shocking that the respondent No.1 was served upon the process of the laved suit on 25.07.2002, the application for sealing the property in question filed by the petitioners on 26.07.2002 was not served on him and an experts drastic order of sealing the property in question was obtained by the petitioners from the Board of Nominees. The order of injunction as well as the order of sealing the property in question passed by the Board of Nominees was, therefore, rightly interfered by the Tribunal while exercising its revisional jurisdiction under Section 150(9) of the Act and it does not warrant any interference by this Court while exercising its extra ordinary writ jurisdiction under Article 227 of the Constitution of India.
Mr. Bipin I Mehta, learned advocate appearing for the respondents No.1 and 2 has submitted that the B.S.N.L. will be abide by the decision of this Court.
17. After having heard the learned advocates appearing for the respective parties and after having considered the facts stated and averments made in both the petitions as well as documents attached therewith and after having considered the affidavit-in-reply filed by the respective respondents as well as the affidavit-in-rejoinder, I am of the view that the Tribunal has passed just and proper order looking to the facts and circumstance of the case, while exercising its revisional jurisdiction under Section 150(9) of the Act and there is no reason for this Court to interfere in the said order while exercising the jurisdiction of this court under Article 227 of the Constitution of India. The Tribunal has given four reasons while interfering in the order passed by the Board of Nominees. The Tribunal has observed that though the relief was prayed for against B.S.N.L., the B.S.N.L. was not made a party in the said arbitration suit. The Tribunal has further taken note of the fact that though the petitioners have raised the issue regarding non-residential use of the premises of the respondent No.1 in the Society, there are about other 18 shops in the said Society and the said fact was not disclosed by the petitioners. The Tribunal has also taken note of the fact that the petitioners have neither produced the bye-laws of the Society either before the Board of Nominees or before the Tribunal. Whether there is any restriction or prohibition on the use of the premises for non-residential purposes, it cannot be said without looking at the bye-laws. Since the Board of Nominees Court has granted interim relief and sealed the premises without having considered the bye-laws, the said order was required to be interfered. The Tribunal has further considered that No Objection Certificate was issued by the Society on its letter pad on 30.01.2002. When 18 other shops were there in the Society, the said No Objection Letter was issued by the Society and there was no reason to disbelieve the said letter. With regard to nuisance or annoyance, the Tribunal has observed that the Telephone Exchange which is to be established by the B.S.N.L. is modern electronic instrument and there is no question of any noise or pollution. After taking into consideration all these facts, the Tribunal has allowed the Revision Application of the respondent No.1 and vacated the interim relief and also passed an order for removal of the seal. Such an order cannot be said to be unjust, improper or illegal which requires any interference by this Court. Even otherwise, the petitioners have filed this petition against an interlocutory order and Laved Suit is still pending before the Board of Nominees Court. On this ground also, no interference is called for.
18. As far as second petition, namely, S.C.A. No. 5964/2003 is concerned, it appears that it is nothing but a sponsored petition and it has been filed at the behest of the petitioners of S.C.A. No. 4653/2003. The petitioners have mixed up several issues in the said petition though the main issue in the petition is with regard to the challenge against the non-residential use of the tenament of Mr. Dubey given to B.S.N.L. for establishment of Telephone Exchange. The petitioners have also raised the issue regarding management and administration of the Society and unauthorized and illegal retention of powers by the office bearers who are defaulters and not qualified to hold office as well as the powers of the District Registrar. As far as non-residential use of the premises is concerned, it is already considered by the Tribunal and after having considered the finding arrived at by the Tribunal as well as the detailed Affidavit-in-reply filed by the Society, more particularly, non-residential use of the several other tenaments for the last number of years, this Court does not think it fit and proper to interfere in the order passed by the Tribunal. Even otherwise, due to the globalizations and fast development and growth of trade and commerce and expansion of city life, it is difficult to draw a line between the residential and non-residential premises in the town, cities and metropolitan areas where the space is the biggest problem. People are trying to make optimum use of the space available and for that purpose, even in residential areas, commercial establishments have been coming up. Such commercial establishments in residential localities have become the need of the hour. Considering the distance, shortage of time, pre-occupied life style and crave for availability of all services at one's doors, in many housing societies, provisions are made to that effect and such commercial use is not only made permissible but widely acknowledged and appreciated. When Schools, Colleges, Shops, Commercial establishments, Banks, Hospitals, Nursing Homes, Religious places etc. are established for the purpose of satisfying the needs and requirements of the people staying in residential localities, any one who raises any objection on the ground that non-residential use is not permissible in housing societies, is in my view putting the clock back and such attempt cannot be entertained looking to the present scenario. Only those persons who are having some vested interest or grudge against any particular person, unit or establishment, sometimes raises such disputes. Majority of members may not find any thing objectionable in it. This Court is, therefore, not inclined to interfere in the order passed by the Tribunal.
19. As far as the dispute raised by the petitioners about the administration and the management of the Society is concerned, it appears that the petitioners have raised the said issue straightway in the present petition without approaching to the District Registrar. When any mandatory relief is sought for from the Court, it is necessary condition precedent to approach the authorities first against whom such mandatory directions are sought for and if such authority fails to take any action, the Court may interfere in a given case. In the present petition, there is no such evidence produced on record showing that the petitioners have ventilated their grievance before the authorities prior to approaching this Court. Even otherwise, looking to the Affidavit-in-Reply filed by the respondent Society, it is too obvious to accept the contentions urged and averments made in the petitions with regard to any mal-administration or mismanagement of the respondent Society. In absence of any material or evidence on record, this Court is not inclined to express any opinion. It is however open for the petitioners to make proper representation to the District Registrar with regard to the grievance which is ventilated in the present petition and it is expected that if such a grievance is raised, the District Registrar would look into the matter and take necessary action looking to the facts and circumstances of the case.
20. As far as the reliance placed by Mr. Ravel on the decision of the Humble Supreme Court in the case of UNITED INDIA INSURANCE CO. LTD. V/s. RAJENDRA SINGH AND OTHERS (SUPRA), this Court is of the view that the same is not applicable to the facts of the present case as in this case, there is no question of committing any fraud by any one. It is all assumption on the part of the petitioners that the fraud has been committed by the office bearers of the respondent Society by issuing a bogus N.O.C. However, the affidavit-in-reply filed by the respondent Society makes it clear that the person who has issued the Certificate was the Chairman of the respondent Society and the said fact was emphatically stated in the said affidavit-in-reply. When the facts stated and the averments made by the petitioners in the petitions were denied by the respondent Society on oath, and, on the contrary, the fact regarding issuance of Certificate was supported, it cannot be said that the said Certificate was false, fabricated or obtained by committing fraud. In this view of the matter, the said decision would not render any assistance to the petitioners so far as the present petitions are concerned.
21. With the above finding as well as observations, both these petitions are accordingly dismissed. Notice in each of the petition is discharged with no order as to costs.