Gujarat High Court
Shah Nikhilesh Jitendra vs Satellite (Ambli) on 6 October, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/13855/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13855 of 2015
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SHAH NIKHILESH JITENDRA....Petitioner(s)
Versus
SATELLITE (AMBLI),CO OP HOUSING SOCIETY LTD., & 2....Respondent(s)
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Appearance:
PARTY-IN-PERSON, PERSONAL CAPACITY for the Petitioner(s) No. 1
MR NEERAJ ASHAR, ASSTT GOVT PLEADER for the Respondent(s) No. 3
MR AY KOGJE, ADVOCATE for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 06/10/2015
ORAL ORDER
1. The Court passed following order on 26.8.2015:-
1. Today, the petitioner, party-in-person, has sought permission to circulate this matter for urgent order on the ground that the respondent No.2 is making illegal and unauthorized construction on the common plot of the society and presently, no forum is available to pray for restraint order to prevent such illegal construction on the common plot. The Court has, therefore, permitted the petitioner to circulate the matter today.
2. Leave to amend.
3. In para 3 of the petition, the petitioner has averred that the petitioner has prepared Lavad Case before the Board of Nominees at Ahmedabad on 25.8.2015 but because of the prevailing situation, none of the members presiding officer of board of nominees were available, therefore, the case could not be instituted. It is further averred that the petitioner again tried on 26.8.2015 but it was of no avail as none of the members of board of nominees is available.
4. Hence, notice returnable on 3rd September, 2015. By way of ad-interim relief, the respondent No.1 and 2 are directed to maintain status quo as prevailing today in connection with the common plot of the society.
5. It is left open to the petitioner to take help of the professional photographer to take photographs of the present situation as regards construction allegedly being carried on the common Page 1 of 3 HC-NIC Page 1 of 3 Created On Wed Oct 07 02:33:23 IST 2015 C/SCA/13855/2015 ORDER plot, at the costs of the petitioner.
6. Direct Service Today Permitted.
2. After that, the Court passed further order on 10.9.2015. The order dated 26.8.2015 was passed as it was stated that Board of Nominee was not available and in the situation prevailing then, the Court thought it fit to grant interim protection. However, the Board of Nominee was then available but the matter has remained pending before this Court.
3. Now, since the Forum of Board of Nominee is available to the petitioner to seek appropriate remedy by filing suit or other proceedings under the Co-operative Societies Act, the Court is of the view that present proceeding may not be continued.
4. Petitioner Mr. Shah, however, requests that since this Court has already granted interim protection on account of non-availability of the Board of Nominee and continued from time to time, such protection may be continued for a period of one week so as to enable the applicant to approach the Board of Nominee and ask for appropriate interim relief.
5. Learned advocate Mr. Kogje however, submitted that there is likelihood that the Board of Nominee may decide the application for interim relief being influenced by the order made by this Court in the present petition.
6. The Court finds that such apprehension is ill-founded inasmuch as, the petitioner is yet to file suit before the Board of Nominee and ask for interim injunction and as and when interim injunction is filed in the suit to be filed by the petitioner, the Board of Nominee is to decide such application independently on merits and on any material placed by the applicant in support of the application for interim injunction. It is observed that as and when such application is made Page 2 of 3 HC-NIC Page 2 of 3 Created On Wed Oct 07 02:33:23 IST 2015 C/SCA/13855/2015 ORDER by the petitioner before the Board of Nominee, same shall be decided independently without being influenced by the order of this Court dated 26.8.2015.
7. However, since interim protection to the applicant is in force, interest of justice would be sub-served if such interim protection is allowed to continue till 12th October 2015. It is accordingly continued till 12th October 2015.
The petition stands disposed of.
Direct Service is permitted.
(C.L.SONI, J.) Omkar Page 3 of 3 HC-NIC Page 3 of 3 Created On Wed Oct 07 02:33:23 IST 2015