Gujarat High Court
Rambhai Matambhai Bharwad vs Gopalak Co. Operative Housing Society ... on 22 June, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/10744/2022 ORDER DATED: 22/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10744 of 2022
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RAMBHAI MATAMBHAI BHARWAD
Versus
GOPALAK CO. OPERATIVE HOUSING SOCIETY LIMITED
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Appearance:
MS NIYATI K SHAH(2935) for the Petitioner(s) No. 1
MR BM MANGUKIYA(437) for the Respondent(s) No. 1
MS BELA A PRAJAPATI(1946) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 22/06/2022
ORAL ORDER
1. The present writ-application under Article 226 of the Constitution of India is filed seeking the following reliefs :-
"(A) This Hon'ble Court may kindly be pleased to issue a writ of mandamus, or any other appropriate writ, order and/or directions in the nature of mandamus quashing and setting aside the order dated 20.04.2022 passed by the Gujarat State Co.operative Tribunal in Revision Application No.31 of 2018 as the said order is absolutely illegal, unlawful, contrary to the facts and evidence on record, against the settled principles of law, equity and justice and the said order was passed in connection with the contempt application filed by the respondent society only for the purpose of creating an evidence in its favour which is exfacie illegal and not tenable at law;Page 1 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022
C/SCA/10744/2022 ORDER DATED: 22/06/2022 (B) During the admission, hearing and final disposal of present petition, this Hon'ble Court may be pleased to grant stay against the operation, execution and implementation of the order dated 20.04.2022 passed by the Gujarat State Co.operative Tribunal in Revision Application No. 31 of 2018, in the interest of justice;
(C) Hon'ble Court may be pleased to pass any other and further orders of grant of relief as may be deemed fit in the interest of justice;"
2. The brief facts giving rise to the present writ-application are stated thus :-
2.1 The respondent society is a co.operative housing society registered under the Gujarat Co.operative Societies Act, having its registration No.B-2587 dated 29.10.1959. The writ-applicant herein appears to be the owner of Plot No.3 situated on the land bearing Survey No.11/1 and 11/2, T.P. Scheme No.15, Final Plot No. 13/2 and 13/3.
2.2 Further the society is divided into two parts, out of which one part consists of 16 plots situated on the land bearing Survey No. 477/1, T.P. Scheme No. 28 and Final Plot No. 409 and another part consists of 14 plots situated on the land bearing Survey No.11/1 and 11/2, T.P. Scheme No. 15, Final Plot No. 13/2 and 13/2. It is further stated that the distance between Final Plot No. 409 and Final Plot Nos.13/2 Page 2 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 and 13/3 is about 01 km. It is further stated that the writ-
applicant is the owner of Plot No.2 admeasuring about 451 sq.yrds. situated on the land bearing Final Plot No.13/3.
2.3 It is further stated that there is 20 feet internal approach road of the Society leading to Plot Nos.2, 3, 4, 5, 6 and 7. Plot No.2 is owned by the writ-applicant. There is no construction on Plot Nos.3, 4, 5 and 6 and the said plots are vacant. There is a bungalow constructed on Plot No.7, however, the said premises is also lying vacant for the last several years.
2.4 Further the writ-applicant filed Civil Suit No.1645 of 2009 before the City Civil Court, Ahmedabad against the Ahmedabad Municipal Corporation as well as the Chairman of the society and others for the relief that the society being a residential society, no permission for commercial construction like shops, offices, basements, etc. be granted to the society. It appears that the aforesaid several proceedings are pending before the City Civil Court, Ahmedabad.
2.5 It appears that the society filed Lavad Case No.1073 of 2007 in the name of the society against the writ-applicant before the Board of Nominees at Ahmedabad seeking permanent injunction restraining the writ-applicant, his servants or agents from parking his vehicles on 20 feet internal Page 3 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 road of the society. It appears that the Board of Nominee, Ahmedabad by order dated 29.10.2007 below Ex.6 granted ad- interim injunction in favour of the respondent society.
2.6 It appears that the respondent society filed contempt application below Ex.31 on 22.10.2008 in the Lavad Case No. 1073 of 2007 against the writ-applicant before the Board of Nominees Court, Ahmedabad. It is the case of the writ- applicant that as such the writ-applicant has not committed any contempt and also contended that the contempt application was not maintainable in the form in which it was presented in the Lavad Case No.1073 of 2007.
2.7 The application preferred by the writ-applicant below Ex.40, inter alia, raising the aforesaid question of law with regard to the jurisdiction of the Board of Nominees Court to entertain the contempt application against the writ-applicant came to be rejected.
2.8 Being aggrieved by the said order dated 15.6.2010 the writ-applicant approached the Gujarat State Cooperative Tribunal. The Tribunal rejected the said Revision Application No.149 of 2020 by order dated 20.3.2012.
2.9 The writ-applicant approached this Court by filing the Special Civil Application No.13393 of 2012 which came to be Page 4 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 disposed of by order dated 9.10.2012 with certain observations.
2.10 In the aforesaid contempt proceedings as referred above the respondent society herein preferred an application below Ex.66 and requested to pass order to appoint Court Commissioner to prepare the map and panchnama of the present situation of the 20 feet road of the society between bungalow no.2 (old no.7) and bungalow no.3 (old no.6) of the society by the Court and to submit the panchnama and map prepared by the Court Commissioner before the Court.
2.11 The Board of Nominee by order dated 5.2.2018 rejected the said application below Ex.66 filed by the respondent society.
2.12 Being aggrieved by the order passed by the Board of Nominee below Ex.66 the respondent society challenged the said order before the Tribunal. The Tribunal by impugned order dated 24.4.2022 quashed the order passed by the Board of Nominee below Ex.66 and permitted that panchnama be drawn as prayed for by the respondent below Ex.66.
3. Being aggrieved by the impugned order dated 24.4.2022 passed by the Gujarat State Cooperative Tribunal, Ahmedabad below Ex.66 the writ-applicant has approached this Court by filing present writ-application under Article 226 of the Constitution of India.
Page 5 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022C/SCA/10744/2022 ORDER DATED: 22/06/2022
4. Ms. Niyati Shah, the learned advocate appearing for the writ-applicant submitted that the application below Ex.66 filed by the respondent herein is with an intention to harass and overreach the process of law. Ms. Shah, the learned advocate submitted that the order passed by the Board of Nominee is just and proper in view of the fact that no contempt is committed by the writ-applicant and the aforesaid application is filed in the contempt petition.
4.1 Ms. Shah, the learned advocate further submitted that the application filed by the respondent society for appointment of Court Commissioner to draw panchnama and thereby to establish that the writ-applicant has committed breach of interim order passed by the Board of Nominee is not tenable in eye of law.
4.2 Ms. Shah, the learned advocate further submitted that the writ-applicant has been parking his vehicles in his own compound and even though the writ-applicant has not committed any act which can be considered as contempt, initiation of such frivolous application for appointment of Court Commissioner to draw the panchnama is nothing but an abuse of process of law.
4.3 Ms. Shah, the learned advocate placed reliance on the order dated 13.11.2009 passed in the Special Civil Application Page 6 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 No.6349 of 2019.
5. Mr. B. M. Mangukiya, the learned advocate appearing for the respondent submitted that the order passed by the Tribunal dated 24.10.2022 is just and proper.
5.1. Mr. Mangukiya, the learned advocate submitted that the Tribunal having considered the submissions advanced by the advocate appearing for the respondent and the photographs which were produced by the Tribunal which show that the writ-applicant is parking car on the internal road of the society. He submitted that the writ-applicant has also demolished the wall and half part of the car is parked in the plot and other part is parked on the road. Consequently, the same results in contempt of the order dated 29.10.2007 passed by the Board of Nominee, Ahmedabad.
5.2 Mr. Mangukiya, the learned advocate further submitted that the writ-applicant is in habit of flouting the orders passed by the Board of Nominee and consequently the application below Ex.66 as prayed for by the respondent was rightly considered and allowed by the Tribunal.
6. Having heard the learned advocates appearing for the respective parties, it appears that the Lavad Case No. 1073 of 2007 came to be filed by the respondent society before the Board of Nominee, Ahmedabad seeking the following reliefs :-
Page 7 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022C/SCA/10744/2022 ORDER DATED: 22/06/2022 "(a) to grant a Permanent Injunction that the Defendant or his sons, associates, agents etc., directly or through others, do not park their vehicles outside their Bungalow No.2 and on the 20 feet road for the easement.
(b) to grant such other relief as may be deemed necessary on the facts and in the circumstances of the case.
(c) Kindly grant us the cost of suit from the defendant."
The Board of Nominee by order dated 29.10.2007 passed below Ex.6 granted interim relief. The said order reads thus :-
"The plaintiff mentioned above has filed a suit in this Court and submitted the application of Mark-6 therewith. On the said application, this Court passed the following order.
With respect to Para-9(a) of the application of Mark-6 submitted by the plaintiff, an injunction is granted till 06/12/2007.
Further, you - the defendants are informed by way of this notice to show cause as to why the above mentioned order should not be confirmed and to appear without fail in the Court No.2 at the above mentioned address at 11:30 hours in the morning on 06/11/2007 to submit the reply, otherwise, appropriate order will be passed."
7. Further the respondent filed contempt application before the Board of Nominee alleging contempt of the order passed Page 8 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 by the Board of Nominee by the writ-applicant. The writ- applicant appeared before the Board of Nominee and contended that the writ-applicant has as such not committed contempt of the order passed below Ex.6 by the Board of Nominee and further contended that the Board of Nominee had no jurisdiction to decide the contempt application. The Board of Nominee rejected the application preferred by the writ- applicant below Ex.44 and held that the Board of Nominee has jurisdiction to decide the aforesaid issue of contempt. Being aggrieved by the aforesaid order passed by the Board of Nominee, the writ-applicant challenged the said order before the Tribunal. The Tribunal dismissed the said application preferred by the writ-applicant. Being aggrieved by the aforesaid order passed by the Tribunal, the writ-applicant approached this Court by filing the Special Civil Application No.13393 of 2012. The Special Civil Application came to be disposed of by order dated 9.10.2012 which reads thus :-
"3.0 A contention has been raised by the learned advocate for the petitioner that Registrar Board of Nominee has no jurisdiction to proceed with a contempt proceeding and therefore, petitioner requested that the issue regarding jurisdiction be raised as preliminary issue. In my view, the Board of Nominee will not cross the jurisdiction of Board of Nominee and will look into provisions of Order 39 Rule 2 A of the Code of Civil Procedure and Contempt of Courts Act and will act in according with law while deciding the issue in Page 9 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 question. It will be open to the petitioner to raise all contentions before the Board of Nominee and the same will be answered by the Board of Nominee. With the above, observation, petition stands disposed of accordingly."
8. Pending the aforesaid contempt proceeding, the Board of Nominee by order dated 5.2.2018 rejected the application preferred by the respondent society below Ex.66 requesting for panchnama be drawn and appointment of Court Commissioner which reads thus;
"Upon reading the aforesaid discussion and the contempt dispute of the plaintiff and the order under the injunction application, temporary injunction order was passed prohibiting parking on the 20 feet length of the road. Despite that, as stated by the plaintiff, the defendant is parking in the 20 feet length of the road. Considering the application at Exhibit-66 requesting for the panchnama and relief sought at para 4 and para 5(A) of the application at Exh-66, the fact that the plaintiff wants to prove is in connection with the application for breach of injunction. Cross examination of the plaintiff (Illegible) commenced. The cross examination is pending. If the plaintiff wants to collect evidence through the panchnama for the clarification on the 20 feet road, then permission can not be granted for such panchnama. Because, it is not the statement of the defendant that, there is no 20 feet road and Page 10 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 there is no dispute of the 20 feet road at all. But, primarily the dispute is that, the defendant is parking his vehicles on this 20 feet road against the injunction order. Therefore, by granting the relief sought vide Exhibit-66, only the panchnama regarding present condition of the 20 feet road could be granted. For that reason also, as the application of the plaintiff is not admissible, below final order is passed."
9. The Board of Nominee rejected the application below Ex.66 on the ground that the dispute is not with regard to the road and, therefore, the learned Board of Nominee was not inclined to grant permission to draw panchnama. The said order came to be challenged by the respondent society before the Tribunal wherein the Tribunal passed the order dated 20.4.2022 in the Revision Application No.31 of 2018 which reads thus :-
"(7) Considering the revision application, documentary evidences, reply of the respondent, the rejoinder affidavit of the applicant and the arguments of the parties, the issue of the contempt application is such that, though the Ld. Nominee passed an ex parte interim injunction order in the arbitration case, the respondent makes parking of vehicles on the 20 feet road of the society by violating it. In this manner, the main issue is regarding the parking of vehicles on the road of the society. The said fact can be proved by drawing the panchnama after examining the condition of the place as to how the parking of vehicles has been done and whether the interim injunction order passed ex parte by the Ld. Nominee has been violated or not. It cannot be proved only Page 11 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 by asking oral questions in the cross-examination. Further, the applicant has also produced photographs as the evidences in this regard and the respondent has given vague reply during the cross-examination and thereafter, the said application of Mark - 66 has been submitted. Considering all these facts, when the applicant wants to get the panchnama of the condition of the place drawn at his own expense, the respondent should not raise any objection. Because it is to be decided by the Ld. Nominee on merits as to how much weightage should be given to the panchnama of the condition of the place as an evidence. Therefore, it appears just and reasonable to interfere in the impugned order of the Ld. Nominee at this stage. Thus, the following order is passed.
ORDER The Revision Application No. 31/2018 is allowed. The order dated 05/02/2018 with regard to the application at Mark-66 is set aside and the Application for Panchnama at Mark-66 is allowed.
No order as to cost.
A copy of this order be sent to the parties and the Member, Board of Nominees, Ahmedabad.
Pronounced today, 20/04/2022."
10. Having considered the submissions advanced by learned advocates appearing for both the parties, the subject matter of challenge is the application filed by the respondent society below Ex.66 seeking permission to appoint Court Commissioner to prepare the map and panchnama of the present situation of the 20 feet road of the society between bungalow no.2 (old Page 12 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 no.7) and bungalow no.3 (old no.6) of the society by the Court Commissioner and to submit the panchnama and map prepared by the Court Commissioner before the Court.
11. In my view, the Tribunal has otherwise not expressed any opinion on merit. The Tribunal has stated that the panchnama to be drawn at the cost of the respondent society and that it is kept open for the Board of Nominee whether to accept the said panchnama as piece of evidence in accordance with law.
12. At this stage, it is apposite to refer to the ratio as laid down by the Hon'ble Supreme Court in the case of Shalini Shyam Shetty and Ors. vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329, wherein paragraphs 79 to 82 reads thus :-
"(79.) We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority.
(80.) We may also observe that in some High Courts there is tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of Page 13 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 the amendment, scope of Section 115 of CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed that has not resulted in expanding High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.
(81.) As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice.
(82.) This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly."
13. In view of the aforesaid ratio as laid down by the Hon'ble Supreme Court, this Court under Article 226 of the Constitution of India would not sit in appeal for the order dated 20.4.2022 passed by the Tribunal in the Revision Application No.31 of 2018. Further the Tribunal by the order dated 20.4.2022 has kept it open for the Board of Nominee whether to accept the panchnama that would be drawn at the Page 14 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022 C/SCA/10744/2022 ORDER DATED: 22/06/2022 instance and expense of the respondent society. It is open for the Board of Nominee to take a decision on the said panchnama in accordance with law.
14. In view of above, no interference under Article 226 of the Constitution of India is called for in the order dated 24.10.2022 passed by the Gujarat State Revenue Tribunal in the Revision Application No.31 of 2018. The present writ- application stands disposed of.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 15 of 15 Downloaded on : Sat Dec 24 19:23:11 IST 2022