Gujarat High Court
Ratilal Bhikhabhai Marathe Since Decd. ... vs Khodiyarvijay Cooperative Housing ... on 28 March, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/5343/1998 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5343 of 1998
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RATILAL BHIKHABHAI MARATHE SINCE DECD. THRO' LEGAL REP. &
2....Petitioner(s)
Versus
KHODIYARVIJAY COOPERATIVE HOUSING SOCIETY LIMITED &
4....Respondent(s)
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Appearance:
MR MUKESH A PATEL, ADVOCATE for the Petitioner(s) No. 1 - 3
MR KETAN D SHAH, ADVOCATE for the Respondent(s) No. 1 - 5
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 28/03/2017
ORAL ORDER
1. The present petition is filed under Article 226 of the Constitution of India seeking to quash and set aside the judgment and order dated 06.06.1998 passed by Gujarat State Co-operative Tribunal ('the Tribunal') in Appeal No.169 of 1997 preferred by the respondents - original defendants. By the impugned judgment, the Tribunal set aside the judgment and order dated 24.06.1997 passed by learned Board of Nominee in Lawad Suit No.2826 of 1990 preferred by respondent No.1 - deceased Ratilal Bhikhabhai Marathe. Learned Board of Nominee allowed the Lawad suit and ordered respondent No.1 - Co-operative Society and other respondents - the defendants not to close or break the gate placed on the eastern side of the house of petitioner No.1 - original plaintiff and restrained the defendants from Page 1 of 7 HC-NIC Page 1 of 7 Created On Tue Aug 15 11:40:16 IST 2017 C/SCA/5343/1998 ORDER preventing the plaintiff to have access on the internal road of the society situated on eastern back side of Tenement No.16/2 of the plaintiff. The Board of Nominee also declared the Resolution dated 02.09.1990 passed in the Annual General Meeting of the society as illegal, avoid and not binding to the plaintiff. Such judgment and order of the Board of Nominee came to be over turned by the Tribunal by allowing the appeal preferred by the respondents.
2. Learned advocate Mr. Arpit Patel appearing for the petitioners submitted that all members of the society are entitled to have access and pass through the internal roads of the society. He submitted that the society has many residential units and the unit - the tenement of the petitioners is situated in such a way that it faces on front side constructed residential units and on its back portion there are other constructed units. He submitted that to have the access on the internal road of the society on rear side, the petitioners were entitled to place small iron gate in the compound wall of the tenement. He submitted that there is no prohibition in the Bye-laws of the society for placing iron gate in compound wall at the back side of the tenement nor even there is any provision made for not using the internal road of the society falling on the rear side of the tenement. He submitted that only four members - the respondents No.2 to 5 herein had some grievances and prejudice against the petitioners, they raised the objection in the meeting of the society against putting the small iron gate by the petitioners in their compound wall. He submitted that if the petitioners are otherwise entitled to use the plot whereon the tenement is constructed to have access to any internal road of the society Page 2 of 7 HC-NIC Page 2 of 7 Created On Tue Aug 15 11:40:16 IST 2017 C/SCA/5343/1998 ORDER and it was illegal on the part of the society and other members to cause any hurdle or objection against the petitioners for use of small iron gate on the rear portion of the tenement of the petitioners. He submitted that when learned Board of Nominee on appreciation of the evidence allowed the suit of the petitioners, the Tribunal was not justified in interfering with the findings recorded by the Board of Nominee. He submitted that on perverse reasoning, the Tribunal has allowed the appeal and thereby committed error of jurisdiction and, therefore, this court may quash and set aside the impugned judgment of the Tribunal in exercise of powers under Article 226 of the Constitution of India.
3. Learned advocate Mr. Ketan Shah submitted that it was not open to the plaintiff to place iron gate on the land of the society. He submitted that the petitioners are the owner of the super structure but the ownership of the plot remains with the society. He submitted that when the petitioners have access on the society's road from the front side of their tenement, they could not have placed the iron gate on the back side of the tenement without permission of the society. He submitted that the rights of all members of the society are merged in the society and, therefore, no individual member can independently carry on activity on the land of the society without approval of the society. He submitted that the society is divided in two parts and when the petitioners are already having access in the front part of the society, the petitioners were not having any right to make access by putting iron gate on the eastern side of the tenement leading to the rear internal road of the society. He submitted that even otherwise the petitioners were bound by the collective decision taken in Page 3 of 7 HC-NIC Page 3 of 7 Created On Tue Aug 15 11:40:16 IST 2017 C/SCA/5343/1998 ORDER the meeting of the society through Resolution No.10 in presence of the plaintiff and as per such decision, the plaintiff had agreed to allow the other members of the society to pass through the iron gate placed on the back side of his tenement or to close the iron gate. He submitted that since the petitioners have not acted as per the decision taken through Resolution No.10, the petitioners were not entitled to use the iron gate placed on back portion of the tenement of the petitioners. He submitted that the Board of Nominee ignored above said important aspects of the matter and reached to perverse findings and, therefore, the Tribunal rightly interfered with judgment and order made by the learned Board of Nominee. He submitted that the Tribunal in exercise of its appellate powers had committed no error in reaching to the conclusion that the petitioners had no natural right to put the additional gate and that instalation of the additional gate by the petitioners was in contravention of the Bye-laws of the society as also the Rules and the provisions of Ahmedabad Urban Development Authority (AUDA). He thus, urged not to interfere with the judgment and order made by the Tribunal in exercise of powers under Article 226 of the constitution of India.
4. The Court, having heard learned advocates for both the sides, finds that the learned Board of Nominee has recorded finding that the plaintiff is entitled to keep open the gate on eastern side back portion of Tenement No.16/2 belonging to the plaintiff and the plaintiff has right to pass through the common road of the society. Learned Board of Nominee also found that Resolution No.10 passed by the society was illegal. As regards the right of the plaintiff to use the common Page 4 of 7 HC-NIC Page 4 of 7 Created On Tue Aug 15 11:40:16 IST 2017 C/SCA/5343/1998 ORDER internal road of the society, such right is available to all the members of the society, therefore, the plaintiff was not only entitled to use the common internal road of the society from the front portion of his tenement but also from the rear portion of his tenement. The Tribunal, however, interfered with the judgment of learned Board of Nominee on three main grounds. One is that the instalation of the entry gate by the plaintiff was not authorized by the society and it being internal management of the society, it could not be subject matter of challenge under Section 96 of the Gujarat Cooperative Societies Act, 1961 ('the Act'). The second is that the plaintiff has not challenged the Resolution No.10 passed by the society before any authority and, therefore, the plaintiff cannot be allowed to enjoy by way of special privilege, and the third is that the instalation of the gate is in contravention of the provisions of the Act, Rules, Bye-laws and also in contravention of the provisions of AUDA.
5. The Court finds that the gate put up by the plaintiff was in the compound wall of the plaintiff. It could not be disputed by learned advocate for the society that if there was no compound wall on the plot of the plaintiff, the plaintiff would have been otherwise entitled to use common roads of the society. Therefore, if such right was available to the plaintiff, it could not be curtailed simply on his making compound wall. The Tribunal has observed that the plaintiff could acquire any right in his capacity as member and it should be in pursuance of the Act, the Rules and Bye-laws and there is no fundamental right of such nature available to the plaintiff. It is further observed that for maintaining proper discipline and harmony in the interest and welfare of the members of the Page 5 of 7 HC-NIC Page 5 of 7 Created On Tue Aug 15 11:40:16 IST 2017 C/SCA/5343/1998 ORDER society, any unauthorized act of the plaintiff or any member of the society could be treated as snatched away by the society. If such was observed for the society and if the act of the society was taken for discipline, harmony and the welfare of the members of the society, it could be said that it concerned the management of the society and, therefore, remedy under Section 96 of the Act was available. When specifically asked to learned advocate for the society as to under which Bye-laws of the society or under which act, the plaintiff was prohibited from either placing the gate on the back portion of his tenement or from using the common road from rear portion of his tenement, learned advocate for the society could not point out any Bye-law or any provisions of AUDA in this regard. If there was no prohibition in placing the gate on the compound wall of the plaintiff who was the member of the society, the other members - respondents No.2 to 5 could not have insisted that if the plaintiff wanted to continue with the gate on the back portion of his tenement, the plaintiff was required to allow the other members to pass through his rear gate or the plaintiff should remove the rear gate. If the plaintiff had right to use internal roads of the society and for beneficial enjoyment of his right to have access to all internal roads of the society if the plaintiff had placed a gate on back portion in his compound wall, Resolution No.10 would certainly interfere with his such right. If the resolution is allowed to be acted upon, the plaintiff will be required to allow respondents No.2 to 5 have access and to pass through his plot which will definitely affect his privacy and if the plaintiff does not allow them, the plaintiff will be required to remove the gate which will be again infringement of his right to use the rear gate to have access on the internal road of the society. Therefore, Page 6 of 7 HC-NIC Page 6 of 7 Created On Tue Aug 15 11:40:16 IST 2017 C/SCA/5343/1998 ORDER Resolution No.10 when it makes the plaintiff to succumb to the pressure of respondents No.2 to 5 would violate the right of the plaintiff to use the internal roads of the society through his rear gate. Learned Board of Nominee has thus rightly declared the same as illegal. The Court finds that when the act of the plaintiff in placing the gate on back portion of his tenement in his compound wall cannot be said to be illegal, and when learned Board of Nominee on finding that the plaintiff was entitled to place the gate on eastern side back portion of Tenement No.16/2 of the plaintiff and to use the common road of the society, the Tribunal could be said to have exceeded in its jurisdiction in setting at naught the judgment of learned Board of Nominee. The Court, therefore, finds that the present case calls for exercise of powers under Article 226 of the Constitution to quash and set aside the impugned judgment and order passed by the Tribunal.
6. In the result, the petition is allowed. The judgment and order rendered by the Tribunal dated 06.06.1998 in Appeal No.169 of 1997 is quashed and set aside and the judgment and order of learned Board of Nominee dated 27.06.1997 in Lawad Suit No.2826 of 1990 is restored. Rule made absolute to the aforesaid extent.
(C.L.SONI, J.) Gupta* Page 7 of 7 HC-NIC Page 7 of 7 Created On Tue Aug 15 11:40:16 IST 2017