Gujarat High Court
Devendra vs Surat on 3 September, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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SCA/768/2005 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 768 of 2005
=========================================================
DEVENDRA
C MAHADIK & 19 - Petitioner(s)
Versus
SURAT
MUNICIPAL CORPORATION & 7 - Respondent(s)
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Appearance :
MR
SHIRISH JOSHI for Petitioner(s) : 1 - 2.
MR
PRASHANT G DESAI for Respondent(s) : 1,
MR PRAKASH K JANI for
Respondent(s) : 2,
MR TUSHAR MEHTA for Respondent(s) : 3,
MS
TRUSHA PATE, AGP for Respondent(s) : 4 - 5.
MR BS PATEL for
Respondent(s) : 6 - 8.
MRS RANJAN B PATEL for Respondent(s) : 6 -
8.
NOTICE SERVED BY DS for Respondent(s) :
7,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 03/03/2008
ORAL
ORDER
The petitioners have preferred the petition for various reliefs inter alia to quash and set aside the approval of the plan by the Surat Municipal Corporation and to direct the Registrar, Cooperative Societies and the District Registrar to appoint custodian and to take administration and various reliefs are prayed by the petitioners.
Heard Mr.Joshi for the petitioners, Mr. Panchal for Mr. Jani for respondent No.2, Mr.Tushar Mehta for respondent No.3, Ms. Patel, learned AGP for respondent No.4, Mr.B.S. Patel for respondents Nos. 6 to 8.
Upon hearing the learned advocates appearing for both the sides, it appears that the principal grievance of the petitioners is that the area of common plot is allotted to a charitable trust for construction of temple etc. It is the case of the petitioners that no such record exist in the Society, whereas as per the respondent Trust, the allotment has been made, the consideration is paid and the possession is handed over.
In my view, such dispute can conveniently be examined in the proceedings under Section 96 of the Gujarat Cooperative Societies Act ('the Act' for short) where, opportunity will be available to the parties to lead the evidence including that of examination and cross-examination of the witnesses. Unless the declaration is made by the competent forum that there is no allotment to the Trust or that the allotment to the Trust is in contravention to the provisions of the Act or the rules or bylaws, the reliefs prayed by the petitioner as a consequence thereof, cannot be granted.
Mr. Joshi, learned counsel appearing for the petitioners however submitted that the original record of the Society is reported as washed away in the flood and as a result thereof, if the petitioners are relegated to the remedy of proceedings under Section 96 of the Act, it may complicate the issue and therefore, he submitted that this Court may direct an independent agency or any competent officer to examine the said aspects and to submit the report and thereafter, to pass an order.
In my view, such exercise is not required to be undertaken at this stage because the proceedings under Section 96 of the Act are wide enough to deal with and consider the contingencies including that of the original record or otherwise. It will be for the petitioners to lead the evidence and the other side to defend the case. Holding of an inquiry on the ground as sought to be canvassed may result into prejudicing the issues and may also adversely alter or affect the rights of the parties which are yet to be considered and finalised as per the provisions of Section 96 of the Act.
In view of the above, subject to the aforesaid observations, the present petition is not entertained and dismissed. It is made clear that if the appropriate proceedings are resorted to, the rights and contentions of both the sides shall remain open.
(JAYANT PATEL, J.) *bjoy Top