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Gujarat High Court

Sharmishthaben Gunvantlal Patel ... vs Babuben Keshavlal Patel Wd/O Keshavlal ... on 23 December, 2019

Author: Biren Vaishnav

Bench: Biren Vaishnav

        C/SCA/16198/2019                                              ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 16198 of 2019

==========================================================
 SHARMISHTHABEN GUNVANTLAL PATEL THROUGH POA JAY SAURIN
                         PATEL
                          Versus
 BABUBEN KESHAVLAL PATEL WD/O KESHAVLAL MADHAVLAL PATEL
==========================================================
Appearance:
MR BAIJU JOSHI(1207) for the Petitioner(s) No. 1,2,3
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 2,3
KAMLESH B PATEL(8636) for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

                               Date : 23/12/2019

                                   ORAL ORDER

1. Leave to delete name of respondent no. 3.

2. Heard Mr. Baiju Joshi, learned advocate for the petitioner and Mr. Kamlesh Patel, learned advocate for the respondent no. 1. Respondent no. 2 has refused service of notice for which appropriate affidavit has been filed. The petition with the consent of the parties is taken up for final hearing today.

3. In the present petition, under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order dated 20.09.2011 passed by the Board of Nominees Court, Surat in Lavad Case No. 290 of 2005 and the order dated 25.03.2019 passed by the Gujarat State Cooperative Tribunal, Ahmedabad in Appeal No. 198 of 2011.

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4. It is the case of the petitioner that she was the original defendant no. 2 in Lavad Case No. 290 of 2005 filed by the respondent no. 1 herein. Respondent no. 2 who is now being represented through the heirs filed the suit being Lavad Case No. 290 of 2005 before the Court of Board of Nominees, Surat contending that construction carried by the petitioner was in the open plot whereas the plaintiff's case was that the construction was in the common plot of the society. Before the Board of Nominees, the petitioner had specifically raised all contentions that the suit filed by respondent no. 1 was expressly time-barred and belated in view of the fact that the resolution allotting the open plot to the petitioner was dated 12.06.1983 which was never challenged by the original plaintiff - respondent no. 1 herein. Considering the issues at hand, the Board of Nominees allowed the suit of respondent no. 1 on the ground that the construction carried out by the petitioner was illegal since it was carried out in the common plot. The question of respondent no. 1's locus standi was also a subject matter of challenge by the petitioner. Petitioner went in appeal before the Gujarat Cooperative Tribunal by filing Appeal No. 198 of 2011 whereby the order impugned was passed.

5. Mr. Baiju Joshi, learned advocate for the petitioner invited my attention to the impugned order of the Tribunal and submitted that though detailed written submissions were filed at Ex. 24 by the petitioner - respondent no. 1 in the suit, challenging the locus standi of respondent no. 1 herein inasmuch as the suit was grossly time-barred in view of the challenge to the 1983 resolution; that in fact the construction was not carried out in the common plot but it was an open Page 2 of 4 Downloaded on : Tue Dec 24 21:02:34 IST 2019 C/SCA/16198/2019 ORDER plot allotted to the petitioner. However, without taking these considerations into account, the Appellate Court solely dismissed the appeal by placing reliance on two decisions of this Court in the cases reported in 1997(2) GLR 1756 and 2010(2) GLR 1820 by which this Court has held that a society cannot sell away the common plot even if there is a resolution passed by majority of its members.

6. Mr. Kamlesh Patel, learned advocate for the respondent no. 1 would support the decision of the Tribunal and contend that admittedly the construction was on the common plot and the Tribunal committed no error in dismissing the appeal.

7. Perusal of the order under challenge in the appeal would indicate, when perused in the context of the written submissions filed by the petitioner at Ex. 24 before the Tribunal, that it was the specific case of the petitioner that there was no question of the society having sold the common plot and that the actual plot on which the subject matter of construction was made was allotted to the petitioner way back in the year 1983 and several detailed contentions were raised in the written submissions. Without adverting to the arguments made by the learned advocate for the petitioner, the Tribunal dismissed the appeal of the petitioner solely by relying on the two decisions cited in the body of the order. No discussion was made on the merits of the matter.

8. Perusal of the order impugned would indicate that the Tribunal has not considered these issues which were specifically raised by the petitioner namely that of the locus standi of respondent no. 1 and also to the belated challenge to Page 3 of 4 Downloaded on : Tue Dec 24 21:02:34 IST 2019 C/SCA/16198/2019 ORDER the resolution of 1983 at the hands of the respondent. Considering the fact that the order of the Tribunal only ousts the petitioner on seeking reliance on the two decisions in the cases reported in 1997(2) GLR 1756 and 2010(2) GLR 1820, without considering the detailed arguments of the petitioner, the order of the Tribunal dated 25.03.2019 is required to be quashed solely on the ground on it being without reasons and the matter is required to be remanded for a fresh hearing on merits.

9. Accordingly, order dated 25.03.2019 passed by the Tribunal is hereby quashed and set aside. Matter is remanded to the Tribunal for fresh hearing of the appeal namely Appeal No. 198 of 2011 on merits in accordance with law without being influenced by the order of this Court. It is made clear that the appeal shall be heard as expeditiously as possible preferably within six months from the date of receipt of the writ of the order of this Court. Petition is allowed to the aforesaid extent. Direct service is permitted.

(BIREN VAISHNAV, J) DIVYA Page 4 of 4 Downloaded on : Tue Dec 24 21:02:34 IST 2019