Gujarat High Court
Charotar Cooperative Housing Society, vs Kalaben Himmatlal Patel on 19 December, 2018
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/MCA/2430/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 2430 of 2015
In SPECIAL CIVIL APPLICATION NO. 12689 of 2005
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CHAROTAR COOPERATIVE HOUSING SOCIETY,
Versus
KALABEN HIMMATLAL PATEL
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Appearance:
THAKKAR AND PAHWA ADVOCATES(1357) for the PETITIONER(s) No.
1,2,3,4,5,6,7
MR BAIJU JOSHI(1207) for the RESPONDENT(s) No. 1,2
MR PARTHIV B SHAH(2678) for the RESPONDENT(s) No. 8
MR SALIL M THAKORE(5821) for the RESPONDENT(s) No. 6,7
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 19/12/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. The contemptuous abuse of the Court proceedings by invoking the proceedings under the Contempt Of Courts Act, 1971, by the applicants and using it as a tool, to harass some of the respondents who were not even parties to the proceedings, contempt of which is alleged, is writ large, as the facts hereinafter would indicate.
2. The background of facts which give rise to this application under the Contempt of Courts, 1971 are as under:
2.1 One Shree Charotar Co-operative Housing Society Ltd.
filed a Lavad Suit No. 1227 of 2004 before the Board Of Page 1 of 14 C/MCA/2430/2015 ORDER Nominees, Vadodara against the opponents Nos. 1 and 2 herein claiming that even though the Society in its Executive Committee meeting of 12/7/2004, rejected the application of the opponents to carry out construction, the opponents proceeded to make commercial use of the Plot No.4 and carried out construction. A prayer of injunction was made in the suit praying that the opponent No.1 herein be restrained from making any construction on the said plot. The Board of Nominees rejected the application for injunction on 8/11/2004.
2.2 The order was challenged by the Society before the Gujarat Co-operative Tribunal. The Tribunal by its order dated 5/2/2005 rejected the Revision Application. Though aggrieved by the order dated 5/2/2005, the Society did not challenge the order further, however, some of the members of the Society approached this Court by filing Special Civil Application No.12689/2005, challenging the order of the Tribunal.
2.3 Initially, notice was issued in the said petition. No interim relief was granted. However, on 17/08/2005 this Court passed an order as under:
"Status quo to be maintained as of today.
S.O.26.08.2005."
2.4 This petition was finally disposed of by an order of this Court dated 26/10/2010. While disposing of the petition, the Court in para 4 of the order issued the following directions:
"4. In view of aforesaid, the Board of Nominees Page 2 of 14 C/MCA/2430/2015 ORDER at Vadodara is directed to dispose of Arbitration Suit No.1227 of 2004 pending before it within a period of six months from today. The parties will be governed by the aforesaid interlocutory order dated 04th July 2005 rendered by this Court in present petition till final disposal of the said Arbitration Suit No.1227 of 2004. It is hereby clarified that the petitioners will be entitled to raise all the contentions raised in the present petition before the Board of Nominees. The petition stands disposed of accordingly. Rule is made absolute to the aforesaid extent with no order as to costs."
2.5 On 6/08/2015, the petitioners of Special Civil Application No.12689/2005 - the Members and not the Society, as stated earlier, filed this Contempt Application praying as under:
"7(A) YOUR LORDSHIPS may be pleased to initiate appropriate proceedings under the Contempt of Courts Act against the opponent nos. 1, 2, 6 to 8 for the wilful and deliberate breach of the order dated 26.10.2010 passed by this Hon'ble Court in Special Civil Application No. 12689 of 2005 and further be pleased to direct the said opponents to purge the contempt and further direct them to stop any kind of commercial activity in the subject property i.e. plot no.4, Charotar Cooperative Housing Society, Old Padra Road, Vadodara, in the interest of justice;
(B) YOUR LORDSHIPS may be pleased to direct the opponent nos. 1, 2, 6 to 8 to stop any kind of the commercial activity in the subject property i.e. plot no.4, Charotar Cooperative Housing Society, Old Padra Road, Vadodara, pending the admission hearing and final disposal of this petition;"
2.6 The applicants, by the application pleaded that, though there was an order to maintain status quo passed by the High Court on 17.08.2005 and though this Court disposed of the petition ordering that till the Suit is disposed of, the status Page 3 of 14 C/MCA/2430/2015 ORDER quo be maintained, the opponent No.2 made construction thereon and sold the property to the Opponent Nos. 6 and 7, though they were joined as parties in the Lavad Suit vide order dated 14.07.2010 and that the said opponents have given the property on rent to the opponent No.8. This Court, by an order dated 8/09/2015 issued notices to opponents 1, 2, 6, 7 and 8 only. Affidavits-In-Reply have been filed by the opponents No. 1 and 2 and opponents No. 6 and 7 in these proceedings and they are on record.
3. When the Application was taken up for hearing today, Mrs. Sangita Pahwa, learned advocate for the applicants contended that the opponents must be hauled up for having committed breach of the order of status quo granted by this Court on 17/08/2005. Drawing our attention to the agreements on pages 199 and 205 of the paper book, Mrs. Pahwa submitted that though these agreements were entered into by and between the opponent No.1 and opponent Nos. 6 and 7 on 9/08/2005, there was no construction carried out then and within ten days of the order so passed construction was commenced and it was an admitted position made on behalf of the opponent No.1 that the construction was made. Therefore, in view of the categorical admission on the part of the opponents as there was a breach of the order of status quo, the opponents be punished for committing contempt of the orders of this Court.
4. Mr. Mihir Thakore, learned Senior Advocate has appeared with Mr. Salil Thakore, learned advocate for the Opponents Nos. 6 and 7 and Mr. Baiju Joshi, learned advocate has appeared for the opponents No. 1 and 2.Page 4 of 14 C/MCA/2430/2015 ORDER
4.1 Mr. Thakore, through a synopsis of the list of dates, has emphasized that the opponents cannot be said to have committed a breach of the order of this Court and, the impression that, the construction has been carried out, after the order of status quo, is incorrect. The synopsis of dates handed over by Shri Thakore, during the course of hearing of this application, suggests the following sequence of events, which, in his submission would reveal that full facts have not been placed on record of the application, which if had otherwise been placed, would not have persuaded this Court to initiate proceedings under the Contempt Of Courts Act, 1971.
4/10/2004 : The Society filed a Lavad Suit praying that the opponents No. 1 and 2 herein, who were the only parties to the suit, be restrained from carrying out any commercial use of the plot no.4 of the Society.
4/10/2004 : On this day, the District Registrar of Societies had granted a No-Objection Certificate to carry out construction, keeping in view the fact that the Vadodara Municipal Corporation had granted permission on 20/07/2004.
26/10/2004 : The Society had challenged this NOC before the High Court by filing Special Civil Application No. 14203 of 2004 on the ground that such permission was granted by the Registrar which would frustrate the Lavad Suit. The petition was withdrawn in view of the fact that there was a statutory remedy available and Page 5 of 14 C/MCA/2430/2015 ORDER accordingly, the petition was not entertained and disposed of.
It may be noted that the applicant, in the Contempt Application did not point out the fact that permission to construct was already granted on 4/10/2004.
8/11/2004 : The Board of Nominees rejected the application of the Society at Exh:5 in the Lavad Suit. This order was challenged before the Gujarat Co- operative Tribunal.
5/2/2005 : The Tribunal rejected the revision application of the Society.
9/5/2005 : Agreements to sell the property were executed in favor of the opponents Nos. 6 and 7 for sale of property in question. It is evident from reading the affidavit of the Opponent No.2 that after the rejection of the injunction, the District Magistrate and the Collector had on 2/3/2005 issued a non-agricultural certificate for commercial use. On 19/3/2005, the Corporation made some inspection. On 04/07/2005, the completion certificate was already issued. The construction of the entire building was complete.
4/07/2005 : Five months after the injunction was refused, only the members of the Society filed the petition, whose order they now allege has been violated. The Opponents No. 6 and 7 of the present application against whom the contempt of the order is alleged were never parties to the petition and have only been Page 6 of 14 C/MCA/2430/2015 ORDER arraigned as parties in the Lavad Suit in 2010.
23/05/2005 : Possession of the units were handed over to the opponents No. 6 & 7.
9/08/2005 : The opponent No.2 entered into Registered Sale Deeds based on the permission granted by the Corporation on 20/07/2004.
17/08/2005 : High Court passed an order for maintaining status quo.
19/09/2005 : Respondent no. 1 filed an affidavit in Special Civil Application No. 12689 of 2005 stating that the completion certificate was already issued annexing a list containing names of final allottees.
2005 : The Society filed a Regular Civil Suit No. 1034 of 2005 before the Civil Judge (SD), Vadodara challenging the action of the Municipal Corporation granting permission to construct wherein injunction was refused was not disclosed. That suit was subsequently dismissed on 21/2/2006.
26/10/2010 : Special Civil Application No. 12689 of 2010 was disposed of directing that the parties would be governed by the earlier status quo order.
19/6/ 2014 : The society filed an injunction application and an application seeking directions for holding the opponents guilty of contempt of the status Page 7 of 14 C/MCA/2430/2015 ORDER quo orders.
1/7/2014 : 7/7/2014 : After hearing the injunction application, the Court disposed of this application in view of the fact that the High Court had already passed an order on 26/10/2010.
7/7/2014 : Though the application for injunction was heard and reserved for orders, the Society filed Special Civil Application No. 9507 of 2014 wherein the Court issued notice as order on the application was awaited.
19/06/2015 : The Society made a statement that since the Board of Nominees had passed an order on the application for injunction and a statutory remedy was available, instead of prosecuting the petition they would withdraw the petition with a view to take out appropriate proceedings by availing the remedy available in law. The Court disposed of the petition and observed as under:
"In view of the said submission and statement by learned advocate for the petitioner present petition is disposed of as withdrawn at this stage because the petitioner wants to take out appropriate proceedings in light of and / or against order dated 7.7.2014 and wants to avail alternative remedy available in law.
If, any application seeking condonation of delay is filed then the competent authority will take into account the fact that after 4.7.2014 the petitioner was prosecuting the petition in this Court.Page 8 of 14 C/MCA/2430/2015 ORDER
With the aforesaid observations the petition is disposed of as withdrawn. Notice is discharged. Ad- interim relief, if any, stands vacated forthwith."
6/8/2015 : Rather than availing of the alternative remedy as prayed for, the present Contempt Application was filed.
4.1 Mr. Mihir Thakore, therefore, pointed out that two contempt applications are pending before the Board of Nominees, one filed on 19/6/2014 and the other which was filed on 5/10/2005 wherein an endorsement has been made that they would proceed with the application when the main Lavad Suit is heard.
4.2 Contentions in support of the list as above were raised by Shri Thakore to submit that:
(a) Both the contempt petitions before the Nominees Court are still pending.
(b) The relief in the Special Civil Application No. 12689 of 2005 was against making commercial construction. Not only were the opponents no. 6 and 7 not parties but they are shop owners who had been allotted shops and sale deeds were entered into before the order of status quo was granted,
(c) The contempt petition was filed after withdrawing Special Civil Application No.9507/2014 for availing alternative remedy and having not done so, moved this application. This is an abuse of process.Page 9 of 14 C/MCA/2430/2015 ORDER
(d) The building was constructed in 2005. Units were allotted in 2005. Commercial use of building is made since many years. Knowing that the shops are allotted from the very beginning, the applicants filed the Contempt in the year 2015, almost 13 years after the buildings is operative and shops allotted.
5. Having considered the submissions of the respective advocates, no more glaring abuse of process than the one at hand, at the instance of the Applicants, is evident.
5.1 The Lavad Suit No. 1227 of 2004 was filed by the Society with a prayer that no commercial construction be made on Plot No.4 of the Society. Injunction application moved in such a suit was rejected on 4/10/2004. On the same day, the District Registrar granted permission to the plot holder to carry out commercial construction in accordance with the permission granted by the Municipal Corporation on 20/07/2004. The Society, when challenged this permission by filing Special Civil Application No. 14230 of 2004, failed and the Court dismissed this petition by an order dated 26/10/2004. The same reads as under:
"Shri N.K. Majmudar, Learned Advocate appearing for the petitioner seeks permission to delete the prayer in terms of Para 9(C). In this petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the order passed by the District Registrar, Vadodara dated 4.10.2004 by which the District Registrar, Vadodara has granted No Objection Certificate in favour of the respondent to put up construction. It is the case of the petitioner that the District Registrar has no jurisdiction to grant such Page 10 of 14 C/MCA/2430/2015 ORDER type of direction and even there is no provision under the Gujarat Cooperative Societies Act by which the permission of the District Registrar is required. He has submitted that only with a view to see that the injunction application submitted by the petitioner before the Board of Nominees is frustrated, the said order is obtained by the respondent. In view of the fact that against the order passed by the District Registrar, Vadodara, the petitioner has alternative statutory remedy available by way of appeal before the Registrar and/or revision application before the State Government, the present petition is not entertained. Hence, the present petition is disposed of."
5.2 The Revision Application refusing the injunction was also rejected by the Tribunal on 5/2/2005. After such an application was rejected on 19/3/2005, the Corporation had permitted the opponent No.2 to carry out construction which was completed and a completion certificate was granted on 26/08/2005 as is evident from the Affidavit filed by the opponents. Even allotment of shops was made in favour of the opponents No. 6 and 7 in May 2005.
5.3 Seven months after the order of revision dated 5/2/2005, the members of the Society and NOT the Society filed a petition before this Court, being Special Civil Application No. 12689 of 2005 challenging the said order. When the Court granted the order of "status quo as of today" on 17/08/2005 the entire construction was over. The opponents no. 6 and 7 had already been allotted shops in May 2005. Curiously, therefore, the Society did not file the petition but only the members came forth, that too, without joining the opponents no. 6 and 7 against whom contempt of the order passed in such petition is alleged.
Page 11 of 14 C/MCA/2430/2015 ORDER5.4 It is pertinent to note that the Society had on 5/10/2005 filed an application for injunction once again. An endorsement then was made that they would prefer that the application is heard with the main suit proceedings. The members, cannot be said to not being in the know of such proceedings. Before initiating the present proceedings under the Contempt Of Courts Act, 1971 on 19/6/2014, the Society had filed an injunction application in the Lavad Suit on 19/6/2014 against the opponents no. 6 and 7 praying that they be restrained from making any commercial use of property. After the application was reserved for orders, a petition being Special Civil Application No. 9507 of 2014 was filed for restraining the respondents therein from making construction. The petition was withdrawn as the Board of Nominees passed an order that since in the subject matter of the present proceedings i.e. Special Civil Application No. 12689 of 2005, the High Court had passed orders that the parties should act according to the order of status quo granted earlier, no orders are needed. The petition was withdrawn with a view to seek alternative remedy. Rather than seek a remedy as prayed for, the applicants filed the present Contempt Application.
6. From the sequence of dates, what is evident is that the breach of the status quo order dated 17/08/2005 which is alleged to have occurred, the dispute of construction of property and the prayers made in the petition, on which account breach was alleged, had already been rendered unenforceable. Before the petition i.e. Special Civil Application No. 12689 of 2005 was filed in June 2005 by the members, the construction was complete. Completion Page 12 of 14 C/MCA/2430/2015 ORDER certificate was issued. The opponents were already allotted shops in May 2005. Before the Court granted the status quo order prevailing as on that date i.e.17/08/2005, the sale deeds were already executed on 9/08/2005 in favour of the opponents No. 6 and 7.
7. The Society, which moved an application for injunction in October 2005 after the members had moved a petition in the High Court, made an endorsement in the application that it could proceed with the main suit. Another contempt application with the injunction application was filed on 19/6/2014. Contempt Application is still pending however the petition against the order of refusing injunction was withdrawn with a view to avail alternative remedy.
7.1 Obviously, though the Society failed to prosecute injunction applications and obtain orders from the Board of Nominees after the opponents no. 6 and 7 were joined as parties to the Lavad Suit in 2010, it did not deter the members from filing the present application under the Contempt of Courts Act, 1971 against the opponents no. 6 and
7. The present application was moved against opponents, even though, when the order of status quo in the petition was passed, the opponents were not parties to the proceedings, and the construction was complete and the opponents no. 6 & 7 were already allotted shops.
7.2 All these machinations were undertaken by the members of a society which invoked remedies in the Board of Nominees and failed. Particularly, when such remedies were availed of in absence of the parties against whom contempt was alleged, Page 13 of 14 C/MCA/2430/2015 ORDER when infact they were allottees who had been allotted shops much before the order in the petition was passed and when the construction was complete, all these allegations of breach of orders against such opponents who were not parties get more confounding when the Society too failed to seek injunctions in a fresh round in 2014 after the opponents no. 6 and 7 were joined as parties and a challenge to such orders was withdrawn with a view to avail alternative remedy.
8. The members - the present applicants therefore can be said to be acting in tandem with the Society and being hand in glove to help the Society in pursuing a cause which was otherwise lost. The act of filing and invoking the proceedings under the Contempt Of Courts Act, 1971 is therefore a clear abuse of process at the hands of the applicants. With the sequence of events recorded in the order and the conduct of the applicants, we would have imposed costs on the applicants for availing and abusing the court process, however, we refrain from doing so, only on a request so made by Mrs. Pahwa, learned advocate for the applicants. The application is therefore dismissed. No costs.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 14 of 14