Gujarat High Court
Kanchrati Vishnu Upadhyay vs Dineshbhai A Parikh & 12 on 26 July, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
C/LPA/80/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 80 of 2011
In SPECIAL CIVIL APPLICATION NO. 1660 of 2010
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KANCHRATI VISHNU UPADHYAY....Appellant(s)
Versus
DINESHBHAI A PARIKH & 12....Respondent(s)
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Appearance:
MR PERCY KAVINA, SENIOR COUNSEL WITH MR JAL S. UNWALLA AND
MR AMIRAJ BAROT, ADVOCATES for the Appellant(s) No. 1
MR KAIVAN K PATEL, ADVOCATE for the Respondent(s) No. 10
MR PREMAL R JOSHI, ADVOCATE for the Respondent(s) No. 2
MR SALIL M THAKORE, ADVOCATE for the Respondent(s) No. 9
MR MEHUL SHAH, SENIOR COUNSEL WITH MR SAURABH G AMIN,
ADVOCATE for the Respondent(s) No. 1
MS ANUSHREE KAPADIA, ADVOCATE for the Respondent(s) No. 8
MS MEGHA JANI, ADVOCATE for the Respondent(s) No. 8 , 11
MR SALIL THAKORE, ADVOCATE for the Respondent(s) No. 7
NOTICE SERVED for the Respondent(s) No. 5 - 6 , 13
NOTICE SERVED BY DS for the Respondent(s) No. 3 , 9
NOTICE UNSERVED for the Respondent(s) No. 12
SERVED BY RPAD - (N) for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 26/07/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This Letters Patent appeal is filed by the original petitioner challenging the judgement of the learned Single Judge dated 28.07.2010.
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2. This litigation has a chequered history. We may briefly record the facts. One Kalpataru Co-operative Housing Society (hereinafter referred to as 'the Society') was formed with its registration on 03.07.1973 under the Provisions of the Gujarat Co-operative Societies Act, 1961 ('the Act' for short) for construction of flats on Final Plot No. 325 of T.P. Scheme No. 20 of Gulbai Tekra, Ahmedabad. Respondent no. 1 herein - Dineshbhai A Parikh, since deceased now represented by his legal heir, was one of the members of the said society. According to him, the society had purchased the said land from the contribution of its original members including himself. Since the attempt to obtain loan for construction failed, the members had decided to bear the cost of such construction to be paid to the builder phasewise. By the year 1978, substantial construction of the flat complex was carried out. However, admittedly the flooring, electrification, plumbing work etc were to be finished.
2.1 It appears that in a meeting convened on 10.10.1977 of the Managing Committee of the society, two resolutions, resolutions no. 5 and 6 were passed. Under resolution no. 5, it was recorded that the nine members of the society named therein which included said Shri Dineshbhai A Parikh had despite repeated reminders refused to co-operate or deposit the amounts of contribution and they were removed from the membership of the society. Resolution no. 6 provided that on such vacated memberships the Chairman is given authority to induct nine new members who were named therein after obtaining the declarations in terms of the bye-laws.
2.2 Said Shri Dineshbhai A Parikh filed a Lavad Suit No. Page 2 of 20 HC-NIC Page 2 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER 1611 of 1978 which was later on renumbered as Lavad Suit No. 271 of 1981 before the Board of Nominees of Co-operative Societies, Ahmedabad. In said suit, the plaintiff had prayed for a declaration that the resolutions no. 5 and 6 of the Standing Committee dated 21.10.1977 by which the plaintiff and other members of the society were removed and defendants no. 2 to 10 (newly inducted members) were admitted to the membership of the society are illegal, ultravires and invalid. He further prayed for permanent injunction against the implementation of the said resolutions and for a direction that the society should not hand over the possession of the flats to the defendants no. 2 to 10.
2.3 Along with the said suit, the plaintiff Dineshbhai Parikh prayed for interim injunction preventing the society from handing over the possession to the defendants no. 2 to 10 pursuant to the said resolutions no. 5 and 6. On such interim injunction application, the Board of Nominees on 26.05.1978 passed an order preventing the defendant no. 1 society from giving effect to the said resolutions or putting the defendants no. 2 to 10 in possession of the flats in question. He also directed the appointment of a Court Commissioner to draw the panchnama of the property and to report. The Court Commissioner submitted his report on 27.05.1978 in the form of a panchnama which showed that in various units the finishing work of the flats was still going on. The electrification, furnishing etc was not completed. In fact many units had cement bags lying around. Most of the defendants or their representatives were present and claimed to be occupying the flats but such occupation, even if believed, was temporary and adhoc since as per his report Page 3 of 20 HC-NIC Page 3 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER none of the flats seemed habitable. This interim injunction was vacated by the Board of Nominees on 05.05.1979. He, however, extended the earlier interim injunction to enable the plaintiff to approach the Co-operative Tribunal. In an appeal, the Co-operative Tribunal by an order dated 13.09.1979 reinstated the injunction. The defendants no. 2 to 9 i.e. the private defendants of the Lavad Suit except defendant no. 10, all filed Special Civil Application No. 43 of 1980 before this Court for vacating the injunction granted by the Tribunal. Such petition was disposed of by the learned Single Judge in following terms:
"This petition is directed against the interim injunction issued by the Co-operative Tribunal whereby the learned Tribunal purported to restrain these petitioners, the defendants in the suit before the Board of Nominees, from dealing with the properties of the co-operative society. The suit before the Board of Nominees is of the year 1978 June and it is high time that it should be finished, as peremptorily as possible. With the concurrence of the learned Advocates M/s. S.D. Shah and K.N. Raval, I direct that the learned Member of the Board shall take up this matter peremptorily on hand and finish it within two months from to-day. Secondly, Mr. S.D. Shah agrees that if in this litigation his clients ultimately come to lose, they will make room for the respondent no. 1, the client of Mr. K.N. Raval.
In view of this interim arrangement, the petition stands disposed of. Rule is discharged with no order as to costs."
[Emphasis Supplied] 2.4 The Board of Nominees disposed of the Lavad Suit of said Shri Dineshbhai Parikh by an order dated 29.03.1995.Page 4 of 20
HC-NIC Page 4 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER He held that the resolutions no. 5 and 6 were illegal. No show cause notice was issued to any of the expelled members nor the resolution was adopted by the General Body of the society. He, therefore, allowed the suit, declaring the said resolutions no. 5 and 6 as invalid and permanently injuncted the society from implementing them. He further granted permanent injunction against handing over the possession of the flats to defendants no. 2 to 10.
2.5 The original defendant no. 2 (present appellant), 3, 8 and 9 filed Appeal No. 171 of 1995 against such judgement of the Board of Nominees before the Co-operative . The appeal came to be decided by the Tribunal by a judgement dated 27.02.2001. The Tribunal believed that the expulsion of the original members was without following the necessary procedure laid down under Section 36 of the Act which requires that the society should pass a resolution by 3/4 th majority of all members present and voting in its General Body meeting to expel a member and that no such resolution would be valid unless the member concerned is given an opportunity of representing his case to the General Body and further that the resolution is submitted to the Registrar for his approval and approved by him. The Tribunal held that undisputedly the resolutions were not passed by the General Body nor any opportunity of being heard was given to the plaintiff. Therefore, the resolution no. 5 was invalid. The Tribunal also concluded that when such resolution was invalid, the resolution by which the defendants no. 2 to 10 were admitted as members of the society would also be illegal. However, the Tribunal thereafter proceeded to examine the position of defendants no. 2 to 10. The Tribunal Page 5 of 20 HC-NIC Page 5 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER was of the opinion that even if the Managing Committee had no power to expel the plaintiff, the Society could have rectified such mistake and could have passed the resolution in the General Body as envisaged under Section 36 of the Act. The Tribunal was, therefore, of the opinion that the Board of Nominees should have granted only a declaration that the resolution expelling the plaintiff is illegal and should not have further granted the injunction against the defendants no. 2 to
10. The Tribunal was of the opinion that the members had not shown readiness to pay the consideration of the flats and that the cancellation of the resolution (expelling such members) was merely on technical grounds and that such technical mistake could also be rectified. Accordingly, the Tribunal partially allowed the appeal and passed the following order:
"1. The present appeal is hereby partly allowed.
2. The order passed by the Learned Nominees, Ahmedabad in lavad suit No. 271/81 on dated 20.08.95 pertaining to the relief of declaration that the resolution No. 5 and 6 passed by the managing committee to defendant no. 1 society on 21.10.77 are illegal unauthorised and void is confirmed and the order passed by the learned nominee granting permanent injunction restraining the defendant no. 1 society from giving possession of the flats which have been allotted to the plaintiff and other members to defendant No. 2 to 10 is hereby set aside.
3. The defendant no. 1 society be at liberty to pass the resolution for expelling the plaintiff and other members as per section 36 of the Act, if the plaintiff and other members are not ready to pay the amount of consideration of the flats.
4. The defendant no. 2 to 10 are also at liberty to take necessary action against defendant no. 1 society for the amount which have been paid by them to the society and for protecting the possession of the flats, if they are in possession of the said flats at present. The remaining portion of Page 6 of 20 HC-NIC Page 6 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER the order passed by the learned nominee is hereby confirmed and award passed by the learned nominee be modified accordingly."
2.6 After such order was passed by the Tribunal, the original plaintiff Shri Dineshbhai Parikh filed a Review Application No. 37 of 2001 and sought a review of the said order. The Tribunal accepted the application and partially reviewed its own order by order dated 27.06.2006. In such order, the Tribunal found that between the findings in the main body of the order and the operative portion there was inconsistency. The Tribunal, therefore, rejected the appeal and confirmed the order of the Board of Nominees.
2.7 This review order of the Tribunal was challenged by the original defendant no. 9 - present appellant in Special Civil Application No. 1660 of 2010. The learned Single Judge dismissed the petition by impugned judgement dated 28.07.2010. The learned Single Judge noted that the defendants no. 2 to 10 had filed a collusive suit before the City Civil Court only against the builder and the contractor and had unauthorizedly and forcibly broken open the locks and tried to put a case of their actual possession. The learned Judge was of the opinion that the Board of Nominees had set aside the resolutions no. 5 and 6 and the necessary consequence thereof would be to restrain the society from implementing such resolutions. It was noticed that the petition was filed by only one of the defendants i.e. defendant no. 9. It is this judgement the petitioner has challenged in this Letters Patent Appeal.
3. Learned advocate Shri Kavina appearing for the Page 7 of 20 HC-NIC Page 7 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER appellant vehemently contended that the Tribunal could not have reviewed its own order in the manner in which it was done. He drew our attention to Section 151 of the Act to contend that the review jurisdiction of the Tribunal was extremely narrow. In the first round, the Tribunal had given its conscious consideration on all the issues and had given reasons for not permanently staying resolution no. 6. Recalling such an order only amounted to exercising appeal powers which the Tribunal did not have. In this context, counsel relied on the following decisions:
(I) Chandramohan Ramchandra Patil and Others vs. Bapu Koyappa Patil (Dead) Through LRS. And Others reported in 2003(3) SCC 552;
(II) Haridas Das vs. Usha Rani Banik (Smt) And Others reported in 2006(4) SCC 78;
(III) Meera Bhanja (Smt) vs. Nirmalal Kumari Choudhury (Smt) reported in 1995(1)SCC 170.
3.1 Counsel further submitted that the learned Single Judge committed an error in rejecting the writ petition relying on the suit filed by the original defendants which had no bearing on the nature of powers exercised by the Tribunal in review proceedings.
3.2 In the context of maintainability of the present Letters Patent Appeal, counsel relied on the decision of the Supreme Court in case of Sh. Jogendrasinhji Vijaysinghji vs. State of Gujarat and Others reported in 2015(2) GLH 584.
4. Learned advocate Ms. Megha Jani appeared for the Page 8 of 20 HC-NIC Page 8 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER original defendants no. 8 and 11. She supported the petitioner - appellant. She relied on Order 41 Rule 4 and Order 41 Rule 33 to contend that though the said defendants had not challenged the judgement of the Co-operative Tribunal, relief in their favour can always be granted. She submitted that since the review order by the Tribunal was illegal, the same should be set aside qua all the original defendants and the effect of the order should not be confined to the present appellant alone.
5. Learned advocate Shri Mehul Shah appeared for the original plaintiff. He contended that the Letters Patent Appeal is not maintainable. He submitted that the petition against the judgement of the Tribunal was under Article 227 of the Constitution of India. That is how, the learned Single Judge had exercised the powers. The Letters Patent Appeal would therefore not be maintainable. In this context, he relied on the decision of the Supreme Court in case of State of Gujarat and Another vs. Gujarat Revenue Tribunal Bar Association and Another reported in AIR 2013 SC 107 and an unreported decision of Division Bench of this Court in Letters Patent Appeal No. 2933 of 2010. He also relied on the decision of the Supreme Court in case of Jogendrasinhji Vijaysinghji (supra). Counsel further submitted that the Board of Nominees had correctly held that both the resolutions no. 5 and 6 were illegal. The Tribunal confirmed this view but in the first order refused to set aside resolution no. 6. This was an apparent error which was brought to the notice of the Tribunal by the plaintiff through a review petition which was granted by the Tribunal. The Tribunal therefore committed no error.
Page 9 of 20HC-NIC Page 9 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER 5.1 He further submitted that the benefit of the order of the Board of Nominees as confirmed by the Tribunal should be made available to all the original members of the society and should not be confined to the plaintiff alone.
6. Having heard learned advocates for the parties and having perused the documents on record, we shall first decide the issue of maintainability of the Letters Patent Appeal. The question of maintainability of a Letters Patent Appeal against the judgements and orders of various Tribunal and Courts came up for consideration before a five judge bench in case of Gujarat State Road Transport Corporation vs. Firoze M. Mogal and Anr. reported in 2014 (1) GLH 1. The larger bench went into great depth and laid down certain propositions, one of them being that if the petition is filed describing it as one under Article 226 and 227 of the Constitution of India and the Court or the Tribunal whose order is sought to be challenged is not made a party, the same would be treated as one under Article 227 of the Constitution of India. If in the original petition, such party is not impleaded in the Letters Patent Appeal, joining the Tribunal will not change this position.
7. The judgement of the High Court in case of Gujarat State Road Transport Corporation (supra) was considered by the Supreme Court in the case of Jogendrasinhji Vijaysinghji (supra). The Supreme Court summarized the legal position as under:
"36. In view of the aforesaid analysis, we proceed Page 10 of 20 HC-NIC Page 10 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER to summarise our conclusions as follows:-
(A) Whether a letters patent appeal would lie against the order passed by the learned Single Judge that has travelled to him from the other tribunals or authorities, would depend upon many a facet. The Court fee payable on a petition to make it under Article 226 or Article 227 or both, would depend upon the rules framed by the High Court. (B) The order passed by the civil court is only amenable to be scrutinized by the High Court in exercise of jurisdiction under Article 227 of the Constitution of India which is different from Article 226 of the Constitution and as per the pronouncement in Radhey Shyam (supra), no writ can be issued against the order passed by the civil court and, therefore, no letters patent appeal would be maintainable.
(C) The writ petition can be held to be not maintainable if a tribunal or authority that is required to defend the impugned order has not been arrayed as a party, as it is a necessary party. (D) Tribunal being or not being party in a writ petition is not determinative of the maintainability of a letters patent appeal."
8. Reading the said entire judgement and the final propositions laid down thereunder and the over all trend of the judicial scrutiny would suggest that the distinction between a writ petition under Article 226 and 227 of the Constitution of India is increasingly getting narrow. In the present petition, the Tribunal was joined as a respondent in the Letters Patent Appeal. The Tribunal is not a Civil Court and the proposition that against the order of a court only writ petition under Article 227 of the Constitution of India would lie would not apply.
9. Looking to the nature of the writ petition, the order passed by the Co-operative Tribunal under challenge and the Page 11 of 20 HC-NIC Page 11 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER fact that the Tribunal was joined as a party in this LPA would persuade us to hold that the writ petition was in the nature of certiorari under Article 226 of the Constitution of India; the reference to the writ petition under Article 227 of the Constitution of India by the learned Single Judge notwithstanding.
10. Coming to the merits of the appeal, we may recall that the Board of Nominees had in terms held that the resolutions no. 5 and 6 were illegal and therefore declared them as invalid and inoperative. Resolution no. 5 removed 9 members of the society from their memberships. The resolution no. 6 passed on the same date inducted 9 new members in place of the outgoing members. In the appeal, the Tribunal agreed with the view of the Board of Nominees that resolution no. 5 was illegal. In fact, the Tribunal noted that the procedure under Section 36 of the Act was not followed. We may notice, Section 36 of the Act pertains to expulsion of members. Sub- section (1) of Section 36 provides that a society may by a resolution passed by 3/4th majority of all the members present and voting at the general body meeting of the members held for the purpose, expel a member for acts which are detrimental to the proper working of the society. First proviso to sub-section (1) of Section 36 provides that no resolution shall be valid unless the member concerned is given an opportunity of representing his case to the General Body and no resolution shall be effective unless it is submitted to the Registrar for his approval and it is approved by him. Second proviso further provides that the approval or disapproval of the Registrar would be communicated to the society within three months from the date of such submission and in absence Page 12 of 20 HC-NIC Page 12 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER of such communication the resolution shall be effective. Under sub-section (1) of Section 36, thus, a member of the society can be expelled only through a resolution passed by 3/4th majority of all the members present and voting at the general body meeting of the society held for such purpose and such expulsion could be for the acts of the member which are detrimental to the proper working of the society. No resolution would be valid unless the member concerned is given an opportunity of representing his case to the general body.
11. In the present case, the Tribunal noted that undisputedly the resolution of expulsion was not passed by the society in its general body nor any opportunity was granted to the outgoing members of representing their case to the general body. In plain terms, thus the conclusion of the Tribunal was that the resolution no. 5 under which the members were expelled was illegal and ineffective. The natural corollary to this conclusion would be that the resolution no. 6 under which 9 new members in place of the outgoing members were inducted, would be rendered ineffective. In fact, the Tribunal also in its first order, agreed to this position. Strangely, however, the Tribunal thereafter proceeded to consider the effect of such a declaration on the newly inducted members. On the ground that their position was akin to a purchaser of a property for value without notice the Tribunal refused to confirm the direction of the Board of Nominees granting permanent injunction restraining the society from giving possession of the flats allotted to defendants no. 2 to 10. The Tribunal was also of the opinion that the defect was mainly technical and could have been rectified by the society.
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12. We have gone into some length on the first order of the Tribunal to demonstrate that the ultimate order of the Tribunal refusing to confirm the injunction issued by the Board of Nominees against the society giving possession of the flats to defendants no. 2 to 10 was a gross error. Looked from any angle, the Tribunal could not have done so. The Board of Nominees was perfectly justified in holding that resolution no. 5 was invalid and that therefore resolution no. 6 could not survive. The Tribunal concurred with this view. Having done so, it was simply not open for the Tribunal to confirm one part of the order of the Board of Nominees of declaring resolutions no. 5 and 6 invalid but vacating the other part, injuncting the society from giving possession of the flats to defendants no. 2 to 10. There was a clear dichotomy between the two directions. If resolution no. 5 was struck down, resolution no. 6 would automatically be rendered invalid. Under no circumstances, resolution no. 6 can survive the demise of resolution no. 5. By refusing to confirm the directions of the Board of Nominees permanently injuncting the society from handing over possession of the flats to defendants no. 2 to 10, the Tribunal through the back door brought back resolution no. 5 which it had struck down. Further the reasons for not confirming the order of the Board of Nominees in entirety were also rather strange. To hold that the resolution of expulsion which was passed by the Managing Committee and not by the General Body of the society that too without giving any hearing to the members concerned was a technical defect is clearly misinterpretation of Section 36(1) of the Act. To observe that the society in its general body could have rectified its mistake was yet another Page 14 of 20 HC-NIC Page 14 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER erroneous understanding of the statutory provision. If the mandatory requirements of sub-section (1) of Section 36 of the Act were not followed, the only possible conclusion could be that the resolution must be set aside. The Tribunal could not have given an opening to the society to rectify any such resolution which the Tribunal itself categorized as invalid. An invalid resolution cannot be rectified. The resolution in the present case was passed by a body which was not competent, without following the procedure which was mandatory. It was, therefore, not open for the Tribunal to refuse to give the full effect of anulling such resolution by observing that the same could have been rectified and in the operative portion leave it open to the society to rectify it. There was neither any scope for rectification nor of ratification of such a resolution.
13. When such errors were brought to the notice of the Tribunal it was duty bound to correct itself. Whatever the basis, whatever the reasons, whatever the logic which prompted the Tribunal to come to such conclusions which were impermissible in law, when such error was pointed out to the Tribunal it was its duty to correct it. The Tribunal had in the first order committed a patent error of law apparent on the face of record. Merely because the Tribunal had cited certain reasons for its conclusions would not mean that the error was not an error of law or that it was not apparent on the face of record. Section 151 of the Act pertains to review of the orders of the Tribunal. Under sub-section (1) of Section 151, the Tribunal could either on an application of the Registrar or on an application of any interested party review its own order as it thinks fit. The first proviso to sub-section (1) however circumscribes such powers providing that no Page 15 of 20 HC-NIC Page 15 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER such application by the interested party shall be entertained unless the Tribunal is satisfied that there has been discovery of new and important matter of evidence which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time of the passing of the order by the Tribunal or that there has been some mistake or error apparent on the face of record of for any other sufficient reasons. The powers are therefore akin to review powers of the Civil Court under the Code of Civil Procedure. The Tribunal therefore had ample power to correct any error apparent on the face of record whether on facts or law. The Tribunal could also exercise such powers for any other sufficient reasons. If ever there was a case of apparent error of law on the face of the record or a case where there were sufficient reasons for the Tribunal to review its own order, this was one. By recalling its own order and confirming the order of the Board of Nominees in its entirety, the Tribunal merely removed the patent and apparent illegality and brought its own direction in consonance with its declaration that the resolutions no. 5 and 6 both were invalid. We see no error in the Tribunal recalling or reviewing its order. On that account, the appeal must fail.
14. Before concluding we would like to clear a few loose ends. The facts are rather peculiar and many events have intervened. Interests have developed. The adhoc occupation of the flats by the newly inducted members continued all throughout this litigation. We are informed that these members have been occupying such units since then. The original plaintiff Shri Dineshbhai Parikh himself expired without getting the fruits of the litigation which he pursued in Page 16 of 20 HC-NIC Page 16 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER the later part of the his life. The appellant herein was the original defendant no. 9. He is the only one who had kept the challenge alive. The remaining defendants no. 2 to 8 and 10 have not challenged the review order of the Tribunal. Ordinarily, we would have simply rejected the appeal and allowed the orders of the Board of Nominees and the Tribunal to take its effect. However, in the present case this would lead to only unintended consequences and further litigations if we did not mould the relief and give suitable directions. This is so because from the beginning it was only Shri Dineshbhai Parikh one of the original members of the society who has pursued the litigation and fought against the expulsion. The Lavad Suit was filed by him. He had not joined other outgoing members as defendants of the said suit. Such members had neither filed their independent proceedings nor made any attempt to join in the Lavad Suit filed by Shri Dineshbhai Parikh. The entire proceedings starting from the Lavad Suit instituted before the Board of Nominees continued since the year 1978 till date without any participation or response from any of them. Simply dismissing the Letters Patent Appeal would result into their expulsion being revoked and they would claim the right to the allotment of the flats. Since the year 1978, nearly 40 years have passed. They have not shown any interest in this litigation. The benefit of the proceedings instituted by one of them cannot enure to the benefit of all when they have neither shown their desire to wage the battle nor taken trouble to establish their cases nor even asserted that they had paid all the dues and were ready and willing to pay the remaining dues of the society as and when became payable. We wonder whether the Board of Nominees and the Tribunal itself could Page 17 of 20 HC-NIC Page 17 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER have granted such wide relief in favour of one of the defendants which would enure to the benefit of the remaining members who were not even parties before such fora. It would therefore be wholly inequitable to allow the benefit of the orders of the Board of Nominees and the Tribunal to flow freely in favour of the remaining outgoing members who had never taken up the legal challenge nor taken any interest in the proceedings instituted by the original plaintiff.
15. We may recall while seeking vacating of the injunction granted by the Tribunal before this Court, all newly inducted members except defendant no. 10 was party to the writ petition. Their advocate had assured the court that ultimately if they lose in the petition he would make one unit available for the plaintiff. We would therefore insist on the parties to abide by such assurance. In the conclusion therefore on one hand the outgoing members other than the original plaintiff cannot seek benefit out of the present litigation, on the other, the original defendants no. 2 to 10 cannot avoid making one unit available to the plaintiff as was assured to the court. These defendants are parties to the present proceedings either in form of petitioner - appellant or respondents.
16. Learned advocate Shri Kavina vehemently contended that such a direction cannot be granted. This would be travelling beyond the jurisdiction of the court. On two grounds, we are not able to accept such a contention. Firstly when Mr. Kavina himself urges us to view his petition as one filed under Article 226 of the Constitution of India powers of the court would be sufficiently wide to ensure that injustice is not done. In the exercise of Letters Patent Appeal powers, Page 18 of 20 HC-NIC Page 18 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER this Court would be exercising powers akin to those enjoyed by the learned Single Judge in exercise of writ jurisdiction. Secondly, the outgoing members also have urged us to grant relief to them though they never challenged the order of the Tribunal. Rule 4 of Order 41 and Rule 33 of Order 41 while authorising the appellate court to grant any such relief in favour of a non-appellant, has only made enabling provisions to be exercised as per the discretion of the appellate court. When these outgoing members are urging protection for them though they had never challenged the orders of the courts below which were adverse to them, they cannot prevent the court from moulding the relief appropriately.
17. In the result, while dismissing the Letters Patent Appeal, we direct the appellant as well as original defendants no. 2 to 8 and 10 or the parties claiming the rights under them who are respondents before this court to make one unit available to the heirs of Shri Dineshbhai Parikh - original plaintiff. We are informed that the Tribunal had held that originally unit no. A/2 was allotted to said Shri Dineshbhai Parikh which was of 90 sq. yards built up area. Any unit that may be allotted shall not have built up area lesser than the said unit. However, it is clarified that it will not be necessary to allot unit no. A/2 alone. This would be done latest by 31.10.2017.
18. At this stage, learned advocate Shri Kavina prayed that this judgement may be stayed to enable the appellant to challenge the same further. Since we have granted time upto 31.10.2017 for implementation, it is not necessary to stay the judgement.
Page 19 of 20HC-NIC Page 19 of 20 Created On Sun Aug 20 16:38:54 IST 2017 C/LPA/80/2011 ORDER (AKIL KURESHI, J.) (BIREN VAISHNAV, J.) divya Page 20 of 20 HC-NIC Page 20 of 20 Created On Sun Aug 20 16:38:54 IST 2017