Gujarat High Court
Krishna Co Operative Housing Society ... vs Vinod Kumar B Patel & on 17 August, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/13184/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13184 of 2015
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KRISHNA CO OPERATIVE HOUSING SOCIETY LTD,.....Petitioner(s)
Versus
VINOD KUMAR B PATEL & 1....Respondent(s)
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Appearance:
MR. ARCHIT P JANI, ADVOCATE for the Petitioner(s) No. 1
MR BHARAT T RAO, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 17/08/2015
ORAL ORDER
1. By the present petition filed under Article 226/227 of the Constitution of India, the petitioner society has challenged the order dated 5.8.2015 passed by the learned Board of Nominees on interim application Exh. 6 preferred by the respondent No.1 in Lavad Suit No.141 of 2013.
2. When asked to the learned advocate Mr. Jani as to why the petitioner has approached this Court without availing of the remedy of appeal before the Gujarat State Cooperative Tribunal, Mr. Jani stated that presently, the Tribunal is not functioning and, therefore, the petitioner has no other remedy but to approach this Court against the interim order made by the learned Board of Nominees before this Court.
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3. By the impugned order, the learned Board of Nominees has granted injunction in favour of respondent No.1 so as to restrain the petitioner society from causing any obstruction in respondent No.1 repairing the iron gate or increasing height of the iron gate in his compound wall on plot bearing block No.36 of the petitioner society.
4. Learned advocate Mr. Jani for the petitioner submitted that a member in the society is entitled to put up only one gate in the compound wall constructed by the society and, therefore, respondent No.1 is not entitled to make any change in the compound wall by putting the second gate on the back portion of his bungalow. Mr. Jani submitted that it is tenant co-partnership cooperative society and the construction of bungalow as also compound wall for each of the member was made by the society and, therefore, a member can not make any change in the compound wall without prior permission of the managing committee of the society. Mr. Jani submitted that the change in the compound wall made by respondent no.1 is contrary to the plan sanctioned by the concerned authority for the purpose of construction of bungalows and the compound wall. Mr. Jani submitted that by putting iron gate on the back portion of his bungalow, respondent no.1 wants to have illegal access on the common plot of the society, therefore, respondent no.1 is not entitled to have the second gate on the back portion of his bungalow.
5. Learned advocate Mr. Rao, on the other hand, submitted that Page 2 of 4 HC-NIC Page 2 of 4 Created On Thu Aug 20 01:04:11 IST 2015 C/SCA/13184/2015 ORDER the society has not placed on record either the plan for the construction of the bungalows and the compound wall nor even copy of bye-laws before the Board of Nominees. Mr. Rao submitted that the petitioner has failed to point out any restraint against the members of the society for putting second gate in the compound wall. Mr. Rao submitted that there are at least more than six members who have put second gate in their compound walls and though the respondent No.1 has stated such facts in the plaint of the lavad suit and the interim application before the Board of Nominees, the petitioner society has not disputed such facts which shows that the action taken by the petitioner society is selective one against the respondent No.1 and without any basis.
6. Having heard the learned advocates for the parties and having perused the impugned order made by the learned Board of Nominees, the Court finds that the case of the petitioner society is not that the respondent no.1 has encroached upon the land of the society. What is alleged against respondent NO.1 is that in the compound wall constructed by the society for each of the members, respondent no.1 is not entitled to make change and cannot have the second gate in the compound wall. However, the petitioner society has failed to show or place any material before the learned Board of Nominees any material so as to establish that the member of the society is not entitled to put up the second gate in the compound wall. In fact, respondent no.1 has averred in the interim application Page 3 of 4 HC-NIC Page 3 of 4 Created On Thu Aug 20 01:04:11 IST 2015 C/SCA/13184/2015 ORDER that other six members have put up such second gate in their compound walls. To such assertions, there is no denial made by the petitioner society before the learned Board of Nominees. Be that as it may, when the respondent No.1 is not alleged to have made any illegal construction and when putting second gate by the respondent No. 1 in his compound wall, whether permissible or not, could be examined when the suit is decided, the Court finds that the learned Board of Nominees has not committed any error in presently protecting the respondent No.1 by interim injunction. When the learned Board of Nominees has exercised its discretion in passing the impugned order, this Court would not like to interfere with such discretionary order in exercise of the powers under Article 226/227 of the Constitution of India. Hence the petition is rejected.
Sd/-
(C.L.SONI, J.) anvyas Page 4 of 4 HC-NIC Page 4 of 4 Created On Thu Aug 20 01:04:11 IST 2015