Gujarat High Court
Shantaben C Patel & 15 vs Gujarat State Co-Op. Tribunal & 2 on 19 June, 2015
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/9796/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9796 of 2014
================================================================
SHANTABEN C PATEL & 15....Petitioner(s)
Versus
GUJARAT STATE CO-OP. TRIBUNAL & 2....Respondent(s)
================================================================
Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 - 16
MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 3
================================================================
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 19/06/2015
ORAL ORDER
This petition is filed by about 16 petitioners, who claim to be members of the respondent No.2 - society.
2. The petitioners have challenged the order dated 24.4.2014 passed by learned Tribunal in revision application No.23 of 2013 whereby the learned Tribunal accepted and allowed the revision application and set aside the order dated 15.2.2011 passed by Board of Nominees below Exh.59 in Arbitration (Lavad) Suit No.1280 of Page 1 C/SCA/9796/2014 ORDER 2004.
3. The facts leading to submission of present petition, which emerge from the details mentioned in the petition, can be summarized thus:-
3.1 It appears that the respondent No.3 herein is one of the promoters of the respondent No.2 -
society. According to the petitioners' allegation, the respondent No.3 presented himself as the President of the society and initiated steps to sell and dispose off certain plots / lands of the society.
3.2 The petitioners claim that the plots / lands which the said respondent No.3 sought to dispose off are, actually, allotted to them by the respondent - society and that they hold share certificates (issued in their favour by the society) and that the said respondent No.3 initiated steps to sell off and dispose off the Page 2 C/SCA/9796/2014 ORDER property which, actually, are of petitioners' ownership.
3.3 The petitioners have claimed that they came to know about the attempts of the respondent No.3 which a public advertisement / notice appeared in a Gujarati newspaper (Gujarat Samachar, in its edition of 27.12.2005).
3.4 It appears that after the said advertisement was published, the respondent society filed arbitration suit No.1280 of 2005 and prayed, inter alia, a restrain order against present respondent No.3 restraining him from selling, transferring and alienating the said properties (i.e. the plots, which according to the petitioners are allotted to them). 3.5 It is further claimed by the petitioners that, initially, the Board of Nominees granted ad-interim relief however subsequently, after Page 3 C/SCA/9796/2014 ORDER hearing the concerned parties / defendants in the arbitration suit, the Board rejected the application (Exh.57) vide order dated 20.10.2005. 3.6 It appears that aggrieved by the said order dated 20.10.2005, the respondent No.2 society preferred revision application before the learned Tribunal. The application was registered as revision application No.322 of 2006. 3.7 It further appears that after hearing the concerned parties, learned Tribunal allowed the revision application vide order dated 29.5.2010. It appears that, subsequently, the respondent No.3 preferred review application, which also came to be rejected by the learned Tribunal. 3.8 At that stage, the respondent No.3 herein preferred a writ petition being Special Civil Application No.11010 of 2010.
It appears that in the said petition, the Page 4 C/SCA/9796/2014 ORDER Court granted liberty to the petitioner to move the Board of Nominees with request to expedite the hearing of the arbitration suit. According to the petitioners, any stay or any other interim relief was not granted by the Court. 3.9 It has also emerged from the record that it was around that time and at that stage, that the petitioners herein preferred an application (Exh.59) before the Board of Nominees and requested that they may be impleaded as party defendants to the suit proceedings.
One of the premises on which request for permission to join the proceedings was made is the assertion and the claim that they are personally interested in, and will be directly affected by the outcome of, the said arbitration suit.
The applicants also claimed in the application that they are owners of the lands in question (i.e. the lands which the respondent Page 5 C/SCA/9796/2014 ORDER No.3 attempted to sell off by virtue of the public notice) and that therefore, they are directly connected with the issue and subject matter of the suit.
It is pertinent that the society i.e. the plaintiff in the suit did not object the request. The plaintiff society rather supported the applicants - petitioners and their request. 3.10 However, it was present respondent No.3, who filed reply and raised diverse objections against the application and opposed the relief prayed for in the application and also opposed its maintainability.
After considering the application and objections, the Board of Nominees allowed the application and permitted the applicants to join the proceedings vide order dated 15.2.2011.
Feeling aggrieved by the said order, the respondent No.3 filed revision application No.23 of 2011.
Page 6 C/SCA/9796/2014 ORDER 3.11 The petitioners have claimed that in the said revision application, the learned Tribunal passed order with mutual consent of the parties directing that the proceedings of Lavad Suit may be expedited and the order impleading the petitioners as party defendants in the suit was not disturbed.
3.12 It appears that the respondent No.3, thereafter, filed review application on the allegation that he had not instructed his advocate to give such consent and that therefore, the order may be reviewed and recalled.
It appears that the learned Tribunal allowed the said review application and revived the revision application.
Thereafter, the revision application was again heard by the learned Tribunal and thereafter, learned Tribunal passed order dated 24.4.2014 i.e. the impugned order whereby the Page 7 C/SCA/9796/2014 ORDER learned Tribunal has set aside the order dated 15.2.2011 passed by the Board of Nominees below Exh.59 in the said suit proceedings.
Aggrieved by the said order by the learned Tribunal, the applicants of application Exh.59 - petitioners herein have taken out present petition.
4. Learned advocate for the petitioners submitted that the petitioners herein are necessary and proper party in the suit proceedings and in any case, they are directly interested in the proceedings as well as outcome of the suit proceedings and that therefore, the order passed below Exh.59 by the Board of Nominees was just and proper and the learned Tribunal ought not set aside the same. Learned advocate for the petitioner also submitted that the petitioners apprehend that if the petitioners are not allowed to join the proceedings, then, their interest may not be properly and Page 8 C/SCA/9796/2014 ORDER effectively protected. Learned advocate for the petitioners submitted that when the plots are allotted to the petitioners, the respondent No.3 is not justified in disposing of the said properties. It is further claimed by the petitioners that after completion of his tenure, now the respondent No.3 is not even Chairman or Secretary or any officer bearer of the society and he is simply a member of the society as the petitioners and that he has no authority or locus to take any action with regard to the plots in question and the attempt to dispose off the plots allotted to the petitioners is unjustified and that the petitioners are directly interested in the proceedings and will be affected by the outcome of the suit and therefore, Board of Nominees was right and justified in accepting and allowing the request of the petitioners. It is further submitted that learned Tribunal has committed serious error in exercising revisional jurisdiction and in interfering with the order Page 9 C/SCA/9796/2014 ORDER passed by the Board of Nominees below Exh.59.
5. Learned advocate for the respondent No.3 opposed the allegation and claim of the petitioners that the plots in question are allotted to the petitioners and submitted that the said version is based on false and fabricated documents. Learned advocate for the respondent No.3 further claimed that there are several serious disputes with regard to the claim of the petitioners that they are allottees of the plots in question and that therefore, the petitioners do not have any right and they do not have any justification to join the proceedings. It is further submitted that when the suit is filed by the society, the members are not required in the suit proceedings and they need not be party defendants.
6. I have heard learned advocate for the petitioners and learned advocate for the Page 10 C/SCA/9796/2014 ORDER respondent No.3, who appeared on caveat. 6.1 It is pertinent to mention at the outset that the learned advocate for the respondent No.3 could not dispute the fact that the respondent No.3 had issued public notice / advertisement to dispose off the plots which, according to the petitioners claim are allotted to them. Learned advocate for the respondent No.3 submitted that the learned Tribunal has not committed any error in setting aside the order passed by the Board of Nominees.
7. Before proceeding further, it is relevant to mention that neither before Board of Nominees nor before learned Tribunal, present respondent No.2 society (i.e. plaintiff in the suit in question) had raised any objection against the request of the petitioners for permission to join the proceedings.
Page 11 C/SCA/9796/2014 ORDER
8. It is also pertinent to note that the respondent No.2 society, who is the plaintiff of the suit in question, did not challenge the order passed by Board of Nominees
9. The plaintiff in a suit is dominus litis and the plaintiff can, depending on the relief claimed in the suit, select the defendant. In this case, the plaintiff society has, at any stage, not raised any objection against present petitioners' request. Even in this petition also the said request is not opposed by the plaintiff society.
10. Actually, in its order, Board of Nominees has recorded (in paragraph No.5 at internal page No.2 of the order, i.e. Page-93 of present petition) that the plots in question are allotted to the petitioners. The respondent No.2 - plaintiff - society also supported the application filed by the petitioners and in fact, the respondent No.2 Page 12 C/SCA/9796/2014 ORDER
- plaintiff - society took a specific stand before the Board of Nominees that the plaintiffs presence is relevant and necessary for proper adjudication of the suit.
11. It is pertinent that it is in teeth of such fact situation and stand of the plaintiff, namely, petitioners claim that they are allottees of the plots in question (i.e. the plots which the respondent No.3 intended to dispose off) and the fact that the respondent No.2 society itself supported the claim of the applicants - petitioners and also supported the request of the applicants to permit them to join the proceedings and also submitted before Board of Nominees that the said persons are necessary parties for proper and effective adjudication of the suit, that present respondent No.3 (i.e. a defendant in the suit filed by the respondent No.2 society) raised the objection before Board of Nominees and when Board of Nominees granted the application, Page 13 C/SCA/9796/2014 ORDER carried the order before learned Tribunal.
12. Unfortunately, learned Tribunal failed to consider and appreciate the fact that it is the society who has filed the suit and the respondent No.3 is not the plaintiff. Learned Tribunal also failed to appreciate that the society being the plaintiff is dominus litis and it can select and implead the defendants, depending on and in light of the subject matter of the suit and relief prayed for in the suit, and when the plaintiff society stipulated that the said applicants are necessary and proper party then there was no justification to interfere with the order passed by the Board of Nominees and that too, at the instance and behest of a defendant in the suit.
13. Besides this, another relevant aspect is that even if the claims of the respondent No.3 were to be believed and assumed that it is on the strength of forged documents that the petitioners Page 14 C/SCA/9796/2014 ORDER claim that the plots are allotted to them, then also, the said explanation or defence of the respondent No.3 against the petitioners' application before Board of Nominees, itself would give rise to a dispute / issue which can not be effectively adjudicated and decided in absence of the petitioners - applicants and the said allegation by the respondent No.3 would support and justify the claim of the petitioners that it is only they who can effectively defend such allegations and should get opportunity to defend the allegations by respondent No.3.
When the respondent No.3, in his defence, raised the claim that the said plots are not allotted to the applicants, then, the petitioners claim that they are necessary party and they ought to be joined the proceedings so that they can effectively protect their interest, cannot be denied. However, learned Tribunal failed to appreciate these aspects.
Page 15 C/SCA/9796/2014 ORDER
14. In view of the fact that the plots which were sought to be disposed off by the respondent No.3 are, according to the claim by the applicants, allotted to them and present respondent No.3 sought to dispose off such plots and when the said action of the respondent No.3 is the subject matter of the suit proceedings, then, it cannot be said that the said applicants are not necessary and proper party. Even if for the sake of considering the objection of respondent No.3 such situation is assumed, then also, it cannot be denied that the applicants i.e. present petitioners are interested party in the proceedings and they would be directly affected by the outcome of the suit proceedings.
Even otherwise, their presence would assist the Board of Nominees to effectively adjudicate and decide the suit and that therefore, the Board of Nominees was right and justified in allowing application and the learned Tribunal had no justification to interfere with and set aside Page 16 C/SCA/9796/2014 ORDER such discretionary order passed by the Board of Nominees in exercise of its jurisdiction.
The order passed by the Board of Nominees cannot be said to be without inherent jurisdiction and / or arbitrary or unreasonable and that therefore, learned Tribunal was not justified in interfering with the said order.
The learned Tribunal has committed serious error in exercising revisional jurisdiction by interfering with the order passed below Exh.59 passed by the Board of Nominees and in setting aside the said order.
14.1 Therefore, the impugned order dated 24.4.2015 passed by the learned Tribunal deserves to be set aside.
14.2 The petition is accepted and the impugned order is set aside and the order dated 15.2.2011 below Exh.59 passed by Board of Nominees is restored.
Page 17 C/SCA/9796/2014 ORDER 14.3 All rights and contentions of the plaintiff society as well as the respondent No.3 and present petitioners are kept open and it will be open to the concerned parties to raise all such contentions as may be available in law. 14.4 The Board of Nominees will grant reasonable time to present petitioners to file written statement and thereafter, expedite the suit proceedings.
Present petition accordingly stands disposed of.
(K.M.THAKER, J.) kdc Page 18