Shree Hari Cooperative Housing ... vs State Of Gujarat
2021 Latest Caselaw 17831 Guj

     C/SCA/23299/2019                                   ORDER DATED: 29/11/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 23299 of 2019
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           SHREE HARI COOPERATIVE HOUSING SOCIETY LTD.
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR RASHESH RINDANI WITH MR SHIRISH H GOHIL(3253) for the
Petitioner(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1
MR D V KANSARA(7498) for the Respondent(s) No. 10,6,7,8,9
MR ASIT B JOSHI(2567) for the Respondent(s) No. 10,6,7,8,9
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 11
NOTICE SERVED(4) for the Respondent(s) No. 1,11.1,11.2,2,3,4,5
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 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                  Date : 29/11/2021
                                   ORAL ORDER

Heard learned advocate Mr.Rashesh Rindani assisted by learned advocate Mr.Shirish H. Gohil for the petitioner, learned Assistant Government Pleader Mr.Kurven Desai for the respondent No.1 and learned advocate Mr.Asit B. Joshi for the respondent Nos.6 to 10.

1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :

"(A) YOUR LORDSHIPS may be pleased to admit and allow this petition.

(B) YOUR LORDSHIPS may be pleased to hold and declare that land admeasuring 4047.83 square meters of survey no 162 situated atMoje Movdi, Tal & District : Rajkot is a common plot of the petitioner society.

(C) YOUR LORDSHIPS may be pleased to hold and declared that the action of respondents in selling the common plot admeasuring 4047.83 square meters of survey no 162 situated atMoje Movdi, Tal & District : Rajkot is

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illegal, unconstitutional and thus null and void in the eyes of law.

(E) YOUR LORDSHIPS may be pleased to direct the revenue authorities in mutating any entry with regard to any sale transaction for land admeasuring 4047.83 square meters of survey no 162 situated at Moje Movdi, Tal & District : Rajkot till pending and final disposal of this petition.

(E) YOUR LORDSHIPS may be pleased to pass such other and further relief in favour of the petitioner, as deemed just and proper, in the facts and circumstances of the case."

2. At the outset, it is to be noted that the petitioner has described itself as under :

"Shree Hari Cooperative Housing Society Ltd.

Through its promoter and member Ranjitsing Harisinh Parmar Age: 77 years, Occupation:Business 12, Bhaktinagar, Station Road, RAJKOT."

3. On going through the documents produced on record, the petitioner though titled as "Shree Hari Cooperative Housing Society Ltd.", is not registered Co-operative Housing Society Limited but it is a proposed Co-Operative Housing Society Limited.

4.1. Learned advocate Mr.Rindani in reply to the query raised by the Court with regard to maintainability of the petition submitted that under Article 226 the Court has wide power to entertain any petition filed by anybody though it

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may have been stated wrongly as a petitioner in the cause title describing it as a registered Co- operative Housing Society Limited though the petitioner is a proposed Society, the Court is required to entertain such petition in the interest of justice.

4.2. It was submitted that in the cause title it is mentioned that the petitioner Society has filed this petition through its promoter and member therefore disclosing in the cause title that the petitioner Society is a proposed Co- operative Housing Society since 1980 is not necessary.

4.3. Learned advocate Mr.Rindani appearing for the petitioner further submitted that in the memo of the petition facts are disclosed that the petitioner Society is a proposed Society and by way of an agreement for sale entered into on March, 1980, land admeasuring 12 Acre and 1 Guntha of late Kanjibhai Meghjibhai Patel represented in this petition by legal heirs respondent Nos.11.1 and 11.2 was purchased by such proposed Co-operative Society in view of the prevalent provisions of the Urban Land Ceiling and Regulations Act, 1976 (for short 'the ULC Act') at the relevant time.

4.4. It was submitted that after entering into agreement for sale between the petitioner Society

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and late Kanjibhai Meghajibhai Patel as owners and his brother Govind Meghajibhai Patel, Hansraj Meghajibhai Patel and mother Gangaben Meghajibhai Patel signed as confirming parties and thereafter, the original owner requested the authorities to approve the lay out plan which was duly sanctioned in the year 1980 and as per the lay out plan, so prepared, the land was divided into 190 residential plots whereby the net plot area was 32602.87 square meters and the common area was 4493.85 square meters. It was pointed out that thereafter, late Kanjibhai Meghajibhai Patel also executed a power of attorney along with his brother and mother in March, 1981 for necessary permission to be obtained under the provisions of the ULC Act.

4.5. Reference was also made to the various litigations which were initiated under the provisions of the ULC Act which ultimately culminated into abatement of such proceedings in view of the repeal of the ULC Act as the matter remain pending before the authority.

4.5. Learned advocate Mr.Rindani submitted that after abatement of the proceedings under the ULC Act, the respondent No.11 who had already sold the land to the petitioner Society started interfering with the land earmarked as common plot. A Civil Suit was also filed by late Kanjibhai Megajibhai Patel being Civil Suit

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No.1401 of 2000 before the Civil Judge (Senior Division) with a prayer to restrain the petitioner from utilizing the open parcel of land for any other purpose other than mentioned in the lay out plan. The common plot was again sold to the respondent No.5 in the year 2006 behind the back of the petitioner and, revenue entry was also passed and revenue proceedings are going on with the Revenue Authorities. It was also submitted that thereafter, respondent No.5 sold the common plot to respondent Nos.6 to 10 in the year 2009.

4.6. It was therefore submitted by learned advocate Mr.Rindani that the respondent could not have entered into any transactions with regard to the common land which was purchased by the proposed Co-operative Housing Society.

4.7. Learned advocate Mr.Rindani also relied upon the Additional Affidavit filed on behalf of the petitioner to submit that at the relevant point of time, land was forming part and parcel of the ULC Act and therefore, any land owner who possess excess land would be declared surplus and if the original land owners intended to sale the excess vacant land for construction of the Housing Society for weaker section under Section 21 of the ULC Act, such land was exempted from being declared as excess under the provisions of the ULC Act. It was therefore submitted that the

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original owners have entered into agreement for sale in the year 1980 relying upon the notification dated 25th October, 1979 of the respondent No.1-State Government issued to encourage the people at large and for betterment of people at middle class to own their small dwelling houses.

4.8. It was submitted that accordingly, the land for which the agreement for sale was entered into in the year 1980 was exempted under Section 20 of the ULC Act. Learned advocate Mr.Rindani further relied upon the orders passed by this Court on 12.08.1996 in Letters Patent Appeal No.654 of 1995 in Special Civil Application No.1783 of 1983 whereby, this Court quashed and set aside the order passed by the competent authority by remanding the matter back to the authority for considering it a fresh.

4.9. It was further submitted that by order dated 12.08.1996 passed by the Division Bench in Letters Patent Appeal No.654 of 1995 in Special Civil Application No.1783 of 1983, the appeal filed by the original owner was allowed in view of the decision of the Apex Court in case of T. R.Thandur vs. Union of India1 and the order dated 6th August, 1993 passed by the learned Single Judge was set aside and the matter was remanded back to the learned single judge to dispose of

1 1996 1 GLH 771

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the same in accordance with the law.

4.10. It was therefore submitted that when the ULC Act was repealed, the matter was pending and therefore the same was abated.

4.11. Learned advocate Mr.Rindani also referred to Section 125(A) of the Chapter IX-A of the ULC Act to submit that the land in question was covered by the repeal provisions of the Act. Reliance was also placed on the Government Resolution dated 17th August, 2017 wherein, the regularization of the transactions which have been taken place during the subsistence of the ULC Act is provided.

4.12. It was therefore submitted that the petitioner has already made a proposal for regularization of the transactions of the sale entered into by the proposed Society in the year 1980.

5.1. On the other hand, learned advocate Mr.Asit B. Joshi appearing for the respondent Nos.6 to 10 raised a preliminary objection that the petitioner could not have filed this petition because petitioner is an unregistered Society and it is not a juridical person and the petition filed by the unregistered Society is not maintainable in the eye of the law as per the settled position of law as held by this Court in

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case of Laxminagar Co-operative Housing Society V/s. Mamlatdar and Another2 wherein it is held that the unregistered Society cannot file a Writ Petition in respect of legal rights of such Society/Association for the alleged breach of the fundamental right.

5.2. It was also submitted that the petitioner Society who has projected itself as an registered Society though it is a proposed Society, has no fundamental right under any Act/Rules and therefore, no benefit of legal amenities and other provisions of Act/Rules can be claimed by such unregistered proposed Society as such Society is even not competent to file Suit.

5.3. It was also submitted that on this ground only the petition is required to be dismissed. It was also pointed out that on merits also the petitioner has no case.

6. Having heard the learned advocates for the respective parties and having gone through the documents on record, it appears that the petitioner Society has though represented itself as a registered society, is admittedly a proposed Society. Therefore, on this limited ground only, without entering into merits of the matter, in view of the decision of this Court in case of Laxminagar Co-operative Housing Society (Supra) wherein, it is held that an unregistered Co-

2 2005 3 GLR 2083

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operative Society is not a legal entity and cannot enforce an agreement to purchase a land, and when an unregistered Co-operative Society is also not entitled to invoke the violation of fundamental right, if any, under Article 226 of the Constitution of India, the petition is dismissed.

8. The relevant observations made by this Court in the aforesaid judgment are as under :

"6. Heard the learned advocates appearing for the parties. It is an admitted position that at the relevant time when the land in question came to be sold by Ambalal Harjivandas it was with the Shri Laxminagar Cooperative Housing Society (Proposed), Kalol. As held by this Court in the case of Ramji Mandir Narsinhji & Ors. Vs. Narsinh Nagar Alias Tekri Co.op Housing Society Ltd & Ors.,- reported in 1979 GLR Page 801 in as well as in the case of Jayantilal Hansraj Shah and Others Vs. Hemakuwarben Dolatraj Dave and others, reported in 1996(3)GLR 522 and the decision in the case of Shivalaya Cooperative Housing Soicety vs. Shantaben T. Patel, reported in 2002(1) GLR Page 426, the propsed Cooperative Housing Society not being duly registered as a Cooperative Society cannot enforce a contract in favour of an unregistered Cooperative Society and that unregistered Co-operative Society cannot enter into contract and that suit itself is not maintainable as society itself is not in existence in the eye of law and that the contract entered into by proposed/unregistered Cooperative Society is not a valid contract in the eye of law. The Judgment of this Court in the case of Ramji Mandir Narsinhji & Others (Supra) is confirmed by the Hon'ble Supreme Court of India as reported in 2002(1) GLH 290 by holding that an unregistered cooperative society cannot enter into a contract. Under the circumstances, the transaction, i.e., registered Sale Deed itself dated 12.2.1982 entered into between the heirs of Ambalal and Laxminagar Cooperative Housing Society (Proposed) itself was a nullity which is between the heirs of Ambalal and a non-existent entity as the Proposed Society which is registered was not a legal entity and not in existence unless it is registered. Thus, the submission on behalf of the petitioner society

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that by subsequent registration of the Cooperative Society the sale transaction dated 12.2.1982 cannot be declared to be a nullity also cannot be accepted."

9. In the facts of the present case, admittedly the petition is filed by the proposed Co- operative Housing Society which cannot be said to be a legal entity so as to invoke the fundamental rights under Article 226 of the Constitution of India. Moreover, the prayers made by the petitioner Society are in nature of claiming Civil Rights of any litigant who is otherwise entitled to invoke the jurisdiction of the Civil Court. As the petitioner is an unregistered Society, no Civil Suit can be filed by it and therefore, the unregistered proposed Co-operative Housing Society cannot invoke the extra-ordinary jurisdiction under Article 226 of the Constitution of India. The submissions made by learned advocate Mr.Rindani that as this Court has wide powers under Article 226 of the Constitution of India, the petition can be entertained filed by any unregistered Society or Association of person in not tenable and is rejected.

10. In view of the above, the petition fails and is accordingly dismissed. Notice is discharged with a cost of Rs.5,000/- to be deposited with the Gujarat State Legal Service Authority within a period of four weeks from today.

(BHARGAV D. KARIA, J) PALAK