Chandraba Gumansinh Vaghela vs Shilpaben Mayankbhai Parikh
2022 Latest Caselaw 1228 Guj

    C/SCA/18194/2021                                     ORDER DATED: 04/02/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 18194 of 2021
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 18779 of 2021
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                       CHANDRABA GUMANSINH VAGHELA
                                   Versus
                        SHILPABEN MAYANKBHAI PARIKH
==========================================================
Appearance:
MR HET N SHAH(11211) for the Petitioner(s) No. 1,2,3,4,5
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3,4,5(SCA
No.18194/2021)
MR HJ KARATHIYA for the Petitioner(s) (SCA No.18779/2021)
for the Respondent(s) No. 2,3
MR Y.N. RAVANTI FOR MR VIVEK V BHAMARE(6710) for the
Respondent(s) No. 1
MR VN BHAMARE(1122) for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                                Date : 04/02/2022
                                 ORAL ORDER

1. Heard learned advocate Mr.S.P. Majmudar for the petitioners in Special Civil Application No.18194/2021, learned advocate Mr. H.J. Karathiya for the petitioner in Special Civil Application No. 18779/2021 and learned advocate Mr. Y.N.Ravani for learned advocate Mr. Vivek Bhamare for the respondent through video conference.

2. Special Civil Application No.18194/2021 is filed by Rudrabaug Cooperative Housing Society Limited and four other members who were the original plaintiffs who preferred Lavad Suit No. 420/2012 before the Board of Nominees against respondent no.1. The petitioner of Special Civil

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Application No.18779/2021 is also one of the plaintiffs in the aforesaid Lavad Suit but was not joined as a party respondent by the appellant before the Tribunal.

3. The petitioner of Special Civil Application No.18779/2021 is the adjoining plot-holder of plot no.5A of the petitioner-5 society which is the subject matter of dispute.

4. The petitioners filed Lavad Suit No.420/2012 against respondent no.1 to prevent respondent no.1 to utilise plot no.5A of the petitioner no.5-society for running a hospital. The Board of Nominees passed the judgment and award dated 20th March, 2018 restraining the respondent no.1 from using plot no.5A as hospital.

5. Respondent no.1 therefore, preferred Appeal No.30/2019 before the Gujarat State Cooperative Tribunal (For short "the Tribunal")joining the petitioners of Special Civil Application No.18194/2021 as respondents on the ground that other plaintiffs before the Board of Nominees have filed a withdrawal purshis. However, the petitioner of Special Civil Application No. 18779/2021 did not sign the withdrawal purshis but he was not joined by respondent no.1 before the Tribunal as a necessary party.

6. The Tribunal after hearing the petitioners

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of Special Civil Application No.18194/2021 allowed Appeal No.30/2019 by quashing and setting aside the judgment and order passed by the Board of Nominees in Lavad Suit No. 420/2012 and vacated the interim relief granted by the Board of Nominees restraining respondent no.1 to use plot no.5A for running the hospital.

7. Learned advocate Mr. S.P. Majmudar for the petitioners of Special Civil Application No.18194/2021 submitted that as per the bye-laws of the society without the permission of the society, no member of petitioner no.5-society can use the plot for any purpose other than the residential purpose. It was submitted that petitioner no.5-society is a housing society and therefore, without the permission of the society, no member can use the plot for commercial purpose including the hospital as the plots of the society are meant only for residential purpose.

7.1) It was submitted that as respondent no.1 started construction of hospital on plot No.5A, the Lavad Suit No. 420/2012 was filed before the Board of Nominees by the members of the petitioner no.5-society.

7.2) It was submitted that the Board of Nominees after considering the evidence on record and after considering the admission on

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part of respondent no.1 that the construction made by respondent no.1 is to be used for the hospital purpose, rightly allowed the Lavad Suit by restraining respondent no.1 from using plot no. 5A for hospital purpose.

7.3) It was submitted that the Tribunal has committed an error by holding that the part prayers granted by the Board of Nominees could not have been granted as the petitioner-society has permitted the other members to use the plot no.11 for hospital purpose. It was pointed out that the Tribunal has ignored the fact that it was an admitted position by respondent no.1 that plot no. 5A was to be used for hospital purpose and therefore, the order passed by the Tribunal is contrary to the evidence on record.

7.4) Learned advocate Mr. Majmudar also pointed out that the Tribunal was also not right in holding that Lavad case was premature, more particularly, when there is no dispute that plot no.5A is to be used for hospital purpose other than residential purpose. It was therefore, submitted that the order of Tribunal is required to be quashed and set aside.

7.5) Learned advocate Mr. Majmudar submitted that after the impugned order was passed by the Tribunal, petitioner no.5-society in the meeting of the Committee held on 7th February, 2021 has

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rejected the application made by respondent no.1 to grant permission to use plot no.5A for the hospital purpose. It was submitted that copy of such resolution is available at page-287 of Special Civil Application No.18194/2021 produced by the petitioners along with the affidavit in rejoinder and according to the said resolution, the petitioner no.5-society has also resolved to take action against all other plot holders who are using the plots for commercial purpose other than the residential purpose.

8. Learned advocate Mr. H. J. Karathiya appearing for the petitioner in Special Civil Application No.18779/2021 submitted that the Tribunal without considering the fact that the petitioner was a plaintiff before the Board of Nominees has passed the impugned order without joining the petitioner as a necessary party. It was submitted that the petitioner is holding the plot no.5B which is adjoining to plot no.5A and the petitioner is directly affected person and therefore, the order of the Tribunal is required to be quashed and set aside only on that count. He further adopted the submissions made by learned advocate Mr. Majmudar for assailing the order passed by the Tribunal.

9. On the other hand, learned advocate Mr. Y.N. Ravani appearing with learned advocate Mr. Vivek Bhamre for respondent no.1 submitted that the

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Tribunal after considering the oral as well as documentary evidence on record has rightly quashed and set aside the order of Board of Nominees in Lavad Case No. 420/2012. It was submitted that the chairman of petitioner no.5- society has issued the certificate on 6th February, 2011 permitting the respondent no.1 to carry out the construction as per the sanctioned plan by the Ahmedabad Municipal Corporation(For short "AMC"). It was submitted that AMC has sanctioned the plan for the hospital and accordingly respondent no.1 has put construction on plot no.5A. It was submitted that when respondent no.1 purchased the plot no.5A, it was made clear by respondent no.1 from the beginning that plot is to be used for hospital purpose and it was made known to the petitioners about use of plot for hospital purpose.

9.1) It was further submitted that the Tribunal has rightly held that Lavad Case No.420/2012 filed by the members of petitioner no.5-society is a premature suit because when the application was made by respondent no.1 for permission to use the construction over the plot No. 5A for the hospital purpose as such permission was granted by petitioner no.5- society to the plot-holder of plot No.11 to use the same for running the Shivam hospital, during the pendency of such application, the members of petitioner no.5 society have preferred Lavad

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Case No. 420/2012. It was further submitted that the Tribunal has also rightly come to the conclusion that the petitioner no.5-society cannot have a discriminatory treatment qua respondent no.1 as permission is granted to other member to run the hospital in the petitioner-society.

9.2) It was further pointed out that the Tribunal has appreciated the facts emerging from the record that the society has not produced on record the bye-laws of the society to show that any member of the society is not permitted to use the plot for commercial purpose other than residential purpose and in such circumstances, the impugned order passed by the Tribunal is just and proper and no interference is required to be made while exercising jurisdiction under Article 227 of the Constitution of India.

9.3) Learned advocate Mr. Ravani further submitted that respondent no.1 has invested huge amount of more than Rs. 2 crores for purchase of plot no. 5A in the year 2011 and has also made construction as per the sanctioned plan by the AMC and has not been able to utilise the said plot since last more than 10 years which has caused serious hardship to respondent no.1.

10. Having heard the learned advocates for the respective parties and having considered the

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documents produced on record by both the sides, it appears that the Tribunal on appreciation of oral as well as documentary evidence has come to the conclusion that the Board of Nominees has committed an error in restraining the respondent no.1 from using the plot no. 5A for hospital purpose. More particularly, when the petitioner no.5-society has not taken any action against the other members who are using the plots for non residential purpose.

11. In view of the above findings arrived at by the Tribunal and more particularly, when the society has taken a decision subsequent to passing of the impugned order by the Tribunal, not to grant permission to the respondent no.1, this Court is not inclined to interfere in the impugned order of the Tribunal at this stage and the parties may take appropriate recourse under law in view of subsequent events which have taken place as pointed out by the petitioners with regard to rejection of the application made by respondent no.1 to grant permission to use plot no. 5A for hospital purpose.

12. Therefore, this Court is refraining from considering the issue as to whether respondent no.1 is entitled to use plot no. 5A for hospital purpose or not and the same is left open so as to be considered by appropriate forum in accordance with law. Both the petitioners as

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well as respondent no.1 are at liberty to raise all the contentions available in accordance with law, in the proceedings, if any, which may be initiated by either of the parties.

13. In such circumstances, the Special Civil Application No. 18194/2021 is not entertained at this stage and is accordingly disposed of with the aforesaid clarification.

14. In view of above order, contentions raised in Special Civil Application No. 18779/2021 with regard to non-joinder of party before the Tribunal being academic are not addressed by this Court and the same is also disposed of.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR