Gujarat High Court
Lh Of Decd. Lilawatiben Dhirajlal Shah vs The Sugam Cooperative Housing Society ... on 2 February, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/104/2024 ORDER DATED: 02/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 104 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 7590 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/LETTERS PATENT APPEAL NO. 104 of 2024
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LH OF DECD. LILAWATIBEN DHIRAJLAL SHAH
Versus
THE SUGAM COOPERATIVE HOUSING SOCIETY LTD.
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Appearance:
MR MASOOM K SHAH(6516) for the Appellant(s) No. 1,1.1,2
for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 02/02/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
1. The challenge in the instant appeal is to the judgment
and order dated 16.10.2023 whereby while disposing of the
writ petition filed by the Society, challenging the order dated
18.07.2017 passed by the Board of Nominee, Surat in Lavad
Suit No.91 of 2016 and the order dated 09.03.2023 passed by
the Cooperative Tribunal, the Writ Court has issued the
following directions;
"10. In view of that the following directions are issued;
(i) As agreed by both the learned advocates Mr. Joshi and
Mr. Mehta, the Board of Nominees is directed to hear and
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decide the Lavad Suit No.91 of 2016 within a period of six
months from today, however, latest by 31.03.2024.
(ii) The private - respondents are directed deposit a sum
of Rs.1.5 Lakhs at the rate of Rs.25,000/- per month for a
period of six months, with the petitioner - Society for
deploying persons to look after problem of parking faced
by the petitioner - Society.
(iii) The Board of Nominees is directed to hear and decide
the matter finally before 31.03.2024 on it's own merits,
on the basis of material available on record and without
being influence by that fact that this Court has not
interfered with the interim orders passed by the Board of
Nominees and the Co-operative Tribunal.
(iv) It is clarified that disposal of this petition or non
interference with the interim orders by this Court would
not influence the final outcome before the Board of
Nominees and the Board of Nominees is directed to
decide the main matter i.e. Lavad Suit No.91 of 2016 on
it's own merits. Rights and contentions of both the
parties are open. In event of non deposit of the amount of
Rs.1.5 Lakhs be deposited before 15.11.2023, the
matters shall revived automatically as the petition being
disposed of with a direction to Board of Nominees to
decide the Lavad Suit No.91 of 2016 finally, however,
even after the respondent's suggestion is considered by
the Court and if the respondent does not deposit the
amount of 1.5 Lakhs as directed above, the petitioner is
at liberty to file appropriate application for compliance of
the order / revival of the petition. The aforesaid amount
of Rs.1.5 Lakhs that the private respondent shall deposit
would be non- refundable and will be utilized by the
society for managing the problem of parking allegedly
caused by the private-respondents."
2. While issuing the said directions, it was noted by the
learned Single Judge that the petitioner is a Cooperative
Housing Society which was meant for residential purposes
only. The appellants herein, however, started carrying out
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commercial activities in the form of running a hospital in the
Society meant for residential purposes, as a result, the Society
filed a Lavad Suit No.91 of 2016, seeking for stoppage of
commercial activities. The fact noted by the learned Single
Judge that the appellants herein are running a hospital over
the property in question which is within the jurisdiction of the
Cooperative Society, constituted for residential purposes only
is undisputed. It has further been noted that on account of the
commercial activities carrying on by the appellants, the
members of the Society are facing a parking problem. Some
payment is required to be given to the petitioner to address
the parking problem which is the main issue arising in the
matter. An offer was given by the Court to pay some fixed
monthly amount to the Society who in turn will engage
someone to look after the problem relating to parking faced by
the Society. The offer was not accepted by the appellants to
the satisfaction of the Writ Court. In the result, the Writ Court
has given directions that the appellants/respondents are
directed to deposit a sum of Rs.1.5 Lakh at the rate of
Rs.25,000/- per month towards parking fee for a period of six
months, so that the petitioner Society may deploy someone to
look after the problem of parking faced by the Society.
3. This direction contained in the judgment and order dated
16.10.2023 is sought to be assailed before us with the
submissions by the learned counsel for the appellants that
there was no provision for the parking fee and no such
direction could have been given by the learned Single Judge,
which has not visualized the situation where the Society may
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not succeed in the Lavad Suit. The contention is that the
direction contained in the judgment impugned of deposit of
Rs.1.5 Lakh towards parking fee and making it non-refundable
to the appellants is contrary to the position on record when no
parking fee can be realized by the Society. It was emphasized
that, in case, the appellants succeeds in the Lavad Suit, he
would not get the money back which is directed to be
deposited under the judgment and order dated 16.10.2023,
and this fact itself is causing prejudice to the appellants.
4. Dealing with the above contentions, suffice it to say that
there is no dispute about the fact that the appellants herein is
using common areas provided by the Society for the use of its
members and the area which is being used by the appellants
for the purposes of parking of vehicles for the visitors to the
hospital is the area belonging to the Society. For the use of
common area, if some fixed amount is directed to be paid to
the Society, we see no wrong in it. Since the direction has
been issued to the Board of Nominee to decide the Lavad Suit
within a period of six months, the total amount computed for
six months towards parking fee came to Rs.1.5 Lakh which is
yet to be deposited.
5. In the additional affidavit filed today, the appellants
herein has given a proposal that he is willing to deposit Rs.1.5
Lakh with the Registry and seek to enter into mediation to
arrive at an out of court settlement. A clause has, however,
been added to the said proposal in the said affidavit that, in
case, mediation fails, the appellants may be given liberty to
withdraw the deposited amount. We see no good reason to
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accept the desire of the appellants to make a conditional
deposit of the amount which has been directed by the learned
Single Judge to be paid for the usage of a common area of the
Society.
6. For the aforesaid, the additional affidavit filed by the
appellants herein is rejected.
7. For the above discussion, we do not find any good
ground to interfere with the judgment and order dated
16.10.2023. The appeal is accordingly, dismissed being devoid
of merits. It is, however, clarified that the Lavad Suit shall be
decided by the Board of Nominee independently without being
influenced by any of the observations made by the Writ Court
in the judgment impugned or the observations made herein
above.
8. In view of the order passed in the main matter, the
connected civil application for stay also does not survive and is
disposed of accordingly.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
VAHID
