Nayanbhai D. Swadia and Others vs State of Gujarat and Others

K.S. Jhaveri, J.—By way of present petition, the Petitioners have inter alia prayed for quashing and setting aside the impugned order dated 05th February 2005 passed by the Gujarat State Co-operative Tribunal in Revision Application No. 435 of 2004.

When present petition came up for admission hearing before this Court (Coram: K.M. Mehta, J.) on 04th July 2005, this Court passed the following order:

Nayanbhai D. Swadia and others, Petitioners, have filed this petition with a prayer that this Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the impugned order dated 5.2.2005 passed by the Gujarat State Co-operative Tribunal in Revision Application No. 435 of 2004 as being illegal.

Mr. Navin Pahwa, learned advocate for the Petitioners has invited my attention to the following facts:

2.1 The Petitioner society came to be registered on 31.10.1961 in the name of Shri Charotar Cooperative Housing Society bearing Registration No. 280. The society came to be bifurcated into two different societies on 18.7.2001 namely, Shree Charotar Co-operative Housing Society and Shree Charotar Park Co-operative Housing Society. A new registration issued by the District Registrar bearing Registration No. GH-20100/2001 dated 18.7.2001.

2.2 Accordingly the bye-laws of the society were framed and approved by the District Registrar under provisions of Gujarat Co-operative Societies Act and Rules framed thereunder.

2.3 Mr. Pahwa, learned advocate has relied upon the bye-laws No. 11(b)(1) which is on page 42 of the petition which prohibits the member that he is not entitled to use the property in question for commercial use, and if the member act contrary to the same, he will not be entitled to remain present as a member of the society. Mr. Pahwa, learned advocate has further stated that the Executive Committee of the society was also passed a resolution on 4.8.2004 rejecting the application of Respondent No. 3 as the bye-laws of the society does not permit the commercial use of the plot of the society. As the Respondent No. 3 started commercial construction, the society issued a notice on 26.8.2004 to the Respondent No. 3 objecting the commercial construction upon plot No. 4 without obtaining permission from the society. The Respondent No. 3 instead of giving reply to the notice issued by the society required the society to supply various documents and records, only with a view to delay the further action by the society. On other hand the Respondent No. 3 continued to make commercial construction on the plot.

2.4 Being aggrieved and dissatisfied with the same, the society filed Lavad Suit No. 1227 of 2004 along with Exh.5 application before the learned Board of Nominees seeking injunction against the making of commercial construction on Plot No. 4 by Respondent No. 3. The Board of Nominee by its order dated 8.11.2004 rejected the application below Exh.5 filed in Lavad Suit No. 1227 of 2004.

2.5 Being aggrieved and dissatisfied with the said order passed by the Board of Nominee below Exh.5, the society preferred revision application being Revision Application No. 435 of 2004 before the Gujarat Co-operative Tribunal, Ahmedabad. The tribunal rejected the revision application on 5.2.2005 filed on behalf of the society.

2.6 Mr. Pahwa, learned advocate has relied upon bye-laws of the society which I have referred and he has also relied upon the recent judgment of the Apex Court in the case of Zoroastrian Co-operative Housing Society Ltd. and Anr. v. District Registrar, Co-operative Societies (Urban) and Ors. reported in 2005 AIR SCW 2317, particularly paras 35, 36 and 37 on page 2344 and 2345.

2.7 It is his case that as per the judgment of the Hon''ble Supreme Court, the bye-laws is a contract and this freedom of contract cannot be curtailed by relying upon the fundamental right. In view of this judgment and in view of the bye-laws, the member could not started commercial construction which has been done by the Respondent No. 3 herein.

2.8 From the record it appears that the tribunal has relied upon the judgment of this Court in the case of Satyanarayan B. Sharma and Ors. v. A.L. Dineu and Anr. reported in 2004 (2) GLR 1055 (See: para 13 page 29 of paper book). Mr. Pahwa, learned advocate stated that in view of the recent judgment of the Hon''ble Apex Court, the reliance placed by the tribunal on this judgment of this Court may not help the Respondent No. 3 in this behalf.

In view of the same, Rule. Notice as to interim in terms of para 9(C) returnable on 11th July, 2005.

It is pertinent to note that this Court after taking into consideration the pros and cons of the matter has granted interim relief by way of a detailed order and the said interlocutory order has remained undisturbed till date. Even the same was confirmed till further orders by this Court vide order dated 09th March 2006. In view of the same, in my opinion, it would not be appropriate for this Court to disturb the said position prevailing since the year 2005 at this stage. The interest of justice would be met by disposing of the matter by suitable directions to the parties as well as the concerned Court/authority.

In view of aforesaid, the Board of Nominees at Vadodara is directed to dispose of Arbitration Suit No. 1227 of 2004 pending before it within a period of six months from today. The parties will be governed by the aforesaid interlocutory order dated 04th July 2005 rendered by this Court in present petition till final disposal of the said Arbitration Suit No. 1227 of 2004. It is hereby clarified that the Petitioners will be entitled to raise all the contentions raised in the present petition before the Board of Nominees. The petition stands disposed of accordingly. Rule is made absolute to the aforesaid extent with no order as to costs.