1. This petition has been preferred against the order passed by the Gujarat State Co-operative Tribunal, Ahmedabad (for short, "the Tribunal") in Revision Application No.139/2011 dated 21,04.2012 whereby, the said application was dismissed and the order passed by the Board of Nominees below Exhibits - 5 & 43 in Lavad Case No.92/2011 dated 14.09.2011 was confirmed.
2. The facts in brief are that the petitioner herein had purchased the property bearing Block No.34 situated in respondent no.1-Society from respondent no.2 by registered sale deed dated 27.01.2010. Subsequently, the petitioner applied and was granted permission by Baroda Municipal Corporation to construct a new building in place of the existing building. However, in January 2011, the respondent no.1-Society filed Lavad Case No.92/2011 before the Board of Nominees against the above and also filed application Exhibit-5 for interim injunction. The petitioner filed written statement at Exhibit-17 denying all the allegations. He also filed application Exhibit-43 raising the issue of jurisdiction of the Board of Nominees to entertain the suit. By common order dated 14.09.2011, the Board of Nominees allowed application Exhibit-5 and rejected application Exhibit-43 and also imposed cost of Rs.10,000/- upon the petitioner.
3. Being aggrieved by the above order, the petitioner preferred Revision Application No.139/2011 before the Tribunal, which came to be rejected, by impugned order dated 21.04.2012. Hence, this petition.
4. Mr.
Shirish Joshi learned counsel for the petitioner submitted that the Tribunal has failed to appreciate the matter in its proper perspective inasmuch as it has mainly relied upon the Bye-laws of respondent no.1-Society and not the plaint. It was submitted that the Bye-laws of the Society do not provide for membership of the Society only to Christians or of obtaining permission before raising construction or of restriction to carry out any commercial construction. However, the Tribunal has extracted the above issues from the Schedules, which do not form part of the Bye-laws.
4.1 Attention has been drawn to Bye-law No.55-A, which provides that unless the Schedule is signed by the members, the same will not be binding to the members. It was submitted that since the Schedules have not been signed by respondent no.2 herein, it shall not have a binding effect. It is also submitted that the order passed by the Board of Nominees is without jurisdiction.
5. Heard learned counsel Mr. Joshi. The impugned common order dated 14.09.2011 has been passed below applications Exhibit - 5 & 43 preferred in Lavad Case No.92/2011, which is pending. Prima facie, it appears that the Board of Nominees has not adjudicated the issue regarding applicability of Bye-law No.55-A on the facts of the present case, while deciding the two applications. It also appears to have neglected the issue whether the right of the petitioner flows from the sale deed or not. Though, I agree with the view taken by the Board of Nominees, which has been affirmed by the Tribunal, the fact remains that the Suit in question came to be filed only after the petitioner had raised some construction and not prior thereto. The Lavad Case is still pending and therefore, it would be appropriate that the same is decided first since any observations on merits that may be made by this Court may prejudicially affect the rights / interests of either party in the suit proceedings.
6. In view of the above, the Board of Nominees is required to adjudicate the issues, referred to in the foregoing paragraph, since it goes to the root of the matter. The petitioner shall be at liberty to request the Board of Nominees to dispose off the suit expeditiously by way of an application and if any such request is received, the Board of Nominees shall try to dispose of the suit in question as expeditiously as possible. With the above observation, the petition stands disposed of.
[K.
S. JHAVERI, J.] Pravin/* Top