The short question involved in this petition under Article 227 of the Constitution of India is about jurisdiction of the Board of Nominees, which passed an order allowing the lavad Suit and directing to hand over possession to the Member and direction if any to be issued to the defendant society.
The petitioner herein filed Lavad Suit No.711 of 1977 against the resolution dated 26.01.1977 of the respondent No.1-society with a prayer to quash and set aside the resolution nos.6 and 7 which came to be decreed in favour of the petitioner herein and the respondent society was restrained from transferring possession of the above plots belonging to the petitioner to any other person, but refused to exercise powers to direct society to hand over possession on the ground of lack of jurisdiction.
Even before allowing the above Lavad Suit by an order dated 24.02.1977. Interim injunction was granted to the above effect, which was subject matter of the revision before the Tribunal and while remanding the case the Tribunal directed the Board of Nominees to decide the breach of injunction etc. at the time of finally deciding the Lavad Case. The Board of Nominees in its final order dated 17.06.1998, however, held that so far as bungalow Nos.9 and 13 are concerned, it will not be in the purview and jurisdiction of the Board of Nominees to direct the respondent society to hand over possession of the same and it was concluded that the respondent society was in breach of the order of injunction passed by the Board of Nominees at the time of considering the interim injunction application and for that appropriate proceedings be initiated.
Being aggrieved and dissatisfied by the above order of Board of Nominees, a revision application was preferred before the Gujarat Revenue Tribunal being Appeal No.444 of 1998 and after considering the submissions of the parties the Tribunal found that the order passed by the lavad court on 17.06.1998 deserved no interference. However, according to learned counsel for the petitioner herein the Tribunal failed to consider that very ground of appeal about jurisdiction of the lavad court passing order with regard to handing over the possession though raised was not decided at all.
Learned counsel for the private respondent is unable to dispute the above contention of the learned counsel for the petitioner.
Having heard learned counsel for the parties and perusing the record of the case, more particularly, memo of Appeal No.444 of 1998 filed by the appellant before the Cooperative Tribunal and the order passed therein clearly fortifies contentions of learned counsel for the petitioner that on the grounds mentioned in the appeal memo specific contentions were raised about failure on the part of Lavad Court to pass the order directing the society to hand over possession and submissions were canvassed to the effect that Lavad Court has jurisdiction to decide and also to pass necessary order if findings are in favour of the appellant about possession of the land in question. Even the order of the Tribunal impugned proceeds on the fact that the concerned Board of Nominees has passed the order on the basis of appreciation of facts before it, but no findings are given so far as the contentions raised about jurisdiction of the Lavad Court to direct the society to hand over possession of the plot in question.
In view of the above and in view of the undisputed facts, I am inclined to accept submissions of learned counsel for the petitioner to the extent that the order of Tribunal impugned in this petition is without recording finding on the above issue and therefore to that extent only the order impugned dated 31.07.2002 [Annexure-C] passed by the Gujarat State Co-operative Tribunal at Ahmedabad in appeal No.444 of 1998 is quashed without disturbing confirmationof findings qua the order of the Lavad Court which was subject matter of the Appeal before the Tribunal. The matter is accordingly remanded to the Tribunal to decide specifically the issue whether Lavad Court has jurisdiction to exercise powers declaring possession of the plot or the premise in question of a member of the society and if so to issue further directions to the society to hand over possession to the member.
This Special Civil Application is allowed to the aforesaid extent only. Rule is made absolute to the aforesaid extent only. However, there shall be no order as to costs.
(Anant S. Dave, J.) *pvv Top