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2023 DIGILAW 317 (GUJ)

Ganpatbhai Ambalal Patel v. State Of Gujarat

2023-02-15

BHARGAV D.KARIA

body2023
ORDER : 1. This petition is a unique case, wherein, the petitioner has sought following prayers invoking Article 226 of the Constitution of India, which reads as under: “32(B) YOUR LORDSHIP may be pleased to direct the state authorities to initiate appropriate proceedings against the society for not implementing order dated 09.12.2004 in Special Civil Application No.2131 of 2004 (Annex.- B) order dated 10.12.2018 in Special Civil Application No.21992 of 2005 passed by this Hon’ble Court (Annex.- E). 32 (C) YOUR LORDSHIP may be pleased to direct the society to compensate the petitioner for mental agony and legal expenses which the petitioner has suffered because of non action on the party of society by allowing the present petition with exemplary cost.” 2. The brief facts of the case are that: 2.1 The controversy in this petition relates to a parcel of land originally belonging to the respondent No.1 society i.e. Lalitadevi Park Cooperative Housing Society. 2.2 The society is co-operative Housing registered under Gujarat Co-operative Society Act, 1961, bearing registration No.GH2676 and came into existence somewhere in the year 1969. The society is situated at original Survey No.325/2 – Origina Plot No. 55/2 admeasuring 7410 sq. yards of Village – Ranip, Taluka & City- Ahmedabad. 2.3 After society came into existence and after allotting the plot to its members, the society decided to allot a plot situated on the right side of the society to the present petitioner on lease. The resolution to that effect was passed by the society being Resolution No.2 dated 30.12.1973 and an agreement to that effect was also entered upon. 2.4 The society then decided to sale the said land to the present petitioner and thus a resolution to that effect was passed by the general body, being Resolution No. 7 dated 26.09.1976. It was resolved to sale the said land at the market value and for that purpose the Committee of three members was constituted by the society. The general body of the society by its Resolution No.5 dated 25.09.1977, resolved to sale the land to the present petitioner at Rs.50 per yard and also empowered the Chairman and Secretary to do the needful. The general body of the society by its Resolution No.5 dated 25.09.1977, resolved to sale the land to the present petitioner at Rs.50 per yard and also empowered the Chairman and Secretary to do the needful. 2.5 It is the case of the petitioner that petitioner has also paid substantial amount towards the land contribution to the society and pursuant to that the general body of the society passed the resolution being Resolution No. 4 on 24.9.1978 regarding the factum of land having been sold to the present petitioner. After formality of purchasing the said plot, somewhere in the year 1978-79, the said parcel of land was reserved by Ahmedabad Urban Development Authority (for short ‘AUDA’) and was acquired for the purpose of road under the Town Planning Scheme. 2.6 AUDA had offerred the society another plot which was situated on the southern side of the society in lieu of the land which the authorities proposed to acquire for road under the Town Planning Scheme. 2.7 Since the society has already sold the plot which was to be acquired by AUDA authorities to the petitioner, the society passed a resolution being Resolution No.3 on 07.10.1979, resolving for the plot which the AUDA is offering to the society which is situated at the southern end, may be given to the petitioner. 2.8 The petitioner was also admitted as a member of the society and various resolutions were passed by the society for handing over the possession of the plot which the AUDA will give to the society. 2.9 It is the case of the petitioner that after the change of persons in the administration of the society, the dispute started. The new administration of the society thought to snatch the valuable rights of the petitioner and thus started passing various resolution so that the society may not have to give the possession of the plot allotted by the AUDA authorities. It is the case of the petitioner that the society removed the petitioner from the membership of the society on 29.09.1996 and resolution was passed to that effect being Resolution No. 9. 2.10. Being aggrieved and dissatisfied by the act of society of removing the petitioner from its membership, the petitioner preferred an application in form of LAVAD Suit before the Board of Nominees being LAVAD Suit No. 1136 of 1998. 2.10. Being aggrieved and dissatisfied by the act of society of removing the petitioner from its membership, the petitioner preferred an application in form of LAVAD Suit before the Board of Nominees being LAVAD Suit No. 1136 of 1998. The Board of Nominees allowed the LAVAD Suit No. 1136 of 1998 by its judgment dated 23.12.1998. The society preferred a review application before the Board of Nominees which was also rejected by an order dated 31.03.2000. The society then preferred an appeal being Appeal No. 195 of 2000, before the Co-operative Tribunal challenging the order dated 23.12.1998 passed in LAVAD Suit No. 1136 of 1998 by Board of Nominees. The Co-operative Tribunal dismissed the appeal being Appeal No. 195 of 2000 preferred by the society by its order dated 03.09.2003. 2.11 The society then preferred writ petition before this Court being Special Civil Application No. 2131 of 2004, challenging both the orders of Board of Nominees dated 23.12.1998 in LAVAD Suit No. 1136 of 1998 and order passed by The Cooperative Tribunal dated 03.09.2003 in Appeal No. 195 of 2000. This Court vide its order dated 09.12.2004, dismissed the aforesaid writ petition and thus the said litigation attained finality. The petitioner entered into the Agreement for Sale for selling of the land which was purchased by the petitioner from the society to one Shri Shivjibhai Thakore on 29.07.1997. The society preferred an application before the Board of Nominees in form of LAVAD Suit No. 171 of 1998, against the petitioner with a prayer to restrain the petitioner from transferring or alienating the land in question. 2.12 The Board of Nominees dismissed the LAVAD Suit No. 171 of 1998 by the detailed order dated 31.01.2005 holding that the present petitioner was not only handed over the possession of the disputed land but construction permission along with duly sanctioned plan was also granted by AUDA. Being aggrieved and dissatisfied by the order of Board of Nominees dated 31.01.2005 in LAVAD Suit No. 171 of 1998, the society filed an appeal before Gujarat Stated Cooperative Tribunal being Appeal No. 106 of 2005. The tribunal by the detailed judgment dated 15.10.2005 dismissed the appeal filed by the society being Appeal No. 106 of 2005 and uphold the judgment of Board of Nominees. The tribunal by the detailed judgment dated 15.10.2005 dismissed the appeal filed by the society being Appeal No. 106 of 2005 and uphold the judgment of Board of Nominees. 2.13 Being aggrieved and dissatisfied by the orders passed by the Board of Nominees dated 31.01.2005 in LAVAD Suit No. 171 of 2018 and the Tribunal dated 15.10.2005 in Appeal No. 106 of 2005, the society had preferred a writ petition before this Court being Special Civil Application No. 21992 of 2005. This Court vide its detailed judgment dated 10.12.2018 had dismissed the aforesaid writ petition, inter-alia upholding both the judgments of Board of Nominees and the Learned Tribunal. Thus, the litigation initiated by the petitioner challenging the action of society dated 29.09.1996 removing him as a member had attained finality in form of judgment of this Court passed in Special Civil Application No. 21992 of 2005 dated 10.12.2018. As far as the litigation initiated by the society is concerned, to restrain the petitioner from transferring or alienating the land had also attained finality in form of judgment of this Court dated 10.12.2018 passed in Special Civil Application No. 21992 of 2005. 2.14 It is the case of the petitioner that after passing of judgment by this Court in the year 2018, various representations are made to the society to implement the order but the society had turned a blind eye as if the society is under no legal obligation to implement the order. Hence, the petitioner has preferred this petition. 3. Heard learned advocate Mr. Rashesh Rindani for the petitioner, learned advocate Mr. Bhaumik Dholariya for the respondent No.3 and learned AGP Ms. Dhwani Tripathi for the respondent Nos.1 and 2. 4. Learned advocate Mr. Dholariya for the respondent No.3 has raised preliminary objection with regard to maintainability of this petition under Article 226 of the Constitution of India as it seeks implementation of the order passed in the year 2004. However, considering the chronology of events and continuation of the litigation till 2017, it cannot be said that there is any delay and laches on the part of the petitioner. However this is a classic case, where the litigant is made to wait to have fruit of the order passed in the year 2004 by this Court by dragging into litigation and even after nothing succeeded in the litigation upto this Court. However this is a classic case, where the litigant is made to wait to have fruit of the order passed in the year 2004 by this Court by dragging into litigation and even after nothing succeeded in the litigation upto this Court. He has not allowed to enjoy the benefit of the order passed by this Court on one pretext or another. In such circumstances, it is the duty of this Court to do justice and therefore, this is not a fit case to invoke Article 226 of the Constitution of India. 5. The affidavit filed on behalf of the respondent No.2, is ordered to be taken on record. The affidavit reads as under: “1. In furtherance to the affidavit filed by the deponent herein dated 13.02.2023. I undersigned am filing the present affidavit placing on record the proposed steps which we would undertake with law and as per provision under section 81 of the Gujarat Co-operative Societies Act, 1961. 2. I say and submit that as per the averment made in the Affidavit-in-reply filed by the deponent herein it is stated that the deponent herein would initiate proceedings and issue notice within 2 weeks but in furtherance to the same, I say and submit that the deponent will initiate necessary process within 2 days from today as per the provisions prescribed under section 81 of the Gujarat Co-operative Societies Act, 1961 and in accordance with law. 3. I say and submit that the undersigned undertakes that the said proceedings would be completed preferably within one month. The answering respondent prays before this Hon'ble Court to direct both the concerned parties to cooperate in the said proceedings.” 6. In view of the above affidavit filed on behalf of the respondent No.2, the grievances raised in this petition would not survive and the petition is disposed of with a direction to the respondent No.2 to adhere to the affidavit cum undertaking filed before this Court, failing which, the necessary proceedings under provisions of the Contempt of Courts Act, 1971 would be required to be initiated. 7. This petition is disposed of accordingly. Notice is discharged.