VIJAY AMBELAL DESAI Vs. KIRIT AMBELAL DESAI

JUDGEMENT

(1.) CHALLENGE in this petition filed under Articles 226 and 227 of the Constitution of India is against the order dated 28.08.2012 passed by the Gujarat State Cooperative Tribunal in appeal No.1137 of 2002, whereby the Tribunal set aside the order passed by the Board of Nominees in Lavad suit No. 74 of 1999 and held that the dispute raised in the Lavad suit falls within the provisions of Section 96 of the Gujarat Cooperative Societies Act, and the Board of Nominees has jurisdiction to decide such dispute. The Tribunal has remanded the matter to the Board of Nominees to decide all the issues involved in the suit according to law.

(2.) I have heard learned advocates for the parties. Learned advocate Mr.Baiju Joshi appearing for the petitioner submitted that considering the nature of relief prayed for in the suit filed by the respondent No.1, it cannot be said that Board of Nominees has committed any error in dismissing the suit. Mr.Joshi submitted that the respondent No.1 filed the suit challenging the transfer made in favour of the petitioner of Bungalow No.4B situated in the respondent No.1 society and such dispute being between two private persons, the Board of Nominees has rightly held that it has no jurisdiction to decide the dispute raised by the respondent No.1. Mr.Joshi submitted that the Tribunal has committed serious error in holding that the dispute raised by the respondent No.1 falls within the provisions of Section 96 of the Act, and has also committed error is not deciding the issue as regards limitation though such issue was focused before the Tribunal. Learned advocate Mr.Joshi submitted that the share certificate has been transferred in the name of the petitioner and by virtue of agreement between the parties, the petitioner has already become owner of Bungalow and therefore, unless the transaction as regards transfer of Bungalow in favour of the petitioner is got invalidated through the competent Court, no relief as against such transaction could be granted by the Board of Nominees.

(3.) AS against above arguments, learned advocate Mr.Ravindra Shah appearing for the respondent No.1 submitted that the dispute in the Lavad suit is between the society, the petitioner and the respondent No.1 and what is alleged in the suit is illegal action on the part of the society in transferring the Bungalow in question in favour of the petitioner and therefore, such dispute clearly falls within the provision of Section 96 of the Cooperative Society Act. Mr.Shah submitted that the respondent No.1 has clearly averred in the suit that he is the member of the society and behind his back, his Bungalow in the society was transferred in the name of the petitioner and such act on the part of the society has been assailed by the respondent No.1 in the suit. Learned advocate Mr.Shah submitted that when the illegal act of the society of transferring the Bungalow in question in favour of the petitioner is challenged, it is the dispute between the society and the member and the petitioner who acquired rights in the Bungalow equally becomes party to dispute raised by the respondent No.1 and in such circumstances the Board of Nominees has jurisdiction to decide the dispute in Lavad suit filed by the respondent No.1. Learned advocate Mr.Shah submitted that the relief Nos.2 & 3 prayed for in the suit are consequential relief and therefore, it cannot be said that the Board of Nominees has no jurisdiction to decide the question about the grant of such consequential relief.