RATILAL BHIKHABHAI MARATHE SINCE DECD. THRO LEGAL REP. Vs. KHODIYARVIJAY COOPERATIVE HOUSING SOCIETY LIMITED

JUDGEMENT

(1.) The present petition is filed under Article 226 of the Constitution of India seeking to quash and set aside the judgment and order dated 06.06.1998 passed by Gujarat State Co-operative Tribunal ('the Tribunal') in Appeal No.169 of 1997 preferred by the respondents - original defendants. By the impugned judgment, the Tribunal set aside the judgment and order dated 24.06.1997 passed by learned Board of Nominee in Lawad Suit No.2826 of 1990 preferred by respondent No.1 - deceased Ratilal Bhikhabhai Marathe. Learned Board of Nominee allowed the Lawad suit and ordered respondent No.1 - Co-operative Society and other respondents - the defendants not to close or break the gate placed on the eastern side of the house of petitioner No.1 - original plaintiff and restrained the defendants from preventing the plaintiff to have access on the internal road of the society situated on eastern back side of Tenement No.16/2 of the plaintiff. The Board of Nominee also declared the Resolution dated 02.09.1990 passed in the Annual General Meeting of the society as illegal, avoid and not binding to the plaintiff. Such judgment and order of the Board of Nominee came to be over turned by the Tribunal by allowing the appeal preferred by the respondents.

(2.) Learned advocate Mr. Arpit Patel appearing for the petitioners submitted that all members of the society are entitled to have access and pass through the internal roads of the society. He submitted that the society has many residential units and the unit - the tenement of the petitioners is situated in such a way that it faces on front side constructed residential units and on its back portion there are other constructed units. He submitted that to have the access on the internal road of the society on rear side, the petitioners were entitled to place small iron gate in the compound wall of the tenement. He submitted that there is no prohibition in the Bye-laws of the society for placing iron gate in compound wall at the back side of the tenement nor even there is any provision made for not using the internal road of the society falling on the rear side of the tenement. He submitted that only four members - the respondents No.2 to 5 herein had some grievances and prejudice against the petitioners, they raised the objection in the meeting of the society against putting the small iron gate by the petitioners in their compound wall. He submitted that if the petitioners are otherwise entitled to use the plot whereon the tenement is constructed to have access to any internal road of the society and it was illegal on the part of the society and other members to cause any hurdle or objection against the petitioners for use of small iron gate on the rear portion of the tenement of the petitioners. He submitted that when learned Board of Nominee on appreciation of the evidence allowed the suit of the petitioners, the Tribunal was not justified in interfering with the findings recorded by the Board of Nominee. He submitted that on perverse reasoning, the Tribunal has allowed the appeal and thereby committed error of jurisdiction and, therefore, this court may quash and set aside the impugned judgment of the Tribunal in exercise of powers under Article 226 of the Constitution of India.

(3.) Learned advocate Mr. Ketan Shah submitted that it was not open to the plaintiff to place iron gate on the land of the society. He submitted that the petitioners are the owner of the super structure but the ownership of the plot remains with the society. He submitted that when the petitioners have access on the society's road from the front side of their tenement, they could not have placed the iron gate on the back side of the tenement without permission of the society. He submitted that the rights of all members of the society are merged in the society and, therefore, no individual member can independently carry on activity on the land of the society without approval of the society. He submitted that the society is divided in two parts and when the petitioners are already having access in the front part of the society, the petitioners were not having any right to make access by putting iron gate on the eastern side of the tenement leading to the rear internal road of the society. He submitted that even otherwise the petitioners were bound by the collective decision taken in the meeting of the society through Resolution No.10 in presence of the plaintiff and as per such decision, the plaintiff had agreed to allow the other members of the society to pass through the iron gate placed on the back side of his tenement or to close the iron gate. He submitted that since the petitioners have not acted as per the decision taken through Resolution No.10, the petitioners were not entitled to use the iron gate placed on back portion of the tenement of the petitioners. He submitted that the Board of Nominee ignored above said important aspects of the matter and reached to perverse findings and, therefore, the Tribunal rightly interfered with judgment and order made by the learned Board of Nominee. He submitted that the Tribunal in exercise of its appellate powers had committed no error in reaching to the conclusion that the petitioners had no natural right to put the additional gate and that instalation of the additional gate by the petitioners was in contravention of the Bye-laws of the society as also the Rules and the provisions of Ahmedabad Urban Development Authority (AUDA). He thus, urged not to interfere with the judgment and order made by the Tribunal in exercise of powers under Article 226 of the Constitution of India.