2003 Supreme(Guj) 411

Gujarat High Court
Judgename :K.A.Puj
SATYANARAYAN B.SHARMA - Appellant
Versus
A.L.DINEU - Respondent
S.C.A. 4653 of 2003
Decided On : 07/25/2003

Headnote:(a) Constitution of India, 1950 - Art. 227 - Jurisdiction - Interlocutory order - Petition against an interlocutory order when lavad suit is still pending before Board of Nominees Court - Held not maintainable.

       Even otherwise, the petitioners have filed this petition against an interlocutory order and Lavad Suit is still pending before the Board of Nominees Court. On this ground also, no interference is called for.

       [Para 16]

       (b) Constitution of India, 1950 - Art. 227 - Interference - Non-residential use of tenement - In Lavad Suit before the Board of Nominee Court granted relief against BSNL without BSNL being party before it - Petitioners have raised the issue regarding non-residential use of premises of respondent society but it is to be noted that there are already other 18 shops in the said society - The petitioners have not produced bye-laws of the society to show any restriction or prohibition on use of premises for non-residential purposes - That apart society has issued `No objection letter for installation of Telephone Exchange by BSNL - In the facts and circumstances Tribunal order in revision is just and proper which requires no interference.

       The Tribunal has given four reasons while interfering in the order passed by the Board of Nominees. The Tribunal has observed that though the relief was prayed for against B.S.N.L., the B.S.N.L. was not made a party in the said arbitration suit. The Tribunal has further taken note of the fact that though the petitioners have raised the issue regarding non-residential use of the premises of the respondent No. 1 in the society, there are about other 18 shops in the said society and the said fact was not disclosed by the petitioners. The Tribunal has also taken note of the fact that the petitioners have neither produced the bye-laws of the society either before the Board of Nominees or before the Tribunal. Whether there is any restriction or prohibition on the use of the premises for non-residential purposes, it cannot be said without looking at the bye-laws. Since the Board of Nominees Court has granted interim relief and sealed the premises without having considered the bye-laws, the said order was required to be interfered. The Tribunal has further considered that no objection certificate was issued by the society on its letter pad on 30.1.2002. When 18 other shops were there in the society, the said no objection letter was issued by the society and there was no reason to disbelieve the said letter. With regard to nuisance or annoyance, the Tribunal has observed that the telephone exchange which is to be established by the B.S.N.L. is modern electornic instrument and there is no question of any noise or pollution. After taking into consideration all these facts, the Tribunal has allowed the revision application of the respondent No. 1 and vacated the interim relief and also passed an order for removal of the seal. Such an order cannot be said to be unjust, improper or illegal which requires any interference by this Court.

       [Para 16]

       (c) Constitution of India, 1950 - Art. 226 - Relief - On account of mismanagement and improper administration of Society - This is a mandatory relief sought from the Court but there is necessary condition precedent thereto to approach the authorities first and only when authority fails Court may interfere in a given case - In the present case petitioners have not approached any authority to ventilate their grievance - They have raised the issue straight away in the present petition, therefore, it does not require any consideration by this Court.

       As far as the dispute raised by the petitioners about the administration and the management of the society is concerned, it appears that the petitioners have raised the said issue straightway in the present petition without approaching to the District Registrar. When any mandatory relief is sought for from the Court, it is necessary condition precedent to approach the authorities first against whom such mandatory directions are sought for and if such authority fails to take any action, the Court, may interfere in a given case. In the present petition, there is no such evidence produced on record showing that the petitioners have ventilated their grievance before the authorities prior to approaching this Court. Even otherwise, looking to the Affidavit-in-Reply filed by the respondent society, it is too obvious to accept the contentions urged and averments made in the petitions with regard to any mal- administration or mismanagement of the respondent society. In absence of any material or evidence on record, this Court is not inclined to express any opinion. It is however open for the petitioners to make proper representation to the District Registrar with regard to the grievance which is ventilated in the present petition and it is expected that if such a grievance is raised, the District Registrar would look into the matter and take necessary action looking to the facts and circumstances of the case.

       [Para 18]