Point of Law: if the construction progresses during the pendency of appeal, and if it was in violation of the orders passed and the undertaking given by the respondents before the Letters Patent bench of this Court, that appears to be not so when the operative portion of the Board of Nominees is read. Aggrieved by the so called misinterpretation of the operative portion of the Nominees' Court, the petitioner has lodged cross objections in the appeal of the respondents

ORDER :

1. Heard learned counsel Mr. Ravindra Shah for the petitioner and Mr. Siddharth Dave, learned counsel for the respondent Nos.1 and 2 through Video Conferencing.

2. In this petition, under Article 226 of the Constitution of India, the prayers of the petitioner read as under:

“(A) to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction commanding the respondent No.3 - State to appoint three members in the Gujarat State Cooperative Tribunal;

(B) to issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, order or direction setting aside the impugned action of respondent nos.1 and 2 in making construction of Ground + Seven Floors flat type construction in sub plot 32/A of the petitioner society pursuant to the commencement letter and plan at Annexure F Colly to the petition and to permanently restrain them from doing so;

(C) pending hearing and final disposal of the petition, to restrain the respondent no.1 and 2, their agents, assigns, servants, whosoever etc from carrying on erection or execution of construction of whatsoever nature in sub plot 32/A of the petitioner society till the cross objection of the petitioner society in Appeal No.73/2019 is finally heard and adjudicated on merits by the Gujarat State Cooperative Tribunal after constitution of its bench upon appointment of members by the respondent no.3 - State. ”

3. The case of the petitioner is that the respondent nos.1 and 2 had purchased the plot and were carrying on construction thereon contrary to the byelaws of the society, inasmuch as construction of apartment building and/or construction for commercial use was not permitted as per the byelaws.

4. Aggrieved by the action of the respondents, the Society approached the Board of Nominees by filing a Lavad Suit No.217/2017 on 27.6.2017. In the Lavad Suit, the prayers made by the petitioner was to the effect that the construction carried out on plot no.32/A was without sanction as per the byelaws and no such construction be carried out. It appears that the Lavad Suit was decided on 30.8.2019.

5. Mr.Shah, learned counsel for the petitioner would submit that essentially the findings of the Lavad Court are in favour of the plaintiff - petitioner. However, in the operative portion, the suit was partly allowed. Against the order of the Lavad Court partly allowing the suit, the respondent Nos.1 and 2 have preferred an appeal No.73/2019 before the Gujarat Cooperative Tribunal.

6. The petition was placed before this Court with an additional prayer of 7(A) as referred hereinabove to appoint three members of the Gujarat State Cooperative Tribunal. Jurisdiction under Article 226 was invoked challenging the inaction of the tribunal in registering the cross objections filed by the petitioner, as according to Mr. Shah operative portion of the order was unclear of the Nominee's Court which leads to misinterpretation at the hands of the respondents. Inasmuch as, though the undertaking was given before the LPA Bench, the respondent continued to flout that undertaking and continued the construction contrary to the undertaking so given. Mr. Shah would submit that though the findings are in favour of the Board of Nominees and it was held that the plans for carrying out construction was not binding to the society on an appeal filed by the respondent before the tribunal and the action of carrying out construction prompted the petitioner to file the present petition.

7. Mr. Siddharth Dave, learned counsel appearing for the respondent Nos.1 and 2 would submit that in a petition being SCA No.21824/2019, identical reliefs have been prayed for wherein the Court on 9.12.2019 issued the notice and did not grant any interim relief. Prayers in the present petition are identical and are overlapping, therefore, the present petition could not have been filed only because of the reliefs of 7(A) and the interim relief granted in the present petition 7(C) was essentially a relie