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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VINEET KOTHARI, BIREN VAISHNAV, JJ.
HARIKRUSHNADAS CHHAGANLAL NANALAL & ISHWARDAS MOHANLAL - Appellant
Versus
VINODCHANDRA G VAGHELA - Respondent
LETTERS PATENT APPEAL NO. 999 of 2010
In SPECIAL CIVIL APPLICATION NO. 9900 of 2003
Decided On : 04-03-2021
Civil Procedure Code,1908 - Rule 11 of Order 7 - Gujarat Cooperative Societies Act, 1961 - Sections 96(1),96(2), 46,82, 82(1) (c), 64 , 99(3)(a),98(4)(d),54 - Challenge – Sale Deed - Maruti Cooperative Housing Society Limited passed a unanimous Resolution No. 12 in its General Body Meeting on to sell common plot to Appellant Trust at rate of per sq. yard for construction of a common 'Satsang Hall' for religious purposes and accordingly for a consideration of paid by Trust, a Sale Deed was executed in favour of Appellant Trust by Maruti Cooperative Housing Society Limited and accordingly possession was handed over to Appellant Trust on which construction of said 'Satsang Hall' was also made - Subsequently one disgruntled member of Society namely filed aforesaid Lavad Suit challenging power of Respondent Society to sell common plot to Appellant Trust and Board of Nominees vide order under Act, 1961 held in favour of Complainant and quashed and set aside said Resolution of Society - Appeal filed by Appellant Trust before Cooperative Tribunal namely Appeal of also came to be dismissed on - Aggrieved by said Order Appellant Trust approached the learned Single Judge by way of aforesaid writ petition being Special Civil Application No of which too came to be dismissed by learned Single Judge
Finding of the court: Court have seen from facts obtaining in present case that not only General Body Meeting of Society passed a unanimous Resolution fully being aware of fact that it is one of two common plots of Society but they are also selling same in favour of Appellant Trust for purpose of construction of a 'Satsang Bhawan' which will be also available for utilization by common people including members of Respondent Society - Object of utilizing the common plot for a common use of Society therefore cannot be obviously said to be defeated by such a sale - Resolution passed by a unanimous consent of all members could not have been upset at instance of a dissatisfied member of the Society only under guise of a common plot being sold to a third party like Appellant Trust - Board of Nominees has erred in entertaining Lavad Suit of filed by and which was not within jurisdiction of said Board of Nominees under Section 96 of Act as Registered Sale Deed stood duly executed and that fact was disclosed in the said Lavad Suit itself - Cooperative Tribunal has also therefore fallen into error in dismissing Appeal filed by Appellant Trust
Result: Appeal Allowed
JUDGMENT :
VINEET KOTHARI, J.
1. This intra-court Appeal is directed against the Judgement and Order dated 11.01.2010 whereby the learned Single Judge dismissed the Special Civil Application No. 9900 of 2003 filed by the Appellant Trust, namely, Harikrushnadas Chhaganlal, Nanalal, Hargovinddas and Ishwardas Mohanlal Seva Samaj Trust (hereinafter referred to as 'the Trust') and held that the Resolution of the Respondent Society namely Maruti Cooperative Housing Society Limited., Part-II to sell the common plot admeasuring 400 sq. yds in favour of the Appellant Trust could not have been passed and therefore in a Lavad Suit (Lavad Suit No. 2256 of 1994) purportedly under Section 96 of the Gujarat Cooperative Societies Act, 1961, the said Resolution could not be passed by the Society and the consequential actions taken were also liable to be set aside.
2. The facts in brief are that the Respondent Maruti Cooperative Housing Society Limited passed a unanimous Resolution No. 12 in its General Body Meeting on 13.08.1992 to sell the common plot admeasuring 400 sq. yards to the Appellant Trust at the rate of Rs. 200/per sq. yard for construction of a common 'Satsang Hall' for religious purposes and accordingly for a consideration of Rs. 80,001/paid by the Trust, a Sale Deed was executed in favour of the Appellant Trust by the Maruti Cooperative Housing Society Limited on 26.05.1993 and accordingly the possession was handed over to the Appellant Trust on which construction of the said 'Satsang Hall' was also made. Subsequently, one disgruntled member of the Society, namely, Mr. Vindochandra G. Vaghela filed the aforesaid Lavad Suit No. 2256 of 1994 challenging the power of the Respondent Society to sell the common plot to the Appellant Trust and the Board of Nominees vide order dated 23.04.1999 under the Gujarat Cooperative Societies Act, 1961 held in favour of the Complainant Mr. Vindochandra G. Vaghela and quashed and set aside the said Resolution of the Society. The Appeal filed by the Appellant Trust before the Cooperative Tribunal namely Appeal No. 265 of 1999 also came to be dismissed on 17.06.2003. Aggrieved by the said Order, the Appellant Trust approached the learned Single Judge by way of the aforesaid writ petition being Special Civil Application No. 9900 of 2003 which too came to be dismissed by the learned Single Judge on 11.01.2010.
3. Aggrieved by the same, the Appellant Trust has filed the present intra-court Appeal.
4. Ms. Dhara Shah, learned Counsel appearing for the Appellant Trust urged before us that the Registered Sale Deed in favour of the Appellant Trust executed by the Respondent Maruti Cooperative Housing Society Limited on 26.05.1993 could not be set aside by the Board of Nominees or the Tribunal constituted under the provisions of the Gujarat Cooperative Societies Act, 1961 as it does not fall within the scope of Section 96 of the Act which covers only 'a dispute touching the constitution, management or business of the Society' and the contract of sale supported by the unanimous Resolution of the General Body Meeting could not have been quashed and set aside by way of an indirect challenge made only to the Resolution passed by the Respondent Society to sell the said common plot in favour of the Appellant Trust and that too for constructing a 'Satsang Hall' for religious purposes, which was also commonly used by all the members of the Society, who are not even charged any fees for entering in the 'Satsang Hall' constructed by them.
4.1 She urged that only a competent Civil Court has the power to set aside the registered Sale Deed and the Authorities created under the Gujarat Cooperative Societies Act of 1961 do not have any such power. She also submitted that there were in fact two common plots in the land owned by the Society and drawing our attention to the map of the said land owned by the Society, the learned Counsel pointed out that another common plot was still available with the Society for other common ameni
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