Full Text
Date of Decision: 24.10.2024
RAHUL NATH .....Petitioner
Through: Mr. Ankur Chhibber, Adv.
Through: Mr. Manik Dogra, Mr. Ankur Chawla, Mr. Anuj Malhotra and Mr. Shivam Tandon, Advs. for R-2.
CM Appl.62233/2024[Exemption from filing original/certified copies]
JUDGMENT
1. Allowed, subject to the Petitioner filing original/certified copies of the annexures within a period of four weeks.
2. The Application stands disposed of. W.P.(C) 14800/2024 & CM Appl.62232/2024[Stay]
3. The prayers in the present Petition reads as follows: “(i) Quash the resolution passed in the Minutes of the AGM held on 20.10.2019 with respect to levying gate entry charges; and
(ii) Issue an appropriate writ, order or direction in the nature of
Mandamus or any other Writ of like nature directing the Respondent No.1 to Enquire into the affairs of the Respondent No.2;
(iii) Issue an appropriate writ, order or direction in the nature of
(iv) Issue an appropriate writ, order or direction in the nature of
(v) Issue an appropriate writ, order or direction in the nature of certiorari or any other Writ of like nature holding the gate charges levied by the Respondent No.2 as illegal.”
4. Learned Counsel for the Petitioner submits that the Petitioner who was previously a member of the Respondent No.2/Society but decided not to remain a member of the society. It is submitted that the marriage of the Petitioner’s son is scheduled on 16.11.2024, however the Respondent No.2/Society has levied illegal and arbitrary charges on the residents living in the society which have been challenged before this Court. He further submits that the entry charges as levied on the Petitioner by Respondent No.2/Society are in the nature of a tax and that the Respondent No.2/Society has no authority to levy such charges.
5. Learned Counsel for the Petitioner further submits that Respondent No.2/Society is insisting for payment of ‘exorbitant charges’ for the marriage of his son.
6. Learned Counsel for Respondent No.2/Society, at the outset, raises the issue of maintainability of the present Petition. He refutes these contentions and submits that charges as being sought for have been levied pursuant to the minutes of AGM dated 20.10.2019 after detailed discussion in the general body meeting of the Respondent No.2/Society. It is contended that the gate pass charges have been levied for the safety of the members of the Society and in view of the fact that several residents has started letting out their residential premises for hosting of commercial events for a fee which was leading to security and other concerns in the Society. 6.[1] Learned Counsel for Respondent No.2/Society further submits that as can be seen from the prayers in the present Petition, the disputes are in the nature of civil disputes between Respondent No.2/Society and a member of that society.
7. Learned Counsel for Respondent No.2/Society contends that the Petitioner had filed a suit for mandatory injunction against the Respondent No.2/Society including with respect to the issues which have been raised in the present Petition. Thus, the issue of levy of charges is the subject matter of a Civil Suit bearing no.
CS SCJ 1160/2022 captioned Rahul Nath v. Ansal Villa Residents Association [hereinafter referred to as the “Civil Suit”]. These disputes are pending adjudication before the learned Trial Court.
8. Learned Counsel for Respondent No.2/Society further submits that the learned Trial Court after examining the issues at hand had passed an order dated 05.04.2023 and declined to pass any interim directions holding that prima facie, the charges for a ‘gate pass’ imposed by the Respondent No.2/Society are not due to selective targeting but due to the fact that the Petitioner is a non-member of the Respondent No.2/Society. 8.[1] It is additionally contended that upon receipt of a request from the Petitioner for a ‘gate pass’ by the letter dated 07.10.2024, the Respondent No.2/Society requested the Petitioner to make payment of his long outstanding dues to the Respondent No.2/Society, by its Reply dated 10.10.2024. The said payment has, however, not been made.
9. Issue Notice. Learned Counsel for the Respondent No.2/Society accepts Notice. On steps being taken, let Notice be issued to Respondent No.1 via all modes. An affidavit of service be filed within a week. 9.[1] Counter-Affidavit/Reply be filed within a period of four weeks. 9.[2] Rejoinder, if any, be filed within a period of two weeks thereafter.
10. Learned Counsel for the Petitioner submits that the Petitioner has prayed for in his interim Application that the Respondent No.2 be restrained from insisting on payments of the gate charges for the marriage of his son which is scheduled on 16.11.2024.
11. The prayer in CM APPL. 62232/2024 reads as follows: “a. Pass an order of ad-interim injunction thereby restraining the Respondent No.2, from insisting on the payment of the gate charges qua the 7 days pass for marriage of Petitioner's son during the pendency of the present writ petition; b. Pass any other order as deemed fit and proper” 11.[1] Thus, the interim relief sought for by the Petitioner is in relation to charges levied by the Respondent No.2/Society upon its members.
12. From the contentions of the parties hereinabove and as can be seen from the record of the case, there are various disputed questions of fact in the present case including as to the dues of the Petitioner qua Respondent No.2/Society.
13. Both parties admit that the Civil Suit is pending adjudication before the learned Trial Court.
14. In addition, the record reflects that the Petitioner has also filed a complaint dated 14.10.2024 with the Registrar of Societies against Respondent No.2/Society which he is pursuing.
15. It is well settled law that while exercising the jurisdiction under Article 226 of the Constitution of India, 1950, the Courts do not enter into disputed questions of facts and those which would require evidence to be led, such disputes would obviously come under the fora of a civil Court. The Supreme Court in the State of Kerala & Ors. v. MK Jose[1] has held that a writ Court should not entertain questions involving disputed facts. The relevant extract reads as follows:
15.[1] It has further been held by the Supreme Court in the State of Kerala case that where there is an alternative and equally efficacious remedy is available, it should ordinarily be invoked. The relevant extract is as follows: “14….. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226.” [Emphasis supplied]
16. Concededly, the alternate remedy has already been invoked by the Petitioner. In fact, the Petitioner has already exercised multiple alternate remedies against Respondent No.2/Society with respect to its grievances.
17. During the course of hearing, the learned Counsel for Respondent No.2/Society submitted that without prejudice to its contentions, if the Petitioner clears the pending dues of the Respondent No.2/Society in the sum of approximately Rs.4.51 lakhs, the Petitioner would be re-admitted into the membership of the society and be charged for the ‘gate pass’ as in terms of the charges for members which is Rs. 20,000/- for entry of 7 days.
18. Learned Counsel for the Petitioner, on instructions, from the Petitioner who is present in Court submits that this offer is not acceptable to the Petitioner since he disputes the said charges.
19. In view of the aforegoing discussions, this Court is not inclined to pass any interim directions. The CM APPL. 62232/2024 is accordingly disposed of.
20. List on 30.01.2025.
TARA VITASTA GANJU, J OCTOBER 24, 2024