LPA/234220/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 2342 of 2007 In SPECIAL CIVIL APPLICATION No. 2502 of 1998 With CIVIL APPLICATION No. 15839 of 2007 For Approval and Signature: HONOURABLE MR. JUSTICE MOHIT S. SHAH and HONOURABLE MS.JUSTICE H.N.DEVANI ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= DAHYABHAI SAMABHAI PARMAR & 1 - Appellant(s) Versus ARCHANA CO.OP.HSG.SO.LTD. & 4 - Respondent(s) ========================================= Appearance : MR AY KOGJE for Appellant(s) : 1 - 2. MR TUSHAR MEHTA, SENIOR ADVOCATE for Respondent(s) : 1, None for Respondent(s) : 2 – 5, ========================================= CORAM : HONOURABLE MR. JUSTICE MOHIT S. SHAH and HONOURABLE MS.JUSTICE H.N.DEVANI LPA/234220/2007 2/4 JUDGMENT Date : 17/12/2008 ORAL JUDGMENT (Per : HONOURABLE MR. JUSTICE MOHIT S. SHAH) What is challenged in this appeal under Clause 15 of the Letters Patent is the judgment and order dated 20.06.2006 of the learned Single Judge allowing the writ petition filed by respondent Nos. 1 to 4 herein and setting aside the orders of the Board of Nominees and the Gujarat State Co-operative Tribunal (hereinafter referred to as “the Tribunal”). 2. Respondent No. 1 – Archana Co-operative Housing Society Ltd. purchased the land in question which was sub-divided into 37 plots. At the meeting of the General Body of the Society held on 19.10.1980 when appellant No.2 was the Chairman of the Society and appellant No.1 was the member of the Managing Committee, it was decided to make allotment of plots. The allotment of plots was made without resorting to draw system or any such rational method. However, at the meeting of the Managing Committee held on 4.12.1980 in which the appellants were present, the Managing Committee resolved to make allotment of plots by draw system. The Managing Committee again met on 8.2.1981 and resolved that the meeting of the General Body of the Society be convened on 1.3.1982 for the purpose of carrying out draw for allotment of plots. The appellants were signatories to the said resolution also. On 1.3.1981, the General Body of the Society decided that construction of houses will commence only after allotment of plots by draw system. 3. Thereafter, the Managing Committee resolved on 2.4.1981 that the lots will be drawn for allotment of plots only after receipt of an amount of Rs.10,101/- from each member and that unless the allocation of allotment of plots is not completed, loan papers will LPA/234220/2007 3/4 JUDGMENT not be submitted. The appellants were party to the said resolution also. 4. Ultimately, the meeting of the General Body of the Society was held on 4.10.1981 and all the members of the Society, except one Muljibhai Parmar (who is not party to the present proceedings) agreed that the allotments of plots be made by drawing lots. Accordingly, draw was held and plots were alloted to the members on that basis. 5. For the first time, the aforesaid allotment of plots on the basis of the General Body resolution dated 4.10.1981 came to be challenged by the present appellants before the Board of Nominees in March 1982. That suit being Arbitration Suit No. 906 of 1982 came to be decreed by the Board of Nominees by the judgment and order dated 16.08.1996 as the defendants in the suit had not opposed the suit by filing their written statements. The appeal against the said judgment and award filed by the defendants came to be dismissed by the Tribunal on 16.3.1998. It is, however, pertinent to note that during pendency of the Arbitration Suit, the Board of Nominees had granted ex-parte stay in the year 1982 which, as per the finding given by the learned Single Judge, was virtually infructuous since fresh allotment of plots was already made on 4.10.1981. In any view of the matter, the said ex-parte stay was vacated by the Board of Nominees in the year 1984. The result, therefore, was that between 1984 and 1996 when the Board of Nominees finally disposed of the Arbitration Suit, there was no stay or injunction against use and enjoyment of the plots allotted to the members of the Society as per the draw held on 4.10.1981. 6. Hence, when the writ petition filed by the Society in 1998 challenging the above judgment of the Tribunal and Board of Nominees came up for hearing before the learned Single Judge in LPA/234220/2007 4/4 JUDGMENT June 2006, the learned Single Judge found that on the plots which were allotted to the other members of the Society (i.e. other than the appellants herein), houses were already constructed and were being occupied by the members other than the appellants. The learned Single Judge, therefore, held that since more than two decades had passed since the other members of the Society were enjoying the plots allotted to them by putting constructions thereon, there was no possibility of disturbing such allotments. The learned Single Judge also recorded that it was not the case of the present appellants that they did not receive equal sized plots and that the only grievance of the appellants herein was about situation (location) of the plots allotted to them. 7. Having heard Mr Kogje for the appellants and Mr Tushar Mehta, learned Senior Advocate for respondent No. 1 Society, we do not see any reason to interfere with the order passed by the learned Single Judge. 8. The appeal is, therefore, dismissed. Since the appeal is dismissed, Civil Application for stay is also dismissed. (MOHIT S. SHAH, J.) (HARSHA DEVANI, J.) mrpandya*