SCA/27328/2007 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27328 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 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 ? ========================================================= NATHALAL DAHYALAL JOSHI & 1 - Petitioner(s) Versus SWAMI VIVEKANAND CO-OP. HOUSING SOCIETY LTD. - Respondent(s) ========================================================= Appearance : MR MP SHAH for Petitioner(s) : 1 - 2.MS. KRUTI M SHAH for Petitioner(s) : 1 - 2. NOTICE NOT RECD BACK for Respondent(s) : 1, DS AFF.NOT FILED (N) for Respondent(s) : 1, MR PN BAVISHI for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 05/05/2008 ORAL JUDGMENT 1. Rule. Mr.Bavishi, learned Counsel for the SCA/27328/2007 2/4 JUDGMENT respondent, waives service of notice of rule. With the consent of the learned Counsel for both the sides, the matter is finally heard. 2. The petitioners have preferred the petition for challenging the order passed by the Tribunal dated 23.3.2005 in Appeal No.930 of 2001 and the subsequent order dated 30.3.2007 in Review Application No.75 of 2006. 3. Heard Ms.Shah, learned Counsel for the petitioners and Mr.Bavishi, learned Counsel for the respondent. 4. Upon hearing the learned Counsel appearing for both the sides, as such it appears that the Nominee had passed the order directing the Society to allot the land, against which the appeal was preferred being Appeal No.930 of 2001 before the Tribunal. It appears that as per the respondent, pending the appeal, the purshis was filed by the Chairman of the Society at Ex.28 to the effect that in future when the Society would purchase the other land, the original plaintiff – respondent in the appeal could be allotted the plot on priority basis. The pertinent aspect is SCA/27328/2007 3/4 JUDGMENT that the Tribunal has not modified the award passed by the Nominee in terms of the purshis, but has disposed of the whole appeal as if it had become infructuous. The aforesaid is an error apparent on the face of it committed by the Tribunal. I would have considered the matter further, however, Mr.Bavishi, learned Counsel appearing for the respondent, states that he has no objection if the Tribunal is directed to decide the appeal afresh on merits and in accordance with law, after hearing both the sides. Therefore, no further discussion is required in this regard. Suffice it to state that the order passed by the Tribunal in appeal, which is impugned in the present proceedings and the subsequent order passed in review cannot be sustained in the eye of law. 5. In the result, the impugned order passed by the Tribunal in Appeal No.930 of 2001 as well as the order in Review Application No.75 of 2006 are quashed and set aside with the direction that the Appeal No.930 of 2001 shall stand restored to the file of the Tribunal and the Tribunal SCA/27328/2007 4/4 JUDGMENT shall decide the said application afresh in accordance with law, after hearing both the sides and shall pass appropriate orders, as early as possible, preferably within a period of four months from the date of receipt of the order of this Court. 6. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. Direct service is permitted. 5.5.2008 (Jayant Patel, J.) vinod