SCA/22498/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 22498 of 2007 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 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 ? ========================================================= THE SAMASTA BRAHMKSHATRIYA CO-OPERATIVE HOUSING SOCIETY - Petitioner Versus THE STATE OF GUJARAT & 6 - Respondents ========================================================= Appearance : MR GM JOSHI for Petitioner : 1, MR JASWANT K SHAH AGP for Respondent : 1, RULE SERVED BY DS for Respondents : 1 - 3, 5, 7, MR MAULIK G NANAVATI for Respondent : 4, None for Respondents : 6,6.2.3 UNSERVED-REFUSED (R) for Respondents : 6.2.1 DS AFF.NOT FILED (R) for Respondents : 6.2.2 MR KUNAL S SHAH for Respondents : 6.3.1 MR A.S.ASTHAVADI FOR PRASHANT G DESAI for Respondents : 7, ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 16/05/2008 ORAL JUDGMENT SCA/22498/2007 2/8 JUDGMENT 1. Mr. G.M.Joshi, learned counsel for the petitioner prays that he may be permitted to delete the name of respondent No. 5 from the array of respondents. Permission as sought for is granted. The respondent No. 5 be deleted from the array of respondents. The amendment to this effect be carried out forthwith. 2. The petitioner is a co-operative Society registered under the provisions of the Gujarat Co-operative Societies Act, 1961. The brief facts of the case as emerge from a perusal of the averments made in the petition and the documents annexed thereto are that, the petitioner Society is a Tenant Owners Co- operative Housing Society, which remains the owner of the land on which its members are permitted to construct their residential houses whereby, they become owners of the super- structure. According to the petitioner, Plot No. 29 admeasuring 824 sq.yards was allotted to one Sarabhai Kevaldas Shah, who had kept the plot open and did not construct any house on the said plot of land. It appears that the said Shri Sarabhai Shah expired in September, 1979 and as per the nomination made by the deceased, his legal heirs were entered as members of the Society. It is stated that the legal heirs of the deceased Sarabhai Shah also did not make any construction on the plot of land and, therefore, SCA/22498/2007 3/8 JUDGMENT the petitioner Society made efforts to sell the said plot in 1986 on the terms and conditions that the Society remains the owner and the members become the tenants of the land and owners of the super-structure. It is averred in the petition that the occupiers of plot No. 29 had shown the land belonging to the society as their own land, while filing in the requisite form under the provisions of the Urban Land (Ceiling & Regulation) Act, 1976 ('The Act' for short). It also appears that out of the land of plot No. 29, more particularly described as part of Final Plot No. 98 in T.P. Scheme No. 22 admeasuring 412.90 sq.mtrs., was declared as excess vacant land by the Competent Authority under the Act and was declared to be vested in the Government. It is stated that in view of the vesting of the land in the State Government, and possession thereof having been taken by the Competent Authority, a decision was taken by the State Government to auction several properties including the land bearing Sub-plot No. 29 admeasuring 412.90 sq.mtrs. The auction was held on 15.2.2006 and the respondent No. 4 Society, being the highest bidder, purchased plot No. 29. The petitioner Society, being aggrieved by the action of the State Government in accepting the statement and declaration for land bearing Final Plot No. 98/B (plot No. 29) in T.P.Scheme No. 29, as excess vacant land and consequently, by its vesting in the State Government and SCA/22498/2007 4/8 JUDGMENT thereafter its transfer to the respondent No. 4 by way of auction, has approached this Court by way of the present petition. 3. Rule was issued on 3.9.2007 on which date ad- interim relief in terms of Para 8(B) was granted. The petition has been contested by filing affidavits-in-reply by the respondents Nos. 2,4, 6.2.1 and 6.3.1. A rejoinder-affidavit has also been filed by the petitioner and an additional affidavit has been filed on behalf of respondent No. 4. 4. In the additional affidavit filed by the respondent No. 4, it has been stated that the office bearers of the petitioner Society have held amicable discussions with the respondent No. 4 and are in the process of resolving the dispute by arriving at an amicable settlement. 5. Today, when the case is taken up for hearing, Mr. G.M. Joshi, learned counsel for the petitioner, Mr. Maulik G. Nanavati, learned counsel for the respondent No. 4, have stated that the matter has been settled amicably and the parties have arrived at a settlement, which has been recorded in the Consent Terms dated 11.5.2008. The Consent Terms dated 11.5.2008 are ordered to be taken on record of the case. The Consent Terms have been signed by the petitioner, the respondent No. 4, learned SCA/22498/2007 5/8 JUDGMENT counsel for the petitioner, learned counsel for the respondent No. 4 and Shri Niravbhai Rameshbhai Thakkar, who is the purchaser from respondent No. 4, and read as under : “ : CONSENT TERMS : The petitioner and respondent No. 4 have amicably settled the matter and have arrived at the following consent terms and they request this Hon'ble Court to record the same and pass the order accordingly. 1. The respondent No. 4 Palak Co-operative Housing Society Ltd., agrees that the land being Plot No. 29 part belongs to Samasta Brahmkshatriya Cooperative Housing Society Limited and further agrees that what vested in the State Government on conclusion of proceedings under the Urban Land (Ceiling and Regulation) Act, 1976 was only the rights of Shri Sarabhai Shah, the tenant of the society with all obligations and/or encumbrances attached thereto. Accordingly, the auction held by the Government would also be treated as auction of the rights of the members of the petitioner society as a tenant. 2. The respondent Palak (paldi) Co-operative Society Limited having agreed to the same has further agreed that when the respondent No. 4 society purchased the said plot of land at a public auction held by the State Government, it has thus acquired the same SCA/22498/2007 6/8 JUDGMENT right, title and interest originally possessed by Shri Sarabhai Shah as member of the petitioner Society. 3. The Respondent No. 4 society as a member of the society (having stepped into the shoes of Shri Sarabhai Shah) has expressed its desire to transfer its rights in the said plot of land in accordance with the bye-laws of the society. And the society has in turn agreed to permit transfer of membership rights of respondent No. 4 in respect of the said plot of land, being Plot No. 29 of the society, in favour of Shri Nirav Rameshbhai Thakkar. Further, Shri Nirav Thakkar has agreed to use the said plot of land in accordance with the bye-laws of the society without asserting absolute ownership of the said plot of land independent of the society and in acceptance thereof Shri Nirav Thakkar has also placed his signature to the present consent terms as confirming party. 4. In turn, the petitioner society has agreed to permit the transfer of the membership in respect of the said plot of land bearing Final Plot No. 98/B Town Planning Scheme No. 22, more particularly, Plot No. 29 of the society in favour of Nirav Rameshbhai Thakkar, who would be enrolled as member. Said Nirav Rameshbhai Thakkar has agreed to comply with the requirements of the society including binding himself by the bye-laws of SCA/22498/2007 7/8 JUDGMENT the petitioner society. In acceptance thereof, Nirav Thakkar has also placed his signature to the present consent terms as confirming party. In above view of the matter, the contesting parties request this Hon'ble Court to record the agreement arrived at between the parties, accept Shri Nirav Rameshbhai Thakkar as member of the petitioner Society in his capacity as tenant of Plot No. 29 of the society, and dispose of the petition with no order as to costs. Date: 11.5.2008 Place: Ahmedabad. Sd/- Sd/ Petitioner Respondent No.4 Sd/- Sd/- Petitioner's Advocate Respondent's Advocate Sd/- Niravbhai Rameshbhai Thakkar.” 6. In view of the settlement arrived at between the parties, no other order is required to be passed, save and except that the petition is disposed of in terms of the Consent Terms. 7. The petition is, therefore, disposed of, accordingly. 8. Rule is made absolute to the aforesaid extent. There shall be no orders as to costs. SCA/22498/2007 8/8 JUDGMENT (Smt. Abhilasha Kumari, J.) pallav