SCA/27504/2006 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27504 of 2006 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 ? ========================================================= CHANDRAKANTBHAI RANCHHODBHAI PATEL & 4 - Petitioner(s) Versus BHUDARPURA APARTMENT CO-OP. HOUSING SOCIETY LTD. & 14 - Respondent(s) ========================================================= Appearance : MR SN THAKKAR for Petitioner(s) : 1 - 5. MR SHIRISH JOSHI for Respondent(s) : 1 - 2,4 - 7,10 - 13. NOTICE NOT RECD BACK for Respondent(s) : 3,8 - 9. - for Respondent(s) : 0.0.0,0.0.0 ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 17/03/2008 ORAL JUDGMENT 1. Rule. Mr. Joshi learned Counsel waives service SCA/27504/2006 2/8 JUDGMENT of notice of rule for respondent Nos. 1 to 13, and Mr. Shah learned Counsel waives service of notice of rule for respondent No. 14 and 15. 2. The petitioners have preferred the petition for challenging the legality and validity of the order passed by the tribunal dated 29.07.2005, whereby the appeal is allowed, and the award of the Board of Nominees is set aside. 3. It appears that the petitioners have filed suits claiming the rights as the members in respondent No. 1 society for having construction over the land, which is subsequently transferred in favour of respondent No. 14, though the claim of the society is that the society was having rights, and is entitled to have the land. It appears that the learned Board of Nominees considered the matter, and passed the award, against which the matter was carried before the tribunal, and the tribunal found that until the suits are pending in the City Civil Court, Ahmedabad namely Suit Nos. 1661 of 1996, 2492 of 1996 and 3826 of 1995, and until the status of the land as to whether it is held by the society SCA/27504/2006 3/8 JUDGMENT or by the builders or developers as the case may be, is finally decided, the Board of Nominees ought not to have granted relief, as per the award and therefore, the tribunal has allowed the appeal. However, the pertinent aspect is that the tribunal has not reserved any rights of the petitioners, in the event the society is to get land from the builders or developers, as the case may be, or ultimately the rights over the land are crystallised in favour of the society, as outcome of the suits. It may be as outcome of the aforesaid suits, if the society loses the matter, and consequentially, no right is established, the petitioners who are claiming status as the members of the society, may have difficulty in getting any relief in the said proceedings before the Board of Nominees. However, if the society's rights are crystallised over the land, and the society is to ultimately utilise the land, then in that case, the petitioners in capacity as the members of the society, would be entitled to the benefits as are confirmed to the other persons. SCA/27504/2006 4/8 JUDGMENT Such part of the matter is not at all been considered by the tribunal. 4. I would have further considered the matter, however Mr. Joshi learned Counsel for the respondent society submitted that it is the case of the society that the petitioners at the most would be entitled to the same treatment as are being given to all other members of the society. He further declared that all other members of the society are alloted two bed room flat and therefore, if the land is made available to the society, as outcome of the suits, the society has no objection in getting two bed room flat constructed over the said land, but petitioners may be required to bear cost of construction as prevailing on the date, when the construction is made over the land. He also submitted that such stand is made clear by society even in the present proceedings, and at para 5 of the affidavit in reply on behalf of the society inter alia stated as under: “...The petitioners, if at all, as Members, are entitled to allotment of flats as allotted to SCA/27504/2006 5/8 JUDGMENT the respondents...”. Therefore, he submitted that even if this Court clarifies the said aspect, the respondent society, or the other members of the society, have no objection for such purpose. 5. Mr. Shah learned Counsel appearing for the respondent Nos. 14 and 15 submitted that as such it is a matter between the petitioners and the society, however, he submitted that the rights of the respondent Nos. 14 and 15 as may be in the proceedings of aforesaid three suits may not be prejudiced in either way. 6. It appears that the proceedings of civil suit Nos. 1661 of 1996, 2492 of 1996 and 3826 of 1995 pending before the City Civil Court, Ahmedabad are even otherwise also pertaining to the dispute between the society, the builders and the developers as the case may be. Therefore even if any declaration is recorded, between the petitioners and the respondent society, the same would not prejudice the case of the parties in the proceedings of the suit in either way, more particularly because before the Board of SCA/27504/2006 6/8 JUDGMENT Nominees, the disputes were essentially between the petitioners in capacity as the members of the society. It is true that even if the petitioners are to claim or assert any rights over the land, it will be through society. 7. Under these circumstances, in the event status of the land is cleared in favour of the society, the petitioners would get nothing for all time to come, though their rights in capacity as the members of the society was considered by the Board of Nominees. As the suits are pending, even otherwise also, it cannot be concluded in either way as to whether the society would be entitled to the land or not, but at the same time in the event society succeeds in the litigation of the aforesaid suits, the petitioners may not be required to prosecute the matter once again for asserting rights as the members. 8. In view of the aforesaid declaration made on behalf of the society, as the petitioners are also to be treated at par with the other members of the society, I find that if the order of the SCA/27504/2006 7/8 JUDGMENT tribunal for setting aside order of the Board of Nominees is maintained with the additional clarification that in the event the society succeeds in the suit Nos. 1661 of 1996, 2492 of 1996 and 3826 of 1995 and the rights over the land are crystallised in favour of the society, the society shall permit or get construction permitted through its own mechanism of two bed room flat over the land, upon the payment of prevailing construction price at the relevant point of time, the same would meet with ends of justice. 9. In view of the aforesaid, it is observed that the order of the tribunal for quashing and setting aside the order of the Board of Nominees, is not interfered with, but it is further clarified that as and when the rights of the respondents society are crystallised over the land in question, after outcome of the proceedings of civil suit Nos. 1661 of 1996, 2492 of 1996 and 3826 of 1995, and if the society is legally entitled to utilise the land, the petitioners would be entitled to get SCA/27504/2006 8/8 JUDGMENT construction of two bed room flat over the land through society upon the payment of construction price as may be prevailing at the relevant point of time. 10.It is clarified that the present order shall not be construed to prejudice rights of the either side in the proceedings of civil suit Nos. 1661 of 1996, 2492 of 1996 and 3826 of 1995 pending before the City Civil Court, Ahmedabad. 11.The petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to cost. (JAYANT PATEL,J.) Suresh*