Company Law Board
Shri Satish Kumar Bharti, Smt. Usha ... vs Surya Estates Pvt. Ltd., Shri R.K. ... on 21 December, 2006
Equivalent citations: [2007]138COMPCAS694(CLB)
ORDER
S. Balasubramanian, Chairman
1. The case of the petitioners in a nut shell is: The company is a quasi partnership between the families of the 1st petitioner, 2nd and 3rd respondents each group holding l/3rd shares in the company and that in breach of the principles of partnership and legitimate expectation, the 2nd and 3rd respondents have taken over the control of the company in exclusion of the petitioners and that the respondents are guilty of various acts of oppression and mismanagement and have been acting in a manner prejudicial to the interest of the petitioners. The business of the company is to construct commercial buildings and it has so far constructed one building named as "Surya Towers". The petitioners' group became shareholders in January, 1984 with object and understanding that all the three groups would be allotted space in the commercial complex. In other words, the right to acquire and possess space in the commercial complex arose out of the shareholding in the company. The 1st petitioner was appointed as a director and he was made in charge of the administration of the company and also of execution of the project of construction of a commercial building on the plot of land allotted by DDA. The construction of the building was completed in 1991 with 5 floors including the basement and ground floor with a total area of 15540 sq. ft. In 1994/1995, 48 out of 56 flats/spaces were handed over to the allottees subsequent to the builders' agreements entered into between the allottees and the 1st petitioner on behalf of the company. As per the understanding that each group would be entitled to be allotted space in the building, the entire lower ground floor comprising of LG-1, LG-2, LG-3 and LG-4 were allotted and purchased by the petitioners' group. While, on behalf of the company, the builders' agreement in respect of LG-1 was signed by the 3rd respondent, builders' agreements relating to the other 3 flats were signed by the 1st petitioner. In pursuant to the advertisement in Hindustan Times, the 1st petitioner offered the premises LG-1 to LG-4 to Orient Bank of Commerce and by an agreement dated 26.3.1998, the premises were let out to the bank. The board of directors approved the 1st petitioner signing the lease agreement on behalf of the company as "confirming lessor" on the understanding that a portion of the rent was to be paid to the company. On 1.4.1998, the 2nd respondent was appointed as a director in place of his father Shri A.M. Malhotra who had retired on 31.3.1998. After his joining as a director, the 2nd respondent had started acting in a manner prejudicial to the interest of the petitioners' group. First the authority given to the 1st petitioner to execute the lease deed with the bank was revoked by the 2nd and 3rd respondents (Annexure P-17). Thereafter, the company had also revoked license agreement in respect of LG-1 to LG-4 on the plea of misuse and non payment of license fee. In addition, the respondents 2 and 3 wrote to the bank asking the bank to pay the rent directly to the company, due to which the bank had stopped paying rent to the petitioners. Even though, LG-1 to LG-4, were allotted to the petitioners on payment of full license fees, and which also stand mutated in the records of MCD, the 2nd respondent is trying to grab this premises on false contentions. Further, the 2nd respondent has got himself appointed as the MD without the consent of the board and even though the 1st petitioner is a director, he is not getting notices for any board meeting. Further, the 2nd and 3rd respondents are guilty of siphoning of funds of the company and they are continuously defaulting in payment of maintenance charges etc. With these allegations, the petitioner has sought for proportional representation on the Board, for a declaration that the appointment of the 2nd respondent as the MD is illegal and that investigation into the affairs of the company should be ordered. During the pendency of the petition, the company has rectified the register of Members of the company by removing the names of the petitioners on the ground that the transfer instruments, when they became shareholders on transfer of shares had not been properly stamped.
2. Shri Sarkar, Senior Advocate, appearing for the petitioner submitted: Originally, the company was incorporated by three groups. The petitioners purchased the shares held by one group holding 33% shares and thus became l/3rd shareholders of the company. The main purpose and idea of the petitioners acquiring l/3rd shares in the company was with the understanding that all the three groups would be allotted space in the commercial complex. In other words, the right to acquire and possess space in the commercial complex arose out of the shareholding in the company. Accordingly, the petitioners' group was allotted 4 flats in the basement totally measuring to 3108 sq. ft. and 1 flat in the ground floor and further l/3rd share of flat in the ground floor. The entire consideration was paid and the company also executed builders agreement. The company had also issued No Dues Certificate and also possession letters. In the year 1998, the petitioners leased out 4 flats in the basement to Oriental Bank of Commerce on a monthly rent of Rs. 69,149.81. A tripartite agreement was entered into between the bank, petitioners and the company by which of the monthly rent payable by the bank, a sum of Rs. 6992/- would be paid to the company for use of common corridors and removal of walls. In a board meeting held on 2.2.1998 ( Annexure P-1), the board of directors approved signing of the agreement as "Confirming Lessor". Accordingly, the basement was let out to the bank for a period of 3 years. However, by an undated letter signed by the 2nd and 3rd respondents, the petitioner was informed that the authority given to the 1st petitioner by a resolution dated 2.2.1998 for executing the lease deed for 3 years stood revoked. By a letter dated 20.2.2003 (Annexure P-18), the 2nd respondent informed the 1st petitioner that in view of the latest notification that basement cannot be used for commercial purposes, the petitioners should immediately stop misuse of the basement failing which license granted to the petitioner would be cancelled. This stand of the respondents is highly oppressive in as much as the board of the company had approved the tenancy of the bank and as a matter of fact, the company had signed the lease agreement as a "confirming lessor". Not resting with this oppressive act, the petitioners were also informed that the petitioners had not paid the full licence fees for the space licensed to them on the ground that they all had paid only Rs. 200/- per sq. ft. and not Rs. 350/-. According to the respondents, the rate of Rs. 200/- sq. ft. was applicable only if the lump sum payment was made and if not, the rate per sq. ft. was Rs. 350/-. This contention is completely contrary to the terms of the builders' agreements which recordsthat each of the petitioners had paid full consideration to the company and nothing remained to be paid. As a matter of fact, the company had issued no dues certificate to all the petitioners as is evident from Annexure P-23. The Licensing Agreements between the company and the petitioners at Annexure P-4 would clearly indicate that the total price for the flats allotted to them had been paid and no balance was due. This agreement has been signed by two directors who do not belong to the petitioners' group. The fact that the entire consideration had been paid by the allottees would also be evident from note 5 forming part of the audit report for the year 1994-95 ( Page 364 of the petition). In spite of the petitioners informing the company that there was nothing due from them, yet, with a malafide intention, the 2nd respondent wrote to the bank stating that the licenses with respect to the flats in the basement had been cancelled and directed the bank to pay the rent directly to the company. Because of the disputes, the bank had stopped paying further monthly rent. The malafide intention of the respondents in this regard is evident from the fact that while they have alleged that the basement could not be rented out for commercial purposes, they themselves had issued an advertisement on 21.2.2004 (Annexure P-38) inviting offers for licensing the same space for commercial purposes.
3. The learned Counsel further submitted: The 2nd respondent has unilaterally appointed himself as MD on 27.11.2002 and has cornered all the powers of day to day management. The 1st petitioner did not receive any notice for the alleged board meeting on that day and therefore there was no valid quorum. Even though the 1st petitioner continues as director, yet, he has not been receiving any notice for board meeting in spite of the fact that he has deposited a sum of Rs. 150/- with the company seeking for notices by registered post (Annexure P-16). Except for 3 meetings in the year 2003, the petitioner has not received any notice for subsequent meetings. Thus, the 1st petitioner has been kept in dark about the affairs of the company. There are lot of contradiction about the stand of the 2nd respondent about the date of his appointment as MD. In a letter addressed to petitioner on 13.3.2001, he had stated that he had been appointed as the MD effective from 10.3.2001 ( Annexure P-31). However, in a letter addressed to the bank on 14.5.2003 ( Annexure P-32), he has stated that he was appointed as the MD w.e.f. 30.11.2002. No information about his appointment as MD has been given to ROC nor form No. 32 has been filed to ascertain the correct date of his appointment. Whatever might be his date of appointment, the same has been done without notice nor with the consent/knowledge of the 1st petitioner. Further, with a view to take complete control of the financial affairs of the company, he has written a letter to the bank on 14.3.2003 that he has been authorized to operate the bank accounts of the company singly while the other two directors, namely, the 1st petitioner and the 3rd respondent would operate the accounts jointly. It is to be noted that right from 1984 till Feb. 2003, the bank accounts were always operated jointly by any two directors.
4. It was further argued: With a view to harass the petitioners, the 2nd respondent by a letter dated 7.2.2003 had complained that during the period the 1st petitioner was in control of the company, he failed to get the house tax assessed and also failed to deposit the same even though it is the responsibility of the licensees to directly pay the house tax. Thereafter, the 2nd respondent also wrote letters to the allottees of the petitioners' group stating that they had not paid the full license fee and raised huge demands from the allottees. When the allottee informed the company that no amount was due, he had cancelled the licensing agreement on 25.8.2003. When the petitioners protested, by a letter dated 9.6.2003, the 2nd respondent informed the allottees that they could appeal to the board of directors. On the plea that the licensing agreement has been cancelled, the 2nd respondent also informed the bank to stop payment of rent to the petitioners.
5. The learned Counsel further submitted: Having harassed and oppressed the petitioners in the above manner, the 2nd respondent has also removed the names of the petitioners from the register of members while the present proceeding was pending. The reason for doing so as alleged by the 2nd respondent is that the instruments of transfers, when the petitioners acquired the shares by transfer in 1984, were not properly stamped and therefore the registration of transfer was in violation of Section 108 of the Act. No notice or prior intimation was given to the petitioner regarding the same. The said action of the 2nd respondent is malafide, illegal and abinitio void. No notice for the board meeting in which this decision was taken was given to the 1st petitioner. The said action has been taken on the basis of the transfer instruments, copies of which had been kept with the petitioner and annexed with the rejoinder. It is not the case of the respondents that the original transfer instruments in the custody of the company were unstamped. At the time of registration of transfer, fully completed transfer instruments were placed before the board and on that basis only the transfers were registered. After having recognized the petitioners as members for about 21 years, removing their names on the basis of copies annexed by the petitioner is not only a grave act of oppression but also malafide. Further in terms of Article 24 of AOA, the registration of transfer shall be conclusive evidence of the approval of the board of the transfers.
6. It was further submitted: The 2nd respondent is also guilty of mismanagement of the affairs of the company. Between 29th March, 2003 to 7th April, 2003, the 2nd respondent had withdrawn Rs. 3.1 lac from the bank under his single signature out of which he had transferred Rs. 2 lacs to his own account. He had further withdrawn Rs. 42500/- without any explanation. Since March, 1998, accounts had not been prepared and finalized and no AGM has been held since 2001. Likewise, Income Tax returns have not been filed. The 2nd respondent and his family members have defaulted in payment of maintenance charges, lease and capital fund contribution.
7. On the basis of these allegations, the learned Counsel sought for the following reliefs: The shareholding of the petitioners should be restored; the unpaid rent now kept in deposit by the bank should be directed to be paid to the petitioners along with the keys for the premises LG-1 to LG-4; cancellation of the licensing agreement of the flats/spaces allotted to the petitioners should be declared as null and void.
8. The petitioners have relied on the following case laws: Bennett Coleman & Co. v. UOI 40 CC 92; Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad 2005 3 CLJ 385 (SC) to the proposition that the jurisdiction of the court to grant appropriate relief under Section 402 of the Act is of wide amplitude and as such it is entitled to make any order which it considers as just and equitable.
9. The learned Counsel for 2nd respondent submitted: The entire petition relates to the claim of ownership of the flats in the commercial complex on the basis that the right to space in the building arose out of the membership in the company. This argument is absolutely fallacious as is evident from the fact that the total area now claimed by the petitioner works out to nearly 44% of the total area of Surya Tower compared to the l/3rd share held by the petitioners' group in the company. R.K. Malhotra group holds only 13.42% of the total area while K.R. Gupta group holds only 8% of the total area notwithstanding the fact that each group has equal shareholding of 1/3 shares in the company. This disproportionate allotment of space itself would show that there was no relation to the membership and the right to the space in the company. The allocation of space on license basis to the petitioners, the 2nd respondent and 3rd respondent was purely a commercial decision involving contractual rights which cannot be enforced through a petition under Sections 397/398 of the Act.
10. The learned Counsel further submitted: Even otherwise, the petitioner has sought for only three reliefs in the petition. One is the proportionate representation on the board. The 1st petitioner is already a director on the board and as such the petitioners' group is proportionately represented on the board. The second relief is for declaration that the appointment of the 2nd respondent as MD is illegal, null and void. The petitioner himself has recognized the appointment of the 2nd respondent as MD and therefore this prayer cannot be granted. The third prayer is for an investigation into the affairs of the company. The respondents are agreeable for an investigation. Therefore, the petition could be disposed of with the above observations/directions.
11. Dealing with merits of the case, the learned Counsel submitted: The 1st petitioner was in management of the company for nearly 20 years and during this period he had siphoned of enormous funds of the company. During this period, he had transferred the registered office of the company four times as is evident from the search report at Annexure R-l and by doing so he had ensured that none of the respondents could know about the affairs of the company. The various agreements that the petitioners had relied on, have all-been signed by the 1st petitioner. Even the space (Annexure, G-6) was licensed by him to his own in-laws, who are not shareholders shareholders of the company.
12. The learned Counsel further submitted: The foundation of the petition is that LG-1 to LG-4 have been sold to the petitioners. This contention is not tenable. The licensing agreements relied on by the petitioners are not registered instruments and in terms of Section 54 of Transfer of Properties Act, no sale of immovable property valuing more than Rs. 100/- can be made without a registered instrument. Further, in terms of the lease deed with DDA, no sale can be effected for a period of 10 years from the commencement of the lease and even then permission of the DDA is required. In other words, the premises could not have been sold to the petitioners and as a matter of fact, a perusal of the agreements would indicate that the premises have been given only on license basis. In terms of the DDA rules, basement cannot be used for any commercial purpose other than for the purposes of storage/parking/installation of services. In spite of this, the petitioners had let out LG-1 to LG-4 to the bank and thus were guilty of misuse of the premises. Even otherwise, the 3 years' term of the original lease with the bank expired on 14.1.2001 and since the company has cancelled/revoked the licensing agreement with the petitioners, the premises LG-1 to LG-4 stood reverted to the company and the petitioner cannot receive any rent from the bank. The company had rightly revoked the licensing agreement since full payment had not been paid. Since the 1st petitioner was in charge of the company, he had misrepresented the factual position that the petitioners had paid the stipulated license fees. Lower rate of licensing fee had been fixed for one time full payment failing which higher rates were to be paid. Even though the petitioners did not pay the license fee in full at a time but in installments, the 1st petitioner had adopted the lower license fee and executed the licensing agreement stating that full payment had been received. Only when the respondents investigated the matter, they came to know that instead of charging higher licensing fee, the 1st petitioner had charged lower licensing fee. When the company demanded the balance amount, the petitioners failed to pay the balance and since they had also misused the premises by letting out to the bank, the company had revoked all the licensing agreements.
13. In so far as the appointment of the 2nd respondent as MD is concerned, in a board meeting held on 27.11.2002, two resolutions were passed - one regarding the appointment of the 2nd respondent as the MD and the second related to waiver of interest on arrears of dues on account of maintenance charges. It is to the knowledge of the petitioner that the decision regarding waiver of interest has been implemented and he has not challenged the same. Therefore, he cannot allege that there was no board meeting on 27.11.2002 to contend that the 2nd respondent was not appointed as the MD on that day. Further, the 2nd respondent, by styling himself as the MD, had convened a board meeting on 30.8.2003 by a notice dated 6.8.2003. By a letter dated 29.8.2003, the 1st petitioner sought for leave of absence without questioning the authority of the 2nd respondent to convene that meeting in his capacity as the MD. This would clearly indicate that the 1st petitioner has acquiesced to the appointment of the 2nd respondent as the MD.
14. In so far as the removal of the petitioners from the register of members is concerned, the stand of the 2nd respondent is: In the rejoinder filed by the petitioners, they had enclosed therewith photo copies of instruments of transfer executed at the time when they acquired the shares from the erstwhile shareholders. A perusal of copies of instruments would indicate that they were blank and unstamped, thus infringing the mandatory provisions of Section 108 of the Act. Since there is statutory bar, the company could not have transferred the shares in favour of the petitioners. Since the company did not have the original records, on the basis of the blank unstamped instruments of transfers filed along with the rejoinder, the board of directors of the company cancelled the transfers made in favour of the petitioners on 1.8.2005 and thereafter filed Form No. 2 with the ROC on 9.8.2005. The petitioners have not adduced any proof that transfer instruments complete in all respects were lodged with the company. In Claude Lila Parulekar v. Sakal Paper Pvt. Ltd. , it has been held that Section 108 of the Act is not a mere technicality and non compliance therewith at the time of transfer of shares cannot be cured subsequently and that registration of shares invalidly transferred cannot be rectified by the board of directors. Therefore, the petitioners do not continue as members of the company and on this account alone, the petition should be dismissed.
15. In so far as payment of rent by the bank to the petitioners is concerned, since the company has cancelled the licensing agreement with the petitioners, they are not entitled to receive any rent from the bank. As a matter of fact, the company has filed a suit against the bank claiming enhanced rent as well as maintenance charges. In the said suit, the petitioners have also been arrayed as defendants wherein they have admitted that the flats/spaces had not been sold but only licensed to them.
16. Summing up his arguments, the learned Counsel for the respondents submitted: The petitioners are not entitled to claim any relief relating to the flats in a proceeding under Sections 397/398 of the Act under which only shareholders' rights can be agitated. Further, the petitioners have not established that the company is liable to be wound up on just and equitable grounds which is a pre condition in a petition under Sections 397/398 as held in Hanuman Prasad Bagri v. Bagress Cerals Private Ltd. 2001 4 SCC 480.
17. I have considered the pleadings, arguments and written submissions. The respondents have submitted that the petition could be disposed of on the basis of the prayers in the petition on the ground that since the 1st petitioner is already a director, there is no further direction required in regard to the directorship as sought for as prayer No. 1 since that the 1st petitioner has acquiesced to the appointment of 2nd respondent as MD, the second prayer in the petition could be rejected and investigation as sought for in prayer No. 3 could be granted. Unfortunately, the case is not that simple as the respondents have tried to make out. When the proceeding on the petition was pending, the company had cancelled the membership of the petitioners even without seeking the leave of this Board. Therefore, the first issue for determination is regarding the membership of the petitioners. It is an admitted fact that the petitioners became shareholders of the company on acquiring the shares of erstwhile shareholders by transfer. Even in the reply to the petition, the respondents have not challenged that the petitioners were not members of the company. The impugned action of canceling the membership of the petitioners is based solely on the copies of the instruments of transfers enclosed with the rejoinder. It is true that these copies are blank and unstamped but it does not lead to the conclusion that at the time of lodging the shares for registration of transfer, the petitioners had lodged blank and unstamped instruments. It is an admitted fact that the company has not relied on the original instruments of transfers, which according to the respondents are not available with the company and a decision having serious implications could not have been taken on the basis of photo copies . The provisions of Section 108 of the Act can be invoked to reject a request for registration of transfer on the ground that the instruments are unstamped but once the company had registered the transfer, it cannot invoke the provisions of Section 108. In a similar situation, the Division Bench of Madras High Court has held that a company cannot be allowed to raise its own irregularity after a lapse of time, (Kothari Industrial Corporation Ltd v. Lazor Detergent P. Ltd. 81 CC 699. In the present case, the company had recognized the petitioners as members of the company for over 20 years and therefore, the Board was not justified in taking the impugned decision. Further, Article 24 of AOA very clearly specifies that registration of transfer shall be conclusive evidence of the approval by the board of the transfer meaning thereby that the board would have ensured compliance with the provisions of law in regard to the registration of transfers. The very fact that during the pendency of the petition, the board of company has chosen to remove the names of the petitioners from the register of members that too without relying on the original documents shows that the board of directors has not only acted in a malafide manner but also in a manner grossly oppressive to the petitioners. Therefore, I declare that the petitioners continue to be the members of the company and direct the company to rectify the register of members by restoring the names of the petitioners as members within a period of 20 days from the date of this order.
18. In regard to the various claims of the petitioners in relation to the space/flats allotted in their favour are concerned, it is necessary to refer to the order of this Bench dated 29.7.2004. In that order, it is recorded "As far as this instant application is concerned, in a petition under Sections 397/398, only grievances qua a member's right can be agitated Recourse to the provisions of these Sections cannot be taken to enforce contractual rights. According to the learned Counsel for the petitioners, the right to the premises has arisen out of the membership of the company and in the absence of any affidavit to the contrary by the respondents, in spite of sufficient time given to them, I am considering the application on the basis of the said averment of the learned Counsel for the petitioners". I had kept the issue whether the entitlement of flats/spaces in the building arose out of the membership, open. It is a settled law that the provisions of Section 397 can be invoked only when a shareholder feels aggrieved that he is being oppressed in his capacity as a member. Contractual rights divorced of the membership rights cannot be agitated in such a proceeding. In the present case, the petitioners have asserted that right to the flats/space arise out of/ flows from their membership in the company and therefore depriving their right to the flats/spaces is an act of oppression. On the contrary the respondents assert that there . is no co-relation between the shareholding and the entitlement to flats/spaces and that allotment is a contractual matter. I am inclined to agree with the respondents. Admittedly, there is nothing on record to show that membership in the company and the entitlement to flats would go hand in hand. Likewise, there is nothing on record to show that the petitioners acquired the shares on the understanding that they would be entitled to some space/flats in the commercial complex. To presume that there was such an understanding, then, it should be reflected in subsequent conduct of the parties. If there were to be such an understanding, it could be that each of the three groups of shareholders would be entitled to equal area in the commercial complex as all of them hold equal percentage of shares in the company. From the submissions of the parties it is seen that while the petitioners group had been allotted about 3300 sft, the 2nd group got about 2030 sft and the 3rd respondent group only about 1135 sft. Therefore, I am not convinced that there is any nexus between the shareholding and entitlement to the space in the building. In other words, the entitlement to the space did not and has not arisen out of the membership in the company and it was purely a contractual matter. Being a contractual matter, any grievance relating to the impugned cancellation of the licence cannot be agitated in a petition under Sections 397 and 398 of the Act and has to be agitated in a civil court. In so far as the rent payable by the bank is concerned, it is on record that even before the petition was filed, the bank had stopped payment of rent on account the disputes between the parties and since during the hearing, both the sides made a claim of the rent, I directed the bank to pay the rent to the petitioners for a particular period and the rent due thereafter was directed to be deposited without being paid to the company or the petitioners. Now it has been prayed for by the petitioners that directions should be given to the bank to pay the rent to the petitioners and also to hand over the key of the premises to the petitioners. Since I have held that the issues relating to the premises is a contractual matter, it is for the bank to decide as to whom the rent kept in deposit should be paid.
19. In so far as the directorship of the petitioner is concerned, it is the stand of the respondents that the 1st petitioner continues to be a director. Since I have already held that he and his group continue to hold l/3rd shares in the company, the petitioner will continue as a director and the respondents shall not take any action to remove him from the directorship. I further direct that for all board meetings, he should be given 10 days notice by registered post with acknowledge due together with agenda. Since there are 3 directors each representing one group, the bank operations should not be handled only by one director but by two directors jointly, which was the practice for a long time. Accordingly, I direct that with immediate effect, the bank operations shall be by 2 directors jointly.
20. In so far as the appointment of the 2nd respondent as the MD is concerned, the admitted fact is that effective from July, 1997, the 1st petitioner ceased to be a functional director and from March, 1998, the 2nd respondent has been a functional director having complete control and management of the affairs of the company. In other words, even without the designation of MD, he had been discharging the functions of MD and therefore his designation as MD, whether with the knowledge and consent of the petitioners or not, cannot be considered to be an act of oppression and therefore I do not find any substance in the allegations in this regard.
21. It has been suggested by the 1st petitioner, on the ground that there has been a complete loss of trust and mutual confidence between him and the 2nd respondent, that this Board should direct parting of ways. He has suggested that his group could purchase the shares held by the respondents on the basis of the market value of the flats/spaces still available with the company. To this suggestion, the 2nd respondent has proposed that if the petitioners so desire, they could sell their shares to outsiders. It is true, as is evident from the proceedings, that there has been a complete loss of trust and mutual confidence between the two groups. But, since it is a closely held private company, the question of an outsider purchasing the shares of either group does not arise. Since the petitioner's group holds only l/3rd shares in the company, the question of the petitioners' group acquiring the shares of the respondents does not arise. Therefore, if the petitioners are interested in selling their shares on a fair valuation, then, directions could be issued to the company to purchase the shares of the petitioners and reduce its paid up capital. If the petitioners opt to sell their shares in writing to the company within one month from the date of this order, the company is bound to purchase the shares on a fair valuation to be determined by an independent valuer to be appointed by this Board, on an application to be made by the petitioners.
22. The petition is disposed of in the above terms reserving the right to appoint a valuer if an application to be made by the petitioners.