Gujarat High Court
Shweta Park Co-Operative Hsg. Society ... vs Union Of India & 2 on 7 November, 2014
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/1567/1991 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1567 of 1991
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SHWETA PARK CO-OPERATIVE HSG. SOCIETY LTD. & 2....Petitioner(s)
Versus
UNION OF INDIA & 2....Respondent(s)
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Appearance:
MS ARCHANA R ACHARYA, ADVOCATE for the Petitioner(s) No. 1 - 3
MRS MAUNA M BHATT, ADVOCATE for the Respondent(s) No. 3
MS MANISHA LAVKUMAR, ADVOCATE for the Respondent(s) No. 1
MS SEJAL K MANDAVIA, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 07/11/2014
ORAL ORDER
1 Petitioner No.1 is a Cooperative Housing Society. Petitioners No.2 and 3 are its Office Bearers. The petitioners have prayed for a direction to the respondents to remove the superstructure standing on a plot of land earmarked as plot No.3 in partI of the petitioner No.1 - Society. Brief facts are as under:
2 Petitioner No.1 - Society was constituted in the year 1962. It is a tenant ownership society. Plot No.3 of partI of the Society was initially alloted to one Shri J.V. Thakker. In October 1986, said Shri Thakker applied to the society for transfer of the said plot in the name of Page 1 of 6 C/SCA/1567/1991 ORDER Rekhaben Champaklal Sheth.
3 It appears that against said Rekhaben Champaklal Sheth, the authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 ('SAFEMA', for short) instituted proceedings for forfeiture of her property. The competent authority passed an order on 22.03.1988 forfeiting Rekhaben's said plot. Rekhaben surrendered the said plot to the competent authority on 30.06.1988.
4 The competent authority thereupon initially had correspondence with the petitioners first indicating that the said plot has been forfeited, and thus, vested in the Central Government, and thereafter, insisting that the society enter the name of the Central Government, and it is registered as an owner of the plot. Through replies, the Society opposed such request on the ground that a member of the Society is only the owner of the superstructure, the ownership of the land always remains with the Society, and further that in view of Section 22 of the Gujarat Cooperative Society Act, the Central Government cannot be a member of the Cooperative Society.
5 When this deadlock was not resolved, the Society filed this Page 2 of 6 C/SCA/1567/1991 ORDER petition with the above noted request for a direction to the respondents particularly the Central Government, to remove superstructure from plot No.3 of partI of the Society, and thereafter to hand over the vacant possession to the Society.
6 The main basis of the petitioners is that a member of the society is owner of the superstructure put up by him or her on the plot of land alloted by the Society, and no more. The society always continues to be an owner of the land, and the forfeiture order therefore cannot touch the ownership of the land, which was never vested in the member. The other opposition is that the Gujarat Cooperative Society Act lays down the categories of the persons who can be members of the Cooperative Society which does not include the Central Government, and therefore the request of the competent authority for joining the Central Government as member of the Cooperative Society cannot be accepted. 7 The concept of dual ownership in case of Cooperative Housing Society is well known concept, and has been recognized over a long period of time. The Society continues to be the owner of the land alloted to a member who is authorized to put up superstructure for his residential use. However, it would be incorrect to suggest that the member is the owner of the superstructure and has no further rights. The membership in a Cooperative Housing Society comes with a bundle Page 3 of 6 C/SCA/1567/1991 ORDER of rights and liabilities. The member as long as he continues in the said capacity and abides by the byelaws of the society, has right to use such occupation of the plot of land as the owner of the superstructure. The Central Government when therefore ordered forfeiture of Rekhaben's property in the society essentially it would result in all the rights and title of Rekhaben in the said property vesting in the Central Government. Obviously, the right which Rekhaben did not enjoy over the said property would not vest in the Central Government by virtue of forfeiture order or otherwise. The question of joining the Central Government as member of the Society would of course throws up a peculiar problem. However, it is not necessary for me to decide all these questions in view of further pleadings on record.
8 In an affidavit dated 27.07.2006 filed by Shri P.C. Chauhan, Inspecting Officer, under SAFEMA, titled as 'additional affidavit', it is stated that there were two intending purchasers of the property in question. They had in fact contacted the Society, and the Society had informed them that if the department is willing to settle the issue, the Society would not hamper the sale. In response to such affidavit, an affidavitinrejoinder dated 07.08.2006 was filed by the petitioners. In such affidavit, the society reiterated its stand that if the department was willing to settle the issue, the Society would raise no objection to the sale of the plot.
Page 4 of 6 C/SCA/1567/1991 ORDER 9 Under the circumstances, it can be seen that the Central Government obviously be interested in liquidating the property by selling the property and to recover the sale proceeds. On the other hand, the Society has in the said affidavitinrejoinder as well as through the counsel before the Court made it clear that if any individual member applies for membership of the society, who is otherwise qualified under the byelaws and agrees to abide by the byelaws of the society, the society would have no objection, subject to clearance of legal dues of the Society, to make him a member of the society, and transferring the plot in his name.
10 Under these circumstances, petition is disposed of with the following directions:
(1) It would be open for the respondents and particularly, Respondent No.1 to identify the intending purchaser of the plot in question by assuring highest possible price to the Central Government through such means as may be permissible. (2) It would be open for the petitioners to suggest any buyers to the Central Government if any intending purchasers contact the society.
(3) Once the buyer and sale consideration are finalized, the Page 5 of 6 C/SCA/1567/1991 ORDER competent authority and such intending purchaser shall jointly apply to the Society for transfer of the plot in the name of such purchaser.
(4) The Society shall make such purchaser its member and transfer the plot in question in his or her name, of course subject to clearance of all the legal dues of the society and payment of such transfer charges as may be permissible under the law.
11 With these directions, this petition is disposed of.
(AKIL KURESHI, J.) chandresh Page 6 of 6