Gujarat High Court
Janta Nagar Co Operative Housing ... vs State Of Gujarat on 20 September, 2019
Equivalent citations: AIRONLINE 2019 GUJ 367
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/LPA/1346/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1346 of 2016
In R/SPECIAL CIVIL APPLICATION NO. 17041 of 2016
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2016
In R/LETTERS PATENT APPEAL NO. 1346 of 2016
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JANTA NAGAR CO OPERATIVE HOUSING SOCIETY LTD
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR SHAKTI S JADEJA(5491) for the Appellant(s) No. 1
MR RAKESH PATEL, AGP(1) for the Respondent(s) No. 1
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 2,4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
and
HONOURABLE MR.JUSTICE VIRESHKUMAR B. MAYANI
Date : 20/09/2019
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1 This intracourt appeal under Section 15 of the Letters Patent Act is at the instance of the original petitioner of a special civil application and is directed against the judgment and order passed by a learned Single Judge of this Court in the Special Civil Application No.17041 of 2016 dated 10th October 2016, whereby the learned Single Judge declined to entertain the writ application, and accordingly, rejected the same.
2 The facts giving rise to this intracourt appeal may be summarised Page 1 of 8 Downloaded on : Sun Sep 22 00:35:43 IST 2019 C/LPA/1346/2016 ORDER as under:
"The petitioner is a cooperative society registered under the provisions of the Gujarat Cooperative Societies Act, 1961.
On 16th August 1980, original owners of the land namely Shri Naranbhai Bhukhanbhai and others as well as the petitioner - society filed an application before the respondent no.1 seeking permission to execute a sale deed in favour of the petitioner - society for the purpose of constructing residential houses. It is submitted that vide order dated 16th August 1980, respondent No.1 granted permission to execute sale deed in favour of the petitioner - society on certain conditions.
On 14th May 1981, pursuant to the aforesaid permission, a sale deed came to be executed in favour of the petitioner - society. That necessary Rajachitthi also came to be issued to the petitioner - society for carrying out construction as per plan. It is submitted that pursuant to the same, the petitioner - society has constructed approximately 740 flats on the said land. Recently, certain members have started using the flats for commercial purpose and started operating commercial activities like grocery store, pan parlours, hair saloon, saree shop, medical store, etc. On 18th September 2014, at midnight, one of the members has demolished the compound wall of the petitioner - society and put a gate of 10 feet and started doing commercial activities of selling food and snacks, etc and covered margin area of the society by approximately 300 sq feet and made an encroachment over the land of the petitioner - society. It is submitted that the land on which encroachment is made was the margin land which was to be kept open by the society. It is submitted that the petitioner - society has submitted a complaint to the concerned police station for the illegal demolition of compound wall.Page 2 of 8 Downloaded on : Sun Sep 22 00:35:43 IST 2019 C/LPA/1346/2016 ORDER
As per byelaws of the petitioner - society, the members of the society have to use the flats only for residential purpose and the said byelaws strictly prohibit use of the flats for any other activities.
On 20th September 2014, petitioner - society has made a detailed representation to the respondent authorities raising its grievance.
On 7th October 2014, petitioner - society sought certain information under the provisions of Right to Information Act, 2005 such as permission granted to flat holders for commercial use, names of such flat holders, date of granting permission for commercial use, details of payment of impact fee, etc. It is submitted that vide letter dated 16th October 2014, the respondent - authority informed the petitioner that on perusal of record, it appears that no permission for commercial use is granted to any of the flat holders and the respondent - authority has not received any application from any flat holder under GRUDA Act.
On 4th November 2014, petitioner - society has made a representation to respondent - authority with regard to the illegal construction and with regard to illegal commercial use in residential area.
2nd January 2015, petitioner - society again made a representation to the respondent - Commercial, SMC as well as to the Police Commissioner, Surat with regard to the illegal construction made without permission and with regard to commercial use in residential area.
On 10th March 2015, petitioner - society again set a reminder to respondent - Commissioner, SMC with regard to illegal commercial construction made in petitioner - society without taking necessary permission.Page 3 of 8 Downloaded on : Sun Sep 22 00:35:43 IST 2019 C/LPA/1346/2016 ORDER
1st October 2015 and 12th October 2015, as no action was taken by the respondent authorities, the petitioner - society was constrained to file a writ petition being Special Civil Application No.15422/2015 before this Hon'ble Court. It is submitted that vide order dated 1st October 2015 to 12th October 2015 (order below note for speaking to minutes), the said writ petition was disposed off by this Hon'ble Court by directing the respondent - Corporation to consider the representation / application of the petitioner on its own merits as expeditiously as possible.
On 21st March 2016, pursuant to the aforesaid order passed by this Hon'ble Court, the respondent no.4 issued notices dated 21st March 2016 asking the concerned persons to stop using the residential flats for commercial activities, failing which the respondent no.4 shall apply seals on the properties as per provisions of Gujarat Municipal Corporation Act, 1949.
That more than five months have passed after issuance of the aforesaid notices dated 21st March 2016, however, usage of residential flats in the petitioner - society for the purpose of commercial activities is not stopped till date and the same are used for commercial activities as on date. It is submitted that respondent no.4 also has not taken any further action pursuant to its notices dated 21st March 2016 till date and the grievance of the petitioner is not ventilated till date.
In 2016, Special Civil Application No.17041 of 3016 was filed seeking issuance of directions upon the respondents herein.
Vide order dated 10th October 2016, the aforesaid special civil application came to be dismissed. Hence, the present appeal."Page 4 of 8 Downloaded on : Sun Sep 22 00:35:43 IST 2019 C/LPA/1346/2016 ORDER
3 The appellant before us is a registered cooperative housing society. The society came before this Court by filing the Special Civil Application No.17041 of 2016 with the following prayers:
"(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the concerned respondent authorities herein to take steps / action pursuant to the Notices dated 21.03.2016 issued by respondent no.4 herein (at annexureL colly) as well as pursuant to the representations of the petitioner - society dated 20.09.2014 (at Annexure F hereto) and 04.11.2014 (at AnnexureH hereto) and may further pleased to issue appropriate directions to the respondent - authorities to take appropriate steps / action for preventing the usage of residential flats of the petitioner - society for commercial activities.
(B) During the pendency and final disposal of the present petition, Your Lordships may be pleased to direct the concerned respondents herein to take steps / action pursuant to the Notices dated 21.03.2016 issued by respondent no.4 herein (at AnnexureL colly).
(C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
4 It appears that the grievance of the society is that its members are using their residential premises for commercial use. The office bearers of the society want their members to abide by the byelaws of the society. It is the case of the society that no commercial use is permissible in any residential bunglows. It appears that they took up this issue with the Surat Municipal Corporation. It also appears that the Surat Municipal Corporation took cognizance of what is complained by the society, and in turn, issued notices to the members of the society under Section 264 Page 5 of 8 Downloaded on : Sun Sep 22 00:35:43 IST 2019 C/LPA/1346/2016 ORDER of the Gujarat Provincial Municipal Corporation Act, 1949. Such notices issued by the Municipal Corporation are now a subjectmatter of challenge in a civil suit filed by the members. We are not concerned with this part of the litigation.
5 We only need to look into whether the learned Single Judge committed any error in rejecting the writ application. The learned Single Judge, while rejecting the writ application, has observed as under:
"4 As could be seen from the prayers, the prayer is with regard to appropriate direction in exercise of discretion under Article 226 of the Constitution of India to the Corporation that they must take action for the unauthorized use of the commercial nature in the society meant for residential use. It is the say of the petitioner himself referring to the condition of NA as well as byelaws that it was meant for the residential use. If it was the society, the society could have moved in proper form under the Cooperative Society Act or by filing civil suit. Having not done so, earlier petition was filed being Special Civil Application No.15422/2015 and the order came to be passed on 01.10.2015. A close look at the said order of the High Court (Coram : R.M. Chhaya, J.) would make it clear that all that the High Court had observed was that the respondent no.1 was directed to consider the representation on its own merits. Thus the representation has been directed to be considered which the authority might have considered. If according to learned advocate, Shri Jadeja, the direction has not been fulfilled or any direction has not been complied with then, it could be a matter before the Court under the Contempt Act for noncompliance. However as stated above, it was only to consider the representation and there was no such direction though it was a similar prayer to take appropriate steps for stopping the use of the residential flat for the commercial activity. Therefore this is a fresh petition filed after some opinion is obtained under the Right to Information Act as stated by learned advocate, Shri Jadeja.
5 Be that as it may, there is no quarrel with regard to the issues that if the residential society is granted permission for the use of the flat or premises for residential purpose, it has to be used for same purpose. If there is any other used, appropriate measure could be taken either under the Cooperative Society Act or by filing civil suit. Even after earlier petition was filed and the representation was directed to be decided, the petitioner could have taken appropriate measures.
6 However the present petition is filed by the petitioner seeking Page 6 of 8 Downloaded on : Sun Sep 22 00:35:43 IST 2019 C/LPA/1346/2016 ORDER direction as the Executing Court pursuant to the same observation made in earlier round of litigation to decide the representation. Thus the emphasis made by learned advocate for the petitioner that if the authority has failed to take steps or discharge the function, a writ would lie, is misconceived inasmuch as discretionary jurisdiction under Article 226 of the Constitution of India could be pressed into service, where the authority has failed to take action for a class of person or community and not for individual case like whether the society or members of the society have committed or violated same Rules or the byelaws regarding the use of the premises. It is an inter se matter between the society and the members and the members and the members. Again it would depend upon various factors involving examination of facts and disputed questions facts and, therefore, the directions which are sought by way of this petition to take further steps after the issuance of the notice, cannot be entertained in the present petition under Article 226 of the Constitution of India.
7 Reliance placed by learned advocate, Shri Jadeja on the judgment of the High Court in case of Ambica Nagar CoOp. Housing Society Ltd. (supra), it is required to be stated the facts were different and in any case, there were more issues, which were also relating to the Town Planning Act, GDCR etc. and as stated in paragraph no.2, it was the issue whether the society and/or member, who is allotted plot, is entitled to use, development, transfer or raise construction of commercial nature, which was required to be considered, which has been again considered. However in the facts of the case, such petition at the instance of society and/or some of the members, who are the petitioners, cannot be entertained for the prayers as prayed for regarding the direction to the respondent Corporation for implementation of the notices or stop the commercial use as alleged."
6 Thus, the learned Single Judge took the view that the dispute being between a cooperative housing society and its members, there is no question of issuing any writ of mandamus or any other direction to the Surat Municipal Corporation. The view taken by the learned Single Judge, in our opinion, is absolutely correct.
7 At the same time, we do agree with Mr. Jadeja, the learned counsel appearing for the society that the members cannot use their residential premises for any commercial purpose. It is not in dispute that the byelaws of the society do not permit such commercial use of the residential premises situated in the society. If that be so, then it was Page 7 of 8 Downloaded on : Sun Sep 22 00:35:43 IST 2019 C/LPA/1346/2016 ORDER expected of the society to take up the issue with the Registrar, Cooperative Societies, State of Gujarat. The issue which has been raised by the society can be adjudicated under the provisions of the Gujarat Cooperative Societies Act. If the members of the residential housing society are not abiding or adhering to the byelaws of the society, then they are liable to be disqualified as members. The law in this regard has been very exhaustively discussed in a decision delivered by one of us (J.B. Pardiwala, J.) in the case of Mazda Rise Cooperative Housing (Service) Society vs. Deputy Secretary Appeal Cooperation Department [Special Civil Application No.7088 of 2015 decided on 26th November 2018].
8 Although we are not inclined to disturb the impugned judgement delivered by the learned Single Judge, yet we reserve the liberty of the society to take up this issue with the competent authority i.e. the District Registrar / Registrar, Cooperative Societies, State of Gujarat under the provisions of the Gujarat Cooperative Societies Act.
9 In view of the above, this appeal fails and is hereby dismissed with the aforesaid observations.
10 As the appeal is dismissed, the connected civil application also stands disposed of.
(J. B. PARDIWALA, J) (VIRESHKUMAR B. MAYANI, J) CHANDRESH Page 8 of 8 Downloaded on : Sun Sep 22 00:35:43 IST 2019