Gujarat High Court
Nitaben Virendrabhai Biravat vs Surat Municipal Corporation on 18 October, 2013
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi, Mohinder Pal
NITABEN VIRENDRABHAI BIRAVAT....Applicant(s)V/SSURAT MUNICIPAL CORPORATION C/CA/8706/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR STAY) NO. 8706 of 2013 In LETTERS PATENT APPEAL NO. 991 of 2013 In SPECIAL CIVIL APPLICATION NO. 4692 of 2011 ================================================================ NITABEN VIRENDRABHAI BIRAVAT....Applicant(s) Versus SURAT MUNICIPAL CORPORATION & 5....Respondent(s) ================================================================ Appearance: MR SHIRISH JOSHI, ADVOCATE for the Applicant(s) No. 1 MR DHAVAL G NANAVATI, ADVOCATE for the Respondent(s) No. 1 MR DC DAVE SENIOR ADVOCATE with MR PA JADEJA, ADVOCATE for the Respondent(s) No. 3 - 6 RULE SERVED BY DS for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 18/10/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. This matter was heard at length in the morning. The learned advocate Mr.P.A.Jadeja requested to keep the matter back at 1.00 p.m. on the ground that he wants to take instructions from his client. At 1.00 p.m., learned senior advocate Mr.D.C.Dave appeared with Mr.P.A.Jadeja.
2. The present civil application is filed by the applicant/original petitioner praying that:
9(A) Pending hearing and final disposal of the aforesaid Letters Patent Appeal, this Hon ble Court may be pleased to stay the operation, execution and implementation of the impugned order dated 19.7.2013 passed in Special Civil Application No.4692/2011 by the ld. Single Judge of this Hon ble Court, and further be pleased to grant the interim reliefs, as prayed for, in para 18(B) and para 18 (BB) in the memo of petition in the interest of justice, and this Hon ble Court may be further pleased to grant the interim reliefs, as prayed for, in para 18(B) and para 18(BB) in the memo of petition in the interest of justice.
3. The facts which are for consideration of this Court are that Pujan Complex situated in the city of Surat is a co-operative housing society. They provided mezzanine floor (skip floor) for common facility of the members of the society. The case of respondents No.3 to 6 is that they are put in possession of the mezzanine (skip) floor by the society and in support of this, they are relying upon certain documents, one of which is produced at page 79 the allotment letter . That allotment letter does not contain anything which can support the said contention raised by learned advocate for respondents No.3 to 6. A feature which is required to be noticed in this letter is that it is under signature of the President of the society.
3.1 It is a settled law that President of a society is not a monarch and he has no power or authority to allot common plot/common space. In the present case, mezzanine (skip) floor to respondents No.3 to 6. If at all the President has issued any such letter, that letter is non-est in the eye of law, unless it is supported by a valid resolution passed by the society.
3.2 The other contention of respondents No.3 to 6 is that, in the year 2010 the Society got the construction/ possession of respondents No.3 to 6 regularized by paying necessary impact fee under the GRUDA.
4. This contention is replied by the learned advocate for the appellant that the amount paid is rupees four lakhs plus and the books of account of the society do not bear any such entry. The only inference which can be drawn from these facts is that it is respondents No.3 to 6 who managed everything in the name of the society to get their unauthorized allotment/ possession regularized. This is a pure question of disputed facts . The fact remains that even if the construction/possession of respondents No.3 to 6 is regularized by GRUDA, it is got regularized fictitiously and by making misrepresentation before the authorities concerned. The learned advocate for respondents No.3 to 6 is not able to point out to this Court any law which permits regularization of allotment of common plot of a co-operative society in favour of any person, more particularly when the society is consisting of flats and members of the society in their earnest wish and wisdom provided the mezzanine floor for the purpose of utilization by members of the society. It is a trite law that any such illegal act does not confer any right whatsoever on the persons, in this case respondents No.3 to 6.
5. It is another thing that some minor irregularities in the nature of breach of margin space-maintenance etc. can be regularized by paying impact fee, but entire common space meant for the society, more particularly for playing and common gathering of members of the society, cannot be allotted by the President of the society and cannot be got regularized by the society (it is the case of respondents No.3 to 6 that the society of its own got the allotment/construction regularized). In view of that, this Court is of the opinion that the authorities are required to be directed to remove respondents No.3 to 6 from the mezzanine floor. The Corporation is hereby directed to take necessary police assistance and the Commissioner of Police, Surat is directed to provide necessary assistance to the officers of the Corporation, to get the entire mezzanine floor vacated and hand over the same to members of the society within seven days. The matter is kept on 24.10.2013. The expenses, if any, shall be recovered from respondents No. 3 to 6 for undertaking the aforesaid exercise. Direct service is permitted today.
6. At this juncture, learned senior advocate Mr.Dave requested that operation/implementation of this order be stayed. This Court is of the opinion that staying of this order will give encouragement to such illegal activities and, therefore, the Court does not find it proper to stay this order. Request is rejected.
( RAVI R.TRIPATHI, J.) ( MOHINDER PAL, J.) (KMGThilake) Page 5 of 5