Gujarat High Court
Yogesh vs Ahmedabad on 10 December, 2010
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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SCA/15776/2010 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 15776 of 2010
With
SPECIAL
CIVIL APPLICATION No. 15777 of 2010
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YOGESH
N MAHADEVIA - Petitioner(s)
Versus
AHMEDABAD
MUNICIPAL CORPORATION THROUGH - Respondent(s)
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Appearance :
MR
DAKSHESH MEHTA for
Petitioner(s) : 1,
None for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 10/12/2010
COMMON
ORAL ORDER
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. Heard Mr. Mehta for the petitioner and Mr. M.G.Nanavati, learned AGP upon the advance copy on behalf of the State of Gujarat, Urban Housing and Urban Development Department and Home Department.
2. Prima facie it appears that as per the deed of allotment, copy whereof is produced on page 17 by the petitioner, there is reference to only Raja Chhithi that means commencement certificate for construction and there is no reference whatsoever to building use permission. Therefore, it prima facie shows that in absence of BU permission the property is alloted by the association to the petitioner. It is hardly required to be stated that unless there is a BU Permission, no right to occupy exists. In spite of the same, the person who has put up the scheme knowingly, has pocketed the consideration by allotting the construction for which there was no BU permission.
3. Further in the agreement what has been alloted is "open land" in front of the house and back side of the house admeasuring 400 sq.ft. of the said Yamir Packaging Pvt. Ltd. This prima facie shows that the open land, which is a common property of the members of the association and to be used for common facility of all the members of the association, is sold away by one Mr. Ronak Kiritbhai Shah representing himself to be the Chairman of the Association to the petitioner. It is hardly required to be stated that an area, which is meant for common facility and common ownership of any scheme, is to be maintained and preserved for common facility and to be retained by way of a common ownership. It cannot be sold away or allotted for exclusive right of any member by the developer or the association itself. In spite of the same, the common open space made for common amenities of all the members of the association is allotted exclusively by receiving the huge consideration of Rs. 20 lacs in the present case to the petitioner which prima facie can be said to be a selling of the property by taking away or curtailing a lawful right of the other members of the association and, for which, there is no authority exists for sale or disposal of the common property or common facility. Incidentally, the reference may be made to the decision of this Court in case of Harikrushnadas Chhaganlal, Nanalal & Ishwardas Mohanlal Seva Samaj Trust Vs. Vinodchandra G. Vaghela & Another reported in 2010 (2) GLR 1820 wherein at paras 4,5 and 6 it was observed as under:
"4. It is an admitted fact that the society has sold the land of the common plot to the petitioner. It can hardly be disputed that the land of the common plot in any residential society is meant for common use and common purposes of all members of the society, and all members of the society, so far as common plot and common facilities and common area are concerned, they are holding joint and common interest in such portion. It is not the case of the respondent society that the land has been permitted to be used for creating of any common facilities for the members of the society. The resolution of the society goes to show that upon the application of the trustees of the trust, the society has resolved for sale of the land of common plot admeasuring 400 sq.yards to the trust at Rs.200/- per sq. yard and against the total consideration of Rs.80,001/-.
5. The contention raised on behalf of the petitioner by the learned counsel is that when the society had unanimously resolved for sale of the property, the petitioner in capacity as the member of the society, could not have objected to such sale nor the Nominee could entertain such grievance of the petitioner as against the majority will of the members of the society.
6. Had it been a case where the society had resolved for the sale of its land over which there is no common interest of all the members, it may stand on different footing. But, in a case where a common plot is reserved for common facilities and common purposes of all members of the society, even a single member who is having right for utilization of the common plot can raise the grievance against any illegal action of the members of the Managing Committee of the society or may be of the General Board of the society for sale of such property and the reason being that he has the interest for utilization of the common plot together with the other members of the society. Further in any residential area or when the land is converted into N.A. for residential purposes, there is requirement to provide common plot for common facilities of the residents of the area and excluding the common plot and the roads the other area may be available to the original owner for utilization for residential purpose by himself or by selling the same to some third party. Therefore, if the common plot is earmarked for common use and common facility of a residential colony, which in the present case is the society, the majority of the members of the society, even if the contention of the learned counsel for the petitioner is considered for the sake of examination, cannot take away the right to use the common plot for common facilities of other members who may be in minority. If such an approach is permitted in cooperative societies, it would result into encouring the oppression over minority members by the majority members and thereby the majority members would be in a position to nullify the rights for common use of the common plot which would run counter to the Cooperative Principles and would also frustrate the purpose for which the common plot is earmarked in any residential colony. The aforesaid is coupled with the circumstance that no common plot which is earmarked at the time of N.A. can be converted for any exclusive use of any member or any person without prior permission of the competent authority under the Bombay Land Revenue Code read with the rules. It is not the case of the society that there was alteration in the N.A. plan which was approved by the competent authority under the Bombay Land Revenue Code read with the rules and the common plot had ceased to be common plot. But, it appears from the resolution of the society that the common plot has continued as the common plot and the very area of common plot is resolved to be sold to the trustees of the petitioner trust. It may be recorded that even if section 73 of the Gujarat Cooperative Societies Act is read in its liberal interpretation so as to vest the final authority of the society in the General Body of the members, such powers are subject to the provisions of the Act and the Rules. There is no power under the Act contemplated or vested with the General Body to take away the interest created in favour of the member over the common plot for common use. Further, such powers cannot be read to commit illegality of converting the land for exclusive view of any member in contravention to the provisions of the Bombay Land Revenue Code read with the Rules. Therefore, under these circumstances, merely because the General Board had passed the resolution for sale of the common plot is not valid ground to deny the entertainment of the grievance by one member of the society who had common interest for common use of the common plot of the society. Therefore, the contention of the learned counsel for the petitioner cannot be accepted." (Emphasis supplied)
4. The aforesaid prima facie leads to the situation that when the person, who floats the scheme or develops the property at the initial stage, applies for permission for construction from the Municipal corporation by showing a particular plan or a particular declaration, it is obligatory upon the person concerned, who has submitted the scheme or the successor in the title or power, to complete the formalities under the relevant provisions of The Bombay Provincial Municipal Corporation Act to make construction as per approved plan and to get the BU permission. It is hardly required to be stated that when the plan is submitted in any scheme for residential or commercial construction, certain area is earmarked for the common facility and the common purposes to be enjoyed jointly by all members of the association. Even if the construction is made in accordance with the plans submitted as such, it can not be sold and disposed of to third party or the persons who are inducted as the members. Such right may exist to the extent of lawful construction but there is no authority vests to the developer or the person who has proposed this scheme to dispose of any portion which is either not constructed in accordance with bye-laws of the corporation or such area or the portion is to be reserved for common facility and common purposes of all the members of the such association or the society.
5. If any person, who bona fide acts upon representation of the builder or the developer of the association or the society, and is induced to pay the amount and thereafter a show is made of handing over of the possession of the common place and or the portion in the common facility for exclusively use of any member, the same prima facie can be said to be an indulging into the activity of cheating to the person who is induced to pay consideration and consequently may call for the criminal prosecution too, if the satisfactory evidence comes upon record. It may also result into punishment for breach of the provisions of the BPMC Act as provided under Chapter XXV and more particularly, Section 399 and other relevant provisions. If the provisions of the Corporation Act are not complied with, it may be required for the corporation to consider the matter for initiation of the prosecution against the person or his successor in title or power, who has applied for construction permission and thereafter not complied with the provisions of the Act, by-laws and the regulations.
6. It is true that the provisions and the BPMC Rules for construction in the municipal area is required to be followed, and if not followed, the officers of the corporation shall be well within their power to enforce the law but, at the same time, such enforcement should not only result into demolition or applying of seal to the unauthorized construction or the use of the premises but such power can also be extended for lodging the criminal complaint against those persons who in capacity as developer or builder applied for construction and thereafter not complied with the provisions of the Corporation Act. We are inclined to make such prima facie observations because of the facts and circumstances of the case and to avoid a situation that not only the persons, who is occupying the premises, is answerable but the person who is pioneer of the situation namely the developer or the builder who had floated the scheme equally be answerable and he should also be made to suffer for the alleged misdeeds if any.
7. We may observe that the aforesaid prima facie observations are not for frustrating the provisions of the Corporation Act but are for supplementing the spirit of the purpose of the law and also to see that no one should escape the law, if he has taken undue benefit by cheating the innocent persons and merrily observing the consequences of his misdeed without suffering the consequence of his own action.
8. In view of the aforesaid, we are prima facie of the view that before the matter is considered for passing further necessary directions in this regard, the corporation should be called upon to submit the report about the action proposed to be taken by it and its officers to ensure that such situations are not escaped and the situation so created are properly remedied.
9. As per the prima facie observations, the consequences of cheating to the person who has offered the premises also affects to the citizen at large at the hands of the person who has submitted plan for development or construction of the premises and thereafter not complied with, we find that the response of the State and more particularly Urban Housing and Urban Development Department as well as the Home Department of the State Government is required to be considered, before this Court issues further direction in this regard.
10. Hence, following directions:
(1) The developer, from whom the petitioner has purchased the property namely Mr. Ronak Kiritbhai Shah and the association of Shivalik (Vastrapur) Owners Association and any other person connected therewith in capacity as developer, shall be impleded as party. Additionally, the State Government, through Secretary, Urban Housing and Urban Development Department as well as the Secretary Home Department shall be impleded as the party.
11. Notice returnable on 15.12.2010. Mr. Nanavati waives service of notice for respondent No. 1-State of Gujarat, through Secretary, Urban Housing and Urban Development Department as well as through Secretary, Home Department as party respondents. Hence, the office shall issue notice to the other remaining respondents.
12. It is further observed that on the returnable date, the report shall be submitted by the Commissioner of Ahmedabad Municipal Corporation as well as by the Secretary, Home Department and the Secretary, Urban Housing and Urban Development Department on the aspects as to what actions is proposed to be taken by the corporation and by the State Government in this regard and as to why further direction should not be issued.
13. Mr. Nanavati shall communicate the order to the secretaries of both the departments. Direct service for the remaining respondents.
[JAYANT PATEL, J.] [S.R.BRAHMBHATT, J.] JYOTI Top