Sarjan Cooperative Housing Society ... vs Surat Municipal Corporation on 10 September, 2020

[Cites 3, Cited by 3]

Gujarat High Court

Sarjan Cooperative Housing Society ... vs Surat Municipal Corporation on 10 September, 2020

Bench: Bhargav D. Karia

         C/SCA/4229/2020                                      ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4229 of 2020

                              With
 CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
         In R/SPECIAL CIVIL APPLICATION NO. 4229 of 2020
==========================================================
              SARJAN COOPERATIVE HOUSING SOCIETY LTD.
                              Versus
                   SURAT MUNICIPAL CORPORATION
==========================================================
Appearance:
MR BAIJU JOSHI(1207) for the Petitioner(s) No. 1
MR.AMIT R JOSHI(6682) for the Respondent(s) No. 2,3
NOTICE SERVED(4) for the Respondent(s) No. 1
==========================================================

 CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 10/09/2020

                               ORAL ORDER

Heard learned advocate Mr. Baiju Joshi for the petitioner and learned advocate Mr. Amit Joshi for the respondents no.2 and 3 through video conference.

ORDER IN CA :

1. Civil Application is filed under Article 226(3) of the Constitution of India for vacating interim relief granted by this Court on 19th February, 2020 by passing following the order :

"1. Heard Mr. Baiju Joshi, learned advocate for the petitioner.

2. Mr. Joshi, learned advocate for the petitioner submits that the Page 1 of 5 Downloaded on : Sat Sep 12 00:27:17 IST 2020 C/SCA/4229/2020 ORDER petitioner is a cooperative society and as per bylaws and resolutions of the society a member cannot submits plans for making construction in the society. He has also relied upon circular dated 03.01.1998 issued by the Director of Planning (page 48 Annexure - G) wherein it is notified that a plot holder or owner in cooperative society situated in Surat Municipal Corporation area who submits the plans for construction after getting approval of the society. If any member is found submitting such plans without approval of the society, he was liable to be penaled action. He submits that respondent Nos.2 & 3 submitted the plans to Surat Municipal Corporation without getting approval of the society and such plans are approved by the Corporation vide development permission dated 22.10.2019. He has relied upon the decisions of this Court in the case of Sarjan Cooperative Housing Society Ltd. V. Surat Municipal Corporation & Others, Chandulal Bavabhai Solanki V. state of Gujarat Though Secretary & Others, New India Cooperative Housing Society Ltd.

v. Municipal Corporation of Greater Mumbai and Another, Ambica Nagar Cooperative Housing Society Ltd. v. State of Gujarat & Others and Mulshanker Kunverji Gor and Others v. Juvansinhji Shivubha Jadeja, wherein it is held that in case of construction of land of a cooperative society, municipal authority cannot sanctions such plans if they are not approved by the society. He also submits that the respondent Nos. 2 & 3 have demolished the bungalow and are going to undertake the activity of making new construction as per Page 2 of 5 Downloaded on : Sat Sep 12 00:27:17 IST 2020 C/SCA/4229/2020 ORDER development permission dated 22.10.2019 in near future.

3. In view of the above, let there be Notice to the respondents returnable on 7th April, 2020. In the meantime, parties are directed to maintain status quo."

2. Learned advocate Mr. Amit Joshi appearing for the applicants who are original respondents no. 2 and 3 submitted that the applicants have filed an undertaking wherein it is stated by the applicants that the applicants shall construct their residential house in accordance with the plan approved by the petitioner-society- opponent no.1 and as per permission no.

SMC/10.01.2020/1365005/01/012131 granted by the respondent no.1 Surat Municipal Corporation .

3. On perusal of the undertaking which is at page no.8 of the Civil application, it appears that it refers to the plan dated 8th December, 2019 which is subsequently revised by the respondent no.2 Surat Municipal Corporation by permission no. SMC/10.01.2020/1365005/01/012131.

4. Learned advocate Mr. Amit Joshi appearing for the applicants states that there is a typographical error with regard to the date mentioned in the undertaking and applicants are ready to file fresh undertaking before this Court stating that the applicants shall make construction as per approved plan by the petitioner society which is Page 3 of 5 Downloaded on : Sat Sep 12 00:27:17 IST 2020 C/SCA/4229/2020 ORDER sanctioned as the revised plan by the respondent no.1

-Surat Municipal Corporation in January,2020

5. Learned advocate Mr. Amit Joshi further submitted that the applicants shall also undertake to remove the construction as stated in the undertaking at page. No. 8 which is not in accordance with plan approved by the petitioner -society and as per revised plan sanctioned by the respondent no.1 Surat Municipal Corporation in the year 2020.

6. In view of the above statements made by learned advocate Mr. Amit Joshi for the applicants, learned advocate Mr. Baiju Joshi appearing for the petitioner- opponent no.1 society states that as respondent no.1- Surat Municipal Corporation has revised the permission as per the plan approved by the petitioner society, and as the applicants i.e. respondents nos. 2 and 3 in the special civil applications are ready to abide by the same, grievance made in the main petition with regard to quashing and setting aside communication dated 22nd October, 2019 would stand redressed.

7. In view of above facts, Civil Application No. 1 of 2020 is allowed. Interim relief granted by order dated 19th February, 2020 stands vacated on condition that the applicants shall file an undertaking before this Court within a period of one week from today stating that the Page 4 of 5 Downloaded on : Sat Sep 12 00:27:17 IST 2020 C/SCA/4229/2020 ORDER applicants shall make construction only in accordance with the plans which are approved by the petitioner- society and sanctioned by respondent no.1 - Surat Municipal Corporation as per permission no.SMC/10.01.2020/1365005/01/012131. The applicants shall also undertake to remove the construction which is not according to the plan approved by the petitioner society and as per the permission no.SMC/10.01.2020/1365005/01/012131 issued by Surat Municipal Corporation as stated at page no. 8 of the application. The respondents no. 2 and 3 shall be permitted to start construction only after filing of the undertaking before this Court and after providing a copy thereof to the petitioner society.

8. With the above directions and observations, Civil Application is accordingly allowed and stands disposed of.

ORDER IN SCA :

In view of the order passed in the Civil Application No. 1 of 2020, grievance raised in the Special Civil Application No. 4229/2020 has been redressed and it has become infructuous and is accordingly disposed of as having become infructuous. Notice is discharged with no order as to costs.

.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 5 of 5 Downloaded on : Sat Sep 12 00:27:17 IST 2020

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