Gujarat High Court
Thakorbhai Keshavbhai Patel & 3 vs State Of Gujarat & 3 on 13 January, 2014
Author: Vijay Manohar Sahai
Bench: Vijay Manohar Sahai, K.J.Thaker
C/LPA/15/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 15 of 2014
In SPECIAL CIVIL APPLICATION NO. 1558 of 2005
With
CIVIL APPLICATION NO. 246 of 2014
In
LETTERS PATENT APPEAL NO. 15 of 2014
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THAKORBHAI KESHAVBHAI PATEL & 3....Appellant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR CHIRAG B PATEL, ADVOCATE for the Appellant(s) No. 1 - 4
MR UTKARSH SHARMA, GOVERNMENT PLEADER for the Respondent(s)
No. 1
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 13/01/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. Heard, Mr. Patel, learned Counsel for the appellants. The present letters patent appeal is preferred by the appellants, challenging the order dated 13.11.2013, passed by the learned Single Judge in Special Civil Application No. 1558 of 2005.
2. The appellants are the original owners of the land situated at Dabhoi, bearing Survey Nos. 1586 and 1588, admeasuring about 8603.78 sq.mts.. The appellants sold the plots to Page 1 of 6 C/LPA/15/2014 ORDER different persons by registered Sale Deed including the Cooperative Society and the original petitioner Nos. 3 and 4. The original petitioner Nos. 1 and 2 acted as developers for and on behalf of the Cooperative Society and approached the competent authority for obtaining permission under Section 29 of the Gujarat Town Planning & Urban Development Act, 1976 as well as under the provisions of the Gujarat Municipalities Act, 1963 for developing the land and obtained the same on 18.02.1993. The Municipality, Dabhoi, also granted permission for construction on 31.03.1993. The construction was carried out and same was sold to different persons. Pursuant thereto, Dy. Collector, Dabhoi, started procedure under Section 67 of the Bombay Land Revenue Code for breach of conditions of NA Permission and by order dated 15.04.1996, he directed regularization of construction on payment of fine. Being aggrieved by the same, the members of the Cooperative Society instituted a suit before the learned Civil Judge, Dabhoi, being Regular Civil Suit No. 102 of 1996. A revision application was also preferred before the Collector under Section 211 of the Code, who set aside the order passed by the Dy. Collector and issued directions for removal of construction. The order of the Collector, when challenged before the State Government, came to be confirmed. The question which arose before the learned Single Judge was, as to whether on common Page 2 of 6 C/LPA/15/2014 ORDER plot of a Cooperative Society, shops can be constructed by the appellants, which were later on sold to six different persons. The learned Single judge considered the aforesaid aspect and recorded her findings at Paras 8, 8.1, 8.2 and 9, which read as under;
"8. On thus hearing both the sides, at the outset, the law on the subject sought to be relied upon requires consideration. In case of Karimbhai Kalubhai Belim & Ors. [Supra], this Court has held that once the development permission is obtained under section 29 of the Act, no other permission is required under any other law; including the NA permission under section 65 of the Code.
8.1 Division Bench of this Court in case of Collector v. Triveni Park Cooperative Housing Society Limited [Supra] also has reiterated this proposition.
8.2 This Court in case of Harikrushnadas Chhaganlal, Nanalal & Ishwardas Mohanlal Seva Samaj Trust [Supra] while adjudicating the dispute in relation to the Gujarat Cooperative Societies Act, 1961 had categorically held that the common plot reserved under NA permission cannot be converted to any exclusive use without the permission of the competent authority under the Bombay Land Revenue Code as all the members of the Society have a common/joint as well as individual right to use the common plot, and if there is any illegal act on the part of the managing trustee, even a single member has a right to raise Page 3 of 6 C/LPA/15/2014 ORDER grievance against the same.
9. In the instant case, permission that had been granted by the Dabhoi Municipality for construction of shops, subject of course to permission granted on 18th February 1993 and such permission is categorical that the use of common plot has to be made by all members of the society. Therefore, any construction in a common plot contrary to the permission shall need to be questioned by the concerned authorities and both the respondents no. 1 & 2 have rightly addressed the issue. Even if it is assumed that there is a permission under section 29 of the Act to the petitioner for carrying out the construction, such permission was conditional and that condition, since is not fulfilled, the petitioner cannot rely upon the same and consequently, on both the authorities of this Court for contending that no permission under section 65 of the Code was necessary. Moreover, in the matters before this Court in both these authorities cited above, the question was not with regard to the common plot, but, it was an individual plot and therefore also, decision rendered in case of Harikrushnadas Chhaganlal,Nanalal & Ishwardas Mohanlal Seva Samaj Trust [Supra] shall have a direct applicability. This Court also, in case of New Meghdoot Cooperative Housing Society Limited v. Manubhai Ambalal Patel & Anr., [Special Civil Application No. 6824/2002 :: Decided on 12th November 2013] held that, "... since the common plot in the residential society is meant for common use and amenities and for the purpose of enjoyment of the facilities Page 4 of 6 C/LPA/15/2014 ORDER by all the members, neither the Chairman nor one of the members of the Executive Committee has a right to alienate the said plot without the consent of one and all." This construction being in the common plot, which was meant for common/joint use by all the members, the respondents no.1 & 2authorities have committed no error in directing removal of such construction. It is contended that the Town Planning Officer has clarified that one sixth area of the common plot can be made use of, for the purpose of cooperative stores and the total area under construction by the impugned shops is only one sixth of the common plot. It needs to be noted that such construction of cooperative stores shall have to be made by the Cooperative Society. No individual owner can own such cooperative store/s. Admittedly, these shops are owned by individual owners, and therefore, this submission also fails."
3. We do not find any illegality in the order of the learned Single Judge and we agree with the same. The permission granted under Section 29 of the Gujarat Town Planning & Urban Development Act, 1976, was for the purpose of use of common plot by all the members. Thus, six shops could not have been constructed thereon and allotted to six different persons, as the entire common plot is to be used by the members of the cooperative society, as per the permission dated 18.02.1993.
Page 5 of 6 C/LPA/15/2014 ORDER4. For the aforesaid reasons, we do not find any merits in this appeal and the same is summarily DISMISSED.
5. Since, appeal is dismissed, civil application shall not survive and it also stands DISPOSED OF, accordingly.
(V.M.SAHAI, J.) (K.J.THAKER, J) UMESH Page 6 of 6