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Mr. S. P. Majmudar, learned advocate for the petitioners vehemently assailed the impugned order, by submitting that the same is contrary to the provisions of the Bombay Provincial Municipal Corporation Act as well as the provisions of the Gujarat Town Planning & Urban Development Act, 1976. It was argued that none of the objections raised by the petitioners were ever considered while granting the impugned development permission which has adverse civil consequences upon the petitioners, because, the development permission is granted over the common plot of the Society. It was pointed out that as per the original sanctioned plan of the Society, the plot in question in which the development permission is given is, in fact, a common plot of the Society. That in view of the impugned development permission, the petitioners are unable to use their land freely. Reliance was placed upon the decision of this court in the case of Harikrushnadas Chhaganlal, Nanalal & Ishwardas Mohanlal Seva Samaj Trust v. Vinodchandra G. Vaghela and another, (2010) 2 GLR 1820, for the proposition that a housing society cannot sell away its own common plot even by resolution of majority of its shareholders. It was argued that in the present case, similar analogy applies since the respondent Corporation has granted development permission over the common plot of the petitioner Society. It was urged that earlier, the development permission was cancelled by the respondent Corporation and thereafter, there is no change in the circumstances and therefore also, the respondent Corporation ought not to have reviewed its decision. It was submitted that the order of the respondent Corporation cancelling the development permission was not set aside by this court in the earlier proceeding and as such, the same still stands.

Vehemently opposing the petition, Ms. Medha Pandya, learned advocate for the respondents No.3 and 4 drew the attention of the court to the map at Annexure L (page 184 of the petition), to point out that the common plot insofar as the subject land is concerned, was cancelled in the year 1981 itself and it has been shown to be cancelled, and as such, the subject land does not form part of the common plot, as is sought to be contended by the petitioners. It was further submitted that the petitioner Society is not a Cooperative Housing Society, but is a Cooperative Housing Service Society, which is not equivalent to a Cooperative Housing Society, which is generally the owner of the entire lands. It was submitted that insofar as the present Society is concerned, the same has been constituted only in the year 2007 for the purpose of providing services to the members of the Society. Under the circumstances, the Society has no locus to file any objections against the grant of development permission in favour of the respondents No.3 and 4, inasmuch as, the subject land is not vested in the Society, but the units belong to individual holders who are, inter alia, members of the Service Society. It was pointed out that the petitioners have not brought on record the correct facts, inasmuch as, the plan annexed with the affidavit-in-reply filed by the respondents makes it crystal clear that units No.58 and 59 are beyond the boundary and purview of the common open plot, which is popularly known as COP . The common open plot ceased to exist upon the passing of the revised plan in 2013 and in 2002. It was submitted that the first development permission was granted in the year 1981, wherein there were three common open plots. Thereafter, the reservation came into force under the Town Planning Act and, accordingly, one COP was reserved by the respondent Corporation and the land owners were permitted to place a fresh plan. It was submitted that as per 1981, the original plan of proposed Town Planning Scheme No.30 (Rander) bearing Original Plot No.81, permission was granted wherein only two common plots were shown. Out of the same, one common open plot was requisitioned by the respondent No.1 Corporation and one common plot admeasuring 728.06 square metres was maintained. The development permission was also sought for in the year 2002 for units No.58 and 59 along with other units, however, construction was not begun on units No.58 and 59 and the other unit No.61 was constructed as per sanctioned plan. It was submitted that in the writ petition filed by the petitioners, the court had directed the respondent Corporation to consider the fresh plan submitted in respect of units No.58 and 59 and that the Municipal Corporation would consider the same in accordance with law. It was submitted that, therefore, the contention that the earlier development permission having been cancelled, it was not permissible for the respondent Corporation to grant fresh development permission to the respondents No.3 and 4, is misconceived and flies in the face of the order passed by this court.

In the light of the aforesaid facts, the Junior Engineer had recommended that the application made by the petitioners should be filed and the development permission should be granted. It appears that after considering the relevant factors, the respondent Corporation has granted the development permission in question.

In the backdrop of the aforesaid facts, it may be noted that the petitioner Society is not a Co-operative Housing Society and as such, is not the owner of the subject lands. Moreover, from the record of the case, it is apparent that the development plan of 1981 subsequently came to be changed and the subject lands no longer form part of the COP. The contention raised by the learned counsel for the petitioners that the subject land forms part of the COP and as such, in view of the decision of this court in the case of Harikrushnadas Chhaganlal, Nanalal & Ishwardas Mohanlal Seva Samaj Trust v. Vinodchandra G. Vaghela and another (supra), wherein it is held that the area reserved for common plot cannot be converted to any exclusive use without permission of competent authority, is misconceived, inasmuch as, in the facts of the present case, the respondent Corporation, after examining the record of the case, has found as a matter of fact that the subject lands do not form part of the common open plot . Thus, the main contention raised by the petitioner Society does not merit acceptance.

Moreover, the petitioner Society is merely a Housing Service Society and not a Cooperative Housing Society, which has any interest in the common plot or any of the lands of the members of the Society. The petitioner Society, therefore, cannot be equated with a Cooperative Housing Society which is the owner of the plots occupied by the members as well as the common plots. Insofar as the contention raised on behalf of the petitioners that the development permission cannot be granted without the approval of the Society is concerned, it may be reiterated that the petitioner Society is only a Housing Service Society and not a Cooperative Housing Society which is the owner of the subject land. Moreover, the petitioner Society has come into existence only in the year 2007 and as such, even when the individual members constructed their houses, no permission of the Society would have been sought for at the relevant time. Under the circumstances, such contention being misconceived, is, accordingly, rejected.