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SCA/1344020/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13440 of 2008
==========================================
SHREE
JAY BAJRANG CO OP HOUSING SOCIETY LTD - Petitioner(s)
Versus
LAJVANTIBEN
DHARMDAS JIVANI & 2 - Respondent(s)
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Appearance
:
MR AR
THACKER for Petitioner(s) : 1,
MR BAIJU JOSHI
for Respondent(s) : 1,
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 12/11/2008
ORAL
ORDER
1. Leave
to delete respondent Nos.2 and 3 as party respondents since they
acted in quasi-judicial capacity subject to the rights and
contentions in the present petition.
2. Heard
Mr. Nanavati with Mr. Thakkar for the petitioner and Mr. Joshi for
the respondent No.1.
3. Upon
hearing the learned advocates appearing for the respective parties,
it prima facie appears that it is an admitted position that the
Society is a Residential Cooperative Housing Society but the
distinguishing features in the present case is that the Society
itself has resolved for making commercial construction on plot Nos.8
and 9 which are just adjacent to plot No.5 of the respondent No.1.
The construction is already made by the Society and Shops as well as
Community Hall are constructed. Therefore, when the plot of the
petitioner is just on the next wall of the aforesaid commercial
construction which is actually used for commercial construction, it
would be improper on the part of the Society to expect a member to
make use for residential purpose since no person can comfortably use
for residential accommodation, if the same is just adjacent to the
commercial construction already made by the Society. However, the
fact remains that the commercial construction already made by the
Society and also made by the petitioner are in contravention to the
condition imposed for converting the land for Non Agricultural use
since permission was granted for residential use. As the matter is
still pending before the Collector, no final conclusion can be
recorded on the said aspects, but it prima facie appears that the
Society is also party to make breach of the condition of Non
Agricultural use as per the Bombay Land Revenue Code and therefore,
such ground in any case may not be available.
4. The
contention was raised on behalf of the petitioner by Mr. Nanavati
that the respondent has agreed to abide by the bye-laws of the
Society which are meant for using the plot for residential purpose
and therefore, the respondent cannot back out from the same and the
petitioner would be justified in insisting the implementation
thereon. However, whether such can be enforced on the face of GDCR
permitting commercial construction on the road, or not is an aspect
which deserves to be considered and if yes to what extent.
5. The
learned counsel for the petitioner submitted that the construction is
still incomplete, whereas on behalf of the respondent, it was
submitted that the construction is completed as back in the year
2007. Under the circumstances, the further construction, if any to
be made by the respondent may be prohibited now. However, if the
construction is already completed when the Society itself is using
the adjacent plot for commercial purpose, it would not be a case to
prohibit the respondent from making use for commercial purpose of the
construction already made. But at the same time, the transfer of the
property, if any made by the respondent may further complicate the
issue and create third party rights and therefore, such deserves to
be prohibited.
6. Hence,
I am inclined to pass the following order.
RULE.
By interim order, it is directed that there shall be stay against
further construction from today i.e. 12th November, 2008.
With a view to bring on record the position of the construction as
existing, it would be open to the petitioner to move the learned
Nominee for drawing panchnama and such stay would operate qua further
construction, if any to be made by the respondent. However, the
aforesaid stay shall not operate as a bar to the respondent in using
the already constructed premises for commercial purpose by himself in
accordance with law. The respondent shall not be in a position to
transfer or alienate the property in question by any manner through
tenant or transfer or alienate the property in any manner.
7. It
is also clarified that the present order shall operate qua commercial
construction already made or to be made by the respondent and shall
not be applicable qua any residential construction made or to be made
by the respondent in accordance with law, which even otherwise also
is not the subject matter of the present proceedings.
(JAYANT
PATEL, J.)
shekhar/-
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