Gujarat High Court
Income Tax Employees ... vs Hetalbhai Mangalbhai Patel on 17 March, 2023
Bench: Sangeeta K. Vishen
C/SCA/4638/2023 ORDER DATED: 17/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4638 of 2023
==========================================================
INCOME TAX EMPLOYEES CO-OPERATIVE HOUSING SOCIETY LIMITED
Versus
HETALBHAI MANGALBHAI PATEL
==========================================================
Appearance:
MS RV ACHARYA(1124) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR VIMAL A PUROHIT(5049) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 17/03/2023
ORAL ORDER
1. Ms Rohini V. Acharya, learned advocate appearing for the
petitioner, submitted that the learned Board of Nominees, has
passed an order dated 11.10.2022 by which, the parties were
directed to maintain the status quo. It is submitted that the
respondent, has filed an application, seeking modification of the
order which, came to be turned down vide order dated 19.10.2022
by the Registrar, Board of Nominees. Aggrieved, the proceedings,
were taken out before the Tribunal who, passed an order dated
21.12.2022, quashing the order dated 11.10.2022 on the ground
that there appears to be lack of clarity. It is submitted that the said
order dated 21.12.2022, has been passed till the final disposal of
the application Exhibit 6. It is further submitted that the respondent,
has started the construction which, is of commercial in nature
which, would be impermissible as per the bye-laws of the society. It
is submitted that the society, being the housing society, the
commercial activities, would be impermissible. Reliance is placed on
the judgment in the case of Ambika Nagar Co-operative Housing
C/SCA/4638/2023 ORDER DATED: 17/03/2023
Society Limited v. State of Gujarat & Others reported in 2013 (5)
GLR 3740. It is submitted that it has been held and observed that a
member of a cooperative housing society not entitled to use or
transfer for use/development of land/plot allotted to him by the
society for commercial purpose or for any purposes and other than
that specified in bye-laws of society. Reliance is also placed on the
judgment in the case of Madhavnagar Co-operative Housing Society
Limited & Another v. Joint Registrar and Member, Board of
Nominees reported in 2020 (2) GLR 1437. It is submitted that in the
said judgment, it has been held and observed that the member of
the cooperative housing society has no right to use the land for
commercial purpose irrespective of permission granted by the local
authorities. It is submitted that when the bye-laws does not permit
the usage of the residential property for the commercial purpose,
the learned Board of Nominees has rightly granted the status quo;
however, the Tribunal has, not considering the provisions of the bye-
laws so also the judgment, cancelled the order dated 11.10.2022
which, would be impermissible in law.
2. On the other hand, Mr Vimal A. Purohit, learned advocate,
submitted that the order dated 21.12.2022, is only limited till the
disposal of the application Exhibit 6 pending before the Board of
Nominees. It is submitted that as there was lack of clarity in the
order dated 11.10.2022, that the Tribunal, has passed an order
dated 21.12.2022, clarifying the aspect that it will be permissible to
the respondent, to continue with the commercial activity; however,
construction for the purpose of the commercial activity, has been
discontinued. It is submitted that the hearing of the application
Exhibit 6 for stay, is scheduled to take place on 5.4.2023 and
therefore, let the application Exhibit 6 for stay, be directed to be
C/SCA/4638/2023 ORDER DATED: 17/03/2023
decided within stipulated period and that the respondent,
undertakes that they will not seek any unnecessary adjournments. It
is also submitted that it is not that it is the only case where,
commercial activities have been carried out but, in past, the society,
has permitted commercial activities to be undertaken by levy of the
commercial maintenance charges. It is submitted that in the other
units also, the other members, have been carrying out the
commercial activities.
3. Ms Rohini V. Acharya, learned advocate has disputed the said
aspect. It is submitted that necessary proceedings, have been
initiated and are pending before the concerned forum wherein, the
stay has been granted restricting the unit holders to continue with
the commercial activities.
4. After hearing the learned advocates appearing for the
respective parties, it emerges that the application Exhibit 6 for stay,
is pending before the learned Board of Nominees and therefore, it
would be in the interest of justice and all concerned, that the
application Exhibit 6 for stay, is heard at the earliest. As has been
reported by the learned advocates appearing for the respective
parties, that the hearing of the application Exhibit 6 for stay, is
scheduled to take place on 5.4.2023. Let the learned Board of
Nominees, decide the application Exhibit 6 for stay, within a period
of two weeks'; from the date of receipt of the copy of this order.
5. Needless to clarify that the parties, shall not request for any
unnecessary adjournment and cooperate with the hearing before
the learned Board of Nominees.
6. With the aforesaid direction, the captioned writ petition,
stands disposed of. No order as to costs.
C/SCA/4638/2023 ORDER DATED: 17/03/2023
7. Needless to clarify that this Court, has not examined the
merits of the matter and the petition, is disposed of only on the
limited ground of the application Exhibit 6 for stay, been pending
before the learned Board of Nominees. Direct service is permitted.
(SANGEETA K. VISHEN,J)
RAVI P. PATEL
