[Cites 4, Cited by 0]
Gujarat High Court
Pankaj A. Karnavat vs Joint Registrar And Member, Board Of ... on 11 December, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1600/2019 ORDER DATED: 11/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1600 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 4585 of 2016
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In
R/LETTERS PATENT APPEAL NO. 1600 of 2019
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PANKAJ A. KARNAVAT
Versus
JOINT REGISTRAR AND MEMBER, BOARD OF NOMINEES,
SURAT & ORS.
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Appearance:
MR MANISH BHATT. SR. ADVOCATE with MR AMIT V
THAKKAR(3073) for the Appellant(s) No. 1
MR BHARAT PATEL, SR. ADVOCATE with MR MR CHIRAG B
PATEL(3679), R UMANG H. OZA, MR KHUSK K. PATEL, ASHA D.
TIWARI for the Respondent(s) No. 2,3
MR DHAVAL G NANAVATI(2578) for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 11/12/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. We have perused the Court Commissioner's report dated
10/11.12.2025 submitted in compliance of the order dated
20.11.2025 passed by this Court.
2. From a perusal of the order dated 20.11.2025, pertinent
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is to note that in compliance of the order dated 25.09.2025, an
affidavit dated 08.11.2025 was filed by the appellant wherein
a statement had been made that necessary internal deviations
has been carried out to bring the layout in conformity with the
original sanctioned plan dated 10.12.2014, for the first and
the second floors of the building in question, except the
situation of lift and staircase.
3. Having noticed the contents of the said affidavit, we
have appointed the learned Advocate as a Court
Commissioner to make a fresh inspection of the building in
question and submit his report.
4. It is also pertinent to note that in the detailed order
dated 25.09.2025, taking note of the previous inspection
report of the learned Advocate Commissioner and the interim
order dated 13.09.2019, as also the undertaking given by the
appellant in his affidavit dated 19.08.2025, we have recorded
the following :-
"9. Mr. B. S. Patel, learned senior counsel appearing
for the respondent - society, however, expressed serious
doubt about the statement made by the appellant in the
undertaking given on affidavit dated 19.08.2025.
10. The learned senior counsel would submit that the
initial proposal submitted by the original respondent -
appellant herein was for construction of a residential
building [G+2]. The original sanctioned plan wherein
approval was granted by the respondent - society is
dated 10.02.2014 and can be found at Page '114/K' of
the paper-book. The submission is that though the
original sanctioned plan was of G+2, but the same was
approved by the society with the clear understanding
that the construction was for the purposes of a
residential building. However, instead of raising
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construction as per the original sanctioned plan, the
original respondent - appellant herein had applied to
Surat Municipal Corporation for making major
deviations from the original sanctioned plan by
submitting a revised plan, which was approved on
01.06.2016, without any permission or approval of the
society. The revised plan is at Page '114/T' of the paper-
book.
11. The submission is that as per the bye-laws of the
society, the land use of the building constructed within
the precinct of the society can only be residential. The
building-in-question cannot be used for any other
purposes than the residential purposes for which the
original plan was sanctioned with the approval of the
society.
12. However, on a query made by the Court about the
usage of the ground floor of the building-in-question for
office purposes namely for office of the appellant and his
wife who are the professionals, it is categorically stated
by the appellant on oath in the present proceedings that
the appellant is a chartered accountant by profession
and his wife is a lawyer. It was contended that the
ground floor for the building constructed by them may
be permitted to be used for office of both of them.
13. But before entering into the said issue, in view of
the undertaking given by the appellant herein, taking
note of the order dated 13.09.2019, we may provide that
the appellant be permitted to use the ground floor of the
building-in-question for office purposes tentatively, that
too for their own use, till the next date fixed. As per the
undertaking given by the appellant, the appellant will
not be permitted to let out the premises in question to
any outsider or 3rd party for the purpose of using it for
office or any non-residential purposes.
14. We may further note that an undertaking is given
by the appellant that the first and second floor of the
building-in-question shall not be used for any other
purposes, other than residential purposes.
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15. When the learned senior counsel appearing for the
respondent - society namely the original petitioner
raised serious doubt about the intention of the appellant
to use the first and second floor of the building-in-
question for residential purposes, Mr. Manish Bhatt, the
learned senior counsel appearing for the appellant would
submit that the appellant be granted four weeks time to
make necessary internal changes for bringing the first
and second floor of the building-in-question, strictly in
conformity with the original sanctioned plan dated
10.02.2014. It is also submitted that pursuant to the
revised sanctioned plan which has been quashed and set
aside by the learned Single Judge, a lift has already been
installed which is set in place. The appellant may be
permitted to retain the lift installed under the revised
plan which will be used for the purposes as stated in the
undertaking.
16. Taking note of the above, we post the matter on
13.11.2025 to enable the appellant to carry out the
necessary internal deviations, to bring the first and
second floor of the building-in-question in conformity
with the original sanctioned plan dated 10.02.2014.
17. However, any internal minor deviation such the
staircase etc., which may not offend the original
sanctioned plan, would also be permitted to retain.
18. Let an affidavit be filed by the appellant in
compliance of the above observations, i.e. of the
understanding given by him before us. In case of failure
on the part of the appellant to comply with the above
noted undertaking given by him before us, necessary
adverse consequences will follow."
5. The categorical direction contained in the order dated
25.09.2025 was to the effect that the appellant shall carry out
the necessary internal deviations to bring the first and second
floors of the building in question in conformity with the
original sanctioned plan dated 10.12.2014. While saying so,
we have permitted minor deviations such as staircase etc.
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which may not offend the original sanctioned plan, to be
retained. The stand of the appellant that a lift has been
installed in place of the staircase shown in the original
sanctioned plan has been noted by us to make the aforesaid
observations.
6. A perusal of the report of the learned Court
Commissioner indicates the position of the first and second
floor as under :-
"5. FIRST FLOOR: On visiting the first floor, opposite
staircase, there are two small chambers having wooden
partition. One of the chamber was empty while other
chamber is utilized as Pantry for preparing tea/ coffee.
Ahead of it, on the first floor, there is a place where
sofasets and chairs are kept having seating
arrangement. On the left of sofaset, there is a wooden
partition. The wooden partition is having a door. On
opening of such door, a partition room is there, the room
is having two double sets of bed kept in the room. Room
is not having any other furniture except a small teapoy.
Previous three chambers having executive tables were
available, but now partition of each chambers are
removed and common room is created where these two
sets of beds are placed. On right side of sofaset which
are kept in middle of the room, there is also a washroom
behind right side wooden partition and a storage place.
It seems that previous office purpose partition desks are
removed and a common chamber is created wherein
beds are placed. It may be noted that presently first floor
does not seem to be used for office purpose.
6. SECOND FLOOR: The second floor is having two
chambers facing the staircase. One chamber is having a
small wooden temple having no other furniture. The
adjacent second chamber is used for kitchen. The
kitchen is having utensils, gas stove and other amenities
for cooking. There are two small cupboards for storage
of food grains for running a regular kitchen. Ahead on
second floor, again there is a wooden partition. On
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extreme left side, a room having bed facility is available,
in this room, at the end of room there is small empty
chamber and there is a toilet- bathroom. On the other
side of the partition, there are two other sofasets and a
teapoy are found. This other part of partition is having
also a small bathroom facility. It seems that the dining
table previously available is removed and the sofasets
are placed at the said place. Adjacent in the same room,
there is a small Almirah, wherein few domestic items
and clothes are available.
7. The final opinion drawn by the learned Court
Commissioner in paragraph '8' of the report reads as under :-
"8. In view of the above prima facie overall condition of
the building is concerned, ground floor of the building is
in use for office purpose. So far as staircase and lift is
concerned, it is at the same place, and the same is not
changed. So far as first floor is concerned, the Executive
chambers of office purpose are concerned, the partitions
are removed and beds are placed. So far as second floor
is concerned, it is not having any office utility, there is a
kitchen, on one partition there are sofas kept for sitting
arrangement having separate facility of bathroom and in
second partition, beds are kept having facility of toilet-
bathroom on the extreme end of the room.
8. A careful perusal of the learned Advocate Commissioner
report and the photographs appended thereto makes it
evident that the ground floor of the building in question is in
use for office purpose. The staircase and the lift are at the
same place, however, on the first floor, the executive
chambers of office purposes are modified with the removal of
partitions and placing beds at the same place. Insofar as
second floor is concerned, there is a kitchen on one partition
and on another, sofa kept for sitting arrangement having
separate facility of bathroom with wooden partition. In the
second partition, beds are kept having facility of
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toilet/bathroom.
9. We may note that all partitions made on the first and
second floor are wooden partitions, which cannot be said to be
permanent walls to bring the first and second floor of the
building in question in conformity with the original sanctioned
plan dated 10.12.2014. The original sanctioned plan did not
contemplate two open halls on the first and second floor of the
building in question. Rather the entire building was shown to
be residential building in the original sanctioned plan dated
10.12.2014 wherein previous approval was granted by the
respondent society. At the time of construction of the
building in question, there has been material deviations from
the original sanctioned plan and the entire building was
constructed in a way that it became usable exclusively for
office/non-residential purposes.
10. The learned Single Judge taking note of this deliberate
and wilful deviation on the part of the appellant herein, viz.
the respondent therein, has categorically returned the
following findings :-
"My final conclusions are as follows :
(1) A member of a Cooperative Housing Society has no
legal right or any other right of any nature to use the
land for commercial purpose. If it is a Cooperative
Housing Society, then there cannot be any construction
of commercial nature other than a residential house.
(2) A member of a Cooperative Housing Society is
obliged in law to strictly abide by the bye-laws and other
rules & regulations of the Society
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(3) No Municipal Corporation or a Municipality shall
assume the power or jurisdiction or authority to sanction
the plans without a valid No Objection Certificate issued
by the Society. In the absence of a valid No Objection
Certificate duly issued by the Society, the Corporation or
the Nagarpalika, as the case may be, will have no
authority to even accept the plans and look into the
same.
(4) Before sanctioning the plans, even if there is any No
Objection Certificate duly issued by the Society, the
competent authority of the Corporation or the
Nagarpalika, as the case may be, is duty-bound to give a
notice to the Society so that if the Society has anything
further to say in the matter, they can put forward their
case or objection.
(5) The plans sanctioned by the Corporation including
the Building Use Permission could be termed as
absolutely illegal as the same are contrary to the bye-
laws of the Society.
(6) As the bye-laws of the Society, in the case on hand,
provide that the members have to use the plot allotted to
them only for residential purpose, there is no question of
putting up any construction of commercial nature, i.e.
other than the residential house.
(7) None of the provisions of the Gujarat Town Planning
and Urban Development Act, 1976, especially in view of
the deletion of sub-section (1) of Section 117 of the Act
and the GDCR being the enabling provision in the
context of the Act of 1976 or the provisions of the BPMC
Act, 1949, has any overriding effect over the provisions
of the Gujarat Cooperative Societies Act, 1961, and the
rules & regulations made thereunder and the Society
cannot be deprived of the right accrued, acquired and
crystalized in their favour under the Gujarat Cooperative
Societies Act, 1961, rules & regulations and bye-laws, on
the ground that the permission to construct/develop/use
the land/plot allotted to a member of the Cooperative
Housing Society is granted by the authority under the
Town Planning and Urban Development Act, rules &
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regulations framed therein or under the BPMC Act. To
put it in other words, in a Cooperative Housing Society,
a member cannot use the land for commercial purpose,
namely the purpose other than the residence, as per the
bye-laws, rules and provisions of the Act, 1961,
irrespective of the permission granted by any authority
either under the Town Planning and Urban Development
Act, GDCR or under the BPMC Act or likewise.
(8) When there are specific bye-laws in the Cooperative
Housing Society for use of the house allotted to a
member for residence, the land cannot be permitted to
be converted into commercial use or any other purpose."
11. The liberty granted to the appellant, in the instant
appeal, was only on the undertaking given by the appellant
that he will bring the entire building, viz. the first and second
floor in strict conformity with the original sanctioned plan
dated 10.12.2014, which was in accordance with the bylaws of
the society. We have permitted limited deviation for the
ground floor, for use of the building in question for office
purposes, on the categorical undertaking given by the
appellant that he will bring the building in conformity with the
original sanctioned plan approved by the society as per its
bylaws, insofar as, the first and second floors are concerned.
The internal partitions which are wooden partitions on the
first and second floors, being temporary in nature, cannot be
accepted to be the structures in conformity with the original
sanctioned plan dated 10.12.2014.
12. While accepting the report of the learned Court
Commissioner, we are of the considered view that the
appellant has failed to abide by the undertaking given by him
on the affidavits dated 19.08.2025 and 08.11.2025, believing
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which, the orders dated 25.09.2025 and 20.11.2025 had been
passed. The order dated 25.09.2025 categorically records
that in case of failure on the part of the appellant to comply
with the undertaking given by him, necessary adverse
consequences will follow.
13. The indulgence granted by us in the orders dated
25.09.2025 and 20.11.2025 was with the categorical direction
that the first and second floors of the building in question
were required to be brought strictly in conformity with the
original sanctioned plan dated 10.12.2014.
14. As the appellant has failed to do so, as is evident from
the learned Court Commissioner report and has continued to
enjoy the conditional protection granted by this Court in the
order dated 13.09.2019, in utter non-compliance of the said
order itself, we do not find any good ground to grant any
further indulgence to the appellant. While accepting the
report of the learned Court Commissioner, noticing that the
appellant has failed to comply with the directions contained in
the orders dated 25.09.2025 and 20.11.2025 passed in the
present appeal, we find that the present appeal is liable to be
dismissed.
15. We may further record that in the instant appeal, we
have not gone into the merits of the order passed by the
learned Single Judge, inasmuch as, from the very beginning
the submissions of the learned Senior counsel for the
appellant was to grant indulgence to the appellant. The
appeal has never been addressed on the merits of the order
passed by the learned Single Judge.
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16. As far as the submissions made by the learned Senior
counsel appearing for the appellant, at this stage, that a
professional's office cannot be termed to be a commercial
building, the same is liable to be turned down outrightly for
the simple reason that it is not in the mouth of the petitioner
to say that he will raise constructions by making major
deviation of the original sanctioned plan dated 10.12.2014,
that too without any permission of the competent authority,
and would seek regularisation of the same from this Court.
17. The other submission made by the learned Senior
counsel that the existing wooden partition be considered as
the walls shown in the original sanctioned plan and they
cannot be said to be temporary structures, is unacceptable for
the simple reason that there is nothing indicated in the
original sanctioned plan dated 10.12.2014 that there would be
halls on each floor and the partition shown therein would be a
temporary structure or a wooden partition. The wooden
partition, in any case, cannot be said to be a part of the
permanent structure shown in the original sanctioned plan.
The constructions raised by the appellant on the first and the
second floors of Halls, itself was a major deviation from the
original sanctioned plan dated 10.12.2014. Over indulgence
granted by the Court, in the present appeal, would not be a
reason to accept the submissions made by the learned Senior
counsel about the nature of the partitions carried out by the
appellant in order to show that the building in question has
been brought in conformity with the original sanctioned plan
dated 10.12.2014, insofar as, the first and second floors are
considered.
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18. In our considered opinion, on a careful perusal of the
report of the learned Court Commissioner, it is evident that
the conversion of the first and second floors of the building in
question for residential purposes by putting up wooden
partition, sofa-set and beds in place of executive tables, and
chairs in the halls is nothing but an eye-wash.
19. With the above, we dismiss the appeal being devoid of
merits affirming the impugned judgment of the learned Single
Judge.
20. For the services rendered by Mr. Yogesh Ravani, learned
advocate, as Advocate Commissioner under the order of this
Court, we find it just to pay Rs.1,00,000/- as remuneration,
which should be borne by the appellant herein. The appellant
shall deposit the said amount within a period of two weeks
before the Registrar (General) High Court who shall transmit
the same to the bank account of the learned advocate Mr.
Yogesh Ravani on the details provided by him.
21. On the request made by the learned Senior counsel for
grant of further stay of this order, suffice it to say that the
appellant has enjoyed interim protection of this Court for a
period of more than six years without complying with the
conditions therein. The request made is accordingly, rejected.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BIJOY B. PILLAI
