1. RULE. Mr.Dhaval Nanavati, learned advocate waives service of notice of Rule on behalf of respondent No.1 and Mr.Amit Thakkar, learned advocate waives service of notice of Rule on behalf of respondent Nos.2 and 3.

2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present petition is taken up for final hearing today.

3. By way of this petition under Article 226 of the Constitution of India, the petitioner – Sarjan Cooperative Housing Society Limited (“Society” for short), through its Chairman/Secretary/Committee Member has prayed for an appropriate writ, order and/or direction, quashing and setting aside the Plans approved and sanctioned by the respondent No.1 - Surat Municipal Corporation, in favour of respondent Nos.2 and 3, with respect to Bungalow No.134/A which according to the petitioner is in breach of principles of natural justice and dehors and contrary to the Bye-laws of the petitioner-Society, which are binding to the respondent Nos.2 and 3.

4. The following short but an interesting questions arise for consideration of this Court:-

(a) Whether a member of the society can be permitted to put up the construction dehors the bye-laws of the society and whether the respondent -Corporation and/or appropriate authority can sanction the plan in favour of a member of a society which is contrary to the bye-laws of the society and that too without giving any opportunity to the he/she, who is a member of the society?

(b) Whether before sanctioning the plan in favour of member of the Cooperative Society, the society is required to be given an opportunity or No Objection Certificate is required or not?

5. The facts leading to the present petition, in nutshell, are as under:-

5.00. The petitioner is a Cooperative Housing Society, registered under the Gujarat Cooperative Societies Act, registered for the purpose of construction of residential houses. Under the Bye-laws of the petitioner -society, construction above two floors is not permissible.

5.01. It is the case on behalf of the petitioner that the respondent Nos.2 and 3 herein wanted to purchase Bungalow No.134/A from one Champaben Singapuri and accordingly an application was made on 23/05/2003. It is also the case on behalf of the petitioner that the respondent Nos.2 and 3 submitted declaration dtd.23/05/2003 seeking permission of the society and respondent Nos.2 and 3 agreed to abide by the Bye-law of the Society if the Society enrolls them as a nominal member of the society (Annexure “B” Collectively to the petition). That a sale deed was executed in favour of the respondent Nos.2 and 3 by original owner on 30/06/2003. That thereafter a Resolution was passed on 18/07/2003 enrolling the respondent Nos.2 and 3 as members of the petitioner-society.

It is the case on behalf of the petitioner that while passing such resolution, certain conditions were imposed upon the members which are applicable to all the members of the petitioner - society. It is the case on behalf of the petitioner that by condition No.7, it was made clear that if any construction or renovation work is to be done by the member, before raising such construction/renovation, such Plan should be approved from the society. Thereafter only, such constitution can be raised. According to condition No.8, construction cannot be made above two floors. Respondent Nos.2 and 3 gave assurance to abide by such conditions. On 29/01/2004, respondent No.2 requested the society to approve the plans for construction and ultimately, after some correspondence, on 01/03/2004, approval was granted by the petitioner - society. It is the case on behalf of the petitioner that petitioner - society found that apparently respondent Nos.2 and 3 were raising the construction not as per the plans and, therefore, the petitioner - society called upon respondent Nos.2 and 3 to produce the plans sanctioned by the respondent- Corporation and Devel