JUDGMENT :

Anant S. Dave, J.

All these seven petitions are filed under Articles 226 and 227 of the Constitution of India against the judgments/orders passed by the Gujarat State Co-operative Tribunal and the Authorities under the State of Gujarat. Since common question of law is involved in this group of petitions, at the request of the learned counsels appearing for the parties, they are taken up for final hearing together.

2. A common question raised in these seven petitions is whether a Member of the Co-operative Housing Society, who is allotted land/plot by Co-operative Housing Society governed by and under the provisions of the Gujarat Co-operative Societies Act, 1961, [for short, 'the Act of 1961'] is entitled to use/develop and/or transfer/alienate, in any manner, the said land/plot and raise construction thereon of commercial in nature or purpose contrary to the provisions contained in the Act of 1961, Rules, Regulation and Bye-laws of the Society made thereunder on the ground of permission so granted by the appropriate authority under the Gujarat Town Planning & Urban Development Act, 1976, [for short, 'the Act of 1976'], Rules and Regulations framed there under, viz. General Development Control Regulation, and under the Bombay Provincial Municipal Corporations Act, 1949, [for short, 'the Act of 1976'], which should be tested on the touchstone of the law laid down by the Apex Court, this Court and other High Courts in plethora of judgments cited by the learned counsels appearing for the parties and the provisions of the Acts as above.

Special Civil Application No.11343 of 2006:

3. The petitioner is a Co-operative Housing Society Limited registered on 26th March 1968 under the provisions of the Act of 1961. The certificate of incorporation was issued by the District Registrar, Co-operative Societies, Mehsana, on 26th March 1968. Initially, the petitioner-Society had approached one Shri Daoodkha Aliyarakha, owner of the land bearing Survey No.1995/33 and an application was submitted to the District Collector, Mehsana, for the purpose of the permitting the subject land which was purchased by the petitioner-Society to be converted as non-agricultural land to be used for residential purpose and, in exercise of powers conferred upon the District Collector under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, permission came to be granted on 18th July 1968 subject to the condition that the land should be utilised for the purpose of Co-operative Housing Society only. Accordingly, the petitioner-Society constructed about 30 units for residential purpose and the members were granted allotment by draw of lot and no member of the society had built-up any unit on his own. The petitioner-Society had obtained loan for construction of dwelling units from the financial institutions and the members have been paying instalments accordingly for the loan taken by the society. Thus, the members of the society have only right to use the superstructure and the land is owned by the society. The residential units allotted to the members are being utilised by the members in accordance with the bye-laws of the society and no member has right to use the land or superstructure for any purpose other than the purpose of residence. Initially, plot No.30 was in the name of Shri Indravadan Ambalal Raval who made a request to transfer his membership in the name of Shri Mukeshkumar Ishwarlal Patel, respondent No.5 herein, who also submitted an application for acquiring the membership and agreed and undertaken to abide by the bye-laws of the society that he needed the house for the purpose of residence and, therefore, by passing a resolution, respondent No.5 was admitted as a member of the society.

3.1. However, a dispute had arisen only when respondent No.5, without seeking NOC or any permission from the petitioner, submitted an application to the Urban Development Authority, Mehsana, on 4th November 2003 to grant permission for usage of plo