Compliance with construction permissions, by-laws of the Society, and legal restrictions on the usage of common plots under the Town Planning and Urban Development Act are crucial for lawful construction and property usage.

JUDGMENT :

1. The petitioner has mainly challenged the notice impugned dated 28.05.2021 issued by the respondent – Vadodara Municipal Corporation as well as the subsequent sealing of premises situated at Royal Park Cooperative Housing Society Plot No.10 and further seeking direction against the respondent authorities to open the seal.

2. Heard learned advocates for the respective parties at legnth.

3. Rule. Learned advocates waive service of notice of rule on behalf of respective respondents.

4.1 Mr. Jamshed Kavina, learned advocate with Mr.S.P. Majmudar, learned advocate for the petitioner has submitted that the impugned notice of the Corporation is per se bad and illegal, as hearing is not given to the petitioner prior to issuance of the same. He has submitted that the Corporation has to follow the procedure before issuing the notice under Section 36 of the Town Planning and Urban Development Act (‘the Act’ for short), there is a power to require removal of unauthorised development or use. He has also submitted that the Corporation has sealed the premises and thereby acted contrary to the provisions of Section 37 of the Act as such action can only be taken when the development made on the land is of a temporary nature. He has submitted that under the Act, the Corporation has to give time of 15 days. He has submitted that the Corporation has given time of only seven days in the impugned notice. Therefore, he has submitted that the impugned notice is not issued in accordance with the provisions of law and Act. In support of his submissions, he has relied upon the decision of this Court in the case of Govindbhai Mavjibhai Patel versus State of Gujarat recorded on Special Civil Application No.19319 of 2017 and other allied matters, and has submitted that this Court has also considered the provisions of Section 36 of the Act and has found that such action of the Corporation is not in accordance with law. He has submitted that the facts of that case and the present case are identical and therefore, the said ratio may be applied in this case.

4.2 He has further submitted that from various documents i.e. tax bills issued by the Corporation as well as other documents – light bills, which specifically mention the address of the petitioner as 10, Royal Park Cooperative Housing Society Limited and therefore, it is an admitted fact that the petitioner is in possession of the Plot No.10 and is enjoying plot since many years.

4.3 He has further submitted that the petitioner has filed Lavad Suit (Arbitration Suit) in the year 2021 before the Board of Nominees for Plot No.10, which is the subject matter of the present petition, where the Society is the contesting party and claiming that, the said Plot i.e. Plot No.10 is a common plot of the Society.

4.4 He has further submitted that the present petitioner is also a member of the Society. He has drawn attention of this Court to the Share Certificate issued on 20.09.1989, which is on record.

4.5 He has also submitted that at the relevant time, the construction plan was approved by the Vadodara Urban Development Authority and therefore, the construction in question cannot be said illegal and/or unauthorised. He has submitted that the Corporation has no authority to decide the issue as to whether the Plot in question is a common plot or not. He has submitted that the said issue can be decided by the Board of Nominees only.

4.6 He has submitted that the Authority has sealed the premises since there is no power under the provisions of the Act and therefore, the action of the Corporation is bad.

4.7 In support of his submissions, he has relied upon the decisions of this Court :-

(i) Jiteshkumar Kanchanlal Gandhi versus State of Gujarat recorded on Special Civil Application No.15358 of 2019, dated 22.10.2019 and

(ii) Vodafone Essar Gujarat Limited versus Khambhalia nagarpalika recorded on Special Civil Applications No.146 of 2009 & 147 of 2009, dated 13.01.2009.

4.8 He has submitted that this petitio