IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 491 of 2024 With CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2024 In R/SPECIAL CIVIL APPLICATION NO. 491 of 2024 ================================================================

VIJAYKUMAR GORDHAN BHAWAN Versus STATE OF GUJARAT ================================================================

Appearance:

KAUSHAL H PATEL(9328) for the Petitioner(s) No. 1 MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1 MR S. N. SOPARKAR, SR COUNSEL WITH MR PREMAL NANAVATI AND MS AVANI V PATEL(8016) for the Respondent(s) No. 5 MR MEET M. THAKKAR, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 MR HS MUNSHAW(495) for the Respondent(s) No. 2,3,4 MR VANDAN K BAXI(5863) for the Respondent(s) No. 6 MR SUDHIR I. NANAVATI, SR. COUNSEL WITH MR SANJIV DAVE FOR NANAVATI & NANAVATI(1933) for the Respondent(s) No. 6 ================================================================

CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 15/02/2024

ORAL ORDER

1. Acceding to the request made by the learned counsel, the matter was heard for admission as well as for confirmation of interim relief.

2. Mr S. P. Majmudar, learned advocate appearing with Mr Kaushal Patel, learned advocate has submitted that Non-Agricultural permission (hereinafter referred to as “the N.A. permission”) was granted by the authority only for the residential purpose and no alteration or modification is permitted without the permission of the concerned authority. Condition nos.22 and 27 were with respect to the common plots. Inter alia, it has been stated that the common plot will be of the joint ownership of all the members and the builder will have no right to sell or transfer it in any manner.

2.1 It is further submitted that as per the brochure provided, the petitioner was assured various facilities and amenities including the common plot, followed by execution of the deed of allotment between the petitioner on one hand and the respondent no.5 on the other. As per clause (b) of condition no.2, it is agreed that the allottee shall be an absolute, lawful and true allottee of the unit and shall enjoy and use the common areas of the scheme along with other co-owners. Similarly, clause xxi of clause 6 stipulates the common area, facilities and amenities of the said scheme not to be obstructed or used for any purpose other than ingress to an egress from the said unit. Hence, the petitioner will have the right over the common plot. It is submitted that the petitioner learnt about the club which is a commercial venture which, led to an objection by the petitioner. Simultaneously, a complaint was also filed before the Real Estate Regulatory Authority (hereinafter referred to as “RERA”). The application came to be rejected; however, appeal against the said rejection order is pending before the appellate authority.

2.2 It is submitted that the development permission was granted on 23.05.2017 under the provisions of Section 28 of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as “the Act of 1976”) containing various terms and conditions. The plan annexed to the development permission, clearly provides for common plot no.10 in front portion of the plot of the petitioner i.e. A/484. The said development permission, was followed by the building use permission. It is thereafter, on 23.08.2019 another development permission was granted followed, was B. U. permission on 07.01.2021. It is submitted that Regulation 2.25 of Comprehensive General Development Control Regulations, 2017 (hereinafter referred to as ‘CGDCR-2017”) defines the term ‘common plot’. It provides that the common plot shall not be sold to any other person and shall not be put to any other use, except for the common use of the residents. Once the development plan has been sanctioned and B. U. permission is granted, the common plot shall be deemed to have been vested in the society and cannot be sold to any other pers