GULAB AVENUE CONDOMINIUM Vs. SUB DIVISIONAL MAGISTRATE

JUDGEMENT

(1.) This appeal has been preferred against the order dated 12th January 2009 passed by the learned Judge in Special Civil Application No.4823 of 2009. By the said order, learned Judge affirmed the order dated 7th May 2009 passed by the first respondent allowing registration certificate for Eating House in favour of third respondent.

(2.) The brief facts of the case are that an apartment in the name of "Gulab Avenue" constructed by the builder on Ward No.10, Sheet No.163, New Survey No.2176, at Park Colony, Jamnagar after obtaining necessary permission from the Jamnagar Municipal Corporation. The association of owners of flats viz. "Gulab Avenue Condominium" was registered under Section 17 of the Gujarat Ownership Flats Act, 1973. One SB Enterprise purchased four shops in the building which later on entered into a lease agreement with third respondent in respect of all four shops situated on ground floor. The third respondent, thereafter, started renovating the four shops and alleged that he also encroached upon common place of the building. According to the appellant, under the Prevention of Food Adulteration Act, 1954 licensing authority granted registration certificate on 26th September 2008 and another certificate was issued under the Bombay Shops and Establishments Act, 1948. The said construction was being made against Clause 23 and 24 of the Sale Deed pursuant to which no Eating House could have been opened on the said floor.

(3.) It appears that Gulab Avenue Condominium preferred Regular Civil Suit No.552 of 2008 for a declaration that construction was illegal against Clause 23 and 24 of the Sale Deed, and sought an injunction against the third respondent. The Corporation also issued notice under Section 260 (1) of the Bombay Provincial Municipal Corporation Act, 1949 (for short "BPMC Act"). Another suit was filed by some other owners of the condominium in Regular Civil Suit No.579 of 2008 against third respondent. Regular Civil Suit No.552 of 2008 preferred by the appellant condominium therein third respondent filed an application for direction against the Corporation to carry out Panchnama of the shops in question which was rejected on 1st January 2009. Against the notice under Section 260(1) of the BPMC Act, the third respondent also preferred a suit in Special Civil Suit No.2 of 2009 in the Civil Court.