JUDGMENT 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. 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 Development Permission granted by the respondent-Corporation. 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 Development Permission granted by the respondent-Corporation. However, nothing was submitted by respondent Nos.2 and 3 and it was found that the construction was being raised beyond the plans approved by the society and, therefore, the petitioner - society wrote letter dtd.18/10/2004 to the respondent- Corporation pointing out that instead of ground floor plus two floors, respondent Nos.2 and 3 have constructed ground floor plus three floors and the area of margin has also not been maintained. Several reminders were sent to the Corporation on 20/11/2004, 16/12/2004 and 28/01/2005 and ultimately, on 14/02/2005, the respondent No.1 replied that the respondent Nos.2 and 3 have put up the construction beyond the plan approved and, therefore, Notices were issued to them. The revised plans produced by respondent Nos.2 and 3 were also rejected by the respondent- Corporation and the same was duly intimated by letter dtd.14/02/2005. Thereafter, again the petitioner - society wrote letter to the respondent No.1 to remove the illegal construction raised by the respondent Nos.2 and 3 on 07/03/2005, 13/07/2005, 08/08/2005, 01/10/2005, 30/10/2005 and 13/06/2006 and ultimately on 20/06/2006, the respondent-Corporation has replied informing that stay against construction has been granted by the Corporation. Thereafter revised plans were submitted by the respondent Nos.2 and 3 to the Director of Planning, Surat Municipal Corporation. That by communication dtd. 20/6/2006, it was communicated to the President of the petitioner- society that without prior approval of the petitioner-society, the Corporation can sanction the plans of the plot holder and, therefore, request of the petitioner-society not to sanction the plans without prior approval/counter sign, cannot be accepted. The petitioner - society replied on 11/07/2006. That by communication dtd. 20/6/2006, it was communicated to the President of the petitioner- society that without prior approval of the petitioner-society, the Corporation can sanction the plans of the plot holder and, therefore, request of the petitioner-society not to sanction the plans without prior approval/counter sign, cannot be accepted. The petitioner - society replied on 11/07/2006. It is the case on behalf of the petitioner that despite the repeated instructions to the respondent Nos.2 and 3 to stop the illegal construction and adhere to the plans approved by the society, nothing was done and, therefore, the petitioner was constrained to approach the Court of learned Board of Nominees, Surat, by way of Lavad Case No.755 of 2006 for declaration and permanent injunction restraining the respondent Nos.2 and 3 herein from putting up any construction, which is contrary to the plans approved by the society and restraining the respondent Nos.2 and 3 from putting up any construction which is contrary to the bye-laws of the petitioner - society. That in the said Suit, the petitioner Society submitted an application for interim injunction and the learned Board of Nominees, Surat granted ex-parte ad-interim injunction on 03/11/2006. In the said Suit the respondent No.1 -Corporation and also the respondent Nos.2 and 3 filed their reply to the same. The petitioner also filed Rejoinder to the said reply of the respondents. 5.02. It also appears that according to the petitioner, the learned Board of Nominees Court, Surat was also in-charge of the Board of Nominees of other Districts also and, therefore, for certain period of time, the Learned Board of Nominees Court was not available and, therefore, ex-parte stay granted earlier could not be extended. That the learned advocate appearing on behalf of the petitioner preferred an application for extension of stay granted earlier before the Learned Board of Nominees Court, Surat, which was objected by the respondent Nos.2 and 3 and the learned Board of Nominees was pleased to pass order of status-quo to be maintained vide order dtd.07/01/2009. It is the case on behalf of the petitioner that the petitioner also filed separate application for interim injunction before the Learned Board of Nominees, Surat. It is the case on behalf of the petitioner that the petitioner also filed separate application for interim injunction before the Learned Board of Nominees, Surat. It appears that as during the interregnum period, the stay granted earlier was not extended, the respondent Nos.2 and 3 started construction work and respondent No.1 also received necessary charges/money to process the plans in November,2008 and respondent No.1-Corporation sanctioned Revised Plans submitted by the respondent Nos.2 and 3 on 05/12/2008 without obtaining prior approval of the petitioner -society, during the pendency and final disposal of the aforesaid Lavad Suit. It is to be noted that the main Lavad Suit which was filed by the petitioner for declaration and permanent injunction is still pending before the Learned Board of Nominees, Surat. Being aggrieved by and dissatisfied with the action of respondent No.1 in approving and sanctioning the Revised Plans submitted by the respondent Nos.2 and 3, (which is at Annexure-P to the petition), the petitioner - society has preferred present petition under Article 226 of the Constitution of India. 5.03. Mr.Shirish Joshi, learned advocate appearing on behalf of the petitioner society has vehemently submitted that the impugned decision/action of respondent No.1 in approving and sanctioning the plans submitted by the respondent Nos.2 and 3, without obtaining prior approval of the petitioner society is in sheer violation of the Circular dtd.03/01/1998 (Annexure-A to the petition) issued by the Director of Planning, Surat Municipal Corporation. It is further submitted by Mr.Joshi, learned advocate appearing on behalf of the petitioner that as per the aforesaid Circular, as and when any plan is to be submitted and development is to be sought by any plot holder/occupier of the plot of the Cooperative Housing Society, for putting up any construction, the approval of the society is required and the applicant has to obtain the signature of the office bearer of the society. It further provides that if any plan is sanctioned and if any development permission is granted without prior approval of the society, in that case, penal action shall be taken and in case, the society objects to the same, in that case, proceedings can be initiated for cancellation of such permission. It further provides that if any plan is sanctioned and if any development permission is granted without prior approval of the society, in that case, penal action shall be taken and in case, the society objects to the same, in that case, proceedings can be initiated for cancellation of such permission. Therefore, it is submitted that the impugned action of respondent No.1 in sanctioning the plans and granting the development permission to the respondent Nos.2 and 3 without any approval or sanction of the petitioner society and/or without getting counter-signature of the office bearers of the petitioner - society on the plans, the same is in breach of aforesaid Circular dtd.03/01/1998. 5.04. Mr.Shirish Joshi, learned advocate appearing on behalf of the petitioner society has further submitted that the petitioner -society is registered under the provisions of the Gujarat Co-operative Societies Act. The petitioner - society is a tenant Co-operative Society, wherein the lease belongs to the society and superstructure belongs to the plot-holders, as per the decision of this Court rendered in the case of Mulshanker Kunverji Gor and others V/s. Juvansinhji Shivubha Jadeja reported in 1979 GLR 878 . 5.05. Mr.Shirish Joshi, learned advocate appearing on behalf of the petitioner society has further submitted that the impugned action of the respondent No.1 dtd.05/12/2008 in sanctioning the revised plans submitted by the respondent Nos.2 and 3 is also contrary to the decision of the Hon'ble Supreme Court in the case of New India Cooperative Housing Society Limited V/s. Municipal Corporation of Greater Mumbai and another reported in (2008) 9 SCC 694 . 5.06. Mr.Shirish Joshi, learned advocate appearing on behalf of the petitioner society has vehemently submitted that as held by the Hon'ble Supreme Court in the aforesaid decisions, the Corporation cannot sanction and/or modify the plans unless a fresh N.O.C. is obtained by the Lessee from the Housing Society. 5.07. Mr.Shirish Joshi, learned advocate appearing on behalf of the petitioner society has further submitted that before the Hon'ble Supreme Court it was contended on behalf of the Corporation as well as Lessee (Member of the Society) that all the statutory requirements under the Bombay Cooperative Societies Act has been complied with and, therefore, sanctioning of the revised plans without NOC of the Society is permissible and it cannot be said that there was any illegality and the Hon'ble Supreme Court did not agree with the said submission. Therefore, it is requested to allow the present petition by quashing and setting aside the impugned action of the respondent No.1 in sanctioning the revised plans in favour of the respondent Nos.2 and 3. 5.08. Mr.Shirish Joshi, learned advocate appearing on behalf of the petitioner society has further submitted that even otherwise, the plans sanctioned by the respondent- Corporation is contrary to the Bye-laws of the society. It is submitted that under the guise of sanctioning the revised plans by the respondent No.1, respondent Nos.2 and 3 have put up the construction beyond ground plus 3 floors, which is contrary to the bye-laws of the petitioner-society, which respondent Nos.2 and 3 have agreed to abide by the same at the time when they were enrolled as members of the petitioner-society and as per the declaration submitted by them at the time of enrolling them as members of the petitioner-society. It is submitted that respondent Nos.2 and 3 are bound to act as per the bye-laws of the petitioner -society and they cannot put up any construction contrary to and dehors the bye-laws of the petitioner -society. 5.09. Mr.Shirish Joshi, learned advocate appearing on behalf of the petitioner-Society has relied upon the observations made by the Hon'ble Supreme Court in the case of Zoroastrian Co-Operative Housing Society Ltd. and another V/s. District Registrar, Co-Operative Societies (Urban) and others reported in AIR 2005 SC 2306 in support of his submission that respondent Nos.2 and 3 being members of the petitioner-society are bound to act as per the bye-laws of the petitioner-society and they cannot be permitted to put up any construction which is dehors the bye-laws of the petitioner-society, which are binding to all the members of the petitioner-society. By making above submissions and relying upon above decision, it is requested to allow the present petition. 6. Present petition is opposed by Mr.Dhaval Nanavati, learned advocate appearing on behalf of the respondent No.1 and Mr.Shirish Sanjanwala, learned advocate appearing for Mr.Amit Thakkar, learned advocate appearing on behalf of respondent Nos.2 and 3. 6.01. Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 has requested not to entertain present petition and grant the reliefs as prayed for on the ground that the petitioner has alternative remedy available and also in view of pendency of Lavad Suit before the learned Board of Nominees, Surat. 6.01. Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 has requested not to entertain present petition and grant the reliefs as prayed for on the ground that the petitioner has alternative remedy available and also in view of pendency of Lavad Suit before the learned Board of Nominees, Surat. It is submitted that for the very relief and controversy, a Lavad Suit is already instituted by the petitioner-society and, therefore, the present petition is not required to be entertained and, therefore, it is quested to dismiss the present petition. 6.02. Mr.Sanjanwala, learned advocate appearing on behalf of the respondent Nos.2 and 3 has further submitted that even against the impugned decision/action of the respondent No.1 dtd.05/12/2008 in sanctioning the revised plans, a further appeal is provided under the provisions of the Gujarat Town Planning Act. 6.03. Mr.Sanjanwala, learned advocate appearing on behalf of the respondent Nos.2 and 3 has relied upon the decision of the Hon'ble Supreme Court in the case of Ghan Shyam Das Gupta and Anr. V/s. Anant Kumar Sinha and Ors. reported in (1991) 4 SCC 379 (Para-8). 6.04. Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 has further submitted that as per the GDCR, construction of more than ground plus 2 floors is permissible and, therefore, no illegality has been committed by the respondent-corporation in sanctioning the revised plans permitting construction of more than ground plus 2 floors. 6.05. It is submitted by Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 that as per Sec.17 of the Gujarat Town Planning Act, GDCR is statutory force. It is submitted that as per GDCR, construction above 35 feet is permissible. It is further submitted that under the GDCR there is no requirement of obtaining NOC from the society. It is further submitted that even as per the GDCR, more particularly Clause 5.6 even illegal construction can be regularized. 6.06. Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 has also relied upon Sec.117(B) of the Gujarat Town Planing Act. 6.07. It is submitted by Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 that the petitioner-society is giving discriminatory treatment. It is submitted that with respect to another plot, the society has permitted the construction upto 35 feet. 6.08. 6.07. It is submitted by Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 that the petitioner-society is giving discriminatory treatment. It is submitted that with respect to another plot, the society has permitted the construction upto 35 feet. 6.08. So far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of (2008) 9 SCC 694 (supra) by the learned advocate appearing on behalf of the petitioner is concerned, Mr.Sanjawala, learned advocate appearing on behalf of respondent Nos.2 and 3 has submitted that the said decision is clearly distinguishable and the same is not applicable to the facts of the present case. It is submitted that in the said case, it was the case of stipulated lease by the society to the lessee and the society was in possession as lessor and there was stipulation in the lease deed that NOC from the society is to be obtained. In the present case, respondent Nos.2 and 3 have become absolute owners of the plot and not only of the plot in question but also of the superstructure on the plot in question. Even as per clause 7.6 of the Bye-laws of the petitioner-society, the respondent Nos.2 and 3 have paid all the dues to the petitioner-society and they ceased to be tenants. Therefore, there is no question of obtaining any permission from the petitioner-society, as contended by the petitioner. 6.09 It is submitted by Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 that even otherwise, arbitrary enforcement of the Byelaws of the society, is not permissible. It is submitted that the society would have no right to frame the Bye-laws, which are contrary to the provisions of the statutory Act or any other Act. 6.10. So far as the reliance placed by the learned advocate appearing on behalf of the petitioner upon the Circular dtd.03/01/1998 issued by the Director of Planning, Surat Municipal Corporation, is concerned, Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 has submitted that it is presumed in law and facts that the respondent Corporation is supposed to sanction the plans which are in accordance with law and the Corporation has to go-bye the Circulars, which are not enforceable in law. It is further submitted by Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 that even otherwise, the said Circular has no statutory force and therefore, it cannot be enforced. 6.11. Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 has also relied upon the decision of the learned Single Jude of this Court in the case of Vrajlal Jagjivandas Pandya V/s. Dr.Jaswantlal Shivlal and another reported in AIR 1977 Gujarat 131. 6.12. Mr.Sanjanwala, learned advocate appearing on behalf of respondent Nos.2 and 3 has also relied upon the decision of the Division Bench of this Court dtd.29/06/2009 rendered in Letters Patent Appeal No.344 of 2009 and others, in support of his prayer to dismiss the present petition. By making above submission and relying upon above decisions, it is requested to dismiss the present petition. 7. Heard the learned advocates appearing on behalf of the respective parties at length. The petitioner- Sarjan Cooperative Housing Society Limited is a Society registered on 08/01/1965 under the Gujarat Cooperative Societies Act. That the petitioner- society is a tenant ownership society wherein the land belongs to the Society and the superstructure belongs to the respective members thereof. That the administration and management of the said Society is to be carried out as per the bye-laws of the Society, approved by the competent/appropriate authority under the provisions of the Gujarat Cooperative Societies Act and every member of the said Society is bound to act as per the bye-laws of the society, approved by the competent/ appropriate authority. 7.01. That the bungalow/ Plot No.134/A was allotted to one Champaben Jayantilal Singapuri. That respondent Nos.2 and 3 wanted to purchase the aforesaid plot/bungalow and, therefore, they submitted application with the petitioner- society to grant permission to them to purchase the said bungalow/plot No.134/A vide application dtd.23/05/2003, by which, respondent Nos.2 and 3 agreed to act and abide by bye-laws of the petitioner-society. That along with the said application, the petitioner also gave Kabulatnama to act and abide by the bye-laws of the society in case, permission is granted to them to purchase the said plot/ bungalow and they are enrolled as members of the said Society. 7.02. That along with the said application, the petitioner also gave Kabulatnama to act and abide by the bye-laws of the society in case, permission is granted to them to purchase the said plot/ bungalow and they are enrolled as members of the said Society. 7.02. That the petitioner-Society passed a resolution dtd.18/07/2003 granting approval to the sale in favour of respondent Nos.2 and 3 and enrolled them as members of the Society on terms and conditions mentioned in the said Resolution dtd.18/07/2003. As per condition No.7, it was provided that if any construction or renovation work is to be carried out by the member, before raising such construction/renovation, such plan should be approved from the society and then only the construction can be raised. As per condition No.8, it was further provided that construction upto second floor i.e. ground+2 Floors and upto 35 feet from the road level, is permissible and portion beyond 35 feet should be kept open. On the aforesaid terms and conditions, the respondent Nos.2 and 3 were enrolled as members of the society, which the respondent Nos.2 and 3 agreed to abide by the same. It appears that respondent Nos.2 and 3 wanted to renovate and wanted to put up construction, they have requested the Society to approve the plan for construction, which came to be approved by the Society, subject to the rules and regulations of the Surat Municipal Corporation as well as rules and regulations of the society and the said plan was also countersigned by the Society. It appears that at the relevant time respondent Nos.2 and 3 were also given rules and regulations for raising construction which prohibits putting up construction above 35 feet and under which only ground plus 2 floors are permissible. It appears that respondent Nos.2 and 3 started putting up construction without getting the plans sanctioned by the Corporation and Raja Chithhi issued and it was found that respondent Nos.2 and 3 raised construction beyond the plans approved by the Society and, therefore, the petitioner-society approached the Corporation by submitting that instead of ground plus 2 Floors, respondent Nos.2 and 3 are constructing ground plus 3 floors and even area of margin was also not maintained. Again remainders were sent to respondent No.1 and ultimately on 14/02/2005, the Corporation replied that respondent Nos.2 and 3 have put up construction beyond the plans approved and, therefore, Notices were issued to them. It appears that even revised plans submitted by respondent Nos.2 and 3 were rejected by the Corporation, as per intimation dtd.14/02/2005. It appears that thereafter, various correspondence between the petitioner -society and Corporation to remove the illegal construction raised by respondent Nos.2 and 3 had taken place and ultimately on 20/06/2006 the Corporation has replied that stay against the construction has been granted by the Corporation. It appears that thereafter revised plans were submitted by respondent Nos.2 and 3 without prior approval of the society, which were objected by the petitioner- society by submitting that without approval and sanction of the petitioner-society, the Corporation cannot sanction the said revised plan. It appears that despite the above, the Corporation was to sanction the revised plan submitted by respondent Nos.2 and 3. At that stage, the petitioner-society preferred Lavad Case No.755/2006 before the Learned Board of Nominees Court, Surat, wherein ex-parte ad-interim relief was granted in favour of the petitioner-society and the same came to be continued from time to time. It is the case on behalf of the petitioner-society that the Learned Board of Nominees Court, Surat was also in-charge of as Board of Nominees of other districts also and therefore, for certain period of time learned Board of Nominees Court was not available and, therefore, stay granted earlier could not be extended. However, as soon as the petitioner-society came to know about the fact that the stay has not been extended, the petitioner submitted application for extension of stay granted earlier before Learned Board of Nominees Court, which was objected by respondent Nos.2 and 3 herein. However, on the next day, after hearing the parties, the Learned Board of Nominees Court, Surat passed order of status-quo to be maintained. However, it appears that during the period when the stay granted earlier was not extended, respondent Nos.2 and 3 started putting up the construction and despite the aforesaid suit was pending, respondent No.1- Corporation received the money to process the revised plans in November, 2008 and sanctioned the plans submitted by respondent Nos.2 and 3 on 05/12/2008, without obtaining prior approval of the petitioner-society. As stated above, thereafter, vide order dtd.07/01/2009 passed below Exh.132, after hearing both the parties, the learned Board of Nominees, Surat had passed an order of status-quo to be maintained. Being aggrieved by and dissatisfied with the aforesaid action of the Surat Municipal Corporation to sanction the revised plan and to permit respondent Nos.2 and 3 to put up the construction of Ground plus 3 floors and that too beyond 35 feet, the petitioner-society has preferred the present petition under Article 226 of the Constitution of India. 7.03. As stated above, under the rules and regulations of the petitioner-society for raising the construction, which the respondent Nos.2 and 3 agreed to abide by at the time of enrolling them as members, the construction upto ground plus 2 floors and upto 35 feet only is permissible. Even as per the conditions imposed by the Society while passing resolution dated 18/07/2003 enrolling respondent Nos.2 and 3 as members of the society and approving the sale in favour of respondent Nos.2 and 3, as per condition No.7, before any construction and/or renovation, member is required to get approval of the society and/or get the plan sanctioned by the society and respondent Nos.2 and 3 also agreed to abide by the same. Despite the above specific terms and conditions and aforesaid rules and regulations for raising construction in the Society, respondent Nos.2 and 3 submitted revised plan before respondent No.1-Corporation without prior sanction / approval of the petitioner-society and raised construction contrary to the rules and regulations of the society and terms and conditions of the resolution, by which, sale in favour of respondent Nos.2 and 3 was approved and terms and conditions of the resolution, by which, respondent Nos.2 and 3 were enrolled as members of the petitioner-society. 7.04. It is the case on behalf of the petitioner-society that respondent Nos.2 and 3 are bound by the rules, regulations and bye- laws of the petitioner-society. It is the case of the petitioner-society that without prior sanction/ approval of the plans/ revised plans by the society, respondent Nos.2 and 3 could not have submitted plans before the respondent No.1- Corporation and respondent No.1-Corporation could not have sanctioned such revised plans, which were submitted without prior approval / sanction of the petitioner-society. 7.05. It is the case of the petitioner-society that without prior sanction/ approval of the plans/ revised plans by the society, respondent Nos.2 and 3 could not have submitted plans before the respondent No.1- Corporation and respondent No.1-Corporation could not have sanctioned such revised plans, which were submitted without prior approval / sanction of the petitioner-society. 7.05. On the other hand, it is the case on behalf of the respondent Nos.2 and 3 that under GDCR and rules and regulations of the Surat Municipal Corporation, construction of Ground plus 3 floors and beyond 35 feet is permissible and, therefore, despite the rules, regulations and bye laws of the petitioner-society, respondent Nos.2 and 3 can put up the construction of ground plus 3 floors and beyond 35 feet and for that prior approval / sanction of the petitioner-society is not required. 7.06. So far as respondent No.1-Corporation is concerned, it is the case on behalf of the Corporation that there is no provision under the GDCR by which member is required to obtain prior approval / sanction of the society and, therefore, Corporation can sanction the plans/ revised plans, even in absence of any prior approval/sanction of the society, in which the plot is situated. It is the case of the respondent-Corporation that though in the year 1998 the Director of Planning, State of Gujarat, issued circular that in the area within the limits of Surat Municipal Corporation, if any plot holder / occupier of the Cooperative Housing Society submits application for permission to put up the construction, approval of the society is required and the plans should be countersigned by the responsible officer of the Society and in case, development permission has been granted without prior permission of the society and the society objects to the same, such permission should be cancelled. The Corporation is not bound by the same as there is no provision under the GDCR to obtain such a permission. 7.07. Looking to the above, this Court is required to consider the following questions : I. Whether a member of the society can be permitted to put up the construction dehors the bye-laws of the society for raising construction ? II. 7.07. Looking to the above, this Court is required to consider the following questions : I. Whether a member of the society can be permitted to put up the construction dehors the bye-laws of the society for raising construction ? II. Whether respondent-Corporation and/or appropriate authority can sanction the plans/revised plans in favour of the member of the society, which is contrary to the bye-laws for raising construction in the society and that too without giving any opportunity to the society in which, he/she is the member? 7.08. In the case of Zoroastrian Co-operative Housing Society Ltd. and another (supra), the Hon'ble Supreme Court has categorically observed and held that when a person accepts membership in Cooperative Society by submitting himself to its bye-laws and secures an allotment of a plot of land or a building in terms of the bye-laws and places on himself a qualified restriction in his right to transfer the property by stipulating that the same would be transferred back to the society or with the prior consent of the society to a person qualified to be a member of the society, it cannot be held to be an absolute restraint on alienation offending Sec.10 of the Transfer of Property Act. It is further observed by the Hon'ble Supreme Court that he has placed that restriction on himself in the interest of the collective body, the society and he has voluntarily submerged his rights in that of the society. In the case before the Hon'ble Supreme Court there was restriction on the transfer of plot / membership to class of certain persons and member wanted to transfer a plot to a person, who was not qualified as per the bye-laws of the society. The Hon'ble Supreme Court has observed as stated hereinabove and has stated that original member / allottee is bound by the terms and conditions and bye laws of the society. 7.09. The Hon'ble Supreme Court has observed as stated hereinabove and has stated that original member / allottee is bound by the terms and conditions and bye laws of the society. 7.09. Identical question came to be considered by the Hon'ble Supreme Court in the case of New India Cooperative Housing Society Limited (supra) wherein, submissions identical to the submission made on behalf of the respondent Nos.2 and 3 herein, were made, and it was sought to be contended that all the statutory provisions of the BPMC Act have been complied with like alteration in the approved plans, NOC of the Society was not required and the Hon'ble Supreme Court negatived the same and the Hon'ble Supreme Court observed and held that Corporation cannot sanction the modified plan unless fresh NOC has been obtained by the lessee / member from the society. 7.10. As stated hereinabove, while purchasing the plot / bungalow and seeking permission to sell the bungalow / plot in their favour, they agreed to abide by terms and conditions and rules and regulations of the society and Kabulatnama to that effect was also executed by the respondent Nos.2 and 3 and on that, the petitioner-society approved the sale in favour of respondent Nos.2 and 3 and enrolled respondent Nos.2 and 3 as members of the society, more particularly on the terms and conditions mentioned in aforesaid Resolution. Therefore, respondent Nos.2 and 3 are bound to abide by the same and thereafter it is not open for them to turn around and say that before submitting the revised plans/ before putting up any construction/renovation, they are not required to obtain any prior permission/approval from the society and they can put up the construction contrary to the rules, regulations and bye laws of the society. As stated above, under the rules and regulations of the Society, only construction of Ground plus 2 floors is permissible and upto 35 feet only and therefore, it is not open for the respondent Nos.2 and 3 to put up the construction beyond Ground plus 2 floors and beyond 35 feet and that too, without prior sanction / approval of the society. As observed by the Hon'ble Supreme Court in the case of Zoroastrian Co-operative Housing Society Ltd. and another (supra), membership in the Cooperative Housing Society brings about contractual relationship amongst the members. As observed by the Hon'ble Supreme Court in the case of Zoroastrian Co-operative Housing Society Ltd. and another (supra), membership in the Cooperative Housing Society brings about contractual relationship amongst the members. Therefore, respondent Nos.2 and 3 became the members of the petitioner-society and they are bound by the relevant rules and regulations and bye-laws of the petitioner-society. As observed by Hon'ble Supreme Court in the case of Daman Singh and others V/s. State of Punjab and others reported in AIR 1985 SC 973 , when a person becomes a member of a Co-Operative Society, he loses his individuality qua the Society and he has no independent rights except those given to him by the statue and the bye-laws. Under the circumstances, it is not open for respondent Nos.2 and 3 to contend that before raising construction/renovation work and before submitting revised plans, prior approval / sanction of the petitioner-society is not required and they can put up the construction de-hors the rules and regulations and/or bye-laws of the petitioner-society. On the ground of estopple also, respondent Nos.2 and 3 are bound to abide by rules and regulations of the society and conditions imposed by the society while enrolling respondent Nos.2 and 3 as members of the petitioner-society. If respondent Nos.2 and 3 would not have agreed to abide by rules and regulations of the society, in that case, the petitioner society might not have approved the sale in favour of respondent Nos.2 and 3 and would not have enrolled respondent Nos.2 and 3 as members of the Society. 8. Now so far as contention on behalf of respondent Nos.2 and 3 that as per GDCR construction above 35 feet is permissible and, therefore, they can put up the construction on the plot in question above 35 feet dehors the bye-laws of the Society is concerned, the same cannot be accepted. Respondent Nos.2 and 3 being members of the Society are bound to obey and act as per the bye-laws of the Society. Otherwise contrary would be against the purpose and object of the Co-Operative Society. As stated hereinabove and as observed by Hon'ble Supreme Court in the case of Daman Singh and other (Supra), a member of the Society is bound to act and obey the bye-laws of the Society. Otherwise contrary would be against the purpose and object of the Co-Operative Society. As stated hereinabove and as observed by Hon'ble Supreme Court in the case of Daman Singh and other (Supra), a member of the Society is bound to act and obey the bye-laws of the Society. Therefore, merely because GDCR might be permitting construction above 35 feet, a member cannot put up the construction dehors the bye-laws of the Society. 9. Now so far as contention of Mr.Dhaval Nanavati, learned advocate appearing on behalf of respondent-Corporation that in view of subsequent GDCR, the Corporation is not bound to follow the Circular issued by Director of Planning (Annexure “A”- Page No.17) is concerned, the aforesaid also cannot be accepted. The subsequent GDCR has nothing to do with circular dated 03/01/1998. There is no another Circular issued. The Director of Planning being Higher Authority, all other authorities are bound to obey the circular dated 03/01/1998. Nothing is on record that subsequently any other Circular is issued and earlier Circular dated 03/01/1998 has been modified. Circular issued by the Director of Planning dated 03/01/998 under which it is provided that for any construction in the plot of Co-Operative Societies, prior approval of the Society is required and plans for construction are required to be countersigned by the concerned Officer bearers of the Society and which further provides that if any plan is sanctioned and any development permission is granted without prior approval of the Society and the Society objects to the same, in that case, the proceedings can be initiated to cancel such permission. Under the circumstances, the Corporation is bound to follow the Circular issued by the Director of Planning dated 03/01/1998, which is at Annexure “A” to the petition. So far as reliance placed upon the decision of the Division Bench of this Court in Letters Patent Appeal No.344 of 2009 and others is concerned, it is to be noted that the said decision is on the peculiar facts and circumstances of the case and Division Bench has also clarified the same in paragraph Nos.16 and 17 and Division Bench has also clarified that they have not expressed any final view on the question of interpretation of Regulation No.12.4.1. It is also required to be noted at this stage that there is no explanation whatsoever by the Surat Municipal Corporation why the plans came to be sanctioned during the pendency of the Suit and during the intervening period, when there was non-extension of stay/status quo. As stated hereinabove, there was already an order of status quo by learned Board of Nominees, which through oversight was not extended for sometime and taking advantage of the same, Surat Municipal Corporation sanctioned the plans. When the Suit is pending and earlier status quo was granted, which was not extended for some period, the Corporation being an independent authority ought to have waited and ought not to have sanctioned the plans in haste and taking advantage of non-extension of the order of status quo for sometime. 10. Considering the aforesaid facts and circumstances of the case, it is held that sanction of the plans in favour of respondent Nos.2 and 3 for the purpose of putting up the construction on the land in question without prior approval of the petitioner-society and sanctioning of the plans, which are not counter signed by the office bearers of the petitioner – society and/or without pri or approval of the petitioner-society is absolutely illegal, which deserves to be quashed and set aside. It is held that before submitting the plans by the member of the Society with the Corporation/ appropriate authority, such a member has to obtain prior approval of the Society to which he is the member so as to clarify that proposed construction is in confirmity with the Bye-laws of the Society or not and such plans to be countersigned by the office bearers of the Society so that the Society can certify as to Whether the proposed construction is in confirmation with the rules, regulation and bye-laws of the Society or not. If it is found that the Society is not deliberately sanctioning the plans with malafide intention, in that case, it will be open for the member to challenge the said decision before appropriate authority under the Gujarat Co-Operative Societies Act. 11. If it is found that the Society is not deliberately sanctioning the plans with malafide intention, in that case, it will be open for the member to challenge the said decision before appropriate authority under the Gujarat Co-Operative Societies Act. 11. In view of the above and for the reasons stated hereinabove, the petition succeeds and action of the respondent-Corporation in approving the plans submitted by respondent Nos.2 and 3 and sanctioning the plans submitted by respondent Nos.2 and 3, which is at Annexure “P” to the petition is hereby quashed and set aside. It will be open for the respondent Nos.2 and 3 to submit the plans afresh and/or revised plans after getting approval from the petitioner-society and submit the plans after getting it countersigned by the office bearers of the petitioner-society and thereafter to submit the same before appropriate authority/Corporation, which may be considered in accordance with law and GDCR as well as bye-laws of the petitioner-society. Rule is made absolute to the aforesaid extent. No costs.