Gujarat High Court
Shreejibaug Cooperative Housing ... vs State Of Gujarat on 17 July, 2025
NEUTRAL CITATION
C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14360 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
==========================================================
Approved for Reporting Yes No
YES
==========================================================
SHREEJIBAUG COOPERATIVE HOUSING SOCIETY LTD. & ORS.
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MS AMRITA M THAKORE(3208) for the Petitioner(s) No. 1,2,3
JAIMIN A GANDHI(8065) for the Respondent(s) No. 12
JENIL M SHAH(7840) for the Respondent(s) No. 9
SWAPNESHWAR GOUTAM(9051) for the Respondent(s) No. 12
MR DEEP D VYAS(3869) for the Respondent(s) No. 2,3
MR GALAV C SHARMA(5489) for the Respondent(s) No. 11
MR KAMLESH P VAIDANKAR(10135) for the Respondent(s) No. 7,8
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2,3,4
MR UDAY R BHATT(192) for the Respondent(s) No. 10
NILU K VAIDANKAR(8382) for the Respondent(s) No. 7,8
NOTICE SERVED for the Respondent(s) No. 1,5
SERVED BY RPAD (N) for the Respondent(s) No. 6
==========================================================
CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 17/07/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Ms. Amrita Thakore for the petitioner requested to delete respondent No. 1 Page 1 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined
- State of Gujarat from array of party respondents. Deletion of respondent no.1- State of Gujarat is permitted, to be deleted forthwith.
2. Co-operative Society as petitioner has filed this petition seeking redevelopment of its flats and thereby sought to direct all the members to vacate their respective flats in the petitioner Society. It is the case of the petitioner- Society that its flats are in dilapidated and dangerous condition and therefore it is not feasible to repair and refit. Hence, appropriate directions may be issued to all the members to vacate their respective flats so that respondent No. 5 (Developer) is permitted to undergo the process of redevelopment.
3. The brief facts referred in the petition are as under: -
The petitioner is a Co-operative Housing Society registered under the provisions of the Gujarat Co-operative Societies Act, 1961 having registration No. D/1787 dated 31.08.1966. The Society is owner of land admeasuring 6815 sq. mtrs. in Final Plot Nos. 280 and 281 in Town Planning Scheme No. 3 Mouje Seikhpur-Khanpur, Ahmedabad 3 (Memnagar Vibhag), Taluka Sabarmati, District Ahmedabad. The Society consists of 11 residential blocks each having 6 flats and thus total 66 flats of Page 2 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined 2BHK having 114 sq. yard built up area were built on the land. There are 66 members and the Society is known as Shrijibaug Flats whose chairman as petitioner No. 2 and Secretary as petitioner No. 3 having authorized, has filed this petition.
3.1 It is case of the petitioner-Society that there are total 11 blocksks having 6 flats in each block, totaling 66 flats (hereinafter referred as 'subject flats') and all constructed around 55 years back. All flats are in highly dilapidated condition and also structurally unsafe with no possibility of repairs. Corrosion in many of the RCC beams, columns and foundation due to long term seepage of rain water and water leakage in service lines are visible. Exposed corroded bars are also seen in the slabs and major cracks are located at various locations. This shows the dilapidated condition of the subject flats and therefore it is not feasible to repair the same.
Moreover, the said flats having suffered the shocks of 2001 earthquake, the entire structure got weakened and damaged. Therefore, the Society decided to have the Structural Stability Report annexed at Annexure-A (Page No. 36). The Structural Stability Certificate states that the overall structural health is not in a good condition and not stable. Report also suggests to build a new one instead of investing in repairs and renovation. Accordingly, the Society in its General Body Meeting took a Page 3 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined decision to go for redevelopment of the subject flats. The decision of redevelopment of subject flats is taken after following due procedure and as per the provisions of the Act, however, since respondent Nos. 10, 11 and 12 had not consented for the redevelopment, this petition is filed.
4. Heard learned advocate Ms. Amrita Thakore for the petitioner, learned advocate Mr. Deep Vyas for respondent Nos. 2 and 3, learned advocate Mr. Satyam Chhaya for respondent No. 4, learned advocate Ms. Nilu Vaidankar with learned advocate Mr. Kamlesh Vaidankar for respondent Nos. 7 and 8, learned advocate Mr. Jenil Shah for respondent No. 9, learned advocate Mr. Uday Bhatt for respondent No. 10, learned advocate Mr. Galav Sharma for respondent No. 11 and learned advocate Mr. Jaimin Gandhi for respondent No. 12.
5. Learned advocate Ms. Thakor for the petitioners submitted that in this case on account of dilapidated condition of subject facts, it was decided by the petitioner- Society to have Structural Stability report. Accordingly, a detailed report dated 18.12.2022 was received certifying that the overall structural health of subject flats is not in good condition recommending dismantling and rebuilding instead of repairs and renovation. Moreover, in this case, respondent No. 2 - Ahmedabad Municipal Corporation had issued notices dated Page 4 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined 25.05.2023 (Annexure-C, Page No. 83) and 03.06.2024 (Page No. 76) stating that the structure of the subject flats is in dilapidated and dangerous condition. The said notices dated 25.05.2023 and 03.06.2024 were served to the Society. From the notices it is evident that though the notices refer to repair and secure the structure, the opinion rendered of dangerous condition of the subject flats cannot be ignored and accordingly, a conscious decision was taken by the Society to undergo redevelopment. Accordingly, the procedures contemplated under the provisions of the Act was initiated and followed.
6. Learned Advocate for the petitioner explained the procedure as followed: -
6.1 In the year 2021-2022, the procedure of redevelopment was initiated. Accordingly, a meeting dated 05.09.2021 was held wherein 7 offers were received including that of respondent No. 5 from various builders and out of that 2 offers were shortlisted.
6.2 Thereafter, on 14.09.2021, a circular was sent to all the members to shortlist the developer and accordingly a WhatsApp group was prepared.Page 5 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025
NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined 6.3 Another circular dated 15.09.2021 was issued for holding the meeting on 19.09.2021 inviting suggestions from the members so that one developer can be shortlisted and a meeting could be held with him. Accordingly, on 19.09.2021, a meeting was held and upon considering the suggestions of the members in the said meeting it was decided to consider offers from 2 builders.
6.4 On 26.09.2021 a discussion was held with representatives of both the builders and their offers were discussed and it was decided to call representative of Rajsvi Builders on 03.01.2021 for discussion.
6.5 Accordingly, on 03.01.2021 discussion was held with Rajsvi Builders. An appointment of Project Manager Consultant was done on 03.05.2022 who submitted its technical report on redevelopment.
6.6 After appointment of Project Manager Consultant and after having discussed the best offer available to the members in the meeting dated 22.05.2022, offer of respondent No. 5 and the tentative plan prepared by the developer was approved unanimously and accordingly, the connected resolutions were passed.
Page 6 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined 6.7 Thereafter, on 18.09.2022, a meeting was held to resolve to go ahead with the redevelopment of the Society and to allot work to respondent No. 5. Other connected issues were also discussed and decided. Draft MOU sent by builders were discussed, changes were made and thereafter modified Draft MOU was unanimously approved. A resolution to the said effect was passed. Accordingly, the MOUs were signed by 62 out of 66 members i.e. 94% with respondent No. 5.
6.8 The list of consenting members as on date of filing of the petition is at Page No. 485 and 486. Thereafter, after filing of the petition, respondent No. 6 having Flat No. 1/1/B jointly with brothers had consented for redevelopment and accordingly their MOU was signed through Power of Attorney Holder.
6.9 There existed a dispute between respondent No. 7 to respondent No. 9 with regard to Flat No. 4/1/B and they have settled and executed a registered relinquishment deed dated 23.05.2024 and therefore, now respondent No. 7 being the sole owner, by executing the MOU had consented for redevelopment. Therefore, as on date of hearing of this petition 64 out of 66 members i.e. 96.97% have consented for redevelopment and all 64 members have executed the MOU.
6.10 In relation to terms and conditions of the MOU and the Page 7 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined amenities to be provided by the developer, learned advocate for the petitioners submitted that larger size flats, common facilities and amenities are available in the proposed development plan. Rent to be provided to the members upon redevelopment is also decided in the MOU. Transportation costs, maintenance deposit, bank guarantee, furniture fixture amount are recorded in the MOU. Thus, the offer beneficial to the members of the Society was considered and finalized.
6.11 In view of above, now there exist objections by only two members of the Society. If the said objections are seen, respondent No. 10 (owner of Flat No. 4/1/B) has filed her reply taking frivolous and untenable objections with regard to terms and conditions of the MOU for redevelopment. Learned advocate submitted that these are the commercial terms and have been agreed by 96.97% members and therefore challenge of these terms by the sole member is of no consequences.
6.12 In relation to objection by respondent Nos. 11 and 12 (Flat No. 5/3/B), Learned Advocate submitted that respondent No. 12 has signed the MOU. However, respondent No. 11 and respondent No. 12 have inter-se dispute with regard to Flat No. 5/3/B, for which respondent No. 12 has filed a Civil Suit No. 1390 of 2022 in City Civil Court, Ahmedabad claiming 50% share and sought partition. Respondent No. 12 has also Page 8 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined filed reply to the petition. In Paragraph No. 4, 5 and 8, it is stated by respondent No. 12 that he is agreeable for redevelopment and has never objected for vacation or demolition for redevelopment. On the contrary, in Paragraph No. 6 and 10, of reply affidavit, respondent No. 12 has stated that he had filed a suit and that would not affect the redevelopment. Likewise, respondent No. 11 has filed reply to the petition wherein in Paragraph No. 4 and 7, he has stated that he has no objection for redevelopment and is looking forward to it, however, the same may be subject to his rights, interest and possession. The case of respondent No. 11 is that possession of new flat upon redevelopment may be given to him and at this stage other consequential expenses and rent may be paid to him.
6.13 Learned advocate therefore submitted that since the petitioner Society is not competent to resolve the issue between respondent Nos. 11 and 12, more particularly, when the issue is sub-judice before the competent Court of law, it is beyond the jurisdiction of the Society and respondent No. 5. Moreover, at this stage, requirement of Section 41A of the Gujarat Ownership Flats Act, 1973 (for short 'the Act') are to be fulfilled and if the prayers sought are not considered it would adversely affect the life of several people and put them to risk only on account of internal dispute in respect of only Page 9 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined one flat. Learned advocate therefore submitted that it is submission of the petitioner that respondent Nos. 11 and 12 and respondent No. 5 (developer) may be directed to abide by the orders passed by the City Civil Court, Ahmedabad in Special Civil Suit No. 1390 of 2022. The petitioner Society and respondent No. 5 may be directed to handover the possession of new flat in lieu of existing Flat No. 5/3/B to such a person or a person as may be directed by the City Civil Court, Ahmedabad in Special Civil Suit No. 1390 of 2022.
6.14 Further, respondent No. 5 may be directed to deposit monthly rent amount, transportation expenses, hardship compensation before the Registry of the City Civil Court, Ahmedabad and the same may be permitted to be disbursed as directed by the City Civil Court, Ahmedabad in Special Civil Suit No. 1390 of 2022.
6.15 Learned advocate for the petitioner for directions to be issued in case where the suit is pending has relied upon the decision in the case of Swapna Co-operative Housing Society Limited and Ors. v.s. State of Gujarat and Ors. in Special Civil Application No. 18234 of 2022 wherein, vide judgment dated 07.02.2024, this Court directed the Society to abide by the orders of the competent Civil Court having jurisdiction to decide the title of the issue. In relation to merits of Page 10 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined redevelopment Learned advocate for the petitioners, relied upon following judgments: -
Sr. No. Particulars
1 Bengal Secretariat Co-operative Housing Society v.s.
Sri Aloke Kumar dated 13.10.2022 in Civil Appeal No. 7261 of 2022 2 Rabari Tejmalbhai Gagabhai v.s. Ratnamani Co-
operative Society dated 08.12.2023 in Letters Patent Appeal No. 1427 of 2023 3 Ratnamani Co-operative Society v.s. State of Gujarat dated 09.11.2023 in Special Civil Application No. 11314 of 2022 4 Girishbhai Darji v.s. Ahmedabad Municipal Corporation dated 29.09.2023 in Letters Patent Appeal No. 336 of 2023 5 Harshadbhai Kiri v.s. Ahmedabad Municipal Corporation dated 14.09.2022 in Special Civil Application No. 12887 of 2020 6 Sarojben Shah v.s. Ahmedabad Municipal Corporation dated 23.01.2023 in Letters Patent Appeal No. 1075 of 2022 7 Swami Vivekanand Co-operative Society v.s.
Ahmedabad Municipal Corporation dated 21.06.2022 in Special Civil Application No. 8530 of 2019 8 Sunvalley Co-operative Housing Society v.s.
Ahmedabad Municipal Corporation dated 15.02.2023 in Special Civil Application No. 7709 of 2022 9 Dhaval Harshadbhai Dave v.s. Sunvalley Co-
operative Housing Society dated 26.04.2024 in Letters Patent Appeal No. 488 of 2024 10 Rutulpark Co-operative Housing Society v.s. State of Gujarat dated 18.04.2024 in Special Civil Application No. 9304 of 2022 11 Ajay Purshottamdas Patel v.s. Rutulpark Co-
operative Housing Society dated 05.07.2024 in Page 11 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined Letters Patent Appeal No. 653 of 2023 12 Nirmalkunj Co-operative Housing Society v.s. State of Gujarat dated 02.05.2024 in Special Civil Application No. 7708 of 2020 13 Rajesh Chinubhai Patel v.s. Nirmalkunj Co-operative Housing Society dated 19.06.2024 in Letters Patent Appeal No. 550 of 2024 14 Patel Baug Co-operative Housing Society v.s. State of Gujarat dated 19.09.2024 in Special Civil Application No. 5555 of 2024
7. Opposing the petition, learned advocate Mr. Uday Bhatt for respondent No. 10 at the outset submitted that no reply is filed till date by respondent Nos. 2, 3 and 4 - Ahmedabad Municipal Corporation and therefore in absence of any reply filed, this petition may not be heard for final hearing. Further, there are disputed facts which respondent No. 10 has stated in her reply and this being a matter involving disputed question of facts, the petition under Article 226 of the Constitution of India is not maintainable and therefore, may be dismissed summarily.
7.1 In relation to the merits of the matter, learned advocate Mr. Uday Bhatt for respondent No. 10, read paragraph by paragraph of the memo of petition and submitted that every averment made in the petition is disputed by respondent no.10 and therefore when the disputed question of facts is involved in the matter, this petition may not be entertained.
Page 12 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined Further, the prayer made of challenging the notices issued by respondent - Ahmedabad Municipal Corporation and then to sought redevelopment permission cannot go together since the said notice referrers to repairs and refitting of the structure and when the notice was not issued for demolition, the decision taken by majority being contrary to the notice, this petition may be dismissed.
7.2 In relation to merits, learned advocate for respondent No. 10 referring to affidavit-in-reply dated 05.04.2024 submitted that the notices issued by Ahmedabad Municipal Corporation directs to secure repairs of the society and for that purpose to vacate the flats. When the notice was issued to secure the repairs, the decision taken in the General Body Meeting of redevelopment being contrary to the notice deserves no consideration. Learned advocate Mr. Bhatt further submitted that respondent No. 10 is owner of flat bearing Block No. 5 at the first floor of side B of the petitioner - society. The decision taken of not signing the MOU was a conscious decision because since she resides in the USA, she was not aware about the redevelopment process initiated at the earlier stage. However, having come to know about the same, she raised her concern and the action taken ignoring her concern being highhanded action on the part of the petitioners, and therefore may be ignored.
Page 13 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined 7.3 Learned advocate Mr. Bhatt further submitted that the objections raised by respondent No. 10 were in relation to the meager amount of Rs.5,00,000/- towards Bank Guarantee to be deposited by developer and respondent no.5 is a sole proprietary firm. In the opinion of respondent no.5, the offer given by respondent No. 5 is not beneficial to the members. Moreover, the agreement of redevelopment has not been registered and till date the alternative accommodation has not been provided to the members of petitioner - Society. Learned advocate submitted that every objection raised is in the interest of members. For example, the agreement does not contain any clause for breach of terms of the agreement and other ancillary charges (rent, bank guarantee and possession) to be paid to each member upon vacating the premises. Therefore, it is a concern of respondent No. 10 which she had voiced and not considered in the Annual General Meeting; hence, this Court may consider the objections and may not permit the re- development.
7.4 Learned advocate Mr. Bhatt for respondent No. 10 reiterated many times his contention of petition involving disputed questions of facts and therefore not maintainable under Article 226 of the Constitution of India. Further, proposal of respondent No. 5 accepted by majority is not a fair Page 14 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined proposal, and therefore, this Court may not accept the prayers.
8. Learned advocate Mr. Sharma for respondent No. 11 submitted that admittedly for the dispute of ownership between respondent Nos. 11 and 12 for Flat No. 5/3/B, of Shrijibag Society, civil suit filed by respondent no 12 being Regular Civil Suit No. 1390 of 2022 is pending. However, respondent no.11 is not against redevelopment but upon redevelopment, he may be given possession because lastly the possession of Flat No. 5/3/B was with him. Learned advocate Mr. Sharma thus submitted that respondent No. 11 is not against redevelopment however, his concern is to handover the possession to him upon redevelopment. Further, since respondent No. 11 was in possession of the property, he would be entitled to rent, transportation expenses and other ancillary payment as agreed to be paid by respondent no.5-developer, and forming part of MOU.
8.1 Learned advocate Mr. Sharma by placing reliance on affidavit of respondent No. 11 at Page 642 submitted that respondent No. 11 is in ownership of Flat No. 5/3/B by way of family arrangement/MOU dated 25.11.2002, wherein Clause 7 of the said MOU states as under: -
"Shreeji Bag Flat is to be in favour of Devendra Shah and Sabarmati Bunglow in favour of Bharat Page 15 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined Shah without paying any extra money"
9. Learned advocate Mr. Jaimin Gandhi appeared for respondent No. 12 and submitted that it is true that there exists a dispute in relation to ownership of Flat No. 5/3/B, of Shrijibaug. Further, it is true that respondent No. 12 has signed MOU, however, respondent No. 11 and 12 have inter-se dispute with regard to Flat No. 5/3/B for which respondent No. 12 has filed Civil Suit No. 1390 of 2022 before the Civil Court, Ahmedabad claiming 50% share and partition. The said suit is pending. However, the averment made in the affidavit that possession of Flat No. 5/3/B was with respondent No. 11 is true and on that ground respondent no 12 has no objection if the rent and transportation charges as referred in the MOU is paid to respondent no.11. In relation to other charges (other than rent and transportation) respondent no 12 has no objection if the same is deposited before the Registry of City Civil Court, Ahmedabad where the suit is pending. The payment of the amount deposited shall be decided by City Civil Court, Ahmedabad in Civil Suit No. 1390 of 2022. Therefore, this petition may be considered keeping in mind the pendency of suit where the ownership of Flat No. 5/1/B is to be decided by the competent Court.
10. Considered the submissions, documents on record and the Page 16 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined decisions relied upon. The facts referred hereinabove are not in dispute and therefore the same are not repeated. In relation to the redevelopment process initiated by petitioner - Society, it is noticed that it was done after following the due procedure as contemplated under the provisions of the Gujarat Ownership Flats Act as well as the Gujarat Ownership Flats Rules, 1974. Undisputedly, in the General Body Meeting dated 05.09.2021 a decision was taken to consider the proposal of redevelopment by considering the best offer received. The said decision was based on the Structural Engineers Report dated 18.12.2022 recommending dismantling of the present building and to build a new one instead of investing on repairs and rehabilitation. Accordingly, a circular dated 15.09.2021 was issued for holding a meeting on 19.09.2021 for redevelopment where suggestions were invited and to take a decision to give the work of redevelopment to the builder considering their offer. A Project Management Consultant was also appointed and after a detailed discussion and that too after having the meeting with respondent No. 5 - developer it was decided by majority to give him the work of redevelopment. This aspect in detail is recorded as part of submissions on behalf of petitioner Society. Moreover, it is not the case of the objectors (private respondents) that the procedure as contemplated under the provisions of the Act was not followed. Therefore, in the opinion of this Court, once the procedure has been followed Page 17 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined and since the requirement of provisions of Section 41A of the Act having been fulfilled i.e. the subject flats are more than 25 years old and having consent of more than 75% (in this case 96.97%) the execution of MOU between the consenting members and respondent No. 5, is just and conscious decision by majority members.
11. In relation to the terms and the amenities referred in MOU, it is noticed that the members have agreed to go for redevelopment as they are going to get larger sized flats with common facilities and amenities. The developer - respondent No. 5 has agreed to pay rent for the transit period along with transportation costs. The transportation expenses of Rs.20,000/- is taken care of. The maintenance deposit of Rs.50,000/- agreed to be paid. The bank guarantee of Rs.5 crores of nationalized or scheduled bank is also agreed by respondent No. 5. Furniture and fixtures amount was also agreed to be paid to the members upon giving the peaceful vacant possession. All these conditions are forming part of MOU. Hence, in the opinion of this Court, the majority members of the petitioner Society have agreed to go for redevelopment taking into consideration the terms and amenities provided by respondent No. 5 which are forming part of MOU. Therefore, in the opinion of this Court, there is no illegality per se in entering into the MOU which is a conscious decision by the Page 18 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined majority members.
12. Now, taking into consideration the reiteration made by respondent No. 10 (objecting member), it is noticed that respondent No. 10 has refused to sign MOU by taking frivolous and untenable objections without pointing out any defect in any of the clauses of MOU. The issue raised of maintainability of petition on disputed questions of facts, in the opinion of this Court is no more res-integra in view of decision of Division Bench of this Court in the case of Ajaybhai Purshottamdas Patel V/s. Rutul Park Corporative Housing Society in Letters Patent Appeal No. 653 of 2024, wherein it is held as under:
"14. Reliance has been placed to the decision of the Apex Court in Binny Ltd. & Anr vs V. Sadasivan [AIR 2005 SC 3202] to submit that in exercise of the power under Article 226 of the Constitution of India, a Writ of mandamus could be issued only against a private authority or person when such private authority or person must be discharging a public function and any decision taken by him is sought to be corrected or enforced, which must be in discharge of a public function. A private body can be said to be performing a public function when it seeks to achieve some collective benefit for the section of the public and is accepted by the publication of the public as having authority to do so. Public functions need to be the exclusive domain of the State. If the source of power is a statute or subordinate legislation under a statute, then such Page 19 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined a private body in question will be subject to judicial review. However, if the source of power is contractual, then the power of judicial review cannot be invoked. It is, thus, argued that an obligation of the appellant against the Society is a contractual obligation and the contract would not be statutory simply because it is for r, if the source of power is contractual, then the power of judicial review cannot be invoked. It is, thus, argued that an obligation of the appellant against the Society is a contractual obligation and the contract would not be statutory simply because it is for construction of a public utility."
12.1 Further, it would be apposite to refer to one more judgment of this Court in the case of Rabari Tejmalbhai Gagabhai v. Ratnamani Cooperative Housing Society Limited in Letters Patent Appeal No.1427 of 2023, wherein it is held as under:-
"8. Having extensively gone through the provisions of Section 41-A read with the Rules 18 to 25 made thereunder, we record that the society for carrying out redevelopment work of the building has to follow the terms and conditions as laid down in Section 41-A which are :-
(i) The building shall have completed the period of twenty-five years from the date of issuance of the development permission by the concerned authority;
(ii) The concerned authority has declared the building being in ruinous condition, i.e. declared it dilapidated and dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the Page 20 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined neighborhood thereof;
(iii) Consent of not less than 75% of the members of the building for redevelopment of the building has been obtained."
13. Moreover, on the argument canvassed on behalf of respondent No. 10 that MOU lacks clarity and not a fair deal, it is noticed that these are all mere allegations without any supporting documents. Learned advocate after reiteration of his submissions could not establish that the offer given by respondent No. 5 is not a fair deal and some other deal is available to respondent No. 10. Moreover, this Court is conscious of the objections raised by Respondent No. 10, that the MOU and its terms and conditions are not beneficial to the members of the society. Merely because the terms and conditions are not acceptable to Respondent No. 10, who can be termed as minuscule minority, cannot be the basis for not abiding the decision of the overwhelming majority of the members of the society.
13.1 On the aspect of repairs being possible, it is noticed by this Court that the Corporation issued a notice where the conditions of the flat stated is dangerous to human life. Moreover, the Structural Stability Report also supports the case of the petitioner that it is not advisable to repair, instead it is advisable to go for redevelopment. Thus, when majority Page 21 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined members have taken a conscious decision, the objections raised by minuscule members are to be ignored. Moreover, no provision under the Gujarat Co-operative Societies Act, 1961 or any other legal provision has been brought to the notice of this court which could curtail the right of the society to redevelop the property when majority members of the society have agreed to do so. It is the commercial wisdom of the members of the society and it is not for the court to sit over the said wisdom of the decision of the majority members of the society. Disapproval of a minuscule minority cannot be the basis to negate the decision taken by the overwhelming majority of the members of the society, unless fraud, misrepresentation of violation of any provision of law is shown. The contention raised that the decision taken is contrary to the notice of Corporation is not acceptable. Moreover, this Court finds it difficult to accept the contention on one more ground that respondent No. 10 does not stay here and resides in the USA. Therefore, in the opinion of this Court this is the procedure adopted to stall the process without there being any valid reason. Moreover, till date of hearing of the petition not a single offer was made available by respondent No. 10 that she is available with a better offer than respondent No. 5. The security deposit of Rs.5 crores cannot be stated to be a small amount and in the opinion of this Court all the requirements under the provisions of the Act and the Rules Page 22 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined have been complied with. Therefore, there being no merit in the submissions of respondent No.10, the same are rejected. Respondent no 10 is therefore directed to give peaceful vacant possession of her apartment forthwith either to the Society or to Respondent No.5- Developer.
14. Now in relation to the objections raised by respondent Nos. 11 and 12, it is noticed that respondent No. 12 has signed the MOU. However, respondent Nos. 11 and 12 have inter se dispute with regard to Flat No. 5/3/B for which respondent No. 12 has filed Civil Suit No. 1390 of 2022 before City Civil Court, Ahmedabad claiming 50% share and partition. Moreover, in the reply filed by respondent No. 12, he has stated that he is agreeable to redevelopment and never objected to vacating. On the contrary in Paragraph Nos. 6 and 7 of the affidavit-in-reply of respondent No. 12, it is stated that none of the claims made in the suit affect redevelopment. However, from a reply filed by respondent No. 11, it is noticed that respondent No. 11 has no objection to redevelopment and he has stated that he is looking forward to the same subject to his rights, interest and possession. It is case of respondent No. 11 that he is claiming right in Flat No. 5/3/B and possession thereof and right and possession of new flat after redevelopment and entire rent and other amount payable under MOU. In other words, it is case of respondent Page 23 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined No. 11 that since he was in possession of Flat No. 5/3/B of subject flat he would be entitled to the rent, transportation charges, ancillary charges to be made by respondent No. 5 and also the possession upon redevelopment. Therefore, it cannot be ignored that irrespective of pendency of Civil Suit No. 1390 of 2022 it is not the case of respondent Nos. 11 and 12 that they are objecting to redevelopment. On the contrary, both are in agreement for redevelopment and singing of MOU by respondent No. 12 cannot be ignored. Moreover, during the course of hearing it was agreed by respondent No. 12 that respondent No. 11 was in possession of the flat in question; the transportation charges to be given by respondent No. 5 may be given to him. Moreover, with relation to other charges like monthly rent and maintenance deposit and ancillary amount like furniture and fixtures it was agreed between the parties that if their interest can be safeguarded, they would not be objecting to the redevelopment process. Therefore, the contention of petitioner that the petitioner as a society cannot resolve the interse dispute between respondent Nos. 11 and 12 and both respondent Nos. 11 and 12 shall have to abide with the decision of Civil Court, Ahmedabad having jurisdiction in which the Civil Suit No. 1390 of 2022 is pending, merit acceptance. Therefore, this Court deems it appropriate that when the conditions of Sections 41A of the Act having been fulfilled and non-consideration of the request of redevelopment Page 24 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined would adversely affect the life of several persons and would put them at risk when the building as per the Structural Stability Report and the notice of the Corporation is in a dangerous condition.
15. Therefore, in the opinion of this Court if the following order is passed that would safeguard the interest of all members including respondent Nos. 11 and 12 which are as under: -
15.1 Respondent no 11 is directed to hand over vacant possession of flat No.5/3/B, of Shreeji Apartment forthwith either to Society or to Respondent No.5- Developer.
15.2 Since Respondent No.11 was in possession of flat No. 5/3/ B of Shreeji Apartment, the transportation cost shall be given to respondent no.11, upon he/she giving peaceful vacant possession as per clause 15.1.
15.3 Respondent Nos. 11 and 12, petitioner Society and the developer are directed to abide with the orders passed by the City Civil Court, Ahmedabad in Civil Suit No. 1390 of 2022.
15.4 The petitioner Society and respondent No. 5 - developer is directed to hand over the possession of new flat in lieu of Page 25 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined existing flat No. 5/3/B to such person or the persons as may be directed by the City Civil Court. Ahmedabad in Civil Suit No. 1390 of 2022.
15.5 Respondent No. 5 - developer is directed to deposit monthly rent amount for flat No.5/3/B and other amount to be paid to the members as per MOU before the Registry of City Civil Court, Ahmedabad where the suit is pending and the same shall be disbursed to a person or persons and in such proportion as may directed by City Civil Court, Ahmedabad in Civil Suit No. 1390 of 2022.
16. For the foregoing reasons, the petition is required to be considered under Section 41A of the Act, 1973. Since the petitioner society has met and complied with the conditions enumerated in 41A of the Act and decided to go for redevelopment, this Court under section 226 of the Constitution of India is inclined to entertain this present petition.
17. For the foregoing reasons, the prayers prayed in the present petition are required to be allowed and the same are allowed. Since, private respondent Nos. 5 to 9 during pendency of this petition have agreed for redevelopment and have signed their respective MOU, private respondent Nos. 10, 11 and 12 are directed to vacate their respective flats in Page 26 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025 NEUTRAL CITATION C/SCA/14360/2023 JUDGMENT DATED: 17/07/2025 undefined petitioner society and to hand over the peaceful vacant possession thereby for redevelopment as per Section 41A of the Act, 1973 within the period of eight weeks from the date of receipt of this order.
18. The private respondents i.e. respondent Nos.10, 11 and 12 are directed to cooperate in the redevelopment of petitioner society.
19. With this, the present petition is allowed to the aforesaid extent. Rule is made absolute. sd/-
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 27 of 27 Uploaded by SHRIJIT PILLAI(HC01400) on Thu Jul 17 2025 Downloaded on : Thu Jul 17 22:29:48 IST 2025