Gautam Co-Operative Housing Society ... vs State Of Gujarat

Gujarat High Court

Gautam Co-Operative Housing Society ... vs State Of Gujarat on 10 November, 2025

                                                                                                            NEUTRAL CITATION




                             C/SCA/6783/2025                               JUDGMENT DATED: 10/11/2025

                                                                                                            undefined




                                      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/SPECIAL CIVIL APPLICATION NO. 6783 of 2025


                        FOR APPROVAL AND SIGNATURE:


                        HONOURABLE MRS. JUSTICE MAUNA M. BHATT                       sd/-
                        ==========================================================

                                     Approved for Reporting               Yes           No
                                                                                        No
                        ==========================================================
                                     GAUTAM CO-OPERATIVE HOUSING SOCIETY LIMITED
                                                        Versus
                                               STATE OF GUJARAT & ORS.
                        ==========================================================
                        Appearance:
                        MR. HJ KARATHIYA(7012) for the Petitioner(s) No. 1
                        DILIP PATEL(8527) for the Petitioner(s) No. 1
                        MR. NISARG D SHAH(7299) for the Petitioner(s) No. 1
                        MS AISHWARYA CHAUDHARY, LD.ASSTT. GOVERNMENT PLEADER for
                        the Respondent(s) No. 1
                        MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 2
                        NOTICE SERVED BY DS for the Respondent(s) No. 3,4,5
                        ==========================================================

                           CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                                      Date : 10/11/2025

                                                      ORAL JUDGMENT

1. This petition is filed seeking to direct respondent Nos.4 and 5 to hand over peaceful and vacant possession of Flat No. C-11, of Gautam Co-operative Housing Society for the purpose of its redevelopment in accordance with Section 41A of Gujarat Ownerships Flats Act, 1973 (hereinafter referred to as "the Act").

NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined

2. Heard learned advocate Mr.H.J.Karathiya for the petitioner; learned Assistant Government Pleader Ms.Aishwarya Chaudhary for respondent No.1 and learned advocate Mr.Anuj Trivedi for respondent No.2. Though served, respondent no 3 to 5 remained unrepresented.

3. It is case of the petitioner- society that the society is fulfilling conditions as envisaged under Section 41 A of the Gujarat Ownerships Flats Act, 1973 and therefore, respondent Nos.4 and 5 may be directed to vacate the Flat No.C-11 (hereinafter referred as "flat in question") for the purpose of redevelopment of the petitioner- society.

4. Learned advocate for the petitioner submitted that the petitioner herein is Co-operative Housing Society registered on 30.08.1982, and situated on land bearing Survey No.559/1, Final Plot No.427 in the Town Planning Scheme No.1 of Village: Naroda, Ahmedabad. The Society has 60 flats with 60 members. Since the petitioner- society was constructed way back in the year 1982, the structure being 43 years old, the units have been dilapidated. Therefore, in the General Body Meeting of the Society, a resolution dated 06.08.2023 (Annexure "B" Page-15) was passed by majority members to initiate process of redevelopment of the Society. Accordingly, Page 2 of 11 Uploaded by DIPTI PATEL(HC00191) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:04:52 IST 2025 NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined respondent No.3 was found as suitable developer for the purpose of redevelopment. Pursuant thereto a "Samjuti Karar"

was executed between the petitioner-society and respondent No.3- Developer, where prima facie terms and conditions were agreed upon between respondent No.3 - Developer and members of the petitioner-society. The said "Samjuti Karar"

was signed by as many as 59 members out of 60 members of the society. Accordingly, Non-Agricultural Use permission was applied for commercial as well as residential use purpose on 17.05.2023 (Annexure "D" Page-174). A Raja Chitthi dated 25.10.2024 was sanctioned in favour of the society, which is at page-178. However, despite having due permission of redevelopment as per Raja-Chitthi dated 25.10.2024, the redevelopment process could not be initiated on account of death of one member of the petitioner-society i.e. Shardaben Pandya holding unit No.C-11.

4.1 Learned Advocate submitted that Shardaben Pandya of unit owner C-11 died intestate on 15.05.2016 and to serve her legal heir or anyone interested ,a Public Notice was issued inviting objections, if any, for redevelopment of the petitioner- Society. Pursuant thereto, respondent Nos.4 and 5 raised their objections along with Pedigree, which is at Page-245. It is case of respondent Nos.4 that new Flat after redevelopment, may be Page 3 of 11 Uploaded by DIPTI PATEL(HC00191) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:04:52 IST 2025 NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined handed over to him, whereas it is case of respondent no.5 that it may be handed over to her. However, respondent Nos.4 and 5 failed in producing Succession Certificate in favour of either of them and accordingly, the petitioner- society directed respondent Mos.4 and 5 respectively to get Succession Certificate in their respective favor and accordingly, the petitioner- society had shown readiness to hand over the possession to whoever producing Succession Certificate issued by a competent Court of law.

4.2 Learned advocate for the petitioner submitted that the petitioner- society is only interested in redevelopment of the society and the said decision was taken after following the due process and that too, after passing resolution in the general body meeting by majority members. Memorandum of Understanding entered into by 59 members with the respondent No.3- Developer, is not in dispute. The issue remains only with regard to the ownership of Flat No.C-11, which is to be decided between respondent Nos.4 and 5. Respondent No.4 - Ushakant Rashmikant Bhatt raised objection inter alia claiming to be relative of the deceased, whereas respondent No.5- Jayshree Kaushikkumar Pandya raised an objection inter alia claiming some right over the flat in question and claiming deceased to be her aunt. Accordingly, Page 4 of 11 Uploaded by DIPTI PATEL(HC00191) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:04:52 IST 2025 NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined petitioner- society issued Notice dated 03.07.2024 and 09.08.2024 respectively (Page-240 to 247) to get Succession Certificate and therefore, appropriate directions may be issued permitting the petitioner- society to redevelop the flats by directing respondent Nos.4 and 5 to hand over peaceful and vacant possession of Flat No.C-11. Further, authorized person of the Society and the developer are ready to file an undertaking before this Court stating that unit / Flat No.B-903, against Flat No.C-11, shall be kept vacant upon redevelopment and shall be allotted to one who possess succession certificate in his/her favour and that nobody including the developer shall create any right over Flat No.C-11.

4.3 Learned advocate for the petitioner submitted that the Corporation is joined as party respondent since condition of the construction can be verified since it is more than 43 years old. Learned advocate fairly submitted that no Notice has been issued by the Municipal Corporation. However, dilapidated condition of the Flats can be verified from the photographs at Page-184 & 185.

5. On the other hand, learned advocate Mr.Anuj Trivedi submitted that as per settled legal proposition, if majority members are in agreement of redevelopment upon fulfillment Page 5 of 11 Uploaded by DIPTI PATEL(HC00191) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:04:52 IST 2025 NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined of the conditions of Section 41A of the Act, Corporation has no objection to the same. With regard to direction sought against respondent Nos.4 and 5, learned advocate Mr.Anuj Trivedi submitted that it is their internal dispute and it is the petitioner-society, who has issued notice to get Succession Certificate and if the petitioner- society is directed to hand over possession of Flat No.C-11 to the holder of Succession Certificate issued by a competent Court of law, the Corporation has no objection to the same.

6. Considered the submissions and documents on record. From the documents on record, it is evident that prayer of the petitioner is to direct respondent Nos.4 and 5 to hand over peaceful and vacant possession of Flat No.C-11 for the purpose of redevelopment. It is noticed that prior to decision of redevelopment, the construction being 43 years old and on account of its dilapidated condition, 59 out of 60 members have agreed to go for redevelopment of their respective flats. Accordingly, NA permission was applied and sanctioned in favour of the petitioner- society by revenue authority with the permission for use of residential as well as commercial. The society by majority members have chosen to hand over the work of redevelopment to respondent No.3 and accordingly, Memorandum of Understanding individually has been entered Page 6 of 11 Uploaded by DIPTI PATEL(HC00191) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:04:52 IST 2025 NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined into by all 59 members with respondent No.3. Development Permission (Raja Chitthi) dated 25.10.2025 is also on record at Page-178.

7. Therefore, only issue remains is with regard to objection raised by respondent No.4, who claims to be relative of deceased Shardaben Pandya being owner of Flat No.C-11 and respondent No.5, who also claims to be relative of deceased Shardaben Pandya. Moreover, it cannot be ignored that to resolve the dispute between respondent Nos.4 and 5, the society has issued individual Notice to respondent Nos.4 and 5 calling upon them vide communications dated 03.07.2024 and 09.08.2024 (Page- 240 to 247) respectively to get Succession Certificate from a competent Court of law. Therefore, in the opinion of this Court, when majority members have agreed for redevelopment of the society and fulfilled requisite conditions as referred in Section 41-A of the Gujarat Ownerships Flats Act, action taken by the petitioner- society asking respondent Nos.4 and 5 to get Succession Certificate in their favour from a competent Court of Law cannot be stated to be inappropriate. Moreover, in the registered development agreement dated 06.02.2025 (page 187), entered into between the petitioner-Society and the developer it is stated that against Flat No.C-11, one flat being Flat No. B-903, shall be kept vacant till production of succession Page 7 of 11 Uploaded by DIPTI PATEL(HC00191) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:04:52 IST 2025 NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined certificate by party concerned and nobody shall create any right on redeveloped Flat No.B-903, allotted against Flat No. C-11.

8. At this stage, it would be apposite to refer the decision of this court rendered 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 neighborhood thereof;

(iii) Consent of not less than 75% of the members of the building for redevelopment of the building has been obtained."

NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined

9. In one more decision in the case of The Bengal Secretariat Cooperative Land Mortgage Bank and Housing Society Ltd. V/s. Sri Aloke Kumar & Anr. reported in MANU/SC/1354/2022 (2022 INSC 1084), wherein Hon'ble Supreme Court has held as under:

"52. It is not in dispute that the General Body of the Appellant Society, which is supreme, has taken up a conscious decision to redevelop the administrative building. The General Body of the Appellant Society has also resolved to appoint the Hi-Rise as the developer. Those decisions having not been challenged at all, the Respondent No. 1 being a member of the Appellant Society is bound by the said decisions. The General Body of the Appellant Society has approved the terms and conditions of the development agreement by overwhelming majority. Merely because the terms and conditions of the development agreement are not acceptable to the Respondent No. 1, who could be said to be in minuscule minority cannot be the basis of not to abide by the decision of the overwhelming majority of the General Body of the Appellant Society. The redevelopment of the property is necessitated in view of the fact that the building is in a dilapidated condition with passage of time. The redevelopment thus, in our view, would be a requirement and a necessity and cannot be termed as business. The Appellant Society in such circumstances did not even require to carry out any amendment to the bye-laws or to include the "redevelopment of the buildings" as one of the objects of the Society before taking any decision to redevelop its property."

10. For the foregoing reasons, the petition is required to be considered under Section 41A of the Act, 2018. Since, the petitioner-society has complied with the conditions enumerated Page 9 of 11 Uploaded by DIPTI PATEL(HC00191) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:04:52 IST 2025 NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined under Section 41A of the Act, 2018 and decided to go for redevelopment, this Court under Article 226 of the Constitution of India is inclined to entertain this petition.

11. Since requirement of section 41-A of Gujarat Ownership Flats Act having been complied with, this petition is allowed. Respondents Nos.4 and 5 are directed to co-operate with the proceedings under section 41-A Gujarat Ownership Flats Act the read with Gujarat Ownership Flats Rules.

12. Therefore, following directions are issued that would safeguard the interest of all members including right, title and interest of holder of unit/ Flat No.C-11, which are as under:

(i) Respondent Nos.4 & 5 are directed to hand over vacant and peaceful possession of Flat No.C-11 to the petitioner-

society for redevelopment within a period of eight weeks from the date of receipt of this order.

(ii) Respondent Nos.4 & 5 are directed to cooperate in the redevelopment of petitioner society.

(iii) The authorized person of the petitioner- society along with Developer is directed to file an Undertaking in this petition, within two weeks from receipt of copy of this order stating that no right, title and interest shall be Page 10 of 11 Uploaded by DIPTI PATEL(HC00191) on Fri Nov 14 2025 Downloaded on : Sat Nov 15 03:04:52 IST 2025 NEUTRAL CITATION C/SCA/6783/2025 JUDGMENT DATED: 10/11/2025 undefined created by anyone over Flat No.C-11 pending redevelopment and upon redevelopment Flat No.B-903 (to be allotted in lieu of Flat No.C-11) shall be allotted to holder of Succession Certificate of deceased Shardaben Pandya, or to anyone in whose favour the order in this regard is passed by the competent Court of Law.

13. With this, the present petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No costs.

Direct service is permitted.

sd/-

(MAUNA M. BHATT,J) DIPTI PATEL...