Gujarat High Court
Nevil Mukeshbhai Rathod vs State Of Gujarat on 6 December, 2021
Bench: Sangeeta K. Vishen
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12340 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NEVIL MUKESHBHAI RATHOD
Versus
STATE OF GUJARAT
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Appearance:
MR NANDISH H THACKAR(7008) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,5,6,7,8,9
MR KRUTIK PARIKH, ASSISTANT GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR G H VIRK(7392) for the Respondent(s) No. 2
MR SIMRANJITSINGH H VIRK(11607) for the Respondent(s) No. 2
MR MIHIR H JOSHI, SENIOR ADVOCATE WITH MR JAY KANSARA AND
MS NISHA OZA FOR M/S WADIAGHANDY AND CO(5679) for the
Respondent(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 06/12/2021
ORAL JUDGMENT
The petitioners, are aggrieved by the redevelopment work of
"the old slum quarters", situated at TP Scheme-25, Final Plot No.34
at Khokhra, Ahmedabad on the ground that such redevelopment is
without providing any details/information to the petitioners; not
providing any audience; and inaction on the part of the respondent
no.2 - Ahmedabad municipal Corporation (hereinafter referred to as
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'the Corporation) in not deciding the representation made by the
petitioners without justifiable reason and carrying on with the
redevelopment process without following due procedure of law.
2. The facts are to the effect that the petitioners were allotted
and transferred ownership of the old slum quarters situated on Final
Plot No.34 at Khokhra. There are 17 blocks comprising of 450
houses/families who have been residing there since 50 years.
According to the petitioners, the petitioners are maintaining their
houses on their own and therefore, the houses of the petitioners are
well maintained and do not require any redevelopment at the hands
of the respondent Corporation. That recently, the petitioners came
to know about the process of redevelopment initiated by the
respondent Corporation, without the knowledge and consent of the
petitioner.
2.1 On 22.6.2021, it also came to the knowledge of the
petitioners, that notice was issued by the respondent Corporation,
requiring the petitioners to make the documents of ownership
available and about participation in the cheque distribution process.
The petitioners were completely baffled on seeing the notice,
pursuant whereof, one of the petitioners through his advocate,
issued a notice dated 1.7.2021. The respondent no.3 - Nila
Infrastructure Ltd. gave a reply dated 15.7.2021, informing about
the redevelopment process undertaken by it as per the work order
issued by the respondent Corporation.
2.2 The petitioners made a detailed representation to the
respondent Corporation on 23.7.2021, inter alia, raising their
grievances and seeking the details/Information about the process
being undertaken behind the back of the petitioners. Various
information were sought for, namely, (i) Certificate or details of the
survey carried out by the certified, qualified Government recognised
authorise agency;(ii) consent of 60% of the members as required
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
under the policy. The petitioners have also sought for clarification
on other aspects, namely, the documents required for the process
as a transfer or ownership; details of the area of houses, which
would be allotted including the facilities provided along with; the
provisions for facilities like water, sewerage, light etc.; the purpose
for issuing the cheque in absence of any agreement between the
parties so on and so forth. It is the case of the petitioners that the
entire process of redevelopment, has been undertaken by the
respondent Corporation, showing undue haste and without following
the due procedure of law, so also without the participation of the
beneficiaries. Therefore, the petitioners issued notice on 12.8.2021
to the respondents, calling upon them to provide necessary
information, details as sought for. The respondents were further
called upon to provide details/documents pertaining to the
compliance of the provisions of Gujarat Provincial Corporation Act,
1949 and more particularly, Sections 268, 469, 474, 260 and 264.
The petitioners also requested for giving a personal hearing after
receipt of the documents as desired.
2.3 To the shock and surprise of the petitioners, the petitioners
received a final notice dated 13.8.2021, requiring the petitioners to
vacate the premises and only information revealed by the
respondent no.3 was that the entire area is going under
redevelopment as 60% of the residents have given the consent. The
petitioners were cautioned that if they do not vacate the premises,
then it would be presumed that the petitioners are not desirous of
availing the benefit of redevelopment. The petitioners have
submitted various representations, however, no reply has been
given by the respondent Corporation except the action of putting
seal on the hotel premises of one of the petitioners on 4.7.2019.
Hence, the present petition by the petitioners.
3. Mr. Nandish Thackar, learned advocate appearing for the
petitioners submitted that since the petitioners were aggrieved by
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the redevelopment process, notice was issued, which was not
replied by the respondent no.2, but by the respondent no.3. It is
vehemently submitted that when the redevelopment process is
being undertaken, the petitioners are entitled to know each and
every aspects, however, the respondent Corporation neither replied
to the notice nor redressed the demand of the petitioners. It is
submitted that the petitioners were issued the notices, followed by a
final notice on 13.8.2021. Such issuance of the notice was without
following any procedure and immediately on 14.8.2021, the
demolition work started, which compelled the petitioners to file the
petition on 25.8.2021.
3.1 It is submitted that the said redevelopment process is under
the Redevelopment of Public Housing Scheme Guidelines, 2016
(hereinafter referred to as 'the Scheme of 2016') issued by the
Urban Development & Urban Housing Department, Government of
Gujarat. It is submitted that as per the policy, the public housing
scheme means a scheme developed by any public agency for the
public at large where, ownership of land continues to remain with
the public agency and individual dwelling units is sold to the
beneficiary subject to the condition laid down in the Scheme of
2016.While referring to the definition of 'dilapidated conditions', it is
submitted that it means such houses which shows signs of decay or
breaking down, requiring major repairs and are far from being in
condition that can be restored or repaired. It is submitted that no
documents or stability certificate have been produced on record to
suggest that the units of the petitioners would fall within the
definition of dilapidated condition.
3.2 It is submitted that neither any stability certificate nor any
document is produced to substantiate that the units/building of the
petitioners are in a dilapidated condition. In absence of any stability
certificate, which can be the only determining factor with regard to
the strength of construction, it cannot be said that the buildings
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
require redevelopment. It is also submitted that merely on the basis
of the photographs taken on 15.9.2021, and that too at the stage
when the demolition had begun, does not justify the action of the
respondent no.2, inasmuch as, the photographs cannot be a
determining factor as regards the condition of the building.
3.3 It is submitted that the implementation of the scheme is
provided in clause 4. Clause 4.1 states that the process of
redevelopment of existing public housing scheme is to be initiated
by association/society of owners by an application to a concerned
public agency or concerned public agency. Clause 4.2 requires the
steps to be followed for redevelopment of public housing scheme
and as per clause (a), there has to be an approval of minimum 60%
of its members in the format duly prescribed. It is submitted that
the respondent Corporation has not placed on record any
application to the concerned authority for the purpose of
redevelopment, so also any resolution passed by the existing
housing society/association in the format duly prescribed which, in
the present case, would be the individual owners, as there is no
association. It is also submitted that the respondents are completely
silent on the consent letters much less a single consent letter, for
the reasons best known to them.
3.4 It is submitted that the scheme provides for inviting tender for
selection of private developers and society/association of owners to
enter into a tripartite agreement for redevelopment, coupled with
the consent of 60% of the members. In compliance of such
condition, the respondent no.2 has not placed on record any tender
document and has failed to even mention the date of the tender.
Also, there is no tripartite agreement between the Corporation, the
developer and the owners of the quarters and therefore in absence
of non-adherence of said requirements under the Scheme of 2016, it
clearly proves that the respondent Corporation in connivance with
the respondent no.3 is conducting the entire process in an arbitrary
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manner and for extraneous gains at the cost of the petitioners.
3.5 It is submitted that the Estate department of the respondent
Corporation had conducted survey in or around December, 2019
and has, invited the bids from the interested bidders. Precisely that
is the reason why the respondent Corporation has withheld the date
of the tender as the tender has preceded the date of the survey.
Therefore, the stand of the respondent Corporation is concocted
inasmuch as, neither contemporaneous record is produced nor
given to the petitioners who are the beneficiaries of the
redevelopment and therefore, the submission is that the process as
required under the Scheme of 2016 is not followed except 90% of
the consent which, has not been placed on the record.
3.6 It is submitted that with a view to seeing that beneficiaries are
not subjected to any injustice, the policymaker has incorporated
various provisions in the Scheme of 2016 to make the process
transparent. Without informing or taking the petitioners in
confidence, it cannot be said that the respondent Corporation or for
that matter, the respondent no.3 has undertaken the process in a
transparent manner and that the petitioners cannot be expected of
knowing everything, more particularly, when the petitioners were
not made part of the process.
3.7 While dealing with the affidavit of the respondent no.3, it is
submitted that incorrect statements have been made in the affidavit
inasmuch as, in paragraph 4, there are averments to the effect that
illegal constructions have been made by the petitioners. In fact, no
notice has ever been issued by the Corporation that there is an
illegal construction and only with a view to prejudice the Court, that
such averments are made. It is further submitted that in paragraph
7, it has been averred that the building is more than 60 years old
and that with passage of time and on account of non-maintenance,
the said property is in a highly dilapidated condition and extremely
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
dangerous in habitation. In support of such averments, photographs
have been placed, however, the said photographs are of different
quarters unrelated to the subject property and therefore, serious
attempt has been made to mislead this Hon'ble Court. The
photographs produced, are of "new slum quarters", situated at
another location and therefore, such an attempt on the part of the
respondent no.3 goes to show that there is nothing available with
them to buttress that the present quarters are in a dilapidated
condition. It is submitted that it is also the stand of the respondent
no.3 that notices were issued by the respondent Corporation to the
petitioners, however, such notices were issued by the Corporation
requiring the unit holders to carry out the repair works and not for
pulling down the same. It is also submitted that it has been the case
of the respondent no.3 that the assistance of Awaas Sewa Private
Ltd. was taken, is also incorrect inasmuch as, Awaas Sewa Private
Ltd. has never visited the premises of the petitioners. Also, there is
no clarity as to who has appointed such an entity.
3.8 While referring to the meeting conducted in 2019, it is
submitted that such stand is also incorrect for, the meetings which
were conducted are as recent as of July, 2021. It is therefore, the
submission of the petitioners that the petitioners are owners of the
units and as per the Scheme of 2016, if unit is in a dilapidated
condition, procedure for redevelopment under the Scheme of 2016
is to be initiated starting with application by the agency. It is
submitted that the application is to be made by the agency,
however, it is not clear as to on which date the same is filed. Neither
is there any participation of the owners nor consent as required
under the Scheme of 2016. It is also submitted that there are no
plans, no stability certificate, nothing on record so as to allow the
respondent no.2 to redevelop the quarters of the petitioners. It is
therefore, submitted that neither is there any application nor survey
nor the tender process has been properly followed and therefore,
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
the action on the part of the respondent Corporation, so also the
respondent no.3 is not in conformity with the requirements
envisaged in the Scheme of 2016. Hence, the process adopted is
completely illegal. Not only that, false averments are made, false
documents are produced which do not entitle the respondents to
continue with the redevelopment process and it is urged that the
Court may show indulgence and direct the respondents to provide
with all the information, documents, opportunity of hearing, till then,
the respondents be refrained from continuing the redevelopment
process of the "old slum quarters". It is also urged that the final
notice dated 13.8.2021, in absence of any procedure followed and it
being arbitrary and illegal, deserves to be quashed and set aside.
4. On the other hand, Mr G.H. Virk, learned advocate appearing
on behalf of the respondent no.2 Corporation, has been vehemently
opposed the writ petition. It is submitted that the Scheme of 2016
provides for redevelopment of the housing scheme by the public
agency and for the public at large. The redevelopment scheme, is
applicable to the buildings which are in dilapidated condition
showing the sign of decay or breaking down, requiring major repairs
and far from being in a condition that can be restored or repaired. It
is submitted that it is not in dispute that the quarters are 60 years
old and would be squarely covered by the Scheme of 2016
inasmuch as, the requirement as per the scheme is that the
quarters should be older than 20 years or in a dilapidated condition.
4.1. It is submitted that it is surprising to note that as to why the
petitioners are averse to the redevelopment inasmuch as, the
carpet area of the residential unit, post redevelopment, will be
enhanced by 140% and the aggregate carpet area of non-residential
unit would be enhanced by 125%. In addition thereto, the post-
redevelopment structure, would be safe and sound with better
modern amenities, namely, vitrified tile flooring; granite kitchen
platform; aluminium window with glass; lifts/elevators; sufficient
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
water supply; systematic drainage line; RCC roads etc.
It is submitted that under the Scheme of 2016, ownership is
immaterial. However, in the present case, the ownership of the land
is of the respondent Corporation.
4.2 It is further submitted that as per the provisions of the
Scheme of 2016, the exercise of implementation of the
redevelopment scheme is to be initiated by the occupants of the
houses or the concerned public agency with the steps to be
followed. As per the provisions of clause 2.4, 60% of the consent of
the members is required and that the building should be older than
20 years and in a dilapidated condition. The policy envisages 60%
consent, however, in absence of existing housing society, there
cannot be a vacuum created. If the existing housing Society is not
there, the policy should not fall. It is also submitted that sub-clause
(f) of clause 4.2 provides for execution of the tripartite agreement
for redevelopment with the selected private developers, concerned
public agency and existing housing society/association of owners. In
the present case, the tripartite agreement was not possible as there
was no association. It is also submitted that the petitioners have lost
sight of the fact that the right to property is not taken away and
which cannot be taken away; however, the petitioners have
projected as if the right to property has been taken away.
4.3. It is further submitted that clause 5.1, provides for transit
accommodation till the completion and handing over of new units
after obtaining building use permission from local authority. Clause
5.2 provides for Operation & Maintenance for redeveloped housing
scheme to remain with the developer for first seven years from the
date of obtaining building use permission. Therefore, the interest of
the petitioners have been sufficiently taken care of by providing
transit accommodation till the completion and handing over of the
units, coupled with Operation & Maintenance of the redeveloped
building to remain with the developer for the first seven years after
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
obtaining building use permission.
4.4. While adverting to the aspect of implementation of the
scheme, it is submitted that out of 448 families, 405 families have
agreed for redevelopment, which would be 90.40% and out of 405
occupants, 391 (approximately 87.27 percentage) have already
been paid transit allowances and out of 391 occupants,384 have
already handed over the possession of their units for redevelopment
and out of which, 128 units have already been demolished so as to
commence the process of redevelopment. It is submitted that the
occupant of the quarter is not a standalone occupant of the unit but,
consists of a family of more than four members and therefore, the
overall benefit of the redevelopment will be enjoyed by more than
1500 to 1700 individuals.
4.5 It is further submitted that it is difficult to fathom the
grievance of the petitioners and also to believe that the demolition
of the quarters, had come as a surprise to the petitioners.
Undisputedly, majority of the 128 units have been demolished. It is
submitted that the resistance on the part of the petitioners, is
supposedly for the reason that some of them, have covered the
balcony,creating additional space, walk way, veranda and if the
scheme is implemented, all the additional construction and
coverage would go away. Therefore, the concern of the petitioners
is not the redevelopment but, the illegal and additional construction
and coverage which will not be available to them. The concern of
the petitioners, is not on record, however, if one is to find out the
concern, there are none.
4.6 It is also submitted that the petitioners will have to clear the
two threshold, namely, 20 years and 60% of the consent. Further,
though there is no stability certificate, but at the same time, the
petitioner has also not produced any certificate to dislodge the said
aspect of the condition of the building. It is therefore, submitted that
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in the present case, there is a consent of more than 60%. The
quarters are more than 60 years old, 400 families are at stake, who
are not before the Court. Moreover, there is no deprivation of the
property for, the property has not been taken away leaving the
petitioners high and dry. It is only for the period during the
redevelopment that the petitioners will have to shift with the
provision of transit accommodation.
4.7 It is also submitted that the contention of the petitioners that
the petitioners were not having any information is also
misconceived. The petitioners were very much aware and ought to
have appeared. It was a long drawn process started from 2019 and
the petitioners were very much privy to the process and that the
averments made that everything has been done behind the back of
the petitioners, is nothing but to cover the lapse. Moreover, if at all
there had been any grievance, other members/residents would also
have come, however, they have not. Therefore, the larger public
interest is in completing the project of redevelopment as per the
Scheme of 2016 and not to stall it. Reliance is placed on the
judgment in the case of Rakesh Navnitlal Gandhi vs. State of
Gujarat passed in Special Civil Application No.12374 of 2018. It is
submitted that this Court after considering the aspect of consent of
more than 60% members, age of the building and execution of the
tripartite agreement, dismissed the writ petition. It is urged that in
absence of any claim/right having been established, the petition
deserves to be dismissed.
5. Mr. Mihir H. Joshi learned Senior Advocate with Mr. Jay Kansara
and Ms. Nisha Oza, learned advocates for M/s Wadia Gandy & Co.
appearing for the respondent no.3 submitted that as per the
definition clause 2.1, owner/allottee is not significant. It is submitted
that the sub-clause (a) of clause 2.1 of the Scheme of 2016 provides
for definition of the 'public housing scheme' and sub-clause (b) of
clause 2.1 provides the definition of the term 'dilapidated condition'
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
and therefore, right of owner would be secondary. Also, owing to the
redevelopment scheme, the petitioners are temporarily relocated
and therefore, no prejudice can be said to have been caused to the
petitioners for, they will be getting the building with better
amenities. It is also submitted that clause 3.1 provides for
'redevelopment of existing public housing scheme' and as per
clause (c), it is the obligation of the developer to redevelop the
building free of cost. Similarly, as per requirement under clause 4.2,
60% consent of the members is required, however, in the present
case, unwilling members are in minority. Complaint is made about
the procedure on the ground that there is a breach for, consent has
not been taken. It is also submitted that the consent of 60% of the
members have not been obtained, however, in the present case, it
will be sub-clause (g) of clause 4.2 which would be applicable. For
implementation of the redevelopment of existing housing scheme, it
is a private developer, who will have to obtain consent of the 60% of
the members. In the present case, majority of the members have
given consent, that is 92%, who are not before the Court and
therefore, this Court may not accept the contention of the
petitioners.
5.1 It is also submitted that the petitioners have also raised the
contention that the petitioners were caught by surprise, however,
out of 17 blocks,387 quarters and 14 shops have already been
vacated by the occupants after following the due process and 128
units have been demolished. The persons who have vacated have
been rehabilitated to a temporary accommodation with a monthly
rent of Rs.6,000/- and therefore, it is difficult to accept that the
petitioners were not aware about the process. It is submitted that
the forms and documents were collected as a result of the survey
and submitted in the month of December, 2019 to the Additional
City Engineer, Housing Project. Therefore, the process of people
being informed is very much on the record and the contention that
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everything was done surreptitiously is incorrect. It is submitted that
so far as the petitioner no.23, namely, Jeevanandan Shanmugam
Mudaliar is concerned, he is very much available in the list (page
136), who had participated and was having the knowledge. It is one
of the contentions of the petitioners that the consent of the
petitioner no.11 - Kothandapani Gopal Padayachi, was obtained
fraudulently; the same is incorrect for, his name is reflected at page
136 and that the son and father, both stay together. The Aadhar
Card of the petitioner no.11 and other documents, have been
produced which have come from the petitioner no.11 himself.
Therefore, the theory propounded about procedure having been
undertaken surreptitiously or fraudulently or it was not within the
knowledge of the petitioners, is erroneous and factually incorrect.
5.2 It is further submitted that ultimately, what is to be seen is
what are the rights of the petitioners under the Scheme of 2016 and
consequential prejudice caused to them. In the present case, the
petitioners have not been able to establish any prejudice caused to
them inasmuch as, under the Scheme of 2016, 60% of the consent
is required and in the present case, the consent of the members is
more than 90%. It would be only when the requisite consent under
the Scheme of 2016 is not obtained, that the Court would step in,
invoking its extra-ordinary jurisdiction under Article 226 of the
Constitution of India. Also, in the present case, it is not that the
petitioners are deprived of any better amenities, on the contrary,
the petitioners would be getting the carpet area enhanced by 140%
and carpet area of non-residential units enhanced by 125%, coupled
with other safe, sound and better modern amenities. It is submitted
that it is not that the petitioners have been prejudiced. In fact, there
is an illegal encroachment by the unit holders by extending the
construction and/or coverage and therefore, what will be provided,
may not be adequate to what presently the petitioners are enjoying.
Assuming that some prejudice, has been caused to the petitioners,
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what is required to be seen is the public interest involved in the
project inasmuch as, the redevelopment project is at the advanced
stage. However, the unit holders, who have already vacated the
premises, will also be put to difficulties on account of the
obstructions created by the petitioners by filing the captioned writ
petition. It is further submitted that the respondent no.3, is
spending an amount of Rs.26,88,000/- (Rupees Twenty-six Lakhs
Eighty-eight Thousand only) every month towards monthly rent to
be paid to the occupants and at the time of handing over the
possession of the respective unit, the occupants were provided with
six months' advance rent and therefore, by now, an amount of INR
1,37,52,000/- (Rupees One Crore Thirty-seven Lakhs Fifty-Two
Thousand only), has been disbursed to the occupants.
5.3 While dealing with the contention of the petitioners that
photographs of new slum quarters have been produced, it is fairly
stated before this Court that inadvertently, the photographs have
been produced. It is urged that lenient view may be taken. Reliance
has been placed on the judgement of the Apex Court in the case of
Margaret Almeida vs. Bombay Catholic Co-Operative Housing
Society Ltd. reported in (2013) 6SCC 538. While concluding, it is
submitted that considering the fact that there is a consent of more
than 60% of the unit holders and the building being more than 20
years old, the petition deserves to be dismissed without any relief.
6. Mr. Nandish Thackar, learned advocate appearing for the
petitioners, in brief rejoinder, submitted that as per the provisions of
the Scheme of 2016, there has to be a tripartite agreement between
the parties, however, that the respondent no.3 has been forcing and
threatening the people to sign the agreement. It is also submitted
that the members were forcefully made to sign the agreement and
were issued cheques of a different entity, i.e., Sarovar Developers
Private Ltd. and the account was blocked. It is next submitted that it
is the claim of the respondent Corporation that the estate
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department had conducted the survey and secured the consent of
the occupants in or around 2019, however, from the communication
dated 9.12.2019, addressed to the Additional Chief Engineer, it is
not clear as to the survey was for what purpose.
6.1 It is also submitted that the statement that the photographs
have been inadvertently or mistakenly placed on record, cannot be
accepted because, placing of photographs is not merely a mistake.
It is also submitted that the judgment cited by the learned
advocates appearing for the respondents cannot be made
applicable inasmuch as, in all the cases, there were tripartite
agreement between the parties. It is therefore, submitted that in
absence of any procedure being followed as required under the
Scheme of 2016 and the fact that the buildings do not require any
redevelopment, the present writ petition be entertained by granting
reliefs as prayed for.
7. Heard the learned advocates appearing for the respective
parties and perused the documents available on record.
8. Adverting to the Scheme of 2016, it is required to be noted
that the State Government in its, Urban Development & Urban
Housing Department, introduced the Scheme of 2016. It is
undisputed that the land is of the ownership of the respondent
Corporation and as per the definition, Public Housing Scheme is a
housing scheme developed by any public agency for the public at
large and where, the ownership of land continues to remain with the
public agency and only dwelling units are sold to the beneficiary
subject to the conditions laid down in the scheme. As per the
Scheme, the ownership of the land continues to remain with the
public agency, in the present case the respondent Corporation.
Further, the term "dilapidated condition" has been defined to mean
houses which show signs of decay or breaking down and require
major repairs and are far from being in condition that can be
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
restored or repaired.
9. Clause 3.1 deals with redevelopment of existing public
housing scheme. As per the said provision, the carpet area of the
residential units, post redevelopment would be enhanced by 140%
and the aggregate carpet area of non-residential units, would be
enhanced by 125%. It is the obligation of the developer to redevelop
the existing public dwelling units free of cost. In the interregnum,
there is a provision made for payment of transit accommodation by
the developer till the completion or handing over of new units, after
obtaining Building Use permission from the local authority. Similarly,
so far as Operation & Maintenance of the housing is concerned, the
same will remain with the developer for 7 years from the date of
obtaining the Building Use Permission and thereafter it will be
handed over to the society or association of the beneficiaries.
Further, the defect liability for structural stability, is of 10 years.
Therefore, there are provisions sufficiently safeguarding the interest
of the beneficiaries of the housing scheme. Undeniably, the
petitioners post redevelopment, would be getting safe and sound
structure with better amenities.
10. The relevant and against which, the petitioner has grievance
is the provisions of implementation as provide in Clause - 4. Clauses
4.1 and 4.2 read thus:-
"4.1. The process of Redevelopment of existing public housing
scheme may be initiated by;
a. Association / Society of owners by applying to the concerned
public agency, or
b. Concerned Public Agency.
4.2. Steps to be followed for redevelopment of a public housing
scheme are as follows:
a. Existing Housing Society/ association may pass resolution in the
format duly prescribed with a approval to minimum 60% of its
members.
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
b. Concerned public agency will invite e-tenders for selection of
private developer and adopt a transparent process.
c. The projects can be redeveloped in packages by pooling different
category of houses for the purpose of cross - subsidization.
d. Cases of Negative bidding shall be referred to the state level
screening committee for suitable decision.
e. Bidding criteria.
i. The bidding criteria will be "B.U.A./Carpet Area/Number of
DUs."for Creation of Additional Affordable Housing Stock.
ii. The bidder bidding "Maximum B.U.A./Carpet Area/Number
of DUs."for Creation of Additional Affordable Housing
Stock"will be selected.
f. Selected private developer, concerned public agency and the
existing housing society / association of owners will enter into
tripartite agreement for redevelopment.
g. For implementation of the redevelopment of existing housing
scheme on field, the private developer will obtaining consent of
60% of the members including those taken by way of resolution
passed by existing society / association. The concerned public
agency and the society / association will facilitate the process."
11. As per clause 4.1, the process of redevelopment of public
housing scheme can be initiated either by the association/society of
owners or by concerned public agency. The steps to be followed for
redevelopment are provided in Clause - 4.2. Pertinently, there are
requirements of, namely, obtaining approval of 60% of the
members; selection of private developers; entering into tripartite
agreement and implementation. Clearly, as per sub-clauses (a) and
(b), it is permissible either to the association / society of owners or
concerned public agency to initiate the process of redevelopment of
existing public housing scheme. In the present case, there is neither
a housing society nor association to pass the resolution in the
format with an approval of minimum 60% of its members. In the
present case, there is neither housing society nor association;
however, there is a consent of more than 60%, i.e. consent of 90%
of the dwelling units. Further, the grievance of the petitioner is that
the procedure has not been followed by the respondent Corporation
and respondent no.3 in a transparent manner and everything has
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
been done in a surreptitious manner, showing undue haste and
behind the back of the petitioners and therefore, according to the
petitioners, the action deserves to be quashed and set aside. The
said contention raised by the petitioners is misconceived and de
hors the documents available on the record, for the reasons
discussed herein below.
12. The quarters were constructed by the respondent Corporation
on the land belonging to it somewhere in the year 1963 - 1964 i.e.
almost 60 years ago. Upon introduction of the town planning
scheme, the land was designated as Final Plot No.34 of Final Town
Planning Scheme No.25 (Khokhara - Mahemdavad - Extension) -
"AMC Housing". Originally, 448 residential units and 14 shops were
constructed by the respondent Corporation and the quarters were
handed over to the occupants. Therefore, the quarters are 60 years
old and bound to be in a dilapidated condition. The condition of the
quarters led to issuance of notice under Section 264 of the Gujarat
Provincial Municipal Corporation Act, 1949, requiring the respective
unit holders to remove the offending structure and to secure the
remaining part. The description in the notice, in vernacular, free
english translation is to the effect that the front portion and the
passage for ingress and egress so also, the projected balcony at the
rear portion are in a dangerous condition and have been damaged.
Accordingly, the unit holders were directed to remove the portion
and secure the remainder portion. Therefore, the contents of the
notice coupled with the photographs placed on record and, more
particularly, pages 98, 106, 107, 115 and 116, strengthens the fact
that the quarters are showing sign of decay and are incapable of
being restored. Considering the age, condition of the quarters, one
need not wait for any untoward incident to take place and therefore,
timely redevelopment is also the need of the hour. Hence, the stand
of the respondent Corporation that the quarters, as on date, are not
free from danger, is in a right earnest.
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
13. At this stage, it required to be noted that the respondent
Corporation, vide communication dated 24.5.2019 has availed of
consultancy service for implementation of the Scheme of 2016
including survey of the tenement etc. The said work order was
issued with respect to old and new municipal slum quarters (Nav
Nirman Co-operative Housing Society Ltd.) Khokhara, Maninagar, TP
- 25 and Final Plot Nos.20, 22 and 34. It is after assessing the
quarters that were ripe for redevelopment, the estate department of
the respondent Corporation carried out the survey to secure the
consents from various occupants of the quarters which exercise, as
per communication dated 9.12.2019, got concluded in the year
2019. Together with the communication, list has been produced in a
tabular form giving the details of the willing unit holders, who have
given the consent. Moreover, the respondent no.3, in its affidavit,
has annexed a list of the unit holders who have been issued
cheques and who have given the possession of their quarters. The
details mentioned indicate that the cheques have been issued since
the month of January, 2021. Except not admitting the said aspect,
nothing has been produced by the petitioners to dislodge or refute
the survey carried out by the respondent Corporation through an
agency seeking consent of the willing unit holder.
14. Besides, as a result of the redevelopment, out of total 448
occupants, 405 occupants (90.40%) have given their consent for
redevelopment and out of 405 occupants, 395 (87.27%) have
already been paid transit allowances and out of 391 occupants, 384
(85.71%) have already handed over the possession of their units.
According to the respondents, 128 units have already been razed so
as to commence process of redevelopment. As of 15.09.2021, block
Nos.1,5,6,12,13,14,15,16 and 17 have been demolished and the
demolition of block Nos.3,4,7,8,9,10 and 11, where the petitioners
are residing, is stalled. Clearly, there is overall consent of more than
60% of members and even the intra-block consent is 80% or more
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
than 80%. By way of specimen copy, the respondent Corporation
has tendered on record the consent letter dated Nil taken in the
year 2019. Considering the documents namely, the work order
issued in favour of Dhaval Engineers; the dates of the cheques
issued to the beneficiaries by the respondent no.3 and in absence of
any documents produced or the beneficiaries, this Court has no
reason not to accept the consent letters given by rest of the quarter
holders.
15. Essentially, the grievance of the petitioners is that the
quarters are well maintained by the petitioners and they would not
fall within the definition of term dilapidated condition and that in
absence of any steps initiated, it cannot be said that the quarters
require redevelopment. As discussed herein above, in past notices
were issued to the unit holders for removing the offending portion of
the structure which is decrepit and not in a livable condition. The
said aspect is further strengthened by the photographs placed on
record along with the affidavit of the respondent Corporation and
some of the photographs by the respondent no.3, except the
photographs relating to Final Plot No.20. (pages 210 etc.).
16. So far as the aspect of awarding the work to the respondent
no.3 is concerned, the respondent Corporation has moved the
proposal somewhere in the month of February, 2020 and the State
Level Scrutiny Committee of the State Government granted its
sanction for redevelopment of the quarters. The matter was
thereafter placed before the Standing Committee of the respondent
Corporation which, vide resolution No.598 dated 12.11.2020,
sanctioned the redevelopment and the said resolution was approved
by the Board of the respondent Corporation vide resolution No.318
in its meeting held on 27.11.2020. Apropos the decision taken, the
respondent Corporation issued a work order dated 23.11.2020 in
favour of the respondent no.3 for redevelopment of the quarters as
per the Scheme of 2016, followed by issuance of the
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
commencement letter dated 25.06.2021, for constructing six blocks.
17. Pertinently, the Scheme of 2016 is issued in the public interest
and for a greater public good. It is also required to be noted that the
Scheme of 2016 does not have the statutory element. It is clear that
present is a public housing, developed by the public agency for the
public at large. Moreover, the quarters are older than 20 years and
in a dilapidated condition showing signs of decay. Therefore, so far
as Clause 2.1 is concerned, the conditions stand satisfied. Adverting
to the implementation aspect, the process of redevelopment has
been initiated by the concerned public agency, that is, respondent
Corporation after obtaining consent of more than 60% members.
The petitioners are 44 in a number, which is minuscule, as against
the members, who have given the consent, accepted the transit
accommodation, handed over the possession and not before this
Court. In the opinion of this Court, there is a substantial compliance
of the requirements as envisaged by the Scheme of 2016 and
therefore, the grievance of the petitioners that the redevelopment
process has been done by the respondent Corporation
surreptitiously, without following the due procedure, without
including the beneficiaries, showing undue haste and behind the
back, does not merit acceptance and is stated to be rejected. The
grievance is also raised that there has to be tripartite agreement
between the parties and the respondent no.3 has been forcing and
threatening people to sign agreement, the conditions of which are
absolutely, arbitrary is also without any substance for, nothing has
been placed on record in support thereof. It is also unbelievable that
when the process is going on since the end of December, 2019, the
petitioners were baffled seeing the notice dated 22.06.2021 and
compelled the petitioners to issue legal notice dated 01.07.2021. In
fact, in paragraph No.3.9 of the petition, it is the case of the
petitioners themselves that "... It is pertinent to note that the
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
respondent, by then, has already begun to demolish the blocks and
till now, three blocks are already demolished, without taking proper
care for the safety of the residents in the adjoining blocks."
18. Assuming that there is some infraction on the part of the
respondents in not observing and adhering to the requirement as
envisaged in the Scheme of 2016 though there is none, one needs
to find out what is the prejudice caused to the petitioners? As
discussed herein above and at the cost of repetition, it is required to
be noted that what the petitioners are right now possessing is 60
years old and decrepit structure with 29.70 sq.mtrs. with extended
encroachment and coverage, will now, as per the Scheme of 2016,
be getting newly constructed structure enhanced by carpet area of
the residential unit by 140% and the aggregate carpet are of non-
residential units, enhanced by 125%. Additionally, and very
important, the units will be having the amenities namely, (i)
Sufficient water supply; (ii) Systematic drainage lines; (iii) RCC
roads; (iv) Paver blocks in the parking area; (v) Parking facilities as
per the norms of General Development Control Regulations; (vi) Mini
sewage treatment plant; (vii) Common plot; (viii) Roof-top solar
panel apparatus; (ix) Fire safety apparatus and (x) infrastructure
and Earthquake resistant civil structure with defect liability of 10
years. Therefore, it is difficult to fathom as to what would be the
reason to the petitioners not to opt for the safe, sound and better
amenities and resist the redevelopment on some ipsi-dixit.
19. The petitioners, have addressed the notice so also the
communication and the concerns which can be discern out are,
namely, (i) which is the authority who has given the certificate
certifying the dilapidated condition of the structure; (ii) association
who has given the representation for redevelopment as there is no
association of the quarters; (iii) 60% of the consent; (iv) meeting
conducted by the builder apprising the beneficiaries about the
benefits and amenities; (v) cheques for transit accommodation etc.
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
If one sees the concern, all the concerns are sufficiently taken care.
To harbour an impression that the developer will not provide the
amenities, would be a grievance, premature to be raised by the
petitioners at this stage.
20. At this stage, it is worth referring to the judgment in the case
of Rakesh Navnitlal Gandhi (supra). This Court in the almost
identical situation, dismissed the petition, observing in paragraphs
24 and 25, which read thus:-
"24. If the decision in the case of Rashmikaben
Vikramkumar Patel Vs. Gujarat Housing Board (supra) is carefully
seen, it is revealed that the facts were almost identical. This Court
has specifically stated that the petitioners of the said
petition are not deprived of their property right but they will
get property after redevelopment as per the Tripartite
Agreement entered into between the concerned parties. It was
also observed by this Court that after the redevelopment
process was started and number of members have vacated the
premises, at last moment the petition was filed and, therefore,
looking to the conduct of the said petitioners, they are not entitled
claim equitable relief prayed for in the said petition. It was also
observed that in the redevelopment process when almost all the
members except few have given their consent for redevelopment,
at the instance of few members, majority members cannot be
made to suffer. The construction of the building is very
old and the building is damaged. Therefore, in the
interest of the residents of such building, the decision of
redevelopment is taken in good faith and in the interest
of the members of the building. Such process cannot be stalled at
the instance of few members, who object for such
redevelopment for their personal interest.
25. As observed hereinabove, the quarters are
approximately 40 years old and from the photographs placed on
record, it is revealed that the same are in dilapidated condition and
if the said flats are not demolished, there are all chances that at
any time, accident may take place, which is dangerous to the
life and property of the residents of the quarters. It has also
come on record that approximately 158 members i.e. 76%
of the members have vacated their premises and are
residing at different places. Respondent No.3 developer is
regularly paying Rs.5000/ per month by way of rent to such
members and as pointed out by learned advocate Mr.Rao,
respondent No.3 has incurred huge expenses. As per the
Tripartite Agreement, the construction is to be made within a
period of two years and because of the pendency of this petition
and stay granted by this Court, the process of redevelopment is
stopped."
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
21. It is also required to be noted that the project is for the benefit
of the unit holders and the Scheme of 2016 has been formulated to
benefit one section of the society. Such object cannot be allowed to
be defeated by a minuscule section raising frivolous objections for
the reasons best known to them. Also, the respondent no.3 has by
now, incurred a huge amount towards the demolition and is
incurring amount of Rs.26,88,000/- every month towards monthly
rent, and by now, an amount of Rs.1,37,52,000/- has been disbursed
to the occupants. Hence, when the petitioners have not been able to
show the prejudice caused to them, only on the ground of alleged
procedural irregularity, the process of redevelopment, cannot
stalled.
22. Pertinently, the grievances and concerns of the petitioners
have been taken care of and if at all, the petitioners have any
grievance, the project is in the public interest for a greater public
good and hence, the private interest will have to give way to the
public interest. Apart from the aforesaid, it is well settled that a writ
of mandamus is an extraordinary and is intended to supply
deficiencies in law and thus, discretionary. Seeking issuance of a
writ of mandamus, presupposes a clear statutory, legal or
fundamental right in favour of the petitioners viz-a-viz a
corresponding duty on the part of the authorities to perform the
same. In the present case, the petitioners have not been able to
show infraction of any of their rights viz-a-viz the failure on the part
of the authority to perform the same. Under the circumstances, the
petition with the prayers prayed for, do not deserve to be granted
and is accordingly, dismissed. The status-quo granted vide order
27.08.2021 with regard to the property of the petitioners stands
vacated. The petitioners are directed to comply with the notice
dated 13.08.2021, failing which, the competent authority shall be
free to take such action as may be necessary.
C/SCA/12340/2021 JUDGMENT DATED: 06/12/2021
23. While concluding, it is required to be observed that the
respondents shall adhere to the statements made in the affidavits
and make sure that the beneficiaries are not put to any
inconvenience during the redevelopment process and are not
deprived of any benefits and amenities, as assured.
24. In view of the aforestated discussion, the petition is dismissed.
No order as to costs.
25. Mr. Nandish Thacker, learned advocate appearing for the
petitioners, requests for stay of the judgment. However, the request
is not acceded to in view of the fact that the interest of the majority
of the unit holders is at stake, so also the project.
(SANGEETA K. VISHEN,J)
BINOY B PILLAI
