Dipakbhai Sohanlal Sharma vs State Of Gujarat
2021 Latest Caselaw 17837 Guj

     C/SCA/7197/2021                           ORDER DATED: 29/11/2021



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                R/SPECIAL CIVIL APPLICATION NO. 7197 of 2021
                                       with
          CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2021
               In R/SPECIAL CIVIL APPLICATION NO. 7197 of 2021
================================================================
                         DIPAKBHAI SOHANLAL SHARMA
                                      Versus
                               STATE OF GUJARAT
================================================================
Appearance:
MR M B GANDHI, SENIOR COUNSEL with MR CHINMAY M GANDHI(3979)
for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
MS RUMI M GANDHI(3472) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
MR NISARG S SHAH(8886) for the Respondent(s) No. 3,4
MR MEET THAKKAR, AGP (4) for the Respondent(s) No. 1
================================================================
  CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
                                Date : 29/11/2021
                                  ORAL ORDER

1. Heard Mr. M.B. Gandhi, learned Senior Counsel

assisted by Mr. C.M. Gandhi & Ms. Rumi M. Gandhi,

learned advocates for the petitioners, Mr. Meet M. Thakkar,

learned Assistant Government Pleader for the respondent

No.1 - State, Mr. Satyam Y. Chhaya, learned advocate for

respondent No.2 and Mr. Nisarg S. Shah, learned advocate

for respondent Nos.3 and 4.

2. In this petition, under Article 226 of the Constitution

of India, the petitioners have prayed to issue a Writ of

mandamus or any other appropriate Writ, order or direction

in the nature of mandamus, directing respondent Nos.1 and

2 herein to call upon / direct present respondent Nos.3 and

C/SCA/7197/2021 ORDER DATED: 29/11/2021

4 to vacate their property i.e. flat Nos.1 and 3 of Ronak

Apartments situated at Maninagar Cross Road, Maninagar,

Ahmedabad forthwith as per the contract with Shreeji

Developers and cooperate with the redevelopment.

3. It is the case of the petitioners, 10 in number, who

were residents of Ronak Apartments located at Maninagar

cross road, the flats are in existence since the year 1986 i.e.

more than 34 years. Pursuant to the enactment known as

the Gujarat Ownership Flats Act, 1973 and the subsequent

amendment brought therein, if 75% of the flat owners give

consent for redevelopment and the building is 25 years old

or more, it is incumbent upon the authorities to grant

appropriate consequential permission. It is in this context

that if out of 12 members, 10 have consented to

redevelopment, the respondent Nos.3 and 4 form a

minority, the permission to redevelopment is being stalled

only at the behest of respondent Nos.3 and 4.

4. Mr. M.B. Gandhi, learned Senior Counsel appearing

for the petitioners would invite the attention of the Court to

the Notification dated 15th July, 2019 and the pre-requisite

C/SCA/7197/2021 ORDER DATED: 29/11/2021

conditions namely; (a) the building should have completed

25 years and (b) consent of not less than 75% of the

members being satisfied in the facts of the present case. In

support thereof, Resolutions have been placed on record

which indicate that the respondent Nos.3 and 4 have not

signed Resolutions supporting reconstruction. An

agreement has already been entered into for redevelopment

which is on record at page No.35. The BU permission of the

building is of 25th March, 1986 which undisputedly

additionally supports the case of the Society to undergo

redevelopment.

5. An affidavit-in-reply has been filed on behalf of the

respondent No.4. The contentions in nut shell as indicated

in the reply read as under: -

* Eviction can be granted after adjudication of the

civil rights by leading evidence for fact finding and,

therefore, the appropriate remedy is to approach the

Civil Court.

      *        Co-owners have not been joined.






 C/SCA/7197/2021                                 ORDER DATED: 29/11/2021




 *        In context of one Mr. Vijaybhai Girishbhai Bhatt

(original owner of flat No.2), it is stated that after his

demise, his legal heirs were willing to repay the

amount. However, instead of abiding by the

conditions, the petitioner No.2 has filed Special Civil

Suit No.328 of 2021 before the Principal City Civil

Judge, Ahmedabad demanding the peaceful possession

of the flat.

* Dispute has also been raised regarding consent

offered by the petitioner No.1 for the purpose of

redevelopment, inasmuch as, it is stated by the

deponent as far as flat No.2 is concerned, it was

originally owned by Shri Sohanlal Devidas Sharma,

father of the petitioner No.1, which, after his death,

was to be mutated in the name of his legal heirs wife,

sons and daughters. Pedigree is produced. It is his

case that only one co-owner of flat No.2 has given his

consent while the other six co-owners have not signed

the MoU.

C/SCA/7197/2021 ORDER DATED: 29/11/2021

* To substantiate the contention though the flat is

25 years old or more, photographs and the certificate

of Shri A.Y. Chippa are produced on record regarding

the Stability and Safety of Existing Structure

contending that the structure need not be demolished.

* Procedural irregularity is alleged to have been

made in the redevelopment schedule.

* A further affidavit has been filed by the

respondent No.4 to the rejoinder filed by the

petitioners.

* In the rejoinder, to which Mr. Gandhi elaborately

invited the attention of the Court, it is pointed out that

one Shri Dil Nawaz Hodiwala was residing and

Laxmiben Narendrabhai Rajput was a maid servant in

the house who was rendering services and it is averred

that the flat is occupied by her. The contention

regarding procedural irregularities have been

disputed so is the contention of invoking several

remedy.

C/SCA/7197/2021 ORDER DATED: 29/11/2021

* The additional affidavit of the respondent No.4 is

perused which indicates that the dispute is raised

regarding allotment of carpet area, inasmuch as, it is

the case that though it is stated in the rejoinder the

builder is providing new flats with more spaces.

However, the current carpet are being 73.58 square

meters, whereas, in-fact now on redevelopment, it will

reduce to 64 square meters that is a proposition that is

disputed by Mr. Gandhi by inviting the attention to the

rejoinder submitting that it will not be less than 90

square meters. The dispute regarding ownership has

been controverted by producing revenue entries and

the sale deed in question.

6. Reliance is placed on a decision dated 1.2.2021 passed

in Special Civil Application No.16557 of 2020 of this Court

in the case of Nihir Cooperative Housing Society

Limited v. State of Gujarat to support the prayers made

in the petition.

7. Mr. Satyam Y. Chhaya, learned counsel for the

C/SCA/7197/2021 ORDER DATED: 29/11/2021

Corporation would submit that merely because the

provisions under Section 41A exists, a mandate of the

nature to carry out redevelopment need not be entertained.

8. Perusing the petition, the records of the reply and the

rejoinder filed would indicate that several disputed

questions of fact and cross contentions have been raised by

the parties on the question of ownership of the flats in

question. The ownership of flat No.4 is disputed in context

of a Civil Suit pending before the Civil Court, Ahmedabad,

so also, with the ownership of flat and its requisite

permission being granted by one co-owner and not by the

other co-owners. The heirs of Mr. Sohanlal Devidas Sharma

is also a matter of dispute.

9. On a conjoint reading therefore of the replies and the

rejoinders together with the petition would indicate that

under the guise of seeking prayers as referred hereinabove,

this Court is expected to enter into roving inquiry to decide

the ownership of the flats before entertaining and

mandating a prayer as is sought to be so enforced.

Certainly, this Court would not enter into such an arena in

C/SCA/7197/2021 ORDER DATED: 29/11/2021

exercise of the powers vested under Article 226 of the

Constitution of India.

10. As far as the decision of Nihir Cooperative Housing

Society Limited (Supra) relied upon by Mr. M.B. Gandhi,

learned Senior Counsel for the petitioners, the only dispute

that appears to be before the learned Single Judge of the

Coordinate Bench of this Court was that one of the

members wanted the amount that was spent for renovation

to be paid by respondent No.5, which was the sole objection

pursuant to which the redevelopment objective was not

being carried. Therefore, there was no question of inquiry

into question of ownership, this judgment would not be

applicable in the present case.

11. In view of above, the petition deserves to be dismissed

and accordingly, the same stands dismissed. Notice is

discharged. No order as to costs.

12. In view of dismissal of the main matter, connected

Civil Application also stands dismissed.

[ BIREN VAISHNAV, J.] *** VK