Gujarat High Court
Hansaben Ratubhai Prajapati vs State Of Gujarat on 11 April, 2023
Bench: Vaibhavi D. Nanavati
C/SCA/4216/2023 ORDER DATED: 11/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4216 of 2023
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HANSABEN RATUBHAI PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
CHIRAG A PRAJAPATI(8468) for the Petitioner(s) No.
1,10,11,12,13,14,2,3,4,5,6,7,8,9
KARTIKKUMAR K JOSHI(8042) for the Petitioner(s) No.
1,10,11,12,13,14,2,3,4,5,6,7,8,9
for the Respondent(s) No. 3
MS. JEENAL ACHARYA, AGP for the Respondent(s) No. 1
MR. M.R. BHATT, LEARNED SENIOR COUNSEL ASSISTED BY
AKASH N SHAH(10130) for the Respondent(s) No. 4
G H VIRK(7392) for the Respondent(s) No. 2
MR SIMRANJITSINGH H VIRK(11607) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 11/04/2023
ORAL ORDER
1. By way of the present petition, the petitioners herein
have challenged the action of the redevelopment of the houses /
flats situated at premises being 132, M.I.G., (o/o. 384 MIG),
Surya Apartment, Part-3, Sola Road, Ahmedabad and also prayed
for quashing and setting aside the order dated 06.02.2023 passed
C/SCA/4216/2023 ORDER DATED: 11/04/2023
by the Competent Officer in Case No. 103/2022 (duly produced
at Annexure-A) and has also prayed to restrain the respondents
from declaring or proceeding in any manner for redevelopment of
the subject premises without the consent of the petitioners.
2. By way of the present petition, the petitioners herein
have prayed for the following reliefs:
"a. Your Lordships may be pleased to admit and allow this
Petition.
b. YOUR LORDSHIPS may be pleased to issue a writ of
mandamus or any other writ or directions quashing and setting
aside the action of the redevelopment of the houses/flat situated
at premises being 132, M.I.G., (o/o. 384 MIG), Surya Apartment
Vibhag-3, Sola Road, Ahmedabad as well as be pleased to
quashed and set aside order dated 06.02.2023 passed by
Competent Officer in case no. 103/2022 annexed at annexure-A
and further be pleased to restrain the respondents from declaring
or proceeding in any manner for redevelopment of the subject
premises without the consent of the petitioners;
c. YOUR LORDSHIPS may be pleased to direct the respondents to
clarify the scheme to be implemented with respect to houses of
the petitioners on Revenue Survey Survey No. 141, 179, 180/2,
T.P. no. 29, F.P. no. 356, 357, 358 Gujarat Housing Board at
Wadaj.;
d. Pending the Petition, YOUR LORDSHIPS may be pleased to
stay the implementation of the scheme and any other
consequential proceedings including the eviction proceedings with
respect to houses of the petitioners on Revenue Survey No. 141,
179, 180/2, T.P. no. 29, F.P. no. 356, 357, 358 Gujarat Housing
Board at Wadaj.;
e. Grant Ad interim relief in terms of para 'd' above;
C/SCA/4216/2023 ORDER DATED: 11/04/2023
f. That any other and/or further relief that may be deemed fit in
the facts and circumstances of the present petition may please be
granted, in the interest of justice."
3. The brief facts leading to the filing of the present
petition reads thus:
3.1. The petitioners have challenged the action of the
respondent authorities in announcing and proceeding with the
scheme of redevelopment of the premises, where the petitioners
are legally residing since many years and without taking their
consent, which is pre-requisite for any redevelopment scheme,
the same being not duly done, then the entire action falls foul
on the basis of non-compliance of principles of natural justice.
The action of the respondent authority in institution of
compulsory redevelopment scheme, without there being any law
for providing the same, the said exercise being de-hors the
provision of law and without jurisdiction, be deserved to be set
aside.
3.2. The petitioners are the owners and occupiers of the
premises / the Scheme in question. The premises mentioned
C/SCA/4216/2023 ORDER DATED: 11/04/2023
herein including the residence situated at 132, M.I.G., Surya
Apartment, Part-3, Sola Road, Ahmedabad (hereinafter referred to
as 'the said Scheme/ the said premises in question' for short),
the petitioners are individual house holders in the said scheme
which was laid down and constructed by the Gujarat Housing
Board (hereinafter referred to as 'the GHB' for short) in the year
1986. The said Scheme has been constructed on Survey No. 141,
179, 180/2, Town Planning Scheme No. 29, Final Plot No. 356,
357, 358, Gujarat Housing Board at Wadaj, Ahmedabad. In the
said scheme in all 132 houses. The petitioners herein came into
occupation of the said premises on their execution of conveyance
deeds in accordance with the provisions of the Gujarat Housing
Board, 1961 r/w. GHB (disposal of Property) Regulations, 1974.
Copy of the said sale deeds is duly produced at Annexure-B.
3.3. As per the said deeds, the leasehold rights have been
transferred to the petitioners till the year 2075. The petitioners
are aggrieved, in view of the fact that, having inquired with the
respondent Corporation and also with the officials of the
respondent- Gujarat Housing Board (GHB), no clarification is
C/SCA/4216/2023 ORDER DATED: 11/04/2023
given with regard to the development scheme, proposed to be
implemented in the premises of the petitioners.
3.4. The petitioners also apprehend that other occupiers
were also objecting to the said Scheme, as there is no
clarification with regard to the scheme introduced in the subject
premises / Scheme.
3.5. It is also the case of the petitioners that entire
Scheme of redevelopment has been announced behind the back of
the petitioners. It is the case of the petitioners that the Gujarat
Housing Board (GHB) have sold the residential flats to the
petitioners under 132 MIG Scheme, and therefore, the impugned
redevelopment scheme is a resolution passed by the State
Government. The petitioners herein are deprived to the right to
property by virtue of administrative decision.
3.6. It is the case of the petitioners that, the provisions of
the Scheme are arbitrary in nature and invest discriminatory
powers in the competent authority. The flats occupied by the
petitioners are not in dilapidated condition and without any risk
C/SCA/4216/2023 ORDER DATED: 11/04/2023
and the said flats are usable by the petitioners. The petitioners
herein have declined to give their consent for redevelopment of
their houses / flats. The authorities have not sought consent, as
described in the statute. It is further stated that, though the
policy may be useful for totally dilapidated houses, it hardly
works, where the flats are totally in usable conditions and they
do not pose any danger to the inhabitants. The aforesaid scheme
floated by the respondent authority is in absence of any survey,
whether the construction is in dilapidated condition or not. The
said redevelopment Scheme is under the Redevelopment of Public
Housing Scheme Guidelines, 2016 (hereinafter referred to as 'the
Redevelopment Guideline, 2016' for short), is duly produced at
Annexure-D.
3.7. Being aggrieved by the aforesaid and the
communication duly produced at Annexure-A dated 06.02.2023,
wherein, the respondent no.3 has passed an order under the
provision of Section 60 (amended Section 60(A)(2) of the Gujarat
Housing Board Act, wherein, the occupants / owners of 132
M.I.G., Surya Apartment, Part-3, Sola, Ahmedabad are directed
C/SCA/4216/2023 ORDER DATED: 11/04/2023
to vacate the said subject property within a period of 30 days.
The said order dated 06.02.2023 is duly produced at Annexure-A,
(pg.17-19). The relevant para of the order dated 06.02.2023 reads
thus:
"2. During the first date of hearing, Executive Engineer,
Ahmedabad and present occupant Shri Samirbhai Natvarlal
Shah remained present. During course of hearing, they made
oral and written submissions in the matter, wherein
Executive Engineer, Ahmedabad was directed to submit
appropriate reply in the matter. The matter was adjourned to
04/01/2023 when representative of Executive Engineer,
Ahmedabad and present occupant Shri Samirbhai Natvarlal
Shah remained present. As representative of Executive
Engineer, Ahmedabad submitted regarding non-receipt of
reply, it was directed to the representative of Executive
Engineer, Ahmedabad to exedite submission of reply before
next date of hearing and to remain present personally on the
next date of hearing on 18/01/2023, when representative of
Executive Engineer, Ahmedabad and present occupant Shri
Samirbhai Natvarlal Shah remained present, wherein as the
reply received by them, was not appropriate, oral/written
submission was made again. According to the said
submission, they have no objection to the re-development.
However, proper understanding or factual information has not
been given regarding re-development scheme. Accordingly,
written submission was made and this office requested the
Executive Engineer, Ahmedabad to provide necessary
information /understanding regarding re-development policy
of the government at his level to the aggrieved members of
Association and Developers. Hence, the Executive Engineer,
Ahmedabad has convened meeting and gave understanding to
them accordingly.
3. Considering the evidence adduced by the Executive Engineer,
Ahmedabad, the property i.e. 132, M.I.G., Surya Apartment
located at Sola road, Ahmedabad belongs to Gujarat Housing
Board. Re-development policy of the government as
announced in Gujarat Housing Board Act-1961 (Amended Act)
and under the provisions of Gujarat Public Premises (Eviction
C/SCA/4216/2023 ORDER DATED: 11/04/2023
of Unauthorized occupants) Act, 1972, it appears from record
that occupant of the aforesaid building has obtained illegal
/unauthorized possession thereof. Hence, it has come on
record that the case is under Sub Section-1 of Section-4 of
Gujarat Public Premises (Eviction of Unauthorized occupants)
Act, 1972. Thus, following order is passed subject to the
aforesaid facts on record.
Order
By virtue of powers conferred to this Office under the
provision of Section-60(a)(2) of Gujarat Housing Board
(Amended Act) Act by adding a new Section-60(a) to Section-
60 of Gujarat Housing Board Act-1961 announced in re-
development policy of the Government and under Sub-
Section-1 of Section-5 of Gujarat Public Premises (Eviction of
Unauthorized occupants) Act, 1972, it is ordered to vacate the
possession of the said residence within 30 (thirty) days from
the date of receipt of this order and the Executive Engineer,
Gujarat Housing Board, Ahmedabad is directed to take
possesion of the vacant residence to conduct further
proceedings in this regard.
This order was passed today i.e. on 6th February, 2023."
4. Heard Mr. Chirag Prajapati, learned advocate
appearing for the petitioners, Mr. G.H. Virk, learned advocate
appearing for the respondent no. 2 - Gujarat Housing Board
(GHB) and Mr. Manish Bhatt, learned senior counsel assisted by
Mr. Akash Shah, learned advocate appearing for the respondent
no.4- Katira Construction Limited and Ms. Jeenal Acharya,
learned Assistant Government Pleader appearing for the
respondent - State.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:
C/SCA/4216/2023 ORDER DATED: 11/04/2023
5.1. Mr. Chirag Prajapati, learned advocate appearing for
the petitioners has placed reliance on the averments made in the
petition and vehemently submitted that the action of the
redevelopment qua 132 M.I.G., Surya Apartment, Part-3 (the
said scheme/ subject premises) is without express consent of all
the concerned, and therefore, the same being de-hors of the
provision of the Redevelopment Guideline, 2016. It was submitted
that the action on the part of the respondents for declaration of
such scheme without there being any notice to the petitioners,
who are the owners and occupiers of the subject premises / said
Scheme, being in clear violation of the principles of natural
justice and the said action of the respondent authorities is
required to be restrained on the aforesaid count.
5.2. It was also submitted that the Redevelopment scheme
first provides an opportunity to the owners and occupiers to
redevelop their premises and only on failure of such action, the
said Scheme can be implemented. On the aforesaid ground also,
it was submitted that the entire action deserves to be quashed
and set aside.
C/SCA/4216/2023 ORDER DATED: 11/04/2023
5.3. It was submitted that the impugned order dated
06.02.2023 has been passed by the competent officer, without
there being any name or designation of the officer concerned.
The said officer is to be appointed in consonance with Section
2(a), 2(p) of the Real Estate (Regulation and Development) Act,
2016. It was submitted that the petitioners herein are holding the
leasehold rights on the land as owner and in complete possession
of their respective houses granted by the competent authority
under the conveyance, and hence, any such action cannot
override the said leasehold rights in any manner directly or
indirectly and the said action initiated by the respondent
authorities deserved to be quashed and set aside.
5.4. It was submitted that, as per Rule-18 of the Gujarat
Ownership Flats (Amendment) Rules, 2019, more particularly,
sub-rule 18(1)(b) the flat / building occupied by the petitioners is
not declared dilapidated, ruinous or dangerous in any way to any
person occupying, resorting to or passing by such structure or
any other structure or place in the neighborhood thereof by the
concerned authority and no such expert reports have been
C/SCA/4216/2023 ORDER DATED: 11/04/2023
provided by the respondent authority and in absence of such
report, the action initiated by the respondent authority of
redevelopment is required to be quashed and set aside.
5.5. It was submitted that the action taken by the
respondent authority is without clarifying the entire scheme to
the petitioners about the proposed houses that are to be allotted
to them and it is not open for the petitioners to vacate their
houses and handover the same to the respondents on the belief
that the Scheme shall be beneficial, and hence, no action can be
permitted against the authorities, in absence of transparency of
procedure.
5.6. It was submitted that, the authority needs to take
permission of 75% members only, ignoring rest of 25% members
for inviting objections / opinion or suggestions itself is against
the principle of natural justice.
5.7. It was submitted that amended Section 60(1)(2) of the
Gujarat Housing Board Act provides that occupier / owner must
have provide the alternate accommodation and in the facts of the
C/SCA/4216/2023 ORDER DATED: 11/04/2023
present case, the authorities have neither paid the advance rent
nor provided the alternate accommodation, and therefore, the
said action taken by the respondent authority is required to be
set aside.
5.8. The officers of the respondent authorities have
recorded the contentions of the petitioners shortly that the
petitioners have not provided the basic information of
redevelopment and factual aspect of the redevelopment is totally
materially important in question.
5.9. Placing reliance on the aforesaid facts, it was
submitted that, the impugned order dated 06.02.2023 passed by
the competent officer by communication / order in Case No.
103/2022 (Annexure-A) be quashed and set aside.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 -
GUJARAT HOUSING BOARD:
6.1. Heard Mr. G.H.Virk, learned advocate appearing for
the respondent no. 2 - Gujarat Housing Board.
6.2. Mr. Virk, learned advocate submitted that the present
C/SCA/4216/2023 ORDER DATED: 11/04/2023
petition is filed by 14 individuals, i.e. a minority comprising of
9-10%, out of total number of 132 beneficiaries. It was submitted
by Mr. Virk, learned advocate that consequently, when 90-91% of
the beneficiaries have consented to the redevelopment, the said
redevelopment may not be permitted to stall at the instance of
minority members.
6.3. It was submitted that the subject premises / said
scheme, which is the subject matter of the present petition, is
part of the larger - Surya Apartment, Middle Income Group
(M.I.G.), housing project of GHB, which was constructed in the
year 1986, i.e. 37 years ago, at Sola Road, Ahmedabad, which
has in all 132 beneficiaries. The affairs of the said Scheme /
subject premises are controlled by Surya Apartment, Part-3
Association (the Association), comprising of all the members of
the society.
6.4. It was submitted that, on 07.12.2019, the Association
itself address a letter to GHB, requesting GHB to initiate the
process of redevelopment, in view of a resolution of the
Association to the said effect, passed on 01.12.2019, which is
C/SCA/4216/2023 ORDER DATED: 11/04/2023
duly produced at Annexure-R-1.
6.5. It was submitted that, consequently, after necessary
approvals were received by GHB, an advertisement for
redevelopment of Surya Apartment, Part-3 was published in
October, 2021, which is duly produced at Annexure-R-2. After
appreciation of the bids received, a Letter of Acceptance dated
07.02.2022 was issued by the GHB to the successful bidder -
respondent no.4 herein - Katira Construction Limited. It was
submitted that consent of 118, out of 132 beneficiaries were
received by GHB, at the relevant point of time, in and around
October, 2019, the said consent is duly produced at Annexure-R-
3.
6.6. It was submitted that the redevelopment of the said
Scheme is being carried-out strictly in accordance with the
Redevelopment Guidelines, 2016 issued by the Government of
Gujarat. Pursuant to the tripartite agreement dated 12.08.2022
executed between the Association, GHB and the respondent no.4
- Developer, copy of the same is duly produced at Annexure-R-4.
In the post-redevelopment structure, each of 132 beneficiaries
C/SCA/4216/2023 ORDER DATED: 11/04/2023
including 14 petitioners would receive new, state of the art
housing accommodation.
6.7. It was submitted that, 14 petitioners herein are
residing on ground floor and first floor and all the petitioners
have carried-out illegal construction in their dwelling units. The
petitioners have extended their residential dwelling units'
construction and have established commercial shops within the
boundary /margin area of the Society. In view thereof, the
petitioners are endeavouring to delay and stall the redevelopment
process to arm-twist GHB, and, consequently, secure preferential
treatment as a precondition to their consent for the
redevelopment process.
6.8. It was submitted that there are only 12 petitioners
(inasmuch as family units are concerned). The petitioner nos. 8
and 10 and petitioner nos. 13 and 14 are part of a single family
unit. The details of the petitioners herein are relied upon by Mr.
Virk, learned advocate as stated in Para-17-c (at page-111-112).
6.9. It was submitted by Mr. Virk, learned advocate that
C/SCA/4216/2023 ORDER DATED: 11/04/2023
except 12-14 petitioners, only 5 other units are occupied by
residents and from these 5 units also, 3 families are in advanced
stages of vacating their respective units. All other beneficiaries
have already vacated their units and are enjoying transit
allowance (as and by way of rent) from the respondent no.4 -
the developer. It was submitted that a critical aspect of the
matter, which has been suppressed by the petitioners is that as
and by way of broadly identical letters dated 01.03.2023, the
petitioner Nos. 1 to 12 have individually requested the
Respondent - GHB to grant an additional period of 30 (thirty)
days, purportedly to vacate their units. It was also submitted
that, additionally, in the said letters, the petitioner Nos. 1 to 12
have also raised a baseless demand of additional amount as a
precondition for vacating their units. The aforesaid
communications are duly produced at Annexure-R-6.
6.10. It was submitted that, if the redevelopment exercise is
stalled, it would grave and irreparable prejudice and injury, not
only the respondent -GHB, but more particularly, the other
beneficiaries of redevelopment. The present petition is therefore
C/SCA/4216/2023 ORDER DATED: 11/04/2023
filed in bad faith. It was submitted that the housing units in
question were developed for providing residential accommodation
to deserving sections of the society and the housing scheme in
question is a public interest scheme.
6.11. It was also submitted that the petitioners herein have
utilized their housing units for commercial purposes and have
illegally effected extension / enlargements of the residential units,
which would come to an abrupt end, if the redevelopment were
to be proceeded with, and it is with such vested interest, the
present petition has been preferred.
6.12. It was submitted that the redevelopment projects are
designed to ensure that deserving sections of the society are
provided up-to-date, redeveloped residential units and
dilapidated, old structures, which are unsafe and have often led
to mishaps and accidents, are demolished. The true beneficiary of
redevelopment projects are the genuine beneficiaries who stay in
the housing units, as also the State, which is able to provide
modern housing facilities to the larger citizens. In most cases, at
no added cost to the State and its instrumentality / executing
C/SCA/4216/2023 ORDER DATED: 11/04/2023
agencies such as GHB and the developing agency is put to strict
conditions to ensure that state of the art redeveloped units are
created at the end of the redevelopment exercise. It was
submitted that, structures within Surya Apartment, Part-3 are
more than 37 years old, and have never been maintained during
their prolonged life.
6.13. Placing reliance on the aforesaid submissions, it was
submitted that the present petition deserves to be dismissed in
limine.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.4:
7.1. Mr. M.R. Bhatt, learned senior counsel assisted by
Mr. Akash Shah, learned advocate appearing for the respondent
no.4 - Katira Construction Limited adopted the submissions
advanced by Mr. Virk, learned advocate appearing for the GHB
and placing reliance on the same, it was submitted that out of
132 units in M.I.G., Surya Apartment, Part-3 comprising out of
11 blocks and out of 14 petitioners herein, 12 petitioners are
owners / occupiers of 14 units, who are objecting to the said
C/SCA/4216/2023 ORDER DATED: 11/04/2023
redevelopment scheme. 118 units have consented to the said
redevelopment, out of which, 115 unit holders have vacated the
premises. It was submitted that the respondent no.4 herein has
paid Rs.27,000/- towards rent deposit + Rs.13,500/- towards
advance rent i.e. Rs.40,500/- + Rs.10,000/ for shifting charges. In
all total Rs.50,500/- were given to the individual unit holder and
thereafter, Rs.13,500/- per month towards rent also be paid. It
was submitted that the aforesaid is uniformly given to the
aforesaid unit holders and the same is undisputed. Except the
present petitioners who with ulterior motive are trying to see to
it that the Scheme does not see the light of the day.
7.2. Reliance was placed on the redevelopment scheme
which is duly produced by the petitioners herein (Page-81,
Annexure-D), tripartite agreement came to be executed between
the respondent no.2- GHB, Surya Apartment Part-3 Association
and the respondent no.4 - Katira Construction Limited and
controverting the submissions advanced by the learned advocate
for the petitioners, it was submitted that the said agreement was
signed by the authorized representative of the petitioners'
C/SCA/4216/2023 ORDER DATED: 11/04/2023
Association being Chairman, Secretary and Treasurer. Reliance
was also placed on the photographs produced at page-142 to
show that the aforesaid premises are in dilapidated conditions.
Reliance was also placed on the communication by the
petitioners' Association seeking redevelopment which is duly
produced at Page-116, Annexure-R-1, which is on the letterhead
of the petitioners' Association, having been duly signed by the
members who were present in the said meeting, which was held
by the Association and the Resolution passed by the Association
dated 07.12.2019.
7.3. Placing reliance on the aforesaid submissions, Mr.
Bhatt, learned senior counsel vehemently submitted that all the
information as prayed by the petitioners, has already been
submitted by the respondent authority by communication dated
18.03.2023, which is duly produced at Page-188, which was
submitted by the respondent no.4 to the respondent no.2-
authority, which includes all the information as required by the
petitioners herein and accordingly prayed to reject the present
petition in limine.
C/SCA/4216/2023 ORDER DATED: 11/04/2023
ANALYSIS:
8. Having heard the learned advocates appearing for the
respective parties, by way of the present petition, the petitioners
herein have challenged the impugned communication / order
dated 06.02.2023 passed by the Competent Officer in Case No.
103/2022/89. It is contended inter-alia that, the said
communication / order suffers from the vice of non-compliance of
the principles of natural justice and that due procedure of the
Redevelopment Scheme of Surya Apartment, Part-3 is not
followed in its right spirit.
9. The Scheme situated at 132, M.I.G., Surya Apartment,
Part-3, Sola Road, Ahmedabad, was laid down and constructed
by the Gujarat Housing Board (GHB) in the year 1986. Under the
said scheme, houses have been constructed on Survey No. 141,
179, 180/2, Town Planning Scheme No. 29, Final Plot No. 356,
357, 358, Gujarat Housing Board at Wadaj, Ahmedabad. The
scheme has in all 132 houses. Out of said 132 houses, 115
members have, through the Association of the petitioner society/
Flat by communication dated 07.12.20219 (which is produced at
C/SCA/4216/2023 ORDER DATED: 11/04/2023
page-115) as referred above, prayed for redevelopment, and
submitted that the Association is agreeable and consenting to the
redevelopment scheme floated by Gujarat Housing Board (GHB)
being the Redevelopment Guidelines, 2016. The said letter duly
produced at page-115 is the consent of 75% of the members, as
stated by the Association in the said communication. It is also
stated in the said communication that more than 75% members
have consented. Resultantantly, majority of the members having
consented. The said letter also stated that the said Scheme / said
premises in question came into force before 32 years, and
therefore, it is included in 384 M.I.G. Scheme, and therefore,
consent came to be accorded, accompanied by the signatures of
the members, who were present, while passing the said
resolution. The said resolution is duly produced at page-180 duly
stamped / signed by the office bearers of the petitioner
Association.
10. Consequent to the aforesaid, the respondent authority
issued an advertisement for redevelopment of Surya Apartment,
Part-3, which came to be published in October, 2021 (pg.128,
C/SCA/4216/2023 ORDER DATED: 11/04/2023
Annexure-R-2). The bids came to be received, pursuant to the
said advertisement and letter of acceptance came to be issued on
07.02.2022 by the respondent authority to the successful bidder
i.e. respondent no.4 herein- Katira Construction Limited. The
consent of 118 beneficiaries, out of 132 beneficiaries, were
received by the respondent authority, at the relevant point of
time, in the year October, 2019. The redevelopment of Surya
Apartment, Part-3, is in accordance with the Redevelopment of
Public Housing Scheme Guidelines, 2016 issued by the
Government of Gujarat. The aforesaid Scheme of Redevelopment
of Public Housing Scheme Guidelines, 2016 will govern to the
facts of the present case.
11. The tripartite agreement dated 12.08.2022 came to be
executed between the Association, the respondent no.2 - GHB
and respondent no.4 - Katira Construction Limited. The said
agreement is duly produced at page-131 (Annexure-R-4). This
Court has considered the said agreement, which is duly signed by
the Authorized Officers. In the post-redevelopment structure, each
of 132 beneficiaries, including the present petitioners, would
C/SCA/4216/2023 ORDER DATED: 11/04/2023
receive new, state of the art housing accommodation. The said
information with regard to the grievance raised by the petitioners
herein that the petitioners were not provided with the requisite
information, as prayed for, is duly supplied to the petitioners
herein on 18.03.2023 by the respondent no.2 - GHB. The same
being addressed to Shri Samirbhai Shah - petitioner no. 5. This
Court has perused the documents, which were supplied to the
petitioners herein by the aforesaid communication dated
18.03.2023. The said information which is duly supplied by the
respondent no.4 to the respondent no.2 authority, relevant para
reads thus:
"2. We state furnishing information with reference to "A" in this
regard that instead of Surya Apartment Section-3, new
buildings are to be built in redevelopment, wherein total five
towers i.e "A". "B", "C", "D" and "E" including 151 2
B.H.K. residential units and 100 3 B.H.K. units of different
sizes totalling 251 units will be built. Apart from this, total 54
shops shall be built on the ground floor and on the first floor.
This survey will be as per the rules and guidelines of GDCR
and Ahmedabad Municipal Corporation.
3. With reference to "B" submitted by you, we state that
arrangement for four wheeler and two wheeler for residential
units and shops shall be made on the ground floor and in two
basements subject to the rules of Ahmedabad Municipal
Corporation.
4. In respect of issue No. "C" of the said subject, we state that
the same will be subject to instructions and rules of the
"Gujarat Fire Prevention and Life Major (Amendment) Rules,
2021".
C/SCA/4216/2023 ORDER DATED: 11/04/2023
5. In respect of issue No. "D" submitted by you, we state that
lifts will be allotted as per the condition under the Gujarat
Lift and Escalator Rules-2001. Two lifts of a standard
company will be provided in each block.
6. In respect of issue No. "E" asked by you, we state that the
registration certificate, which is required to be obtained for
Surya Apartment Vibhag-3, would be obtained after the plan
is passed by the Ahmedabad Municipal Corporation. Hence,
the same will be processed in due course and RERA certificate
will be obtained as per rules, which may be noted by you.
7. In respect of issue No. "F" of the said subject, it is stated
that in order to complete the process of redevelopment within
the time limit and demolition of the present houses of Surya
Vibhag-3, more than 75 % of the agreed members have
vacated and handed over their blocks. As part of the said
process, all the work has been completed in co-ordination
with House Owners' Association and Gujarat Housing Board
and permission is not required to be obtained from
Ahmedabad Municipal Corporation in this regard.
8. In respect of issue No. "G", we state that the association
would decide as to how much maintenance amount is to be
collected considering the total expenses for use of all
infrastructural facilities to be provided in the upcoming new
scheme. The amount of maintenance will be spent considering
the present expenses and at the time of forming the new
association.
9. In respect of issue No. "H" in this regard, we state that the
list of agreed members to the demands made with regard to
Special Civil Application No.4216/2023 is enclosed herewith.
10. In respect of issue No. "I" asked by you, we state that the
written explanation to page No.121 to 126 is pertaining to
resolution for redevelopment of Association of Surya Vibhag-3.
The said resolution is in respect of the signatures of the
members, who had given their consent for the said proposal
at the relevant point of time.
11. In respect of issue No. "I' asked by you, we state that as per
the guidelines of GDCR and Ahmedabad Municipal
Corporation, as compared to residential houses, commercial
units will be constructed as per rules.
We have stated all the above facts on the basis of available
information and explained all of you accordingly and we will
be eager to give information as and when required in future.
C/SCA/4216/2023 ORDER DATED: 11/04/2023
Ahmedabad
Date: 17/03/2023
Yours faithfully,
For Katira Constructions Ltd.
Sd/- (illegible)
Authorized Signatory
Encl. : (1) Copy of the Plan
(2) List of agreed members"
12.1. The same is supported by the requisite documents/
plans and consent of the list of the consenting members.
POSITION OF LAW:
13. At this stage, it is apposite to refer to the oral
judgment dated 24.01.2023 passed by this Court in Letters Patent
Appeal No. 290 of 2022, relevant Para-7 to 12 reads thus:
"7. Having heard the learned advocates appearing for the
parties and on perusal of case papers, we are of the considered
view that project of redevelopment has taken place or in other
words, commenced only after the consent extended by majority
of the members namely 680 members and undisputedly during
pendency of present proceedings, remaining 80 have also given
their consent. Thus, in-principle, all the flat owners have agreed
for redevelopment of the existing flats. While entertaining this
appeal, the Cognate Bench vide order dated 03.03.2022, had
made it explicitly clear that no stay against removing the existing
structure was being considered or granted and had directed all
the appellants to vacate the premises on or before 09.03.2022
and accordingly they have vacated the flats in their occupation
and shifted their residence to different places for which they are
being paid transit allowances by the Developer.
8. In that view of the matter, the re-development project
C/SCA/4216/2023 ORDER DATED: 11/04/2023
has already commenced and is said to be progressing. When this
is the factual situation, appellants herein are contending that
there is no resolution by the Association, which would empower
the Developer to proceed with redevelopment work. The said
contention has been considered by the learned Single Judge and
has rightly brushed aside the same, inasmuch as, consent of
majority of the members have been obtained, which is also
reflected in the order of the learned Single Judge.
9. Section 41-A of the Gujarat Ownership Flats Act, 1973
enables the re-development of a building. For the purposes of
convenience and immediate reference, we extract the said
provision and it reads:
"41A. Re-development of flats and apartment. -
Notwithstanding anything contained in this Act, any work
in relation to the re-development of a building can be
carried out on such terms and conditions as may be
prescribed, after obtaining the consent of not less than 75
per cent. of the flats owners of such building:
Provided that, in respect of such building, -
(i) a period of twenty - five years must have been
completed, from the date of issuance of permission for
development by the concerned Authority; or
(ii) the concerned Authority has declared that such building
is in ruinous condition, or likely to fall, or in any way
dangerous to any person occupying, resorting to or passing
by such structure or any other structure or place in the
neighbourhood thereof.
Explanation. - For the purpose of this section, the
expression "redevelopment" shall be the meaning as
assigned to it in relevant Development Control
Regulations."
10. The aforesaid provision was inserted by the Gujarat Act
No. 5 of 2019 w.e.f. 21.05.2019. In this background, the annual
general body meeting was convened by the society on 16.06.2019
to discuss about the applicability of amended provision.
11. In view of the fact that all 672 flat-owners having given
their consent, this would meet the requirement of Section 41-A
and belie the contention raised before the learned Single Judge,
C/SCA/4216/2023 ORDER DATED: 11/04/2023
wherein hue and cry was raised before the non-approval of the
development project by resolution of the Association. Said
contention is no more available for the appellants to urge before
this Court also, inasmuch as, consent having been given by all
the owners of the flats and as such said contention falls to
ground. Infact, appellants have also given their consent and in
view of development permission (raja-chitthi) having been issued
by the Municipal Corporation on 21.08.2020, the construction
work has commenced and is said to be progressing.
12. The main grievance of the appellants being the
construction being carried out is contrary to scheme namely the
redevelopment of Public Housing Scheme Guidelines, 2016, issued
by the Urban Development Department. Said contention can only
be said to be premature and without any basis. We say so for
the simple reason that guidelines prescribed redevelopment of
existing Public Housing Scheme reads as under : -
"3.1 Redevelopment of Existing Public Housing Scheme :
a. Under redevelopment scheme, the owners of the dwelling
units may be allotted dwelling units with carpet area higher
than the
existing one.
b. The maximum carpet area of the dwelling units may be
as follows:
I. For Dwelling -1 (Detached dwelling unit):
The maximum aggregate carpet area may be 140% of
existing approved carpet area of the dwelling unit or 30 sq.
mtr. carpet area whichever is higher,
II. For Dwelling -2 (Semi-detached dwelling unit, Row
House, Tenement): The maximum aggregate carpet area may
be 140% of existing approved carpet area of the dwelling
unit or 30 sq. mtr. carpet area whichever is higher,
III. For Dwelling-3 (Apartment, Hostel) : The maximum
aggregate carpet area may be 140% of existing approved
carpet area of the
dwelling unit or dwelling unit of 30 sq. mtr. carpet area
whichever is higher,
IV. For any non-residential category, maximum aggregate
carpet area may be 125% of the existing approved carpet
area."
C/SCA/4216/2023 ORDER DATED: 11/04/2023
14. The following facts emerge for consideration of this
Court:
(a) Surya Apartment, Part-3, Middle Income Group
(M.I.G.) comprises in all 132 beneficiaries.
(b) The captioned petition is filed by only 14 individuals
(i.e. a minority comprising of 9-10%) out of a total number of
132 beneficiaries.
(c) Surya Apartment, Part-3, which is the subject matter
of the present petition, is a part of the larger - 'Surya
Apartment', Middle Income Group (M.I.G.) housing project of
GHB- Gujarat Housing Board, which was constructed in the year
1986, i.e. 37 years ago at Sola Road, Ahmedabad. The affairs of
the Surya Apartment, Part-3 are controlled by Surya Apartment,
Part-3, Association, comprising of all the members of the society.
(d) On 07.12.2019, the Association itself addressed a
letter to the Gujarat Housing Board (GHB), requesting the GHB to
initiate the process of redevelopment, in view of resolution of the
Association to the said effect, passed on 01.12.2019 (Annexure-R-
C/SCA/4216/2023 ORDER DATED: 11/04/2023
1).
(e) The necessary approvals were received by the GHB,
thereafter, an advertisement for, inter-alia, the redevelopment of
Surya Apartment, Part-3 was published in October, 2021
(Annexure-R-2).
(f) After appreciation of the bid received, a Letter of
Acceptance dated 07.02.2022 was issued by the GHB to the
successful bidder - respondent no.4 - Katira Construction
Limited.
(g) The consent of 118 beneficiaries, out of 132
beneficiaries were received by the GHB, at the relevant point of
time, in and around October, 2019 (Annexure-R-3).
(h) Tripartite agreement dated 12.08.2022 was executed
between the Association, GHB and the respondent no.4 -
Developer (Annexure-R-4).
(i) Post redevelopment structure, each of 132
beneficiaries, including the present 14 petitioners would receive
new, state of the art housing accommodation.
C/SCA/4216/2023 ORDER DATED: 11/04/2023
(j) The present status of the present petitioners reads
thus:
Peti- Name of Block Unit Present status
tioner Petitioner No. No.
No.
1 Hansaben 152 1815 Ground floor - illegal construction -
R. lease deed not executed with GHB
Prajapati
2 Narendra 163 1948 Ground floor - illegal construction of 2
V. Raval shops
3 Hasumati 162 1934 Ground floor - illegal construction of 3
ben A. shops and other structures
Patel
4 Sandip K. 162 1937 First floor - illegal construction - the
Rabari Petitioner himself is not residing in this
Unit
5 Samir N. 183 2189 First floor - illegal construction
Shah
6 Pragaram 183 2190 First floor - illegal construction
U.
Prajapati
7 Mukesh J. 163 1947 Ground floor - illegal construction
Chaudhar (shops) - the Petitioner himself is not
y residing in this Unit
8 Ushaben 183 2192 First floor
H. Patel
Petitioner Nos. 8 and 10 are Wife and
Husband, and have appeared as
separate petitioners
9 Vinod D. 163 1952 First floor - illegal construction
Patel
10 Hasmukh 183 2191 First floor - illegal construction
P. Patel
Petitioner Nos. 8 and 10 are Wife and
Husband, and have appeared as
separate petitioners
11 Subhadra 182 2180 First floor - illegal construction
ben K.
C/SCA/4216/2023 ORDER DATED: 11/04/2023
Peti- Name of Block Unit Present status
tioner Petitioner No. No.
No.
Purohit
12 Kantilal 183 2186 Ground floor - illegal construction (3
S. shops and additional structures)
Dataniya
13 Ravajibha 183 2187 Both, ground floor - illegal construction
i K.
Parmar Petitioner Nos. 13 and 14 are Husband
14 Kamlaben 183 2188 and Wife, respectively
R. Parmar
(k) From the aforesaid, it emerges that the petitioners are
residing on the ground floor and first floor and it appears from
the aforesaid table as referred above, that the petitioners have
resorted to illegal construction within their dwelling units, which
remains uncontroverted.
(l) The aforesaid Scheme, wherein, redevelopment is to
be carried-out, is a Scheme of the year 1986 i.e. more than 32
years old and the redevelopment would be in the interest of the
residents.
(m) Considering the fact that, effectively there are only 12
petitioners, petitioner nos. 8 and 10 and petitioner nos. 13 and
14 are part of a single family unit. All the petitioners reside only
in 5 blocks out of the total 11 blocks within Surya Apartment,
C/SCA/4216/2023 ORDER DATED: 11/04/2023
Part-3.
(n) In block No. 152, out of a total 12 units in the said
block, there is only one petitioner.
(o) In block No. 163, out of a total 12 units in the said
block, there are only 3 petitioners.
(p) In block No. 183, there are only 7 petitioners
(actually only 6 petitioners), since petitioner nos. 12 and 14 are
forming part of the same family unit, effectively, in block No.
183, there are only 5 petitioners, out of total 12 units in the said
block.
(q) In block No. 182, out of a total 12 units in the said
block, there is only 1 petitioner.
(r) All the other beneficiaries have already vacated their
units and are in receipt of transit allowance (as and by way of
rent) from the respondent no.4 - Developer.
15. At this stage, it is apposite to refer to the order dated
07.03.2023, while issuing Notice, this Court passed the following
order:
"1. Mr.Chirag Prajapati, learned advocate for the petitioners
submitted that the whole redevelopment process has been
C/SCA/4216/2023 ORDER DATED: 11/04/2023
undertaken behind the back of the petitioners. It is submitted
that various documents so also, the scheme were not made
available to the petitioners and therefore, the applications were
made, seeking information inasmuch as, the petitioners have all
the right to know what they will be getting by way of
redevelopment. On 04.10.2022, one of the petitioners has made a
request to the executive engineer, specifically taking a stand that
they are not opposing the redevelopment. All what they want is
the information about the benefits and amenities, which shall be
provided by the developer. In absence thereof, it would be
difficult for the petitioners to raise any grievance. It is submitted
that so far as the consent aspect is concerned, very interestingly,
the consent of only those members have been taken, who were
in favour of the redevelopment and not of the petitioners and
since there was majority of the consent, the whole redevelopment
work has been started. It is submitted that the petitioners,
though have all the rights, have not been provided any
information, which would be prejudiced to their rights of raising
any objection against the redevelopment. It is submitted that it is
not clear as to who is the competent authority, who has passed
the order, considering the fact that the name is not mentioned.
2. On the other hand, Mr.G.H. Virk, learned advocate appearing
on caveat has submitted that the present writ petition is nothing
but, a malicious attempt inasmuch as, all the petitioners are the
residents of the ground floor and first floor. Out of 132 residents,
the objection is only by 14 and two of which, are the husband
and wife and therefore, essentially, the objection can be said to
be only by 12 unit holders. It is submitted that it is improper on
the part of the petitioners to raise objection inasmuch, it was
apropos the proposal made by the Surya Apartment (Part 3)
Association that the whole process of redevelopment was
initiated, resolution has been passed by the association and
signed by almost 90% and minuscule has not signed. It is
submitted that the objection is being raised by the petitioners
possibly for the reason that they are the holders of the units
situated at ground floor and had carried out the illegal
construction and the units are being used for commercial
purpose. It is submitted that it is difficult to fathom as to why,
objection is being raised for, now the petitioners and the unit
holders shall be getting larger area compared to the area which,
presently, they are residing. Moreover, transit allowance to the
tune of Rs.13,500/- per month is being given to the unit holders.
110 unit holders are already availing of the said benefit, except
C/SCA/4216/2023 ORDER DATED: 11/04/2023
the petitioners. It is submitted that if the petitioners are ready
for the same, they also will be extended the same benefits;
however, the petitioners are insisting for some further amount,
which would be unjust and not in the interest of all the unit
holders. It is submitted that the petitioners are not against the
redevelopment and considering the request of the petitioners, the
Board is ready and willing to extend them some more time to
vacate the premises.
3. Mr.Prajapati, learned advocate states that he has already
declared before this Court and also in the representations that
the petitioners are not averse to the redevelopment, all what the
petitioners want, are the documents and information of the
benefits which will be made available to them by the developers
and the Board.
4. Mr.Virk, learned advocate submitted that the details,
otherwise, are available on the portal; however, the same shall
be provided to the petitioners at the earliest i.e. by today itself.
5. Mr.Prajapati, learned advocate would like to take instructions.
Request is made for an adjournment.
6. At his request, let the matter appear on 20.03.2023."
16. Considering the facts as referred above and the
position of law, this Court is inclined to pass the following order:
(I) The Redevelopment Guideline, 2016 as referred above,
is issued taking into consideration the benefits to the unit holders
and the same is formulated for the benefits of 132 M.I.G. Surya
Apartment, which was laid down by the Gujarat Housing Board
in the year 1986. At this stage the petitioners are objecting to
C/SCA/4216/2023 ORDER DATED: 11/04/2023
the redevelopment scheme, wherein, 75% members have already
agreed and as submitted by Mr. Bhatt, learned senior counsel
appearing for the respondent no.4 is also paid Rs.27,000/-
towards rent deposit + Rs.13,500/- towards advance rent i.e.
Rs.40,500/- + Rs.10,000/ for shifting charges. In all total
Rs.50,500/- were paid to the individual unit holder and
thereafter, Rs.13,500/- per month towards rent is also paid. The
object of the Scheme, 2016 is in the interest of public at large
and the said object is not be defeated at the behest of few
persons. While the Scheme came to be floated by the respondent
no.2 - GHB, the respondent no.4 is assigned the contract to give
the effect to the said scheme. The project which is entrusted to
the respondent no.4 to achieve the said result and the same not
be delayed. It is not the case of the petitioners herein that the
Scheme is discriminatory. The information as sought for was
supplied to the petitioners during the present proceedings as
perused from Pg. 188-202, the petitioners are objecting to the
entire scheme, which is wholly unjustified. Further, no
fundamental or legal rights of the petitioners can be said to have
been infringed by any action on the part of the respondent
C/SCA/4216/2023 ORDER DATED: 11/04/2023
authorities. The government in order to achieve the below-
mentioned objects have provided for framing the present scheme:
'(I). To upgrade existing housing stock;
(II). Create additional affordable housing stock wherever possible;
(III). To utilize available land in optimal manner;
and
(IV). To improve neighborhood at no or minimal cost to the
Government.'
(II). The public interest will always have precedence over
a private interest of the parties, more particularly, when the said
is in the interest of public at large and in the present case, at
the behest of few persons (14 petitioners), the entire project
cannot be put to a standstill. The redevelopment scheme is on-
going since 2016 and 75% of the occupants have consented to
the redevelopment process.
(III). Mr. Prajapati, learned advocate appearing for the
petitioners declared before the Court and also in the
representations that the petitioners herein are not averse to the
redevelopment and all that the petitioners want, are the
documents and information of the benefits which will be made
available to them by the developers and the Board.
C/SCA/4216/2023 ORDER DATED: 11/04/2023
(IV). In the course of hearing, the petitioners herein
changed their stance and argued vehemently for quashing of the
impugned order / communication dated 06.02.2023. Considering
the aforesaid statement made in the order dated 07.03.2023, the
said information has already provided by the respondent
authority to the present petitioners, as referred above, by
communication dated 18.03.2023, which is duly forming part of
the record (pg.188-202).
(V). On the aforesaid ground, interest of justice would be
served, if the Redevelopment of Public Housing Scheme
Guidelines, 2016 be implemented in its true spirit, without any
obstruction.
In view of above, this Court is not inclined to exercise
extraordinary jurisdiction under Article 226 of the Constitution of
India and the present petition stands dismissed, accordingly.
(VAIBHAVI D. NANAVATI,J)
Pradhyuman
