Gujarat High Court
Ratnamani Co-Operative Housing ... vs State Of Gujarat on 9 November, 2023
Bench: Vaibhavi D. Nanavati
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11314 of 2022
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 3 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 11314 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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RATNAMANI CO-OPERATIVE HOUSING SOCIETY LTD.
THROUGH CHAIRMAN PRAKASHKUMAR GATTTUBHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR. YATIN OZA, LEARNED SENIOR COUNSEL with MR. JIT P
PATEL(6994) for the Petitioner(s) No. 1,2
DS AFF.NOT FILED (R) for the Respondent(s) No. 12
MS. JYOTI BHATT, AGP for the Respondent(s) No. 1
MR RUTVIJ R PATEL(10615) for the Respondent(s) No. 10,11,
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12.1, 12.3, 13,14,15,16,17,18,4,5,6,7,8,9
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2
MS. NIYATI K JUTHANI(7014) for the Respondent(s) No. 3
NOTICE UNSERVED for the Respondent(s) No. 12.2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/11/2023
CAV JUDGMENT
1. With the consent of the learned advocates appearing
for the respective parties, the present petition is taken up for
final hearing.
2. Issue RULE, returnable forthwith. Learned advocates
waive service of Rule for and on behalf of the respective parties.
3. By way of the present Petition under Article-226 of
the Constitution of India, the petitioners herein have prayed for
the following reliefs:
"(A) Your Lordships may be pleased to allow and admit this
petition.
(B) Your lordships may be pleased to issue a writ of mandamus
or a writ of certiorari or any other appropriate writ, order or
direction directing the respondent no. 2 corporation to take
action and initiate proceedings U/s 268 of Gujarat Provincial
Municipal Corporation Act, in implementation of Notices dated
19.05.2022 U/s 264 of Gujarat Provincial Municipal Corporation
Act, for petitioner society situated at land bearing Survey no.
82, Final Plot No. 198 paiki Admeasuring 4550 Sq. Mrs situated
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in TP Scheme No.1 at Mouje Ghatlodia, District Ahmedabad as
it being dilapidated, unsafe and dangerous and further be
pleased to direct the respondent no.2 corporation to aid assist
and ensure handover of peaceful and vacant possession of the
subject premises for Redevelopment and reconstruction purpose
to petitioner society as per registered MOU dated 20.12.2021.
(BB) Your Lordships be pleased to issue a writ of mandamus or
any other appropriate writ commanding Respondent no.4 to 18
to hand over vacant and peaceful possession of their flats for
the purpose of redevelopment as per Section 41A of the Gujarat
Ownerships Flats Act, 1973.
(C) Pending admission hearing and final disposal of the petition
your lordships be pleased to restrain the respondent no.4 to 18
from creating any third party rights and further be pleased to
issue notice to respondent no.4 to 18 to terminate any leave
and license agreements and conveyances for occupancy of their
respective residential apartments and further be pleased to
restrain the respondent no. 4 to 18 from creating any third
party rights and such other acts which may jeopardize the life
and safety of the residents as well as cause delay in the subject
redevelopment procedure of petitioner society.
(D) This Hon'ble court be pleased to pass appropriate orders
imposing exemplary costs on the Private respondents in the
interest of justice.
(E) Be pleased to pass such other and further orders as may be
deemed just and proper looking to the facts and circumstances
of the case and in the interest of justice."
4. Heard Mr. Yatin Y. Oza, learned senior counsel
assisted by Mr. Jit P. Patel, learned advocate appearing for the
petitioners, Ms. Jyoti Bhatt, learned Assistant Government Pleader
appearing for the respondent No.1 - State, Mr. Satyam Y.
Chhaya, learned advocate appearing for the respondent no.2, Ms.
Niyati K. Juthani, learned advocate appearing for the respondent
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no.3, Mr. Rutvij R. Patel, learned advocate appearing for the
respondent nos. 4 to 18.
5. The petitioner is a cooperative housing society, which
has total 96 members. The petitioner society is owner and
occupier of land bearing Survey No. 82, Final Plot No. 198 Paiki
admeasuring 4550 sq.mtrs. situated in TP Scheme No. 1 at
Mouje: Ghatlodia, Dist.: Ahmedabad. The petitioner society is a
legal entity having purchased ready constructed 96 residential
apartments in the year 1981 - 83 for its members.
6. The petitioner herein is seeking indulgence in
directing the respondent Corporation to carry-on its duties as
provided under Section 268 of Gujarat Provincial Municipal
Corporation Act, 1949 r/w. Gujarat Ownership of Flats Act, 1973
which provides that the respondent Corporation is the concerned
authority for the purpose of redevelopment of the societies. The
petitioner had further prayed for vacation of non-consenting and
objecting members i.e. the private respondents herein from
dilapidated flats and getting possession of residential apartments
which are due for redevelopment and reconstruction. The
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respondent no.3 - Developer upon consent from more than 75%
of the members, applied for passing of building plan before the
respondent Corporation, wherein, upon survey and scrutiny, the
respondent Corporation was pleased to issue Notice on
19.05.2022 u/s. 264 of the Gujarat Provincial Municipal
Corporation Act, 1949 (hereinafter referred to as 'the GPMC Act'
for the sake of brevity). The petitioner society has been
constructed, as per the building plan dated 21.05.1981.
7. Heard Mr. Yatin Oza, learned senior counsel assisted
by Mr. Jit Patel, learned advocate appearing for the petitioners.
7.1. Mr. Yatin Oza, learned senior counsel assisted by Mr.
Jit Patel, learned advocate appearing for the petitioners submitted
that the development permission for existing superstructure i.e.
96 residential units to the society came to be granted on
21.05.1981. Mr. Oza, learned senior counsel submitted that the
society passed a resolution on 25.02.2019 and the members were
put to notice to get offers from their known and recognized
developers for redevelopment of society. Reliance was placed on
the newspaper advertisement published on 05.05.2019 and the
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developers were invited to give their offers for redevelopment of
the society.
7.2. Mr. Oza, learned senior counsel submitted that the
resolution came to be passed by the society on 15.03.2019 for
publishing advertisement in daily vernacular newspaper for
redevelopment of society. On 30.08.2019, pursuant to the
newspaper advertisement and out of offers received, offer of
Suryam Developers was finalized and for redevelopment 79
members remained present and signed the resolution.
7.3. Mr. Oza, learned senior counsel submitted that the
resolution was passed on 14.12.2020 in the meeting with the
respondent no.3 - Developer who showed willingness to give a
better offer. On 31.12.2020, resolution was passed by the society,
wherein, final offer from the respondent no.3 - Developer was
called for after making changes as per the discussion.
7.4. Mr. Oza, learned senior counsel submitted that the
resolution came to be passed by the society on 30.03.2021,
wherein, the final offer of the respondent no.3 came to be
accepted. The resolution was passed by the society in its Annual
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General Meeting on 19.10.2021 and it was decided by majority of
members to enter into MoU with the respondent no.3 and to give
consent for redevelopment, whereby, 76 members attended the
meeting and signed the resolution.
7.5. Mr. Oza, learned senior counsel submitted that on
20.12.2021, upon finalization of developer, 72 members i.e. 75%
of members entered into MoU with the Developer i.e. respondent
no.3. The affidavit to the said effect was also relied upon, which
are duly produced at Page-190. It was submitted that, additional
9 members who did not remain present on 21.12.2021 also
entered into the very same MoU with the Developer and
submitted the MoU to the society. In view thereof, total 81
members out of 96 members i.e. 84.37% majority of the
members, gave consent and were ready for redevelopment of the
society.
7.6. Mr. Oza, learned senior counsel submitted that, after
obtaining consent of more than 84% of the members, the
respondent no.3 has undertaken necessary procedures and
formalities, pursuant to which, on 19.04.2022, the Airport
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Authority has granted NOC. The necessary building plans has also
been submitted to the Ahmedabad Municipal Corporation (AMC)
and the Scheme Opinion has also been given by the AMC on
25.05.2022. The AMC has also granted preliminary Fire NOC to
the building plan submitted on 07.06.2022.
7.7. Placing reliance on the aforesaid submissions, Mr.
Oza, learned senior counsel submitted that the respondent nos. 4
to 18 be directed to handover vacant and peaceful possession of
their plots for the purpose of redevelopment, as per Section 41-A
of the Gujarat Flats Ownership Act, 1973.
8. The aforesaid submissions were controverted and were
opposed by Mr. Rutvij R. Patel, learned advocate appearing for
the private respondent nos. 4 to 18.
8.1. It was submitted by Mr. Patel, learned advocate that
the Notice issued by the respondent Corporation under Section
264 of the GPMC Act was for the purpose of repairing of the
building. It was submitted that the respondent no.2 itself does
not deem it fit that the proceedings under Section 268 of the Act
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are required to be put into action. It was submitted that the
construction of the building took place in the year 1990 and not
in the year 1981.
8.2. It was submitted that the consent which has been
obtained by the petitioner society is misleading and insufficient
and cannot be said to be free consent. It was also submitted that
there are irregularities committed by the petitioners and reliance
was placed on few examples with respect to the signature of the
members of flats and placing reliance on the same, it was
submitted by the petitioner that there were consent of 72
members in the MoU being 75% of the total members, which is
so far from truth.
8.3. It was also submitted that, as per the Gujarat
Ownership of Flats Act, 1973 (hereinafter referred to as 'the GOF
Act, 1973' for the sake of brevity), the Rules have been violated
and as per the Rules- 19 to 23, the redevelopment procedure
commences only after satisfying the conditions specified under
Section 41A of the Act. In the facts of the present case, notice
was received on 19.05.2022 and the procedure for redevelopment
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commenced 3.25 years earlier.
8.4. Reliance was placed on the procedure defined under
the Act and it was submitted that the same has been given a go-
by and the petitioners have acted in high handed manner and as
per their own will, there was complete disregard with respect to
the Rules framed under the GOF Act. It was also submitted that
the provisions of the RERA Act are not completely enough in
order to satisfy the financial security of the members of the
society.
8.5. It was submitted that the builder has entered into
MoU for redevelopment with the petitioner society, even when
the per-requisite conditions, as mentioned under Section 41A of
the GOF Act, had not been satisfied. It was further submitted
that the builder himself has put him in a illegal position and
thus cannot demand the legalization of the same by abusing the
process of law.
8.6. Placing reliance on the aforesaid submissions, it was
submitted that the petition deserves to be dismissed, the same
being devoid of merits.
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9. Heard Mr. Satyam Chhaya, learned advocate
appearing for the respondent no. 2- Ahmedabad Municipal
Corporation.
9.1. Mr. Chhaya, learned advocate submitted that the
respondent authority has no objection, if the Court were to
consider granting of the prayers, commanding the respondent
nos. 4 to 18 to handover the vacant and peaceful possession of
their flats for the purpose of redevelopment under Section 41 of
the GOF Act, 1973, however, the aforesaid may not be directed
to the respondent no.2.
10. Heard Ms. Niyati K. Juthani, learned advocate
appearing for the respondent No.3 - Developer.
10.1. Ms. Niyati Juthani, learned advocate submitted that
the respondent no.3 is a registered and licensed developer
engaged in the business of building construction and development
work and such license has been issued by the respondent
Corporation. The respondent are also in the work of
redevelopment of projects, whereby, the desiring society or
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members of the society, who seek to reconstruct or redevelop
their old or dilapidated buildings, can pursue the redevelopment
work, after seeking consent from the members.
10.2. Ms. Juthani, learned advocate submitted that the
petitioner society convened a meeting on 25.09.2019 for
considering the redevelopment of their housing society,
constructed in the year 1981. The petitioner in consensus of the
residents had resolved to publish an advertisement to seek
bidding from builders / developers for the redevelopment of the
petitioner society. The respondent no.3 - the Developer had also
placed an offer among other developers. Upon fair comparison
and proper scrutiny, the petitioner herein had come to a
conclusion that the bid offered by the respondent no.3 is best
suited for all the majority of members and accordingly, a
resolution dated 21.08.2021 came to be passed, wherein, the
developer's bid was considered to be the best and the developer
decided to enter in the Memorandum of Understanding (MoU).
10.3. The MoU with the consenting members was more
than 75% of the members of the petitioner society, which showed
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their readiness and willingness for redevelopment and also to
comply with newly enacted and amended laws with regards to
redevelopment, which provides that for redevelopment of housing
society, when the consenting members are more than 75% than
the developer would be ready to invest time and money in the
said redevelopment project.
10.4. It was submitted that the respondent no.3 for
proposed building plan, obtained development permission and
other necessary permissions, such as Fire NOC, No Objection
Certificate from Airport Authority and etc. So far as expenses are
concerned, the developer would spend approximately Rs.7 to 8
crores towards FSI, plan passing of the building, development
permission and registration charges to various authorities
including the respondent corporation.
10.5. It was submitted that the petitioner society, in terms
of the MoU, which provides for transit accommodation, would be
getting additional carpet area and the members of the society
will be getting other benefits from the redevelopment project, gift
money and etc., and it shall comply with the conditions which
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are in consonance with the statutory provisions of the GOF Act,
1973 and amendments made, with regard to the redevelopment
therein.
10.6. It was further submitted that for ease of accounting
and classification, a special purpose separate partnership firms
are floated for each project, and therefore, getting bank
guarantee is though not impossible but difficult for a new
partnership firm. That the developer has, already as per the
MoU, undertaken not to obtain any project finance and that the
necessary registration under the RERA Act and Rules will be
complied with and further the net worth certificate of the
developer would also suffice the concern of the objecting member
that the developer is capable to redevelop the project, and
therefore, requirement of bank guarantee pales into insignificance
and even otherwise, providing the bank guarantee is not
mandatory in nature and therefore, objections of the objecting
members with regards to the bank guarantee are only based on
assumption, apprehension and are hyper technical in nature
which are already being taken care of by not obtaining project
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finance and by getting the project registered before the Real
Estate Regulatory Authority (RERA).
10.7. It was submitted that, the only difficulty being faced
by the developer is that the objecting members are extorting the
lacunae in the statute by refusing to handover the possession of
their flats for redevelopment and such is being done for want of
extraneous considerations and the developer is being pursued to
satisfy illegal and unreasonable demand of objecting members -
respondent nos. 4 to 18 herein in this petition.
10.8. Placing reliance on the aforesaid submissions, it was
submitted that the prayers as prayed for by the petitioners herein
be allowed and the objecting members be directed to handover
the possession of the flats to the respondent no.3 - developer for
the purpose of redevelopment.
11. POSITION OF LAW:
11.1. In the case of the Bengal Secretariat Cooperative Land
Mortgage Bank and Housing Society Limited v/s. Sri Aloke
Kumar & Anr. in Civil Appeal No. 7261 of 2022, wherein the
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Hon'ble Apex Court in Para-52 to 58 held as under:
"52. It is not in dispute that the General Body of the Appellant
Society, which is supreme, has taken up a conscious decision to
redevelop the administrative building. The General Body of the
Appellant Society has also resolved to appoint the Hi-Rise as the
developer. Those decisions having not been challenged at all, the
Respondent No. 1 being a member of the Appellant Society is
bound by the said decisions. The General Body of the Appellant
Society has approved the terms and conditions of the
development agreement by overwhelming majority. Merely
because the terms and conditions of the development agreement
are not acceptable to the Respondent No. 1, who could be said to
be in minuscule minority cannot be the basis of not to abide by
the decision of the overwhelming majority of the General Body of
the Appellant Society. The redevelopment of the property is
necessitated in view of the fact that the building is in a
dilapidated condition with passage of time. The redevelopment
thus, in our view, would be a requirement and a necessity and
cannot be termed as business. The Appellant Society in such
circumstances did not even require to carry out any amendment
to the bye-laws or to include the "redevelopment of the
buildings" as one of the objects of the Society before taking any
decision to redevelop its property.
53. By now it is well established position that once a person
becomes a member of the Co-operative Society, he loses his
individuality with the Society and he has no independent rights
except those given to him by the statute and bye-laws. The
member has to speak through the Society or rather the Society
alone can act and speaks for him qua the rights and duties of the
Society as a body (see : Daman Singh v. State of Punjab, reported
in (1985) 2 SCC 670 : AIR 1985 SC 973). This view has been
followed in the subsequent decision of this Court in the case
of State of U.P v. Chheoki Employees Co-operative Society Ltd.,
reported in (1997) 3 SCC 681 : AIR 1997 SC 1413. In this
decision, this Court further observed that the member of a
Society has no independent right qua the Society and it is the
Society that is entitled to represent as the corporate aggregate.
This Court also observed that the stream cannot rise higher than
the source. Suffice it to observe that so long as the Resolutions
passed by the General Body of the Appellant Society are in force
and not overturned by a forum of competent jurisdiction, the said
decisions would bind the Respondent No. 1. He cannot be
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permitted to take a stand alone position but is bound by the
majority decision of the General Body. Notably, the Respondent
No. 1 has not challenged the Resolutions passed by the General
Body of the Appellant Society to redevelop the property and more
so, to appoint the Hi-Rise as the Developer to give him all the
redevelopment rights.
54. It was also argued on behalf of the Respondent No. 1 that
the property is in a good condition and there is no need to
redevelop the existing building. In the first place, as noted
earlier, the decision of the General Body of the Society to
redevelop the subject property has not been challenged at all.
Besides, no provision in the Co-operative Societies Actor the rules
or any other legal provision has been brought to our notice
which would curtail the right of the Society to redevelop the
property when the General Body of the Society intends to do so.
Essentially, that is the commercial wisdom of the General Body of
the Society. It is not open to the Court to sit over the said
wisdom of the General Body as an Appellate Authority. Merely
because one single member in minority disapproves of the
decision, that cannot be the basis to negate the decision of the
General Body, unless it is shown that the decision was the
product of fraud or misrepresentation or was opposed to some
statutory prohibition. That is not the grievance made before us.
In the present case, the General Body took a conscious decision
after due deliberations for many years to redevelop its property.
Even with regard to the appointment of the "Hi-Rise" as the
Developer, the record shows that it was decided by the General
Body of the Society after examining the relative merits of the
proposals received from the developers.
55. The object of the provision has to be borne in mind. The
entire legislative scheme goes to show that the Co-operative
Society is to function democratically and the internal democracy
of a society, including resolutions passed in accordance with the
Act, the Rules, and the bye-laws have to be respected and
implemented. The Co-operative Movement is both a theory of life
and a system of business. It is a form of voluntary association
where individuals unite for mutual aid in the production and
distribution of wealth upon principles of equity, reason and
common good. It stands for distributive justice and asserts the
principle of equality and equity ensuring to all those engaged in
the production of wealth a share proportionately commensurate
with the degree of their contribution. It provides as a substitute
for material assets, honesty and a sense of moral obligation and
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keeps in view the moral rather than the material sanction. The
movement is thus a great Co-operative movement.
56. The basic principles of co-operation are that the members join
as human beings and not as capitalists. The Co-operative Society
is a form of organization wherein persons associate together as
human beings on the basis of equality for promotion of economic
interest of its members. This movement is a method of doing the
business or other activities with ethical base. "Each for all and all
for each" is the motto of the co-operative movement. This
movement not only develops latent business capacities of its
members but produces leaders; encourages economic and social
virtues, honesty and loyalty, becomes imperative, prospects of
better life, obtainable by concerted effort is opened up; the
individual realises that there is something more to be sought than
mere material gains for himself. So, in fact, it being a business
cum moral movement, and the success of the Co-operative Society
depends upon the reality with which one of the members work
for the achievement of its objects and purpose. The Committee on
Co-operation in India emphasized the moral aspect of co-
operation, to quote the words:-
"The theory of co-operation is very briefly that an isolated and
powerless individual can, by association, with others and by
moral development support, obtain in his own degree the material
advantages available to wealthy or powerful persons and thereby
develop himself to the fullest extent of his natural abilities. By
the Union of forces, material advancement is secured and by
united action self reliance is fostered and it from the inter-action
of these influences that it is hoped to attain the effective
realisation of the higher and more prosperous standard of life
which has been characterised as better business, better arming
and better living; we have found that there is a tendency not
only among the outside public but also among supporters of the
movement to be little its moral aspect and to regard this as
superfluous idealism. Cooperation in actual practice must often
fall short of the standard aimed at and details inconsistent with
co- operative ideals have often to be accepted in the hope that
they may lead to better things. We wish clearly to express that it
is the true co-operation alone, that is, to a co-operation which
recognises the moral accept of the question that Government must
look for the amelioration of the masses and not to a psudo co-
operative edifice, however imposing, which is built in ignorance
of co- operative principles. The movement is essentially a moral
one and it is individualistic rather than socialistic. It provides as
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a substitute for material assets honesty and a sense of moral
obligation and keeps in view the moral rather than the material
sanction. Pages 5 and 6 of Theory and Practice of Co-operation in
India and Abroad by Kulkarni, Volume 1. Co-operation is a mode
of doing business, is at present applied as the solution of many
economic problems. Co-operation is harnessed to almost all forms
of economic activity. Though co-operation was introduced in this
country as a remedy for rural indebtedness, it has been applied
successfully in a wide range of activities such as production,
distribution, banking, supply, marketing, housing and insurance.
See Theory and Practice of Co-operation in India and Abroad by
Kulkarni Volume 1 Page 2."
57. In the overall view of the matter, we are convinced that the
impugned judgment and order passed by the High Court is not
sustainable in law and deserves to be set aside. At one point of
time, we were inclined to allow this appeal by imposing an
exemplary costs on the Respondent No. 1 for unnecessarily
dragging the Appellant Society into a frivolous litigation & not
allowing the Appellant Society to go ahead with the project for
the past almost two decades. However, we refrain from passing
such order of costs in the hope that the Respondent No. 1
realises that the development of the administrative building will
be for the betterment of the society. No individual member is
going to gain anything from the redevelopment. It is the society
as an autonomous body which will gain something.
58. For the foregoing reasons, this appeal succeeds and is hereby
allowed. The impugned judgment and order passed by the High
Court is hereby set aside and it shall now be open to the
Appellant Society to proceed further with its project of
redevelopment in accordance with the resolutions passed by the
General Body from time to time. It is needless to clarify that the
first priority should be given to demolish the entire building as
the same is in a dilapidated condition."
11.2. In the aforesaid facts which are undisputed, it is
apposite to refer to the ratio as laid down in the case of Swami
Vivekanandnagar Cooperative Housing Society Limited v/s.
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Ahmedabad Municipal Corporation in Special Civil Application
No. 8530 of 2019 vide CAV judgment dated 21.06.2022, wherein,
this Court observed the following, in Para-49 to 55 which reads
thus:
"49. The contention that no mandamus can be issued to the
private respondents, as there is no provision for eviction; notably,
the petition and prayer in the petition is not against the private
respondents in exclusivity, but also seeking direction against the
Corporation, which is undoubtedly a statutory body. Now, in
view of the development permission granted, this Court in
exercise of its powers under Article 226 of the Constitution of
India, can very well require the private respondents to handover
the possession in furtherance of the development permission more
particularly, considering the conditions of the buildings.
Moreover, the petition has been filed by the Society, which is
registered under the provisions of the Co-operative Societies Act,
majority of the members have taken a decision according
redevelopment. Perceptibly, the decision of the Society or the
body going in redevelopment, has not been assailed by the
private respondents before the appropriate forum or has taken
any restraint order against the Society. Apt would be the
judgment, in the case of Aditya Developers (supra) wherein it has
been observed that -
"By now it is well established position that once a person
becomes a member of the Cooperative Society, he loses his
individuality with the Society and he has no independent rights
except those given to him by the statute and Bye-laws. The
member has to speak through the Society or rather the Society
alone can act and speaks for him qua the rights and duties of
the Society as a body".
It has also been observed and held that the members cannot
take stand alone position but are bound by the majority decision
of the General Body. The learned counsel is right therefore, in
contending that the objection raised by the private respondents
that there is no privity of contract between the private
respondents on one hand and the petitioner-society on the other,
is not maintainable. In the present case, it is not disputed that
the private respondents are the members of the Society and the
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General Body/ Executive Committee of the petitioner - society, if
has taken a decision, consisting majority of the members, which
is in conformity with the provisions of Section 41A of the Act of
1973, the objection of the private respondents, can hardly be
maintained and therefore, it is rejected.
50. In the present case, though no notice has been issued,
requiring the demolition of the property, however, the fact
remains that there is a notice under Section 264 issued to the
Society for carrying out necessary repairs and restrengthening of
the building. Additionally, there are reports by the Structural
Engineer, so also the soil testing laboratory that the condition of
the building is dilapidated and requires urgent and is not fit for
its safe use. Advise is also given that considering the damages
and the condition of the building, it is desirable to demolish the
building and reconstruct the same. Therefore, when there is a
opinion by the expert that the building is not safe for its use and
it should be reconstructed, there is no reason available to the
private respondents to oppose the redevelopment only on the
ground that the procedure adopted by the Society, is unjust and
improper.
51. So far as the condition of the building is concerned,
perceptibly, it is in dilapidated condition and likely to fall, which
is supported by the opinions of the experts. It is thereafter that
the issue will arise as to whether the procedure has been
followed by the petitioner - society going for redevelopment.
Some steps were taken by the petitioner - society for the period
from February, 2018 to December, 2019 and after the enactment
of Section 41A of the Act of 1983, the General Body/Executive
Committee has taken a decision with majority of members for
redevelopment. Therefore, so far as the requirement as contained
in the provisions of Section 41A, stands fulfilled. Once the
requirement under Section 41A is fulfilled, the issue then will
arise as to whether the procedure as provided under the Rules
has been observed by the petitioner - society.
52. So far as the judgments relied upon by the learned counsel
appearing for the private respondents and more particularly, the
respondent no.9.1, it is required to be noted that there is no
quarrel to the proposition that if the manner of doing a
particular act is prescribed under any statute, the act must be
done in that manner or not at all. Pertinently, the Rules of 1974
are framed in exercise of the powers conferred by clause (e) of
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sub-section (2) of Section 44 read with Section 41A of the Act of
1973 and therefore, the rules are statutory in nature and to be
adhered to. In the facts of the present case, it can be safely
stated that there is substantial compliance of the rules; however,
the minor aberrations cannot be fatal to the procedure adopted
by the petitioner - society.
53. At this stage, apt would be the judgment in the case of
Commissioner of Central Excise, New Delhi (supra). It has been
held in paragraph 24, which reads thus:-
"24. The doctrine of substantial compliance is a judicial
invention, equitable in nature, designed to avoid hardship in
cases where a party does all that can reasonably expected of it,
but failed or faulted in some minor or inconsequent aspects
which cannot be described as the "essence" or the "substance" of
the requirements. Like the concept of "reasonableness", the
acceptance or otherwise of a plea of "substantial compliance"
depends upon the facts and circumstances of each case and the
purpose and object to be achieved and the context of the
prerequisites which are essential to achieve the object and
purpose of the rule or the regulation. Such a defence cannot be
pleaded if a clear statutory prerequisite which effectuates the
object and the purpose of the statute has not been met.
Certainly, it means that the Court should determine whether the
statute has been followed sufficiently so as to carry out the
intent for which the statute was enacted and not a mirror image
type of strict compliance. Substantial compliance means "actual
compliance in respect to the substance essential to every
reasonable objective of the statute" and the court should
determine whether the statute has been followed sufficiently so
as to carry out the intent of the statute and accomplish the
reasonable objectives for which it was passed. Fiscal statute
generally seeks to preserve the need to comply strictly with
regulatory requirements that are important, especially when a
party seeks the benefits of an exemption clause that are
important. Substantial compliance of an enactment is insisted,
where mandatory and directory requirements are lumped
together, for in such a case, if mandatory requirements are
complied with, it will be proper to say that the enactment has
been substantially complied with notwithstanding the
noncompliance of directory requirements. In cases where
substantial compliance has been found, there has been actual
compliance with the statute, albeit procedurally faulty. The
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doctrine of substantial compliance seeks to preserve the need to
comply strictly with the conditions or requirements that are
important to invoke a tax or duty exemption and to forgive non-
compliance for either unimportant and tangential requirements or
requirements that are so confusingly or incorrectly written that
an earnest effort at compliance should be accepted. The test for
determining the applicability of the substantial compliance
doctrine has been the subject of a myriad of cases and quite
often, the critical question to be examined is whether the
requirements relate to the "substance" or "essence" of the statute,
if so, strict adherence to those requirements is a precondition to
give effect to that doctrine. On the other hand, if the
requirements are procedural or directory in that they are not of
the "essence" of the thing to be done but are given with a view
to the orderly conduct of business, they may be fulfilled by
substantial, if not strict compliance. In other words, a mere
attempted compliance may not be sufficient, but actual
compliance of those factors which are considered as essential."
54. At the cost of repetition, so far as the observance of the
provisions of the Act and of the Rules are concerned, pertinently
the procedure was adopted by the petitioner - society seeking
consent and has got consent of more than 75% of the members
and after the enactment/introduction of the provisions of Section
41A of the Act of 1973, the petitioner - society has it its general
body meeting dated 16.6.2020 and 12.7.2020, ratified the earlier
procedure and therefore, it will not dis-entitle the petitioner -
society seeking development. If at all there is some aberration in
the procedure, it will be for the appropriate authority to take
action. In absence of any challenge to the decision of the general
body, so also the development permission, the contention of the
private respondents, would be misplaced.
55. In view of the aforementioned discussion, the petition,
deserves to be allowed and is accordingly allowed. The petitioner
society is permitted to act as per the development permission
dated 5.3.2022 and the private respondents are directed to
handover the possession of the respective flats for the purpose of
redevelopment within a period of eight weeks from the date of
the receipt of copy of this CAV judgment. Rule is made absolute
to the aforesaid extent. No order as to costs."
11.3. The aforesaid ratio laid down in Special Civil
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Application No. 8530 of 2019 vide order dated 21.06.2022 came
to be confirmed in Letters Patent Appeal No. 1075 of 2022 in
case of Sarojben Kiritbhai Shah since deceased through heirs v/s.
Ahmedabad Municipal Corporation vide CAV Judgment dated
23.01.2023. It is apposite to refer to Para-37, 42 to 45, 52 to
54, which reads thus:
"37. In the light of Section 41A of the Gujarat Ownership Flats
Act, 1973 having been amended with effect from 21.5.2019, the
society convened a general body meeting of its members. After
deliberations, the society forwarded consent letters of its
members confirming MoU dated 2.4.2019; consenting to give
powers to the main committee of the society to undertake the
redevelopment activity and also consenting for said amendment
being applied to the project in question. On account of concrete
slabs of certain houses having fallen down, the society resolved
to secure one more report from the structural engineer and as
such forwarded a letter on 15.10.2019 to the structural engineer
refuting him to forward his report and accordingly, a second
report was forwarded on 7.11.2019 whereunder Structural
Engineer opined that buildings are in dilapidated condition and
stated that immediate attention is required to be given.
Respondent No.4 forwarded a communication to the society on
18.12.2019 as to how the rent would be paid to the residential
buildings that would be occupied by the members of the society,
who would be vacating the existing building and taking on rent
different premises for enabling the commencement of
redevelopment project by specifying the mode, method and
period for which the rent would be paid by the developer. On
account of there being a serious threat to the life of the
occupants of the building, the society passed a resolution on
1.1.2020 resolving to hand over possession of the flat, occupants'
right by signing redevelopment agreement and to hand over to
the society, their respective flats for commencement of the rent
payable to each member from 1.2.2020.
42. On perusal of entire records and on bestowing our careful
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and anxious consideration to the rival contentions raised at the
bar, it would emerge therefrom that undisputedly 78 flats were
constructed in the year 1971 over the subject property pursuant
to the permission granted in the year 1969. It is on account of
the physical condition of the building having deteriorated, the
society resolved to re-develop the property namely to put up
residential building along with commercial building for the
benefits of its members. It is in this process, as already noticed
hereinabove, meetings came to be held by the society namely by
the re-development committee constituted for the said specific
purpose, general body meetings of the members were held, the
proposed course of action for undertaking re-development was
also circulated amongst all the members and as already noticed
hereinabove, all the members except four had objected to the
same. Even during pendency of the proceedings, three persons
have consented for the same except 9th respondent.
43. As on today, 9th respondent who is the member of the
Cooperative society, has not raised any dispute before the
competent authority raising any grievance with regard to the
resolution passed by the committee whereunder the society has
resolved to redevelop the property. In fact during the pendency
of the petition before the learned Single Judge, re-development
permission came to be accorded on 05.03.2021 which has not
been challenged by 9th respondent till date. On this short ground
itself, present appeal is liable to be dismissed. However, we
desist from doing so, inasmuch as learned Senior Counsel
appearing for 9th respondent having canvassed several issues as
noticed in the arguments addressed on behalf of 9th respondent.
It would also be apt to notice at this juncture that society sought
for writ of Mandamus to the Corporation to issue license and
permission which came to be granted by the learned Single
Judge. Hence, further prayer was sought for and said amendment
was allowed vide order dated 18.02.2021. This was challenged by
9th respondent in Letters Patent Appeal No. 465 of 2021 and it
was withdrawn on 17.06.2021. During the interregnum period,
re-development permission (raja-chitthi) came to be issued by
AMC and said order dated 05.03.2021 has not been challenged
by the appellant namely 9th respondent till date.
44. Thus, except 9th respondent, no other persons are in
occupation of the building in the subject property and/or
objecting for redevelopment. Even arguments was canvassed that
9th respondent had already shifted from the premises and only
for the purposes of litigating the matter before this Court,
respondent No.9 claims to have continued to be in possession of
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the property. In fact, photographs made available to us during
the course of hearing would also persuade us to disbelieve the
statement made by the learned Senior Advocate Mr. Yatin Oza,
which was to the effect that legal heirs of the appellant are still
in physical possession of the flat.
45. 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."
52. At the outset, it requires to be noticed that by calling upon
the occupant (respondent No.9) to vacate the premises by
issuance of writ of mandamus, there is no order of eviction is
passed. The resolution of the general body of members passed by
the majority (now all the members having consented for
redevelopment except respondent No.9) would indicate that
during the period of redevelopment taking place, all the
occupants of the existing property who are in occupation of their
respective flats would be provided alternate accommodation in a
rented premises and rent of the such premises would also be
paid by the developer himself. Thus, there is no eviction or
dispossession. Eviction in terms of the prevalent rent laws or
ejectment of an occupant from the suit property as contemplated
under the Transfer of Property Act would mean to dispossess a
person in occupation of a premises under the authority of law by
putting an end to such right. In other words, eviction means
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right to reside or occupy ceasing or such right getting terminated
by operation of law. In the instant case, respondent No.9 is
neither dispossessed nor evicted but has only been directed to be
shifted to an alternate premises which she/they would continue
to reside till redevelopment takes place. Temporary shifting of
residents of a premises in redevelopment project would not
amount to dispossession or eviction as sought to be contended. In
fact, appellant is not deprived of the property viz. residential
accommodation at all.
53. It would not be out of context also to refer to the fact that
appellant has not challenged the development permission dated
5.3.2021 (Raja Chitthi). In fact, she has given her consent for
redevelopment and has affixed her signature also to the
resolution of the general body of the members dated 16.6.2019
(Annexure-C at Sr.No.18). In the special general meeting held on
7.10.2018 which was specifically convened for the purpose of
discussing the redevelopment project, appellant herein
participated in the said meeting and has affixed her signature to
the minutes of the meeting at Sr.No.23, wehreunder the issues
relating to appointment of legal adviser for the redevelopment
project, finalising the builder from the offers received for
redevelopment and other incidental works came to be discussed
and resolution passed thereon. In fact, in the affidavit dated
15.9.2019 filed before the learned Single Judge, she has deposed
to the following effect:
"9. I further say and submits that we are neither dissenting from
the project of Re-development nor we are opposing the said
project, but our only point for disagreeing is related to the
allotment of common space of society. In this current re-
development scheme, the allotment of common space of society
is not being done equally amongst the members of the society
and instead it is being done in an irrational way which is the
main ground for the respondents to disagree with the allotment
of common space of the society. The members who hold 94 sq.
var built-up area land would be assigned higher rate of common
plot of the society while rest of the members who holds less
built-up area of land would be assigned lower rate of common
plot of the society which is very irrational and discrimination in
nature." (vide pages 431 and 432 of compilation) (emphasis
supplied)
54. Having affixed their signatures to the resolutions and having
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not questioned the resolutions so passed by taking appropriate
steps, respondent Nos.5 to 8 herein as well as the appellant are
estopped from contending contrary to the same, inasmuch as they
are bound by resolutions for which they have affixed their
signatures. Hence, we are of the considered view that no
prejudice is caused to the appellant or similarly placed persons as
discussed in detail by the learned Single Judge vide paragraph
37. In that view of the matter, we are unable to accept the
contentions raised by learned Senior Advocate appearing for the
appellant.
For the reasons aforestated, we proceed to pass following:
J U D G M E N T
(i) Letters Patent Appeal No. 1075 of 2022 is hereby dismissed;
(ii) The judgment dated 21.6.2022 passed by the learned Single
Judge in Special Civil Application No.8530 of 2019 is affirmed;
(iii) No order as to costs.
(iv) All pending application stands consigned to records."
11.4. In the identical facts, the dispute was with respect to
the residence of Anandvihar Society situated at Vastrapur,
Ahmedabad and the land belonged to the Gujarat Housing Board,
wherein, the original construction was more than 40 years old
and in the meeting held by the society, more than 60% members
/ occupiers have consented to the redevelopment, reconstruction
of the society and in continuation of the same, other meetings
were held. Out of 132 members, 101 members accepted and
signed consent letter including some of the respondents seeking
redevelopment of the society and communication dated
29.11.2018 was sent to the Gujarat Housing Board to consider
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redevelopment of the society and also for further process of
inviting tender. The Gujarat Housing Board has accepted the
decision and took the decision to redevelop the society. In the
aforesaid set of facts, the said petition came to be allowed by the
Court holding that small number of members, holding up
redevelopment which has consent of large majority of members,
and relied on the ratio as laid down by the Hon'ble Apex Court
in Margaret Almedida and others. In view thereof, the aforesaid
subject matter was appeal before the Hon'ble Division Bench,
wherein, the order passed in Special Civil Application No. 12887
of 2020 dated 14.09.2022 came to be confirmed. It is apposite to
refer to Para-8 of the said order passed by the Hon'ble Division
Bench in Letters Patent Appeal No. 336 of 2023, which reads
thus:
"8. We may note that at the inception of the argument in the
present appeal, barring appellant No.3 namely, Chandrakantbhai
Shriram Gupta, all other appellants herein have withdrawn the
instant appeal and the appeal with respect to them has been
dismissed as such on 13.9.2023, The lone appellant who is
agitating the land for redevelopment on various grounds raised in
the appeal, could not dispute that majority of the members of the
society, 82% or more, have consented for redevelopment of the
building in question. No dispute could be raised by the learned
counsel for the said appellant that the building is more than four
decades old and has outlived its life. It has become inhabitable
and is posing risk to the residents of the society. In the light of
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the above admitted fact, only contention of the learned counsel
for the appellant that during the pendency of the civil suit the
learned Single Judge could not have directed to carry out
redevelopment process, is found misconceived. Moreover, from
the above, it is clear that out of 50 plaintiffs, who have filed the
civil suit on 28.11.2019, only few remain who seek to press the
said suit. The lone appellant herein cannot be permitted to stall
the redevelopment process which has already been prolonged for
a period of more than 5 years."
ANALYSIS:
12. Considering the submissions advanced by the learned
advocates appearing for the respective parties and considering the
facts germane for adjudication of the dispute in question,
following emerge for the consideration of this Court:
a. The petitioner society comprises of total 96 residential
units, for which development permission came to be granted on
21.05.1981 (Pg.30-33).
b. The petitioner society in order to execute and
undertake the redevelopment task, held meeting on 25.02.2019,
wherein, it was resolved that considering the structure and
modern requirements, redevelopment of the society was proposed
and it was informed to all the members to get bid offers from
their known and recognized developers for redevelopment of the
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society (Pg.39).
c. On 15.03.2019, the resolution came to be passed by
society for publishing advertisement in daily vernacular
newspaper for redevelopment of society (Pg.41).
d. On 05.05.2019, the newspaper advertisement was
published and developers at large were invited to give their
offers for redevelopment of the society (Pg.46).
e. On 30.08.2019, Pursuant to newspaper advertisement
and out of offers received, offer of Suryam Developers was
finalized and for redevelopment 79 members remained present
and signed the resolution (pg.353A).
f. On 14.12.2020, resolution was passed in the meeting
with the respondent no.3 - developer, for giving a better offer
(Pg.37).
g. On 31.12.2020, resolution was passed by the society,
wherein, final offer from respondent no.3 - Developer was called
for after making changes as per the discussion (Pg.37).
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h. On 30.03.2021, resolution came to be passed by the
society, wherein, the final offer of the respondent no.3 came to
be accepted (Pg. 44).
i. On 19.10.2021, resolution was passed by the society
in its Annual General Meeting and it was decided by majority of
members to enter into MoU with the respondent no.3 and to give
consent for redevelopment. 76 members attended the meeting and
signed the resolution (pg.360A).
j. On 20.12.2021, upon finalizing of developer, 72
members i.e. 75% of members entered into MoU with the
Developer i.e. respondent no.3 (pg. 47-90).
k. That pending the present petition, additional 9
members who were not able to remain present on 21.12.2021
entered into the very same MoU with the developer and
submitted the MoU to the society (page-382).
l. Total 81 members out of 96 members i.e. 84.37%
majority of the members are consenting and are ready for
redevelopment of the society. The offer and understanding in the
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MoU is as under:
"1. Against existing carpet area of approx. 57 Sq. yards 106 Sq.
yards carpet area will be given which is approx 85% additional
carpet area in newly redeveloped project. Therefore, the members
having 1 BHK flat would get 3 BHK Flats.
2. Gift Money of Rs. 4,00,000 will be given to each members at the
time of possession of new flat which members can use as per their
wish for furniture and appliances etc.
3. Transit rent allowance of Rs 15000 Per month till the time of
possession of newly constructed flats to each flat.
4. That the project will be completed in approx. 30 Months after
getting possession of construction and post getting the project
registered under RERA.
5. Rs. 1,00,000/- (One Lakh Rupees) Maintenance Deposit per flat
will be given by the Developer which would ease the burden of
maintenance of new flat on the existing members.
6. That the Developer will not obtain any kind of Project Finance
for the redevelopment project.
7. Stamp Duty and GST and other taxes for the newly constructed
flat for the existing members would be paid by the Developer.
8. Newly constructed flats will have all modern amenities like
Elevators, Club house, Gym, Earthquake resistant RCC Structure,
CCTV Security Coverage, Gas Line Connection and Etc."
13. This Court has also considered the Report by the Civil
Engineer dated 28.08.2019 duly produced at Annexure-G
alongwith the photographs of the structure of the petitioner
society, wherein, it is stated that the said premises are
fragmented and dilapidated. The aforesaid is controverted by the
advocate appearing for the private respondents and has produced
on record the stability certificate (pg. 265) which states that the
building is safe and sound. The aforesaid is controverted by the
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petitioners herein in Para-6 of the Affidavit in Rejoinder (pg.281).
It is reiterated by the respondent no.3 that the aforesaid exercise
of redevelopment is undertaken by the respondent no.3,
considering the stability with respect to the premises in question.
Further, the aforesaid dispute with respect to the structural
stability is required to be considered in accordance with the
provision of Section 41-A of the GOF Act, 1973 and the ratio as
laid down by the Hon'ble Apex Court in Bengal Secretariat Co.
(supra), wherein, it has been held that the decision of the
general body is based on a report by structural engineers, which
remains un-challenged and this Court would not sit in appeal
over the report and the decision was taken by the committee
based on the said report.
14. Considering the dispute in question, it is apposite to
refer Section 41A of the GOF Act, 1973 which reads thus:
"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,
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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."
15. Considering the aforesaid provision, facts and position
of law, notwithstanding anything contained in this Act, any work
in relation to the redevelopment of a building can be carried-out
on such terms and conditions prescribed, after obtaining the
consent of not less than 75% of the flat owners of such building,
however, provided that in respect of such building. Such building
should have completed a period of 25 years from the issuance of
the development permission by the concerned authority. In the
facts of the present case, the development permission came to be
issued by the competent authority in the year 1981 and in view
thereof, the said superstructure having completed a period of 25
years i.e. at least 38 years and in view thereof, for the building
which is 38 years old and for which, the resolution which has
been passed by more than 84% majority, it would be profitable,
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if such redevelopment is undertaken. The petitioners herein
having complied with the requirement of Section 41A of the Act,
the objections raised by the minority members cannot be
considered in view of 84% majority having consented for the
redevelopment and having entered into MoU. The aforesaid MoU
is also not under challenge before any forum. The proceedings
inter-se are pending before the the Registrar, Cooperative
Societies, however, the same cannot be a reason for stalling the
development process. Also, the respondent no.2 - AMC has also
issued Notice under Section 264 of the GPMC Act, which is also
self-explanatory that the building requires repairing, the same
being in dilapidated condition.
16. In the line with the ratio as referred above, in the
opinion of this Court, while various disputed questions of fact are
raised by the respondent nos. 4 to 18 herein with respect to the
MoU signed by the consenting members, the said members have
never approached this Court or any Court or any competent
authority raising their grievances/ objections. Further, in line
with the ratio as referred above, it is not in dispute that the
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general body of the petitioner society has taken a conscious
decision for redevelopment of the society. The majority of the
members have consented to the said redevelopment. Once a
person becomes a member of the cooperative society, he loses his
individuality with the society and he has no independent rights
except those given to the said person by the statue and bye-laws.
The members are required to speak through the society or rather
the society alone can act and speaks qua the rights and duties of
the society as a body. In view of the aforesaid ratio as referred
above, even otherwise the private respondent nos. 4 to 18 lose
their status to object individually.
17. Even if the building is in a good condition, once the
general body of the society comes to a consensus with respect to
the redevelopment and the said resolution having not been
subject the matter of challenge and no fraud less mala-fide
having been alleged, no interference is called for. Merely,
because few members disapproved the decision, the same cannot
be the basis to negate the decision of the general body of the
society, unless it is shown that the decision was the product of
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fraud or misrepresentation or was opposed to some statutory
prohibition. Admittedly, in the facts of the present case, there
are no mala-fides alleged against the general body of the society.
In the opinion of this Court, the decision for redevelopment
requires no interference, 85% of the members having been part
of the said decision, the decision also falls under the ambit of
Section 41 of the GOF Act, 1973.
18. The contention raised by the learned advocate
appearing for the private respondents that no mandamus can be
issued to the private respondents, as there is no provision for
eviction, the declaration is sought against the respondent
Corporation, which is a statutory body. It is well settled position
of law as referred above that in view of the development
permission granted, this Court in exercise of the powers under
Article-226 of the Constitution of India is empowered to direct
the private respondents to handover the possession, pursuant to
the development permission, considering the conditions of the
building. The present petition is also filed by the Society, which
is also registered under the provisions of the Gujarat Cooperative
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Societies Act. Further, there is no eviction in terms of the
prevalent law or eviction of an occupant from suit property
under the provision of the Transfer of Property Act. In the facts
of the present case, the shifting is to reside at alternate
accommodation till redevelopment takes place.
19. The reliance placed by Mr. Patel, learned advocate
appearing for the respondent nos. 4 to 12 on the ratio laid down
by the Hon'ble Division Bench in Letters Patent Appeal No. 634
of 2022 is not applicable to the facts of the present case. In the
facts of that case, co-owners were not joined and further that in
respect of Flat no.2 which was originally owned by father of the
petitioner no.1, the names were mutated and pedigree was
produced giving rise to the dispute about the ownership. There
was a dispute with respect to the ownership and in view thereof,
learned Single Judge in Special Civil Application No. 7197 of
2021 and the Hon'ble Division Bench while deciding the Letters
Patent Appeal arising out of the said SCA, declined to consider
the prayer seeking redevelopment. The said facts raised disputed
question of facts. In the facts of the present case, there is no
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such dispute raised by any of the consenting members, pending
the proceedings before this Court also. For the said reasons and
facts, in the opinion of this Court, the facts are undisputed and
in view thereof, the ratio as laid down by the Hon'ble Division
Bench in Letters Patent Appeal No. 1075 of 2022 reigns the field.
The aforesaid was also considered in an identical issue before the
Hon'ble Division Bench, wherein, identical prayers were allowed.
20. For the foregoing reasons, considering the facilities
that would be provided by the respondent no.3 - Developer as
stated in the affidavit in reply dated 03.08.2022, wherein, the
MoU also states that the respondent no.3 would obtain necessary
registration under RERA Act. The MoU also provides transit
accommodation, additional carpet area that members will be
getting in the redeveloped project, gift money and etc.,
conditions which are in consonance with the statutory provisions
of the Gujarat Ownership of Flats Act and amendments with
regards to redevelopment made therein. Further for the ease of
accounting and classification, a special purpose separate
partnership firms are floated for each project, and therefore,
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getting bank guarantee is though not impossible but difficult for
a new partnership firm. The respondent no.3 - Developer has
already as per the MoU undertaken not to obtain any project
finance and that the necessary registration under the Act and
Rules will be complied with and further the net worth certificate
of the Developer would also suffice the concern of the objecting
members that the Developer is capable to redevelop the project,
and therefore, requirement of bank guarantee pales into
insignificance and even otherwise providing bank guarantee is not
mandatory in nature, and therefore, objections of the objecting
members with regards to bank guarantee are only based on
assumption and apprehension, which would be taken care by
obtaining project finance and by getting the project registered
before the RERA Authority. The respondent no.3 has filed further
affidavit and stated that the society is visually dilapidated and
photographs to that effect were produced at Page-299.
21. In view of the above discussion, the petitioner held to
have followed due procedure for the purpose of redevelopment of
the petitioner society and have fulfilled the conditions, to fall
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within the ambit of Section 41A of the GOF Act, 1973.
22. In view of the aforementioned discussion, exercising
extraordinary jurisdiction under Article 226 of the Constitution of
India, the Petition deserves to be allowed and is accordingly
allowed in Para-8(BB). Rule is made absolute to the aforesaid
extent. No order as to costs. Direct service is permitted.
(VAIBHAVI D. NANAVATI,J)
Further order:
Considering the request made by Mr. Rutvij R. Patel,
learned advocate appearing for the private respondents, the
operation of the present order is directed to be stayed for a
period of four weeks from today.
(VAIBHAVI D. NANAVATI,J)
Pradhyuman
