Girishbhai Sumantlal Darji vs Ahmedabad Municipal Corporation
2023 Latest Caselaw 7180 Guj

                                                                                     NEUTRAL CITATION




    C/LPA/336/2023                               CAV JUDGMENT DATED: 29/09/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 336 of 2023
                                 In
            R/SPECIAL CIVIL APPLICATION NO. 12887 of 2020

                                    With

               CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
                                   In
                R/LETTERS PATENT APPEAL NO. 336 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL                                        Sd/-

and

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE                               Sd/-


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1 Whether Reporters of Local Papers may be allowed to No see the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?

================================================== GIRISHBHAI SUMANTLAL DARJI Versus AHMEDABAD MUNICIPAL CORPORATION ================================================== Appearance:

MR R. M. CHAKWAWALA, WITH MR KISHAN R CHAKWAWALA(9846) for the Appellant(s) No.

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1,2,3,4,5,6,7,8,9, 10, 11 MR ANUJ K. TRIVEDI for Respondent No.1 MR G.H. VIRK WITH MR SIMRANJITSINGH H. VIRK for Respondent No.2 MR ANSHIN DESAI, SENIOR COUNSEL with MR SHRINEEL SHAH, for Respondent Nos.9, 10, 12, 15, 18 to 21, 23 to 26, 28, 33, 34, 36, 38 and 41 MS VENU NANAVATY for Respondent Nos.62 and 64, 67 ==================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL and HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

Date : 29/09/2023 CAV JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. The present intra-court appeal has been filed on 1.2.2023

assailing the judgment and order dated 14.9.2022 passed by the

learned Single Judge allowing Special Civil Application

No.12887 of 2020, with the following reliefs:

"36. In view of the aforesaid discussion, this petition deserves to be allowed in terms of paragraphs 22B, C and D of the petition and is accordingly allowed. The petitioner-society is permitted to act as per the redevelopment agreement. The private respondents are directed to hand over the possession of the respective flats/units for the purpose of redevelopment within a period of eight weeks from the date of receipt of copy of this judgment. Rule is made absolute to the aforesaid extent. No order as to costs."

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2. The appellants herein are original respondents in Special

Civil Application and are assailing the judgment of the learned

Single Judge on the grounds that no direction can be issued by

the learned Single Judge asking the appellants / original

respondents to hand over physical possession of the flats in

question on the premise that the redevelopment plan has been

stalled at the instance of the appellants. The main ground of

challenge to the order passed by the learned Single Judge is

that the relief sought by the original petitioners (respondent

Nos.55 to 97 herein) could not have been granted in view of the

pendency of a civil suit filed by the appellants herein / original

respondents viz. Civil Suit No.1693 of 2019, wherein 50

members of Anand Vihar Society raised a dispute against the

Gujarat Housing Board, as also the developer viz. Siddhi

Developer, with respect to the redevelopment process to be

undertaken by them. It was argued that out of 132 members, 50

members are opposing the redevelopment process and once the

said fact was brought before the learned Single Judge, there

was no occasion for entertaining the writ petition, which was

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filed by few of the members of the society, without any clear

majority. The writ petition has been filed with the main

following reliefs:

"22(B) YOUR LORSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to respondent no.2- Gujarat Housing Board to execute and implement the notices/orders dated 18/19.06.2019, 01.11.2019, 10.2.2020 issued by the Gujarat Housing Board - Respondent no.2 (Annexure-A,B,C,D,E,F) in the interest of justice.

(C) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to the respondents no.1-Ahmedabad Municipal Corporation and respondent no.2- Gujarat Housing Board to take action of removal/demolition of illegal construction as per the Notices/orders dtd.14.08.2020 and 19.08.2020 issued by the Gujarat Housing Board for removal of illegal construction made/constructed by the private respondents in the interest of justice.

(D) YOUR LORDSHIPS may be pleased to direct the Respondent no.1 and no.2 for implementing and processing the Scheme for Redevelopment of Anand Vihar Society situated at Final Plot No.48

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(T.P.Scheme No.31) Village Vastrapur, Taluka Vejalpur, District Ahmedabad admeasuring 4319 sq.mtrs. as per the decision of the Respondent no.2- Gujarat Housing Board and as per the Letter of Acceptance dtd.21.06.2019 in the interest of justice.

(E) Pending admission, hearing and final disposal of the petition, YOUR LORDSHIPS may be pleased to direct the Respondent no.2-Gujarat Housing Board to immediately implement the notices within a time frame and take appropriate steps to evict and vacate the private respondents so as to effectively implement the redevelopment project of Anand Vihar Society in the interest of justice."

3. The facts relevant to decide the controversy at hand are

that Anand Vihar Co-Operative Housing Society is a society of

Gujarat Housing Board, having Final Plot No.48 (T.P. Scheme

No.31), admeasuring 4319 sq. mtrs. at Village: Vastrapur,

Taluka: Vejalpur, District: Ahmedabad, and consists of total 132

members, who are occupying the residential flats built on the

said plot. On 21.3.2018, in the general meeting of the society,

60% of the flat owners had consented for redevelopment of the

society. On 29.11.2018, consent of 101 members was sent to the

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Gujarat Housing Board to grant permission for redevelopment

and to invite tender for the same. On 18.2.2019, a public notice

was issued inviting tender and redevelopment of the said

society. Respondent No.4 viz. Siddhi Developers was engaged as

developer for redevelopment of the said society and accordingly

the letter dated 21.6.2019 was issued to the developer to go

ahead with the redevelopment plan. It seems that Civil Suit

No.1693 of 2019 was filed by 50 members of the said society on

28.11.2019 opposing the redevelopment process, terming it as

illegal. A perusal of the plaint indicates that the civil suit was

filed with the reliefs as follows:

"(21)(A) The disputed property as stated in the Para-2 of the Suit Application, which is situated in District Sub District Ahmedabad, Anandvihar Flats, Near Himmatlal Park, Ambavadi, which is having Regsitration as Anandvihar Apartment Association, vide Regsitered No.5/22-8-1983 and regarding the disputed property of having all the flats, the Defendant No.1 and 2 have started the procedure of Re-Development, hence it is requested to pass the order that, the Defendant No.1 and 2 have not any legal right or power to make such proceeding without written consent of the plaintiffs.

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(B) The disputed property as stated in the Para-2 of the Suit Application, which is situated in District Sub District Ahmedabad, Anandvihar Flats, Near Himmatlal Park, Ambavadi, which is having Regsitration as Anandvihar Apartment Association, vide Registered No.5/22-8-1983 and regarding the disputed property of having all the flats, the Defendant No.1 and 2 of this case and his accomplices, servants, agents, officers or office- bearers shall nto execute any proceeding of Re- Development without consent of the Plaintiffs or shall not commit any fraud regarding the proceeding of Re-Development or they shall not commit such act so as to create any loss to the actual possession and using right of the Defendants, hence pass such Permanent Injunction Order against the Defendant No.1 and 2 and in in favour of the Plaintiffs."

4. The main ground of challenge, from a perusal of the plaint,

indicates that the plaintiffs therein had opposed the

redevelopment plan on the ground that the defendants therein

viz. Gujarat Housing Board and Siddhi Developers cannot

commence the procedure of redevelopment as they have no

right to proceed without written consent of the plaintiffs. It is

stated therein that the plaintiffs were occupying the flats

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developed by Gujarat Housing Board on allotment or owners of

the respective flats. There is no requirement of reconstruction.

The entire procedure adopted by the defendants in proceeding

for redevelopment and engagement of the developer is faulty.

5. We may note that no interim injunction has been granted

to the plaintiffs in the aforesaid civil suit. The appellants herein

claim to be the plaintiffs in the said suit.

6. Be that as it may, we may record that there is no dispute

about the fact that the resolution to go for redevelopment was

passed in the general meeting of the society on 21.3.2018. 60%

of the members have consented for redevelopment, the

reconstruction of the society and in continuation of the same,

subsequent meetings were held and with the consent of the

members, the proposal was sent to the Gujarat Housing Board

by the society on 29.11.2018 to consider the redevelopment of

the society. It is also undisputed, as has been recorded by the

learned Single Judge, that the Gujarat Housing Board has

accepted the proposal of the society and took the decision to

redevelop the society. It is recorded by the learned Single Judge

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that while considering the proposal of redevelopment, the

Gujarat Housing Board has given consideration to the attending

circumstances of the building being in dilapidated condition due

to passage of time of more than four decades. The structure was

declared unstable and it was opined that it would be posing risk

to the residents of the society. After issuing public notice and

completion of the process for engagement of developer,

finalisation of the tender, letter of acceptance dated 21.6.2019

was issued to Siddhi Developer, respondent No.4 in the writ

petition and about 60 members had vacated the premises

immediately and handed over the possession to the developer,

who has started releasing the rent since October 2019 in favour

of those members. It is noted by the learned Single Judge from

the material placed on record that it is clear that the resolution

of the society was having consent of more than 60 members, as

required under Section 41F of the Unamended Act, as per the

policy of the State Government. The amendment to Section 41A

of the Gujarat Ownership Flats Act, 1973, which came into force

on 21.5.2019, provided that any work in relation to the

redevelopment of the building can be carried out on such terms

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and conditions as may be prescribed, after obtaining the

consent of not less than 75% of the flat owners of such building.

It is further noted in the judgment impugned that with the

passage of time, more than 82% members have consented in

favour of the redevelopment. The structural engineers after

assessment of the condition of the building gave a stability

certificate dated 15.3.2019, wherein final finding was that the

building blocks even after extensive repair work cannot become

safe and sound for human habitation. Recommendation was

made to reconstruct to make it habitable again. In July 2019,

notarised consent agreement came to be executed by around 80

members consenting to accept the redevelopment scheme and a

tripartite agreement dated 3.3.2020 had been executed between

65 members of the society, Gujarat Housing Board and Siddhi

Developers, agreeing upon the detailed terms and conditions of

the whole redevelopment scheme. Taking note of the above, the

learned Single Judge has drawn an opinion that there is a valid

agreement executed in favour of the developer by the members

of the Society as well as Gujarat Housing Board who is the

owner of the land. Section 41A of the Gujarat Ownership Flats

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Act, 1973 contains a provision to carry out redevelopment work

of a building, which has been amended to provide that such

work can be conducted after obtaining consent of not less than

75% of the flat owners of such building.

7. There is no dispute about the fact that more than 75% of

the flat owners have consented for redevelopment.

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 the above admitted fact, only

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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.

9. For the above, in view of the findings returned by the

learned Single Judge, we do not find any merit in the appeal.

The appeal is dismissed, accordingly. No order as to costs.

10. In view of the dismissal of the appeal, civil application

does not survive and it stands disposed of.

Sd/-

(SUNITA AGARWAL, CJ)

Sd/-

(ANIRUDDHA P. MAYEE, J.) Bharat