Gujarat High Court
Rutul Park Cooperative Housing Society ... vs State Of Gujarat on 18 April, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9304 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RUTUL PARK COOPERATIVE HOUSING SOCIETY LTD. & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS AMRITA M THAKORE(3208) for the Petitioner(s) No. 1,2,3
MS DHWANI R TRIPATHI, AGP for the Respondent(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2,3
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2,3,4
MR VICKY B MEHTA(5422) for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 1,5
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 18/04/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 of the
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Constitution of India, the petitioners herein have prayed for the
following reliefs:
"7. In the aforesaid premises, the petitioners pray as under:
A. This Hon'ble Court 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:
(i) Holding and declaring that the action of the respondent authorities
of directing the petitioner no. 1 society and its members to repair and
secure the dilapidated, dangerous and ruinous structure of the
petitioner no. 1 society instead of taking appropriate steps to have the
dangerous structure vacated/evicted and demolished, is without any
application of mind, unconstitutional, unreasonable, irrational,
unjustified, and amounts to a refusal to perform their duty under the
provisions of the Gujarat Provisional Municipal Corporations Act, 1949
and is in clear disregard and contravention of the provisions of the
Gujarat Ownership Flats Act, 1973.
(ii) Quashing and setting aside the notice dated 3.6.2022 issued by the
respondent authorities to the extent that it seeks to direct the
petitioner no. 1 society and its members to repair and secure the
dilapidated, dangerous and ruinous structure of the petitioner no. 1
society instead of taking appropriate steps to have the dangerous
structure vacated/ evicted and demolished.
B. This Hon'ble Court 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 directing the respondent no. 6 to vacate his Flat No.
A/1 in the petitioner society within such period as this Hon'ble Court
considers appropriate, and further directing that if the respondent no.
6 fails to do so, the respondent nos. 2 to 4 authorities are to take
appropriate steps for vacating/evicting the respondent no. 6 and
demolishing the dangerous and dilapidated structure of the petitioner
no. 1 society in terms of and in exercise of powers and duties under
the provisions of the Gujarat Provisional Municipal Corporations Act,
1949.
C. Pending the admission, hearing and final disposal of the present
petition, this Hon'ble Court may be pleased to stay and suspend the
operation and implementation of the respondent authorities' direction,
as contained in the notice dated 3.6.2022, directing the petitioner no.
1 society and its members to repair and secure the dilapidated,
dangerous and ruinous structures of the petitioner no. 1 society.
D. Pending the admission, hearing and final disposal of the present
petition, this Hon'ble Court may be pleased to direct the respondent
no. 6 to vacate his Flat No. A/1 in the petitioner society within such
period as this Hon'ble Court considers appropriate, and further direct
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that if the respondent no. 6 fails to do so, the respondent nos. 2 to 4
authorities are to take appropriate steps for vacating/ evicting the
respondent no. 6 and demolishing the dangerous and dilapidated
structure of the petitioner no. 1 society in terms of and in exercise of
powers and duties under the provisions of the Gujarat Provisional
Municipal Corporations Act, 1949.
E. Ex parte ad interim relief in terms of prayers C and D hereinabove
be granted.
F. Such other and further reliefs as may be deemed fit in the facts of
the present case may be granted."
2. The petitioner No. 1 is a co-operative housing society
registered under the provisions of the Gujarat Co-operative
Societies Act, 1961 vide registration No. GH 7007 dated
23.03.1978 and is the owner of land admeasuring 1000 sq. mt.
in Final Plot No.117 paiki in T.P. Scheme No.19 in Mouje :
Sheikpur-Khanpur, Ahmedabad - 3 (Memnagar Vibhag), Taluka
: Sabarmati, District: Ahmedabad. The aforesaid is situated
near Navrang Six Road, Naranpura, Ahmedabad. In 1978, a
residential structure comprising of total 12 residential
apartments (3 A type flats each admeasuring 175 sq. yd. Super
built up area, 3 B type flats each admeasuring 126 sq. yd.
Super built up area, 3 C type flats each admeasuring 93 sq. yd.
Super built up area and 3 D type flats each admeasuring 134
sq. yd. Super built up area) was constructed and these flats
were allotted to various persons. These flats are known as
"Rutul Park Apartments". The petitioner No.2 is the Chairman
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and the petitioner No. 3 is the Secretary of the petitioner No. 1
society.
2.1 The construction of the flats is more than 45 years old
and is in a highly dilapidated and dangerous state and is
structurally unsafe and not repairable any more. There are
corrosion in many of the RCC slabs, beams, columns and
foundation due to long term seepage of rain water and water
leakages in service lines can be seen. The structure is so
ruinous that it cannot withstand the weight of the walls and
slabs of upper floors for long. A copy of the report of the
structural engineer dated 21.05.2022 in regard to the state of
the structures and best course of action along with
photographs of the structures is duly produced at Annexure -
A.
2.2 The respondent - Corporation in its impugned notice
dated 03.06.2022 declared the structures to be dangerous and
ruinous but asked the petitioner society to repair the same. A
copy of the said notice is duly produced at Annexure - B. Thus,
the structures pose great danger to the lives of persons
occupying and visiting the same and are also likely to cause
damage to the surrounding properties when they fall.
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2.3 The repairing and restrengthening of these structures is
not feasible and even if feasible, would involve reconstruction
right from the foundation which, even if possible, would be an
impractical and herculean task requiring enormous amounts of
money which the society and its members would not be in a
position to afford. Moreover, embarking on a project of
repairing such structure would mean that the members of the
society would have to vacate their respective apartments and
find alternate accommodation at their own cost during the
course of such work, which would also be very expensive for
the members and most of the members may not be in a
position to afford it. The practical solution to the aforesaid
problem was for the society to be redeveloped as
contemplated under the Gujarat Ownership Flats Act, 1973, a
copy of which is duly produced at Annexure - C.
2.4 In line of the aforesaid, the members of the petitioner
society decided to go for redevelopment. Starting from 2018, a
thorough process was followed by the petitioner society and
after detailed discussions on various aspects of
redevelopment, an Architect was appointed. A project report
was prepared by the Architect, tenders were invited and 2
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developers were shortlisted out of the 5 offers received.
Ultimately, majority members agreed to go with the offer of
the respondent No.5 and approved the draft Memorandum of
Understanding (MOU) and proposal floor plan of the
respondent No.5. Copy of the relevant resolutions of the
petitioner society in connection with the redevelopment are
duly produced at Annexure - D colly. and copy of the project
report prepared by Architect M/s. Establish Designs is duly
produced at Annexure - E.
2.5 Memorandum of Understanding (MOU) came to be
entered into by the 10 out of 12 members with regard to the
redevelopment with the respondent No.5 on 10.04.2022. A
copy of the said MOU is duly produced at Annexure - F. State
Bank of India, which is a member of the petitioner society
having flat No.C/1, has also given approval for redevelopment
and has informed the petitioner society that upon completion
of certain internal processes/formalities/approval, it would also
sign the MOU. Copies of the letters issued by the State Bank of
India in this regard are duly produced at Annexure - G. Thus,
91.67% of the members have consented for redevelopment
which is far more than the prescribed minimum 75% under
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Section 41A of the Gujarat Ownership Flats Act, 1973.
Therefore, the proposed redevelopment is in-consonance with
the provisions of the Gujarat Ownership Flats Act, 1973.
2.6 The respondent No.6 has not consented for
redevelopment and is not willing to sign the MOU for
redevelopment despite repeated requests by the petitioner
society. In fact, the respondent No. 6, has been addressing
letters alleging false and baseless allegations even though all
relevant information with regard to redevelopment has been
provided and discussed with the members in the meetings
held for the redevelopment. The respondent No.6 resides in
flat No.A/1 of the petitioner society and hence, the allegations
of the respondent No.6 being not aware of the redevelopment
process/meetings is ex-facie false apart from being belied by
the record. Copy of the notice dated 23.04.2022 issued by the
respondent No.6 through his advocate and the reply dated
09.05.2022 issued by the petitioner society through its
advocate are duly produced at Annexure - I colly. Further,
along with the reply dated 09.05.2022, the petitioner society
had enclosed the copy of MOU dated 10.04.2022 executed
with the respondent No.5 which provides all information of the
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proposed redevelopment.
2.7 The respondent No. 6 was also requested to come and
peruse all available documents and information with regard to
redevelopment which are with the society's office but the
respondent No.6 never did so. In any case, once far more than
the required 75% members have agreed for redevelopment
and signed MOU, the respondent No. 6 is not entitled to raise
objections or to stall redevelopment.
2.8 All the efforts to convince the respondent No.6 to co-
operate in the redevelopment process are in vain. The law
provides for redevelopment on the basis of the consent of 75%
of the members for redevelopment and hence, the respondent
No. 6 has no legal right to create any hindrances to
redevelopment. The petitioner society has no other alternative
but to address letter dated 03.08.2022 to the respondent
authorities inter-alia pointing out that the petitioner society
has decided to go for redevelopment by requisite majority and
has requested the respondent authorities to exercise their
powers under the provisions of the Gujarat Provincial Municipal
Corporations Act, 1949 to get the dangerous structure of the
petitioner society vacated and demolished, so as to enable the
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society and the respondent No.5 to take forward the
redevelopment of the society. Copy of the said letter dated
03.08.2022 is duly produced at Annexure - J. However, no
action as contemplated under the aforesaid laws is undertaken
by the respondents.
2.9 In the aforesaid set of facts, the petitioners herein are
constrained to approach this Court seeking the reliefs as
referred above.
3. Heard Ms. Amrita M. Thakore, learned advocate
appearing for the petitioners, Mr. Deep D. Vyas, learned
advocate appearing for the respondent Nos.2 and 3 and Mr.
Vicky B. Mehta, learned advocate appearing for the respondent
No.6.
4. Ms. Amrita M. Thakore, learned advocate appearing for
the petitioners, submitted that the petitioner society is in
dilapidated and dangerous and ruinous structure which form
part of the residential flats and instead of taking steps for
repairing work pursuant to the Notice dated 03.06.2022 issued
by the respondent - AMC under section 264 of the Gujarat
Provisional Municipal Corporations Act, 1949, the majority of
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the members of the petitioner society consented to go for
redevelopment. It was submitted that 11 members out of 12
members having consented, at the instance of objection raised
by 1 member, the petitioner society is unable to go for
redevelopment. It was submitted that the petitioner society
has acted in accordance with the Gujarat Ownership Flats Act,
1973 and fulfils the requirements and conditions under Section
41A of the Act i.e. the petitioner society is more than 45 years
old having registered in the year 1978; and 91.67% of the
members have given their consent and the Structural Engineer
report dated 21.05.2022 having opined that the building
structure is damaged heavily and not in a position to repair. It
may cause accident during earth quake or any natural
calamities. It may further damage in normal weather also and
the future estimated life of apartment may be almost
completed, further immediate action must be taken to ensure
resident's safety. Reliance was placed on the report of the
Structural Engineer dated 21.05.2022 along with the
photographs duly produced at Annexure - A and it was
submitted that the said photographs demonstrate that the
building is in dilapidated and dangerous condition. Reliance
was placed on the Memorandum of Understanding (MOU)
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which is executed on 10.04.2022 between the members of the
society and the respondent No.5. It was submitted that the
State Bank of India, which is a member of petitioner society
having flat No.C/1, has also given approval for redevelopment
and has informed the petitioner society that upon completion
of certain internal processes/formalities/approval, it would also
sign the MOU. Reliance was placed on the letters issued by the
State Bank of India duly produced at Annexure - G.
4.1 Placing reliance on the aforesaid submissions, it was
submitted that the respondent No.6 with ulterior motive, has
been addressing false and frivolous letters making absolutely
false and baseless allegations even though, all the information
has been provided by the petitioner society, discussed with
members in the meetings held for the said purpose and
documents and records pertaining to redevelopment are
available in the petitioner society's office which can always be
perused by the respondent No.6. It was submitted that the
respondent No.6 resides in flat A/1 of the petitioner society and
hence, allegation of not being aware of the redevelopment
process/meetings, cannot believable. It was submitted that
pursuant to the notice issued by the respondent No.6 through
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advocate dated 23.04.2022, the petitioner society replied to
the same by communication dated 09.05.2022 attaching along
with the said reply a copy of the MOU dated 10.04.2022
executed with the respondent No.5 which provides all the
information of the proposed redevelopment. It was submitted
that the respondent No.6 was also requested to perused all the
documents available and information with regard to the
redevelopment available with the petitioner society's office. It
was lastly submitted that once 75% of the members have
agreed for redevelopment and signed the MOU as provided
under section 41A of the Act, the respondent No.6 is not
entitled to raise objections to stall redevelopment. Placing
reliance on the aforesaid submissions, Ms. Thakore, learned
advocate, submitted that the present petition be allowed.
5. Mr. Vicky B. Mehta, learned advocate appearing for the
respondent No.6, placed reliance on the affidavit-in-reply filed
by the respondent No.6 duly produced at page 298 and
submitted that though majority of members have consented
for the redevelopment, the opinion of respondent No.6 also
matters. It was submitted that the Notice issued by the
respondent - Corporation was under section 264 of the Gujarat
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Provincial Municipal Corporations Act, 1949 which provides for
repairing work that may be undertaken by the petitioner
society herein. No notice under section 268 of the Act is
issued. Mr. Mehta, learned advocate, disputed the opinion of
the Structural Engineer dated 21.05.2022. It was submitted
that the respondent No.6 is holding ground floor unit of the
building. Surrounding the flats, there is a open space and
margin. Reliance is placed on the Resolution being Resolution
No.3 dated 14.05.1978 passed by the petitioner society
holding that the persons who are occupants of ground floor
premises would be permanently granted open space of their
respective flats. It was submitted that by virtue of the said
resolution, the respondent No.6 is also the owner/occupier of
the margin area/open land surrounding his ground floor flat.
The said resolution still holds good. It was submitted that the
respondent No.6 herein has preferred an application dated
02.02.2024 seeking regularization under GRUDA, 2022 and has
also preferred Lavad Suit which is pending adjudication before
the competent authority. Reliance was also placed on the
photographs produced along with affidavit at page 315. Placing
reliance on the aforesaid submissions, Mr. Mehta, learned
advocate, submitted that the present petition be dismissed.
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6. Mr. Deep D. Vyas, learned advocate appearing for the
respondent Nos.2 and 3, submitted that the Structural Stability
Certificate is issued by the Authorized Structural Engineer
(Grade-I) having issued license bearing AUDA LIC
No.1114SE0203251013 and in accordance with Section 41A of
the Act. Mr. Vyas, learned advocate, further submitted that
the application seeking regularization of the unauthorized
development under Section 5 of the GRUDA, 2022, clearly
demonstrates that the respondent No.6 is in unauthorized use
of the premises-in-question.
6.1 Reliance is placed on Section 8(3)(d) and Section 11(2) of
the GURDA, 2022. Placing reliance on the same, Mr. Vyas,
learned advocate, submitted that Section 8(3)(d) provides for
structural stability requirements as per the CGDCR and Section
11(2) of the GRUDA, 2022 provides for any decision under the
Act shall not deemed to have decided the ownership of the
unauthorized development.
Analysis:-
7. Having heard the learned advocates appearing for the
respective parties, following emerge:
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7.1 The petitioner society was constructed in the year 1978
with total 12 flats of different sizes. Development permission/
Rajachitti was issued on 27.02.1978 duly produced at page
352. Building use permission was received on 08.09.1978 duly
produced at page 351. Registration Certificate was issued on
23.03.1978 by which the petitioner society was registered is
duly produced at page 355. From the aforesaid documents, it
emerges that the flats are more than 25 years old i.e. 46 years
old.
7.2 This Court has perused the report of the Structural
Engineer dated 21.05.2022 duly produced at Annexure - A
along with the photographs duly produced at page 27 which
states that the building-in-question is in dilapidated and
dangerous condition and the same are so heavily damaged
that not in a position to be repaired. This Court has also
perused the Notice issued by the respondent - AMC dated
03.06.2022 duly produced at page 40.
7.3 The MOU dated 10.04.2022 entered into between the
parties also provides for the following amenities:
a. Larger Size of flats
b. Specification
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c. Lift, Bore, Water Tank, Solar Panel etc.
d. Rent
e. Gift Money
f. Transportation cost
g. Furniture and Fixure amount
h. Bank Guarantee
7.4 By way of further affidavit, which is duly produced at
page 397, the respondent - State Bank of India, who is owner
of flat C/1 in the petitioner society and who had earlier given
in-principle consent for redevelopment, has thereafter signed
MOU on 05.05.2023 which is duly produced at page 398.
8. At this stage, it is apposite to refer to Section 41A of the
Gujarat Ownership Flats 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, 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."
9. The objections raised by the respondent No.6 with
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respect to the maintainability of the present petition is no
longer res-integra in light of the judgment dated 21.06.2022
passed in Special Civil Application No.8530 of 2019 duly
confirmed in Letters Patent Appeal No.1075 of 2022 by order
dated 23.01.2023 and the judgment dated 09.11.2023 passed
in Special Civil Application No.11314 of 2022 wherein, the
prayers as prayed for by the petitioners are held to be
maintainable. The redevelopment is accepted and consented
by more than 75% members.
9.1 In the facts of the present case, in light of Section 41A of
the Act, 1973, (i) 11 out of 12 members i.e. 91.67% members,
have consented and signed the MOU which is entered into by
the petitioner society with the respondent No.5 (ii) the report
of the Structural Engineer dated 21.05.2022 duly produced at
Annexure - A, stating that the buildings are in extremely
dilapidated and dangerous condition and (iii) the building are
more than 46 years old.
9.2 The queries of the respondent No.6 have been dealt with
and replied to by the petitioner herein. Each and every
communication by the respondent No.6 has been answered
and replied to by the petitioner herein. This Court has perused
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the aforesaid communications between the petitioners and the
respondent No.6.
10. This Court has considered the submissions advanced by
Mr. Mehta, learned advocate appearing for the respondent
No.6, that the respondent No.6 has applied for regularization
under Section 5 of the GRUDA, 2022.
10.1 From the aforesaid, it emerges that the respondent No.6
is in unauthorized use of the residential premises for
commercial purpose and has applied for regularization of said
unauthorized construction. Section 11(2) of the GRUDA, 2022
provides that any decision under the said Act shall not
determine ownership rights of the unauthorized development.
The pendency of such application before the competent
authority, in the opinion of this Court, cannot stall the process
of redevelopment.
10.2 In the facts of the present case, the report of the
Structural Engineer dated 21.05.2022 is on record wherein, it
is certified that the building is in dilapidated and dangerous
condition and the same are so heavily damaged that the same
are not in a position to be repaired.
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10.3 Mr. Mehta, learned advocate, has disputed the
opinion/certificate of the Structural Engineer dated 21.05.2022.
In the opinion of this Court, the said Certificate dated
21.05.2022 is duly certified by the registered Structural
Engineer (Grade - I) bearing AUDA LIC No.1114SE0203251013
and is such that the same can be considered for adjudication
of dispute in accordance with section 41A of the Act. The
photographs which are relied upon by the respective parties,
pale into insignificance once, there is a report of the Structural
Engineer on record stating that the building is in dilapidated
and dangerous condition.
10.4 Further, the submission made by Mr. Mehta, learned
advocate appearing for the respondent No.6, that by virtue of
resolution No.3 dated 14.05.1978 the respondent No.6
assumes ownership rights qua the open space, in the opinion
of this Court, the resolution cannot confer or take away any
rights qua ownership. It is also pertinent to note that the said
Resolution dated 14.05.1978 stand withdrawn. Further, the
Resolution dated 14.05.1978 itself does not confer the
ownership rights. It only resolves to allow the ground floor flat
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owners to use open space around the flats and for second floor
owners to use terrace. The said Resolution dated 14.05.1978 is
duly produced at page 317. Once the society decided to go for
redevelopment, the society passed another Resolution in its
General Body Meeting on 10.07.2021, revoking the earlier
Resolution dated 14.05.1978 and resolved that all the
members would be entitled to use ground floor open spaces
and terraces in the redeveloped structure, as is within the
society's power to do. The said Resolution is duly produced at
page 81 and 82 to the petition.
In light of the aforesaid, the contentions raised by Mr.
Mehta, learned advocate appearing for the respondent No.6,
objecting to the redevelopment of the petitioner society, does
not weigh with this Court.
11. At this stage, it is apposite to refer to the ratio as laid
down by the Hon'ble Supreme Court in Civil Appeal No.7261 of
2022 dated 13.10.2022 in case of Bengal Secretariat Co.op.
Land Mortgage Bank and Housing Society Ltd. vs. Sri Aloke
Kumar & Anr. Paragraphs 52 to 58 of the said decision read
thus:
"52. It is not in dispute that the General Body of the Appellant
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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 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 Act or 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
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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 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;
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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 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.
12. It is also apposite to refer to the decision dated
08.12.2023 passed by this Court in Letters Patent Appeal
No.1427 of 2023. Paragraphs 8 to 12 of the said decision read
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thus:
"8. Having extensively gone through the provisions of Section 41-A
read with the Rules 18 to 25 made thereunder, we record that the
society for carrying out redevelopment work of the building has to
follow the terms and conditions as laid down in Section 41-A which
are :-
(i) The building shall have completed the period of twenty-five years
from the date of issuance of the development permission by the
concerned authority;
(ii) The concerned authority has declared the building being in ruinous
condition, i.e. declared it dilapidated and dangerous to any person
occupying, resorting to or passing by such structure or any other
structure or place in the neighborhood thereof;
(iii) Consent of not less than 75% of the members of the building for
redevelopment of the building has been obtained. 9. There is no
dispute about the fact that the above noted three conditions for
redevelopment project/work of the building in question has been
fulfilled in the instant case. No such dispute has been raised that the
concerned authority has not declared the building being in ruinous
condition. The only dispute raised by the appellants (fifteen numbers
of the society) is that the building is not in dilapidated condition, based
on an alternative report of Structural Engineer. The said issue, as
rightly held by the learned Single Judge, cannot be examined by us as
a Court of appeal. The fact remains that the concerned authority,
namely the Ahmedabad Municipal Corporation had issued a notice
dated 19.05.2022, about three and a half years back, directing for
carrying out major repairs of the building in question noticing that the
building is in ruinous condition. More than 75% of the members have
agreed for redevelopment and there is no dispute about the said fact.
There is also no dispute about the date of development permission
having been granted for the building as disclosed in the writ petition.
10. The only dispute which is being raised before us is about the
procedure for redevelopment having not been followed by the
concerned body of the society. In this regard we may note that a detail
procedure under Rules 19 to 25 has been prescribed wherein it is
provided that for making decision to undertake the redevelopment of
the building, the Managing Committee or the body shall convene the
special general meeting of the cooperative society or association. The
Rules and the by-laws of the society with respect to convening of such
meetings, such as notice, circulation of agenda items, quorum at the
meetings, taking policy decisions, entering into an agreement,
supplying the minutes of meeting of the members, etc. shall be
applicable in the matters relating to redevelopment project. Sub-rule
(3) of Rule 19 provides that the Managing Committee shall place
before the general body the agenda items for taking policy decision
relating to redevelopment of building; and for appointment of the
Architect/ Project Management Consultant to prepare the
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redevelopment project. The special general body meeting shall take a
decision with the consent of not less than 75% of the total members of
the body for redevelopment of the building and select an
Architect/Project Management Consultant to prepare the
redevelopment project. The general body may authorize the Managing
Committee to take all further necessary actions/steps for
redevelopment project. To the above procedure, no illegality can be
pointed out by the learned counsel appearing for the appellants. Rule
20 further provides that the Architect / Project Management Consultant
appointed by the Committee as per the decision taken at the special
general meeting, shall prepare the project report within two months
from the date of appointment and submit the same to the Managing
Committee. The project report contains the details as mentioned
therein. It is further provided that the Architect/Project Management
Consultant after preparation of the project report shall invite offers
from the eligible contractors/builders/company or developer. Rules 21
and 22 provide the manner in which the selection of developer is to
take place. In this regard, relevant is to note that the offer given by the
respondent No.3 Developer for redevelopment of the society has been
considered in the meeting dated 31.12.2020 of the society and the
changes were suggested in the discussion. After incorporating those
changes, the final offer of respondent No.3 has been accepted on
30.03.2021. Till date, only a Memorandum of Understanding has been
arrived with the respondent No.3 Developer and no Development
Agreement has so far been signed. Rule 23 provides the terms and
conditions to be approved in the special general body meeting of the
society to enter into a Development Agreement with the developer in
consultation with Architect/Project Management Consultant. The
conditions to be incorporated in the Development Agreement, amongst
others, shall contain the conditions laid down in Clauses (i) to (x). Rule
24 provides that the developer will not be able to make any changes in
the building plan except with the written permission of the Managing
Committee. The procedure for allotment of new flats has been
provided in Rule 25.
11. Taking note of the above provisions of the Rules made under the
Gujarat Ownership Flats Act, 1973, we are of the considered opinion
that due care has been taken by the Legislature to address the
concern of the appellants herein. The appellants can dispute the
conditions of the Development Agreement, if not properly incorporated
and shall have a right to participate in the process of development in a
constructive way. However, 15 members out of total 96 members of
the society cannot be permitted to stall the process of redevelopment
only on their own suspicions and notions. There are no allegations of
fraud or violation of any of the procedures prescribed in the Rules as
noted hereinabove.
12. For the above reasoning in addition to the reasoning given by the
learned Single Judge, we do not find it a fit case to interfere. The
appeal is found devoid of merits and hence, dismissed. The appellants
are directed to cooperate in the process of redevelopment of the
society by giving constructive suggestions in the matter of entering of
Development Agreement with the selected developer."
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13. It is also apposite to refer to the decision dated
23.01.2023 of the Division Bench of this Court in Letters Patent
Appeal No.1075 of 2022. Paragraphs 48, 52 and 54 of the said
decision read thus:
"48. The contention of Mr. Oza, learned Senior Advocate that there is
no provision under the Gujarat Ownership Flats Act for providing
summary eviction of a nonconsenting member unlike the provision
under the Maharashtra Housing and Area Development Act, 1976 or
The Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971, providing for such eviction and as such
Writ Court could not have issued a Writ of Mandamus to the contesting
respondents to quit and handover vacant possession of their flats, is
no doubt an attractive argument which requires to be brushed aside,
inasmuch as the Hon'ble Apex Court in the case of Binny Ltd. and Anr.
versus V. Sadasivan and Others reported in (2005) 6 SCC 657, has held
that the High Court under Article 226 of the Constitution of India is
empowered to issue Writ on the principles that it is a public law
remedy and available against a body or persons performing public law
function. In fact, the learned Single Judge had taken note of
observations made by the Hon'ble Apex Court in the case of Dwarka
Nath versus Income Tax Officer, reported in 1965 3 SCR 536,
whereunder it has been held to the following effect:
"6. This article is couched in comprehensive phraseology and it ex
facie confers a wide power on the high court to reach injustice
wherever it is found. The constitution designedly used a wide language
in describing the nature of the power, the purposes for which and the
person or authority against whom it can be exercised. It can issue writs
in the nature of prerogative writs as understood in England; but the
scope of those writs also is widened by the use of the expression
"nature", for the said expression does not equate the writs that can be
issued in India with the those in England, but only draws in analogy
from them. That apart, High Courts can also issue directions, orders or
writs other than the prerogative writs. It enables the High Courts to
mould the reliefs to meet the peculiar and complicated requirements
of this country. Any attempt to equate the scope of the power of the
High Court under Article 226 of the Constitution with that of the
English courts to issue prerogative writs is to introduce the
unnecessary procedural restrictions grown over the years in a
comparatively small country like England with a unitary from of
Government to a vast country like India functioning under a federal
structure. Such a construction defeats the purpose of the article itself."
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
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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 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.
54. . Having affixed their signatures to the resolutions and having
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."
14. Considering the aforesaid position of law and the facts of
the present case, once the project of redevelopment is
undertaken by the society and there is consent of more than
75% members as also the flats-in-question are more than 31
years old, the objections raised by the individual members are
not maintainable. The project of redevelopment undertaken by
the petitioner society is required to be proceeded further. This
Court deems it fit to exercise powers under Article 226 of the
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Constitution of India as the decision taken for the
redevelopment is in larger public interest and provides for the
benefits to the house holders/flat owners and the property
right of any occupier would not be affected and every occupier
will get a new unit against their occupation and in the opinion
of this Court, in the redevelopment process when almost all
the member, except 1 member, have given consent for
redevelopment, at the instance of the 1 member, the consent
of the majority members should not suffer.
15. At the cost of repetition, it is required to be observed that
the construction of the building is old and damaged and the
report of the Structural Engineer dated 21.05.2022 also states
that the building is in dilapidated condition, under such
circumstances, in the interest of the residents of the
building/flats, the decision of redevelopment appears to be
taken in good faith and such process cannot be stalled at the
instance of the 1 members who objected to such
redevelopment for their personal grievances.
16. Even otherwise, the Hon'ble Division Bench in Letters
Patent Appeal No.1427 of 2023 by order dated 08.12.2023, has
extensively explained the procedure of redevelopment under
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Rules 19 to 25 in paragraph 10 of the said order wherein, the
Hon'ble Division Bench has held that it is only at the stage of
MOU between the petitioner and the respondent No.3 and no
development agreement has so far been signed. Rule 23
provides the terms and conditions to be approved in the
special general body meeting of the society to enter into a
development agreement with the developer in consultation
with Architect/Project Management Consultant. The conditions
to be incorporated in the Development Agreement, amongst
others, shall contain the conditions laid down in Clauses (i) to
(x). Rule 24 provides that the developer will not be able to
make any changes in the building plan except with the written
permission of the Managing Committee. The procedure for
allotment of new flats has been provided in Rule 25. Taking
note of the aforesaid provisions, the Hon'ble Division Bench
held that due care has been taken by the Legislature to
address the concern of the appellants therein. The appellants
can dispute the conditions of the Development Agreement, if
not properly incorporated and shall have a right to participate
in the process of development in a constructive way.
17. In light of the aforesaid discussion and the ratio as as
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referred above, the respondent No.6 is the member of the
society and loose his individual rights to challenge the decision
of the society for and except, through the society. The Lavad
suit, which is instituted by the respondent No.6 and which is
pending before the competent Court, is independent
proceeding initiated by the respondent No.6 against the
society for which the redevelopment, in the opinion of this
Court, cannot be stalled. The aforesaid cannot be a reason to
stall the process of redevelopment. The eviction or
dispossession is not in terms of prevalent rent loss or eviction
as contemplated under the Transfer of Property Act. In the
facts of the present case, the respondent No.6 would neither
be dispossessed or evicted but is required to shift the alternate
premises in which the respondent No.6 would continue to
reside till the redevelopment is undertaken. The temporary
shiftingfor the purpose of redevelopment would not amount to
dispossession or eviction as stated by the learned advocate
appearing for the respondent No.6. The respondent No.6 is not
deprived of property i.e. the residential accommodation by
virtue of the aforesaid project.
17.1 The petitioner society is compliant of the conditions
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under Section 41A of the Act, 1973, in the facts of the present
case, (i) the building is more than 25 years old i.e. 46 years; (ii)
the Structural Engineer Report dated 21.05.2022 states that
the building is in dilapidated condition and (iii) there is consent
of more than 75% members i.e. 91.67%. members.
18. For the foregoing reasons, the present petition is required
to be considered under Section 41A of the Act, 1973. The
petitioner society meets with and complies with the conditions
enumerated under Section 41A of the Act, 1973.
In view of the aforesaid, if the petitioner society decided
to go for redevelopment, this Court under Article 226 of the
Constitution of India, is not inclined to interfere in the said
redevelopment process.
19. For the aforesaid reasons, the prayers as prayed for in
the present petition, are required to be allowed and the same
are allowed. The respondent No.6 is directed to vacate its flat
in the petitioner No.1 society and handover the peaceful and
vacant possession thereof for the redevelopment as per
Section 41A of the Gujarat Ownership Flats Act, 1973, within a
period of eight weeks from the date of receipt of the order and
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cooperate in the redevelopment of the petitioner No.1 Society.
20. With the aforesaid, the present petition stands allowed.
Rule made absolute.
(VAIBHAVI D. NANAVATI,J)
NEHA
