Gujarat High Court
Amity Co-Operative Housing Society ... vs State Of Gujarat on 8 April, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10596 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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Approved for Reporting Yes No
Yes
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AMITY CO-OPERATIVE HOUSING SOCIETY LTD. THROUGH ITS
SECRETARY AND CHAIRMAN & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MB PARIKH(576) for the Petitioner(s) No. 1,1.1,1.2
MS ROSHNI PATEL AGP for the Respondent(s) No. 1
MR MAHINKHAN H PATHAN(13814) for the Respondent(s) No. 5
MR NISARG N TRIVEDI(6144) for the Respondent(s) No.
10,11,12,13,14,6,7,8,9
MS RITU R GURU(5532) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 08/04/2025
ORAL JUDGMENT
1. This petition is filed seeking following reliefs:
"7. The petitioners therefore pray that
(A) Your Lordships will be pleased to issue a writ of
mandamus or any appropriate writ, order or direction
directing Ahmedabad Municipal Corporation to forthwith
withdraw its notice dated 01/04/2021 (Annexure A) to the
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extent it requires repairing, re- strengthening or securing of
the buildings situated at Amity Co- operative Housing Society
Limited and direct Ahmedabad Municipal Corporation to take
appropriate steps to get the said buildings vacated and
demolished;
(B) Your Lordships will be pleased to issue a writ of
mandamus or any appropriate writ, order or direction
directing the Ahmedabad Municipal Corporation to take all
such steps as may be necessary for complete and effective
implementation and operation of Section 41A of the Gujarat
Ownership of Flats Act, 1973 in respect of redevelopment of
Amity Co-operative Housing Society Limited bearing Final Plot
No. 9/A of Town Planning Scheme No. 6 of Village Paldi of
District Ahmedabad Sub-District Ahmedabad-4 (Paldi) as the
petitioners have fulfils the mandate of the said act;
(C) Your Lordships will be pleased to issue a writ of
mandamus or any appropriate writ, order or direction
directing the respondents No.2 to 4 to take over the
possession from respondent no. 6 to 14 of the subject matter
of the premises and handover it to the Petitioner Society so as
to start the process of Redevelopment of the society in the
interest of justice with Developer: Tameer Infrastructure
Respondent no. 5 after vacating and also be pleased to direct
the respondent no. 6 to 14 not to cause any obstructions,
delay or hindrance to the redevelopment in any manner;
(D) Your Lordships will be pleased to issue a writ of
mandamus or any other appropriate writ order or direction
directing the respondent no. 2 to 4 herein to sanction the
redevelopment plans submitted to them on 01/01/2022 and
also in pursuant to the application dated 11/03/2024 filed by
the petitioner's society, so as to enable the petitioner's society
and the developer the RESPONDENT NO. 5 to execute such
plan, in the interest of justice;
(E) Pending admission, hearing and till final disposal of
this petition, Your Lordships will be pleased to hold and
declare that the case of the petitioner falls within the scope of
ambit of the provision of the Section 41A and further be
pleased to hold and declare that the petitioner society herein
is entitled to the redevelopment as envisaged within the scope
and ambit of provision of Section 41A. The petitioner society
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fulfils all criteria as prescribed under the provision of Section
41A of The Gujarat Ownership of Flats Act, 1973;
(F) Pending admission, hearing and till final disposal of this
petition, Your Lordships will be pleased to direct the
respondent No. 2 to 4 Corporation to decide the application
dated 11/03/2024 filed by the petitioner no.2 (Annexure G)
within two weeks and/or within the time period as may be
deems fit by this Honorable Court;
(G) Be please to grant such other and further relief which may
be deems fit in facts and circumstances of the present case, in
the interest of justice;"
2. Issue involved in this petition is in relation to
redevelopment of flats of Amity Cooperative Housing Society
Limited (hereinafter referred to as "subject flats").
Facts in brief referred in the petition are here as under:
2.1. Petitioner No.1 Amity Co-operative Housing Society
Limited (herein after referred as "Society"), is a society
registered under the provision of the Gujarat Co-operative
Societies Act, having registration No. G-6162 dated 05.12.1975.
The Society is the owner of land admeasuring 6825 sq.yards
equal to 5706.38 sq.meters of non-agricultural land bearing
Final Plot No.9/A of Town Planning Scheme No.6 of Village
Paldi of District Ahmedabad Sub-District Ahmedabad-4 (Paldi),
and on the said land total of 81 flats were constructed in the
year 1974-1975 .
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2.2. This petition is filed by Chairman and Secretary of the
Society as petitioner Nos.1.1 and 1.2 in their official capacity
and they are owner of flat No. 10/1/B and flat No.9/2/B
respectively. The said society contains 10 blocks, having
different sizes of flats. The flats are of four sizes with built-up
area of 80 sq.yds., 101 sq.yds., 124 sq.yds. and 130 sq.yds.
respectively. The society is one of the oldest residential
societies in the Paldi area constructed in the year 1974-75. On
account of dilapidated condition of the subject flats and since
it is not practicable to get the repairs and renovation of the
subject flats done, the society decided to go for redevelopment.
The decision of redevelopment was taken considering
corrosions of many of the RCC slabs, beams, columns and
foundation. There are major cracks in the structure on various
locations, slabs of balconies have bent, which may cause
danger to the human life. Accordingly, the procedure was
initiated long back. The society in the year 2016, after having
decided to go for redevelopment of subject flats, on 29.05.2016
gave public advertisement in the daily newspaper "Divya
Bhaskar"; to invite offers from intended builders and
developers for redevelopment. The advertisement was issued
with the consent of majority of members. Pursuant to the
advertisement, various offers were received. Upon receipt of
such offers, the society decided to avail the best offer and
accordingly held various meetings with intended developers. As
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respondent No.5 was with better offer, it was decided to give
the work of redevelopment to respondent No.5. Accordingly,
society's General meeting was called for on 04.04.2021. In the
general body meeting dated 04.04.2021, resolution was passed
for giving work of re-development to respondent no.5. The
meeting dated 04.04.2021 was followed by another general
body meeting dated 26.12.2021 to discuss the offer given by
respondent no.5 (Annexure F). Considering that the offer given
by respondent No.5 is a better offer, it was decided by
majority to allot work of redevelopment to respondent No.5.
Since objections were raised by respondent Nos.6 to 14, this
petition is filed.
3. Heard learned advocate Mr.M.B.Parikh for the petitioners.
Learned advocate invited attention of this Court to the
procedure followed to submit that the same was in consonance
with provisions of Gujarat Ownership Flats Act, 1973 and the
Rules framed thereunder. Learned advocate submitted that on
account of dilapidated condition of the flats in question,
General Body Meeting was held on 04.04.2021. Agenda of the
said meeting refers to action/decision to be taken for
redevelopment of the society. The said meeting was followed
by one more General Body Meeting dated 26.12.2022. From
the resolutions passed of both these meetings, it is evident that
the discussion was held to avail the best offer beneficial to the
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members. After discussion, a decision was taken to give
development work to one BTI Infrastructure Developer LLP.
The decision taken in both these meeting was signed by
majority members and, therefore, the consent of more than
75% members for redevelopment is not in dispute. In the
meeting dated 26.12.2021, out of 81 members, 72 members
have signed and, thus consent of more than 75% members is
not in dispute. On the aspect of dilapidated condition of the
subject flats, learned advocate relied upon notice given by
Ahmedabad Municipal Corporation at Annexure-A page 1 dated
01.04.2021; and the photograph annexed at Annexure B. Thus,
both the conditions of Section 41A of GOF Act, of consent of
more than 75% of members and construction of more than 25
years old are fulfilled. Therefore, this petition deserves to be
allowed by directing private respondent Nos.6 to 14 to give
peaceful vacant possession of their respective flats.
4. On the other hand, learned advocate Mr.Nisarg Trivedi
for private respondent Nos.6 to 14 submitted that private
respondent Nos.6 to 14 are not in agreement with
redevelopment because in the General Body meeting dated
04.04.2021, it was decided to give work of redevelopment to
one BTI Infrastructure Developer LLP. In both general body
meetings dated 04.04.2021 and 26.12.2021, it was decided to
give work of redevelopment to BTI Infrastructure Developer
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LLP. However, MOU was entered in to by consented members
with proprietor firm of Tameer Infrastructure and, therefore,
the respondents are not in agreement.
4.1. Further, since the MOU does not contain any security
deposit clause and penalty clause, the offer accepted by
majority members is contrary to the Gujarat Ownership Flats
Rule 23, and therefore, private respondents are objecting to
the same.
5. Learned advocate Mr. Mahinkhan Pathan for respondent
No.5 submitted that all objections raised are without basis
because earlier it was decided to hand over work of
redevelopment to BTI Infrastructure Developer, which was LLP.
Thereafter, there was change in constitution of LLP and same
person named Mohammad Harun Babubhai Shaikh as
proprietor of Tameer Infrastructure has decided to go for
redevelopment work for the society. Therefore, the objection
raised is without any basis. Moreover, the conditions referred
in Section 41A of the GOF Act are satisfied. On the aspect of
security deposit, and penalty clause in the MOU, learned
advocate referred to Rule 23 of Gujarat Ownership Flats Rules
and submitted that both are not mandatory requirement under
the GOF Rules. Despite that, in this case, from the MOU
entered into between the members of the society and
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respondent No.5, it is evident that respondent No.5 has offered
gift money to the respective members as per the area of their
flats. Therefore, the grievance of not providing security deposit
is without any basis. Similar is the situation with penalty
clause. Language of Rule 23 of GOF Rules, makes it clear that
the same is not mandatory. Thus, the objections raised are
without any basis and deserves to be ignored. Learned
Advocate, therefore, submitted that appropriate directions may
be issued to private respondents to give peaceful vacant
possession of the subject flats to the society to start with
redevelopment work.
5.1. In support of his submission in relation to payment of
security, and not having penalty clause, learned advocate
relied upon decision in the case of Ratnamani Co-operative
Housing Society Ltd. thru Chairman Prakashkumar Gatttubhai
Solanki vs. State of Gujarat in Special Civil Application
No.11314 of 2022 dated 09.11.2023.
6. Considered the submissions and decision relied upon.
Upon revisitation of facts, it is noticed that on account
dilapidated condition of the subject flats, Ahmedabad
Municipal Corporation issued notice dated 01.04.2021. Even
the photograph annexed at Annexure B page 2 onwards
supports the submission of the petitioner that the condition of
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subject flats, is dilapidated. It appears that since the repairs
and renovation of flats was not a plausible option, majority
members of the society had decided to go for redevelopment of
the subject flats and accordingly, advertisement dated
29.05.2016 (page 6 Annexure C) was published inviting offers,
for the work of redevelopment. The offer received from
respondent No.5 is annexed at Annexure D page 8. The said
offer refers to the proposed built-up area, compensation
money, rent to be provided for first year, rent to be provided
for 2nd 3rd and 4th year. The development plan with the
Engineers report is also placed on record at Annexure E page
13. Considering all these, the offer given by respondent no.5
was found suitable to majority members, and accordingly
decision was taken to allot work to respondent no.5 by passing
resolution dated 04.04.2021. The said resolution was signed by
72 members of Society out of total 82 members. Further, the
structural engineers report at page 14 refers to condition of the
building being older than 25 years old, as unsound unsafe and
unstable. Therefore, in the opinion of this court, the
requirement of Section 41A of the GOF Act have been
complied with since out of 81 members, 72 members had
given their consent (more than 75%) and construction of
building is more than 25 years old and dilapidated.
7. On the aspect of procedure to be followed, it is noticed
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that, a General Body Meeting with the agenda of decision to
be taken for redevelopment work was held on 04.04.2021. In
this meeting, the discussion in that regard took place and 72
members had given their consent for redevelopment and the
work to be given to respondent No.5. Mudda Nos.2 and 3 of
agenda dated 04.04.2021, refers to the work to be given to
respondent No.5. The resolution dated 04.04.2021, was signed
by majority members. This was followed by one more General
Body Meeting dated 26.12.2021. In the said meeting, once
again 72 members out of 81 members have consented for
redevelopment of subject flats accepting the offer given by
respondent No.5. Accordingly, 72 members have entered into
MOU with respondent No.5. The said MOU dated
20/21.10.2022 is annexed at Annexure G page 28. Therefore,
the procedure followed by the society prior to giving work of
redevelopment to respondent No.5 is not in dispute.
8. On the aspect of change from BTI infrastructure to
proprietor firm, it appears that for having ease of doing the
redevelopment work, a proprietorship concern has accepted to
undergo with the redevelopment work. For work being given
to proprietorship firm instead of BTI LLP, this Court could not
see any change except the constitution of LLP to partnership
firm. Moreover, no justifiable ground has been given by
private respondents in respect to this objection.
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9. Now on the aspect of objections raised by private
respondents for not having security deposit and penalty clause
in the MOU, it is noticed that respondent No.5 offered a gift
amount as referred in MOU and majority members have
accepted the same. Moreover, as held by Coordinate Bench of
this Court in Special Civil Application No.11314 of 2022, that
providing of bank guarantee is not a mandatory requirement as
per Rule 23 of Gujarat Ownership Flats Rules. Further, the
MOU also provide transport accommodation, additional carpet
area that members will be getting upon redevelopment project,
gift money, rent money etc.
10. One more aspect that, respondent No.5 Developer as per
MOU is to initiate procedure to obtain necessary permissions
and the registration from the authority concerned. The penalty
payment is also not mandatory in nature. The penalty and
bank guarantee are sought on assumptions and presumptions
which could be taken care by obtaining project finance and
project registration by RERA authority. Moreover, the affidavit
filed by respondent No.5 supports the contentions of petitioner
that due care shall be taken in relation to redevelopment work
as per terms and conditions of the MOU.
11. At this stage it would be apposite to refer to the decision
of this Court in Sarojben Kiritbhai Shah V/s. Ahmedabad
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Municipal Corporation in Letters Patent Appeal No.1075 of
2022, wherein it is held as under:
"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,
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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 mold 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."
12. In more decision, in the case of Rabari Tejmalbhai
Gagabhai v. Ratnamani Cooperative Housing Society Limited in
Letters Patent Appeal No.1427 of 2023, wherein it is held as
under:
"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
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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
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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 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
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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.
13. Subject to the above observations and directions, the
appeal stands dismissed. Consequently, connected Civil
Application also stands disposed of. No order as to
costs."
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13. In view of above discussion, it is held that the petitioners
had follow the due procedure for the purpose of redevelopment
of petitioner society and have fulfilled the conditions to fall
with the ambit of Section 41A of Gujarat Ownership Flats Act,
1973.
14. In view of aforesaid discussion, exercising extraordinary
jurisdiction under Article 226 of the Constitution of India, the
petition deserves to be allowed and accordingly is allowed
directing respondent Nos.6 to 14 to give peaceful vacant
possession within the period of eight weeks from the date of
receipt of this order.
15. All private respondents are requested to cooperate with
the redevelopment of the petitioner society.
16. With this, the petition is allowed accordingly. Rule is
made absolute.
17. Direct service is permitted.
(MAUNA M. BHATT,J)
NAIR SMITA V./09
