Gujarat High Court
Kantibhai Bhavabhai Parikh vs State Of Gujarat on 12 August, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1652 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 5555 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 1652 of 2024
With
CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
NO. 2 of 2024
In R/LETTERS PATENT APPEAL NO. 1652 of 2024
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KANTIBHAI BHAVABHAI PARIKH & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No. 1,2,3,3.1,4,5,6,7,8
MS RADHIKA M BHATT(12910) for the Appellant(s) No. 1,2,3,3.1,4,5,6,7,8
MS HETAL PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR ANUJ K TRIVEDI(6251) for the Respondent(s) No. 2
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MR HJ DHOLAKIA(5862)
for the Respondent(s) No. 3
MR YATIN OZA, SENIOR ADVOCATE WITH MR. JIT P PATEL(6994) for the
Respondent(s) No. 6,7
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS.
JUSTICE SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 12/08/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Perused the report of the learned Court Commissioner
submitted with the covering letter dated 11.08.2025 to the
Registrar, High Court, pursuant to the order dated 15.07.2025
passed by this Court. The Court Commissioner's report is
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jointly signed by Mr. Ajay R. Mehta, learned advocate
appointed as the Court Commissioner and Ms. Hetal G. Patel ,
learned advocate appointed as an Observer, to conduct the
meeting which was directed to be held to find out the wishes
of the members of the society about the redevelopment in
light of the provisions contained Section 41A of the Gujarat
Ownership Flats Act, 1973.
2. We may note, at the outset, that instant appeal is
directed against the judgment and order dated 19.09.2024
passed by the learned Single Judge whereby the writ petition
filed by the Society - respondent herein has been allowed,
noticing that the building-in-question is quite old and the
structural stability report by the licensed Structural Engineer
of the Corporation namely Ahmedabad Municipal Corporation
dated 10.02.2022 states that the building is not fit in its
strength and stability criteria and necessary measures are
required to be taken to avoid any fatal damage. It is noted by
the learned Single Judge that in the interest of the residents
of the buildings/ flats, the decision of redevelopment appears
to have been taken in good faith and such process cannot be
stalled at the instance of 06 members (respondents before the
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writ Court) who had objected to such redevelopment.
3. The instant appeal, however, has been filed by 08
persons, who are residents of the society namely 'Patel Baug
Co-operative Housing Society Limited'. When the appeal come
up for hearing on admission, vide order dated 25.11.2024, this
Court has noted the objections of the appellants about the
resolution dated 14.02.2022 of the respondent - society,
whereby decision was taken to carry out the redevelopment of
the society. The main thrust of argument, as noted in the
order dated 25.11.2024 to challenge the order of the learned
Single Judge in directing for removal of the respondent nos.4
to 11 before the writ Court, was that the resolution dated
14.02.2022 had been passed by only 122 out of total 192
members of the society and hence, the requirement of atleast
75% of the flat owners of the building to give consent for
redevelopment has not been fulfilled, in view of Section 41A
as contained in Part-II of the Gujarat Ownership Flats Act,
1973 [in short, 'the Act 1973') read with Rule 19 of the
Gujarat Ownership of Flats (Amendment) Rules, 1974 [in
short 'the Rules 1974']. This Court has also noted that as per
own admitted case of the respondent - society, as on date
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there are 192 members, out of which only 122 had agreed for
redevelopment being signatories to the resolution dated
14.02.2022. It was further noted that remaining 60 members,
who did not participate in the meeting held on 14.02.2022
claimed to have given consent by a subsequent agreement
arrived with the members by the society. But the same was
not found to be in the spirit of the provisions of Section-41A of
the Act, 1973 read with Rule 19 of the Rules framed
thereunder. And hence, it was kept open for the society to
conduct a fresh process strictly in accordance with law to
ascertain the wishes of the flat owners/ members of the
society about redevelopment and place the resolution before
this Court.
4. Pursuant thereto, a meeting dated 29.12.2024 was held,
minutes of which has been brought on record, to assert that
the majority of the members have agreed for redevelopment.
The appellants, however, have raised various objections to
the validity of the meeting dated 29.12.2024 including that
there was no validly elected Managing Committee of the
society. The dispute was also raised with regard to election of
the Chairman who chaired the meeting. It was argued by the
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learned advocate for the appellants that the resolution passed
in the meeting held on 29.12.2024 cannot be given due
credence. Noticing the same this Court passed an order dated
22.04.2025 directing the learned advocate for the respondent
- society to file a reply.
5. However, after hearing the learned counsel for the
parties at length vide order dated 15.07.2025, considering the
disputes raised by the appellants about the meeting dated
29.12.2024; further noticing that the process to initiate for
redevelopment has been stalled for a long period of time and
the report of the Structural Engineer of the Ahmedabad
Municipal Corporation as also the notice dated 23.06.2025
issued by the Corporation under Section-264 of the Gujarat
Municipal Corporation Act' 1949 declaring the structures as
dilapidated and dangerous, we have issued directions to hold
a 'Special General Meeting' of the Society in the presence of
two advocates of this Court, who were appointed as Court
Commissioner and as Observer. The order dated 15.07.2025 is
pertinent to be noted herein in toto.
"1. Having noted the rival submissions of the learned
counsels for the parties and the fact that there was a
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dispute with regard to the decision taken by the majority
of the members of the society, which is a Cooperative
Housing Society, in the meeting held on 14.02.2022 about
the redevelopment under Section 41A of the Gujarat
Ownership Flats Act, 1973 (for short "the Act, 1973"), by
the order dated 25.11.2024, we have permitted the society
to hold a meeting to obtain consent of its members in
accordance with the provisions of Section 41A of the Act,
1973 read with Rule 19 of the Gujarat Ownership Flats
Act, while keeping the present appeal pending. While
issuing the said direction, we have noted the admitted
case of the society that as on date, there are total 192
members of the society and only 122 were signatories to
the resolution dated 14.02.2022, which number would not
make 75% of the total members. Thus, in order to resolve
the dispute pertaining to the decision of the majority of
members of the society out of 192, directions were issued
to hold a fresh meeting, which as per the case of the
society had been held on 29.12.2024.
2. As per the case of the society in the affidavit filed
before this court, the meeting was held on 29.12.2024 in
accordance with the directions contained in the judgment
and order dated 25.11.2024, and out of total 192, majority
i.e. 147 members have signed the resolution in favour of
redevelopment. However, affidavits in rebuttal, have been
filed by different members of the society namely Mrugesh
Pravinbhai Patel - appellant no. 5 & Kantibhai Bhavabhai
Parikh - appellant no. 1 separately, to object to the
meeting held on 29.12.2024. Contradictory stands have
been taken in the affidavits filed on behalf of the aforesaid
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two appellants. In the affidavit of appellant no. 5, it is
stated that one Anilbhai Shah was elected as a chairman
for the meeting and not more than 53 members have
participated in the meeting before the register for the
meeting was closed. Whereas in the affidavit of the
Kantibhai Bhavabhai Parikh - appellant no. 1 it is stated
that veracity/authenticity of 60 members who have signed
the disputed resolution dated 29.12.2024 has not been
ascertained and that said 60 members were not present on
the date of the meeting.
3. In the affidavit filed by the Secretary of the
respondent - Society dated 17.02.2025, it is stated that
Mr. Chirag Naransinh Thakor - owner of the Flat No. G/11,
son of the then Chairman Mr. Naransinh Thakor and the
member of the society, was elected to chair the meeting
held on 29.12.2024 in compliance of the order of this
Court and the collective will of the majority of the
members (147 in number) have been expressed in the
meeting who have consented to redevelopment.
4. Taking note of the above, we may also record the
submissions made by Mr. S. P. Majmudar, learned
advocate appearing for the appellants objecting to the
meeting held on 29.12.2024. It is sought to be submitted
that there is no validly elected Managing Committee of the
society and that the respondent no. 6 who has filed
affidavit dated 17.02.2025 is the so called Secretary of the
respondent no. 6 - society. The contention is that since no
valid election of the society has been held for the last 20
years, hence, in absence of a valid Managing Committee of
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the society, any resolution passed in the meeting dated
29.12.2024 cannot be said to be a valid decision and, as
such, cannot be said to be implemented in accordance
with law.
5. Considering these submission, suffice is to note that
no dispute could be raised about the condition of the
building which is being managed by the petitioner -
society. A notice dated 23.06.2025 has been issued by the
Ahmedabad Municipal Corporation that structures are in
dilapidated condition and need immediate repairs, or else
they would be pose danger to the inhabitants therein. The
said notice given by the Municipal Corporation under
Section 264 of the Gujarat Provincial Municipal
Corporation Act, 1949 declaring the structures as
dilapidated and dangerous is appended as Annexure FA 1
at page no. '1516' of the paper- book, and is based on the
opinion of the Registered Structural Engineer (Grade -1)
and the Structural Stability Certificate given by him.
6. Further, considering the fact that the members of
the society had held a meeting in the year 2022
consenting to redevelopment and for a period of more
than three years, the matter could not be proceeded on
account of the dispute raised by the petitioners/appellants
about the validity of the meeting dated 14.02.2022. The
meeting dated 29.12.2024 was held under the directions
issued by this Court in the order dated 25.11.2024, in
order to remove the doubts of the petitioners about the
decision of the majority, which has again been objected.
Considering the objections of the petitioners/appellants to
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the meeting dated 25.11.2025, as noted hereinbefore, we
are of the considered view that the appellants who are six
(6) in numbers, cannot be permitted to stall the process
for redevelopment by raising different objections at
different point of time.
7. In so far as the submissions made by Mr. Majmudar
objecting to any of the meeting of the society to find out
the wishes of the majority of the members of the society to
undertake the process of redevelopment. The contention is
that any dispute relating to the validity of the meeting
dated 29.12.2024 held on the directions issued by this
Court can be looked into only by the Board of nominees,
inasmuch as, in absence of a validly elected Managing
Committee no resolution can be passed for redevelopment.
This submission is not appreciable looking to the
dilapidated condition of the building and further for the
fact that neither any such objection was taken during the
course of the meeting held on 29.12.2024 nor anything in
this regard has been stated before this Court in any of the
affidavits by the appellants. The assertions in this regard
having been made, at the bar, during the course of the
submissions made by Mr. Majmudar, the learned advocate
appearing for the appellants, cannot be appreciated.
8. Further, taking note of the provisions of the Section
41A of the Act, 1973 read with Rule 19 framed thereunder,
considering the grievances of the rival parties, we find
that the dispute can be resolved by holding a fresh
meeting under the Chairmanship of a Court
Commissioner. One learned advocate is being appointed
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as Observer to oversee the affairs of the meeting. The
meeting shall be held strictly in accordance with the bye-
laws by sending notices of the date fixed for holding the
meeting alongwith the agenda to all 192 members of the
society. Any member who may not be in a position to
attend the meeting physically, may be permitted to attend
the meeting virtually, after proper verification of his
credentials, on his request, which shall have to be made
before the Court Commissioner in advance. It is clarified
that only the members of the society are permitted to
attend the meeting either personally or virtually, no proxy
or representative is permitted to participate in the
meeting.
9. We, thus, direct that a Special General Meeting be
held in accordance with the above directions as
expeditiously as possible, preferably within a period of
three weeks from today. Mr. Ajay Mehta (Enrollment No.
G/589/1988), learned advocate is appointed as Court
Commissioner and Ms. Hetal Patel (Advocate Code No.
11032, Enrollment No. G/1839/2014), learned advocate be
appointed as an Observer. The remuneration for the above
persons has to be borne by the Society, which shall be
decided later.
10. The report of the learned Court Commissioner
alongwith the original record of the meeting such as
agenda, resolution of the meeting and the processes
undertaken for holding such meeting, shall be placed
before the Court on the next date fixed. All cooperation for
holding the meeting peacefully has to be provided by the
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petitioner society.
11. The matter be posted on 12.08.2025 at 12:30 P.M.
12. Interim relief granted earlier shall continue till the
next date of hearing."
6. Today, when the matter was taken up, a report of the
learned Court Commissioner alongwith the covering letter
dated 11.08.2025 has been placed before us in a sealed
envelop. As noted herein-before, the joint report contains
signatures of both the Court Commissioner and the Observer.
Going through the report, we may note that it states that the
notice of Special General Meeting scheduled on 02.08.2025 at
the Society's Common Plot from 7:00 p.m. to 10:00 p.m. was
duly served upon 192 members of the society, out of which
132 members are occupying flats constructed by the society.
The report states that the notice dated 26.07.2025 was
prepared and sent to all the members of the society vide
multiple modes of services being Speed Post, affixation on the
notice board, affixation on all 132 flats occupied, by Whats-
app messaging application and E-mail. The Court Observer
had visited the site on 31.07.2025 for verification of the
affixation of notices on the common notice board as well as
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individual flats.
7. On 02.08.2025, the scheduled date and time of the
meeting, 147 out of total 192 members of the society were
physically present and 30 members remained present in the
meeting virtually conducted on Zoom meeting platform and by
Whats-app video call. Out of total 177 [147 + 30], members
who had attended the meeting, 156 had consented for
redevelopment of the society. Out of total 192, 15 members
did not attend the meeting and out of those attended (total
177 members), 21 did not give consent for redevelopment of
the society.
8. Thus, the total number of 156 members who had given
consent comes around 81% of the total 192 members of the
society. It is, thus, evident that in the meeting held on
02.08.2025 of the society under the directions of this Court,
for the purpose of ascertaining the wishes of the majority of
members to go in for redevelopment, in accordance with the
statutory requirement more than 75% of the members
(majority) have given consent for redevelopment of the
society. Considering the joint report of the learned Court
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Commissioner and the Observer, it is evident that the
requirement of taking consent of the majority under Section-
41A of the Act, 1973 read with Rule 19 of the Rules made
thereunder, has been fulfilled.
9. It is pertinent to note, at this juncture, that as soon as
this report was submitted before us in the sealed envelop, an
affidavit was filed beforehand in the Court by Mr. S.P.
Majmudar, learned advocate appearing for appellants. The
same is taken on record and was perused after going through
the report. The deponent of the said affidavit dated
12.08.2025 is the appellant no.1 namely Kantibhai Bhavabhai
Parikh. In the affidavit, various objections have been taken
about the meeting dated 02.08.2025 held under the
Chairmanship of the learned Court Commissioner. It is stated
that the learned Court Commissioner was pleased to publish
and serve the notice dated 27.07.2025 for fixing date of the
Special General Meeting scheduled on 02.08.2025. Annexure
'A' to the said affidavit is the notice dated 26.07.2025 issued
by the learned Court Commissioner. The contention in
paragraph-'2' of the affidavit is that no discussion took place
in the meeting held on 02.08.2025 and instead of having a
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proper vote with regard to redevelopment, straight away only
consent was recorded by the learned Court Commissioner.
10. It is further contended that on the day of the meeting,
several irregularities and defects were noticed in the conduct
of the respondents [without clarifying as to which respondent
the deponent is referring to]. It is further contended that
though office bearers of the society are not duly elected, but
they were involved in sending links to members of the society,
particularly, one Mr. Piyush Patel was actively involved in
sending these links though he was not authorized person for
the society. The contention is that no audio/video recording
was done, which would ordinarily be required in a meeting of
this nature. The appellant had spotted some third parties, who
were not even claiming to be members of the respondent -
society and yet took part in the meeting. The statement to this
effect in paragraph-3 of the affidavit are as vague as they
could be.
11. There is an assertion with regard to the presence of an
Advocate on record for the respondent - society in the
meeting. The contentions are about the procedural
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irregularities and defects which were brought to the notice of
the learned Court Commissioner including mismatch in the
date of issuance of the share certificate being prior to the
birth of the members. The objections in the affidavit are also
pertaining to 60 members of the respondent - society
including that some members have not provided their valid
share certificates and yet consented to in favour of
redevelopment. Annexure-C is the copy of a letter written by
the deponent namely Kantibhai Bhavabhai Parikh, flat owner
of Flat No.A/11 of the respondent - society, however, the said
document appended at page-'1539' of the paper-book does not
contain a date. Another letter at page-'1541' appended as
Annexure-'C' [colly] contains a date as 04.08.2025, two days
after the meeting was held. The objections contained therein
are about premature commencement of meeting,
unauthorized presence of outsiders, fraudulent consent by 60
unconstructed flat owners and violation of identity proof
requirements. There are allegations about the procedural
irregularities in consent taken via video call, forgery detection
via document year mismatch, consent taken without
confidentiality and under pressure. It may be pertinent to note
that the affidavit dated 12.08.2025 has been filed by only one
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member of the society in his individual capacity being
appellant no.1 herein, and has not been submitted on behalf
of even other appellants impleaded in the present appeal.
12. Further, the report of the learned Court Commissioner/
Observer dated 11.08.2025 records that lots of ruckus were
created by certain members and they made it difficult for the
Court Commissioner to hold meeting on 02.08.2025, which
was conducted under the directions issued by this Court. The
observations in paragraph-'4' of the report are to the effect
that in order to ascertain the attendance of the members
present in the meeting, the learned Court Observer requested
to allow the members to put their signatures in the
attendance-sheet after verifying their ID proof and names as
reflected in the share certificate. Before even commencement
of the meeting, few members started raising objections and
surrounded the table and made it almost impossible for the
learned Court Observer to carry out her functions. Such
members raised demand for secret ballot, which was
otherwise not feasible and further there was no such
direction of this Court.
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13. The report records that the Court Commissioner and
Observer with great difficulty and dealing with all hostility,
undertook the process though few members kept on repeating
their objections to the meeting and its mode, when it was
informed that as per the directions of this Court the members
were required to mark their presence and their views namely
whether they agree or disagree to the proposed
redevelopment. The contention of paragraph-'7' of the report
which records the act of the deponent of the affidavit dated
12.08.2025, noted hereinabove, relevant to be noted
hereinunder:-
"7. The few objecting members constantly monitored
and supervised the marking of presence and opinion. One
of the member Mr. Kantibhai Parikh asked me as to
whether he can record the same on his phone to which I
had informed him that the same may not be done despite
which he made video recordings on his phone. The said
member Kantibhai Parikh constantly stood over the table
and every now and then sought to interfere with the
process undertaken and also sought to antagonize certain
members. He and few members during the meeting tried
to influence their views on the other members. However,
the process which had commenced was continued since
any other directions to members present against the
objecting members could have led to unwarranted
friction."
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14. It is, thus, evident that the deponent before us in the
affidavit dated 12.08.2025 was constantly objecting to the
conduct of meeting and thus, has obstructed in the work of
the learned Court Commissioner and Observer appointed by
this Court, which is nothing but an act of committing
contempt of the directions contained in the order dated
15.07.2025 passed this Court. Once this Court after hearing
the learned counsel for the parties including the appellant
no.1, had appointed two learned advocates of this Court as the
Court Commissioner and Observer to conduct a Special
General Meeting to ascertain the wishes of the members of
the society for redevelopment as per the statutory provisions,
which was the bone of contention of the appellants, the
obstructions made by the appellant no.1 in the conduct of the
meeting on 02.08.2025 by the learned Court Commissioner
and Observer is a contemptuous act.
15. It is more than evident that the entire process of
redevelopment of the society where structures are in
dilapidated condition as per the Structural Engineer report, is
being stalled at the hands of only one person namely Mr.
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Kantibhai Bhavabhai Parikh who is deponent of the affidavit
filed before us today in this Court. The objections raised by
the appellant no.1 in his affidavit filed in the Court through
Mr. S.P. Majmudar, learned advocate appearing on his behalf,
therefore, cannot be accepted as true and genuine.
16. It is evident from the averments made in the affidavit of
appellant no.1 dated 12.08.2025 and the manner in which the
appellant no.1 had obstructed the conduct of the meeting
dated 02.08.2025, the wishes of the majority of members of
the society agreed about the redevelopment obtained as per
the statutory provisions, are sought to be refuted by few
disgruntled members of the society. We, therefore, do not find
any substance in the submissions made by Mr. S. P.
Majmudar, learned advocate appearing for the appellants
about any irregularities or defects in the conduct of the
meeting held on 02.08.2025. It may be noted that apart from
one appellant no.1, no other appellants came forward to raise
any objection to the meeting held on 02.08.2025. We,
therefore, do not find any reason to draw any exception to the
joint report submitted by the learned Court Commissioner and
the Observer.
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17. We may also note that when the report of the Court
Commissioner dated 11.08.2025 submitted to the Registrar of
the High Court in a sealed envelop, was opened in the Court,
Mr. S.P. Majmudar, learned advocate for the appellants
vehemently contended that the copy of the report be provided
to the learned advocates to go through the same.
18. However, taking note of the fact that an affidavit prior in
point of time, (before even the sealed envelop containing the
report was opened in the Court and the report was looked
into), has been filed by one of the appellant no.1 raising
various objections to the correctness of the meeting held on
02.08.2025 who had obstructed the meeting in a
contemptuous act, we do not find any reason to supply the
copy of the report to the learned advocate for the appellants
to go through the same to raise any further objections. The
meeting was held under the directions of this Court in a
detailed order dated 15.07.2025, which was passed after
hearing both the learned counsels appearing for the parties in
order to resolve a long standing dispute, inasmuch as, the
only objection raised by the appellants throughout in the
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present appeal was that the majority of the members of the
society do not agree to redevelopment. The said stand is now
found to be incorrect in view of the consent given by the
members of the society during the meeting held on
02.08.2025 under the directions of this Court.
19. With the above, we find it fit and proper to dismiss the
present appeal, affirming the directions contained in the
judgment and order dated 19.09.2024 passed by the learned
Single Judge, taking note of the subsequent developments, i.e.
the consent given by the majority of members of the society
about the redevelopment in the meeting held on 02.08.2025.
The directions contained in the impugned judgment and order
dated 19.09.2024 passed by the learned Single Judge though
are based on the resolution dated 14.02.2022 of the society,
but the same are found to be justifiable and hence are being
affirmed in view of the outcome of the subsequent meeting
held on 02.08.2025, in its entirety. While affirming the
judgment and order dated 19.09.2024, the present appeal
stands dismissed. No order as to costs.
20. However, for the directions contained in paragraph-'23'
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of the judgment and order dated 19.09.2024 of the learned
Single Judge, issuing directions to the respondent nos.4, 5,
6.1, 7.1, 8 and 9 before the writ Court, to vacate their
respective flats in respondent - society and handover the
peaceful and vacant possession thereof for the redevelopment
within a period of eight weeks from the date of receipt of the
said order, we provide that the aforesaid period shall
commence from today, i.e. the appellants herein would be
required to vacate their respective flats on or before the
07.10.2025 and shall cooperate in the redevelopment of the
society.
21. We further provide that the remuneration of
Rs.1,00,000/- (Rupees One Lac each) to both the learned
advocates appointed as the Court Commissioner and
Observer, for the meeting held on 02.08.2025, shall be paid by
the respondent - society through cheques within a period of
one week from today, alongwith the cost of Rs.3,535/-
incurred by Mr. Ajay R. Mehta the learned Court
Commissioner in conducting the process for holding the
meeting under the order of this Court. We record our deep
sense of appreciation to both the learned advocates who have
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been able to carry out this mammoth task in a hostile
environment.
22. Lastly, the request made by Mr. S.P. Majmudar, learned
advocate for the appellants to stay the operation of this order
for a period of eight weeks from today, is hereby turned down
in view of conduct of the appellants as noted hereinabove.
Consequently, both the Civil Applications would not
survive and the same are disposed of, accordingly.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
A. B. VAGHELA
