Gujarat High Court
Gujarat Colony Co Op Ho Soc Ltd vs State Of Gujarat on 28 August, 2025
NEUTRAL CITATION
C/SCA/12617/2023 JUDGMENT DATED: 28/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12617 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
Yes
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GUJARAT COLONY CO OP HO SOC LTD
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. RAJAN J PATEL(6775) for the Petitioner(s) No. 1
DELETED for the Respondent(s) No. 10,12,14.1,14.2,16,17,21,22,24,30,8,9
MS SUMAN MOTLA, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR PRAVIN P PANCHAL(2059) for the Respondent(s) No. 13,19,28
MR RITESH B DAVE(2815) for the Respondent(s) No. 29
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 3
MR SHAILESH V BORISA(2479) for the Respondent(s) No. 27
MR YATIN SONI(868) for the Respondent(s) No. 11,7
N J MEVADA(9058) for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 23
RULE UNSERVED for the Respondent(s) No. 6
SHIVAM H CHOKSHI(9120) for the Respondent(s) No. 20
KARISHMA R CHAUHAN(9136) for the Respondent(s) No. 13,15,20,25,28
MR DARSHKUMAR M BUNHA(11765) for the Respondent(s) No. 15,25,26
MR DEEP D VYAS(3869) for the Respondent(s) No. 2,4
MR HARSH K JADAV(12250) for the Respondent(s) No. 27
MR KIRAN S PANCHAL(1187) for the Respondent(s) No. 13,19,28
MR MANISH J PATEL(2131) for the Respondent(s) No. 29
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 18
MR PIYUSHKUMAR A MAKASANA(12151) for the Respondent(s) No.
15,25,26
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 28/08/2025
ORAL JUDGMENT
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C/SCA/12617/2023 JUDGMENT DATED: 28/08/2025
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1. With the consent of the learned advocates for the
respective parties, the present petition is taken up for final
hearing today.
2. This petition is filed seeking to direct respondent No.2-
Ahmedabad Municipal Corporation to evict and demolish and
thereafter to grant necessary permission for redevelopment of
residential flats known as "Gujarat Colony Co-Operative
Housing Society Limited", also known as "Rupal Apartment"
situated at Town Planning Scheme No.3, Final Plot No.100 (old
Survey No.347/A/1/K of Mouje Village: Ranip, Taluka:
Sabarmati, District: Ahmedabad. It is also prayed that since the
petitioner society fulfills the mandate under section 41-A of the
Gujarat Ownership Flats Act, 1973 (hereinafter referred to as
"the Act"), they are entitled for redevelopment of residential
flats known as "Gujarat Colony Co-Operative Housing Society
Limited", also known as "Rupal Apartment" situated at Town
Planning Scheme No.3, Final Plot No.100 (old Survey
No.347/A/1/K of Mouje Village: Ranip, Taluka: Sabarmati,
District: Ahmedabad, (hereinafter referred to as "flats in
question").
3. Facts, as referred in the petition, are as under:
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3.1 The petitioner herein is a registered co-operative housing
society having registration No. GH/8604 dated 28.08.1980
situated at the address stated hereinabove, containing 7 blocks
having total 165 residential units/flats, which are constructed
in the year 1980. Therefore, construction of the flats in
question is undisputedly more than 45 years old. Flats in
questions are in dilapidated condition, which is apparent from
their slabs, beams, columns, etc. Moreover, some portion had
collapsed earlier and construction being in dilapidated
condition, it is not safe to the human lives.
3.2 It is case of the petitioner that on account of its
dilapidated condition and considering the construction of flats
in question being more than 45 years old, majority members of
the society had decided to undergo redevelopment.
Accordingly, procedure as provided under the provisions of the
Act was followed. However, on account of 14 members
objecting earlier to the action of redevelopment, it could not
be proceeded, leading the petitioner to file this petition.
3.3 It is case of the petitioner that on account of requirement
of section 41-A of the Act being fulfilled, the petitioner is
entitled to get relief as prayed for in this petition.
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4. Heard learned advocate Mr.Rajan Patel for the petitioner,
learned AGP Ms.Suman Motla for respondent No.1, Mr.Deep
Vyas for respondent Nos.2 & 4, Mr.Satyam Chhaya for
respondent No.3, Mr.N.J.Mevada for respondent No.5, Mr.Yatin
Soni for respondent Nos.7 & 11, Ms.Karishma Chauhan for
respondent Nos.13, 15, 25 & 28, Mr.Nikhilesh Shah for
respondent No.18, Mr.K.R.Chauhan for respondent Nos.15, 25.
Mr.Shivam Chokshi for respondent No.20, Mr.Piyush Makasana
for respondent Nos.13, 15, 19, 25, 26 and 28, Mr.Harsh Jadav
with Mr.Shailesh Borisa for respondent No.27, Mr.Manish Patel
with Mr.Ritesh Dave for respondent No.29.
5. Learned advocate Mr. Rajan Patel for the petitioner
submitted that registration of petitioner society on 28.08.1980
is not in dispute. Society contains 7 blocks, having 165
residential units and having 165 members, is also not in
dispute. Therefore, considering the old construction and its
dilapidated condition, the society by its majority members have
decided by resolution dated 17.07.2021 to initiate process of
redevelopment and accordingly, tenders were invited for
redevelopment of the flats in question. Resolution passed by
the society is at Page-73.
5.1 Thereafter, Notice dated 29.09.2021 (Annexure II, Page-
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36) was issued by the AMC under section 264 of the Gujarat
Proventil Municipal Corporation Act 1949('GPMC Act' for
short). After that on 21.10.2021 resolution No.11(2) was passed
by majority members of the society delegating powers to the
Chairman of Society for initiating redevelopment process for
hiring Architect, Civil Engineer and Lawyers. Resolution dated
21.10.2021 contains all the agendas. Accordingly, on
18.11.2021, advertisement was issued inviting tenders
(Annexure-IV, Page-38). Accordingly, procedure contemplated
under the provisions of the Act was followed. Chairman
initiated process for redevelopment and after publication of
advertisement, Annual General Meeting of the society was
called on 18.12.2021, wherein offers received for
redevelopment were opened and considered. Resolution No.2
dated 24.04.2022 was passed short listing three developers -
Dynamic, Satyamev and Shantam. After uniform agreement
through voting via WhatsApp, M/s.Dynamic Infracon was
selected by 117 out of 165 voters. The members, who had not
voted for redevelopment, had not objected for the same. Thus,
conscious democratic decision was taken to give redevelopment
work to respondent No.5 - M/s.Dynamic Infracon.
5.2 Thereafter, one more Notice was issued by Ahmedabad
Municipal Corporation on 17.05.2022 (Annexure-VI, Page-74) to
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do the needful noticing hazardous and dangerous condition of
the flats in question and danger to the lives of the residents.
Accordingly, though action of demolition of flats in question
was required urgently, resolution No.13 dated 27.05.2022 was
passed to identify non-cooperative members and initiate legal
action. Accordingly, resolution No.25 dated 10.12.2022 was
passed inviting objections from dissenting members. Structural
Stability Report was obtained from AMC- licensed Engineer
(Hiteshkumar S. Devmurari, Grade-I) on 04.01.2023. As per
Structure Stability Report dated 04.01.2023, Engineer had
suggested demolition and reconstruction. Accordingly, decision
was taken for redevelopment wherein earlier 89% members had
supported the redevelopment, which later on increased to 96%
members, which is evident from the meeting held on
30.01.2023 (Annexure-IX, Page-104). Deed of Declaration was
signed between the Developer and majority members on
27.11.2022. Prior to that, the plan was discussed, area given
upon redevelopment, monthly rent, transportation charges and
other requirement upon redevelopment was discussed first and
forming part of deed of declaration dated 04.02.2023.
5.3 Thereafter, MOU was entered into between respondent
No.5- M/s.Dynamic Infracon and individual member on
21.06.2023 whereby 149 out of 165 members (91%) had
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signed. Thus, only 16 dissenters remain. During the pendency
of this petition, 8 dissenters had settled their dispute and
therefore only 8 dissenters had not signed the MOU with
respondent No.5.
5.4 Further, during pendency of this petition, earlier 8
members, who had dissented, out of those 7 members having
their flats Nos.2/A/15, 6/B/47, 10/A/47, 11/A/40, 12/B/52,
12/B/50 and 13/B/61 had consented for redevelopment. Thus,
on the date of hearing of this petition, only one member i.e.
Respondent No. 18 having flat No.11/A/39 has not consented
for redevelopment.
5.5 Learned advocate submitted that objections are raised by
members (respondent no.18) having dispute with regard to
ownership of the flat, for which, proceedings are pending
before learned Trial Court and the petitioner society is
agreeable to abide by the directions of the Civil Court,
Ahmedabad in Regular Civil Suit No. 176/2022 filed by
respondent No.18 against respondent No.17 is pending.
5.6 Learned advocate further submitted that though
respondent No.18 was in possession and pursis is filed before
the Trial Court to the effect that the petitioner society will
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hand over the possession upon redevelopment to the member,
who was in possession, shall have to be ignored and thus, the
pursis is not pressed at this stage by the petitioner.
6. Learned advocate Mr.Nikhilesh Shah for respondent No.18
- sole objecting member submitted that pursis filed is contrary
since the suit is pending before the Trial Court. Learned
advocate for objecting member submitted that if the order is
passed permitting redevelopment subject to giving possession of
the flat in question shall be handed over as per direction of
the Trial Court, he has no objection. Further, transportation
charges, rent and other consequential charges during pendency
of redevelopment, if any to be paid, shall be deposited before
Nazir of the Trial Court. Such a direction would serve and
protect the interest of respondent no.18. Learned advocate
submitted that Civil Suit is filed by respondent No.18 against
respondent No.17 and therefore, order and judgement is
binding to the parties.
7. Considered the submissions and documents on record. As
stated hereinabove, the flats in question being more than 45
years old and in dilapidated condition, is evident from the
Notice issued by Ahmedabad Municipal Corporation on
29.09.2021 followed by another Notice dated 17.05.2022.
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Further, Notices refer to dilapidated construction dangerous to
human lives cannot be ignored.
8. Moreover, it is evident that the construction is more than
45 years and more than 91% members had agreed for
redevelopment at the time of filing of the petition and at
present only 1 member dissented for redevelopment. Therefore,
requirement of section 41-A of the Act have been fulfilled.
9. It would be apposite to refer to the decision of this court
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
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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.
10. Thus, since the petitioner society has met and complied
with the conditions enumerated in Section 41-A of the Act and
decided to go for redevelopment, this Court under section 226
of the Constitution of India is inclined to entertain this present
petition.
11. Further, it is not case of objecting member that the
petitioner society has not followed the procedure therefore,
considering the procedure followed, as narrated hereinabove in
earlier paragraphs, this court deems it appropriate not to
reiterate the procedure and take it as procedure being followed
and not objected by any of the members for redevelopment. It
is no one's case that redevelopment shall not be permitted on
account of non-following the procedure.
12. Moreover, MOU is consciously signed by majority of the
members and from various covenants of the MOU, it is noticed
that members are benefited by redevelopment and other
requirement of payment of rent, transportation charges and
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consequential benefits have been taken care of. Thus, only
issue remains with regard to respondent No.18, and it is
noticed that he is not agreeable to the pursis filed along with
affidavit by the petitioner society, stating that the petitioner
Society will hand over the possession to the member, who is
in possession at the time of vacation of flats in question. In
this relation, it is noticed that respondent No.18 has filed Civil
Suit against respondent No.17 and the same is pending
adjudication where ownership right is yet to be decided by the
learned Trial Court. Therefore, in the opinion of this court, if
the petitioner society is directed to hand over possession as per
decision of Trial Court, it would meet the ends of justice. It is
further directed that even the rent, transportation charges and
any other consequential benefits, if any paid by respondent
No.5- Developer, the same shall be deposited before the Nazir
of the Trial Court and learned Trial Court shall decide the
payment to be made of this amount upon adjudication of the
civil suit.
13. For the foregoing reasons, the prayers prayed in the
present petition are required to be allowed and the same are
allowed.
14. Therefore, following directions are issued that would
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safeguard the interest of all members including respondent
No.18, which are as under:
14.1 Since, few of the member of the society have agreed to
the redevelopment during the pendency of this petition, they
are also directed to hand over vacant and peaceful possession
of their respective flats to the petitioner society within the
period of eight weeks from the date of receipt of this order.
14.2 Respondent No.18 is directed to hand over vacant
possession of flat No.11/A/39 to the petitioner society, within a
period of eight weeks from the date of receipt of this order.
14.3 Since Respondent No.18 was in possession of flat No.
11/A/39, the transportation cost shall be given to respondent
No.18, upon he/she giving peaceful vacant possession of the
said flat.
14.4 The petitioner Society, respondent No.18 and respondent
No.5- M/s.Dynamic Infracon are directed to abide with the
orders passed by the Civil Court, Ahmedabad in Regular Civil
Suit No. 176/2022.
14.5 The petitioner Society and respondent No. 5 -
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M/s.Dynamic Infracon is directed to hand over the possession
of new flat in lieu of existing flat No.11/A/39 to such person
or the persons as may be directed by the Civil Court,
Ahmedabad in Regular Civil Suit No. 176/2022.
14.6 Respondent No. 5 - M/s.Dynamic Infracon is directed to
deposit monthly rent amount for flat No.11/A/39 and other
amount to be paid to the members as per MOU before the
Nazir of Civil Court, Ahmedabad where the Regular Civil Suit
No. 176/2022 is pending and the same shall be disbursed as
may be directed by the Trial Court.
14.7 With regard to the pursis filed by the petitioner society
undertaking to grant the possession of the new flat in the
redeveloped society to the member in possession of the flat at
the time of vacation of flats, in view of the submission made
on behalf of petitioner shall stand withdrawn and not to be
considered by learned Trial Court.
15. Respondent Nos. 17 and 18 are directed to cooperate in
the redevelopment of petitioner society and shall strictly abide
by the decision of the Civil Court, Ahmedabad in Regular Civil
Suit No. 176/2022.
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16. With this, the present petition is allowed to the aforesaid
extent. Rule is made absolute to the aforesaid extent.
sd/-
(MAUNA M. BHATT,J)
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