Gujarat High Court
Lalbhai Apartment Co-Operative ... vs Ahmedabad Municipal Corporation on 28 February, 2025
NEUTRAL CITATION
C/SCA/7250/2024 JUDGMENT DATED: 28/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7250 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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Approved for Reporting Yes No
No
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LALBHAI APARTMENT CO-OPERATIVE HOUSING SOCIETY LTD.
Versus
AHMEDABAD MUNICIPAL CORPORATION & ORS.
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Appearance:
MR. R. K. RAJPUT(6988) for the Petitioner(s) No. 1
MR DEEP VYAS for the Respondent(s) No. 1
MR RAJESH M CHAUHAN(2470) for the Respondent(s) No. 2,3,4,5
DS AFF.NOT FILED (N) for the Respondent(s) No. 6
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 28/02/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate Mr.Deep
Vyas waives service of notice of rule on behalf of respondent
No.1 and learned advocate Mr. Rajesh Chauhan waives service
of notice of rule on behalf of respondent Nos.2 to 5.
2. This petition is filed seeking to direct respondent No.1 -
Ahmedabad Municipal Corporation to get peaceful vacant
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possession from respondent Nos.2 to 5 for redevelopment of
the subject society. Directions against Respondents Nos. 2 to 5
are also sought for peaceful vacant possession of their
apartments.
3. The brief facts referred in the petition are as under:
3.1 Petitioner herein is a Cooperative Society registered under
the provisions of the Gujarat Co-operative Societies Act, 1981.
The construction was also done in the year 1981 and building
use permission was also granted in the year 1981. It is case of
the petitioner that on account of dilapidated condition of the
apartments in question, for which repairs being practically not
possible, the society by its General Body Meeting has decided
to redevelop the said apartments and accordingly, the
procedure was initiated and followed with the consent of
majority members. Majority of members of the society (out of
48 members, 44 members) have agreed for redevelopment of
subject apartments. Thus, more than 75% members of the
petitioner society had consented for redevelopment.
Accordingly, after having discussion in the General Body
Meeting of the Society, it was unanimously decided to assign
work of redevelopment to respondent No.6. Memorandum of
Understanding (MOU) was entered into by all 44 members
individually after having understood the terms and conditions
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of the MOU. Despite that, since respondent Nos.2 to 5 were
not in agreement to give peaceful vacant possession of the
subject apartments, this petition is filed.
4. Heard learned advocate Mr. R.K.Rajput for the petitioner.
Learned advocate submitted that this issue is no more res
integra since, the requirements of Section 41A of the Gujarat
Ownership Flats Act, 2018 ("The Act 2018" for short) have
been fulfilled. It is not in dispute that construction of the
subject apartments is more than 25 years old. Further, the
dilapidated condition of the society is supported by the
Structural Engineers' report dated 30.03.2024 (Annexure D
page 56) as also the notice issued by Ahmedabad Municipal
Corporation under Section 264 of the Gujarat Provincial
Municipal Corporation Act, 1949 ("the Act 1949" for short)
dated 05.04.2024. In the said notice, the Municipal Corporation
has observed that condition of construction is dangerous to
human life residing therein. Accordingly, the General Body
Meeting was held by the society and a resolution dated
21.11.2021 (Annexure C page 24) was passed to redevelop the
apartments of the petitioner society by assigning work of
redevelopment to respondent No.6. The said resolution was
signed by 44 members out of total 48 members, therefore the
procedure before decision of redevelopment was followed.
Further, respondent No.6 explained the terms and conditions of
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the redevelopment and after that all 44 members have signed
the MOU with respondent No.6. The project report and
appointment of architect is forming part of terms and
conditions of MOU. However, respondent Nos.2 to 5 had not
shown willingness to give peaceful possession of their
apartments without any plausible ground. Therefore,
respondents no.2 to 5 may be directed to give peaceful vacant
possession of their apartments.
5. On the other hand, learned advocate Mr.Rajesh Chauhan
appearing for respondent Nos.2 to 5 submitted that the MOU
entered into between the parties is prejudicial to the interest of
members. Referring to one of the conditions of the MOU,
learned advocate submitted that the bank guarantee as security
of Rs.1 crore, is agreed to be deposited by respondent no.6.
which is not sufficient. Rs.1 crore towards security is not the
sufficient amount, it ought to have been Rs. 5 crores.
Moreover, conditions No.8 of MOU refers to non-payment of
rent in case of any 3rd party rights and that condition is also
prejudicial to the interest of the members. However, learned
advocate could not point out any procedural irregularity or
non-fulfillment of conditions mandated under Section 41A of
the Act, 2018.
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6. Learned advocate Mr.Deep Vyas for respondent No.1 -
Municipal Corporation submitted that the condition of the
society is in dilapidated state is evident from the notice under
Section 264 of the Act, 1949 dated 05.04.2024. Considering the
dilapidated conditions notice was issued. However, majority
members have decided to redevelop, and it is their own
decision for redevelopment. Further, the prayer prayed to
direct respondent - Corporation is beyond the scope of
provisions of the Act, 2018 and, therefore, directions may not
be issued against respondent - Corporation.
7. Considered the submissions and documents on record. It
is noticed that the society is having the construction of more
than 40 years and the same is in dilapidated state. Dilapidated
condition is evident from photographs at Annexure B page 11,
supported by the Structural Engineers report at Annexure D
page 56 and the notice issued by respondent - Corporation
under Section 264 of the Act, 1949. It appears that pursuant to
dilapidated condition of the society, and as per submission of
the petitioner repairs being not possible, majority members of
the society had decided to redevelop and accordingly, a
resolution was passed on 21.11.2021, in General Body Meeting
of the Society to redevelop the apartments in question by
giving work of redevelopment to respondent No.6. The said
resolution was signed by 44 members out of 48 members and,
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therefore, it is true that more than 75 % members have
consented for redevelopment. Moreover, the redevelopment
agreement dated 09.12.2021 was also signed by 44 members
except respondent Nos.2 to 5, therefore, in the opinion of this
Court, the conditions of Section 41A of the Act, 2018, have
been fulfilled in this case.
8. Now in relation to the objections raised by respondent
Nos. 2 to 5, particularly in relation to the lesser payment of
bank guarantee and non-payment of rent in case of 3 rd party
rights, no explanation has been offered by filing affidavit that
how the said conditions are prejudice to the interest of
members. It is not the case of respondent Nos.2 to 5 that
other developer had given better offer, or they had made
efforts to get better offer than offered by respondent no.6. In
the opinion of this Court, only for the sake of objections, oral
submissions are made without filing affidavit or placing
contrary evidence on record.
9. At this stage it is apposite to refer to the decision of this
Court in Sarojben Kiritbhai Shah V/s. Ahmedabad 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
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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 mold the reliefs to meet the peculiar and
complicated requirements of this country. Any
attempt to equate the scope of the power of the
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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 grow n 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."
10. In one more decision, in the case of Rabari Tejmalbhai
Gagabhai v. Ratnamani Cooperative Housing Society Limited in
Letters Patent Appeal No.1427 of 2023, 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 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.
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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 redevelopment project. The
special general body meeting shall take a decision with
the consent of not less than 75% of the total members of
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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
term s 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.
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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."
11. For the foregoing reasons, the petition is required to be
considered under Section 41A of the Act, 2018 since the
petitioner society has made and complied with the conditions
enumerated under Section 41A of the act and decided to go for
redevelopment, this Court under Article 226 of the Constitution
of India is inclined to entertain this petition.
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12. For the foregoing reasons, the prayer prayed in the
present petition is required to be allowed directing respondent
Nos.2 to 5 to vacate their respective apartments in the
petitioner society and to hand over peaceful and vacant
possessions thereby for redevelopment under Section 41A of
the Act, 2018 within a period of eight weeks from the date of
receipt of the order.
13. With this, the present petition is allowed. Rule made
absolute. No costs.
(MAUNA M. BHATT,J)
NAIR SMITA V./03-SB-I
