Gujarat High Court
Chandrika Owners Association vs State Of Gujarat on 10 September, 2025
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C/SCA/12364/2024 JUDGMENT DATED: 10/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12364 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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Approved for Reporting Yes No
No
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CHANDRIKA OWNERS ASSOCIATION
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR VIRAL K SHAH(5210) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, LD.ASSTT. GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR ANUJ K TRIVEDI(6251) WITH MS VAIDEHI PARIKH for the
Respondent(s) No. 2
MR JAYESH A DAVE(253) for the Respondent(s) No. 3,4,5
NOTICE SERVED BY DS for the Respondent(s) No. 6
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 10/09/2025
ORAL JUDGMENT
1. Rule returnable forthwith. Learned Assistant Government
Pleader Mr.Sahil Trivedi waives service of Rule on behalf of
respondent No.1, learned advocate Mr.Anuj Trivedi waives
service of Rule on behalf of respondent No.2 and learned
advocate Mr.Jayesh Dave waives service of Rule on behalf of
respondent Nos.3 to 5.
2. This petition is filed seeking to direct respondent Nos.3
to 5 herein (private respondents) to vacate their premises for
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the purpose of redevelopment and further relief is sought to
direct them to execute MOU with respondent No.6 (Developer),
for allotment of their premises upon redevelopment.
3. It is case of the petitioner that on account of dilapidated
condition of the petitioner society, containing flats and shops,
they are required to be demolished. Further, the petitioner
society took decision to undertake redevelopment because
considering the condition of flats and shops (premises in
question), the repairs and restructuring was not possible.
Therefore, majority members took conscious decision to go for
redevelopment. Since respondent Nos.3 to 5 are objecting and
not vacating their premises, this petition is filed.
4. Heard learned advocate Mr.Viral Shah for the petitioner,
learned Assistant Government Pleader Mr.Sahil Trivedi for
respondent No.1, learned advocate Mr.Anuj Trivedi for
respondent No.2 and learned advocate Mr.Jayesh Dave for
respondent Nos.3 to 5.
5. Learned advocate for the petitioner submitted that the
petitioner is a non-trading Corporation registered under Non-
Corporation Trading Act on 10.09.1987. The NTC contains 13
flats and 6 shops, situated on the land of City Survey
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No.3941/1, Final Plot No.0178, Town Planning Scheme No.026
(Vasna North), Mouje: Vasna, Taluka City, District:
Ahmedabad. The petitioner- NTC, constructed 13 Flats and 6
Shops on aforestated survey number in the year 1987-88
(hereinafter referred to as "premises in question").
5.1 It is case of the petitioner that on account of dilapidated
condition of the premises in question, the petitioner association
had decided in its general body meeting to go for
redevelopment of the Flats and Shops in question. For the
dilapidated condition of the society, learned advocate for the
petitioner has relied upon Notice dated 09.07.2024 (Annexure
"C" Page-26) issued under section 264 of the Gujarat
Provincial Municipal Corporation Act (the 'GPMC Act").
Referring to the Notice dated 09.07.2024, learned advocate
submitted that construction of the premises in question is
dilapidated, is not in dispute. Thereafter, one more Notice was
served by the Corporation on 16.07.2024, under section 264 of
the GPMC Act wherein the structure of the premises in
question was referred as dangerous to human lives. On account
of dilapidated and dangerous condition of the premises in
question coupled with the fact that the building was
constructed more than 25 years old, a conscious decision was
taken by the society in its general body meeting on 05.02.2024
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that appropriate meeting may be called to take decision for
redevelopment of the premises in question so that, the
procedure as contemplated under the provisions of Gujarat
Ownership Flats Act, 1973 is followed.
5.2 Learned advocate for the petitioner submitted that by
resolution dated 05.02.2024, a decision was taken for
redevelopment of the premises in question. This resolution was
signed by all members of the society. Therefore, agreement of
all members of the society for redevelopment is not in dispute.
Referring to section 41-A of the Gujarat Ownership Flats Act,
learned advocate submitted that thus conditions provided under
section 41-A of the Gujarat Ownership Flats Act have been
complied with. Accordingly, the decision was taken to
redevelop the petitioner society by entrusting the work to
respondent No.6. By placing reliance on resolution dated
30.03.2024 (Annexure "G" Page-33), learned advocate
submitted that considering the offer given by respondent No.6,
a decision was taken to allot redevelopment work to
respondent No.6, by majority members. Prior to that, Structure
Stability Report dated 22.06.2024 was done, wherein it was
reported that entire structure of the building is in dilapidated
condition and risky to use. In support of this submission,
learned advocate relied upon Structural Stability report and
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photographs annexed.
5.3 Thus, after decision of majority members to entrust work
to respondent No.6, detail offer was called for and made
available from respondent No.6 with regard to specification to
be provided to each member including shop owners upon
redevelopment. At that stage, respondent Nos.3 to 5 did not
vacate their premises in question and therefore, this petition
was filed seeking to direct them to vacate their respective
shops. Learned advocate therefore submitted that in view of
requirement of section 41-A of Act, being fulfilled, objections
raised by private respondent Nos.3 to 5 being meritless,
deserves to be ignored. Moreover, presumption on the part of
private respondents that they will be allotted lesser area is
beyond facts. As per MOU entered into by members of
petitioner- NTC, with respondent No.6, each member will be
allotted the area as referred in the MOU and no member is to
get lesser area than what he possessed.
5.4 Learned advocate Mr.Viral Shah has also relied upon
order dated 25.02.2025 and submitted that pursuant to
directions of this court, measurement was carried out by
respondent-corporation and as decided in the general board
meeting by passing the resolution, even private respondent
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Nos.3 to 5 shall be given area as they were possessing at the
time of original allotment and as per the Building Use
permission granted. Learned advocate therefore submitted that
this petition may be allowed by directing respondent Nos.3 to
5 to vacate their premises in question so that redevelopment
process can be progressed.
6. Learned advocate Mr.Anuj Trivedi for the respondent-
corporation submitted that pursuant to directions of this court
dated 25.02.2025, office of respondent-corporation visited the
subject premises and carried out measurement. Shop No.5 is
having 11.96 sq.mtrs. of area and Shop No.6 is having 24.27
sq.mtrs of area. This measure is as per Building Use Permission
granted by the Corporation at the relevant point of time.
Learned advocate Mr. Trivedi further submitted that so far as
Notices issued by the Corporation under section 264 is
concerned, it cannot be disputed that the subject premises is in
dilapidated and in dangerous condition. However, the
corporation is not concerned with redevelopment of the society
or otherwise, and if the decision is taken by majority of
members.
7. Learned advocate Mr.Jayesh Dave for respondent Nos.3 to
5 submitted that respondent Nos.3 to 5 are possessing the
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shops and flats and they are not averse to the redevelopment.
Learned advocate by referring to the affidavit submitted that it
is stated on oath that respondent Nos.3 to 5 are not objecting
to the redevelopment of premises in question but are only
concerned about carpet area of their premises. Therefore, if the
area, originally allotted to them, is to be allotted upon
redevelopment by respondent no.-6, they are not objecting to
any redevelopment and support the decision of general body
meeting of the petitioner.
8. Considered the submissions and documents on record.
From the facts and submissions recorded hereinabove, it is
noticed that it was a conscious decision by the petitioner
association basis the dilapidated and dangerous condition of
the premises in question to go for redevelopment as repairs
and renovation was not possible. Further, the Notices issued by
the Corporation under section 264 of the GPMC Act cannot be
ignored.
9. So far as requirement of Section 41-A of the Gujarat
Ownership Flats Act is concerned, in the opinion of this court,
they are complied with since admittedly, structure of premises
in question is more than 25 years old and more than 75%
members of the petitioner association had agreed for
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redevelopment. Moreover, it is not case of private respondents
that the society has failed in following the procedure as
provided under the provisions of Gujarat Ownership Flats Act.
10. At this stage, it would be apposite to refer the decision
of this court rendered 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 neighborhood thereof;
(iii) Consent of not less than 75% of the members of the
building for redevelopment of the building has been
obtained.
11. Therefore, only objection, which this court notice from
the private respondents is with regard to area of premises,
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proposed to be allotted to them upon redevelopment of the
Flats and Shops in question. This aspect is also taken care of
since the statement is made on behalf of the petitioner
association that every member shall be allotted the area, as
referred in the MOU and in any case not lesser than what they
originally possessed, as per original allotment. On the contrary
all members are getting more area than what they possessed.
In other words, no member is going to get lesser area than
that they possessed originally and therefore, submission
canvassed is presumption on part of the private respondents
that they are to get lesser area, and therefore it does not merit
acceptance. Further, it is also noticed that pursuant to the
order dated 25.02.2025, officers of Corporation visited and did
measurement and as per the measurement done, Shop No.5 is
having 11.96 sq.mtrs. of area and Shop No.6 is having 24.27
sq.mtrs of area and the said area shall be made available to
private respondents. Therefore, in the opinion of this court,
grievance raised by respondents no.3 to5 is only presumption,
without any supporting documents and therefore, the same
deserves to be ignored.
12. Moreover, statement made on oath on affidavit filed by
respondent Nos.3 to 5 that they are not objecting to the
redevelopment but only concerned with the carpet area, is
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relevant since as suggested and as per MOU entered into
between the members and respondent No.6 that no member is
going to get lesser area and therefore, this petition deserves
consideration.
13. For the foregoing reasons, the petition is required to be
considered under Section 41A of the Act, 2018. Since, the
petitioner society had complied with the conditions enumerated
under Section 41A of the Act 2018 and decided to go for
redevelopment, this Court under Article 226 of the Constitution
of India is inclined to entertain this petition.
14. For the foregoing reasons, the prayer prayed in the
present petition is allowed, directing respondent Nos.3 to 5 to
vacate their premises in question in the petitioner society and
to hand over peaceful and vacant possessions thereby for
redevelopment within a period of eight weeks from the date of
receipt of the order.
15. With this, the present petition is allowed. Rule made
absolute. No costs. Direct service is permitted.
sd/-
(MAUNA M. BHATT,J)
DIPTI PATEL...
