Gujarat High Court

Ojas Co-Operative Housing Society ... vs State Of Gujarat on 26 September, 2025

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                             C/SCA/12133/2023                                      JUDGMENT DATED:
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                                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                 R/SPECIAL CIVIL APPLICATION NO. 12133 of 2023


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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                                    Approved for Reporting                Yes           No

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                                 OJAS CO-OPERATIVE HOUSING SOCIETY LIMITED & ORS.
                                                      Versus
                                             STATE OF GUJARAT & ORS.
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                       Appearance:
                       MR JAL UNWALA, LD.SENIOR ADVOCATE WITH HIMA K PATEL(9471)
                       for the Petitioner(s) No. 1,1.1,1.2
                       MS MONIKA K THAKKAR(12055) for the Petitioner(s) No. 1,1.1,1.2

                       DR.ABHISST K THAKER(7010) for the Respondent(s) No. 18
                       MS SUMAN MOTLA, LD.ASSTT. GOVERNMENT PLEADER for the
                       Respondent(s) No. 1
                       MR DEEP D VYAS(3869) for the Respondent(s) No. 2
                       MR MAULIK S SHETH(3586) for the Respondent(s) No. 5
                       MR VC VAGHELA(1720) for the Respondent(s) No.
                       10,11,14,16,20,21,24,6,8
                       MR. JIT P PATEL(6994) for the Respondent(s) No. 15,22,25,7,9
                       NOTICE SERVED for the Respondent(s) No. 12,13,17,19,23,3,4
                       =============================================

                            CORAM: HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                                      Date : 26/09/2025

                                                      ORAL JUDGMENT

1. Rule returnable forthwith. Learned AGP Ms.Suman Motla waives service of Rule for respondent No.1, learned advocate Mr.Deep Vyas waives service of Rule for respondent No.2,

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learned advocate Mr.Maulik Sheth waives service of Rule for respondent No.5, learned advocate Dr.Abhisst Thaker waives service of Rule for respondent No.18, learned advocate Mr.V.C.Vaghela waives service of Rule for respondent Nos.6, 8, 10, 11, 14, 16, 20, 21, 24 and learned advocate Mr.Jit Patel waives service of Rule for respondent Nos.7, 9, 15, 22 & 25.

2. This petition is filed seeking to direct private respondents to hand over peaceful and vacant possession of their respective flats for the purpose of redevelopment. It is case of the petitioners that they are fulfilling the requirement as provided under Section 41A of the Gujarat Ownership Flats Act, 1973 and therefore, they are entitled for redevelopment of the flats in question. Accordingly, objecting members may be directed to give peaceful and vacant possession of their respective flats.

3. Brief facts, as referred in the petition, are as under:

3.1 Petitioner No.1 herein is Co-operative Housing Society registered under the provisions of the Gujarat Co-operative Societies Act, having registration No.GH-6569 dated 17.10.1977. The society is situated on Final Plot No. 240/paiki of Town Planning Scheme No.21 (Ambawadi) of Village Vastrapur of District Ahmedabad. The society contains in all 76

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members and petitioner Nos.1.1 and 1.2 are Secretary and Chairman of the society respectively. The society has authorized petitioner Nos.1.1 and 1.2 to file this petition.

3.2 It is case of the petitioners that pursuant to Development Permission granted earlier in the year 1978, petitioner No.1 constructed in all 74 residential units with 2 commercial units on the land approximately of 10,447 sq mts. Upon construction being over, Building Use Permission was granted by respondent-corporation on 19.10.1978 and therefore, construction of the building is admittedly more than 45 years old. On account of old construction of the building and looking to its condition, the society decided to appoint Structural Engineer to ascertained the feasibility or otherwise of repairs of structure. The Structural Engineer gave its report on 14.09.2020 (Annexure "I", Page 86) that building cannot be repaired because of its dilapidated and dangerous condition.

3.3 Even the Municipal Corporation issued Notice on 19.10.2020 (Annexure "K", Page-92) to the Society declaring the structure as dilapidated and dangerous. It is the Notice under Section 264 of Gujarat Provincial Municipal Corporation Act by Municipal Corporation it is stated that on account of dangerous condition of the society, immediate action is

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required. Accordingly, the petitioner society by its majority members after taking a decision to go for redevelopment and to avail the best offer, issued public advertisement dated 07.08.2022 (Annexure "D", Page 49) in a local newspaper inviting offers.

3.4 After issuance of the public advertisement, the society in its Special General Body Meeting dated 12.11.2022 (Annexure "F", Page 57) resolved to go for redevelopment and also decided to consider offer of respondent No.5 for allotment of work of redevelopment. This decision was taken consciously and voluntarily by more than 75 % of members. However, few of the members have not accepted the offer of respondent No.5- Developer and not entered into MOU, leading to filing of this petition.

4. Heard Learned Senior Advocate Mr.Jal Unwala with learned advocate Hima K Patel for the petitioners, learned AGP Ms.Suman Motla for respondent No.1, learned advocate Mr.Deep Vyas for respondent No.2, learned advocate Mr.Maulik Sheth for respondent No.5, learned advocate Dr.Abhisst Thaker for respondent No.18, learned advocate Mr.V.C.Vaghela for respondent Nos. 6, 8, 10, 11, 14, 16, 20, 21, 24 and learned advocate Mr.Jit Patel for respondent Nos.7, 9, 15, 22 & 25.

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5. Learned senior advocate for the petitioners' invited attention of this Court to the Chronology stated hereinabove to submit that undisputedly condition of the flats in question is dilapidated and dangerous. This aspect is evident from the Notices of the Corporation dated 19.10.2020 and 07.08.2022. A structural engineer's report dated 14.09.2020 at Annexure-I page 86, states so. Accordingly, in a Special General Meeting of the society, it was decided to go for redevelopment of the flats in question and thereafter, majority members have taken a decision to allot work of redevelopment to respondent No.5, whose offer is a better offer. This decision was taken after giving advertisement for inviting offers and therefore, there is transparency in the process.

5.1 Moreover, in this case, more than 75% members have agreed to go for redevelopment with respondent No.5 -

Developer and accordingly, out of 76 members, 58 members have entered into MOU. Further, the offer given by the petitioner is a better offer, which is evident from the proposal of respondent No.5 wherein it is stated that every member is to give a better amenities with bigger area upon redevelopment.








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                       5.2      Learned          Senior   Advocate         submitted    that,        earlier

respondent Nos.6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 23, 24, 25 were objecting, however, during pendency of this petition, except respondent Nos.19, 20 and 21, other private respondents have given their consent for redevelopment and therefore, the objections as on date remained of private respondent Nos.19, 20 & 21 only. During pendency of this petition, all other private respondents except respondent Nos.19, 20 & 21 have filed their affidavits showing their willingness for redevelopment, which is now on record of this petition. Therefore, the objections taken by respondent Nos.19, 20 & 21 being without any basis by minuscule members, may be ignored.

5.3 Learned Senior Advocate therefore submitted that since the better proposal of respondent No.5 after following the due procedure under Gujarat Ownership Flats Act, have been accepted wherein, majority members have agreed to go for redevelopment, this petition may be allowed by directing objecting members to vacate their flats.

5.4 In relation to the objections raised by respondent Nos.19, learned senior advocate submitted though disagreed by not signing MOU with developer, the member though served has

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not neither appeared nor represented himself in this petition. Even in the general body meeting of the Society, respondent No.19 has not raised any objection by remaining present and therefore, his objection may be ignored.

5.5 With regard to respondent Nos.20 and 21, learned senior advocate submitted that though objection was taken against respondent no.5-developer, they failed in giving better proposal. Form the offer received annexed at Annexure "E"

page 50, it is evident that members are benefited by redevelopment. Even area and amenities to be provided, security and rent to be given for transit period etc. is been taken care of.

5.6 Moreover, this is not a Society where commercial construction is not permissible. For the same the petitioners have placed on record Resolution dated 05.08.1979 passed in the General Body Meeting wherein commercial construction is permitted and by-laws of the society were amended accordingly long back. Reliance has been placed on Resolution dated 05.08.1979 and by-laws of the society permitting commercial construction and permission. Therefore, the objections raised by respondent Nos.20 and 21 with regard to commercial construction may not be considered.







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                       5.7      Moreover,             it   cannot      be     denied     that      Building         Use

Permission was granted to the petitioner's society, containing flats and 2 commercial shops. Therefore, in view of the requirement of Section 41A of the Gujarat Ownership Flats Act, being fulfilled, this petition deserves to be allowed by directing the objecting members to give peaceful and vacate possession of their respective flats.

6. Considered the submissions and documents on record. At the outset, it is noticed that during pendency of this petition, earlier objecting respondents Nos. 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 23, 24, 25 have consented for redevelopment and have filed their respective affidavits agreeing to the redevelopment of a petitioner's society with the work to be allotted to respondent no.5-developer. Therefore, as on date only respondent Nos.19, 20 & 21 are not consenting to the redevelopment of the society.

7. In relation to respondent No.19, it is noticed that neither he has been represented by learned advocate nor remained present before this Court, despite service of Notice. Therefore, the nature of objection is not known and in view of voluntary conscious decision by majority members of the society, his objection deserves to be ignored

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8. In relation to respondent Nos.20 and 21, learned Advocate Mr.V.C.Vaghela submitted that respondent Nos.20 and 21 are having objections with regard to the commercial construction permitted in the petitioner's society. However, Learned Advocate Mr. Vaghela could not dispute about passing of resolution dated 05.08.1979 by the petitioner's society in the Annual General Body Meeting, whereby a decision was taken vide Resolution No.4 that the society will permit commercial construction and accordingly, amended the by- laws. As per the amended by-laws, commercial construction is permissible in the portion of the society. Further, it was not contended on behalf of respondent Nos.19 and 20 that the plan proposed by respondent no.5, permits construction contrary to the by-laws of the society.

9. Moreover, in this case, it is noticed that the petitioner society took a decision after Public Advertisement dated 07.08.2022 and pursuant to that, an offer of respondent No.5- Developer was accepted. This decision was taken in a Special Annual General Body Meeting dated 12.11.2022 wherein, out of 76 members, 56 members have signed and therefore, contention raised that more than 75% members have agreed for redevelopment merit acceptance.






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                             C/SCA/12133/2023                                      JUDGMENT DATED:
                                                            26/09/2025

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10. Further, from the Notices issued and Structural Stability Report relied upon by the petitioners, it is noticed that condition of the flats in question is dilapidated, dangerous and not advisable to repair. Therefore, in the opinion of this court when the conscious decision is taken by majority members, which is a voluntary decision, objections raised by the minuscule members without there being any documents to support their objections, is required to be ignored.

11. 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 occupying,

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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."

12. 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 petition.

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 safeguard the interest of all members including respondent Nos.19, 20 & 21, which are as under:

(i) Respondents No. 19,20 &21 are 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.

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