Gujarat High Court
Swami Vivekanandnagar Coopoerative ... vs Ahmedabad Municipal Corporation on 21 June, 2022
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8530 of 2019
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 8530 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 8530 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SWAMI VIVEKANANDNAGAR COOPOERATIVE HOUSING SOCIETY
LIMITED
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR SHALIN N MEHTA, SENIOR ADVOCATE WITH MS VISHWA G PATEL
for the Petitioner(s) No. 1
MR ALAY A DAVE(8219) for the Respondent(s) No. 4
MR YATIN N OZA, SENIOR ADVOCATE WITH MR AJIT S NAIR(10802) for
the Respondent(s) No. 9.1,9.2
MR PRASHANT G DESAI, SENIOR ADVOCATE WITH MR DEEP D
VYAS(3869) for the Respondent(s) No. 1
MR MASOOM K SHAH(6516) for the Respondent(s) No. 9
MR.GAJENDRA D SHARMA(6362) for the Respondent(s) No. 8
MS MOHINI K SHAH(775) for the Respondent(s) No. 9
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,7
SHRIJIT G PILLAI(7937) for the Respondent(s) No. 5,6
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C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022
CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 21/06/2022
CAV JUDGMENT
By the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.
2. Issue rule, returnable forthwith. Mr Deep D Vyas, learned advocate waives service of notice of rule on behalf of the respondent no.1, Mr Ajay A Dave, learned advocate waives service of notice of rule on behalf of the respondent no.4, Mr Shrijit G Pillai, learned advocate waives service of notice of rule on behalf of the respondent nos.5 and 6 and Mr Ajit S Nair, learned advocate waives service of notice of rule on behalf of the respondent nos.9.1 and 9.2.
3. The captioned writ petition, inter alia, prays for direction to the Ahmedabad Municipal Corporation i.e. respondent no.1 (hereinafter referred to as "the Corporation") to grant necessary permission for redevelopment of the residential flats situated at Vejalpur, Village: Jodhpur, forming part of Town Planning Scheme no.5, Final Plot no.173 and known as Swami Vivekanandnagar Co- operative Housing Society Limited (hereinafter referred to as the "petitioner - society") on the ground that the residential flats are approximately 48 years old and in a dilapidated condition, which require redevelopment at the earliest. The petitioner-society, initially had prayed for the following reliefs:-
"27(A). Your Lordships may be pleased to issue a writ of mandamus and/or writ in the nature of mandamus and/or appropriate writ, order or direction to the respondent corporation to grant necessary permission to demolish construction which is residential flats known as "Swami Vivekanandnagar Cooperative Housing Society Limited" and to grant further permission for redevelopment; which are suitable at Ahmedabad City (Vejalpur) Jodhpur village, T.P. Scheme No.5, Vajalpur, Final Plot No.173;
(B) In the alternative, Your Lordships may be pleased to issue a writ of mandamus and/or writ in the nature of mandamus and/or appropriate writ, order or direction, to Page 2 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 respondent corporation, to decide representation dated 06.12.2018 and 18.04.2019, submitted by the petitioner society within two weeks and/or within the time period as may be stipulated by this Hon'ble Court;
(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct respondent corporation to decide representation dated 16.12.2018 and 18.04.2019, submitted by the petitioner society within two weeks and/or within the time period as may be stipulated by this Hon'ble Court;
(D) An exparte ad interim relief in terms of prayer (C) above may kindly be granted.
(E) Such other and further relief/s as may be deemed just and necessary in the facts and circumstances of the present case may kindly be granted."
4. Subsequently, during the pendency and after enactment of the Gujarat Ownership Flats Act, 1973 (hereinafter referred to as the "Act of 1973"), by way of an amendment, following reliefs have been incorporated:-
"27(AA) Your Lordships be pleased to declare that the petitioner society fulfills the mandate of Section 41A of the Gujarat Ownerships Flats Act 1973 and is therefore entitled to redevelop the building on Final plot no. 173, T.P. Scheme No. 5, Vejalpur.
(BB) Your Lordships be pleased to issue a writ of mandamus commanding Respondent No.1,2 and 3 to permit the petitioner society herein to carry out the work of redevelopment on Final Plot No.173, T.P. Scheme No.5, Vejalpur, after demolishing the existing construction.
(BBB) Your lordships be pleased to issue a writ of mandamus directing Respondent No 1, 2 and 3 herein to sanction the re-
development plans submitted to them on 13.07.2019 so as to enable the petitioner society and the respondent no. 4 to execute such plan.
(CC) Your Lordships be pleased to issue a writ of mandamus commanding Respondent No.1,2 and 3 to require Respondent Nos.5,6,8 and 9 to hand over vacant and peaceful possession of their flats for the purpose of redevelopment as per Section 41A of the Gujarat Ownerships Flats Act, 1973."
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5. The learned counsel for the petitioner - society had declared before this Court that as almost all prayers stand redressed during the pendency of the petition, the prayer, which requires redressal, is prayer 27(CC), seeking direction to the respondent nos.1, 2 and 3 to require respondent nos.5, 6, 8 and 9 to hand over the vacant and peaceful possession of their flats for the purpose of redevelopment. Before proceeding further, following facts are required to be taken note of.
5.1. The captioned writ petition is filed by the petitioner - society i.e. Swami Vivekanandnagar Co-operative Housing Society Limited. According to it, there are 11 residential blocks, having 78 flats constructed over the final plot no.173. The building permission was granted in the year 1969 and revised plan was sanctioned in the year 1971. The occupants of the said residential flats have formed co-operative housing society, which is registered and bears registration no.GH 7476 dated 15.6.1979. According to the petitioner - society, by passage of time, the flats are in a dilapidated condition. Since last few years, the slabs, in each block, are in deteriorated condition and are damaged inasmuch as, internal steel frames of RCC slabs and other structural members, beams, columns etc. are open to environment, which causes further dangerous condition. On account of corrosion, the whole slab is likely to fall at any time which would endanger the humans/residents living in the said society.
5.2. The petitioner - society, therefore, resolved to go for redevelopment and issued advertisement dated 8.9.2018. Apropos which, developer - Excel Life Space LLP and others approached the petitioner - society and as a result of negotiation, the petitioner - society opted for Excel Life Space LLP as developer i.e. respondent no.4 for redevelopment of the society.
Page 4 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 5.3. On 6.12.2018, the petitioner - society informed the Corporation about the structure, which needed immediate attention and to take necessary steps/direction. Considering the same, the Corporation visited the premises and on 15.12.2018, issued notices under Section 264 of the Gujarat Provincial Municipal Corporation Act, 1949 (hereinafter referred to as "the Act of 1949") upon the petitioner - society to repair it under the supervision of the structural engineer and submit necessary structural stability certificate. The petitioner - society, accordingly, requested for structural stability report from Shriji Structurals and it, vide reported 7.1.2019, opined to demolish the flats and reconstruct the same. In the interregnum, the petitioner - society got non-destructive testing done by M.K. Soil Testing Laboratory and as per the report, the flats being 45 years old, it was advised to take opinion of the structural engineer at the earliest. Further, as per the said report, the quality of the building is doubtful and in a very bad condition. On 29.3.2019, the petitioner - society submitted the structural engineer report and soil report to the Corporation, as required and requested it to take necessary steps. Despite submission of the requisite reports, the grievance of the petitioner - society has been, that the Corporation has not granted necessary permission. Out of about 78 members, 74 members of the petitioner - society have signed a notarized consent letter agreeing to the redevelopment; however, only 4 members i.e. respondent nos.5 to 9 did not agree for redevelopment and are causing embarrassment and impeding the smooth redevelopment with vested interest. The resistance is to the effect that instead of redevelopment, the flats should be repaired.
5.4. Repeated representations and reminders have been made to the Corporation; however, of no avail.
5.5. Subsequently, on 5.4.2019, the petitioner - society, considering the representation of the dissenting members, requested the structural engineer to give an opinion as to the time Page 5 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 and money which would be invested in repairing of the buildings. The structural engineer gave report dated 11.4.2019 mentioning that the time required for repairing would be 18 - 24 months and the cost towards expenses for repairing all the 11 blocks, would be huge to be paid by the members of the petitioner - society. The petitioner
- society therefore, requested the Corporation to grant necessary permission so as to avoid any untoward incident, considering the condition of the flats.
5.6. The Act of 1973 came to be amended by the legislature on 21.5.2019 by adding Part - II-A, i.e. Section 41A, which provides for carrying out the work in relation to the redevelopment of a building on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75% of the flat owners of such building. After introduction of the said amendment, the petitioner - society had passed a resolution dated 17.2.2019, resolving to give full powers regarding redevelopment of the society to the administrative committee. On 16.6.2019, the petitioner - society, in its general body meeting, discussed the progress of redevelopment of the society. One of the agendas was to apprise the members about new Section 41A of the Act of 1973 and its effect on the redevelopment project. This was precisely for a reason to reconfirm their votes for redevelopment. The meeting was attended by more than 59 members i.e. 75%.
5.7. After the general body meeting, 62 members signed the resolution. According to the petitioner - society, there are 74 consenting members, out of which, 62 members attended the meeting and considering the fact that 74 members i.e. 94% out of total 78 members have consented for redevelopment earlier and considering the new provision, which provides for 75% consent, conscious decision was taken by the committee to take further necessary steps for redevelopment in conformity with the amended Section 41A of the Act of 1973.
Page 6 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 5.8. According to the petitioner - society, 74 members have signed the MoU dated 2.4.2019 with the developer containing the terms and conditions concerning the redevelopment. The petitioner - society has also the grievance that four dissenting members, only for their vested interest, resisting the redevelopment and possibly, the commercial activities which are carried out in the premises of the society. The respondent no.5 and 6 are running the computer repairing shop whereas, respondent no.9, operates construction consultancy firm. It is therefore, urged that the petitioner - society be permitted to go ahead with redevelopment in the interest of all the members and, more particularly, when as per the requirement of the amended Section 41A of the Act of 1973, there is a consent of more than 75% of the members, agreeing for redevelopment.
6. The respondents have filed their respective affidavits. The Corporation, has placed on record the documents vide paper-book dated 28.6.2021. Subsequently, it has filed the reply dated 29.6.2021. In the affidavit, inter alia, contention is raised about the availability of alternative remedy. In addition thereto, reference is also made about the notice dated 5.12.2018 issued by it, directing the petitioner-society to carry out the repairs. Referring to the order passed by this Court dated 7.8.2020, it is stated that it has taken a decision on 27.8.2020 on the basis of the material available on record. The affidavit further states about the undertaking so also, passing of the order dated 10.2.2021, after hearing all the concerned parties. The affidavit concludes by reference of the commencement letter dated 5.3.2021 issued in favour of the petitioner-society permitting it to carry out the construction over the property in question.
7. The respondent nos. 5 and 6 have also filed the detailed reply opposing the entertainment of the captioned writ petition on the grounds namely: (i) that the petition has been filed without any Page 7 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 authority by the Chairman; (ii) that they are the holders and possessors of the flat no. 1 in block-A, which is in a prime location and they have also paid considerable amount while purchasing the property considering its location; (iii) that it is incorrect that each and every block of the petitioner-society is in a dilapidated condition or that it causes a hazardous situation for the inhabitants; (iv) out of 78 flats, nearly about 50% are occupied by the tenant or are found allocated and hence more than 50% of the flats are not being used by the respective owners of the flats and therefore taking consent of the majority of the flat owners is incorrect; (v) that the aspect of awarding the work in favour of the builder was never conveyed or discussed either with the members of the society or in any general meeting; (vi) that after inspection by the officers of the Corporation, repair is needed only for block-D and that is why a notice under Section 264 of the Act of 1949 was issued by the Corporation; (vii) that the action/measure adopted by the Corporation clearly indicates that demolition or redevelopment is not required; (viii) instead of starting repairing work the office bearers of the society tried to get the permission for redevelopment; (ix) that threats were extended to the deponent to sign the development agreement and if they do not, they would be facing dire consequences; (x) that the signatures in the Memorandum of Understanding is also doubtful;
(xi) the affidavit concludes by raising the objection as regards the maintainability of the petition in absence of any resolution or authority by the society.
8. The respondent no. 8 has also filed the reply dated 23.9.2019 wherein preliminary objection has been raised against the maintainability of the captioned writ petition namely on the grounds; (i) that no cause of action is available; (ii) that authority is missing to file the present writ petition; (iii) that the petition has not been verified in conformity with the provisions of the Code of Civil Procedure, 1908; (iv) that the petition suffers from the vice of Page 8 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 suppressio veri and suggestio falsi (v) that the petitioner-society has not come with clean hands and dis-entitles itself to get any reliefs much less the reliefs prayed for in the petition; (vi) that the petitioner-society in collusion with respondent no. 4, with an ulterior motive, is attempting to dispossess the respondent from its own self acquired home.
8.1. In the reply, it has been stated that the society has been registered in the year 1979 with 11 blocks consisting of 78 flats. The reply is almost on similar lines to the reply filed by the respondent nos. 5 and 6. Reservation is expressed against the mode and manner of selecting the respondent no. 4 for redevelopment of society. Reference is also made about the society approaching the Corporation followed by its visit and issuance of the notice dated 15.12.2018 to the petitioner-society. Reference is also made against the structural report dated 7.1.2019 opining to demolish the building so also the soil report from MK soils. Major grievance is about the selection of respondent no. 4 so also the decision of removing the construction instead of taking steps for repairing the same in conformity with the notice dated 15.12.2018 issued under the provision of Section 264 of the Act of 1949. In paragraph no. 35 while dealing with contents of paragraph 15 of the petition memo it has been averred that the respondent no. 8 is opposing the redevelopment and the procedure which the office bearers of the petitioner-society has adopted. The allegation is made against unnecessary harassment and threats extended to him.
8.2. While citing the illustration of another case, where the developer has demolished the society and later on did not pay the members, and the members had to carry out the construction on their own, it is stated that the respondent no. 8 being a senior- citizen, if something goes wrong, then, he has no strength to respond to the same. It is stated that no clear picture has been provided by the developer i.e. the respondent no. 4 and further, Page 9 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 small and big flats are treated alike without considering the location. The reply raises a doubt about the report of the Structural Engineer wherein, it has been opined that 18 to 24 months time is likely to take for repair and there is involvement of a huge amount. It is also alleged that without considering the representation of the dissenting members, the report has been obtained. Allegation of collusion is also made against the office bearers of the petitioner-society on one hand and the respondent no. 4 i.e. the developer on the other. The reply concludes by stating that the petitioner-society does not have prima facie case and it has not come with clean hands and are hand in gloves with the developer and the society is not going to suffer irreparable loss or damage which cannot be compensated in terms of money and therefore it is urged that no case is made out for grant of any relief and the petition deserves to be dismissed.
9. The respondent no. 9 has filed the reply dated 15.9.2019, while respondent no.9.1 has filed reply dated 8.6.2021 as well as two replies, both dated 21.6.2021. In the reply of 15.9.2019, the objections have been raised, namely, about the maintainability of the captioned writ petition. None of the fundamental rights of the petitioner-society have been violated; the petitioner-society has not placed on record any resolution authorizing the society to file the captioned writ petition. In the reply, according to the respondent no. 9, the premises is being used for commercial use and residential purpose after taking permission from the society itself. In para no. 9, it has been stated that the respondent is neither dissenting the redevelopment nor opposing the said project. Reservation is shown against the allotment of the common space of society, as the allotment is not being done equally amongst the members of the society and instead it has been done in an irrational way, giving the cause to respondent no. 9 to raise objection or to disagree with the allotment. It is urged that the petitioner-society has obtained charges and distributed several funds equally amongst the Page 10 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 members irrespective of plot sizes held by the members and therefore, the common space of the society must be allotted in equal portion and not as per size of the lands the members are holding currently. Reservation is also shown against the report of the Engineer dated 11.4.2019, it being vague inasmuch as it fails to disclose the exact amount of expenditure towards the redevelopment project.
9.1. In the additional affidavit dated 8.6.2021, filed by the respondent no. 9.1 it has been reiterated that the respondent is not averse to the redevelopment of the society however, he is aggrieved by the mode and manner in which the allotment of redevelopment work has been undertaken by the petitioner-society. It is alleged that the petitioner-society has after considering the stand of the respondent no. 4 selected it and in collusion with respondent no. 4, it is trying to redevelop the society. Financial strength of the respondent no. 4 is also challenged on the ground that the redevelopment project of such a big scale i.e. Rs. 250-300 crore cannot be undertaken by a new entity having a share capital of Rs. 1 lakh, with no past experience or proven record. The objection is raised against the petitioner-society of awarding the redevelopment work without accepting any bank guarantee or security deposit from the respondent no. 4 and putting the members of the society at risk. Though as per the Memorandum of Understanding dated 2.4.2019, a bank guarantee equal to 20% of the redevelopment work had been agreed but the respondent no. 4 has not adhered to the said condition. The affidavit, proceeds by further alleging that the petitioner-society in connivance with the respondent no. 4 has breached the terms and conditions of the Memorandum of Understanding dated 2.4.2019 wherein it has been stated that the redevelopment work would start if the consent for redevelopment had been received from all the members. Reference is also made to the Lavad Suit no. 314 of 2020 before the Board of Page 11 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 Nominees reiterating that the respondent is not averse to the redevelopment and only seeks for fair, transparent and unbiased allotment of the redevelopment work and for fair, transparent and unbiased allotment to a reputed builder in accordance with the resolutions passed by the society and applicable law, ensuring the interest of all the members of the society.
9.2. In the additional affidavit dated 21.6.2021, which is in response to the additional affidavit in rejoinder dated 11.6.2021 of the petitioner-society it has been stated that the same is filed highlighting the lack of transparency and lapses in the process of redevelopment of society which has created a serious risk jeopardizing the members of the petitioner-society. While referring to the provisions of the Act of 1973 read with the Gujarat Ownership Flat Rules, 1974 (hereinafter referred to as "the Rules of 1974"), it has been stated that though the petitioner-society claims to have complied with the provisions, it has failed to do so, as mandated in the newly added provisions of the Act of 1973 read with Rules of 1974. It has been stated in the reply that the respondent no. 9-wife predeceased respondent no. 9.1 and he is residing in the flat and is not having any other residential property to stay. It has also been stated that the respondent's status of living in the society or not staying there, has no bearing on his rights as a member and cannot prejudice it in any manner including but not limited to raising the objection/opposing the irregularity committed by the petitioner- society and the respondent no. 4. in the process of tendering redevelopment of the society. It has also been stated that direction issued by the Board of Nominees in Lavad Suit no. 529 of 2008 has been complied with and the illegal construction which was ordered to be removed has been removed. It has also been averred that mere presence of respondent-wife in any of the meetings cannot be construed as agreement with the manner in which the process of re- development of the petitioner-society is undertaken and it does not Page 12 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 take away the respondent's right to object. It has also been stated that both the resolutions were passed as regards the terms and conditions of the process of redevelopment but the petitioner- society has blatantly ignored them and proceeded to select the builder of its choice in complete violation of the rules and regulations laid down by the members. The reply concludes by stating that since no technical financial eligibility criteria was fixed or adhered to, while allotment of the redevelopment work, anyone can apply under the guise of 'group' which is not legal sanctity and application by such an unregistered entity leaves a lot of room for extraneous considerations, ambiguity and lack of transparency. It is therefore urged that the petition deserves to be dismissed.
9.3. Another reply dated 21.6.2021, responding to the additional affidavit-in-rejoinder dated 12.6.2021 of the respondent no. 4, is a reiteration to a great extent, of the reply to the additional affidavit- in-reply dated 21.6.2021. It has been alleged that the respondent no. 4 is making the payment of rent as per the terms and conditions of the Memorandum of Understanding dated 2.4.2019 and not for a charitable purpose. The expenses incurred by the respondent no. 4 are nothing when compared to the size of the redevelopment project and the amount of invested profit to the respondent no. 4. It is also stated that the respondent no. 4 would be making a profit of approximately Rs. 100 Crores without any benefit to the members of the society which is a cause of serious concern. It is therefore urged that the petition deserves to be dismissed.
10. Mr Shalin N. Mehta, learned Senior Counsel appearing with Ms Vishwa G Patel, learned advocate appearing for the petitioner- society submitted that there are four objections raised by the respondent nos.4, 5, 8 and 9.1 (collectively, hereinafter would be referred to as "the private respondents"), namely, (i) lesser common area; (ii) no repairing work is done; (iii) structural report and; (iv) consent letter. It is submitted that so far as the consent letter is Page 13 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 concerned, it has been taken from the owners and is notarized, as a specimen copy, one of which, is placed on record of the captioned writ petition. It is submitted that out of total 78 members, 74 members have duly signed the consent letter and has been notarized and all the members are the actual owners of the flats and possessing share certificates for the same. Moreover, the consent for redevelopment and MOU have also been of the members, who are the original owners of the flats. So far as reservation against the lesser common area is concerned, respondent no.9 had raised an objection vide letter dated 21.3.2019. So far as amenities of the society, namely, common plot, children play ground etc. are concerned, are always pro rata, which means that it is in the proportion to the area. It is also submitted that each member, initially, would have purchased the flat according to the size i.e. either 58 sq.yrds. or flat consisting of 94 sq.yrds. The concerned members would have paid according to the area, which has been purchased. It is also submitted that the builder is only redeveloping the society, considering the general development control regulations and is not buying the land of the society and therefore, the said objection of unfair distribution of the common area, does not arise. So far as the respondent nos.5, 6 and 8 are concerned, they possess the flats admeasuring 94 sq.yrds., while respondent nos.7 and 9 possess the flat admeasuring 58 sq. yrds.
10.1. It is next submitted that so far as the objection as regards the repair work is concerned, the private respondents have effectively acknowledged and admitted the fact that they are not against the redevelopment of the society nor are they opposing such project. It is submitted that the majority of the members are supporting redevelopment and do not wish to go for repairing of the society, as redeveloping the society is beneficial for the members whereas, repairing the blocks would only mean, incurring more cost to be paid out of the pockets of the members. It is submitted that maintenance Page 14 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 per flat is Rs.300/- and if the same is multiplied by 78 flats, it comes to Rs.23,400/-, out of which, Rs.14,000/- goes towards light bill, Rs.1500/- goes for the common light bill, Rs.5000/- is paid towards the salary of the sweeper; Rs.3000/- is given to the pagi and Rs.900/- is given to the gardener. Over and above, all the miscellaneous costs are incurred by the society. Despite the amount is meagre, 20% of the members do not pay the yearly maintenance and the society barely has any fund. It is submitted that as per the audit of the year 2018-2019, the balance is of Rs.14,66,365/-, of which, Rs.5 lacs was given by the developer as earnest money. In such an eventuality, repairing of all the blocks would not be feasible. As against this, as a result of the redevelopment, the members will be getting three years rent from the developer. The other benefits, which the members would be getting, is 68% more area than the existing flats, with latest facilities and amenities. It is submitted that the repairing would also require a substantial change of plumbing and drainage system and, more importantly, while undertaking the repairing work, members will have to move out of their houses and stay somewhere else on the rent to be paid from their own pockets till the blocks are completely repaired. It is submitted that by repairing the blocks, it would only extend the life of the buildings for few years more and after that, the society would come to this point again. If the redevelopment is accepted, the members will get a bigger house compared to the existing one within a period of three years, without spending any amount from their own pocket.
10.2. It is submitted that Shriji Structurals has given its report dated 7.1.2019 wherein, it has been concluded and opined that the deterioration is massive and if the occupiers want to use the building for long and regular use, it is mandatory to go for proper structural strengthening or should go with the replacement of the building. It has advised to demolish the building and reconstruct the same. Additional queries were raised which have been replied by Page 15 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 the report dated 11.4.2019. It has been observed that after the process of retrofitting/restoration of the entire building, the building would be stable for a long time like 20 to 25 years and the time involved would be around 18-24 months for the entire flats and costing could be worked out only after the structural design. It is submitted that the structural stability report dated 7.11.2019 was also sought for, which has been provided by the Government registered valuer/consultant, which has given its conclusion "the covers/structural members are susceptible to expose and exposed which can fall unnoticed and uncontrolled resulting in serious further damage to the structure." The report further observes that "the healthy growth of vegetation is harmful to the structure and decays the structures furthers in a rapid time". The report ends with the observation that "As the retrofitting or repairs does not hold any longer life of the structural members/structure." In support of such submission, reliance is placed on the photographs (pages 448 and
449) to contend that the exterior of the building speaks for itself. It is submitted that so far as Blocks - A and B are concerned, the buildings are in a deteriorated condition. It is therefore, submitted that the photographs (pages 448 to 485) reflect the condition of the building and therefore, repairing would be next to impossible.
10.3. It is further submitted that so far as the repairing is concerned, no maintenance could be collected after the lock-down was announced on humanitarian ground and majority of the members started shifting out of the society, owing to the dilapidated state of the building. It is submitted that residing in such a building was endangering the lives of the residents and of adjacent societies as the slab of the building had started falling. On 26.6.2020, the Anupam Society, Part-II, Members' Association, had addressed a letter informing about falling of the whole weather shed of the window on 14.6.2020 and concrete remains lying there. The members of the Anupam society had instructed the petitioner -
Page 16 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 society to pull down the part of the dilapidated gallery of the building, closed to their society so as to avoid any untoward incident. It is likely that the building may damage and not only their building but also, the children, who plays in the area. It is therefore, submitted that all the objections raised by the respondent no.9.1 stand answered. Further, the photographs (pages 575 to 577) speak for themselves.
10.4. It is next submitted that so far as the tender process is concerned, a well thought process has been carried out. It is submitted that meeting was convened and a new committee was formed of five members to take the responsibility and as per the by- laws, the members of the committee have all the rights to represent the society in whichever form possible. It is submitted that the newly elected committee had worked to the best of its efficiency by issuing the circular dated 5.7.2018 to each and every member for redevelopment project, followed by another circular dated 28.7.2018, reiterating the redevelopment project so also, the terms and conditions. The form was also attached with the said circular, requiring each and every member of the society to sign the form for redevelopment. It is submitted that 71 members have signed the forms, including the respondent nos.7 and 8.
10.5. It is submitted that on 4.9.2018, the Managing Committee and the Redevelopment Committee had passed a resolution for inviting the tenders in line with the circular dated 28.7.2018 on the basis of the approval accorded by 71 members. It is submitted that accordingly, advertisements were issued in the newspaper in vernacular on 7.9.2018. On 29.9.2018, a new redevelopment committee was formed, inviting each and every member to an extraordinary general body meeting on 7.10.2018 when tenders received from the developers were to be opened. It is submitted that total 17 tenders were received and were opened in presence of all the members and out of 17, five developers did not qualify and Page 17 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 out of remaining 12, after scrutinizing the offers, four developers were selected. The respondent no.4 was one of them. It is submitted that 49 members attended the meeting including the respondent no.9 and has signed the minutes of the meeting, dated 7.10.2018. It is submitted that once the respondent no.9 has signed the resolution, whether it would be permissible to the respondent no.9.1, for that matter, now, to raise any objection. It is submitted that 71 members of the society have signed the notarized MOU and the society has consent of 74 members out of 78 members, which gives majority of 93.5%, while 4 members have dissented. It is submitted that the whole process has been carried out in a very transparent manner. The meetings and the dates are not denied; however, altogether a new contention has been raised in the affidavit by the respondent no.9.1.
10.6. It is submitted that this Court, in paragraph 2 of the order dated 18.2.2021, has recorded about hearing given by the Corporation with regard to the redevelopment of the petitioner - society and passing of the order dated 10.2.2021. It has been further recorded that as per the provisions of the redevelopment policy of the State Government and the amendment in Section 41A of the Act of 1973, more than 75% members of the petitioner - society have given consent for redevelopment plan and such plans were directed to be considered as per the provisions of the Act of 1949, on condition that the petitioner-society amend the prayer seeking direction to the Corporation to remove the existing construction and to give open possession of the land. It is submitted that the Corporation was directed to consider the redevelopment plan and sanction the same in accordance with law and at the earliest. It is submitted that as per the direction contained vide order dated 18.2.2021, the Corporation reconsidered and sanctioned the plan vide order dated 5.3.2021 and after the plan was sanctioned, everything got over; however, what came, was the Page 18 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 affidavit of the respondent no.9.1 dated 8.6.2021 raising further objections. It is submitted that the objections are being raised by the private respondents piece by piece and only with a view to delaying the project. It is submitted that as can be culled out from the additional affidavit-in-reply dated 8.6.2021, six objections have been raised, namely, (i) inviting tender is not a valid invitation or legally permissible for redevelopment of the society; (ii) selection of the respondent no.4, as it does not possess the experience; (iii) the petitioner - society, being in hand in glove with respondent no.4, allegedly to such an extent, eventually selecting the pre-determined builder/developer i.e. respondent no.4; (iv) objection against the respondent no.4, it being a new entity, formed in the year 2018 with a meager share capital of Rs.1 lac; (v) non-receipt of the bank guarantee, equal to 20% or security deposit and; (vi) no repairs and maintenance of the society premises have been undertaken during the last 5 to 7 years. It is submitted that each and every objections raised, have been dealt with by the petitioner - society in its additional affidavit-in-rejoinder dated 11.6.2021. It is submitted that so far as the objection, as regards the residential premises, raised by the respondent no.9.1 is concerned, the same have been empty since many years and was being unlawfully used for commercial purpose. The society had approached the lavad Court restraining the members from using the residential premises for commercial purpose. As per the directions issued by the lavad Court, the properties of not only the heirs of the respondent no.9, but also, the respondent nos.5 and 6 were sealed and today also, the same are in a sealed position. It is submitted that so far as the objection as regards the advertisement issued by the petitioner - society is concerned, though it is raised but, it does not say that how it is not valid.
10.7. It is next submitted that when the respondent no.4 - Excel Life Space LLP was shortlisted, 49 members attended the meeting and Page 19 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 the wife of the respondent no.9.1 was also present and has signed the same without raising any objection. It is submitted that the four shortlisted builders were, Excel Group of Companies, Shayona Group, Ratnakar Group and Lilamani Group, out of which, Excel Group of Companies was selected after due deliberation. For selecting the final developer, voting was done between the redevelopment committee wherein, 85% of the members of voting committee voted for Excel Group of Companies which has not been disputed or denied. It is submitted that the Excel Group of Companies was democratically selected and not one or two percent members have decided the issue. Therefore, the aspect that the committee colluded with the respondent no.4, falls flat as, majority of the members have decided. So far as the objection as regards the sham applications, only with a view to accommodate the respondent no.4 is concerned, the Excel Group of Companies and Shayona Group have nothing to do with each other as they are distinct and independent of each other.
10.8. It is further submitted that another affidavit has been filed in the month of June, 2021 raising further objections which is non- adherance of the provisions of the Act and the Rules; however, the said objections are also misplaced inasmuch as, all the steps were taken before the introduction of Section 41A of the Act of 1973. Even otherwise, the requirements are substantially complied for, there is a decision of the petitioner-society, consent of the members, bids are invited, voting was done by the members and it ended with selection of the respondent no.4. It is submitted that now, the argument of respondent no.9.1 is to the effect that the petitioner-society has not taken any action on further compliance as mandated by the provisions of Section 41A of the Act and the Rules of 1974. It is submitted that Section 41A has been introduced in the month of May, 2019 and presumption is that the Act is a prospective Page 20 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 and does not apply to the ongoing project or where, the process is going on; where everything is substantially over.
10.9. It is submitted that after filing of the petition, the petitioner- society again went for re-voting and the consents were increased. It is submitted that the objection that the Rules have not been followed, is also not appealing inasmuch as, they were published on 26.12.2019; which, would not apply to the redevelopment because, the decision was taken before 26.12.2019. It is submitted that the Rules are not retrospective and cannot apply to the petitioner- society as everything got concluded before introduction of the Rules of 1974. It is submitted that affidavits after affidavits have been filed by the respondent no.9.1 raising different objections with a mala fide motive and that too, after one and half year, only with a view to stalling the project. Ultimately, what is required to be seen is whether, there is a substantial compliance or not.
10.10. It is submitted that respondent no.9.1 has raised four issues; however, there is no such requirement/condition that the agreement is to be signed inasmuch as, the Rule does not require that it has to be taken before the consent is obtained. It is submitted that the grievance is raised about non-compliance of Rules 19 and 20 i.e. appointment of the architect/project management consultant. So far as the appointment of the project management consultant is concerned, it has not been appointed as it has been agreed that the members will act as the project management consultant. It is submitted that so far as Rule 20(1) is concerned, it only provides, what the project report shall contain. It is submitted that so far as the Rules 21 and 22 are concerned, no particular procedure is prescribed. Even the requirements of Rules 21 and 22 have been complied with. That considering the facts, there is a substantial compliance of the Rules of 1974.
Page 21 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 10.11. Reliance is placed on the CAV judgment dated 27.12.2019 passed by this Court in the case of Rakesh Navnitlal Gandhi vs. State of Gujarat rendered in Special Civil Application no.12374 of 2018. It is submitted that the petitioner came to the Court, objecting the redevelopment. This Court dismissed the petition, considering the aspect of delay and consent of majority of the members. The Court has also observed that the process cannot be stalled at the instance of few members, who object for such redevelopment for their personal interest.
10.12. Reliance is placed on the judgment of this Court in the case of Rashmikaben Vikramkumar Patel v. Gujarat Housing Board passed in Special Civil Application No.17931 of 2018. It is submitted that this Court dismissed the petition observing that the decision for redevelopment has been taken in the larger public interest and therefore, the petition does not deserve to be entertained.
10.13. This Court, in the aforesaid two judgments i.e. in the case of Rakesh Navnitlal Gandhi and Rashmikaben Vikramkumar Patel (supra), has held and observed that timely objection is very much necessary. After the whole process is over, objection was never taken by the members and the meetings were attended and raising objections for the first time, should not be permitted.
10.14. Reliance is placed on the judgment of the Bombay High Court in the case of Chirag Infra Projects Pvt. Ltd. v. Vijay Jwala Coop. Hsg. Soc. Ltd and another passed in Arbitration Petition No.108 of 2021. It is submitted that the Bombay High Court directed the private respondent to vacate the flat and to deliver the possession to the society and which, in turn, to deliver to the developer.
10.15. Reliance is placed on the judgment of the Bombay High Court in the case of M/s. Whiz Enterprises Pvt. Ltd. v. State of Page 22 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 Maharashtra passed in Writ Petition (Lodging) No.28 of 2009. It is submitted that the Hon'ble High Court, directed the Corporation to take necessary steps to ensure compliance of the directions issued in its notice under Section 354 of the Act so that, the same is taken to its logical end in accordance with law.
10.16. It is further submitted that all the objections raised have been answered in the pleadings. There is overall transparency in the process, which started from 25.02.2018 and ended on 28.12.2019. It is submitted that there is substantial compliance of the provisions of the Act and the Rules. The requirement is of 75% consent, as per the provisions of Section 41A of the Act of 1973, which stands complied with, so also the requirement of the age of the building. So far as the Rules are concerned, they have been framed on 26.12.2019. Since the decision has been taken on 28.12.2018 by passing the resolution, application of the provisions of the Rules is ruled out. It is submitted that the members will be getting 68% more area compared to the existing structure with additional modern amenities and therefore, it cannot be objected to by any members. The objections raised are with a mala fide intention.
10.17. It is submitted that so far as issuance of the writ of mandamus is concerned, it is required to noted that the prayers are for execution of the permission which has been sanctioned by the Corporation i.e. instrumentality of the State and if the Court comes to the conclusion that there are additional wrinkles, this Court can very well iron out the creases. It is submitted that prayer, seeks declaration, that the petitioner - society fulfills the mandate of Section 41A of the Act of 1973 and therefore, is entitled to redevelop the building. It is therefore, submitted that the petition should be allowed and the petitioner - society should be permitted to carry out the work of redevelopment in conformity with the provisions of the Act of 1973.
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11. Mr Yatin N Oza, learned Advocate appearing with Mr Ajit Nair, learned Advocate appearing for the respondent no. 9.1, submitted that vide notification dated 21.5.2019, the provision of the redevelopment was introduced. Prior thereto, the law has not recognized the redevelopment therefore, after the enactment of Section 41A, one has to comply with its provisions. The arguments of substantial compliance, advanced by the petitioner-society will be available to it only when dealing with the guidelines and not law. It is submitted that, the submission that the process has been carried out for the period from February, 2018 to December, 2019, and the same should be considered to be a compliance in tune with the provision of Section 41A and the regulations framed, is misplaced inasmuch as, the provision of the Act of 1973 read with the Rules do not require only passing of the resolution but there are several steps, one, is required to follow. It is submitted that it is well settled principle of law that even in the cases of statute, which is amended and requires a procedure to be followed, the procedure has to be carried out under the amended statute, except if there is a saving clause provided, ratifying the earlier actions. However, when there is no saving clause provided, the party cannot claim that what has been done should be treated as compliance. The principle of substantial compliance, is unknown, when the Court deals with the provisions of the statute and therefore, if the law provides for a particular thing to be done in a particular manner, it has to be done in that manner and not otherwise.
11.1. It is further submitted that the notification has been published on 26.12.2019, by the State Government in its Urban Development & Urban Housing Department by which, the Rules of 2019, have been formulated. Ultimately, all the formalities were carried out by the petitioner-society for the period from 05.02.2018 to December, 2019. Therefore, the earlier action or steps taken by the petitioner- society, cannot be said to be compliance in conformity with the Page 24 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 provisions of the Act of 1973 read with the Rules of 1974 for the purpose of redevelopment.
11.2. While inviting the attention of this Court to Rule 19, i.e. 'the procedure for development', it is submitted that the Rule obligates a procedure to be followed and in absence of saving clause provided, the petitioner-society was under the obligation to follow such procedure and anything done before framing of the Rules of 1974, is non est and cannot be considered to be a compliance. It is further submitted that support has been taken of the resolutions which were passed after the introduction of Section 41A resolving to regularize earlier process or action taken by the petitioner-society.
11.3. It is submitted that if it comes to the obedience of the statute it has to be done, save and except, the saving clause. It is submitted that the Rules of 1974 mandate appointment of the architect/project management consultant (hereinafter referred to as 'Pmc'), which is the first step towards the building redevelopment project followed by preparation of the project report by the architect/Pmc and issuance of notice inviting tenders for the redevelopment by the architect/Pmc followed by the preparation of the list of offers, selection of builder/developer, in accordance with the project report, specifications to be reduced in writing; however, no such steps were taken by the petitioner-society. Appointment of the architect/Pmc to properly redevelop the project has to be done; however, the petitioner-society has not complied with the said requirement and straightaway adopted the earlier procedure/resolution validating the earlier action, which is definitely not permissible. Subsequent validation is impermissible inasmuch as, no proceedings can be validated post facto to claim adherence to the Rules by retrospectively notifying it in the society proceedings. It is further submitted that the theory proposed by the petitioner-society about the subsequent compliance is only with a view to circumvent the statutory Rules. It is submitted that the relaxation can be given only Page 25 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 when the Rules are directory. Applying literal interpretation, Rules do not appear to be directory but are mandatory.
11.4. It is submitted that the argument of substantial compliance has no legs to stand inasmuch as, there has to be either complete compliance or no compliance. It is further submitted that the answer that the Rules are mandatory and not directory is discernible from the language contained in Rule 20 which uses the term "shall prepare the project report" it implies that the Rules are mandatory. It is further submitted that assuming the Court reads "shall" as "may", which is to be done in rarest of rare cases, then the Court will go by the language of the statute. It is submitted that the legislature is presumed to have the complete knowledge; it considers all the points and thereafter enacts the statutes, frames the rules and regulations, which are required to be observed in its letter and spirit. It is submitted that upon conjoint reading of Rule 19 and Rule 21, it would be difficult to accept "shall" as "may". It is further submitted that Regulation 23 provides for agreement with the developer. It envisages that subject to the terms and conditions as approved by the Special General Meeting of the building, a development agreement shall be entered into with the developer in consultation with the architect/Pmc and therefore there is no room for interpreting the Rules as directory but has to be mandatory.
11.5. It is submitted that Rules, have been framed by order and in the name of the Governor in exercise of the powers conferred by clause (e) of sub-section (2) of Section 44 read with Section 41A of the Act of 1973, therefore, the Rules have a statutory element. It having statutory element, nobody can violate the provisions with a request to validate. Such course, is impermissible.
11.6. Reliance is placed on the judgment of the Apex Court in the case of Babu Verghese vs. Bar Council of Kerala reported in (1999) 3 SCC 422. It has been held and observed that "it is the basic principle Page 26 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 of law, long settled, that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all." It is submitted that the procedure prescribed and it being mandatory, there is no exception but to observe the Rules, it being a statutory provision. If the mandate is to the authorities, it equally applies to the citizens.
11.7. Further, reliance is placed on the judgment of the Apex Court in the case of Selvi J. Jayalalitha and ors. vs. State of Karnataka reported in (2014) 2 SCC 401. It has been held and observed that "when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same." It has also been held that "where a statute requires to do a certain thing in a certain way, the thing must be done in that way and not contrary to it at all. Other methods and mode of performance are impliedly and necessarily forbidden". The aforesaid legal settled proposition is based on a legal maxim "Expressio unius est exclusio alterious", meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in particular manner and not in any other manner and following any other course is not permissible."
11.8. Further, reliance is placed on the judgment of the Bombay High Court in the case of Syska LED Lights Pvt. Ltd. vs. Union of India passed in Writ Peittion (L) No. 3933 of 2020. Reliance is placed on paragraph 24 to contend that when the law requires a thing to be done in a particular manner, it has to be done in that prescribed manner and proceeding in any other manner is necessarily forbidden.
11.9. Reliance is placed on the judgment of this Court in the case of Agricultural Produce Market Committee-Unjha vs. Chief Information Commissioner and Ors. passed in LPA No. 1268 of 2015. Reliance is Page 27 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 placed on paragraph 34 wherein it has been held and observed that "it is well known when a procedure is laid down statutorily and there is no challenge to the said statutory procedure, the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provisions. It is a time honored principle as early as from the decision in Taylor vs. Taylor [(1876) (1) Ch. D. 426] that where the statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden." It is therefore submitted that the rules of procedure or regulations of procedure have the statutory element and it would be impermissible to draw a line of distinction between the provisions of the Act and the Rules.
11.10. Reliance is also placed on the judgment of this Court in the case of Roshan Sharma Manager vs. State of Gujarat passed in Criminal Misc. Application no.5317 of 2002 and allied matters. Reliance is placed on paragraphs 9 to 13. It is submitted that the issue was as regards offences punishable under Section 420 and others of IPC as well as offences punishable under Section 7 of the Essential Commodities Act. Order of the Police Inspector was under
challenge, where powers were exercised by virtue of clause (4) inasmuch as clause (4) authorized the police officer not below the rank of Dy. S.P. to search the place or premises etc. The police officers of the rank of Dy. S.P. or above only were duly authorized to investigate. This Court when found that the investigation has not been carried out as per the said Rule, the investigation against the petitioner was quashed as it has not been an outcome of an investigation by the empowered officer. It is submitted that it is travesty to argue that do not read the rules and regulations as a statute.
11.11. Reliance is placed on the judgment of the Apex Court in the case of Vinayak Varma vs. Medical Counseling Committee Page 28 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 reported in 2019 (1) SCALE 74. The Apex Court has held and observed that it was not open to any of the respondents to violate the provisions of Regulations which have a statutory force, it having been framed in exercise of powers conferred under Section 33 of the Medical Council Act, 1956. It is submitted that it was note which was appended to the Regulation of 2000 and as against this, in the present case, the Rules are to be observed putting the respondent on a better footing.
11.12. Further reliance is placed on the judgment of the Apex Court in the case of Union Public Service Commission vs. Thiagarajan reported in (2007) 9 SCC 548 wherein in paragraph 7, IFS (appointment by promotion) Regulations, 1996 has been held to be statutory in nature.
11.13. Reliance is placed on the judgment of the High Court of Himachal Pradesh at Shimla in the case of RC Prashar vs. Union of India and ors. reported in Manu/HP/0045/1991 wherein in paragraph 10, while referring to the judgment of the Apex Court in the case of Capt. Virendra Kumar vs. Union of India reported in AIR 1981 SC 947, it has been held that the rules and regulations are statutory in character.
11.14. Further reliance is placed on the judgment of the Apex Court in the case of Cherukuri Mani W/o Narendra Chowdari vs. Chief Secretary, Govt. of Andhra Pradesh reported in 2015 (13) SCC
722. In paragraph 14, it has been held and observed that where the law prescribes for a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure.
11.15. Reliance is also placed on the judgment of the Apex Court in the case of Uttar Pradesh Power Corporation vs. Ayodhya Page 29 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 Prasad Mishra reported in 2008 (10) SCC 139. It is submitted that the Uttar Pradesh State Electricity Power Services of Engineers Regulations, 1970, framed in exercise of powers conferred by clause-c of Section 79 of the Electricity (supply) Act, 1948 were held to be statutory in nature. It is submitted that the stand of the petitioner-society is that it did not appoint PMC as it had no money.
It is submitted that such argument has no efficacy.
11.16. Reliance is placed on the judgment of the Apex Court in the case of Raghunath Rai Bareja vs. Punjab National Bank reported in (2007) 2 SCC 270. It is submitted that in paragraph 43, the Apex Court has observed that departure from the interpretation of literal rule is impermissible. It has been held and observed that it would be destructive of judicial discipline, and also the basic principle of democracy that it is not for a Judge to legislate as that is the task of elected representatives of people. It is submitted that what is relevant is the observation that even if the literal interpretation results in hardship or inconvenience, it has to be followed. The departure from the literal rule should only be done in very rare cases and ordinarily there should be judicial restraint in this connection. It is therefore submitted that the argument of hardship advanced by the other side is misplaced. It is submitted that it may be a good ground for equity but not a good ground for Rules 19 and
20. If such argument is accepted not only the Rules will become otiose but it would violate the statutory provisions and therefore, the Court would not like to override the salutary provisions and grant equity.
11.17. While adverting to the prayer, seeking directions to hand over the possession, it is submitted that under which provisions of law it would be open to the High Court to issue a writ of mandamus. It is submitted that such prayer cannot be granted because the provisions under the Act of 1973 are silent and therefore, it would not be permissible for this Court to plug the Page 30 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 lacuna under Article 226 and 227 of the Constitution of India. If the prayers of such nature are entertained, it is likely to open up the flood gates of litigation. It is submitted that agreement by 74% is irrelevant as the respondent has not agreed. It is difficult to comprehend as to how a writ of mandamus would lie, considering the fact that the issue is between the petitioner-society on one hand and private respondents on the other. The dispute is private in nature and for which the suit would be a proper remedy. It is further submitted that duty is cast upon the Corporation to consider the plan; however, there is no such obligation on it to take steps for vacating the land. The prayer in the present writ petition is nothing but a result of clever drafting and by clever drafting reliefs are prayed against the Corporation and not against the respondent no.
9. It is further submitted that there is not a single provision in the Act whereby the Court can ask the Corporation to evict the private respondent unlike the provisions of the Bombay Provincial Municipal Corporations Act, 1949 where the Corporation has wide powers to evict under the provision of the Public Premises Act, 1971. Therefore, the Court would be loath in substituting the intent of the legislature. Since there are no provisions of summary eviction the petitioner cannot come to the Court and seek performance. The legislature has provided the provision and it is supposed to know everything. Whatever provisions are thought fit, it has been provided. Had the intent of the legislature to make provision for eviction, the legislature would have done it, giving the powers to the society or developer. Having not done so, the provision cannot be read into the Act, enabling the petitioner to knock the doors of this Court seeking eviction. It is submitted that there are no such provisions like the provisions in the Gujarat Town Planning & Urban Development Act, 1976 where Section 68 gives the power of summary eviction. Had such powers not been available, then it is likely that all the Town Planning schemes would fail. Therefore, wherever the legislature intends to make the provision, it had made.
Page 31 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 So far as the Act of 1973 is concerned, there is no such provision for eviction therefore, the Court cannot be persuaded to read such provisions in the Act. The provisions for eviction has rightly not been provided inasmuch as it would amount to touching the private dispute and if there is a private dispute the remedy available to the parties concerned would be to approach the Civil Court for the relief. Section 9 of the Code of Civil Procedure is wide enough to cover the disputes keeping everything open.
11.18. Reliance is placed on the judgment of the Apex Court in the case of Raghunath Rai Bareja (supra). It is submitted that the Apex Court has referred to the judgment in the case of Hiralal Ratanlal vs. STO reported in AIR 1973 SC 1034 wherein, it has been observed that "in construing the statutory provision, the first and foremost rule of construction is the literary construction. All that the Court has to see at the very outset is what does that provision say. If the provision is unambiguous and if from that provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intention is not clear." It is further held and observed that "the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation eg. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute." In paragraph 57, the Apex Court has held and observed that "the literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language."
11.19. Further reliance is placed on the judgment of the Apex Court in the case Sri Jeyaram Educational Trust vs. A.G. Syed Page 32 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 Mohideen passed in Civil Appeal No. 852 of 2010. It is submitted that in paragraph 6 it has been held and observed that "it is now well settled that a provision of the statute have to be read as it is in a natural manner, plain and straight, without adding, substituting or omitting any words." It is submitted that the Apex Court has pointed out that nothing can be added to the Act and Rules. If it is silent, it has to be read as it is and if the Court finds there is a lacuna the Court should send it to the legislature for getting the needful done.
11.20. Reliance is placed on the judgment of the Apex Court in the case of N. Shankaranarayanan vs. The Chairman, Tamil Nadu Housing Board & Ors. passed in Civil Appeal nos. 7390-7391 of 2009. A writ petition was filed before the High Court seeking mandamus against the state authorities; however, the dispute was between the petitioners who were members of one family. The Apex Court pointed out that the writ petition filed by the appellant was misconceived as the dispute sought to be raised was essentially a private property dispute between the members of one family. The Apex Court in paragraph 16 held and observed that "indirect filing of a writ petition for a dispute inter se private parties cannot be allowed in writ petition under Article 226 and 227 of the Constitution of India seeking the issuance of mandamus against the State and its authorities. Mr. Oza, learned Advocate, submitted that in the captioned writ petition, the petitioner-society seeks reliefs against the Corporation asking it to evict the private respondents which otherwise the Corporation is not bound to.
11.21. Further reliance is placed on the judgment of the Apex Court in the case of Dwarka Prasad Agarwal (D) by Lrs. vs. Ramesh Chandra Agarwal. In the facts of the case, the Apex Court pointed out that the person cannot be forcibly dispossessed except in accordance with law. The Apex Court further held and observed that "the dispute between the parties was a civil dispute and not a dispute under the provision of the Companies Act. Section 9 of the Page 33 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 Code of Civil Procedure confers the jurisdiction upon the civil courts to decide the disputes of civil nature unless the same is barred under the statute either expressly or by necessary implication.
11.22. Reliance is placed on the judgment of the Apex Court in the case of Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants' Association reported in 1988 (Supp) SCC 55. The center to the issue was Section 127 of the Maharashtra Regional and Town Planning Act 1966. Reliance is also placed on the judgment of the Apex Court in the case of Muniraj R. Kurmi vs. State of Maharashtra reported in (2017) 5 SCC 204.
11.23. The decision in the case of Chirag Infra Projects Pvt. Ltd. vs. Vijay Jwala Co.op Housing Society Pvt. Ltd. of the Bombay High Court is distinguished by pointing out that it was decided by exercising the powers under original jurisdiction and that too in the arbitration proceedings. The proceedings were governed by the provisions of the MHADA Act. Moreover, Section 95-A of the MHADA Act provided for summary eviction of the occupants. It is therefore submitted that the provisions of the MHADA Act and the provisions of the Act of 1973 are distinct and independent to each other and therefore reliance placed would be of no avail. It is further submitted that the High Court of Bombay did not issue mandamus since there was a notice for pulling down the building. The Hon'ble Court directed the Corporation to take action. Similarly, in the case of Whiz Enterprises Pvt. Ltd. vs. State of Maharashtra, the Bombay High Court neither passed any order nor asked the Corporation to get the premises vacated. Notice was issued by the Corporation in exercise of powers under Section 354 and the Bombay High Court directed the Corporation to ensure compliance of the directions issued in its notice under Section 354 of the Act. It is submitted that in the present case, no notice akin to the notice under Section 354 of the Act has been issued. The notice which has been issued by the Corporation is only for repair and not for pulling down the building.
Page 34 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 11.24. Mr. Oza, learned Advocate while referring to the additional affidavit of respondent no. 9.1 submitted that the Excel Group is not a legal entity. It is submitted that various groups of companies are formed within the group; however, a group will not be a legal entity. It is submitted that the offer has been made by the Excel Group of companies however what is the legal existence of the excel group of companies is a doubtful proposition. It is submitted that respondent no.4 Excel Life Space LLP is registered on 30.11.2018 with meager capital of Rs. 1 lakh. It is submitted that the company having meager share of Rs. 1 lakh, how will it be in a position to complete the project of Rs. 200-300 crores. While referring to the affidavit of respondent no. 4, Mr. Oza learned Advocate submitted that the respondent no. 4 has tried to justify that it had incurred the expenses to the tune to Rs. 6,06,13,426/-. It is unlikely that the company with the share of Rs. 1 lakh can incur the expenditure of almost Rs. 6-7 crores towards the rent and purchase of FSI. It is submitted that such conduct on the part of the respondent no. 4 is nothing but a fraud with the government. Evasion of tax and money laundering cannot be ruled out. It is submitted that the expenditure which has been shown, the source will have to be traced out; however, source is missing. it is submitted that according to respondent no. 4 it had already incurred 6 crores and in future, another 7 crores would be incurred. It is also a matter of inquiry as to how the respondent no.4, would have whooping sum of Rs. 6 to 7 crores in its kitty.
11.25. In support of such submission reliance is placed on the judgment of the Apex Court in the case of Ram Chandra Singh vs. Savitri Devi and Ors. passed in Appeal (Civil) 8216 of 2003. It is submitted that "fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury Page 35 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 ensues there from although the motive from which the representations proceeded may not have been bad."
11.26. It is therefore urged that on all these counts the petition deserves to be dismissed.
12. Mr Shrijit Pillai, learned advocate for the respondent nos.5 and 6 submitted that they are the holders and possessors of the Flat no.1 in Block-A, which is situated in a prime location and is road touch property and while purchasing the said property, they had paid a considerable amount. It is submitted that the respondents are not averse to the redevelopment; however, the objection is against the mode and manner in which, the whole process has been carried out. While referring to the notice dated 15.12.2018 issued by the Corporation under Section 264 of the Act of 1949, it is submitted that the authorized person visited the society premises and, as is discernible from the contents of the notice, only few flats needed to be repaired. It is submitted that the contents of the notice do not indicate that the building is required to be demolished or redeveloped and therefore, whole argument of the buildings being in a dilapidated condition, is misplaced.
12.1. While inviting the attention of this Court to the structural stability report of Shriji Structurals, it is submitted that the opinion has been given for demolishing the building and reconstruct the same; however, what is significant is the report, which is prepared on the basis of the visual inspection. It is further submitted that the final soil testing report of M.K. Soil Testing Laboratory says about the analyses, namely, rebound hammer test and ultrasonic pulse velocity test. Shriji Structurals has, only on the basis of the visual inspection, prepared the report and has not referred to the M.K. Soil Testing Laboratory report. The theory propounded by the petitioner- society that there is a lack of fund is also not palatable and acceptable.
Page 36 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 12.2. It is submitted that it is the stand of the petitioner - society that the structural engineer has opined to demolish the buildings and reconstruct the same. The said stand is nothing but to misguide this Court. It is submitted that had it been a case of demolition, the Corporation would have found and issued the notice for demolition and not for repairing or strengthening the buildings. It is submitted that it is also the stand of the petitioner - society that the building is in a dilapidated and danger situation and therefore, is required to be demolished and only two persons are raising the objection. It is submitted that as can be culled out, the said stand on behalf of the petitioner - society is also misconceived.
12.3. It is further submitted that the dispute is between the petitioner - society and the respondent no.4 and it being private dispute, the writ of mandamus cannot go to the private respondents and therefore also, the petition does not deserve to be entertained.
12.4. While referring to clause-6 of the memorandum of understanding, it is submitted that it provides for payment i.e. Rs.1,18,00,000/- to the flat holders possessing 94 sq.yrds. and Rs.78 lacs to the flat holders possessing the area of 58 sq.yrds. It is submitted that the said condition is a thumb rule, irrespective of the location. It is submitted that so far as the flats of the respondent nos.5 and 6 are concerned, they are road touch and situated at the ground floor and if same rates are to be given, then in that case, there is no equity. It is further submitted that what would be the market value of the property of the respondent nos.5 and 6, is also disputed and if there is a disputed question of fact, this Court may not like to entertain the writ petition.
12.5. It is submitted that as per the Rules of 1973, development agreement is required to be signed, coupled with the fact that it is to be registered as per clause - 4 of Rule 23; however, it has not Page 37 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 been done and what has been executed, is merely a memorandum of understanding, i.e. 'samjuti karar'. It is submitted that all the requirements, as contained in Rule 23, have not been adhered to or complied with. It is submitted that if the prayers are allowed, the respondent nos.5 and 6 will not have any say and therefore, respondent no.4 will have upper hand. It is submitted that the respondent nos.5 and 6 would be impoverished whereas, the respondent no.4 will be unjustly enriched.
12.6. Reliance is placed on the judgment in the case of Shri Sohanlal vs. Union of India reported in AIR 1957 SC 529. The Apex Court observed that "if we were to do so, we would be entering into a field of investigation, which is more appropriate for a Civil Court in a properly constituted suit to do rather than for a Court exercising the prerogative of issuing writs". The Apex Court held that the disputed questions can be considered or decided in a properly constituted suit in a Civil Court rather than in the proceedings under Article 226 of the Constitution of India.
12.7. Reliance is placed on the judgment of the Apex Court in the case of Jai Singh vs. Union Of India reported in (1977)1 SCC 1. It is submitted that when the writ petition involves the determination of the disputed questions of fact, the High Court should not, in exercise of its extraordinary jurisdiction, grant relief.
12.8. Reliance is placed on the judgment of the Apex Court in the case of Vishakhapatnam Port Trust vs. M/s Ram Bahadur Thakur Pvt. Ltd. reported in (1997) 4 SCC 582. It is submitted that when the Court feels that highly disputed questions of fact are involved for its decision, the writ petitioners could have been relegated to the remedy by way of a civil suit where, matter could be threshed out on proper evidence.
Page 38 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 12.9. Reliance is placed on the judgment of the Apex Court in the case of South Eastern Coalfields Ltd. vs. State of M.P. reported in (2003) 8 SCC 648. It is submitted that in paragraph 26, the Apex Court has discussed the principle of restitution which means, return or restoration of some specific thing to its rightful owner or status; compensation for the benefits derived from a wrong done to another; and compensation or reparation for the loss caused to another. It is submitted that if the petition is allowed, there will be no restoration in favour of the respondent nos.5 and 6. Reliance is also placed on the observations, "One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression, the act of the Court is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case".
12.10. It is next submitted that Section 264 of the Act of 1949, empowers the Commissioner to issue notice for removal of the structures which are ruined or likely to fall. It is submitted that the discretion is with the Commissioner which is strengthened by the fact that the language used is "the Commissioner may" by written notice, require the owner or occupier of such structure to pull down, secure, remove or repair such structure or thing and to prevent all cause of danger therefrom. It is therefore, submitted that the notice which has been issued under Section 264 is for repairing of the building and not for removal of the building.
12.11. While distinguishing the judgment in the case of Rakesh Navnitlal Gandhi (supra), it is submitted that the building in the said case was actually in a ruinous condition and therefore, this Court has dismissed the writ petition, disentitling the petitioner therein for any relief, as prayed for. So is the position with the judgment of the Bombay High Court, which was rendered in the Arbitration Petition Page 39 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 on the original side and therefore, the same also cannot be made applicable to the facts of the present case.
12.12. It is urged that the petition be dismissed without grant of any relief, as prayed for.
13. Mr Prashant G. Desai, learned Senior Counsel appearing with Mr Deep Vyas, learned advocate for the Corporation submitted that the Corporation has come into the picture when the notice came to be issued, which was given only for strengthening/repairing and no notice was given for demolition of the building. While referring to the affidavit filed by the Corporation, it is submitted that this Court has passed an order dated 7.8.2020, directing the respondent to decide the representations dated 6.12.2018 and 18.4.2019 and place the same on record of this Court. It is submitted that apropos the application dated 6.12.2018, submitted by the petitioner - society, the Corporation had addressed a communication dated 27.8.2020 to submit an application and produce the plans and the same to be considered. It is submitted that thereafter, hearing was conducted and after hearing all the parties, that the order dated 15.10.2020 came to be passed. It is submitted that the stand of the Corporation, inter alia, has been recorded to the effect that as per the provisions of the Act of 1973, consent of 75% members is required for the redevelopment and in view of 75% consent, necessary steps will be taken, if the prayers in the petition are amended. It is submitted that for consequential steps, the matter has been sent to the building plan and scrutiny pool. Thereafter, this Court was pleased to pass the order dated 18.02.2021 directing the Corporation to consider the redevelopment plan and sanction the same in accordance with law. It is submitted that thereafter, the petitioner - society had filed an undertaking dated 05.10.2020, clause-3 whereof, states that the building is 25 years old and consent of 75% members has been obtained. Clause-4 states that the dissenting members and/or the Corporation, if takes any Page 40 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 decision, that would be binding upon them. It is submitted that important is Clause-5, according to which, the petitioner - society has agreed that it will be their responsibility to evict the members and it will not be the responsibility of the Corporation to get it done. As per clause-10, it has been agreed that the permission is given only for the purpose of redevelopment and the Corporation will have no concern with respect to the dispute between the petitioner - society on one hand and the occupiers/members on the other. In the last paragraph of the undertaking, it has been agreed that it will be the responsibility of the petitioner - society, if any question arises with respect to any of the matters. It is therefore, submitted that so far as the Corporation is concerned, it is only concerned with the development permission and has nothing to do with the internal disputes between the petitioner - society and the members. It is submitted that the said undertaking is not only given by the petitioner - society but also, by the respondent no.4, duly signed by them and now, they are expecting the Corporation to evict the members and pull down the construction. It is submitted that the commencement letter has been issued, as per the provisions of the Gujarat Town Planning and Urban Development Act, 1976 read with the Act of 1949 and it does not make any change for execution and it is purely, the responsibility of the petitioner - society to adhered to and not the Corporation.
13.1. It is submitted that the petitioner - society has turned blind eye to the commencement letter (raja chhitthi) dated 05.03.2021. It is submitted that the development permission is subject to the undertaking and therefore, it is highly improper and unjust on the part of the petitioner - society, requiring the Corporation to evict the dissenting members from the property. It is submitted that so far as the contention of the petitioner-society that it is the obligation of the Corporation to allow the petitioner - society to construct, is misplaced. As per the provisions of Section 253, any person, who Page 41 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 intends to erect the building, is at liberty to give an application to the Commissioner; a notice of his intention in the prescribed form and as per Section 257, the duty is on the person to erect the building or execute the work in the manner and under the supervision through the qualified agency, subject to the conditions and restrictions as may be prescribed. It is therefore, submitted that the duty is on the person, seeking permission and not the Corporation.
13.2. It is further submitted that the notice in the present case is only for the purpose of repairing and not for the purpose of pulling down. It is submitted that Section 268 of the Act of 1949 provides for the power of the Commissioner to vacate any building in certain circumstances. As per clause-C of sub-section (1) of Section 268, if the building or part thereof is in a ruinous or dangerous condition, within the meaning of Section 264, that the Commissioner may, by written notice, order any building or any portion thereof, to be vacated. Sub-section (5) of Section 268 provides that the Commissioner may, direct any person, who acts in contravention of sub-section (4), shall be removed from such building or part thereof by any police officer. It is submitted that the powers are to be exercised under Section 268 of the Act of 1949 only when the building is in a ruinous or dangerous condition and not when it is capable of being repaired.
13.3. While referring to the provisions of the Act of 1973 so also, the Rules of 1974, it is submitted that none of the provisions of the Act or the Rules cast any duty upon the Corporation to get the premises vacated. There is a fallacy on the part of the petitioner - society to contend that since the development permission is granted, the duty is of the Corporation to get the plot vacated. It is submitted that if the petitioner - society wants the building to be vacated, it can get it done on its own and not with the help of the Corporation. It is therefore, submitted that in absence of any requirement or Page 42 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 obligation on the part of the Corporation, the prayer of the petitioner - society, seeking direction to the Corporation to vacate the plot and give the possession, is erroneous and illegal.
13.5. It is therefore, urged that the prayer, as prayed for, by the petitioner-society cannot be granted, at least, not a direction to the Corporation to get the buildings vacated.
14. Mr Shalin Mehta, learned Senior Counsel, in rejoinder, submitted that the argument that the grievance, of the petitioner- society, is based on equity and not on law, is not to be accepted for, according to the petitioner-society, there is a decision making process adopted by the petitioner - society by passing resolution, ending with selecting the developer and therefore, entire case is founded on the provisions of Section 41A of the Act of 1973 compliances. It is also submitted that the development permission dated 5.3.2021 is granted under Section 49 read with Section 253 and therefore, the enforcement is very much available to the petitioner - society. Collaterally, the development permission can be challenged therefore, the arguments are based on law and not on equity.
14.1. So far as the submission that slightest deviation from Statute is not permissible, is fallacious and does not deserve to be accepted. Statutes, are primary legislation and rules are delegated legislation. The petitioner - society is not seeking any deviation from any of the provisions of the Act and the limited relief which the petitioner - society is seeking; declaration under Section 41A and consequential action.
14.2. It is submitted that the stand of the respondents that the entire procedure for redevelopment has to be carried out denovo after the rules were enacted and it cannot be validated, is also not to be accepted. It is submitted that the rules are not retrospective Page 43 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 and therefore, no backward looking. It has come into the effect on 26.12.2019 and therefore, once the rules are not having any retrospective effect, question does not arise for compliance thereof. It is submitted that assuming that the petitioner-society is obligated, everything, has been done prior to the coming into force which has been validated by passing the resolution by the general body and therefore, there is a substantial compliance of the provisions of the rules.
14.3. The contention that the rules are statutory and hardship is not a ground to ignore statute, will also not apply to the facts of the present case inasmuch as, the petitioner - society has never invoked hardship. It is submitted that the stand of the petitioner - society is that there is a substantial compliance which, is an alternative argument, in fact, the main argument of the petitioner - society, is that the rules do not apply at all to the facts of the present case.
14.4. The contention that there is a serious lacuna as there is no provision relating dissenting members and Court cannot fill up the lacuna is also without any basis. It is submitted that there is no lacuna at all. In the matter of eviction, there need not be a provision, the powers conferred under Article 226 of the Constitution of India cannot be circumscribed and if the Court comes to the conclusion that there is a sufficient compliance, it can grant relief. Furthermore, development permission has been granted and the Court, is only trying to effectuate the redevelopment provisions.
14.5. It is submitted that the development permission has been granted vide commencement letter dated 5.3.2021, and it requires the petitioner - society to start the construction within a period of one year that would be 4.3.2022; therefore, it is inevitable for the petitioner - society to start the construction failing which, the development permission, is likely to lose its efficacy. It is submitted that considering the facts of the present case, there is a sufficient Page 44 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 compliance and once there is a compliance, no one can defy the mandate.
14.6. It is next submitted that the theory, as regards dispossession that it has to be in accordance with law and in absence of any law to dispossess the dissenting members, no mandamus can be issued is also not in a right earnest. It is submitted that in the case of Rakesh Navnitlal Gandhi (supra), it has been held and observed that the petitioners are not deprived of their any property right nor any human right because of the process of redevelopment. This Court, while discussing the aspect of tripartite agreement entered into between the concerned parties; the allotment of the area and the benefits, observed that it cannot be said that the petitioners, are deprived of any property right as contended nor any of the human rights. This Court, in paragraph 24, relied upon the judgment in the case of Rashmikaben Vikramkumar Patel v. Gujarat Housing Board (supra) wherein, similar facts were available and this Court, has observed that the petitioners therein are not deprived of their property right but after the redevelopment, they will be getting the property. It has also been observed that in the redevelopment process, when almost all the members except few have given their consent for redevelopment, at the instance of few members, majority members cannot be made to suffer. It is submitted that the facts, as recorded in paragraph 24, fits in the facts of the present case, inasmuch as, the private respondents are neither deprived of any property right nor any human right. It is submitted that all the members of the society have been shifted and are being paid rent and after redevelopment, what the members of the society will be getting is the better and bigger flats and therefore, larger interest lies in the favour of the members of the society.
14.7. The contention that the Legislature has envinced the clear intention and there is no provision, akin to the provisions in MHADA Act, it is submitted that, such contention is misconceived. As is Page 45 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 submitted that silence means no provision and the society has to go to the civil court, is unacceptable. It is submitted that it does not mean that the party cannot approach the High Court. If the object of Section 41A, is to be seen, it facilitates the redevelopment if the society, has the consent of more than 75% members and the building, is 25 years old. The object, is to facilitate the redevelopment and therefore, there cannot be an intention on the part of the legislature to give from one hand and take it from other. If the suit, is to be filed, it is likely to take years and therefore, the speedy mechanism provided by the provisions of the Act of 1973, would stand nullify.
14.8. It is submitted that in paragraph 40 of the judgment in the case of Raghunath Rai Bareja v. Punjab National bank (supra), it has been held and observed that the first and foremost principle of interpretation of a statute, in every system of interpretation is the literal rule of interpretation. It has been held that other rules of interpretation can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally, would nullify the very object of the statute. The whole project of redevelopment, if is allowed to be stultified, only at the instance of the dissenting members, the majority of members would suffer, which is not the intention of the legislation.
14.9. The contention that the High Court is powerless to issue mandamus in private dispute between the parties, is also an erroneous understanding on the part of the respondents. It is submitted that the petitioner-society, would be right in seeking the issuance of declaration of the writ that the rules, have been complied with and the same, is required to be given effect by the respondent no.4 and society in the interest of majority of the members and any hindrance or obstacles in executing the development permission, would be unjust and improper and Page 46 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 therefore, to that extent, definitely, this Court can issue direction to the private respondents.
14.10. The contention that the Excel Life Space has the share capital of one lakh and for the amount of Rupees 7 crores, source needs to be found out and for that purpose, the matter requires investigation by Enforcement Directorate, is also without any substance. Such arguments, is raised for the first time and without any opportunity to the petitioner - society to deal with the same. It is submitted that such contention, can hardly be permitted to be raised inasmuch as, if the fraud is alleged, it has to be specifically pleaded and when it is not pleaded, the arguments cannot be permitted.
14.11. It is submitted that the contention raised by Mr Pillai, learned advocate for the respondent nos.5 and 6 that instead of demolishing, the building can be repaired is also far from truth inasmuch as, there are soil testing reports, structural engineer reports. It is submitted that such argument, would be against the provisions of Section 41A inasmuch as, the only requirement contemplated under Section 41A, is that redevelopment of the building is permitted, after obtaining consent of not less than 75% of the flat owners and the building, must be 25 years old or the building, is in ruinous condition or likely to fall or any way dangerous to person. It is submitted that in the stability certificate dated 7.11.2019 of the Chief Engineer, it has been concluded that virtual life of the society blocks and building is over by now. In the concluding remarks, it states that the retrofitting or repairs does not hold any longer life of the structural members of that structure. It is therefore submitted that the photographs placed on record are self explanatory.
14.12. It is submitted that on 18.4.2019, an application was submitted to the Commissioner for taking immediate action on the Page 47 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 representation dated 29.3.2019. The contention of the learned counsel on behalf of the Corporation that no application was filed that the building is in a dilapidated condition, is misplaced which, is strengthened by the reminder dated 3.7.2020 issued by the Corporation wherein, it has been recorded that the balcony of the building, is dangerous and it is likely to fall and may damage the people residing in nearby area. It also has been stated that the wall which is in a dangerous condition, be repaired or secured. While concluding, it is the Corporation, who has pointed out that the building, is in a dangerous condition and it is likely to fall, resulting into accident which responsibility would be of the petitioner - society and therefore, the stand of the Corporation so also the private respondents that the building is not in a dilapidated condition, is misconceived.
14.13. The contention that the redevelopment agreement has not been signed as envisaged under rule 23 is also misplaced. It is submitted that the redevelopment agreement, will have to be signed only after the development permission is granted. So far as the contention that the petition involves the disputed questions of fact as regards determination of market value is premature. It is submitted that the issue raised that the area is bigger and is in a prime location, does not help any individual in view of the redevelopment of the whole society.
14.14. It is submitted that the issue of eviction of the private respondents, the Corporation being a local authority, it definitely has a police power to ensure that the development permission issued by it is executed properly. The powers to oversee, are very much there and even Court can direct that no hindrance and/or impediment is created in executing the development permission. It is therefore submitted that it is a fit case where the Court can interject and issue the direction to the Corporation as well as to the private respondents.
Page 48 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 14.15. Mr Shalin Mehta, learned senior counsel, for the proposition that a writ can be issued seeking declaration, relied upon the judgments, (I) Binny Ltd. & Anr. v. Sadasivan & Ors. passed in Appeal (civil) no.1976 of 1998, (ii) Qayyum Khan v. DDA & Ors reported in 126 (2006) DLT 418, (iii) University of Calicut v. The Director, Amala Industries & Ors. passed in WA No.241 of 2009, (iv) Gujarat University, Ahmedabad v. Sonal P. Shah reported in AIR 1982 Guj 58: (1982) 1 GLR
171. In the case of Binny Ltd. & Anr. v. Sadasivan passed in Appeal (civil) no. 1976 of 1998, it has been held and observed that apart from the five writs, the High Court can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of the country.
14.16. Further reliance is placed on the judgment of the Delhi High Court in the case of Qayyum Khan v. DDA & Ors reported in 126 (2006) DLT 418. It is held and observed that "it has been held in several decisions that Article 226 of the Constitution is not confined within the narrow bounds of traditional writ jurisdiction as was understood in England. It comprises a spectrum of reliefs including declaratory orders, directions to suit the peculiar needs of the individual case before the Court; it is particularly suited to address emerging issues. The Supreme Court has often remarked in its judgments that the expression appropriate proceedings is broad in its swathe and authorizes the Court to reach out to the injustice seen by it, and suitably mould the relief."
14.17. Reliance is also placed on the judgment of the Kerala High Court in the case of University of Calicut v. The Director, Amala Industries & Ors. passed in WA No.241 of 2009. It is submitted that in paragraph 14, the Kerala High Court, has held and observed that "if such an order is passed, that will definitely be within the four corners of the powers of this Court under Article 226 of the Page 49 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 Constitution of India. Declaratory relief is also part of prerogative remedies, which is employed to deal with ultra vires actions of the statutory authorities. The complaint of the University is more against the form than about the substance".
14.18. Reliance is also placed on the judgment of this Court in the case of Gujarat University, Ahmedabad vs. Sonal P. Shah reported in AIR 1982 Guj 58: (1982) 1 GLR 171. It is submitted that this Court, in paragraph 11, has held and observed that "it is truism to state that in order to make its declaratory orders fully effective and not impotent, either wholly or partially, the High Court exercising its writ jurisdiction in its capacity as the sentinel of the rule of law under Article 226 of the Constitution of India is clothed with the Power to grant any consequential or ancillary relief".
14.19. In support of the proposition that there is substantial compliance, reliance is placed on the judgments, (i) M/s. Associated Journals Ltd. v. The Mysore Paper Mills Ltd. passed in Appeal (civil) no.183 of 2000, (ii) State of U.P. v. Harendra Arora & Anr. passed in Appeal (civil) no.5241 of 1998, (iii) Commissioner of Central Excise, New Delhi vs. M/s Hari Chand Shri Gopal & Others etc. passed in Civil Appeal Nos.1878-1880 of 2004. The Apex Court in the case of M/s. Associated Journals Ltd. vs. The Mysore Paper Mills Ltd. passed in Appeal (civil) no.183 of 2000 wherein, while dealing with rule 21 of the Companies (Court) Rules, 1959, held and observed that "substantial compliance of the rules is enough. Rules are undoubtedly statutory and the forms are to be adopted wherever they are applicable. The Rules relating to the affidavit and the verification cannot be ordinarily brushed aside, but then what is required to be seen is whether the petition substantially complies with the requirements and, secondly, even when there is some breach or omission, whether it can be fatal to the petition."
Page 50 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 14.20. Further reliance is placed on the judgment of the Apex Court in the case of State of U.P. vs. Harendra Arora passed in Appeal (civil) no.5241 of 1998. The issue, was with respect to rule 55-A of Civil Services (Classification, Control and Appeal) Rules, 1930. The Apex Court, held and observed that "there may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, e.g., who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available."
14.21. Reliance is also placed on the judgment of the Apex Court in the case of Commissioner of Central Excise, New Delhi v. M/ s Hari Chand Shri Gopal & Others etc. passed in Civil Appeal Nos.1878-1880 of 2004. The issue, was of the compliance of the procedure set out in Chapter X of the Central Excise Rules, 1944. The Apex Court, held and observed that "the doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance" of the requirements. It has been held and observed that "like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance" depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleaded if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met. Certainly, it means that the Court should determine whether the statute has been followed sufficiently so as to carry out the Page 51 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 intent for which the statute was enacted and not a mirror image type of strict compliance. Substantial compliance means "actual compliance in respect to the substance essential to every reasonable objective of the statute" and the court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed."
14.22. It is submitted that rule 18 of the Rules of 1974, provides for conditions for redevelopment project/work. As per one of the conditions, the building, should be more than 25 years of age. In the present case, the said requirement, stands fulfilled. It is further submitted that rule 19, is a procedure provided for redevelopment. It is submitted that so far as sub-rule (1) and sub- rule (2) of Rule 19 are concerned, there is no complaint. The complaint is only against sub-rule (3) of Rule 19 which, provides for appointment of the architect/Pmc. So far as Rule 20 is concerned, it provides for the preparation of the project report which, shall contain the carpet area to be provided to the members; alternative accommodation; payment of rent; vacant area; garden; parking; building specifications; common area etc. It is submitted that in the present case, all the facilities and amenities, are made available to the members and therefore, one is to apply the principle of prejudice. The private respondents have not been able to show single prejudice caused to them by the facilities/amenities provided by the respondent no.4. So far as the compliance of Rule 21 and Rule 22 are concerned, the same is done and that there is no grievance. Rule 23, provides for execution of the development agreement and it should contain various clauses including the clause of bank guarantee. The bank guarantee has to be done but not at this stage and therefore, the arguments/grievance raised by the private respondents falls flat. It is therefore urged that the petition deserves to be allowed and necessary directions be issued Page 52 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 to the private respondents as well as Corporation to permit the petitioner-society to redevelop the property as per the development permission.
15. Mr Jal S. Unwala, learned Senior Counsel appearing for the respondent no.4, submitted that after issuance of Section 264 of the Act of 1944 notice, it would be a bounden duty of the Corporation to get the building evicted, more particularly, as per the provisions of sub-section (5) of Section 264. It is submitted that as per the provisions of clause (a) of sub-section (5), on receipt of an application or otherwise, the owner or occupier of structure can pull down, secure, remove or repair such structure. The Commissioner, after giving such person a reasonable opportunity, may pass order in writing. It is submitted that if the petitioner-society files an application, Corporation is obliged to give the permission. It is further submitted that explanation to Section 41A, provides that the redevelopment shall have the meaning as assigned to it in the relevant development control regulations. The CGDCR of 2017, were in existence. Clause 2.12.1 of the regulations, deals with unauthorized use of buildings and unsafe buildings. It is submitted that sub-clause (c) of sub-section (1) of Section 268, provides that the Commissioner may, by written notice order any building or any portion thereof to be vacated forthwith; if the building or part thereof is in a ruinous or dangerous condition within the meaning of Section 264. It is therefore submitted that it is well within the powers of the Commissioner to direct the eviction of the private respondents in view of the fact that the buildings are in a ruinous condition. It is further submitted that so far as the powers of the Commissioner are concerned, it is not that the Commissioner has no powers and it is very much available to the Commissioner to enforce the provisions of the Act of 1949 read with Regulation of 2017 and/or 2019. It is submitted that the development permission, has been granted and made subject to the GDCR.
Page 53 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 15.1. It is submitted that the respondent no.4, has been paying the rent to the members since the year 2019 and suffering huge financial losses because of the pendency of the captioned writ petition. It is submitted that by now, the respondent no.4 has incurred a huge expenditure of approximately Rs.6 crores and is likely to borne another Rs.7 crores for purchase of FSIs to be paid to the Corporation. It is submitted that the allegation on the respondent no.4 it being incapable of handling the redevelopment project, is humorous to the ears of developer and portraits how ignorant and ill informed the legal heirs of respondent no.9 chooses to be. It is submitted that as is clear from the additional affidavit in reply of the respondent 9.1, it only states that the respondent no.4, is registered on 30.11.2018 with a meager capital of Rs.1 lakh as builder/developer etc. It was the stand of the respondent no.9.1 that the redevelopment project of the scale of Rs.250-300 crores, cannot be undertaken by any entity having a meager share capital of Rs.1 lakh and no past experience or proven track record; hence, the open offer based on allotment deserves to be cancelled. It is submitted that except this allegation, there is not a whisper about money laundering and/or evasion etc. It is neither pleaded nor proved therefore, such submissions, are required to be rejected at the threshold. It is submitted that there is no complaint even to the Income Tax department or for that matter to the any authority.
15.2. It is therefore urged that the petition deserves to be allowed and respondent no.4 be allowed to develop the property.
16. Heard learned Senior Counsel assisted by the learned advocates appearing for the respective parties. Perused the documents available on record and accorded thoughtful consideration to the facts of the case.
17. Plethora of submissions have been made by the learned Page 54 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 Senior Counsel and advocates, citing numerous judgments in support of their respective stands, by and on behalf of the petitioner-society and respective respondents. Centre to the issue is the redevelopment of the petitioner-society. For dealing with the grievance and issues raised, certain facts are required to be taken note of.
18. Undisputedly, the buildings consist of 11 residential blocks with 78 flats constructed in the year 1971, apropos the permission granted in the year 1969. By now, the structure of the building is around 50 years old. As can be discern out from the photographs placed on record (pages 448 - 485), the slabs are in deteriorating condition; internal steel frames of RCC slabs and other structural members are open to environment which is likely to cause further damage to the building on account of corrosion and one cannot rule out the possibility of slab falling and endangering the humans/residents living in the society or the adjacent society. The condition of the building was a major concern to majority of the occupiers and owners of the buildings which, gave rise to a desire of either redevelopment or repairing of the building. The momentum triggered by formation of a new committee of five members for redevelopment of the petitioner-society, by passing a resolution dated 25.2.2018. The committee issued a notice/letter, inter alia, apprising the members about the redevelopment; formation of a new committee, for taking a decision to appoint re-developer or a builder in the interest of the society and requiring the members to give their concurrence for the purpose of redevelopment in the prescribed format forming part of the said notice/letter. Followed was another notice/letter dated 28.7.2018 by the Chairman/Secretary of the committee, broadly containing the terms and conditions of the redevelopment. Request was made to fill up and submit the form on or before 12.8.2018. As the record reveals, around 71 members out of 78 members submitted the forms by Page 55 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 12.8.2018. One of the conditions contained in the said notice/letter was that the committee would invite the bids from the developers. After receipt of the said forms, a meeting of the members of the petitioner - society was convened on 4.9.2018 resolving to invite the tenders from the builders by giving advertisements in the newspapers and as a result whereof, the advertisement was published in the Gujarat Samachar on 8.9.2018.
19. On 29.9.2018, the resolution was passed and made known to each and every member of the society, informing about the extra- ordinary general body meeting to be held on 7.10.2018 to discuss the tenders received. In the meeting dated 7.10.2018, after due deliberation, out of 17 offers, 4 offers, namely, (i) Excel Group, (ii) Lilamani Group, (iii) Shayona Group, and (iv) Ratnakar Group were accepted. It was also resolved to appoint the builder/developer and to follow the further procedure. It was decided that after obtaining necessary information and visiting the development work, the redevelopment committee as well as the management committee will take a decision about the appointment of the builder/developer which will be acceptable to all the members. The members of the committee visited the scheme of the 4 developers. The offer of Excel Group of Companies was discussed, deliberated and negotiated, in order to get the best deal for the members which led to the revised proposal dated 17.10.2018. Which according to the members of the committee was beneficial and in the interest of each and every members of the society. After receipt of the proposal, on 21.10.2018, a resolution was passed by the committee resolving that the society will be redeveloped by the respondent no. 4 and the copy of the resolution was provided to each and every member of the society. Even notarized consent letters, all dated 5.11.2018, were signed by 24 members. In the general body meeting dated 25.11.2018 the redevelopment aspects were discussed by the partners of the respondent no. 4, when 42 Page 56 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 members of the society were present in the meeting. The members, were apprised of the amenities and facilities to be offered and suggestions were also invited and discussed.
20. Considering the dilapidated condition of the building the petitioner - society addressed a communication dated 6.12.2018 to the Corporation, inter alia, bringing it to its notice that the building is 48 years old and its condition is dilapidated and dangerous. It was brought to the notice of the Corporation that the parapet of the terrace is in a dangerous condition and if it falls, it is likely to damage the property of any person. Concern was expressed that the members are living in a fearful condition and it would be in the interest of the members, if the society is visited by any responsible officer and file report. The said letter was signed by majority of the members. In response to the said letter, the Corporation inspected the society and after inspection issued notices, both dated 15.12.2018 under the provision of Section 264 of the Act of 1949. As per the said notices, the external plasters are worn out, the reinforcements are exposed and there are cracks in the walls. The plasters have also worn out in the stair cabin of the terrace and the reinforcements have been exposed. There are cracks in the parapet and the structural members of the cantilever balconies. The plasters on the slabs have been worn out and reinforcements have been exposed. Considering the said condition, the Corporation directed the petitioner-society to carry out the repairing work/ strengthening work under the supervision of the registered structural engineer and produce the certificate. As per the said notice, it would be the society which would be responsible to see that it carries out the necessary work, failing which it will be prosecuted under the provisions of the Act of 1949.
21. Upon receipt of the notice and considering the fact that the building needed immediate attention, NDT and soil test were conducted by MK Soil Laboratories on the land of the society. The Page 57 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 MK Soil Laboratories opined on the basis of the Rebound Hammer Test and Ultra Sonic Pulse Velocity that the quality of the concrete/buildings is doubtful/very bad. The society was also advised to take opinion from the structural engineer at the earliest to avoid any casualty. The conclusion reads thus:-
"[4] CONCLUSION The said property is 45 years old. The test results of rebound hammer and ultrasonic pulse velocity tests indicate that quality of concrete/building is doubtful/very bad.
Please take advice as soon as possible from structural engineer for further action, to avoid any casualty."
22. The petitioner - society appointed a structural engineer, who visited the site. The structural engineer gave its report based on its visit as well as on the basis of the report of the NDT. As per the structural stability report, the buildings were not fit for its safe use as the deterioration was massive. It suggested that if the owner wants to use the building for long and regular use, it would be mandatory to go with proper structural strengthening or should go with replacement of the building. The final opinion was that looking to the damages and the condition it would be advisable to demolish the building and reconstruct the same. The relevant excerpts of the structural stability report dated 7.1.2019 read thus:
"Introduction:-
The owners of Swami Vivekanand Co-Op Hou. Soc. Ltd, F.P. No:173, T.P.S.No:5 Vejalpur, Ahmedabad had approached us for checking of stability of existing apartments.The building is basically used for residential type of structure and about 48 years old.
The buildings are load bearing cum frame structure. Scope:-
We are doing the scope for the allotted work for site inspection, and feasibility test based analysis on existing structural grid for RCC elements, On the basis of data collected from site, we analyze the same and prepare the healthiness report called as structural stability report.
Philosophy:-Page 58 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022
C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 This part include the process and logic used during application of the scope defined above.
The site inspection is done for collecting all the date pertaining to RCC frame and masonry by visual inspection. Also it includes observing the defects visually seen and the local deteriorations observed in structure.
Site Observations:-
by visual inspection of the buildings we found that the blocks are RCC & Load Bearing composite designed buildings.
The Ground level columns were seems repaired at some point.
The columns are cracked badly in ground floor and upper floor.
The beam steel is exposed at major critical locations. The concrete covers spelled at various locations. The slabs having cracks at so many locations. The washroom areas are spelled very badly. The seismic resistance is not observed after inspection of RCC elements' physical condition.
NDT Report:-
We have recommended the Non-destructive tests for pursue pf construction quality. The NDT Reports show the condition of building elements very poor. The NDT Report is attached herewith.
Conclusion:-
After reviewing the data collected from site & NDT report we are strongly giving opinion that the buildings are not fit for its safe use. The deterioration is massive, hence we suggest that if the owners want to use the building for long and regular use it is mandatorily required to go with proper structural strengthening or they should go with replacement of the building. And looking to damages and present condition, it is advised to demolish the building and reconstruct the same."
It is coming out from the report that the buildings are not fit for its safe use as the deterioration is massive. Considering the condition, it has been advised to demolish and reconstruct the building.
23. Further, communication dated 29.3.2019 was addressed by the petitioner-society to the Corporation, inter alia, stating that it is Page 59 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 not in its interest to carry out the repairing work and it would be advisable that the building is pulled down and it is redeveloped. The petitioner-society also requested to give the necessary permission for new construction and to issue a notice for demolition. In addition thereto, the petitioner-society also informed that out of 78 members, only 4 members are against the redevelopment and it is only upon receipt of the notice, further steps will be taken. Thereafter, the petitioner-society tried to gather the opinion as to how many members are for redevelopment and against the redevelopment. Out of 78 members, 74 members voted for redevelopment and 4 members i.e. the private respondents did not agree for new construction and responded that they are interested in the repairing work and not ready to go for redevelopment. The petitioner-society tried to convince them however it was of no avail.
24. The petitioner-society, submitted the report of the structural engineer in response to the notice issued under Section 264. On the other hand, the Memorandum of Understanding dated 2.4.2019 was executed between the 74 members on one hand and the respondent no. 4 Excel Life Space LLP on the other. The petitioner- society, once again tried to convince the 4 members; however, the members were adamant on repairing the building and that is how they again approached the structural engineer to provide the society with the cost/time that would be consumed in repairing the building. As a result of the said request, the structural engineer gave its report dated 11.4.2019 pointing out that the time involved in repairing work would be 18-24 months for all the flats and the cost would be on the basis of the work which may be carried out and after the structural design. It also stated that the costing can be enormous as advanced techniques will be involved in the said work.
25. Simultaneously, on 18.4.2019, a communication was addressed to the Corporation requesting it to take immediate action to protect the building together with the report of the soil testing as well as the report of the structural engineer and the photographs of Page 60 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 the plasters and parts of the slabs, concrete that fell off the ceiling from the flats in block no. B6. The Corporation was requested to take swift action in furtherance of the concern raised in the representation so also the representation dated 29.3.2019, failing which, it was cautioned that the petitioner-society may be constrained to take appropriate steps in accordance with law. Since nothing was heard, the captioned writ petition has been filed.
26. The petitioner-society has preferred the captioned writ petition initially with the prayers, inter alia, seeking direction to the Corporation to grant necessary permission to demolish the construction and to grant further permission for redevelopment. In the alternative, the petitioner-society sought for direction to the Corporation to decide the representations submitted by the petitioner-society within a stipulated period. Subsequently, the prayers came to be amended whereby, the petitioner - society sought direction to the Corporation and the authorities to permit the petitioner - society to carry out the work of redevelopment after demolishing the existing construction. Further, direction was sought for to the Corporation to require the private respondents to hand over the vacant and peaceful possession of their flats. As noted herein above, the learned Senior Counsel for the petitioner - society has stated that, relevant would be prayer 27CC, seeking direction to the private respondents and requiring the Corporation to hand over the vacant and peaceful possession of their flats.
27. At this stage, it is required to be noted that during the pendency of the writ petition and after the amendment in the prayer clause and, more particularly, prayer clause - 27BB, the Corporation was directed to decide the representations and/or grant redevelopment permission. This Court has passed an order dated 7.8.2020 whereby, the Corporation was directed to decide the representations and place the decision before this Court. Accordingly, the Corporation passed an order dated 10.2.2021. As is Page 61 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 discernible from the order, the Corporation recorded the objections of the private respondents, some of the objections raised, were not accepted. So far as the dispute between the petitioner - society and the members is concerned, the Corporation was of the opinion that it being an internal dispute, the Corporation has nothing to do with it. The Corporation has also recorded the fact that there is a consent of 75% of the members for redevelopment and it was of the opinion that if prayer seeking direction to the Corporation to remove the construction and give the possession be withdrawn, then in that case, for taking consequential steps for grant of permission, the matter was directed to be placed before the scrutiny pool.
28. The order dated 10.2.2021 was placed before this Court and this Court, thereafter, passed an order dated 18.2.2021 and recorded that none of the prayers are available, commanding the respondent nos.1 to 3 to remove the existing construction and to give open possession of the plot to the petitioner-society. The Court also ordered that the order passed by the Corporation is contrary to the prayers made in the petition. Ultimately, the Corporation was directed to consider the redevelopment plan and to sanction the same in accordance with law. The petitioner-society as well as the respondent no.4 submitted an undertaking, declaring that they shall get the flats vacated from the dissenting members and that the Corporation would not be responsible to get the flats vacated. On the basis of the said undertaking, development permission, i.e. commencement letter dated 5.3.2021 was issued in conformity with the provisions of the Gujarat Town Planning and Urban Development Act, 1976 read with the provisions of the Act of 1949. Therefore, now the statutory development permission is in place and parties are expected to abide by it.
29. Apart from the aforesaid, in the interregnum, the Act of 1973 was amended, incorporating Section 41A which provides for redevelopment of the building after obtaining the consent of not less Page 62 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 than 75% of the members. Additionally, the building should be more than 25 years old. As discussed herein above, the prayer of the petitioner-society is seeking direction to the Corporation so also, the private respondents to hand over the vacant possession of the society so as to enable it to develop the property in conformity with the development permission dated 5.3.2021.
30. Before proceeding further, it is required to be noted that after the introduction of the provisions of Section 41A and is not disputed, a meeting of the petitioner - society was convened on 16.6.2019 for discussing few agendas. One of which was to apprise the members about Section 41A of the Act of 1973 and its effect. Meeting was attended by majority of members, who signed the resolution agreeing for the redevelopment. The said decision taken in the general body meeting, is not challenged by the private respondents. On the contrary, private respondent 9 has signed the resolution without raising any objection. Thereafter, meeting of the executive committee was convened on 12.7.2019 ratifying the steps taken. Also, the petitioner-society convened the meeting of the general body on 20.7.2019 and again, did re-voting for redevelopment. According to the petitioner-society and not disputed, 74 members, out of 78 members, are in favour of the redevelopment. Hence, the consenting members are to the extent of 93.5%. At this stage, Section 41A of the Act of 1973, may be taken note of.
"41A. Notwithstanding anything contained in this Act, any work in relation to the re-development of a building can be carried out on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75 per cent. of the flat owners of such building:
Provided that, in respect of such building,-
(i) a period of twenty- five years must have been completed, from the date of issuance of permission for development by the concerned Authority; or
(ii)the concerned Authority has declared that such building is in ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such Page 63 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 structure or any other structure or place in the neighbourhood thereof.
Explanation:- For the purpose of this section, the expression "redevelopment" shall have the meaning as assigned to it in relevant Development Control Regulations."
31. The aforesaid provision, which enables the redevelopment of flats and apartments, starts with a non-obstante clause. It provides that any work in relation to the re-development of a building can be carried out, inter alia, after obtaining the consent of not less than 75 per cent of the flat owners of such building. Proviso to Section 41A envisages that the building must have completed a period of 25 years from the date of issuance of permission for development or the concerned authority has declared that such building is in ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof. Therefore, one of the requirements is that there should be a consent of not less than 75% of the flat owners and secondly, the building should have completed 25 years from the date of issuance of the permission or the concerned authority has declared that such building is in ruinous condition or likely to fall.
32. So far as the present writ petition is concerned, undisputedly, there is a consent of more than 75% of the flat owners and the building is of more than 25 years of age. The dissenting members, i.e. the private respondents, are minuscule as against the members, who are favouring redevelopment. Perceptibly, the requirements contained in Section 41A for redevelopment of a building, stand fulfilled.
33. The contention has been raised by the learned advocate for the respondent nos.5 and 6 that if this petition were to allow, they will not have any say and which is likely to cause unjust impoverishment to them and unjust enrichment to the petitioner-
Page 64 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 society and the respondent no.4. The said contention is stated to be rejected, inasmuch as, the Act provides for the consent of 75% of the members which is in place and if a minuscule section has any grievance, the same would not be in the right earnest. In the redevelopment process, it is likely that there has to be some reservation by some members. The legislature has provided the consent of 75% members which would be majority, as, it would be difficult rather impossible to obtain the consent of 100% members. The grievance of the respondent nos.5 and 6 could be said to be in a right earnest only if there would have been the requirement of seeking 100% consent of the members; however, so is not the case and therefore, the grievance of the respondent nos.5 and 6 cannot be said to be in the right earnest.
34. True, that there is no declaration by the authority that the building is in a ruinous condition or likely to fall or in any way dangerous to any person, the Corporation did issue a notice dated 15.12.2018 under Section 264 of the Act of 1949, requiring the petitioner-society to carry out the repairing work after obtaining the requisite certificate of the structural engineer or under the supervision of the structural engineer, which was done by the petitioner - society and as discussed hereinabove, the opinion of the structural engineer is that -
"the buildings are not fit for its safe use. The deterioration is massive, hence, we suggest that if the owners want to use the buildings for long and regular use, it is mandatorily require to go with proper structural strengthening or they should go with replacement of the building and looking to the damages and present condition, it is advised to demolish the building and reconstruct the same."
35. Therefore, considering the age of the building, being more than around 52 years, it has been advised to demolish the building and reconstruct the same. The report of the Soil Testing Laboratory also concluded that the quality of the concrete/buildings is doubtful/ Page 65 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 very bad. It also cautioned to take advise of the structural engineer at the earliest to avoid any casualty. Since there was resentment shown by the private respondents, another report was provided by Shriji Structural dated 11.4.2019, stating that the repairing work would take at least 18 - 24 months and costing can be worked out only after the structural design followed by the report dated 7.11.2019 of the government approved Chief Engineer, which reads thus:-
"CONCLUSION:
As the virtual life of the society blocks and building is over by now.
The covers/structural members are susceptible to expose and exposed which can fall unnoticed and uncontrolled, resulting in serious further damage to the structure.
The healthy growth of vegetation is harmful to the structure and decays the structure further in a rapid time.
As the retrofitting or repairs does not hold any longer life of the structural members/structure.
This un biased reported is prepared on the written request by the Chairman of Swami Vivekanand Nagar CHSL."
36. Intermittently, there are some incidents which have taken place of falling of the slab or plaster, which aspect is supported by the intimation dated 26.6.2020 of the adjacent Anupam society which has made a grievance about falling of the slabs on 14.6.2020 which could have harmed the residents of the society, such aspect is also not disputed. Pertinently, one need not wait for any mishap to take place. Considering various aspects in juxtaposition, namely; the reports of the structural engineer, soil testing report; report dated 7.1.12019; notice issued by the Corporation; photographs placed on record, so also age of the building, it being more than 50 years old, it leads to one conclusion that the building is not safe for habitation and requires redevelopment.
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37. In the aforesaid backdrop, let us examine the prejudice, if any caused to the private respondents or that they are deprived of any rights or their property rights is violated. If one is to assess, in the opinion of this Court, facilities and amenities which would be provided by the respondent no.4 are not, in any way, disadvantageous. Perceptibly, 60 units of flats are admeasuring 94 sq.yrds. and 18 units of 58 sq.yrds. Now, the area which is proposed to be offered against 94 sq.yrds. would be 158 sq.yrds., i.e. 68% more and 99 sq.yrds. for the units of 58 sq.yrds. that would also be 68% more. In addition to this, the members would be getting Rs.17 lacs and Rs.12 lacs royalty and rent of Rs.20,000/- and Rs.15,000/- per month respectively, incorporating other benefits. Considering the advantages, benefits and amenities, that will be provided to the members of the petitioner - society, including the private respondents, this Court is of the firm opinion that neither of the rights of the private respondents is violated. In fact, the rights of the members have been taken care of, to the fullest extent.
38. So far as the private respondent no.9.1 is concerned, it has been declared before this Court that he is not averse to the redevelopment; however, he is aggrieved by the pre-determined and biased manner in which, the allotment or redevelopment work has been entertained. As has been rightly pointed out by Mr Shalin Mehta, learned Senior Counsel that the respondent no.9.1 has been changing his stand and possibly, only with a view to creating impediment in the redevelopment work. Possibly, for the reason that the respondent no.9.1 is using his residential premises also for commercial purpose which has led to filing of the lavad suit against him before the learned Board of Nominees.
39. Moreover, the private respondent no.9.1 has raised the contention that the Rules mandate the appointment of the project management consultant/architect which is the first step towards the redevelopment process for buildings, fulfilling the conditions for Page 67 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 redevelopment project/work, followed by preparation of the project report by the project management consultant etc. It is also the stand of the respondent no.9.1 that the proceedings cannot be validated post facto to claim adherence to the rules more particularly, when the society's application for redevelopment with the Corporation is made after the notification of the said Rules. The contention would not be in a right earnest for the following reasons.
40. During the pendency of the captioned writ petition, the petitioner-society has sought for the prayer seeking development permission and after amending necessary prayers, and after hearing all the parties, this Court, has passed a detailed order dated 18.02.2021, directing the Corporation to consider the redevelopment plan and sanction the same in accordance with law. Apropos which, the Corporation has now sanctioned the development permission and issued commencement letter (raja chitthi) dated 5.3.2021 on certain terms and conditions. Therefore, now, there is a development permission in place, requiring the petitioner - society to carry out the development. As per the said commencement certificate, the construction is to be commenced within a period of one year, failing which, the commencement letter is likely to be cancelled. The said commencement letter is also made subject to the provisions of the Act of 1973 so also, the amendment Rules of 2019. The commencement letter still exists and has not been challenged by any of the private respondents.
41. Also, the order dated 18.2.2021 was challenged before the Division Bench of this Court by way of Letters Patent Appeal no.465 of 2021 by the legal heirs of the respondent no.9 which came to be withdrawn vide order dated 17.6.2021 and therefore, the order of the learned single Judge stood confirmed. The development permission was granted pursuant to the said order and when there is a development permission in the place, whether it would be permissible to any one not to allow any party to act in furtherance of Page 68 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 the said development permission. Answer is in negative.
42. At his juncture, the judgment of the Apex Court, cited by Mr.Shalin Mehta, learned Senior Counsel for the petitioner-society in the case of Binny Ltd. vs. Sadasivan (supra), is worth referring to. In the said case, while dealing with the scope of judicial review, it has been held and observed that the jurisdiction conferred on the High Court under Article 226 of the Constitution of India, is wide; however, it is an accepted principle that it is a public law remedy and available against the body or person performing public law function. Reference is made to the judgment of the Apex Court in the case of Dwarka Nath vs. Income Tax Officer reported in 1965 (3) SCR 536 wherein, it has been held and observed that Article 226 is couched in comprehensive phraseology and it ex-facie confers a wide power on the High Courts to reach injustice wherever, it is found. It has also been held and observed that the High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Paragraph 6 read thus:-
"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 mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the 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 grown 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."Page 69 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022
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43. Learned Senior Counsel Mr Shalin N Mehta, in support of the writ petition, has also relied upon various judgments, which are worth referring to. In the case of Rakesh Navnitlal Gandhi (supra), in the petition under Article 226 of the Constitution of India, the Court, has considered the process of redevelopment and observed that the petitioners therein are not deprived of their any property right nor any human right are violated. The Court also noted the benefits which were extended to the flat holders and was of the opinion that considering the benefits, it cannot be said that the petitioners therein are deprived of any property right nor any human right are violated. This Court has also considered the judgments, so also the judgment in the case of Rashmikaben Vikramkumar Patel (supra). The Court, dismissed the writ petition of the petitioners who were allottees of the housing quarters. The said judgment has been distinguished by the learned counsel appearing for the respondent on the ground that it was a writ petition by the member and not by the society, seeking direction against the members for demolition.
44. True, but, the Court has considered the aspects, namely, benefits to be provided to the petitioners therein. The consent of the majority of the members and after considering all such aspects, this Court dismissed the writ petition, observing in paragraph 25 as under:-
"25. As observed herein above, the quarters are approximately 40 years old and from the photographs placed on record, it is revealed that the same are in dilapidated condition and if the said flats are not demolished, there are all chances that at any time, accident may take place, which is dangerous to the life and property of the residents of the quarters. It has also come on record that approximately 158 members i.e. 76% of the members have vacated their premises and are residing at different places. Respondent No.3 developer is regularly paying Rs.5000/- per month by way of rent to such members and as pointed out by learned advocate Mr.Rao, respondent No.3 has incurred huge expenses. As per the Tripartite Agreement, the construction is to be made within a period of two years and because of the pendency of this petition and stay granted by this Court, the process of redevelopment is stopped."Page 70 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022
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45. Similarly, in the case of Rashmikaben Vikramkumar Patel (supra), which was earlier in point of time, this Court, in petition under Article 226 of the Constitution of India, did not entertain the same observing that when the decision is taken for redevelopment in larger public interest, the petition cannot be entertained. This Court, also recorded the benefits which were to be extended to the housing holders and concluded that the property right of the petitioners would not be affected. This Court, in paragraph 17 was further of the opinion that in the redevelopment process when almost all the members except few have given their consent for redevelopment, at the instance of few members, majority members cannot be made to suffer. This Court has further observed that the construction of the building is old and damaged and therefore, in the interest of the residents of such building, the decision of the redevelopment is taken in good faith and in the interest of members of the building. Such process cannot be stalled at the instance of few members, who object for such redevelopment for their personal interest.
46. In another decision in the case of Chirag Infra Projects Pvt. Ltd. (supra), the Court allowed the writ petition and directed the private respondent therein to vacate the flat with a further direction to handover the possession to the Society and which in turn will deliver the possession to the developer. Directions were also issued to the developer to extent all the benefits and incidents available to all the members of the Society.
47. In another decision in the case of Ravee B. Botalje (supra), the Bombay High Court while disposing of the writ petition, directed to handover the vacant and peaceful possession of the flats. Similar such orders have been passed in various judgments which have been placed on record by the learned counsel appearing for the petitioner-society. The said judgments have been tried to be Page 71 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 distinguished, that the judgments are under the provisions of the Arbitration and Conciliation Act, 1996 and therefore, similar such directions cannot be issued in the present writ petition more particularly, when the same is filed by the Society, seeking directions against the private respondents. It is also averred that no mandamus can be issued to the private respondents for vacating the flats inasmuch as, there is no such provision under the provisions of the Act of 1973, requiring eviction of the private respondents.
48. It is true that there is no provision in the Act of 1973 for eviction of the members, but there lies a fallacy in the submission inasmuch as, there is no eviction and it is only temporary shifting for the betterment and in the larger interest of the members of the Society and in larger public interest. After the flats are constructed the private respondents and other members will be given possession and will occupy their respective flats once again and resultantly, no deprivation of the property. Hence, the submission of no provision of eviction and consequent eviction, is ill-founded and misplaced.
49. The contention that no mandamus can be issued to the private respondents, as there is no provision for eviction; notably, the petition and prayer in the petition is not against the private respondents in exclusivity, but also seeking direction against the Corporation, which is undoubtedly a statutory body. Now, in view of the development permission granted, this Court in exercise of its powers under Article 226 of the Constitution of India, can very well require the private respondents to handover the possession in furtherance of the development permission more particularly, considering the conditions of the buildings. Moreover, the petition has been filed by the Society, which is registered under the provisions of the Co-operative Societies Act, majority of the members have taken a decision according redevelopment.
Page 72 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 Perceptibly, the decision of the Society or the body going in redevelopment, has not been assailed by the private respondents before the appropriate forum or has taken any restraint order against the Society. Apt would be the judgment, in the case of Aditya Developers (supra) wherein it has been observed that -
"By now it is well established position that once a person becomes a member of the Cooperative Society, he loses his individuality with the Society and he has no independent rights except those given to him by the statute and Bye-laws. The member has to speak through the Society or rather the Society alone can act and speaks for him qua the rights and duties of the Society as a body".
It has also been observed and held that the members cannot take stand alone position but are bound by the majority decision of the General Body. The learned counsel is right therefore, in contending that the objection raised by the private respondents that there is no privity of contract between the private respondents on one hand and the petitioner-society on the other, is not maintainable. In the present case, it is not disputed that the private respondents are the members of the Society and the General Body/ Executive Committee of the petitioner - society, if has taken a decision, consisting majority of the members, which is in conformity with the provisions of Section 41A of the Act of 1973, the objection of the private respondents, can hardly be maintained and therefore, it is rejected.
50. In the present case, though no notice has been issued, requiring the demolition of the property, however, the fact remains that there is a notice under Section 264 issued to the Society for carrying out necessary repairs and restrengthening of the building. Additionally, there are reports by the Structural Engineer, so also the soil testing laboratory that the condition of the building is dilapidated and requires urgent and is not fit for its safe use. Advise is also given that considering the damages and the condition of the Page 73 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 building, it is desirable to demolish the building and reconstruct the same. Therefore, when there is a opinion by the expert that the building is not safe for its use and it should be reconstructed, there is no reason available to the private respondents to oppose the redevelopment only on the ground that the procedure adopted by the Society, is unjust and improper.
51. So far as the condition of the building is concerned, perceptibly, it is in dilapidated condition and likely to fall, which is supported by the opinions of the experts. It is thereafter that the issue will arise as to whether the procedure has been followed by the petitioner - society going for redevelopment. Some steps were taken by the petitioner - society for the period from February, 2018 to December, 2019 and after the enactment of Section 41A of the Act of 1983, the General Body/Executive Committee has taken a decision with majority of members for redevelopment. Therefore, so far as the requirement as contained in the provisions of Section 41A, stands fulfilled. Once the requirement under Section 41A is fulfilled, the issue then will arise as to whether the procedure as provided under the Rules has been observed by the petitioner - society.
52. So far as the judgments relied upon by the learned counsel appearing for the private respondents and more particularly, the respondent no.9.1, it is required to be noted that there is no quarrel to the proposition that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. Pertinently, the Rules of 1974 are framed in exercise of the powers conferred by clause (e) of sub-section (2) of Section 44 read with Section 41A of the Act of 1973 and therefore, the rules are statutory in nature and to be adhered to. In the facts of the present case, it can be safely stated that there is substantial compliance of the rules; however, the minor aberrations cannot be fatal to the procedure adopted by the petitioner - society.
53. At this stage, apt would be the judgment in the case of Page 74 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022 C/SCA/8530/2019 CAV JUDGMENT DATED: 21/06/2022 Commissioner of Central Excise, New Delhi (supra). It has been held in paragraph 24, which reads thus:-
"24. The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance"
of the requirements. Like the concept of "reasonableness", the acceptance or otherwise of a plea of "substantial compliance"
depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleaded if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met. Certainly, it means that the Court should determine whether the statute has been followed sufficiently so as to carry out the intent for which the statute was enacted and not a mirror image type of strict compliance. Substantial compliance means "actual compliance in respect to the substance essential to every reasonable objective of the statute" and the court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed. Fiscal statute generally seeks to preserve the need to comply strictly with regulatory requirements that are important, especially when a party seeks the benefits of an exemption clause that are important. Substantial compliance of an enactment is insisted, where mandatory and directory requirements are lumped together, for in such a case, if mandatory requirements are complied with, it will be proper to say that the enactment has been substantially complied with notwithstanding the non- compliance of directory requirements. In cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. The test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, the critical question to be examined is whether the requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine. On the other hand, if the requirements are procedural or directory in that they are not of the "essence" of the thing to be done but are given with a view to the orderly conduct of business, they may be fulfilled by substantial, if not strict compliance. In other words, a mere attempted compliance may not be sufficient, but actual compliance of those factors which are considered as essential."Page 75 of 76 Downloaded on : Wed Jun 22 21:37:43 IST 2022
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54. At the cost of repetition, so far as the observance of the provisions of the Act and of the Rules are concerned, pertinently the procedure was adopted by the petitioner - society seeking consent and has got consent of more than 75% of the members and after the enactment/introduction of the provisions of Section 41A of the Act of 1973, the petitioner - society has it its general body meeting dated 16.6.2020 and 12.7.2020, ratified the earlier procedure and therefore, it will not dis-entitle the petitioner - society seeking development. If at all there is some aberration in the procedure, it will be for the appropriate authority to take action. In absence of any challenge to the decision of the general body, so also the development permission, the contention of the private respondents, would be misplaced.
55. In view of the aforementioned discussion, the petition, deserves to be allowed and is accordingly allowed. The petitioner- society is permitted to act as per the development permission dated 5.3.2022 and the private respondents are directed to handover the possession of the respective flats for the purpose of redevelopment within a period of eight weeks from the date of the receipt of copy of this CAV judgment. Rule is made absolute to the aforesaid extent. No order as to costs.
56. In view of the disposal of the captioned writ petition, the connected Civil Applications, do not survive and also stand disposed of.
Sd/-
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