Gujarat High Court
Swapna Cooperative Housing Society ... vs State Of Gujarat on 7 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18234 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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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 ? No
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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SWAPNA COOPERATIVE HOUSING SOCIETY LIMITED & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR. DHAVAL DAVE, SR. ADVOCATE WITH MS AMRITA M
THAKORE(3208) for the Petitioner(s) No. 1,2,3
NOTICE NOT RECD BACK for the Petitioner(s) No. 2,3
for the Respondent(s) No. 2,3,4,5,6,7,8,9
G H VIRK(7392) for the Respondent(s) No. 2,3,4
MR. ROHAN RAVAL, AGP for the Respondent(s) No. 1
MALAV M MULANI(8844) for the Respondent(s) No. 10
MR JIGAR M PATEL(3841) for the Respondent(s) No. 5
MR PARTHIV A BHATT(5331) for the Respondent(s) No. 8
MR VASANTS SHAH(810) for the Respondent(s) No. 6
MR. M.I. HAVA for the Respondent(s) No.9
SERVED BY RPAD (R) for the Respondent(s) No. 7,9
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/02/2024
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NEUTRAL CITATION
C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024
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ORAL JUDGMENT
1. By way of present petition, the petitioner herein has prayed for the following reliefs:
"7. In the aforesaid premises, the petitioners pray as under:
A. This Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction:
(i) Holding and declaring that the action of the respondent corporation authorities of directing the petitioner no. 1 society and its members to repair and secure the dilapidated, dangerous and ruinous structures of the petitioner no. 1 society instead of taking appropriate steps to have these dangerous structures vacated/evicted and demolished, is without any application of mind, unconstitutional, unreasonable, irrational, unjustified and amounts to a refusal to perform their duty under the provisions of the Gujarat Provisional Municipal Corporations Act, 1949 and is in clear disregard and contravention of the provisions of the Gujarat Ownership Flats Act, 1973.
(ii) Quashing and setting aside the notices dated 5.2.2022 and 4.4.2022 issued by the respondent authorities to the extent that they seek to direct the petitioner no.1 society and its members to repair and secure the dilapidated dangerous and ruinous structures of the petitioner no.1 society instead of taking appropriate steps to have these dangerous structures vacated/ evicted and demolished.Page 2 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024
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(iii) Directing the respondent authorities to take appropriate steps for vacating/evicting and demolishing the dangerous and dilapidated structures of the petitioner no. 1 society in terms of and in exercine of powers and duties under the provisions of the Gujarat Provisional Municipal Corporations Act, 1949.
B. Pending the admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to direct the respondent authorities to take appropriate steps for getting the dangerous and dilapidated structures of the petitioner no. 1 society vacated/evicted and demolished in exercise of powers and duties under the provisions of the Gujarat Provisional Municipal Corporations Act, 1949.
C. Ex parte ad interim relief in terms of prayer B hereinabove be granted.
D. Such other and further reliefs as may be deemed fit in the facts of the present case may be granted."
2. Brief facts leading to filing of the present petition read thus:
2.1 The petitioner No. 1 is a Co-operative housing society and is the owner of land admeasuring 5315 sq. mt. (approx.) bearing Final Plot No. 211 of Town Planning Scheme No. 29 (Naranpura) of Village Vadaj, Taluka Sabarmati, District Ahmedabad. A total of 96 apartments comprising of 48 numbers of 1 BHK flats admeasuring 62.71 sq. mtr and 48 numbers of 2 BHK flats Page 3 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined admeasuring 83.61 sq. mtrs. came to be constructed in 8 blocks plus 1 tenament, on the petitioner society's land in or around 1981-82 i.e. before about 40 years and the said apartments were allotted to the various members of the petitioner society. In all the petitioner society has 97 members.
2.2 The construction of the apartments being very old, the structures are in a highly dilapidated and in dangerous state. The columns are cracked badly in the ground and first floor, corrosions in many of the RCC slabs, beams, columns and foundation due to long term seepage of rain water and water leakages can be seen.
Exposed corroded bars can be seen in major critical locations and in slabs, major cracks are there in various major locations, load bearing walls, slabs and balconies, and this could lead to slabs falling. Separate cracks can be observed in parapet wall as well as balcony. Washroom areas are in very bad shape. The structures being in very bad condition would soon not be in a position to withstand the weight of the walls and slabs of upper floors. The concrete has very low strength and the structures would not be in a position to withstand any further effects of changing weather, moisture variation or earthquake. Seismic resistance is not observed upon inspection of RCC elements' physical condition. The condition of the structures was so ruinous that there was Page 4 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined an imminent threat of collapse of building or part thereof at any time. Consequently, the structures posed great danger to the persons occupying the same and were also likely to cause damage to the surrounding property when they fall.
2.3 In light of the aforesaid, the petitioner society has placed on record a report of structural engineer dated 17.4.2021, which is duly produced at page-28 (Annexure "A"). Photographs of the structures showing the condition of the building as being highly dilapidated and dangerous, are also produced at page-30 (Annexure "B"). The respondent authorities also issued notices dated 5.2.2022 and 4.4.2022 acknowledging the ruinous condition of the structures, asking the petitioners to repair the structures. The said notices are duly produced at page-33 (Annexure "C"). In light of the aforesaid facts, the petitioner Society resolved to go for re-development, which is a practical solution as contemplated under the Gujarat Ownership Flats Act, 1973.
2.4 Initially, 93 out of 97 members accepted the revised proposal of respondent No.5 and signed MOUs with respondent No.5, however, after the petition was filed, respondent No.6 and 7 have also consented for redevelopment. Respondent No.6 signed MOU on 24.9.2022 and executed an affidavit dated 24.9.2022 Page 5 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined consenting to redevelopment and similarly, Respondent No.7 also consented to redevelopment and executed an affidavit dated 24.9.2022, agreeing to cooperate in the redevelopment process.
2.5 Mr. M.I. Hava, the learned advocate appearing for respondent No.9, by communication dated 9.2.2024, consented for redevelopment. In light of the aforesaid facts, all the flat owners, except respondent No. 8, being agreeable for the redevelopment, executed the necessary MOUs with respect to the same with respondent No.5. All the flat owners, except respondent No.8, are ready and willing to vacate their respective flats, hand over the possession thereof so as to take forward the redevelopment of the petitioner's society. The respondent No.5 has also made payment of Rs.1,00,000/- to each of the members as agreed in the MOU. In all, the respondent No.5 has already paid total amount of Rs.93 lakhs in furtherance to the agreement to the redevelopment of the petitioner Society.
2.6 In the aforesaid set of facts, the petitioners herein are constrained to approach this Court seeking the reliefs as referred above.
3. Heard Mr. Dhaval Dave, the learned Senior Counsel appearing with Ms. Amrita Thakore, the learned advocate Page 6 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined appearing for the petitioners, Mr. G.H.Virk, the learned advocate appearing for the respondent Nos.2, 3 and 4, Mr. Jigar Patel, the learned advocate appearing for respondent No.5, Mr. Vasant Shah, the learned advocate appearing for respondent No.6 and Mr. Parthiv Bhatt, the learned advocate appearing for respondent No.8, Mr. M.I. Hava, the learned advocate appearing for respondent No.9 and Mr. Mulani, the learned advocate appearing for newly added respondent No.10.
4. Heard Mr. Dhaval Dave, the learned Senior Counsel appearing for Ms. Amrita petitioners. Mr. Dave, the learned Senior Counsel submitted that the petitioner Society came to the constructed as back as in the year 1981-82 and the same is almost 40 years back, having 97 members. The condition of the society is in dilapidated state and in view thereof, 96 out of 97 members have consented for re-development of the society. Initially 4 members declined to grant their consent; however, pending the present petition, the said members being respondent Nos. 6, 7 and 9 have also consented to the redevelopment. It was submitted that only respondent No.8 has not given consent for the redevelopment. It was submitted that newly added respondent No.10 has also no objection if re-development of the petitioner society is undertaken, however, Mr. Dave the learned Senior Counsel candidly submitted that there is a dispute with Page 7 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined respect to co-ownership qua respondent No.10 and the same be resolved inter-se before the competent Court and the petitioners would abide by the outcome of the said proceedings.
4.1 Mr. Dhaval Dave, the learned Senior Counsel submitted that undisputedly, the structures are more than 40 years old and there is consent of more than 75% members as prescribed under Section 41A of the Gujarat Ownership Flats Act, 1973 as well as the petitioners herein fulfill the conditions provided for redevelopment.
4.2 In light of the aforesaid undisputed facts, the aforesaid issue is no longer resintegra in line with the ratio as laid down by this Court, the Hon'ble Division Bench and the Hon'ble Apex Court. It is apposite to refer to Section 41A of the Gujarat Ownership of Flats Act, 1973. Considering Section 41A of the Act, this Court, in line of the aforesaid provision that there is consent of more than 75% members. In facts of the present case, there is no objection at all with respect to redevelopment.
5. Mr. Jigar Patel, the learned advocate appearing for the respondent No.5 undertakes to act in accordance with MOU. Considering the aforesaid, the prayers as prayed for, are required to be allowed. In considering the consent by 96 members out of 97 members, the petition is Page 8 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined required to be allowed and the same is allowed. Considering the fact that the petitioner Society itself has decided for redevelopment, the prayers as prayed for, in Para-7(ii) are not required to be considered, the said notice would not survive and, therefore, there is no order required to be passed.
6. Mr. Parthiv Bhatt, the learned advocate appearing for respondent No.8 relied upon the affidavit duly produced at Page-227 and submitted that respondent No.8 herein placed a proposal by one Shyam Vijay Infrastructure, which according to respondent No.8 was better proposal than that was given by respondent No.5, however, the same was not considered by the Office bearers of the Society. It was submitted that respondent No.8 was not provided relevant documents regarding the redevelopment. The petitioner was also not provided resolution of General Body and whether the same is passed or approved, suggests that the petitioner no.1 is working in his own way without taking the confidence of the other members of the society. In view thereof, the objection raised by the respondent No.8 be considered.
7. Mr. M.I. Hava, the learned advocate appearing for the respondent No.9, on instructions, submitted that the respondent No.9 has no objection to vacate the premises allotted to her by the Society and the respondent No.9 Page 9 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined undertakes to vacate for possession as demanded by the Society. It was also submitted that the builder may give all the benefits of rent during the period of redevelopment, alternative accommodation and such other benefits as has been extended to the other members.
8. Having heard the learned advocates for the respective parties, following emerge:
8.1 The petitioner society was constructed in the year 1981-82, wherein a total of 96 apartments comprising of 48 numbers of 1 BHK flats admeasuring 62.71 sq. mtr and 48 numbers of 2 BHK flats admeasuring 83.61 sq. mtrs. came to be constructed in 8 blocks plus 1 tenement.
The said buildings are more than 40 years old and are in dilapidated and dangerous condition. This Court has perused the report of the Structural Engineer dated 17.4.2021 duly produced at page-28-29 along with Photographs duly produced at Page-30 to 32 and the notices issued by the respondent AMC under Section 264 dated 5.2.2022 and 4.4.2022 duly produced at page-33-
34. 8.2 In light of the aforesaid, the petitioner Society decided to go for re-development. 93 out of 97 members (i.e. about 96%) accepted the revised proposal of the respondent No.5 and signed the MOU with respondent Page 10 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined No.5 (pg-57-214). The respondent No.7 had also at that time consented and signed the MOU at page-82, however, later on, respondent No.7 withdrawn her consent. Respondent No.5 Developer paid Rs. 1 lakh to each of the said 93 members i.e. total payment of Rs.93 lakhs in furtherance of MOU.
8.3 After filing of the present petition, respondent Nos. 6 and 7 has consented for redevelopment and affidavit are duly produced at page-227-269. Respondent No.6 signed MOU on 24.9.2022 (page-235-262) and has also executed an affidavit dated 24.9.2022 consenting to redevelopment and agreeing to cooperate in the redevelopment process (page-263-264).
8.4 The respondent No.6 also filed affidavit in the present petition stating that she is agreeable to redevelopment of the Society by respondent No.5 (page- 238 - 266).
8.5 Respondent No.7 (who had earlier signed the MOU but later withdrawn her consent) has once again consented to redevelopment and has agreed to cooperate in the redevelopment and has executed an affidavit dated 24.9.2022 consenting to redevelopment; thereby agreeing to cooperative in the redevelopment process. (pg-231-
232).
Page 11 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined 8.6 In light of the aforesaid, 95 out of 97 members (i.e. about 98%) have consented for redevelopment.
8.7 This Court has perused the list of consenting members (267-269). Pending the present petition, the respondent No.9 has also consented to redevelopment and has undertaken that respondent No. 9 would vacate the premises for redevelopment . In view thereof, only one member objects to the process of redevelopment undertaken by the petitioner Society.
9. As against the 96 Apartments plus 1 tenement, by taking advantage of the prevailing FSI and modern construction techniques, it would be possible to construct a total of 208 apartments of larger size. Consequently, if the property is taken into redevelopment, the members of the society would be in a position to get a new apartments which are larger in dimension compared to their earlier homes without spending a penny from their pockets and the developer would be in a position to recover cost of construction as well as alternative accommodation by selling the surplus apartments. Moreover, during the course of the redevelopment, the developer would also provide rent for alternative accommodation to make the process free of cost for all the members.
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10. The MOU dated 21.3.2021, which is entered into between the petitioner Society and respondent No.5, is duly produced at Annexure "E" (page-57-214), which provides for the following facilities:
a. Transportation cost (pag.63);
b. Rent Clause (page-63,73);
c. Payment for furniture, fixture, etc. (page-64);
d. Bank Guarantee (page-64);
e. Size of new flats (page-65);
f. Lift, parking, etc. (page-65);
g. Specifications and common facilities as agreed
earlier (page-65);
h. Payment for modular kitchen (page-66); and
i. Gift money (page-67).
11. At this stage, it is apposite to refer to Section 41A of the Gujarat Ownership Flats Act, 1973, which reads thus:
"41A. Re-development of flats and apartment. - 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 flats owners of such building :
Provided that, in respect of such building, -Page 13 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024
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(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 structure or any other structure or place in the neighbourhood thereof.
Explanation. - For the purpose of this section, the expression "redevelopment" shall be the meaning as assigned to it in relevant Development Control Regulations."
12. At this stage, it is apposite to refer to the ratio as laid down by the Hon'ble Supreme Court in Civil Appeal No.7261 of 2022 dated 13.10.2022 in case of Bengal Secretariat Co.op. Land Mortgage Bank and Housing Society Ltd. vs. Sri Aloke Kumar & Anr. Paragraphs 52 to 58 of the said decision read thus:
"52. It is not in dispute that the General Body of the Appellant Society, which is supreme, has taken up a conscious decision to redevelop the administrative building. The General Body of the Appellant Society has also resolved to appoint the Hi-Rise as the developer. Those decisions having not been challenged at all, the Respondent No. 1 being a member of the Appellant Society is bound by the said decisions. The General Body Page 14 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined of the Appellant Society has approved the terms and conditions of the development agreement by overwhelming majority. Merely because the terms and conditions of the development agreement are not acceptable to the Respondent No. 1, who could be said to be in minuscule minority cannot be the basis of not to abide by the decision of the overwhelming majority of the General Body of the Appellant Society. The redevelopment of the property is necessitated in view of the fact that the building is in a dilapidated condition with passage of time. The redevelopment thus, in our view, would be a requirement and a necessity and cannot be termed as business. The Appellant Society in such circumstances did not even require to carry out any amendment to the bye-laws or to include the "redevelopment of the buildings" as one of the objects of the Society before taking any decision to redevelop its property.
53. By now it is well established position that once a person becomes a member of the Co-operative 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 (see : Daman Singh v. State of Punjab, reported in (1985) 2 SCC 670 : AIR 1985 SC 973). This view has been followed in the subsequent decision of this Court in the case of State of U.P v. Chheoki Employees Co-operative Society Ltd., reported in (1997) 3 SCC 681 : AIR 1997 SC Page 15 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined 1413. In this decision, this Court further observed that the member of a Society has no independent right qua the Society and it is the Society that is entitled to represent as the corporate aggregate. This Court also observed that the stream cannot rise higher than the source. Suffice it to observe that so long as the Resolutions passed by the General Body of the Appellant Society are in force and not overturned by a forum of competent jurisdiction, the said decisions would bind the Respondent No. 1. He cannot be permitted to take a stand alone position but is bound by the majority decision of the General Body. Notably, the Respondent No. 1 has not challenged the Resolutions passed by the General Body of the Appellant Society to redevelop the property and more so, to appoint the Hi- Rise as the Developer to give him all the redevelopment rights.
54. It was also argued on behalf of the Respondent No. 1 that the property is in a good condition and there is no need to redevelop the existing building. In the first place, as noted earlier, the decision of the General Body of the Society to redevelop the subject property has not been challenged at all. Besides, no provision in the Co- operative Societies Act or the rules or any other legal provision has been brought to our notice which would curtail the right of the Society to redevelop the property when the General Body of the Society intends to do so. Essentially, that is the commercial wisdom of the General Body of the Society. It is not open to the Court to sit over the said wisdom of the General Body as an Appellate Authority. Merely because one single member in minority Page 16 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined disapproves of the decision, that cannot be the basis to negate the decision of the General Body, unless it is shown that the decision was the product of fraud or misrepresentation or was opposed to some statutory prohibition. That is not the grievance made before us. In the present case, the General Body took a conscious decision after due deliberations for many years to redevelop its property. Even with regard to the appointment of the "Hi-Rise" as the Developer, the record shows that it was decided by the General Body of the Society after examining the relative merits of the proposals received from the developers.
55. The object of the provision has to be borne in mind. The entire legislative scheme goes to show that the Co- operative Society is to function democratically and the internal democracy of a society, including resolutions passed in accordance with the Act, the Rules, and the bye- laws have to be respected and implemented. The Co- operative Movement is both a theory of life and a system of business. It is a form of voluntary association where individuals unite for mutual aid in the production and distribution of wealth upon principles of equity, reason and common good. It stands for distributive justice and asserts the principle of equality and equity ensuring to all those engaged in the production of wealth a share proportionately commensurate with the degree of their contribution. It provides as a substitute for material assets, honesty and a sense of moral obligation and keeps in view the moral rather than the material sanction. The movement is thus a great Co-operative movement.Page 17 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024
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56. The basic principles of co-operation are that the members join as human beings and not as capitalists. The Co-operative Society is a form of organization wherein persons associate together as human beings on the basis of equality for promotion of economic interest of its members. This movement is a method of doing the business or other activities with ethical base. "Each for all and all for each" is the motto of the co-operative movement. This movement not only develops latent business capacities of its members but produces leaders; encourages economic and social virtues, honesty and loyalty, becomes imperative, prospects of better life, obtainable by concerted effort is opened up; the individual realises that there is something more to be sought than mere material gains for himself. So, in fact, it being a business cum moral movement, and the success of the Co- operative Society depends upon the reality with which one of the members work for the achievement of its objects and purpose. The Committee on Co-operation in India emphasized the moral aspect of co-operation, to quote the words:-
"The theory of co-operation is very briefly that an isolated and powerless individual can, by association, with others and by moral development support, obtain in his own degree the material advantages available to wealthy or powerful persons and thereby develop himself to the fullest extent of his natural abilities. By the Union of forces, material advancement is secured and by united action self reliance is Page 18 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined fostered and it from the inter-action of these influences that it is hoped to attain the effective realisation of the higher and more prosperous standard of life which has been characterised as better business, better arming and better living; we have found that there is a tendency not only among the outside public but also among supporters of the movement to be little its moral aspect and to regard this as superfluous idealism. Cooperation in actual practice must often fall short of the standard aimed at and details inconsistent with co-operative ideals have often to be accepted in the hope that they may lead to better things. We wish clearly to express that it is the true co-operation alone, that is, to a co-operation which recognises the moral accept of the question that Government must look for the amelioration of the masses and not to a psudo co-operative edifice, however imposing, which is built in ignorance of co- operative principles. The movement is essentially a moral one and it is individualistic rather than socialistic. It provides as a substitute for material assets honesty and a sense of moral obligation and keeps in view the moral rather than the material sanction. Theory and Practice of Co-operation in India and Abroad by Kulkarni, Volume 1. Co-operation is a mode of doing business, is at present applied as the solution of many economic problems. Co- operation is harnessed to almost all forms of Page 19 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined economic activity. Though co-operation was introduced in this country as a remedy for rural indebtedness, it has been applied successfully in a wide range of activities such as production, distribution, banking, supply, marketing, housing and insurance. See Theory and Practice of Co-operation in India and Abroad by Kulkarni Volume 1 Page 2."
57. In the overall view of the matter, we are convinced that the impugned judgment and order passed by the High Court is not sustainable in law and deserves to be set aside. At one point of time, we were inclined to allow this appeal by imposing an exemplary costs on the Respondent No. 1 for unnecessarily dragging the Appellant Society into a frivolous litigation & not allowing the Appellant Society to go ahead with the project for the past almost two decades. However, we refrain from passing such order of costs in the hope that the Respondent No. 1 realises that the development of the administrative building will be for the betterment of the society. No individual member is going to gain anything from the redevelopment. It is the society as an autonomous body which will gain something.
58. For the foregoing reasons, this appeal succeeds and is hereby allowed. The impugned judgment and order passed by the High Court is hereby set aside and it shall now be open to the Appellant Society to proceed further with its project of redevelopment in accordance with the resolutions passed by the General Body from time to time.
Page 20 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined It is needless to clarify that the first priority should be given to demolish the entire building as the same is in a dilapidated condition.
13. It is also apposite to refer to the decision dated 08.12.2023 passed by this Court in Letters Patent Appeal No.1427 of 2023. Paragraphs 8 to 12 of the said decision read thus:
"8. Having extensively gone through the provisions of Section 41-A read with the Rules 18 to 25 made thereunder, we record that the society for carrying out redevelopment work of the building has to follow the terms and conditions as laid down in Section 41-A which are:-
(i) The building shall have completed the period of twenty-five years from the date of issuance of the development permission by the concerned authority;
(ii) The concerned authority has declared the building being in ruinous condition, i.e. declared it dilapidated and dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighborhood thereof;
(iii) Consent of not less than 75% of the members of the building for redevelopment of the building has been obtained.Page 21 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024
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9. There is no dispute about the fact that the above noted three conditions for redevelopment project/work of the building in question has been fulfilled in the instant case. No such dispute has been raised that the concerned authority has not declared the building being in ruinous condition. The only dispute raised by the appellants (fifteen numbers of the society) is that the building is not in dilapidated condition, based on an alternative report of Structural Engineer. The said issue, as rightly held by the learned Single Judge, cannot be examined by us as a Court of appeal. The fact remains that the concerned authority, namely the Ahmedabad Municipal Corporation had issued a notice dated 19.05.2022, about three and a half years back, directing for carrying out major repairs of the building in question noticing that the building is in ruinous condition. More than 75% of the members have agreed for redevelopment and there is no dispute about the said fact. There is also no dispute about the date of development permission having been granted for the building as disclosed in the writ petition.
10. The only dispute which is being raised before us is about the procedure for redevelopment having not been followed by the concerned body of the society. In this regard we may note that a detail procedure under Rules 19 to 25 has been prescribed wherein it is provided that for making decision to undertake the redevelopment of the building, the Managing Committee or the body shall convene the special general meeting of the cooperative society or association. The Rules and the by-laws of the society with respect to convening of such meetings, such Page 22 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined as notice, circulation of agenda items, quorum at the meetings, taking policy decisions, entering into an agreement, supplying the minutes of meeting of the members, etc. shall be applicable in the matters relating to redevelopment project. Sub-rule (3) of Rule 19 provides that the Managing Committee shall place before the general body the agenda items for taking policy decision relating to redevelopment of building; and for appointment of the Architect/ Project Management Consultant to prepare the redevelopment project. The special general body meeting shall take a decision with the consent of not less than 75% of the total members of the body for redevelopment of the building and select an Architect/ Project Management Consultant to prepare the redevelopment project. The general body may authorize the Managing Committee to take all further necessary actions/steps for redevelopment project. To the above procedure, no illegality can be pointed out by the learned counsel appearing for the appellants. Rule 20 further provides that the Architect / Project Management Consultant appointed by the Committee as per the decision taken at the special general meeting, shall prepare the project report within two months from the date of appointment and submit the same to the Managing Committee. The project report contains the details as mentioned therein. It is further provided that the Architect/Project Management Consultant after preparation of the project report shall invite offers from the eligible contractors/builders/company or developer. Rules 21 and 22 provide the manner in which the selection of developer is to take place. In this regard, Page 23 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined relevant is to note that the offer given by the respondent No.3 Developer for redevelopment of the society has been considered in the meeting dated 31.12.2020 of the society and the changes were suggested in the discussion. After incorporating those changes, the final offer of respondent No.3 has been accepted on 30.03.2021. Till date, only a Memorandum of Understanding has been arrived with the respondent No.3 Developer and no Development Agreement has so far been signed. Rule 23 provides the terms and conditions to be approved in the special general body meeting of the society to enter into a Development Agreement with the developer in consultation with Architect/Project Management Consultant. The conditions to be incorporated in the Development Agreement, amongst others, shall contain the conditions laid down in Clauses (i) to (x). Rule 24 provides that the developer will not be able to make any changes in the building plan except with the written permission of the Managing Committee. The procedure for allotment of new flats has been provided in Rule 25.
11. Taking note of the above provisions of the Rules made under the Gujarat Ownership Flats Act, 1973, we are of the considered opinion that due care has been taken by the Legislature to address the concern of the appellants herein. The appellants can dispute the conditions of the Development Agreement, if not properly incorporated and shall have a right to participate in the process of development in a constructive way. However, 15 members out of total 96 members of the society cannot be permitted to stall the process of redevelopment only on Page 24 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined their own suspicions and notions. There are no allegations of fraud or violation of any of the procedures prescribed in the Rules as noted hereinabove.
12. For the above reasoning in addition to the reasoning given by the learned Single Judge, we do not find it a fit case to interfere. The appeal is found devoid of merits and hence, dismissed. The appellants are directed to cooperate in the process of redevelopment of the society by giving constructive suggestions in the matter of entering of Development Agreement with the selected developer."
14. It is also apposite to refer to the decision dated 23.01.2023 of the Division Bench of this Court in Letters Patent Appeal No.1075 of 2022. Paragraphs 48, 52 and 54 of the said decision read thus:
"48. The contention of Mr. Oza, learned Senior Advocate that there is no provision under the Gujarat Ownership Flats Act for providing summary eviction of a nonconsenting member unlike the provision under the Maharashtra Housing and Area Development Act, 1976 or The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, providing for such eviction and as such Writ Court could not have issued a Writ of Mandamus to the contesting respondents to quit and handover vacant possession of their flats, is no doubt an attractive argument which requires to be brushed aside, inasmuch as the Hon'ble Apex Court in the case of Page 25 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined Binny Ltd. and Anr. versus V. Sadasivan and Others reported in (2005) 6 SCC 657, has held that the High Court under Article 226 of the Constitution of India is empowered to issue Writ on the principles that it is a public law remedy and available against a body or persons performing public law function. In fact, the learned Single Judge had taken note of observations made by the Hon'ble Apex Court in the case of Dwarka Nath versus Income Tax Officer, reported in 1965 3 SCR 536, whereunder it has been held to the following effect:
"6. This article is couched in comprehensive phraseology and it ex- facie confers a wide power on the high court to reach injustice wherever it is found. The constitution designedly used a wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with the those in England, but only draws in analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to 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 Page 26 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined 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."
52. At the outset, it requires to be noticed that by calling upon the occupant (respondent No.9) to vacate the premises by issuance of writ of mandamus, there is no order of eviction is passed. The resolution of the general body of members passed by the majority (now all the members having consented for redevelopment except respondent No.9) would indicate that during the period of redevelopment taking place, all the occupants of the existing property who are in occupation of their respective flats would be provided alternate accommodation in a rented premises and rent of the such premises would also be paid by the developer himself. Thus, there is no eviction or dispossession. Eviction in terms of the prevalent rent laws or ejectment of an occupant from the suit property as contemplated under the Transfer of Property Act would mean to dispossess a person in occupation of a premises under the authority of law by putting an end to such right. In other words, eviction means right to reside or occupy ceasing or such right getting terminated by operation of law. In the instant case, respondent No.9 is neither dispossessed nor evicted but has only been directed to be shifted to an alternate premises which she/they would continue to Page 27 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined reside till redevelopment takes place. Temporary shifting of residents of a premises in redevelopment project would not amount to dispossession or eviction as sought to be contended. In fact, appellant is not deprived of the property viz. residential accommodation at all.
54. Having affixed their signatures to the resolutions and having not questioned the resolutions so passed by taking appropriate steps, respondent Nos.5 to 8 herein as well as the appellant are estopped from contending contrary to the same, inasmuch as they are bound by resolutions for which they have affixed their signatures. Hence, we are of the considered view that no prejudice is caused to the appellant or similarly placed persons as discussed in detail by the learned Single Judge vide paragraph 37. In that view of the matter, we are unable to accept the contentions raised by learned Senior Advocate appearing for the appellant."
15. The objections raised by the respondent No.8 pale into insignificance, in light of the ratio as referred above, once the project for redevelopment is undertaken by the petitioner Society and there is consent of more than 75% members and also the Flats in question are more than 40 years old, after considering the objections which fall within the conditions prescribed under Section 41A of the Act, as referred above, the objection raised by one individual member is not maintainable in light of the aforesaid. The Project of redevelopment undertaken by the Society is required to be proceeded further. This Page 28 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined Court deems it fit to exercise powers under Article 226 of the Constitution of India as the decision taken for the redevelopment is in larger public interest and provides for the benefits to the house holders/flat owners and the property right of any occupier would not be affected and every occupier will get a new unit against their occupation and in the opinion of this Court, in the redevelopment process when all the members, except 1 member, have given consent for redevelopment, at the instance of the 1 member, the consent of the majority members should not suffer.
16. At the cost of repetition, it is required to be observed that the construction of the building is old and damaged and the report of the Structural Engineer also states that the building is in dilapidated condition, under such circumstances, in the interest of the residents of the building/flats, the decision of redevelopment appears to be taken in good faith and such process cannot be stalled at the instance of the 1 objecting member.
16.1 Even otherwise, the Hon'ble Division Bench in Letters Patent Appeal No.1427 of 2023 by order dated 08.12.2023, has extensively explained the procedure of redevelopment under Rules 19 to 25 in paragraph 10 of the said order wherein, the Hon'ble Division Bench has held that it is only at the stage of MOU between the Page 29 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined petitioner and the respondent No.5 and no development agreement has so far been signed. Rule 23 provides the terms and conditions to be approved in the special general body meeting of the society to enter into a development agreement with the developer in consultation with Architect/Project Management Consultant. The conditions to be incorporated in the Development Agreement, amongst others, shall contain the conditions laid down in Clauses (i) to (x). Rule 24 provides that the developer will not be able to make any changes in the building plan except with the written permission of the Managing Committee. The procedure for allotment of new flats has been provided in Rule 25. Taking note of the aforesaid provisions, the Hon'ble Division Bench held that due care has been taken by the Legislature to address the concern of the appellants therein. The appellants can dispute the conditions of the Development Agreement, if not properly incorporated and shall have a right to participate in the process of development in a constructive way.
17. In light of the aforesaid and the ratio as laid down above and considering the further affidavit filed by the petitioner herein, with respect to the objection raised by respondent No.8, Mr. Dhaval Dave, the learned Senior Counsel has placed on record a copy of Resolution, by Page 30 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined which, the offer of redevelopment made by M/s Shyam Vijay Infrastructure was rejected.
17.1 Mr. Dave, the learned Senior Counsel also undertakes that the petitioner would be bound by the order passed by the competent authority with respect to the status of respondent No.10 wherein respondent No.10 is claiming joint interest in Flat No.C-5 along with respondent No.6 by virtue of a nomination for and Will allegedly executed by the deceased Smt. Shantaben Kantilal Thakkar (Original owner of Flat No. C-5). In light of the aforesaid, the Society is not in a position to decide upon such issues and will have to abide by the orders of the competent Civil Court having jurisdiction to decide the issue as to who is or are having interest in the said Flat No.C-5.
18. For the foregoing reasons, the petitioner society is compliant of the conditions under Section 41A of the Act, 1973, in the facts of the present case, (i) the building is more than 25 years old i.e. 40 years; (ii) the Structural Engineer Report states that the building is in dilapidated condition and (iii) there is consent of more than 75% members i.e. 99% members.
19. For the said reasons, the prayers as prayed for in the present petition, are required to be allowed and the same Page 31 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024 NEUTRAL CITATION C/SCA/18234/2022 JUDGMENT DATED: 07/02/2024 undefined are allowed. The respondent Nos.8 and 9 are directed to vacate their respective flats in the petitioner No.1 Society and handover the peaceful and vacant possession thereof for the redevelopment as per Section 41A of the Gujarat Ownership Flats Act, 1973 within a period of eight weeks from the date of receipt of the order and cooperate in the redevelopment of the petitioner No.1 Society. In view of the same, the prayers 7(i) (ii) and (iii) are held to be infructuous.
20. With the aforesaid, the present petition stands allowed. Rule made absolute.
Direct Service is permitted.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 32 of 32 Downloaded on : Fri Mar 08 20:33:36 IST 2024