Gujarat High Court
Rutul Park Cooperative Housing Society ... vs State Of Gujarat on 18 April, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9304 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RUTUL PARK COOPERATIVE HOUSING SOCIETY LTD. & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS AMRITA M THAKORE(3208) for the Petitioner(s) No. 1,2,3
MS DHWANI R TRIPATHI, AGP for the Respondent(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 2,3
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 2,3,4
MR VICKY B MEHTA(5422) for the Respondent(s) No. 6
NOTICE SERVED BY DS for the Respondent(s) No. 1,5
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 18/04/2024
ORAL JUDGMENT
1. By way of present petition under Article 226 of the Page 1 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined Constitution of India, the petitioners herein have 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 authorities of directing the petitioner no. 1 society and its members to repair and secure the dilapidated, dangerous and ruinous structure of the petitioner no. 1 society instead of taking appropriate steps to have the dangerous structure 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 notice dated 3.6.2022 issued by the respondent authorities to the extent that it seeks to direct the petitioner no. 1 society and its members to repair and secure the dilapidated, dangerous and ruinous structure of the petitioner no. 1 society instead of taking appropriate steps to have the dangerous structure vacated/ evicted and demolished.
B. 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 directing the respondent no. 6 to vacate his Flat No. A/1 in the petitioner society within such period as this Hon'ble Court considers appropriate, and further directing that if the respondent no. 6 fails to do so, the respondent nos. 2 to 4 authorities are to take appropriate steps for vacating/evicting the respondent no. 6 and demolishing the dangerous and dilapidated structure of the petitioner no. 1 society in terms of and in exercise of powers and duties under the provisions of the Gujarat Provisional Municipal Corporations Act, 1949.
C. Pending the admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to stay and suspend the operation and implementation of the respondent authorities' direction, as contained in the notice dated 3.6.2022, 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. D. Pending the admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to direct the respondent no. 6 to vacate his Flat No. A/1 in the petitioner society within such period as this Hon'ble Court considers appropriate, and further direct Page 2 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined that if the respondent no. 6 fails to do so, the respondent nos. 2 to 4 authorities are to take appropriate steps for vacating/ evicting the respondent no. 6 and demolishing the dangerous and dilapidated structure of the petitioner no. 1 society in terms of and in exercise of powers and duties under the provisions of the Gujarat Provisional Municipal Corporations Act, 1949.
E. Ex parte ad interim relief in terms of prayers C and D hereinabove be granted.
F. Such other and further reliefs as may be deemed fit in the facts of the present case may be granted."
2. The petitioner No. 1 is a co-operative housing society registered under the provisions of the Gujarat Co-operative Societies Act, 1961 vide registration No. GH 7007 dated 23.03.1978 and is the owner of land admeasuring 1000 sq. mt. in Final Plot No.117 paiki in T.P. Scheme No.19 in Mouje :
Sheikpur-Khanpur, Ahmedabad - 3 (Memnagar Vibhag), Taluka : Sabarmati, District: Ahmedabad. The aforesaid is situated near Navrang Six Road, Naranpura, Ahmedabad. In 1978, a residential structure comprising of total 12 residential apartments (3 A type flats each admeasuring 175 sq. yd. Super built up area, 3 B type flats each admeasuring 126 sq. yd.
Super built up area, 3 C type flats each admeasuring 93 sq. yd.
Super built up area and 3 D type flats each admeasuring 134 sq. yd. Super built up area) was constructed and these flats were allotted to various persons. These flats are known as "Rutul Park Apartments". The petitioner No.2 is the Chairman Page 3 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined and the petitioner No. 3 is the Secretary of the petitioner No. 1 society.
2.1 The construction of the flats is more than 45 years old and is in a highly dilapidated and dangerous state and is structurally unsafe and not repairable any more. There are corrosion in many of the RCC slabs, beams, columns and foundation due to long term seepage of rain water and water leakages in service lines can be seen. The structure is so ruinous that it cannot withstand the weight of the walls and slabs of upper floors for long. A copy of the report of the structural engineer dated 21.05.2022 in regard to the state of the structures and best course of action along with photographs of the structures is duly produced at Annexure -
A. 2.2 The respondent - Corporation in its impugned notice dated 03.06.2022 declared the structures to be dangerous and ruinous but asked the petitioner society to repair the same. A copy of the said notice is duly produced at Annexure - B. Thus, the structures pose great danger to the lives of persons occupying and visiting the same and are also likely to cause damage to the surrounding properties when they fall. Page 4 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024
NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 2.3 The repairing and restrengthening of these structures is not feasible and even if feasible, would involve reconstruction right from the foundation which, even if possible, would be an impractical and herculean task requiring enormous amounts of money which the society and its members would not be in a position to afford. Moreover, embarking on a project of repairing such structure would mean that the members of the society would have to vacate their respective apartments and find alternate accommodation at their own cost during the course of such work, which would also be very expensive for the members and most of the members may not be in a position to afford it. The practical solution to the aforesaid problem was for the society to be redeveloped as contemplated under the Gujarat Ownership Flats Act, 1973, a copy of which is duly produced at Annexure - C. 2.4 In line of the aforesaid, the members of the petitioner society decided to go for redevelopment. Starting from 2018, a thorough process was followed by the petitioner society and after detailed discussions on various aspects of redevelopment, an Architect was appointed. A project report was prepared by the Architect, tenders were invited and 2 Page 5 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined developers were shortlisted out of the 5 offers received. Ultimately, majority members agreed to go with the offer of the respondent No.5 and approved the draft Memorandum of Understanding (MOU) and proposal floor plan of the respondent No.5. Copy of the relevant resolutions of the petitioner society in connection with the redevelopment are duly produced at Annexure - D colly. and copy of the project report prepared by Architect M/s. Establish Designs is duly produced at Annexure - E. 2.5 Memorandum of Understanding (MOU) came to be entered into by the 10 out of 12 members with regard to the redevelopment with the respondent No.5 on 10.04.2022. A copy of the said MOU is duly produced at Annexure - F. State Bank of India, which is a member of the petitioner society having flat No.C/1, has also given approval for redevelopment and has informed the petitioner society that upon completion of certain internal processes/formalities/approval, it would also sign the MOU. Copies of the letters issued by the State Bank of India in this regard are duly produced at Annexure - G. Thus, 91.67% of the members have consented for redevelopment which is far more than the prescribed minimum 75% under Page 6 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined Section 41A of the Gujarat Ownership Flats Act, 1973. Therefore, the proposed redevelopment is in-consonance with the provisions of the Gujarat Ownership Flats Act, 1973. 2.6 The respondent No.6 has not consented for redevelopment and is not willing to sign the MOU for redevelopment despite repeated requests by the petitioner society. In fact, the respondent No. 6, has been addressing letters alleging false and baseless allegations even though all relevant information with regard to redevelopment has been provided and discussed with the members in the meetings held for the redevelopment. The respondent No.6 resides in flat No.A/1 of the petitioner society and hence, the allegations of the respondent No.6 being not aware of the redevelopment process/meetings is ex-facie false apart from being belied by the record. Copy of the notice dated 23.04.2022 issued by the respondent No.6 through his advocate and the reply dated 09.05.2022 issued by the petitioner society through its advocate are duly produced at Annexure - I colly. Further, along with the reply dated 09.05.2022, the petitioner society had enclosed the copy of MOU dated 10.04.2022 executed with the respondent No.5 which provides all information of the Page 7 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined proposed redevelopment.
2.7 The respondent No. 6 was also requested to come and peruse all available documents and information with regard to redevelopment which are with the society's office but the respondent No.6 never did so. In any case, once far more than the required 75% members have agreed for redevelopment and signed MOU, the respondent No. 6 is not entitled to raise objections or to stall redevelopment.
2.8 All the efforts to convince the respondent No.6 to co- operate in the redevelopment process are in vain. The law provides for redevelopment on the basis of the consent of 75% of the members for redevelopment and hence, the respondent No. 6 has no legal right to create any hindrances to redevelopment. The petitioner society has no other alternative but to address letter dated 03.08.2022 to the respondent authorities inter-alia pointing out that the petitioner society has decided to go for redevelopment by requisite majority and has requested the respondent authorities to exercise their powers under the provisions of the Gujarat Provincial Municipal Corporations Act, 1949 to get the dangerous structure of the petitioner society vacated and demolished, so as to enable the Page 8 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined society and the respondent No.5 to take forward the redevelopment of the society. Copy of the said letter dated 03.08.2022 is duly produced at Annexure - J. However, no action as contemplated under the aforesaid laws is undertaken by the respondents.
2.9 In the aforesaid set of facts, the petitioners herein are constrained to approach this Court seeking the reliefs as referred above.
3. Heard Ms. Amrita M. Thakore, learned advocate appearing for the petitioners, Mr. Deep D. Vyas, learned advocate appearing for the respondent Nos.2 and 3 and Mr. Vicky B. Mehta, learned advocate appearing for the respondent No.6.
4. Ms. Amrita M. Thakore, learned advocate appearing for the petitioners, submitted that the petitioner society is in dilapidated and dangerous and ruinous structure which form part of the residential flats and instead of taking steps for repairing work pursuant to the Notice dated 03.06.2022 issued by the respondent - AMC under section 264 of the Gujarat Provisional Municipal Corporations Act, 1949, the majority of Page 9 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined the members of the petitioner society consented to go for redevelopment. It was submitted that 11 members out of 12 members having consented, at the instance of objection raised by 1 member, the petitioner society is unable to go for redevelopment. It was submitted that the petitioner society has acted in accordance with the Gujarat Ownership Flats Act, 1973 and fulfils the requirements and conditions under Section 41A of the Act i.e. the petitioner society is more than 45 years old having registered in the year 1978; and 91.67% of the members have given their consent and the Structural Engineer report dated 21.05.2022 having opined that the building structure is damaged heavily and not in a position to repair. It may cause accident during earth quake or any natural calamities. It may further damage in normal weather also and the future estimated life of apartment may be almost completed, further immediate action must be taken to ensure resident's safety. Reliance was placed on the report of the Structural Engineer dated 21.05.2022 along with the photographs duly produced at Annexure - A and it was submitted that the said photographs demonstrate that the building is in dilapidated and dangerous condition. Reliance was placed on the Memorandum of Understanding (MOU) Page 10 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined which is executed on 10.04.2022 between the members of the society and the respondent No.5. It was submitted that the State Bank of India, which is a member of petitioner society having flat No.C/1, has also given approval for redevelopment and has informed the petitioner society that upon completion of certain internal processes/formalities/approval, it would also sign the MOU. Reliance was placed on the letters issued by the State Bank of India duly produced at Annexure - G. 4.1 Placing reliance on the aforesaid submissions, it was submitted that the respondent No.6 with ulterior motive, has been addressing false and frivolous letters making absolutely false and baseless allegations even though, all the information has been provided by the petitioner society, discussed with members in the meetings held for the said purpose and documents and records pertaining to redevelopment are available in the petitioner society's office which can always be perused by the respondent No.6. It was submitted that the respondent No.6 resides in flat A/1 of the petitioner society and hence, allegation of not being aware of the redevelopment process/meetings, cannot believable. It was submitted that pursuant to the notice issued by the respondent No.6 through Page 11 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined advocate dated 23.04.2022, the petitioner society replied to the same by communication dated 09.05.2022 attaching along with the said reply a copy of the MOU dated 10.04.2022 executed with the respondent No.5 which provides all the information of the proposed redevelopment. It was submitted that the respondent No.6 was also requested to perused all the documents available and information with regard to the redevelopment available with the petitioner society's office. It was lastly submitted that once 75% of the members have agreed for redevelopment and signed the MOU as provided under section 41A of the Act, the respondent No.6 is not entitled to raise objections to stall redevelopment. Placing reliance on the aforesaid submissions, Ms. Thakore, learned advocate, submitted that the present petition be allowed.
5. Mr. Vicky B. Mehta, learned advocate appearing for the respondent No.6, placed reliance on the affidavit-in-reply filed by the respondent No.6 duly produced at page 298 and submitted that though majority of members have consented for the redevelopment, the opinion of respondent No.6 also matters. It was submitted that the Notice issued by the respondent - Corporation was under section 264 of the Gujarat Page 12 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined Provincial Municipal Corporations Act, 1949 which provides for repairing work that may be undertaken by the petitioner society herein. No notice under section 268 of the Act is issued. Mr. Mehta, learned advocate, disputed the opinion of the Structural Engineer dated 21.05.2022. It was submitted that the respondent No.6 is holding ground floor unit of the building. Surrounding the flats, there is a open space and margin. Reliance is placed on the Resolution being Resolution No.3 dated 14.05.1978 passed by the petitioner society holding that the persons who are occupants of ground floor premises would be permanently granted open space of their respective flats. It was submitted that by virtue of the said resolution, the respondent No.6 is also the owner/occupier of the margin area/open land surrounding his ground floor flat. The said resolution still holds good. It was submitted that the respondent No.6 herein has preferred an application dated 02.02.2024 seeking regularization under GRUDA, 2022 and has also preferred Lavad Suit which is pending adjudication before the competent authority. Reliance was also placed on the photographs produced along with affidavit at page 315. Placing reliance on the aforesaid submissions, Mr. Mehta, learned advocate, submitted that the present petition be dismissed. Page 13 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024
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6. Mr. Deep D. Vyas, learned advocate appearing for the respondent Nos.2 and 3, submitted that the Structural Stability Certificate is issued by the Authorized Structural Engineer (Grade-I) having issued license bearing AUDA LIC No.1114SE0203251013 and in accordance with Section 41A of the Act. Mr. Vyas, learned advocate, further submitted that the application seeking regularization of the unauthorized development under Section 5 of the GRUDA, 2022, clearly demonstrates that the respondent No.6 is in unauthorized use of the premises-in-question.
6.1 Reliance is placed on Section 8(3)(d) and Section 11(2) of the GURDA, 2022. Placing reliance on the same, Mr. Vyas, learned advocate, submitted that Section 8(3)(d) provides for structural stability requirements as per the CGDCR and Section 11(2) of the GRUDA, 2022 provides for any decision under the Act shall not deemed to have decided the ownership of the unauthorized development.
Analysis:-
7. Having heard the learned advocates appearing for the respective parties, following emerge:
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NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 7.1 The petitioner society was constructed in the year 1978 with total 12 flats of different sizes. Development permission/ Rajachitti was issued on 27.02.1978 duly produced at page
352. Building use permission was received on 08.09.1978 duly produced at page 351. Registration Certificate was issued on 23.03.1978 by which the petitioner society was registered is duly produced at page 355. From the aforesaid documents, it emerges that the flats are more than 25 years old i.e. 46 years old.
7.2 This Court has perused the report of the Structural Engineer dated 21.05.2022 duly produced at Annexure - A along with the photographs duly produced at page 27 which states that the building-in-question is in dilapidated and dangerous condition and the same are so heavily damaged that not in a position to be repaired. This Court has also perused the Notice issued by the respondent - AMC dated 03.06.2022 duly produced at page 40.
7.3 The MOU dated 10.04.2022 entered into between the parties also provides for the following amenities:
a. Larger Size of flats
b. Specification
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NEUTRAL CITATION
C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024
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c. Lift, Bore, Water Tank, Solar Panel etc.
d. Rent
e. Gift Money
f. Transportation cost
g. Furniture and Fixure amount
h. Bank Guarantee
7.4 By way of further affidavit, which is duly produced at
page 397, the respondent - State Bank of India, who is owner of flat C/1 in the petitioner society and who had earlier given in-principle consent for redevelopment, has thereafter signed MOU on 05.05.2023 which is duly produced at page 398.
8. 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, -
(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."
9. The objections raised by the respondent No.6 with Page 16 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined respect to the maintainability of the present petition is no longer res-integra in light of the judgment dated 21.06.2022 passed in Special Civil Application No.8530 of 2019 duly confirmed in Letters Patent Appeal No.1075 of 2022 by order dated 23.01.2023 and the judgment dated 09.11.2023 passed in Special Civil Application No.11314 of 2022 wherein, the prayers as prayed for by the petitioners are held to be maintainable. The redevelopment is accepted and consented by more than 75% members.
9.1 In the facts of the present case, in light of Section 41A of the Act, 1973, (i) 11 out of 12 members i.e. 91.67% members, have consented and signed the MOU which is entered into by the petitioner society with the respondent No.5 (ii) the report of the Structural Engineer dated 21.05.2022 duly produced at Annexure - A, stating that the buildings are in extremely dilapidated and dangerous condition and (iii) the building are more than 46 years old.
9.2 The queries of the respondent No.6 have been dealt with and replied to by the petitioner herein. Each and every communication by the respondent No.6 has been answered and replied to by the petitioner herein. This Court has perused Page 17 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined the aforesaid communications between the petitioners and the respondent No.6.
10. This Court has considered the submissions advanced by Mr. Mehta, learned advocate appearing for the respondent No.6, that the respondent No.6 has applied for regularization under Section 5 of the GRUDA, 2022.
10.1 From the aforesaid, it emerges that the respondent No.6 is in unauthorized use of the residential premises for commercial purpose and has applied for regularization of said unauthorized construction. Section 11(2) of the GRUDA, 2022 provides that any decision under the said Act shall not determine ownership rights of the unauthorized development.
The pendency of such application before the competent authority, in the opinion of this Court, cannot stall the process of redevelopment.
10.2 In the facts of the present case, the report of the Structural Engineer dated 21.05.2022 is on record wherein, it is certified that the building is in dilapidated and dangerous condition and the same are so heavily damaged that the same are not in a position to be repaired.
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NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 10.3 Mr. Mehta, learned advocate, has disputed the opinion/certificate of the Structural Engineer dated 21.05.2022.
In the opinion of this Court, the said Certificate dated 21.05.2022 is duly certified by the registered Structural Engineer (Grade - I) bearing AUDA LIC No.1114SE0203251013 and is such that the same can be considered for adjudication of dispute in accordance with section 41A of the Act. The photographs which are relied upon by the respective parties, pale into insignificance once, there is a report of the Structural Engineer on record stating that the building is in dilapidated and dangerous condition.
10.4 Further, the submission made by Mr. Mehta, learned advocate appearing for the respondent No.6, that by virtue of resolution No.3 dated 14.05.1978 the respondent No.6 assumes ownership rights qua the open space, in the opinion of this Court, the resolution cannot confer or take away any rights qua ownership. It is also pertinent to note that the said Resolution dated 14.05.1978 stand withdrawn. Further, the Resolution dated 14.05.1978 itself does not confer the ownership rights. It only resolves to allow the ground floor flat Page 19 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined owners to use open space around the flats and for second floor owners to use terrace. The said Resolution dated 14.05.1978 is duly produced at page 317. Once the society decided to go for redevelopment, the society passed another Resolution in its General Body Meeting on 10.07.2021, revoking the earlier Resolution dated 14.05.1978 and resolved that all the members would be entitled to use ground floor open spaces and terraces in the redeveloped structure, as is within the society's power to do. The said Resolution is duly produced at page 81 and 82 to the petition.
In light of the aforesaid, the contentions raised by Mr. Mehta, learned advocate appearing for the respondent No.6, objecting to the redevelopment of the petitioner society, does not weigh with this Court.
11. 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 Page 20 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 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 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 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 Page 21 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined member in minority 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.
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 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;Page 22 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024
NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 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. Pages 5 and 6 of 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 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. 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.
12. 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 Page 23 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 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. 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 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 Page 24 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 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, 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 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." Page 25 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024
NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined
13. 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 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 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 Page 26 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 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 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."
14. Considering the aforesaid position of law and the facts of the present case, once the project of redevelopment is undertaken by the society and there is consent of more than 75% members as also the flats-in-question are more than 31 years old, the objections raised by the individual members are not maintainable. The project of redevelopment undertaken by the petitioner society is required to be proceeded further. This Court deems it fit to exercise powers under Article 226 of the Page 27 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 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 almost all the member, except 1 member, have given consent for redevelopment, at the instance of the 1 member, the consent of the majority members should not suffer.
15. 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 dated 21.05.2022 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 members who objected to such redevelopment for their personal grievances.
16. 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 Page 28 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 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 petitioner and the respondent No.3 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 discussion and the ratio as as Page 29 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined referred above, the respondent No.6 is the member of the society and loose his individual rights to challenge the decision of the society for and except, through the society. The Lavad suit, which is instituted by the respondent No.6 and which is pending before the competent Court, is independent proceeding initiated by the respondent No.6 against the society for which the redevelopment, in the opinion of this Court, cannot be stalled. The aforesaid cannot be a reason to stall the process of redevelopment. The eviction or dispossession is not in terms of prevalent rent loss or eviction as contemplated under the Transfer of Property Act. In the facts of the present case, the respondent No.6 would neither be dispossessed or evicted but is required to shift the alternate premises in which the respondent No.6 would continue to reside till the redevelopment is undertaken. The temporary shiftingfor the purpose of redevelopment would not amount to dispossession or eviction as stated by the learned advocate appearing for the respondent No.6. The respondent No.6 is not deprived of property i.e. the residential accommodation by virtue of the aforesaid project.
17.1 The petitioner society is compliant of the conditions Page 30 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined 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. 46 years; (ii) the Structural Engineer Report dated 21.05.2022 states that the building is in dilapidated condition and (iii) there is consent of more than 75% members i.e. 91.67%. members.
18. For the foregoing reasons, the present petition is required to be considered under Section 41A of the Act, 1973. The petitioner society meets with and complies with the conditions enumerated under Section 41A of the Act, 1973.
In view of the aforesaid, if the petitioner society decided to go for redevelopment, this Court under Article 226 of the Constitution of India, is not inclined to interfere in the said redevelopment process.
19. For the aforesaid reasons, the prayers as prayed for in the present petition, are required to be allowed and the same are allowed. The respondent No.6 is directed to vacate its flat 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 Page 31 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024 NEUTRAL CITATION C/SCA/9304/2023 JUDGMENT DATED: 18/04/2024 undefined cooperate in the redevelopment of the petitioner No.1 Society.
20. With the aforesaid, the present petition stands allowed. Rule made absolute.
(VAIBHAVI D. NANAVATI,J) NEHA Page 32 of 32 Downloaded on : Mon Apr 22 20:53:17 IST 2024