Gujarat High Court
Jayantibhai Somachand Contractor vs Estate Manager on 17 March, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
NEUTRAL CITATION
C/FA/2967/2024 JUDGMENT DATED: 17/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2967 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 2967 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
================================================================
Approved for Reporting Yes No
==========================================================
JAYANTIBHAI SOMACHAND CONTRACTOR & ORS.
Versus
ESTATE MANAGER & ORS.
================================================================
Appearance:
MR BHARGAV BHATT WITH MR RUTVIJ OZA WITH MR KISHAN R
CHAKWAWALA(9846) for the Appellant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,3,4,5,6,7,8,9
MR RM CHAKWAWALA(1519) for the Appellant(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,3,4,5,6,7,8,9
AISHVARYA(8018) for the Defendant(s) No. 12
G H VIRK(7392) for the Defendant(s) No. 6
MR SUDHIR NANAVATI, SR. ADVOCATE WITH MR VANDAN K BAXI(5863)
for the Defendant(s) No. 9
NANAVATI & NANAVATI(1933) for the Defendant(s) No. 9
NOTICE SERVED BY DS for the Defendant(s) No.
10,11,11.1,11.2,11.3,11.4,11.5,11.6,11.7,5,7
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 17/03/2025
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN) With the consent of learned counsel appearing for the respective parties, the captioned First Appeal, is taken up for final disposal. For the sake of convenience, the parties are referred to as per their status before the Court below.
2. By way of the captioned First Appeal, the appellants who are Page 1 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined 19 in numbers, are aggrieved by the judgment and order dated 19.07.2024 (hereinafter referred to as 'the impugned judgment') passed by learned Auxiliary Chamber Judge in Civil Suit no.469 of 2024. Application, Exh.36 under Order VII Clause (d) of Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') was filed by the defendant no.9, seeking rejection of the plaint read with section 151 of the Code. The application came to be accepted vide above-referred judgment and hence, the captioned appeal.
3. Mr Bhargav Bhatt, learned advocate with Mr Rutvij Oza, Mr Rajesh Chakwawala and Mr Kishan Chakwawala learned advocates for the appellants, while inviting attention of this Court to the conveyance deed, submitted that the party has dominion interest, which cannot be curtailed at the whims and wish of the defendants and more particularly, the officers of the Gujarat Housing Board (hereinafter referred to as 'the Board'). It is further submitted that the issue revolves around the right claimed by the plaintiffs against the Board and whether can be agitated in the civil suit or it is barred by the virtue of Chapter VI of the Gujarat Housing Board Act, 1961 (hereinafter referred to as 'the Act of 1961'). It is further submitted that the issue is also whether sections 71 and 72 of the Act of 1961, which provide the procedure for institution of civil suit against the Board as well as the officers, can be said to be barred on account of the provisions under Chapter VI.
3.1 While adverting to the merits, it is submitted that the conveyance deed dated 10.01.1978 was executed between the plaintiffs and the Board for a period of 90 years, which is a perpetual lease, with a right of renewal for another period of 90 years. Paragraph 7(1)(a), clearly provides that the flat is conveyed to the party as an owner. Reading of the further paragraphs, suggest that Page 2 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined not only the flat but common right to enjoy the land is also available to the party. Condition no.(2) of the lease deed, states that the party of the second part shall peacefully hold and enjoy the property during the said term except for any lawful interruptions or disturbance by the Board or any person lawfully claiming under it. Therefore, the plaintiffs entered into an agreement for peaceful enjoyment of the property with further right to hold for similar extended period. Clause (e) of paragraph-7, disentitles the Board to claim any right and the only option available to the Board, is to extend the lease for another period of 90 years.
3.2 It is further submitted that the Board, almost after a period of 38 years, has initiated the process of redevelopment under the guise of the Public Housing Scheme, 2016. It is further submitted that somewhere in the year 2021, advertisement was published; however, neither is there any resolution nor any consent of 75% for, there is nothing on record to substantiate it. Also, the Gujarat Housing Board (Redevelopment of Building or Apartments) Rules, 2020 (hereinafter referred to as "the draft Rules of 2020") have been introduced only in the year 2020 and therefore, until October and thereafter, there was no procedure and the tender was floated without there being any legal instrument in place. Moreover, a huge amount of Rs.18.00 crore has been given to the board as an upset price by the developer. It is submitted that the Board cannot be construed to be a beneficiary. Plaintiffs being the beneficiaries, the Board has no right to decide in what and in which manner, the development has to take place as it is within the exclusive domain of the 72 owners and occupiers of the property to take decision. Therefore, neither the provisions of the Act nor the conveyance deed confers any powers on the Board to earn any profit. The tripartite agreement which has been executed, is also an eye-wash.
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submitted that somewhere in the year 2019 the provisions of Section 60A, had been incorporated whereby, the requirement, is of the consent of 75% and the age of the building, to be of 25 years. It is, therefore, submitted that the rights and liabilities created in the year 1978, to that extent are curtailed by introducing the provisions of the newly added Section 60A of the Act of 1961. It is submitted that Chapter VI provides for the eviction of the person from the premises of the Board. It has limited scope with a limited mechanism whereas, Chapter VIII, gives wide powers to the civil court to decide each and every issue arising between the Board including the conduct of any officers. Thus, the issue would be whether the provisions of Chapter VI overrides the provisions of Chapter VIII of the Act of 1961. It is further submitted that Chapter VI, would come into picture when the person, is in default and eviction process, is required to be initiated. Section 56, provides that if the competent authority, is satisfied, inter alia, that the person authorised to occupy any premises of the Board has committed any act contrary to the provisions of the Gujarat Ownership Flats Act, 1973 or of any declaration etc. shall issue a notice in a prescribed form and order the person in occupation to vacate the premises within the stipulated period. Whereas, Section 71 of the Act of 1961 permits filing of suit, raising any grievance against the officers of the Board. It is further submitted that the notice, raising several contentions including the aspect of ownership; rights and obligations of the appellants vis-a-vis the Board and the authority of the Board to develop the property, was given under Section 71 by the plaintiffs, but it has not been replied and remained unanswered. Resultantly, the contentions raised are deemed to have been admitted, also in absence of any written statement filed by the Board.
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Letter of Acceptance, which is without any authority, considering the fact that neither the Act nor the Rules, have any provision which entitles the Board to initiate such step and receive the benefit out of the redevelopment. Even the Letter of Acceptance, contains a condition that the developer, is bound to obtain 100% consent from the beneficiaries which is also missing.
3.5 It is further submitted that in this background, the plaintiffs have filed the suit with multiple prayers, seeking declaration about the ownership of the property and the Board having no right or authority to enter into the contract or frame Rules with further declaration that the suit premises is not in a ruinous condition requiring redevelopment. Prayers are also prayed for challenging the authority of the Board and the developer having any right to redevelop the property as well as the validity and legality of the tripartite agreement executed between the developer, the Board and the occupiers, so on and so forth.
3.6 For the proposition of ousting of the jurisdiction of the civil court, reliance is placed on the judgment in the case of Dhulabhai v. State of M.P. reported in AIR 1969 SC 78. It is held and observed that where there is an express bar on the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided, may be relevant, but is not decisive to sustain the jurisdiction of the court. It is, therefore, submitted that the suit, was very much maintainable and hence, the plaint, ought not to have been rejected on the ground of jurisdiction. While concluding, it is submitted that the Board, has no right to decide about the redevelopment, considering the fact that the conveyance deed, contains a non-interference Page 5 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined clause embodied in it and that the plaintiffs are conferred with perpetual right of renewal. Moreover, the prayer in the suit, is exclusively not of eviction, but seeking declaration of the ownership considering the conveyance deed in favour of the plaintiffs. Therefore, the suit was very much maintainable.
4. On the other hand, Mr S. I. Nanavati, learned senior counsel, with Mr Vandan Baxi, learned advocate for the defendant no.9, has submitted plaintiff nos.9, 12, 16 and 19, have already given the consent, satisfying the requirement of 75%. Also, after filing of the Appeal, out of the four, two appellants, have vacated the premises and have started receiving rent. Even if two are to be excluded, the total consent available is 76.38%. It is submitted that 57 members, out of 72, have given their consent which is more than 75% and the association has been permitted to enter into a tripartite agreement. Therefore, when there was already a requisite consent available, it would be impermissible for the plaintiffs to back out. Reliance is placed on the judgment in the case of Sushila Digamber Naik & Ors. v. Maharashtra Housing & Area Development Authority, Mumbai reported in 2010 (2) MH.L.J. It has been held and observed that belated withdrawal of the consent, in absence of any action taken challenging withdrawal, would be inconsequential. It is, therefore, submitted that once there was consent already in place, subsequent withdrawal by the plaintiffs, would be inconsequential.
4.1 It is further submitted that section 60A, provides for the redevelopment of the buildings or apartments which has been recently introduced. Requirements envisaged are, namely, 75% of consent of the owners, building should be 25 years old or in a ruinous condition. Sub-section (2) makes it obligatory for all the owners or the occupiers to vacate the existing premises for the purpose of redevelopment, whenever the Board decides to take up Page 6 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined the procedure for redevelopment. Proviso to sub-section (2), states that if the owner or occupier does not vacate the premises, notice shall be issued by the Board requiring the owner or occupier to vacate the premises. Second proviso deals with providing the alternate accommodation or rent in lieu thereof to the owners or occupiers for the period of redevelopment. In the case on hand, the majority of the owners and occupiers have been shifted and are receiving the rent. It is next submitted that sub-section (3) of Section 60A, provides that in case of failure to vacate the premises, the owners or the occupiers, would be treated in unauthorised occupation and the competent authority shall effect the summary eviction in accordance with the provisions laid down in sub-section (3) of section 56 of the Act of 1961. It is submitted that sub-section (3) of section 56, provides that if any person refuses or fails to comply with an order made by the competent authority, it may evict that person and take possession of the premises.
4.3 It is next submitted that claim of ownership interpreting the terms of deed of conveyance, is fallacious. Bare reading of the conditions, suggests that the ownership vests in the Board. Paragraph-2 gives the power to the Board to take steps save and except in accordance with law. The owner or occupier, was then under an obligation to vacate the flat. Besides, Schedule A to the conveyance deed, clearly gives description of the property which is conveyed to the occupiers and owners, and therefore, what is conveyed, is the premises and not the land. It is further submitted that the covenant and the statute provides for reasonable restriction and the enjoyment of the property, is not absolute but is coupled with the restrictions.
4.4 It is submitted that so far as the notice issued by the plaintiffs is concerned, it is in connection with the response to the notice Page 7 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined issued under Section 60A. There is not a whisper about the withdrawal or cancellation of consent. Also, there is no prayer in the suit seeking declaration, touching the consent letter. There was a specific stand taken by the defendant No.9 indicating the consent of plaintiff nos.9, 12, 16 and 19 making the total of 75% and the aspect of the tripartite agreement executed in the month of January, 2024 between the society, the Board and the occupiers and owners. It is further submitted that the tripartite agreement contained Schedule-II, wherein the list of the owners and occupiers have been shown, who have consented for the redevelopment including the four plaintiffs. The said fact has been suppressed by plaintiffs by selectively not producing the relevant page with a reference of schedule. Since they have given the consent, they were not treated as unauthorized occupant and resultantly, were not issued any notice and still, the Appeal is filed.
4.5 It is further submitted that if one is to go by the averments made in the plaint and more particularly, Paragraph 7 (page-81), the same are general in nature and at two places only, reference is made of tripartite agreement with an allegation that it is in collusion and is, illegal and void. Reliance is placed on the judgment in the case of Rameshchandra Chimanlal Shah v. Maheshbhai Manubhai Patel reported in 2019 SCC OnLine Guj. 3044. It has been held and observed that deliberate avoidance of the necessary averments in the plaint and related documents in order to clandestinely alter the true purport of the plaint, would not justify the plaintiff to contend that the powers under O.7 Rule 11(d) were not exercisable, if after consideration of avoided necessary material, the case under said provision would be made out. Therefore, even in cases where the necessary averments are deliberately avoided or misleading statements are made or false suggestions are made, the rule that the plaint includes only documents annexed thereto would be the Page 8 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined only material to be considered, would not apply. It would be permissible to trace out the missing statements; false suggestions and avoided statement from the document on record. It is, therefore, submitted that in the case on hand, Schedule-II is deliberately avoided and not produced and hence, on this limited ground, the plaint has to be rejected.
4.6 It is further submitted that the provision of sub-section (2) of section 60 ousts the jurisdiction of the Civil Court to entertain any suit or proceedings in respect of the eviction of any person who is in unauthorized occupation of any Board premises, etc. Reliance is placed on the judgment in the case of Harshadbhai Ishwarlal Kiri v. Ahmedabad Municipal Corporation rendered in Special Civil Application no.12887 of 2020. In the said case, the issue before the Court was about the maintainability of the suit. This Court, in Paragraph 18, has held and observed that in view of the provisions of sub-section (2) of section 60, the suits would not be maintainable. Considering the scheme of the Act of 1961, it has been held and observed that the Board is empowered under section 20 of the Act to make contracts and, therefore, it cannot be said that the Board has no authority to enter into contract. Besides, this Court, has pointed out that:
"There is no legislature not specifically provided in the Act, then determination of legislative intent should be considered on the basic rules that is golden rules of interpretation, then determination of legislative intent should be considered on the basic rules that is golden rules of interpretation which are literal rule of interpretation for purposive interpretation and doctrine of purposive interpretation is predominant in those cases where literal interpretation may not serve the purpose or may lead to absurdity....."
It is submitted that the prayers prayed for in the suit, eventually revolve around the procedure of redevelopment and thus, there is a bar of jurisdiction to file the suit.
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under Order VII Rule 11 of the Code. Considering the factors such as, nature of the reliefs, the suppression of material facts, the learned Judge, has rightly allowed the application and rejected the Plaint. It is further submitted that the learned Judge, has considered the averments and observed that under the scheme of the housing board, the person only holds the flat as described in Schedule-A and it refers to the flat. It is observed that the person holds leasehold right in the flat which is derived through the lease deed and would come to an end in February, 2077, save and except extension of the lease for another period of 90 years. That learned Judge, therefore, has clearly concluded that the Board has not sold the entire property to the occupiers but, upto the year 2077 and therefore, it cannot be considered as exclusive ownership of the entire property. The learned Judge, did not commit any error in observing that the plaintiffs were not conferred with an exclusive right of ownership but, was coupled with restriction.
4.8 While distinguishing the judgment of the Hon'ble Apex Court in the case of Dhulabhai v. State of M.P. (supra), it is submitted that the observations made in paragraph 32, are crucial, which says that the civil suit, would not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act and when there is an express provision ousting the jurisdiction of the civil court, the suit, was rightly held to be not maintainable.
4.9 It is further submitted that the appeal has been filed before the appellate forum and the issues, inter alia, raised are revolving around the provisions of section 60A. It is submitted that ground raised is that the plaintiffs by way of conveyance deed, after paying Page 10 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined the market price of the said premises, has bought the property and since the Board has accepted the sale price, it ceases to be the owner or possessor of the said premises and hence, the Board could not interfere with the enjoyment of the owner / occupier under the garb of redevelopment of the society. Similar issues are raised before the authority. It is, therefore, submitted that reading of the self-same prayers in the suit, it suggests that it is nothing but a clever drafting, only with a view to maintaining the suit.
5. Mr G. H. Virk, learned advocate for the respondent - Board, while referring to the provisions of the Act of 1961; the provisions of the Amendment of the year 2019; the provisions of the Rules of 1977 framed thereunder; the provisions of the Gujarat Ownership Flats Act, 1973 and the Rules framed thereunder, submitted that an inbuilt mechanism is provided governing the rights of the occupiers; the powers of the redevelopment, etc. It is submitted that the State Government, in its Urban Development & Urban Housing Department, has issued a Resolution dated 11.02.2016 formulating the policy for redevelopment to be implemented with effect from 04.02.2016, containing two Annexures - Annexure-A and Annexure- B. It has been decided to undertake the redevelopment of the public housing scheme in the urban areas under the Public Private Partnership to achieve the objectives, namely, upgrading the existing housing stock; creating the additional affordable stock wherever possible; to utilize available land in optimal manner and to improve neighborhood at no or minimal cost to the Government. Subsequent to the introduction of the redevelopment policy, there was an amendment in the Gujarat Ownership Flats (Amendment) Act, 2018, incorporating the provisions of section 41-A which, provides for redevelopment of flats and apartment, inter-alia, on condition of obtaining consent of not less than 75% of the flat owners coupled with other conditions as envisaged therein.
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members, was addressed by the association for redevelopment. In the interregnum, the Legislature amended the Act of 1961, introducing Chapter-VI-A, titled 'Redevelopment of Building or Apartments'. Section 60A, opens with a non-obstante clause and provides seeking of consent of 75% of the owners and occupiers coupled with further condition of completion of 25 years of the building or the building being in a ruinous condition. It is thereafter, a tender was floated inviting the bids for redevelopment on 06.01.2020, followed by issuance of letter of acceptance by the Board to the developer on 12.10.2020. Further followed by execution of the tripartite agreement on 01.01.2024. It is contended that a notice under sub-section (2) of section 60A of the Act of 1961 was issued on 09.01.2024, coupled with further proceedings before the competent authority under sub-section (3) of section 60A on 27 th February, 2024. Until then, no steps were taken. On 11.03.2020 a show cause notice under sub-section (2) of section 56 came to be issued and then the suit was registered on 14.05.2024.
5.2 It is submitted that Rule 9 of the Rules of 1974, provides for the procedure for redevelopment by making an application by the managing committee or suo-motu. It provides that the managing committee or the body, shall convene a special general meeting of the cooperative society or association to take a policy decision regarding redevelopment of the building. The consent of 75%, is also envisaged of the total members of the body for redevelopment.
5.3 It is submitted that clearly, the conveyance deed, more particularly clause-2 of above schedule-A, provides that the occupier or owner, can hold and enjoy the property during the lease period except for any lawful interruptions or disturbance by the Board.
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Therefore, wide powers are given to the Board to take steps in accordance with the provisions of the Act and the Rules. It is further submitted that section 25 of the Act of 1961 says housing scheme may provide for all or any of the matters as contained therein, including the construction and reconstruction of the building. The policy of 2016, also makes the provision of redevelopment of the existing housing scheme, containing various provisions including the Public Private Partnership. Clause 2.1 defines the term 'Public Housing Scheme' to mean a housing scheme developed by any public agency for the public at large where ownership of the land continues to remain with the public agency and only a dwelling unit is given to the beneficiary subject to conditions laid down in the scheme. Further, provision is made of redevelopment of existing public housing schemes which envisages that under the redevelopment scheme, the owners of the dwelling units may be allotted dwelling units with carpet area higher than the existing one. The maximum carpet area of the dwelling unit, would depend upon the categories and would be 140% of the existing approved carpet area of the dwelling unit or 30 mtrs. carpet area, whichever is higher. It is further submitted that the policy also provides for the execution of the tripartite agreement for redevelopment amongst the selected private developer, concerned public agency and the existing housing society coupled with further requirement of obtaining consent of 75% of the members including those taken by way of resolution passed by the existing society / association.
5.4 It is submitted that in terms of the provisions of the Act, the Rules and the policy, the tripartite agreement was executed on 01.01.2024 and the consent was already taken way back on 12.10.2020. It is further submitted that it is not in dispute that the scheme is proposed for redevelopment of the existing housing scheme. It is submitted that sub-section (14) of section 2 defines Page 13 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined the term 'premises' to mean any land or building or a part of the building including any apartment.
5.5 It is submitted that 09.01.2024 was a watershed moment for, a notice came to be issued under sub-section (2) of section 60A of the Act of 1961, followed by the eviction notice under sub-section (3) of section 60A dated 27.02.2024. An appeal was filed before the competent authority. It is submitted that when the Board approached the competent authority as on 27.02.2024, all the plaintiffs were deemed to be unauthorized occupants. Also, the tender process was initiated somewhere in the months of October 2020 and January 2021. Tripartite agreement was executed in the month of January, 2024. Therefore, a series of events took place, but, the suit was filed only in the month of May 2024, that is, after more than 4 months from the date of notice dated 09.01.2024; furthermore, the process of redevelopment started in the month of May 2019. It is further submitted that notice was issued in the month of February 2024, requiring the occupiers and owners to remain present and the Board thereafter, approached the competent authority in the month of March 2024. Notice was issued under the provisions of sub-section (2) of section 56 of the Act of 1961 and thereafter, what remained, was only the summary eviction. It is submitted that the summary eviction is envisaged as per the provisions of section 60(1) and (2) read with section 60A. Therefore, after 09.01.2024, when redevelopment began, it was not open to the plaintiffs to have filed the suit and to stall the process of redevelopment.
5.6 It is submitted that the Board has endorsed an application, which was filed by the defendant No.9. Reliance is placed on the judgment in the case of Hansaben Rathubhai Prajapati v. State of Gujarat dated 26.04.2023 passed in Letters Patent Appeal No.526 of Page 14 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined 2023 for the proposition of procedure and scope of the redevelopment. It is submitted that pendency of the civil suit was construed as it would not be a bar for redevelopment process. The Act of 1961 being a special legislation and the rigors of the Gujarat Ownership Act are absent in provisions of section 60A for the public housing scheme. It is therefore urged that no error has been committed by the Court below in rejecting the application on the ground of bar of jurisdiction.
6. In the rejoinder, Mr.Bhargav Bhatt, learned advocate for the appellants, referred to the draft Rules of 2020 and submitted that the term 'association' means an association formed under the Bylaws of the Board made under section 75 of the Act and Section 75, provides the powers of the Board to make bylaws not inconsistent with the Act. It is further submitted that Rule 5 of draft Rules of 2020, provides for procedure for redevelopment and sub- rule (4) says about a special general body meeting of the association so convened in relation to redevelopment of the building or apartment. It also further provides that the agenda item is to be discussed by the members and they shall also be asked to give their consent for redevelopment or otherwise in writing for the purpose of redevelopment of the building or apartment. Therefore, the term 'association' has to be read in the context of section 45 and in the case on hand, it is an unregistered association. It is submitted that if at all there is an association, it is for the Board, to clarify the stand about its legality. Besides, there were 64 blocks in existence and only nine blocks have been picked up. Therefore, the policy of pick and choose, by the Board, itself suggests that the Board has discriminated against the plaintiffs.
6.2 It is further submitted that section 10 of the Contract Act makes a provision as regards the agreements. It states that all Page 15 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined agreements are contracts if they are made by free consent of parties competent to contract, for a lawful consideration and with a lawful object and are not declared to be void. Section 11, provides for the competency of a party to enter into a contract. Therefore, only the agreements which are by free consent can be considered as a contract coupled with the lawful consideration and lawful object. The tripartite agreement cannot be said to be a contract with free consent. Reliance is placed on the judgment in the case of Ramji Mandir Narsinhji v. Narsinh Nagar alias Tekri Cooperative Housing Society Ltd. reported in 1978 (0) AIJEL-HC 210305. It has been held and observed that if the agreement itself shows that it was a void or nullity, the contention can be raised even at the appellate stage. It has also been held and observed that a cooperative society becomes a legal person after it is registered and after its registration, it acquires a capacity to enter into a contract. It is submitted that the tripartite agreement, is by the unregistered association and stand is taken in the plaint that they have no right to enter into the contract. It is submitted that the contract itself, becomes a nullity.
6.3 It is further submitted that so far as the contention of suppression of material facts raised by the defendants no.9 is concerned, it is not tenable. The plaintiffs had applied for the copies under the provisions of the Right to Information Act, 2005 and whatever was provided and received, has been placed on record. Assuming that the plaintiffs have suppressed something then, it is to be tried. Reliance is placed on the judgment in the case of Natvarbhai Somubhai Patel v. Sushilaben D/o. Gamanlal Nathubhai reported in 2016(0) AIJEL-HC-236333. It has been held and observed that powers under Order VII Rule 11 of the Code, have to be exercised sparingly. It is submitted that the issue was about the non-disclosure of the facts in the plaint. This Court, when found, Page 16 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined held and observed that whether the non-disclosure can be termed as a material suppression and/or only suppression of facts, is required to be considered at the time of trial and also it can be considered while considering the discretionary relief. It has been pointed out that the plaint cannot be rejected at the stage under Order VII Rule 11 and that too on the basis of the defence of the defendants.
6.4 It is further submitted that there was an objection raised by the plaintiffs - Exh.55 and each of the consent forms of the members, have been specifically denied. It is submitted that out of five consent forms, two forms of plaintiff Nos.16 and 19 are not exhibited. There is a specific denial by plaintiff No.16 that he has not executed the consent form and has not signed it before the Notary. Even the presence of plaintiff No.16, has been denied. Also, plaintiff No.15, has denied the execution of the document so also the signature. The documents, are required to be proved as per the provisions of the Evidence Act and without proving the same, it has been relied upon and acted for non-suiting the plaintiffs. It is next submitted that the notice dated 09.01.2024 stated to have been issued to plaintiff No.15, but, in the address, there appears to be discrepancy. It is, therefore, submitted that Order VII Rule 11 application, has been decided on the basis of the disputed document and hence, it would be beyond the scope of the said provision.
6.6 It is next submitted that reading of the prayers in the appeal memo vis-a-vis in the suit, clearly spells out that both are different. Some of the prayers, are not part of the appeal inasmuch as, the declaratory relief has been sought for. It is submitted that the plaintiffs are not against the redevelopment but, the grievance of the plaintiffs is against the Board profiteering. Object of the Act is Page 17 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined not to earn the benefit by the Board but it is meant for the beneficiaries. Also, the manner in which the whole redevelopment process has been undertaken is de hors the provisions of the Rules and the Regulations. The construction of 140% additional carpet area is neither in consonance with the provisions of the Act nor the Rules.
6.7 While inviting attention of this Court to the notice issued by the Board, it is submitted that the notice refers to the floating of the tender on 06.01.2020. However, applicable Rules, have not been followed and the contention of non-observance of the Rules, has remained uncontroverted by the Board. There is clear breach of Rules 5 to 8 inasmuch as, the provisions of the Rules, have not been adhered to nor consent is obtained in the manner required. It is further submitted that Rule 8, makes the provision of agreement to be entered into with the developer. It is no doubt true that the Board can do anything and there is no dispute but it has to be in accordance with the Rules. It is submitted that it is only after the tripartite agreement, that the Letter of Acceptance should have been issued but was issued in the year 2020 and in violation of the Rules. It is submitted that the provision of section 60A says that it has to be as per the prescribed Rules but the Board disregarding the Rules, has undertaken the whole process of redevelopment. It is submitted that total cost for redevelopment is Rs.200 crore and the profit to the Board, is Rs.18 crore and builder would be taking away Rs.100 crore and therefore, there is a loss to each and every occupier and the Board, has unjustly enriched itself by receiving a huge amount of Rs. 18 crore.
6.8 Reliance is placed on the judgment of the Apex Court in the case of Bilkis Yakub Rasool v. Union of India & Ors. passed in Writ Page 18 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined Petition (CRL) No.491 of 2022. Reliance is also placed on the judgment in the case of 2008 SCC Online (Bom.). Reference is made to paragraphs-12 and 13 where the principle laid down, is that if at all there is a consent, it has to be an informed consent, whereas in the case on hand, there is no consent at all. It is further submitted that when the consent has been given, the occupiers and owners should have been informed and it is only when there is an informed consent, that it would be valid in the eyes of law. Reliance is placed on the judgment in the case of Bajranglal Eriwal & Ors. v. Sagarmal Chunilal & Ors., reported in 2008 SCC Online Bom. 331. The theory of 'informed consent', has been discussed by the Hon'ble Court. The Hon'ble Court, considered the provisions of the Maharashtra Ownership Flats Act, 1963 which, is in pari materia with the provisions of the Gujarat Ownership Flats Act. Emphasis has been laid that the obligation of the developer is to make a full and complete disclosure of the entire project to flat purchasers and if there is a complete disclosure of the entire project then in that case, the promoter is not required to obtain prior consent of the flat purchasers so long as the layout plan and building bye-laws are complied with. Reference has been made to the judgment of the Hon'ble Apex Court in the case of Jayantilal Investments v. Madhuvihar Cooperative Housing Society & Ors., reported in (2007) 9 SCC 220, wherein it has been held and observed that once the entire project is placed before the flat takers at the time of agreement, then the promoter is not required to obtain prior consent of the flat takers as long as the builders puts up additional construction in accordance with the layout plan, building rules and developing control regulations, etc. It has been further held and observed that 'the statutory bar upon the promoter altering the structure of a flat agreed to be purchased under clause (i) of sub- section (1) of Section 7 and making any alternations or additions in Page 19 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined the structure of the building under clause (ii), can be lifted only subject to a disclosure by the developer of the entire project or scheme.' It has been further observed that 'the previous consent that is contemplated by sub-section (1) of Section 7 must be an informed consent. An informed consent is one which is freely given, after a flat purchaser is placed a notice by complete and full disclosure of the project or scheme which the builder intends to implement. The consent that is contemplated by sub-section (1) of Section 7 is, therefore, a specific consent which is relatable to the particular project or scheme of the developer which is intended to be implemented.' It is, therefore, submitted in the case on hand, that there is no layout plan submitted or provided to the occupiers and the flat owners and hence, the consent given, cannot be construed to be an 'informed consent' and, therefore, it lacks the validity.
6.9 It is further submitted that reading of the prayers in the plaint indicates that it, pertains to the declaration of right and ownership. Whereas Prayers-F to M, challenges the procedure of redevelopment. It is further submitted that if any of the prayers survive, the suit, could not have been dismissed. Reliance is placed on the judgment in the case of Central Bank of India & Anr. v. Prabha Jain & Ors., reported in 2025 (0) AIJEL-SC-74615 : (2025) (0) INSC 95, wherein it has been held and observed that even if one relief survives, the plaint cannot be rejected under Order VII Rule 11 of the Code. It has been noted that if the civil court cannot reject the plaint partially, then by the same logic, it ought not to make any adverse observations against another relief. Reliance is also placed on the judgment in the case of Rameshwar & Ors. v. State of Haryana & Ors., reported in (2018) 6 SCC 215 :
MANU/SC/0237/2018.
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6.10 While distinguishing, the judgment cited by the learned advocate for the Board, it is submitted that in the case of Girishbhai Sumantlal Darji v. AMC & Ors. (supra) the prayers are not set out and the only issue was that the redevelopment was without the consent. It is submitted that only one person had approached but the Court has not said anywhere that the civil suit is barred.
Similarly, in the case of Rakesh Navnitlal (supra), the members, were before the Court and the challenge, was on the ground that the transfer is in violation of the provisions of the various enactments, namely, the Transfer of Property Act, 1882, the Registration Act, 1908 and the Act of 1973 which would not apply to the facts of the case. It is urged that appeal deserves to be allowed.
7. Mr S. I. Nanavati learned Senior Counsel for the defendants no.9, in brief response, submitted that if the association is registered, the consent was not necessary. However, in the case on hand, the association is not registered. It is submitted that it is only when the association is not registered, that consent of all the owners and occupiers, is required to be taken. It is submitted that the language of section 60A, uses the words 'consent of owners or occupiers'; however, the consent is taken by the association through the managing committee and it has entered into the agreement. The individual members have given the consent allowing the managing committee to act on their behalf. It is submitted that the illustrative consent letter is placed on the record (page-1240), of giving permission and of receiving the flat by virtue of the redevelopment. Therefore, the consent is given on condition. If one peruses the condition clause (12), it says that the chairman of the association/secretary and the members of the managing committee, would execute an agreement in favour of the developers which would be binding and acceptable to the members. The Page 21 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined consent letter is prior in point of time. Clause (13), further provides that the owner and occupier, will have no right to back out from the agreement in case the vacant and peaceful possession of the flat, is handed over for the purpose of redevelopment to the developer. It is submitted that therefore, the tripartite agreement is in furtherance of the consent letter. It is further submitted that clause (15), contemplates that the committee has been constituted on their behalf for the purpose of undertaking the process of redevelopment and it would be executing the contracts and the procedure connected with the redevelopment and the owners and occupiers would abide by the understanding amongst the parties.
7.1 It is further submitted that the contention of the plaintiff No.16 that she has not signed the consent form is incorrect. In fact, the husband on behalf of the wife plaintiff no. 16 has signed the consent letter, who is also the co-owner of the flat. It is submitted that both husband and wife have taken the flat in a joint name. It is, therefore, submitted that contention of the plaintiff No.16, not having signed the consent form, is untenable and misplaced. It is, therefore, urged that the Appeal does not deserve to be entertained and deserves to be rejected.
8. Heard the learned counsel appearing for the respective parties. Perused and considered the paper-books made available.
9. Challenge in the captioned Appeal, is the impugned judgment, whereby application under Order VII Rule 11 - Exh.36 came to be the allowed and the plaint of the plaintiffs was rejected, inter alia, on the ground that the suit is barred by the provisions of section 60 of the Act of 1961 considering the fact that the plaintiffs under the guise of seeking declaration and injunction, have challenged the redevelopment project. Before adverting to the merits of the Page 22 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined matter, brief facts leading to the filing of the captioned Appeal are worth referring to.
10. The plaintiffs, being the members of the Shastrinagar Housing Society, claim to be the owners of the property on the basis of the conveyance deed executed and registered before the Sub-Registrar on 10.01.1978. Plaintiffs' case is that by virtue of the conveyance deed and its tenure of 90 years, they are virtually the owners and occupiers of the property and the Board, has no right, much less, any right to interfere with the peaceful occupation and enjoyment of the property.
11. Considering the condition of the property the process of redevelopment was initiated. Discernibly, the application together with 64% consent, was submitted by 46 members on 23.05.2019. Apropos the request made by the association, the Board, has floated a tender on 06.06.2020 followed by issuance of letter of acceptance to the respondent No.9 for redevelopment of integrated housing facility over plot area at 72 MIG (9 blocks), M-5 Shastrinagar Apartment, Naranpura on Public Private Partnership basis. In furtherance of the redevelopment process, tripartite agreement came to be executed between the association through chairman & the committee members, the Board and the defendant no.9, agreeing for the redevelopment process at the hands of defendant No.9. As per the agreement, the defendant No.9, is to construct the flat and hand it over to the owners and occupiers and all the members would be getting the flat with 140% of additional carpet area. After execution of the tripartite agreement, the notice dated 09.01.2024 came to be issued under the provisions of sub-section (2) of section 60A of the Act of 1961 requiring the owners and occupiers to hand over to the authorized officer the peaceful possession within a period of one month. Owing to the resistance Page 23 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined shown, the steps were taken by the executive engineer under the provisions of sub-section (3) of section 60A by approaching the competent authority on 27.02.2024. Apropos which the competent authority has issued a notice under sub-section (2) of section 56 to the owners and occupiers requiring them to show cause as to why summary eviction may not be ordered.
12. On 14.05.2024, the plaintiffs, filed a suit, inter alia, seeking declaration that they are the rightful owners and occupiers in terms of the registered conveyance deed and more particularly, paragraph-7. Consequential prayers have also been prayed for. Challenge was also made to the redevelopment process on the ground that the procedures as indicated in the provisions of the Act, the Rules and the Regulations, have not been followed. The defendant No.9, filed an application seeking rejection of the plaint under Order VII Rule 11(d) read with section 151 of the Code. Over and above other contention, principal contention raised in the application is that the Court has no jurisdiction to try and entertain the suit, it being barred by section 60A of the Act of 1961. Application Exh.36 came to be allowed, rejecting the plaint on the ground that though the plaintiffs have sought for declaration and injunction; essentially the challenge is to the redevelopment process and hence, the suit, would be barred by the provisions of section 60 of the Act of 1961. Being aggrieved, the plaintiffs, have filed the captioned Appeal.
13. Therefore, the issues which arise for the determination of the Court is - whether the suit is barred by the provisions of section 60 of the Act of 1961 ? and whether the learned Judge was justified in rejecting the plaint ?
14. Before adverting to the merits of the matter, some of the Page 24 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined provisions of the Act, the Rules, Regulations and policies are worth referring to as they provide for various measures. Section 3 of the Act of 1961 makes a provision for establishment of the Board, and it shall be competent to acquire and hold property both movable and immovable and to contract and do all things necessary for the purposes of the Act. Chapter III titled "Housing Schemes" contains various provisions. Section 25 is a non obstante clause and contemplates the matters to be provided for by housing schemes. Sub-section (3) of section 25 provides that the Board may execute any of the matters provided in a housing scheme through any independent agency. Section 49 in Chapter IV, confers power on the Board to dispose of land. The Board is empowered to retain, lease, sell, exchange or otherwise dispose of, any land, building or any apartment therein or other property vesting in it and situated in the area comprising any housing scheme sanctioned under the Act.
15. Relevant to the issue would be Chapter VI, which provides the power to evict the persons from the premises of the Board. Section 56 envisages that if the competent authority is satisfied in respect of the matters as indicated therein, it may, by notice served through any means, order the person in occupation to vacate him within one month of the date of the service of the notice. Sub-section (2), inter alia, provides for an opportunity of tendering an explanation and producing any evidence and to show cause as to why the order shall not be made. It further provides that if such person makes an application to the competent authority seeking extension of the period specified in the notice, the same shall be granted. Sub- section (3) provides that if any person refuses or fails to comply with an order made under sub-section (1), the competent authority may evict that person and take possession of the premises and may, for that purpose, use such force as may be necessary. Section 56, is reproduced hereinbelow for ready reference:
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(1) If the competent authority is satisfied-
(a) that the person authorised to occupy any Board premises has-
(i) not paid rent lawfully due from him in respect of such premises for a period of more than six months, or
(ii) sub-let, without the permission of the Board, the whole or any part of such premises, or (ii-a) committed any act contrary to the provisions of the Gu-
jarat Ownership Flats Act, 1973, or of any Declaration, Deed of Apartment or of the bye-laws made under that Act or of any rules or regulations made under such bye-laws or;
(iii) otherwise acted in contravention of any of the terms, ex- press or implied under which he is authorised to occupy such premises, or
(b) that any person is in unauthorised occupation of any Board premises, the competent authority may, notwithstanding anything contained in any law for the time being in force, by notice served
(i) by post, or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other man- ner as may be prescribed, order that person as well as any other person who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice.
(2) Before an order under sub-section (1) is made against any per- son the competent authority shall inform the person by notice in writing of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause why such order should not be made, within a period to be specified in such notice. If such person makes an application to the competent authority for extension of the period specified in the notice the competent au- thority may grant the same on such terms as to payment and re- covery of the amount claimed in the notice as it deems fit. Any written statement put in by such person and documents produced in pursuance of such notice shall be filed with the record of the case and such person shall be entitled to appear before the au- thority proceeding in this connection by advocate, attorney or pleader. Such notice in writing shall be served in the manner pro- vided for service of notice under subsection (1).
(3) If any person refuses or fails to comply with an order made un- der sub-section (1), the competent authority may evict that person from, and take possession of, the premises and may for that pur- pose use such force as may be necessary.
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(4) If a person, who has been ordered to vacate any premises on the grounds mentioned in sub-clause (i) or (iii) of clause (a) of sub- section (1) within one month of the date of service of the notice or such longer time as the competent authority may allow, pays to the Board, the rent in arrears or carries out or otherwise complies with the terms contravened by him to the satisfaction of the com- petent authority, as the case may be, the competent authority shall, in lieu of evicting such person under sub-section (3), cancel its order made under subsection (1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served on him.
Explanation.--For the purposes of this section and section 57, the expression "unauthorised occupation", in relation to any person authorised to occupy any Board premises, includes the continu- ance in occupation by him or by any person claiming through or under him of the premises after the authority under which he was allowed to occupy the premises has been duly determined."
Sub-section (1) is a satisfaction of the authority requiring the occupant to vacate them by issuing a notice. Sub-section (2) of section 56, deals with issuance of the notice in writing before an order under sub-section (1) is made against the person. The competent authority has to inform the person by notice in writing of the grounds on which the proposed order is to be made and give him a reasonable opportunity of tendering an explanation and producing evidence, if any, and to show cause as to why such order should not be made within the specified period. Therefore, it is the competent authority, who can issue a notice under sub-section (2) incorporating the grounds on which the eviction is sought. There is no option available to the recipient of the notice, to raise any grievance except to respond to the grounds mentioned in the notice.
16. Furthermore, section 60 of the Act of 1961, deals with the jurisdiction of the Civil Court. Sub-section (2) provides that no Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorised occupation of any Board premises or the recovery of the arrears of Page 27 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined rent payable under sub-section (1) of section 57 or the damages payable under sub-section (2) of that section or any portion of such rent or damages. Section 60 reads thus:
"60. Bar of jurisdiction of Civil Courts. (1) No order made by the State Government or the competent authority in the exercise of any power conferred by or under this Chapter shall be called in question in any court and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Chap- ter.
(2) No Civil Court shall have jurisdiction to entertain any suit or pro-
ceeding in respect of the eviction of any person who is in unautho- rised occupation of any Board premises or the recovery of the ar- rears of rent payable under sub-section (I) of section 57 or the damages payable under sub-section (2) of that section or any por- tion of such rent or damages."
17. In the year 2019, the State legislature has come out with an amendment in the Act, 1961, introducing Chapter VI-A containing section 60A, which makes the provision for redevelopment of buildings or apartments and it reads thus:
"60A. Redevelopment of buildings or apartments.--(1) Notwithstanding anything contained in this Act, any work in relation to the re-development of a buildings or apartments may be carried out by the Board, on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75 percent of the owners or occupiers 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 "re- development" shall have the meaning as assigned to it in the Comprehensive General Development Control Regulations, 2017.
(2) It shall be obligatory for all the owners or occupiers to vacate the existing premises for the purpose of re-development whenever the Board decides to take up the procedure for re-development of Page 28 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined building after following due procedure of sub-section (1):
Provided that if any owner or occupier does not vacate the premises, the Board shall cause to be served one month notice to the said owner or occupier for vacating the existing premises:
Provided further that the Board or, as the case may be, the individual agency shall have to provide alternate accommodation or rent in lieu of alternate accommodation to the owners or occupiers for the period of redevelopment.
(3) In case of failure to vacate the existing premises as provided in sub-section (2) above, the owners or occupiers shall be treated as unauthorized occupant on the land of the Board. The competent authority shall effect summary eviction of such owner or occupier in accordance with the provisions laid down in sub-section (3) of Section 56 of the Gujarat Housing Board Act, 1961 (Guj. 28 of 1961), as far as practicable.".
18. Sub-section (1), is a non obstante clause and it provides that any work in relation to the redevelopment of buildings or apartments may be carried out by the Board, on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75 percent of the owners or occupiers of such building. Proviso states that the buildings must have completed 25 years from the date of issuance of the development permission by the concerned authority or the concerned authority has declared such building in a ruinous condition, or likely to fall, or in any way dangerous to any person occupying etc. Sub-section (2) obligates the owner and the occupier to vacate the premises for the purpose of redevelopment whenever the Board decides to take up the proceedings for redevelopment. After following the procedure prescribed, the proviso to sub-section (2) envisages issuance of one month notice to the owner or occupier, if that owner or occupier does not vacate the premises. Sub-section (3) provides for the consequences in case of failure of the owner or occupier to vacate the premises, treating the occupier as unauthorized occupant on the land of the Board. The competent authority has been empowered to effect the summary eviction of such owner or occupier in Page 29 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined accordance with the provisions laid down in Sub-section (3) of section 56 of the Act, 1961, as far as practicable.
19. Contention is also raised in connection with section 71 of the Act of 1961 which provides for issuance of notice of suit against the Board. It states that no person shall commence any suit against the Board or against any officer or servant of the Board or any person for anything done or purporting to have been done in pursuance of the Act, without giving to the Board, officer or servant or person, two months, previous, notice in writing of the intended suit and of the cause thereof. Time limit provided is six months from the date of the act complained of. Section 71 of the Act of 1961 reads thus:-
"71. Notice of suit against Board.
- No person shall commence any suit against the Board or against any officer or servant of the Board or any person acting under the orders of the Board, for anything done or purporting to have been done in pursuance of this Act, without giving to the Board, officer or servant or person, as the case may be, two months, previous notice in writing of the intended suit and of the cause thereof, nor after six months from the date of the act complained of. And in the case of any suit for damages, if tender of sufficient amends shall have been made before the action was brought, the plaintiff shall not recover more than the amounts so tendered and shall pay all costs incurred by the defendant after such tender."
20. Pertinently, Chapter VI is titled as "Power to Evict Persons From Board Premises" and contains the provisions for eviction whereas, Chapter VI-A is titled as "Redevelopment of Buildings or Apartments". As discussed hereinabove, sub-section (1) of section 56, deals with the power to evict certain persons from board premises. Section 60, deals with the bar of jurisdiction of civil courts. Sub-section (2) of section 60 oust the jurisdiction of the civil court to entertain any civil suit in respect of eviction of any person who is in unauthorised occupation of any board premises under sub-
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section (1) of section 57. Reading of the provision of Chapter VI suggests that it exclusively deals with the aspect of eviction and not redevelopment.
21. Whereas, sub-section (1) of section 60A is a non obstante clause which deals with the redevelopment of buildings or apartments. It states that any work in respect of redevelopment of the building or apartment may be carried out by the Board as may be prescribed, on fulfillment of conditions enumerated therein. Prescribed means "prescribed by the Rules". After introduction of section 60A, corresponding draft Rules of 2020, have been framed and are yet to be finalised. The provisions of section 60A provides for a detailed procedure for redevelopment and it is only thereafter that the issue of eviction is available as per sub-section (2) of section 60A. Sub-section (2), casts an obligation on the Board to take up the procedure for redevelopment of building after procedure as indicated in sub-section (1). Sub-section (3), provides for the procedure and by reference, it incorporates the provision of sub- section (3) of section 56. If one is to go by the provisions of sub- section (3) of section 56, it gives liberty to the competent authority to evict a person and to take possession of the premises and use force as may be necessary. Reading of the provision suggests that procedure for redevelopment, as per the Rules, precedes eviction. Close examination of the provision suggests that the legislature has referred to by incorporation the provisions of sub-section (3) of section 56 only while the provisions of sub-section (2) of section 60 are missing. Also, section 60, is in Chapter VI, which oust the jurisdiction to entertain any suit or proceedings in respect of eviction.
22. In the case on hand, the notice under sub-section (2) of section 56, has been issued on 11.03.2024, copy whereof, is placed Page 31 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined on record (Page No.368 of the paper-book). First paragraph of the notice, contains the condition of the building and the facilities to be provided as per the Policy of 2016 and the benefits arising therefrom. Second unnumbered paragraph, says about the consent of 75% of the members who are desirous of joining the redevelopment process and remaining 75%, of the residents, were to handover the possession as per sub-section (2) of section 60A. Reference is also made of the notice dated 09.01.2024 issued under sub-section (2) of section 60 requiring the occupants and occupiers to vacate the premises. It also states that if the recipient, fails to vacate the premises, they would be treated as an unauthorised occupant in terms of provisions of sub-section (3) of section 60A. The third unnumbered paragraph, gives the description of the flat and the occupier. It also refers to the provisions of sub-section (1) of section 56 and says as to why orders should not be passed requiring the occupier to vacate the premises within 30 days. In the last paragraph of the notice, the competent officer, has required the recipient, to produce the evidence substantiating that he is not an unauthorised occupant. Reading of the contents of the notice, suggest that it exclusively deals with the eviction and there is not a semblance of grounds which provides for an opportunity to the recipient to raise any grievance as regards the redevelopment process. In view of the provisions of Chapter VIA, the argument that sub-section (2) of section 60, bars the jurisdiction of the civil Court, is misplaced and untenable. It is also sought to be argued that all the issues can be taken before the authority; however, there lies a fallacy inasmuch as, Chapter VI, as discussed hereinabove, deals with the issue of eviction solely and not the redevelopment.
23. In furtherance of the provisions of section 60A, the State Government in its Urban Development & Urban Housing Page 32 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined Department, has framed the draft Rules of 2020. It has been reported that the draft Rules of 2020 have not come into force. The Draft Rules of 2020 provides for the procedure for the redevelopment. The term "Association" has been defined as per Clause (iv) of Rule 2 to mean an association formed under "Registration of Association Bye-laws" of the Board made under section 75 of the Act. Conditions governing the redevelopment project of Building or Apartments is provided in Rule 3, which is in pari materia with the parent provisions of section 60A. Rule 4 provides for criteria for the eligibility of beneficiaries for redevelopment. Sub-rule (1) of Rule 5 contemplates convening a special general meeting of the Association either suo motu or on an application received from one-fourth members of the Building or Apartments holders, within a period of one month from the date of such application and to take the policy decision for redevelopment. Further provision is regarding the preparation of the agenda for redevelopment inviting suggestions and recommendations. Rule 6 makes a provision for procedure to be adopted by the Board for redevelopment which concerns the online tendering process inviting the bids for redevelopment projects in accordance with the rules and regulations, procedure set up and the criteria that may be decided by the Board. Selection of the developer is provided in Rule 7 followed by agreement to be entered with the developer in Rule 8. Obligation and function of the developer is provided in Rule 9. Rule 10 says about operations and maintenance. Rule 13 obligates the beneficiaries of the flats or apartments to handover the peaceful possession to the developer after the development agreement is executed and permission for development, providing the alternative accommodation. Rule 14 deals with the unauthorized occupation, which states that whenever the Board has taken up the redevelopment project of any scheme/building and vacant Page 33 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined possession of the premises/flats or apartment is not handed over, by any owner or occupier / beneficiary as per the agreement for redevelopment project of the scheme/ building, the Board shall give one month notice as per the provisions of sub-section (2) of section 60A, and direct him to vacate the existing premises within one month. Rule 14, reads thus:
"14. Unauthorised Occupation. - (l) Whenever the Board has taken up the re-development project of any scheme/ building and vacant possession of the premises / flats or apartment is not handed over any owner or occupier / beneficiary as per the agree- ment for re-development project of the scheme/ building, the Board shall give him a one month notice as per the provisions of sub-section (2) of section 60A, and direct him to vacate the exist- ing premises within one month. Such person shall be given an op- portunity to show cause as to why he is not vacating the premises and as to why the order of unauthorized occupation should not be made in accordance with the provisions of the Act.
(2) If a person fails to vacate the premises as per notice give to him within the specified period, such person shall be considered as the unauthorised occupant under clause (b) of sub-section (4) of section 56 of the Act and the competent authority may evict such person from the, and take possession of, the premises and may for that purpose use such force as may be necessary in ac-
cordance with the provisions of the Act. The Competent Authority of the Board shall record the documentary evidences of the pro- ceedings of the eviction and hand over the possession to the De- veloper for the re-development work.
(3) In case, the condition of the premises/building of the Board is not fit as a dwelling house/unit / for staying or occupying and is in ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to; passing by such structure or any other structure or place in the neighbourhood thereof and de- clared as such by the concerned local authority, the possession of such premises shall be taken after serving a one month notice therefore in accordance with the provisions of the relevant law; and hand over to the Board as a lease holder.
(4) The owner (original allottee) of the premises / property or a person who occupies the premises / property under the power of attorney given by the owner and who has not paid the dues of the Board and executed a conveyance deed with the Board, the Board shall serve a notice to that effect and require him to pay the dues within one month from the notice and execute the conveyance deed. In case of failure to make payment of dues of the Board as aforesaid by the owner or the power of attorney holder, the Board shall declare such person as unauthorized occupant of the prop-
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erty of the Board and the person so declared shall be deemed to be unauthorized occupant, The Board shall acquire the possession the property of the said occupant ex-party for redevelopment project.
(5) The provisions of section 56 shall mutatis-mutandis apply so far for eviction of the premises of the persons declared as unau- thorized occupant under section 60."
24. At this stage, the policy framed by the State Government in its Urban Development & Urban Housing Department vide Resolution dated 11.02.2016 requires to be considered. Annexure-A is the provision in vernacular while Annexure-B is in English language and provides for redevelopment of the public housing. The objective of the scheme is to undertake the redevelopment of public housing schemes in the urban areas of the State under PPP mode to achieve the objective, namely, (i) to upgrade existing housing, (ii) create additional affordable housing stock, wherever possible, (iii) to utilize available land in optimal manner and, (iv) to improve neighbourhood at no or minimal cost to the government. Rule 2 deals with the definition and eligibility of the project. Rule 3.1 deals with the redevelopment of the existing Public Housing Scheme. Clause (a) provides that the owners of the dwelling units may be allotted dwelling units with carpet area higher than the existing one. Clause (b) provides for the maximum carpet area of the dwelling units, as indicated therein, which is 140% of the existing approved carpet area. The provision is also for selecting the private developers, concerned public agencies for implementation of the redevelopment of the existing housing scheme. Initially, the 60% consent was provided, which has now been increased to 75%. Clause 6 is in connection with the beneficiaries and allotment. Clause 6.1 states that owners of the houses in the existing housing scheme will be the beneficiaries of their development component. Clause 6.4 states that the existing houses will be redeveloped and the beneficiaries will be rehabilitated in situ. In the case on hand, it Page 35 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined is not in dispute that the redevelopment is in situ as much as the Board has now taken a decision to redevelop the building.
25. The scheme suggests that there is a separate and in-built mechanism provided for redevelopment of the building with a specific provision for eviction of the owner and occupant in case the Board decides to redevelop the building. Since the Board has taken a decision to redevelop the building, steps were taken. The Board has invited tender for redevelopment somewhere in the month of January 2020. Letter of Acceptance was issued to the developer on 12.10.2020. Tripartite Agreement was executed on 01.01.2024. It is, thereafter, that the notice under sub-section (2) of section 60A was issued on 09.01.2024. On 27.02.2024, the proceeding under sub- section (3) of the section 60A was filed by the Executive Engineer before the competent authority followed by a show cause notice under sub-section (2) of section 56 of the Act, 1961 dated 11.03.2024. It is, thereafter, the plaintiff filed a suit on 26.04.2024 and was registered on 14.05.2024, inter alia, praying to declare the plaintiffs as owners and occupiers and leaseholder of the property read with the provision of the Conveyance Deed. In furtherance of prayer (A), direction is sought that the Board or its officer or servant has no power or authority to frame the policy or to enter into a contract or to frame any rules or regulations. It is also prayed that the property is of the exclusive and private ownership of the plaintiff. Prayer (C) is the declaration sought against the State Government, the Board or any Institution that it has no right to create or much less any right to earn any benefit or profit from the said property. Prayer (D) is to declare that the building is not in a ruinous condition and is not likely to fall or cause damage to the neighbours. Prayer (E) is also seeking declaration that the Board and defendant no.9 builder, have no right to demolish the building for Page 36 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined the purpose of redevelopment. Prayer (F), in vernacular, is seeking declaration that the correspondences of any transactions between the defendant no.6 and defendant no.9 as nullity, without any authority and further declare that the defendant no.9 has got no right or authority and such correspondence is not binding to the plaintiffs. Similar such prayers are prayed for in prayers (G) to (M), which are more or less challenging the procedure or the right and the authority to redevelop the property.
26. Pertinently, prayer (A), is seeking declaration, that the plaintiffs be declared as owners and occupiers of the land. The genesis of the said prayer lies in the Conveyance Deed executed by the Board in the year 1978. Some of the recitals of the Conveyance Deed, since are relevant, are reproduced hereinbelow for ready reference:
"2. Between the Gujarat Housing Board constituted under the Gujarat Housing Board Act No.XXVIII of 1961 acting through its Housing Commissioner (hereinafter called the 'Board' which expression shall, unless inconsistent with the context or meaning include, its successors in office and assigns) of the FIRST PART;
......... ........ .........
......... ........ .........
7. It is hereby agreed by and between the parties as under:-
(1) The party of the second part hereby accepts to hold the property in the form of flat bearing No.108 (more particularly described in Schedule 'A' and the plan whereof with red colour in Schedule 'B' attached herewith) as owner being part of the building bearing No.M5-14 situated in Revolving Fund Scheme estate of Gujarat Housing Board at Wadaj in the District of Ahmedabad.
and more particularly described in schedule 'C' (whole building) and the whole plot of land Survey No.245/2, 246/2 on which the said building is or building are situated which more particularly defined and boundaries whereof are for greater clearness delineated it. The plan in blue colour given in schedule 'D' subject to the following stipulations Page 37 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined
(a) The party of the second part shall hold the flat conveyed and described in Schedule 'A' 'B' as owner.
(b) The party of the second part hereby absolves the Board of all liabilities in respect of any rates, taxes, charges and all assessments of every description which are now or at any time hereafter be assessed, or imposed upon the said property conveyed as owner to the party of the second part, upon the parties of the first or second part of the Association in respect of the property conveyed by the Municipality of the place concerned or by the State of Central Government or by any other local authorities;
(c) The party of the 2 nd part shall hold leasehold rights in the plot of land Survey No.245/2, 246/2 more particularly, described in Schedule 'D' jointly with the co-holders through the Association of which he/she is constituent member in pursuance of the Lease-Deed executed between the Board and the Association.
(d) The present term of the lease-hold rights of the land Survey No.245/2, 246/2 will end on the last day of the month of February the year two thousand and seventy seven.
(e) The Board hereby agrees that it shall subsequent to the above mentioned date and so on from time to time thereafter at the end of each successive term of ninety years shall grant at the request and cost of the second party and extend the term of lease hold rights for a further period of ninety years, so as to be co-terminus with the period of the Lease Deed for the said land on which the said building in which the said flat is situated.
......... ........ .........
......... ........ .........
(1) The party of the second part shall have the right of use of common portions and common services along with other occupants of the building subject to the constitution of the Association or Society, as the case may be of which he/she is the constituent member;
(g) The conditions stipulated in the Registered Agency Agreement dated_________ shall continue to form part of these presents till the Registered Agency executes necessary Lease Deed at the end of the hire purchase period of the Registered Agency; that the Lease-Deed by which the building containing the said flat or house of the Second party stands shall apply mutatis mutandis to this conveyance and the party of the second part shall be bound to observe them, and shall not do or permit anything to be done in contravention of the said conditions.
(h) The property in question will be offered to the Gujarat Housing Board in the first instance if it is put up or brought to Page 38 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined sale within ten years from the date of allotment at such reasonable price as fixed by the Board. In all cases it will have to be offered for sale only to persons eligible under the Scheme.
2. The Board covenants that the party of the second part performing and observing the conditions herein contained shall peacefully hold and enjoy the said property during the said term except for any lawful interruptions or disturbance by the Board or any person lawfully claiming under it.
SCHEDULE "A"
The flat conveyed includes various parts particularly given hereunder with their dimensions:
First Floor (1) Drawing room ... 1.04 m x 3.76 m (2) Front Bed Room ... 4.5 m x 7.00 m (3) Rear Bed Room ... 3.95 m x 3.00 m (4) Kitchen ... 2.30 m x 2.89 m (5) Bath Room ... 2.02 m x 1.20 m (6) Toilet ... 0.90 m x 1.07 m (7) Otta / Balcony ... 1.20 m wide (8) Bigger Verandah (9) Small Verandah North 10.08 m South 10.08 m East 8.335 m West 8.335 m Total 85 sq.m.
Boundaries of the flat conveyed are as under:-
ON NORTH Open land & Block No.M5-16
ON EAST Open land & 9.00 m Road
ON SOUTH Flat No.107
ON WEST Open land & Block No.M5-15
SCHEDULE 'B'
(Plan of the flat conveyed in red colour)
SCHEDULE 'C'
The overall dimensions and the boundaries of the building in which the flat (conveyed) is situate.
SCHEDULE 'D' Plan of the land the building of which the said flat forms a part in green colour."
27. Clearly, the Conveyance Deed is executed by the Board in Page 39 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined favour of the occupiers of the respective flats. Clause (a) of sub- paragraph (1) of paragraph 7 states that the party of the second part shall hold the flat as described in Schedule-'A', 'B' as owner. Clause (c), states that the party of the second part shall hold the leasehold right in the plot of land as described in Schedule-'D'. Clause (d) also refers to the leasehold rights and it provides that the rights shall end on the last day of the month of February 2077. Heavy reliance is placed on Clause (e), which says that at the end of each successive term of 90 years, the Board shall grant, at the request and cost of the second party and extend the term of leasehold rights for a further period of 90 years. Clause 2 says that the party of the second part, performing and observing the conditions, shall peacefully hold and enjoy the said property during the said term, except for any lawful interruptions or disturbance by the Board or any person lawfully claiming under it. The claim of the plaintiffs, is based on the said conveyance deed. The plaintiffs, therefore, are seeking a declaration that they be declared as owner of the said property in view of recitals in the conveyance deed.
28. During the pendency of the suit, application under Order VII Rule 11(d) came to be filed by the defendant no.9, inter alia, raising the contention that the suit is not maintainable as it is barred by section 60A of the Act of 1961 and hence, the Court has no jurisdiction to try the suit. Building is in a dilapidated and dangerous condition and is unsafe to be occupied is one of the grounds raised. Repairing and restrengthening of the structure is not feasible. It is also the stand taken that if the task of repairing is undertaken, it would mean that members of the society will have to vacate their respective apartments, find alternate accommodation at their own cost during the period of repair. The application also contains the aspect of 75% of the consent; execution of the tripartite agreement.
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Objection is also raised against some of the plaintiffs, who having given their consent, backed out. With the averments as indicated hereinabove, request was made to reject the plaint on the ground of the Court having no jurisdiction. The plaintiffs, have filed their response denying the averments made in the application Order VII Rule 11(d). Stand is taken that it is well recognised principles of law, that for the purpose of deciding an application under Order VII Rule 11, it is only the facts that are pleaded in the plaint has to be taken into account and the plaint can be rejected and not otherwise. Contention is also raised that the averments made in the plaint, are to be taken as true and the issue of rejection, can be considered only after the trial. It is also denied that the court has no jurisdiction.
29. Considering the application under Order VII Rule 11, the learned Judge, has passed the impugned judgment and the plaint has been rejected by observing that considering the reliefs and pleadings, the plaintiffs essentially are challenging the redevelopment project. It has been further observed that the plaintiffs and all members have a leasehold right of the constructed flats, for which the conveyance deed has been executed. Therefore, prayer to declare the plaintiffs and members as owner does not mean that the suit is maintainable. The learned Judge, in connection with the prayers, held that the reliefs sought by the plaintiffs are negative declaratory reliefs wherein, the plaintiffs have prayed for declaration that defendants have no right and considering the provision of section 54 of the Specific Relief Act, 1963, no declaratory relief can be granted. For the remaining prayers in paragraph-18, the learned Judge, was of the opinion that though it may be a declaratory relief prayed for under the guise of challenging the redevelopment project, the suit would not be maintainable in view of the bar under sub-section (2) of section 60 Page 41 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined of the Act of 1961.
30. Pertinently, one of the prayers of the plaintiffs, was seeking declaration declaring the plaintiffs as owner of the suit property in view of the conveyance deed of the year 1978. Heavy reliance is placed on the contents of the conveyance deed and more particularly, the term "owner" appearing in the said conveyance deed. When there is a specific prayer seeking declaration for declaring the occupiers as owner, this Court fails to understand as to how the said prayer could have been severed from the remaining prayers and how the learned Judge could have concluded that the suit is not maintainable. Prayer-A, is exclusively seeking declaration and the plaintiffs, have all the right to claim the said prayer. However, whether the conveyance deed confers any ownership right or not, is to be tried by leading evidence and that too at the time of trial. At this stage, observations of the learned Judge, made in paragraph-13 is also required to be taken note of. Paragraphs 13, 18 to 21, read thus:
"13.Considering the Conveyance Deed, the facts reveals that under revolving fund scheme of Gujarat Housing Board, person hold the flat convey and described in Schedule A and B as owner. Schedule A describes the fact of flat.
The person hold lease hold right in the flat of land survey No.245/2, 246/2 and this right is got through the lease deed. In the conveyance deed, Para 7(B) shows that lease hold right of the land will end on 13th February 2077. Clause (e) of the Para 7 shows that at the request and cost of the second party, lease hold right will extend for further period of 90 years.
However, the Gujarat Housing Board has not sold the entire property to the unit holder but upto the year 2077, first lease hold right was given which can be further extend for 90 years on the request of the party. As such lease hold right cannot be considered exclusive ownership of the entire property. The flat unit structure can be considered as ownership of the unit holder for given time but that does not mean that under the Government Scheme, person have got lease right is got the entire property right as like exclusive owner.
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18. Here, Gujarat Housing Board is a statutory body come in existence under the Statutory provisions. It is working in accordance with law, lands belonging to the Gujarat Housing Board and it is the ownership of the Gujarat Housing Board. The Gujarat Housing Board has given on lease right and the Gujarat Housing Board along with at least 75% majority members have right to redeveloped property and as such everything is done by the concerned party in accordance with law. All the unit holders got more 40% area in the redevelopment project as such nothing is against plaintiffs' right and law.
19. Here whatever the issue raised by the plaintiffs in the suit and argued before this court can be raised before appropriate authority, wherein Gujarat Housing Board has filed eviction proceedings. The competent authority cannot be considered as a Gujarat Housing Board but under the statute competent authority is formed to decide the issues relating to eviction proceedings. Here, after taking consent of more 75% members of the society has passed the resolution. Gujarat Housing Board has invited the bids and highest bid of defendant No.9 which was expected then the association of the members, Gujarat Housing Board and developers entered in Tripartite agreement and according to section 60A they proceed.
20. According to section 60A of the GHB Act, it is obligatory for owners or occupier to evict the premises for redevelopment. If any party will not evict the premises, one month notice is required which is served and even the party will not evict the property, then under section 60A(3) of the GHB Act, owners or occupants shall be treated as unauthorized occupants of the land. Summary section proceedings can be iniaed under section 60(3) of the GHB Act. So, in accordance with law, Gujarat Housing Board's competent officer has filed proceedings before the competent authority and the copy of it is produced by the plaintiffs at Mark 4/22 and which is not denied by the plaintiffs that proceedings for eviction was not initiated.
According to section 60A(3) of the GHB Act, the person who not complied the notice of one month shall be treated as unauthorized occupant. Competent authority can be used such force as may be necessary under section 56(3) of the GHB Act. If the competent authority has not used the force, but they have filed the proceedings before the competent authority though this proceedings was pending before the competent authority, wherein plaintiffs can raise their disputes and competent authority can decide even the plaintiffs have filed the suit before this court and thereafter, competent authority passed an order against the plaintiffs during the pendency of this suit, which is also challenged by the plaintiffs before the appellate authority and all the remedies are available with the plaintiffs to raise the dispute before competent authority in the appropriate proceedings and even the appellate authority will dismiss the plaintiffs' claim, there is some remedy with the plaintiffs.
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21. While considering the relief/s and pleadings of the plaintiffs, the crux is that the plaintiffs are challenging the redevelopment project, it is clear that plaintiffs and all members have lease hold right of the constructed flats and conveyance deed is also for the same Therefore, just prayer to declare plaintiffs and members as owner does not mean that on the basis of plaintiffs' declaratory relief, suit is maintainable.
Reliefs sought by the plaintiffs in Para No.18 - B. C. D. E are. in negative declaratory relief, wherein plaintiffs prayed for declaration that defendants have no rights. Considering the section 54 of the Specific Relief Act, no declaratory relief can be claimed or granted.
While considering the plaintiffs another reliefs of Para 18 F, G, H, J, K, L, M etc, these all are relating to redevelopment project.
As such in shadow of the declaratory relief, the plaintiffs have challenged the redevelopment project of the society.
Learned Advocate for the plaintiffs Mr.Chakwawala has argued that section 71 of the Act has provided that before filing the suit, 2 months notice is required. It is argued that the provisions of this section gives the right to the plaintiffs to file the suit.
Chapter VI and VI-A is relating to redevelopment of building or apartment and power to vacate persons from premises. Section 60 is come under this chapter.
Section 59 of the GHB Act gives the remedy to the aggrieved person to file the appeal before the competent authority relating to subject matter come under this chapter.
Section 60 of the GHB Act, clause - (1) shows that no order made by the State of Gujarat or competent authority in exercise of any power confirmed by the authority under this chapter shall be called in question in any court.
Section 60(2) of the GHB Act is a statutory provisions that no Civil Court shall have jurisdiction to entertain any suit or proceedings to restrict eviction of any person which is in unauthorized occupation of any premises. However, following provisions of section 60A. Section 56(3) of the GHB Act competent authority have decided aggrieved person unauthorized person so against this subject matter, Civil Court has no jurisdiction under sec 60 of GHB Act."
31. The trial Court, has considered the conveyance deed and it has observed that under the Revolving Fund Scheme of the Gujarat Page 44 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined Housing Board, person holds the flat, conveyed and described in Schedules A and B as owner. The trial court further went on to observe that a person who has a leasehold right in the flat through the lease deed the right is available only till February, 2077. While further considering the conveyance deed and the provisions thereof, the learned Judge, has observed that Housing Board has not sold the entire property to the unit holder but only upto the year 2077 and is capable of further extension for another 90 years upon request of the parties. The learned Judge, was in error in observing thus:
"the flat unit structure can be considered as ownership of the unit holder for given time but that does not mean that under the gov- ernment scheme, person have got a lease right is got the entire property right as the exclusive owner".
When the trial Court, was of the opinion that it has no jurisdiction, the learned Judge, could not have determined the aspect of ownership and said that the plaintiffs cannot have an exclusive right like the owner. Prayer-A, seeking declaration has been dealt with in a slipshod manner by the learned Judge by observing that the members possess only the leasehold right of the constructed flats as per the conveyance deed and the prayer to declare plaintiffs and members as owner does not mean that the suit is maintainable. The issue of the ownership either way, could have been decided by leading evidence and interpreting the provisions of the conveyance deed and not otherwise.
32. It is well settled that powers under Order VII Rule 11, can be exercised at the threshold so as to nip in the bud the vexatious suits. It is equally true that rejection of the plaint at the threshold, is a drastic step and hence, the powers should be exercised with circumspection. Besides, in the present case, multiple prayers have Page 45 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined been prayed for and even if one prayer is capable of being granted or considered, plaint cannot be rejected and would be an impermissible exercise. At this stage, judgment in the case of Central Bank of India & Anr. vs. Prabha Jain & Ors. (supra), is worth referring to. Paragraphs 24 and 25 of the same, read thus:
"24. Even if we would have been persuaded to take the view that the third relief is barred by Section 17(3) of the SARFAESI Act, still the plaint must survive because there cannot be a partial rejection of the plaint under Order VII, Rule 11 of the CPC. Hence, even if one relief survives, the plaint cannot be rejected under Order VII, Rule 11 of the CPC. In the case on hand, the first and second reliefs as prayed for are clearly not barred by Section 34 of the SARFAESI ACT and are within the civil court's jurisdiction. Hence, the plaint cannot be rejected under Order VII Rule 11 of the CPC.
25. If the civil court is of the view that one relief (say relief A) is not barred by law but is of the view that Relief B is barred by law, the civil court must not make any observations to the effect that relief B is barred by law and must leave that issue undecided in an Order VII, Rule 11 application. This is because if the civil court cannot reject a plaint partially, then by the same logic, it ought not to make any adverse observations against relief B."
33. In the opinion of this Court, the issue of ownership and the procedure of redevelopment were the issues which could have been tried and decided only by way of a trial and the suit could not have been dismissed while accepting Order VII Rule 11 application and more particularly, clause (d) on the ground that it has no jurisdiction.
34. In view of the above discussion, the suit cannot be said to be barred by section 60 of the Act of 1961 and consequently, the learned Judge, was not justified in rejecting the plaint. Since the Court is of the opinion that the plaint, ought not to have been rejected accepting application under Order VII Rule 11, other issues, viz. consent, suppression, legality and validity of the redevelopment process and the judgments cited are not gone into, leaving it open Page 46 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025 NEUTRAL CITATION C/FA/2967/2024 JUDGMENT DATED: 17/03/2025 undefined for the parties to raise the same at the time of trial. In view of the above discussion, the impugned judgment dated 19.07.2024 is quashed and set aside and the matter is remitted to the Court below. The suit is restored to its original file. First Appeal succeeds and is accordingly allowed. No order as to costs.
35. In view of the above order, the connected Civil Application for stay, is also disposed of.
(SANGEETA K. VISHEN,J) (NIRAL R. MEHTA,J) ANUP Page 47 of 47 Uploaded by ANUP V PARIKH(HC00956) on Wed Apr 09 2025 Downloaded on : Fri Apr 11 22:16:19 IST 2025