Gujarat High Court
Chandrakant Mansukhlal Shah vs Executive Engineer on 27 March, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/15360/2023 ORDER DATED: 27/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15360 of 2023
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CHANDRAKANT MANSUKHLAL SHAH
Versus
EXECUTIVE ENGINEER & ORS.
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Appearance:
MS NN SHAIKH with MS SRUSHTI A THULA(5014) for the Petitioner(s) No. 1
G H VIRK(7392) for the Respondent(s) No. 1,2,3,4
MR APURVA R KAPADIA(5012) for the Respondent(s) No. 5
MR SIMRANJITSINGH H VIRK(11607) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 27/03/2024
ORAL ORDER
1. Heard Ms. N. N. Shaikh, the learned advocate appearing for Mr. Srushti A. Thula, the learned advocate appearing for the writ-applicant, Mr. G. H. Virk, the learned advocate appearing for the respondents No.1 to 4 and Mr. Apurva R. Kapadia, the learned advocate appearing for the respondent No.5.
2. By way of present writ-application filed under Article 226 of the Constitution of India, the writ-applicant herein has prayed for the following reliefs :-
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NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined "(A) admit and allow present petition, (B) issue a writ of mandamus or any other writ, order or direction quashing and setting aside the notice dtd 11l.08.2023 issued by the Respondent authorities and direct the respondent authorities from demolition/redevelopment of Block No.24 in particular Flat No.24/223, Shastrinagar, Naranpura, Ahmedabąd.d.
(BB) Your Lordships may issue a writ of mandamus or any other writ, order or direction quashing and setting aside the order dated:
18.08.2023 by the competent Officer, Gujarat Housing Board, and numbered C.O. Case No. 1/2023 / 1 548, under Gujarat Housing Board Act, 1961l under section- 56(1) and 56(3).
(c) issue a writ of mandamus or any other writ, order Or direction directing respondents to repair damages caused to Flat No.24/223, Shastrinagar, Naranpura, Ahmedabad owned by present petitioner.
(d) Declare that, Redevelopment of Public Housing Guideline, 2016 issued by the Urban Housing Development Department, State of Gujarat, do not apply in facts of the present case, ALTERNATIVELY,
(d) Restrain respondents from demolishing or damaging Or redeveloping Block No.24 in particular Flat No.24/223, Shastrinagar, Naranpura, Ahmedabad pending admission, hearing and final disposal of above captioned Special Civil Application. (dd) Your Lordships may be pleased to restrain the respondents Page 2 of 11 Downloaded on : Fri Apr 26 20:32:09 IST 2024 NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined from evicting the present petitioner from the Flat No. 24/223, Shastrinagr, Naranpura, Ahmedabad,
(c) Grant such other and further relief, which Hon ble Court may be deemed just and proper in favour of the petitioner, in the interest of justice.
3. Brief facts leading to the filing of the present writ- application read thus 3.1 By way of present writ-application the writ-applicant herein seeks appropriate order or direction prohibiting the respondents from proceeding with re-development plan to be considered on Block Nos.24 and 25 of Nidhi Apartment, Pragatinagar, Ahmedabad and more particularly making construction of shops and showrooms in the ground floor as per the proposed plan.
3.2 It is the case of the writ-applicant that the respondent Association has proceeded further on the basis of consent of the so-called Association.
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NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined 3.3 It is the case of the writ-applicant that there is no Association. Since beginning, the administration of Block Nos.24 and 25 are being done independently and separately. 3.4 It is also the case of the writ-applicant that without consent of all the members i.e. 100% members, the respondents cannot proceed further with the redevelopment. The proposed plans for construction of shops and showrooms in the ground floor and the first floor, more particularly in the backside of the first floor is against consent of members of the flats including the writ-applicant, against the object and purpose of redevelopment Scheme for residential purpose, against the Redevelopment Act, de hors the portions of law and settled legal position.
4. When the matter is taken up for hearing, this Court is informed that the writ-applicant herein has vacated the premises in question pursuant to the notice issued by the respondent No.1 dated 11.8.2023. Subsequent thereto, the writ- Page 4 of 11 Downloaded on : Fri Apr 26 20:32:09 IST 2024
NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined applicant was granted an opportunity of hearing wherein by communication dated 11.10.2023 the following order came to be passed :-
"Order:-
The Respondent has violated Section - 60-A(2) of the Gujarat Housing Board (Amendment) Act, 2019. Therefore, as per the provisions of Section 60-A(3), Respondent Mr. Chandrakantbhai Mansukhlal Shah, having possession of Flat No. 24/223 located at 24 H.I.G., Nidhi Apartment, is hereby declared 'Unauthorized Occupant'. Therefore, as provided in Section - 56(1) of the Gujarat Housing Board Act - 1961, order is passed against the Respondent that he shall hand over the possession of the said property to the Gujarat Housing Board within one month from the date receipt or service of this order and if the Respondent fails to do so, the Executive Engineer, Gujarat Housing Board shall take over the possession of said property as provided in Section 56(3)."
5. The writ-applicant herein instituted the Civil Suit No.787 of 2023 against the respondent authority, however on preferring an application under the provisions of Order 7 Rule 11B of the Civil Procedure Code, 2008 the learned Chamber Judge, Court No.24, City Civil Court, Ahmedabad which came Page 5 of 11 Downloaded on : Fri Apr 26 20:32:09 IST 2024 NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined to be rejected under Order 7 Rule 11(d) of the Civil Procedure Code by order dated 11.8.2023 and the same has attained finality.
6. In light of the aforesaid, the respondent authority has consent of more than 75% members i.e. 23 members, out of 24 members have submitted individual consents for re- development and a Tripartite Agreement dated 13.6.2023 was thereafter executed between the Association, Gujarat Housing Board and the respondent No.5 developer.
7. At this stage, it is apposite to refer to Section 60A of the Gujarat Housing Board Act, 1961 which read thus :-
"60A. Re-development 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 per cent 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 Page 6 of 11 Downloaded on : Fri Apr 26 20:32:09 IST 2024 NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined 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 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 re-development.
(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) Page 7 of 11 Downloaded on : Fri Apr 26 20:32:09 IST 2024 NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined of section 56 of the Gujarat Housing Board Act, 1961, as far as practicable."
Considering 60A of the Act and the construction in question more than 34 years old construction, the construction that of 1989, the writ-applicant herein is the only objector to the re-development undertaken by the respondent No.1 - Gujarat Housing Board in connection with the redevelopment 24 H.I.G. Nidhi Apartment. The affairs of Nidhi Apartment are controlled by 24 H.I.G. Nidhi Apartment Association comprising of the members of the Society. The writ-applicant herein resides in Unit No.24/223 within Nidhi Apartment and enjoys limited leasehold rights in terms of Conveyance Deed dated 26.10.1993. The Association approached the Gujarat Housing Board with the resolution seeking development of two low-rise blocks, part of the Nidh Apartment. As on today there is consent of 23 out of 24 members for redevelopment of Nidhi Apartment. The re-development work by the respondent No.1 is carried out in accordance with the Redevelopment of Public Housing Scheme Guidelines, 2016 issued by the Government of Page 8 of 11 Downloaded on : Fri Apr 26 20:32:09 IST 2024 NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined Gujarat. The tender work was awarded to the successful bidder, only after the proposed lay-out plan was seconded by the Association. A Tripartite Agreement dated 13.6.2023 was thereafter executed between the Association, Gujarat Housing Board and the respondent No.5 developer on 13.6.2023.
The only objection that is raised by the writ-applicant herein is that the writ-applicant herein is not averse to re- development, but the respondent authority be estopped from undertaking any commercial activity in the proposed new building, more particularly on backside of the first floor.
8. The aforesaid objection raised by the writ-applicant herein was subject matter of consideration before the Hon'ble Division Bench in the LPA No.526 of 2023. In the said judgment the Hon'ble Division Bench after considering the provisions of Guidelines, 2016, held that there is no bar of inclusion instructing certain areas for commercial use and, therefore, it cannot be said that granting certain parts of Page 9 of 11 Downloaded on : Fri Apr 26 20:32:09 IST 2024 NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined redeveloped property for commercial use is contrary to guideline. It is apposite to reproduce paragraph 28 of the said order dated 26.4.2023 which read thus :-
"28. While considering the various provisions in the guidelines of 2016, we are of the opinion that there is no bar of inclusion of instructing certain areas for commercial use and, therefore, it cannot be said that granting certain parts of the redeveloped property for commercial use is contrary to the guidelines."
9. For the foregoing reasons, in light of the aforesaid undisputed facts and the ratio as laid down by the Hon'ble Division Bench, as referred above, no interference is called for to exercise extraordinary jurisdiction under Article 226 of the Constitution of India.
9.1 In the interest of justice, it is open for the writ- applicant herein to approach the respondent authority for alternative accommodation in view of the undisputed fact that the writ-applicant has vacated the premises in question which is noticed from show cause notice which is issued dated Page 10 of 11 Downloaded on : Fri Apr 26 20:32:09 IST 2024 NEUTRAL CITATION C/SCA/15360/2023 ORDER DATED: 27/03/2024 undefined 21.8.2023 duly produced at page-189. Mr. Apurva R. Kapadia, the learned advocate appearing for the respondent No.5 undertakes to provide alternative accommodation in line with occupants/owners of other 23 flats in terms of the Tripartite Agreement dated 13.6.2023 executed between the Association, Gujarat Housing Board and the respondent No.5 developer.
10. For the foregoing reasons, the present writ-application stands disposed of with the aforesaid directions.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 11 of 11 Downloaded on : Fri Apr 26 20:32:09 IST 2024