Rakesh Navnitlal Gandhi vs State Of Gujarat on 27 December, 2019

[Cites 33, Cited by 2]

Gujarat High Court

Rakesh Navnitlal Gandhi vs State Of Gujarat on 27 December, 2019

Equivalent citations: AIRONLINE 2019 GUJ 656, (2020) 1 GUJ LH 476

Bench: Vipul M. Pancholi

       C/SCA/12374/2018                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12374 of 2018


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1   Whether Reporters of Local Papers may be allowed to Yes
    see the judgment ?

2     To be referred to the Reporter or not ?                              Yes

3     Whether their Lordships wish to see the fair copy of the              No
      judgment ?

4     Whether this case involves a substantial question of law              No
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

==========================================================
                   RAKESH NAVNITLAL GANDHI & 26 other(s)
                                 Versus
                       STATE OF GUJARAT & other(s)
==========================================================
Appearance:
MR BM MANGUKIYA(437) for the Petitioners
MS BELA A PRAJAPATI(1946) for the Petitioners
MR KM ANTANI, ASSISTANT GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1
MR BHARAT T RAO(697) for the Respondent(s) No. 3
MR KAMAL TRIVEDI, SENIOR ADVOCATE WITH MR YOGI GADHIA AND
MR KV GADHIA(319) for the Respondent(s) No. 2
MR ANSHIN DESAI, SENIOR ADVOCATE WITH MR RUTUL P DESAI(6498)
for the Respondent(s) No.4-142
==========================================================
    CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
                       Date : 27/12/2019
                       CAV JUDGMENT

1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioners have prayed for the following reliefs:

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"(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the respondents have no power, authority or competence to frame the scheme by administrative orders and transfer the properties of the petitioners in favour of respondent building;

(B) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to hold and declare that the respondents have no power, authority or competence to transfer the title of the properties in favour of the respondent builder without following due process of law;

(C) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to direct the respondents not to remove the petitioners from the premises held, owned, possessed and occupied by the petitioners, without following due process of law;

(CC) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus and/or any other appropriate writ, order or direction and to declare that the Scheme framed by the State Government at AnnexureB dated February 11, 2016 bearing No.Resolution/BJZ/102014/1642/TH1 as ultra vires to the provisions of section 17 of the Registration Act, 1908; Section 54 of the Transfer of Properties Act, 1882 and Section 19 of the Gujarat Ownerships Flats Act, 1973, and Article 300A of the Constitution of India and, therefore, be pleased to quash the same.

(D) Pending admission and final disposal of the present petition, be pleased to restrain the respondents, their agents and servants from disturbing the occupation and possession of the petitioners in respect of the premises owned, held, possessed and occupied by the petitioners, Page 2 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT without following due procedure known to law;

(E) Be pleased to pass such other and further orders as may be deemed fit and proper."

2. The factual matrix of the present case is as under:

2.1 The petitioners are allottees of housing quarters, namely, "Arvind Maniyar Quarters"

(hereinafter referred to as "the quarters"). It is stated that land bearing Survey No.442 of Rajkot City was developed by the Municipal Corporation with the aid and assistance of Housing and Urban Development Corporation (HUDCO), which is a Central Government venture. The said development scheme is called as "Arvind Maniyar Quarters". By public draw, the eligible persons were selected from amongst the lot and allotted the quarters to 208 persons. The constructed area is 47.37 sq. meters having 1 BHK. The said scheme has been developed on Hire Purchase Agreement. Allottees of each of the 208 quarters were required to make payment on hire charges of Rs.350/ per month. The total value of each of the quarters was fixed at Rs.18,000/.

2.2 It is further stated that the Municipal Corporation passed a Resolution on 28.07.1992 wherein it is resolved that a Deed of Conveyance shall be executed in favour of the person, who had paid the total amount of Rs.18,000/. City Engineer was authorized to execute Deed of Conveyance in favour of the holder of the quarter. Another Resolution was Page 3 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT passed on 10.03.2000 wherein the properties, which were used other than the residential properties, were also required to be regularized after charging transfer fees. Thereafter, the Sale Deed was executed in favour of the concerned party in the year 2006. The Deed of Conveyance clearly states that the property has been transferred in favour of the holder of the quarter. It has been specifically mentioned that common amenities in the common lands are under common ownership of the flat holders. Thus, it has been referred that ownership would be as per the provisions of the Gujarat Ownerships Flats Act, 1973 (hereinafter referred to as "the Act of 1973" for short). It is the say of the petitioners that pursuant to the execution of the Sale Deed in favour of 208 flat holders, each flat holder has received a clear and marketable title of the constructed premises of his quarter/flat and became the coowner of all the other amenities and all other properties including open space of the said quarters.

2.3 It is further stated that the State Government has declared its policy called as Redevelopment of Public Houses (Redevelopment of the Public Housing Scheme), 2016 (hereinafter referred to as "the Scheme" for short). The said Scheme provides for redevelopment of housing colonies. The petitioners have placed on record the Scheme at AnnexureB with the compilation.

2.4 It is a case of the petitioners that the Page 4 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT respondent Municipal Corporation appears to have decided unilaterally to develop this land and in course of redevelopment, transfer the part of the properties to the redeveloper towards the cost of the redevelopment. It is stated that the respondent Municipal Corporation selected respondent No.3 as the developer and the process adopted by the Corporation is not transparent. At no point of time, the owners of the quarters have been taken into confidence. The petitioners came to know about the aspect of redevelopment and, therefore, one of the petitioners submitted an application to the respondent Corporation on 29.01.2018 and requested to supply certain information under different heads. However, no such information was supplied to the concerned petitioner.

2.5 The petitioners have thereafter referred the total area of the land of the quarters and, thereafter, given market value of the quarters and it is stated that the value of the properties of the quarters is Rs.160 crores and out of the transaction of the redevelopment, respondent No.3 builder would earn Rs.200 crores.

2.6 It is further stated the respondent issued notices to the petitioners on 23.05.2018 pointing out that the residential premises of the petitioners have become unsafe for human inhabitation and, therefore, the petitioners shall demolish the construction by their own, failing which, the Corporation will Page 5 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT undertake the said exercise at the cost of the petitioners. It is the say of the petitioners that the respondent Corporation has issued notices with malafide intention and in fact, the facts stated in the said notices are not correct. It is also stated that the headstrong persons of respondent No.3 are moving around the area and asking to sign the contract. The petitioners have therefore filed the petition challenging the Scheme of redevelopment framed by the respondent State Government and also prayed that the petitioners may not be removed from the premises held, owned, possessed and occupied by them without following due process of law.

3. Heard learned advocate Mr.B.M. Mangukiya for the petitioners, learned Senior Advocate Mr.Kamal Trivedi assisted by learned advocate Mr.K.V. Gadhia appearing for respondent No.2 Corporation, learned advocate Mr.B.T. Rao for respondent No.3 and learned Senior Advocate Mr.Anshin Desai assisted by learned advocate Mr.Rutul Desai for respondent Nos.4 to 142.

4. Learned advocate for the petitioners mainly contended as under:

4.1 There is no registered association of the flat owners of the quarters. Unregistered association of persons has no right to represent the interest of all the members, who have not given their consent. The consent, even assumed to have been given by 60% and today 76%, is of no consequence since, by such Page 6 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT consent, neither the said association acquires any right or becomes competent to acquire a title of dissenting members and reconvey the titles to the allottees in newly redeveloped apartments. If the property is lost, the deed of titles becomes redundant and noneffective.

4.2 The Scheme in question does not provide the authority either to acquire the title of the superstructure from the holder thereof and to reconvey the title in favour of the allottees in redeveloped apartments. As per the Deed of Conveyance executed in favour of the petitioners, each allottees of flat is the absolute owner of the flat so described in the four bounds of the sale deed and co owners of all other facilities including the open vacant land as well. The newly redeveloped allotment by the owner would not be started by any Deed of Conveyance, therefore, allottees are not getting any titles over newly allotted flats in absence of any Deed of Conveyance. In absence of a Deed of Conveyance, no title is being obtained by the allottee in view of the developed apartment.

4.3 Neither the respondent Corporation nor respondent No.3 redeveloper acquires the title even temporarily of any of the piece of land or the constructed premises sought to be demolished by any procedure known to law. Therefore, respondent Nos.2 and 3 are not competent to convey any title to the allottees of newly developed apartment.

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4.4 No Policy can be framed by the respondent State Government, which is contrary or inconsistent to any statutory rules or statutes enacted by the competent Legislature. The Scheme in question is inconsistent and contrary to the various provisions of the Transfer of Properties Act, Registration Act and the Act of 1973. The statutory requirement of transferring the title in any immovable properties worth more than Rs.100/ is required to be reduced in writing on the stamp paper of the appropriate value and the same is required to be registered under the provisions of the Transfer of Properties Act read with Registration Act. Thus, the respondent State Government while exercising its administrative powers is not competent to frame the Scheme, which is contrary to the statutory provisions of various statutes enacted by the Legislature. Thus, the Scheme framed by the State Government is ultra vires.

4.4 The contentions of the respondents that the petitioners have approached at belated stage as well as the petitioners are in minority, are not sustainable. It is submitted that the Scheme is not implemented qua the petitioners and the petitioners were never taken into confidence. Even the decision rendered by this Court reported in the case of Rashmikaben Vikramkumar Patel Vs. Gujarat Housing Board reported in 2019(1) GLH 552, upon which, reliance is placed by the respondents would not be applicable as this Court has not examined the scheme Page 8 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT framed by the respondent State Government.

4.5 Learned advocate Mr.Mangukiya has placed reliance upon the following decisions in support of his contentions:

1. State of U.P. Vs. Singhara Singh and others reported in AIR 1964 SC 358

2. Gujarat Electricity Board Vs. Girdharlal Motilal and another reported in AIR 1969 SC 267

3. Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and others reported in 2002(1) SCC 633

4. Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and others reported in 2003(2) GLR 1154

5. Laxminarayan R. Bhattad and others Vs. State of Maharashtra and another reported in 2003(5) SCC 413

6. Pune Municipal Corporation and another Vs. Promoters and Builders Association and another reported in 2004(10) SCC 796

7. Veerendra Kumar Dubey Vs. Chief of Army Staff and others reported in 2006(2) SCC 267

8. Kerala Samsthana Chethu Thozhilali Union Vs. State of Kerala and others reported in 2006(4) SCC 327

9. Pune Municipal Corporation and another Vs. Page 9 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT Kausarbag Cooperative Housing Society Limited and another reported in 2014(15) SCC 753

5. Learned Senior Advocate Mr.Kamal Trivedi appearing for respondent No.2 Corporation mainly submitted as under:

5.1 The present petition is required to be dismissed only on the ground of delay in filing the petition.

It is submitted that out of 208 flat holders in the quarters, 128 members had given their consent on 24.08.2016. Thereafter, bids were invited and the bid of the highest bidder i.e. respondent No.3 was accepted. Tripartite Agreement was also entered into on 06.10.2017 and, thereafter, the petition is filed in August, 2018. Hence, on the ground of delay alone, the petition be dismissed.

5.2 The petitioners have initially prayed that the petitioners may not be removed from the dwelling units, which they are occupying. However, when the respondent Corporation has filed reply, as an afterthought the petitioners moved a draft amendment whereby the petitioners challenged the Scheme.

5.3 The Scheme was framed by the State Government on 11.02.2016. As per the said Scheme, Public Housing Schemes which are more than 20 years old or in dilapidated condition wherein land is owned by the Urban Authorities can opt for redevelopment. As per Page 10 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT the Scheme, 140% carpet area is to be given to each of the flat holder and the redeveloper has to redevelop the Scheme free of costs. Further, the redeveloper has to provide transit accommodation/rent and also maintain the premises for seven years. As per the said Scheme, process may be initiated by the association or the concerned public authority. The consent of 60% members is mandatory for any quarters/association, if they want to go for redevelopment. The procedure of inviting tender is also provided in the scheme.

At this stage, it is contended that the land belongs to the respondent Corporation. The learned Senior Advocate has placed reliance upon FormF issued under the Gujarat Town Planning and Urban Development Act, 1976. It is submitted that it is a Public Housing Scheme wherein the land is owned by the respondent Corporation. It is also submitted that the quarters were built in 1979 and the same are in dilapidated condition and, therefore, the association initiated the process in the year 2016 with the consent of 128 members out of 208 members. Hence, after obtaining consent of 60% of the members, the request was made for redevelopment. Accordingly, the appropriate resolution was passed by the respondent Corporation and, thereby, decided to float a tender. Public notice was given on 15.07.2016 in the newspaper and the tender was floated. Thereafter, the tender of the highest bidder was accepted on 30.05.2017 and Tripartite Agreement was executed on Page 11 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT 06.10.2017. Thereafter, respondent No.3 redeveloper also executed agreements with individual consenting members and has started paying rent of Rs.5,000/ per month to all such members.

5.4 At this stage, it is also contended that as on date, 158 members have signed the agreements and also vacated the quarters which brings the percentage to almost 76%. Thus, as per the newly inserted Section 41A of the Act of 1973, there are more than 75% members who have signed the agreements.

5.5 Section 19 of the Act of 1973 would not be applicable in the present matter in light of PartII of Sections 17, 18 and 26 of the said Act, as no declaration is ever made by the association. At the best, the petitioners have possessory interest in the property of the common interest, but without there being any vested right of whatsoever nature.

5.6 The provisions of Transfer of Properties Act and the Registration Act would also not be applicable as this is nothing but an arrangement whereby the petitioners will get 2 BHK apartments newly constructed with 2 bathrooms etc. as against 40 years old 1 BHK apartments in the same premises. It is specifically stated that there is no transfer or acquisition taking place.

5.7 It is further submitted that the Scheme was challenged earlier in the case of Rashmikaben Page 12 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT Vikramkumar Patel Vs. Gujarat Housing Board (supra) before this Court and this Court has not interfered with the said scheme. The said decision attained finality.

5.8 Even as per Section 41A of the Act of 1973, Policy can be framed by the State Government. Hence, the State Government is competent to frame the scheme.

5.9 Property is not permanently transferred as alleged but it is to be transferred for a temporary period till the process of redevelopment is over.

5.10 Process of law as per the scheme has been followed by the respondent Corporation and after the process of redevelopment is over, 140% more carpet area will be given to each of the flat holders and, therefore, the submission canvassed by the learned advocate for the petitioners may not be accepted.

5.11 The issue involved in the present petition is squarely covered by the decision rendered by this Court in the case of Rashmikaben Vikramkumar Patel Vs. Gujarat Housing Board (supra).

6. Learned advocate Mr.B.T. Rao appearing for respondent No.3 has mainly contended as under:

6.1 The respondent State has floated the Scheme for redevelopment of public housing by resolution dated Page 13 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT 11.02.2016, which is applicable to the public authority i.e. Nagarpalika, the Municipal Corporation and Gujarat Housing Board. The Scheme is for reconstruction of housing which are in dilapidated condition on account of passage of time. The quarters have been constructed in the year 1979 by respondent No.2 Corporation with the financial aid of HUDCO. The construction is very old and is in dilapidated condition.

6.2 60% of the members of the quarters have jointly submitted an application before respondent No.2 on 19.03.2016 for availing redevelopment scheme.

Respondent No.2 placed the matter before the concerned committee on 14.07.2016. In the said committee, there are 12 members and the said committee approved that 208 flats of the quarters should be redeveloped under the Scheme. Thereafter, the majority of the members of the association submitted the consent letters and other necessary documents to respondent No.2. Respondent No.2 published Etender inviting bids for redevelopment of the aforesaid quarters. Advertisement was also published in daily newspaper on 15.07.2016, pursuant to which, respondent No.3 filled up the tender and submitted an offer. As the bid of respondent No.3 was highest, the same was accepted. Thereafter, Tripartite Agreement was executed between the concerned parties.

6.3 Respondent No.2 has constructed the flats in the year 1979 for the quarters and each flat is having Page 14 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT area of 36.54 sq. meters as against which respondent No.3 will give total area of 55.99 sq. meters, which consists of living room, two bedrooms, kitchen, wash area, projection, passage etc. Thus, respondent No.3 will give 140% more carpet area to each of the flat holders as compared to the existing construction. Apart from construction of 208 quarters, respondent No.3 has offered 76 flats to the respondent Corporation and during the transit period i.e. till the construction is over and possession of the flat is given to the respective flat holders, respondent No.3 has to pay rent of Rs.5000/ per month to each of the flat holders.

6.4 158 flat holders have executed agreement with present respondent No.3 and Tripartite Agreement is also entered into between the concerned parties in October, 2017. It is further submitted that respondent No.3 will bear the entire cost of reconstruction and after completing the construction of the new units, respondent No.3 will maintain the same for 7 years as per the Scheme of the Government.

6.5 From the record, it is revealed that the land belongs to respondent No.2 and respondent No.2 has only sold the flat by redevelopment scheme under PPP model. There is no question of transfer of ownership and it is only the redevelopment wherein the members are temporarily shifted from their existing place to another place. There is no requirement of registration of documents because the holders of the Page 15 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT flats are not giving any ownership of the place nor they are deprived of their rights. It is, therefore, contended that there is no violation of provisions of the Transfer of Properties Act or the Registration Act as alleged.

6.6 Till date, respondent No.3 has paid Rs.1,89,60,000/ by way of rent. Over and above the same, respondent No.3 has incurred other expenses also and it is not correct on the part of the petitioners to say that respondent No.3 will get more than Rs.200 crores. No details are given by the petitioners in support of the said contention.

6.7 The High Court cannot sit in an appeal over the decision of the Government and power of judicial review is very limited. The Court can examine only the decision making process and if it is just and proper and if it is in the benefit of the members, the High Court should not interfere with the said decision.

6.8 Learned advocate has placed reliance upon the decision rendered by the Honourable Supreme Court in cases of Balasaheb Arjun Torbole and others Vs. Administrator and Divisional Commissioner and others reported in 2015(6) SCC 534 and in the case of Rashmikaben Vikramkumar Patel Vs. Gujarat Housing Board (supra).

7. Learned Senior Advocate Mr.Anshin Desai Page 16 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT appearing for respondent Nos.4 to 142 made the following submissions:

7.1 The petitioners have raised highly disputed questions of facts and, therefore, this Court may not entertain this petition while exercising powers under Article 226 of the Constitution of India. Further, there is a gross delay in filing the petition and, therefore, the petition be dismissed only on the ground of delay. The petitioners had originally filed the petition without impleading the affected parties, who are proper and necessary parties and, therefore, on the ground of nonjoinder of parties also, the petition deserves to be dismissed. Out of 208 occupants and owners of respective flats, 158 occupiers have executed consent agreements and have accepted the redevelopment scheme whereas the petitioners are only 27 persons and, therefore, the case of the petitioners may not be entertained.

7.2 The petitioners have not challenged the notice issued under Section 264 of the Gujarat Provincial Municipal Corporations Act, 1949 ("the GPMC Act" for short) issued by respondent No.2.

7.3 The petitioners have not pointed out from any document that they are the owners of the land on which the flats are constructed. In fact, the ownership of the land belongs to respondent No.2 Corporation. Further, there is no acquisition of land and there is no permanent displacement of dwelling Page 17 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT units of the petitioners and even there is no change of location of the land on which the new dwelling units are to be constructed and, therefore, there is no violation of Article 300A of the Constitution of India as contended by the petitioners.

7.4 Objectives of the Scheme of 2016 floated by the respondent State Government are referred. Various provisions of the Scheme are also referred by the learned Senior Advocate.

7.5 As per Section 41A of the Act of 1973, now more than 75% of the members have already given their consent. Tender process and acceptance of bid of respondent No.3 are not challenged by the petitioners and, therefore, it is not in dispute that due process of law has been followed by the respondent Corporation.

7.6 As per the Tripartite Agreement, construction work is to be concluded within a period of two years. However, because of the pendency of this petition and because of the stay granted by this Court, more than 158 members of the quarters are waiting for the newly constructed flats. 40% more area is given to the original allottees and redeveloper - respondent No.3 has to maintain the property for a period of 7 years.

8. Learned Assistant Government Pleader Mr.K.M. Antani supported the contentions raised by the learned advocates appearing for the other Page 18 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT respondents. Learned Assistant Government Pleader has placed reliance upon the provisions contained in Article 47 of the Constitution of India. Learned Assistant Government Pleader referred the impugned Scheme dated 11.02.2016 floated by the respondent State Government and, thereafter, submitted that relying upon the Scheme floated by the Central Government, the State Government has floated the impugned Scheme and, therefore, when the petitioners have not challenged the Scheme framed by the Central Government, this Court may not interfere with the Scheme framed by the State Government. It is further contended that the respondent State is empowered to issue the Policy and framed the Scheme while exercising administrative powers and there is no violation of provisions of the Transfer of Properties Act, Registration Act or the Act of 1973 as alleged by the petitioners and, therefore, this Court may not interfere with the said Scheme.

8.1 Learned Assistant Government Pleader has also placed reliance upon the amended provision i.e. Section 41A of the Act of 1973 and submitted that the said provision is not challenged by the petitioners in the present petition.

8.2 Learned Assistant Government Pleader has placed reliance upon the decision rendered by the Honourable Supreme Court in the case of Veerendra Kumar Dubey Vs. Chief of Army Staff (supra) and more particularly referred Paragraph15 thereof and in the case of Page 19 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT Sant Ram Sharma Vs. State of Rajasthan and others reported in AIR 1967 SC 1910 and more particularly Paragraph7 thereof.

9. Having heard learned advocates appearing for the parties and having gone through the material placed on record, following important facts would emerge:

(a) In the year 1979, respondent No.2 Corporation with the financial assistance by HUDCO constructed public housing scheme popularly known as "Arvind Maniyar Quarters" consisting of 13 blocks each consisting 16 flats (total 208 flats). Out of 208 flat holders, the present petition has been filed by the 27 flat holders whereas more than 158 flat holders have given their consent for redevelopment.

(b) The respondent State introduced Public Housing Redevelopment Scheme, 2016 on 11.02.2016, under which, constructions which were in dilapidated condition and where the public housing scheme which were more than 20 years old, were eligible for redevelopment under the said Policy.

(c) As per the Scheme, 60% of the members of the quarters have jointly submitted an application before respondent No.2 on 19.03.2016 for availing benefit of redevelopment Scheme. Respondent No.2 placed the matter before committee, which consists of 12 members, on Page 20 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT 14.07.2016. The said committee approved that 208 flats of the quarters should be redevelopment under the Scheme. Thereafter, majority of the members of the association of the quarters submitted consent letters and other necessary documents to respondent No.2.

(d) Thereafter, respondent No.2 issued advertisement in daily newspaper in July, 2016 and invited tenders.

(e) On 30.05.2017, minutes of the meeting held on 17.05.2017 were recorded wherein it is stated that two bidders offered for redeveloping the quarters and out of which, respondent No.3 herein, who has offered to construct 70 dwelling units for Rajkot Municipal Corporation - respondent No.2 over and above the redevelopment of flats in the quarters, was selected. It is also observed that existing owners and occupiers of the Scheme will be benefited with an extra area of 40% carpet area over and above the existing area. It is not in dispute that at present, each flat is having 36.54 sq. meters as against which, respondent No.3 will give total area of 55.99 sq. meters, which consists of living room, two bedrooms, kitchen, wash area, projection, passage etc. Thus, each flat holder will get 140% more carpet area. Further, during the transit period i.e. till the construction is over and possession is given to the respective Page 21 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT flat holders, respondent No.3 has to pay rent of Rs.5000/ per month to each of the flat holders and maintain flats for 7 years and respondent No.3 will bear entire cost of reconstruction.

(f) Tripartite Agreement is also entered into between the concerned parties in October, 2017. The present petition is filed by the petitioners in August, 2018.

10. In the aforesaid facts of the present case, if the contentions raised by the learned advocate for the petitioners are examined, it is revealed that the petitioners have challenged the Scheme mainly on the ground that the same is in violation of the provisions of the Transfer of Properties Act, Registration Act and the Act of 1973. However, for considering the said contention, if the documents placed on record are carefully examined, then it is revealed that the land upon which flats are constructed belongs to respondent No.2 Corporation. The said aspect is reflected from FormF issued under Gujarat Town Planning and Urban Development Act, 1976. The said FormF was produced by the learned Senior Advocate Mr.Kamal Trivedi appearing for respondent No.2 at the time of hearing of this petition. Thus, it is a public housing scheme wherein the land is owned by respondent No.2 Corporation. Thus, by way of Hire Purchase Agreement, the petitioners have purchased the superstructure on the land i.e. flat. There is no question of transfer of Page 22 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT ownership during the process of redevelopment and the members of the quarters are temporarily be shifted from their existing place to another place. Therefore, there is no requirement of registration of documents because the holders of the flats are not giving any ownership of the flats nor they are deprived of their property rights. Thus, there is no violation of provisions of the Transfer of Properties Act or Registration Act as alleged by the petitioners.

11. At this stage, it is also required to be noted that learned advocate for the petitioners has placed reliance upon Section 19 of the Act of 1973. However, the said provision would not be applicable in the facts of the present case in view of the provisions contained in Sections 17, 18 and 26 of the Act of 1973, as no declaration is ever made by the association. Thus, it is not correct on the part of the petitioners to contend that the Scheme in question is ultra vires.

12. It is not in dispute that as per the Scheme of 2016 floated by the respondent State, more than 60% of the members have given their consent for the purpose of redevelopment as the quarters are approximately 40 years old. Learned advocates appearing for the respondents have referred the photographs of the quarters, which are placed on record at Pages145 to 150 and 200 to 202 of the compilation. If the said photographs are carefully Page 23 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT seen, it can be said that the quarters are very old and in dilapidated condition. It is also not in dispute that the respondent Corporation issued notice under Section 264 of the GPMC Act to the petitioners and the petitioners have not challenged the said notice in the present petition or by filing any other proceedings. Looking to the condition of the quarters, the association of the majority of the members i.e. more than 76% of the members have given their consent for redevelopment and after following the procedure prescribed under the Scheme, the bid of the highest bidder was accepted and Tripartite Agreement is executed between the concerned parties.

13. It is pertinent to note that the petitioners have not challenged the Tripartite Agreement entered into between the concerned parties and have not challenged the tender process in the present petition and when the procedure prescribed under the Scheme has been followed by the respondent Corporation, the contention raised by the petitioners cannot be accepted.

14. It is also pertinent to note that the petitioners are not deprived of their any property right nor any human right of the petitioners has been violated because of the process of redevelopment. It is not in dispute that as per the redevelopment scheme and as per the Tripartite Agreement entered into between the concerned parties, 140% more area would be given to the members of the quarters. At Page 24 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT present, each flat is having area of 36.54 sq. meters, as against which, respondent No.3 will give total area of 55.99 sq. meters, which consists of living room, two bedrooms, kitchen, wash area, projection, passage etc. Thus, respondent No.3 will give 140% more carpet area to each of the flat holders as compared to the existing construction. Apart from construction of 208 quarters/flats, respondent No.3 will give 76 flats to respondent No.2 Corporation and during transit period i.e. till the construction is over and possession of the flat is given to the respective flat holders, redeveloper - respondent No.3 has to pay rent Rs.5000/ per month to each of the flat holders and respondent No.3 will maintain new units for a period of 7 years. Looking to this aspect, it cannot be said that the petitioners are deprived of any property right as contended, nor any of the human rights of the petitioners is violated.

15. Now even as per the amended provision i.e. Section 41A of the Act of 1973, any work in relation to the redevelopment of flat can be carried out after obtaining consent of not less than 75% of the flat owners of such building. Section 41A of the Act of 1973 provides as under:

"Section 41A : Redevelopment of flats and apartments.

Notwithstanding anything contained in this Act, any work in relation to the redevelopment of a Page 25 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT building can be carried out on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75 per cent. of the flat owners of such building:

Provided that, in respect of such building,

(i) a period of twenty five years must have been completed, from the date of issuance of permission for development by the concerned Authority; or

(ii)the concerned Authority has declared that such building is in ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof.

Explanation: For the purpose of this section, the expression "redevelopment" shall have the meaning as assigned to it in relevant Development Control Regulations.".

16. It is further reflected from the record that for the purpose of redevelopment of the quarters, association has submitted an application before respondent No.2 along with the consent letters of majority of the members and decision is taken in the meeting of respondent No.2 Corporation, which was held on 14.07.2016. Minutes of the said meeting is placed on record at Page101 of the compilation. From the minutes of the meeting, it is clear that there were 12 officers of various departments remained present in the said meeting and, thereafter, decision was taken in the larger interest of the members of the quarters. Thereafter, advertisement was published in the daily newspaper inviting tenders for the purpose of redevelopment of quarters. The said Page 26 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT advertisement was issued in July, 2016. Tender of respondent No.3 was accepted and Tripartite Agreement was executed in October, 2017. Majority of the members have vacated their premises pursuant to the consent given by them and, thereafter, at belated stage, the petitioners have preferred this petition in August, 2018. Thus, looking to the conduct of the petitioners also, they are not entitled to get relief as prayed for in the present petition.

At this state, it is pertinent to note that when the petition was filed in August, 2018, the petitioners have not challenged the Scheme of 2016 framed by the respondent State. However, after the reply is filed by the respondent Corporation, by way of amendment, the Scheme has been challenged. Thus, it is clear that this is nothing but an afterthought on the part of the petitioners, which is also required to be taken note of while deciding this petition.

17. At this stage, decisions upon which reliance is placed by the learned advocate for the petitioners are also required to be kept in view.

17.1 In the case of Veerendra Kumar Dubey Vs. Chief of Army Staff (supra), the Honourable Supreme Court has observed that administrative instruction cannot made inroads into statutory rights of an individual. The Honourable Supreme Court has observed in Paragraph17 as under:

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"17. The procedure presented simply regulates the exercise of power which would, but for such regulation and safeguards against arbitrariness, be perilously close to being ultra vires in that the authority competent to discharge shall, but for the safeguards, be vested with uncanalised and absolute power of discharge without any guidelines as to the manner in which such power may be exercised. Any such unregulated and uncanalised power would in turn offend Article 14 of the Constitution."

17.2 In the case of Kerala Samsthana Chethu Thozhilali Union Vs. State of Kerala (supra), the Honourable Supreme Court observed that a rule is not only required to be made in conformity with the provisions of the Act whereunder it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by the Parliament of the State Legislature.

17.3 In the case of Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and others (supra), the Honourable Supreme Court has observed that where a statute vests certain power in an authority to be exercised in a particular manner, that power has to be exercised only in that manner. The exercise of the same in a manner contrary to that prescribed is impressible.

17.4 In the case of Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and others (supra), the Honourable Supreme Court has observed that the Page 28 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT statute should be read as a whole and unless absolutely necessary, no part should be rendered surplusage or redundant.

17.5 In the case of Pune Municipal Corporation Vs. Kausarbag Coop. Housing Society Limited (supra), the Honourable Supreme Court has observed in Paragraph17 as under:

"17. Underlying the arguments advanced on behalf of the appellants is a fundamental issue that would require a brief mention. The present case discloses a somewhat disturbing course of action adopted by the State in seeking to disown and challenge its own professed standards laid down in the form of a DCR by tangentially contending the same to be incompetent in law. Such a course of action by the State seeking to depart from its self professed norms is neither permissible nor would the Court require to consider the same. The DCR governing the grant of TDR though may have gone beyond what is contemplated under the MRTP Act, the State and its authorities cannot be permitted to request the Court to collaterally adjudge the validity of the said norms laid down by the State itself. It is for the State to effect necessary corrections as deemed proper and not search for an escape valve through a judicial verdict. Such a course of action is jurisprudentially impermissible. So long as the DCR holds the field all executive actions must be within the four corners thereof. We can usefully remind ourselves of the observations of Justice Frankfurter in Viteralli V/s. Seaton, 3.L Ed.2d. 1012, approved in R.D. Shetty V/s. International Airport Authority, (1979) 3 SCC 489:

"An executive agency must be rigorously held to the standards by which it professes its action to be judged. ..Accordingly, if dismissal from employment is based on a Page 29 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT defined procedure, even though generous beyond the requirements that bind the agency, that procedure must be scrupulously observed...This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."

17.6 In the case of Gujarat Electricity Board Vs. Girdharlal Motilal and another (supra), the Honourable Supreme Court has held that the Legislature has prescribed that the power is to be exercised in a particular manner and it must be exercised in that manner and in no other way.

18. This Court cannot dispute the proposition of law laid down by the Honourable Supreme Court in the aforesaid decisions, upon which, reliance is placed by the learned advocate for the petitioners. However, as discussed hereinabove, in the facts of the present case, the aforesaid decisions would not render any assistance to the petitioners.

19. In the case of Margaret Almeida and others Vs. Bombay Catholic Cooperative Housing society Limited and others reported in 2013 (6) SCC 538, upon which, reliance is placed by the learned advocate Mr.Anshin Desai for respondent Nos.4 to 142, the Honourable Supreme Court has observed in Paragraphs36 and 37 as under:

"36. As noticed above, the Catholic Society comprises of about 745 members. Out of these Page 30 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT members there were originally 54 tenantmembers and 15 tenants simplicitor (the tenants simplicitor, were not members of the Catholic Society). After the coming into force of the Cooperative Societies Act, all the tenants (including the tenantmembers, as also, the tenants simplicitor) became members of the Catholic Society. It is therefore, that the strength of the tenantmembers at the present juncture is 69. The relief sought in the two suits (i.e. Suit no.144 of 2010 and Suit no.145 of 2010) is a claim for rights,on account of being tenant members. It is important to point out, that the aforesaid suits were filed by only 15 tenantmembers. It is these 15 tenant members, who had pursued their prayer for interim relief, before the High Court. It is not a matter of dispute, that the suits referred to above, were not filed in a representative capacity, and as such, it would be incorrect to assume, that the aforesaid suits can be considered to have been filed by all the 69 tenantmembers. The correct factual position is, that out of 69 tenant members only 15 tenant members had filed the aforesaid suits. The number of tenantmembers who were pursuing their remedy through the aforesaid suits, has diminished further before this Court, inasmuch as Special Leave Petition (C) nos.3084749 of 2012 comprises of 8 petitioners only. It is therefore apparent, that 7 of the plaintiffs in the suits, have now not joined hands with those who have approached this Court, (and are now appellants, before this Court). The instant factual narration however proceeds further, inasmuch as, IA nos.1719 of 2012 (arising out of SLP (C) nos.3084749 of 2012) have been filed by three of the petitioners (now appellants) i.e., petitioner/appellant nos.2, 3 and 4, i.e., Jennifer Pegado, Elwyn D'cruz and Don Donato D'Silva, with a prayer for transposing them as respondents, as they do not want to pursue the matter any further (along with the remaining petitioners).

37. In view of the prayer made in the aforesaid Page 31 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT interlocutory application, it is apparent, that the strength of the tenantmembers who had initiated the civil suits, referred to above, has successively diminished from 15 in the civil suits, to 8 at the special leave petition stage, and further to 5 at the appellate stage (after three of the petitioners have prayed for transposing them as respondents). Keeping in mind, that the total tenantmembers are 69, and the relief sought in the suits, and now through the instant petitions/appeals (which are filed on the strength of being tenantmembers), has diminished to 5, it would be inappropriate to consider the grant of any interim relief, in the absence of any clear determination, that the claim pressed by the appellants before us, is at the behest of at least a simple majority of the tenantmembers. Out of 69 tenantmembers 35 would constitute a simple majority. The instant petitions/appeals are now being pursued by only 5 tenantmembers. In the aforesaid view of the matter, the acceptance of the prayer made by the tenantmembers for interim directions, would not only be inappropriate but would be unthinkable."

20. In the case of Muniraj R. Kurmi and others Vs. State of Maharashtra and others reported in 2017(5) SCC 204, the Honourable Supreme Court has observed and held in Paragraphs7 to 9 as under:

"7. We have given our anxious consideration to the submissions made at the Bar. It is common ground that out of a total of 393 tenements holders, as many as 357 have already given their consent for redevelopment of the area. It is also common ground that as many as 229 tenements already stand vacated. According to Mr. C.U.Singh, learned senior for respondent No. 5, 74 other tenement holders were resisting eviction from the tenements occupied by them against whom proceedings under Section 95A have been instituted by the competent authority. He submits that according to his information as Page 32 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT many as 61 orders of eviction have already been passed in those proceedings but the appellants alone appear to have challenged the said eviction orders.

8. It is not in dispute that the rehabilitation building have already been constructed to the height of ten storeys in four different blocks comprising as many as 334 flats. According to Mr. Singh, construction of the remaining blocks including the commercial ones could not be commenced because of the failure of the appellants and similar other occupants to vacate the premises in their occupation. According to Mr. Singh, the respondentdeveloper is paying an amount of Rs.40,00,000/ p.m. towards rental to such of the tenament holders as have vacated and are occupying the accommodation on rent elsewhere instead of the transit accommodation offered by the respondent. The amount spent on the construction of the flats as at present is estimated at Rs.60,00,00,000/. It is in this backdrop that we asked learned counsel for the appellants if the appellants would like the issues now raised before us to be considered by the High Court subject to the appellants vacating the tenements in their occupation for otherwise, we saw no reason to interfere with the order. Learned counsel for the appellants submit that while the appellants would vacate the tenements under their occupation to avoid any further delay in the completion of the project, the issues which have been raised by the appellants not only as to the extent of facilities but also as to the extent of accommodation are entitled to need be be examined by the High Court upon remand. It was also contended that the High Court could be requested to examine the question whether the appellants are entitled to any benefit under Regulation 33(5) of the Development Control Regulations. Mr. Singh was not averse to any such examination by the High Court subject to all just exceptions and without prejudice to the contentions that may be available to the parties.

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9. In the circumstances, therefore, we dispose of these appeals with the following directions:

9.1 The appellants shall vacate the premises in their respective occupation as far as possible within eight weeks from today failing which the competent authority shall be free to take such action as may be necessary ans permissible in law.

9.2 The question whether the appellants are entitled to any additional facilities under Regulation 33(5) of the DCR or any additional advantage or concession are left open to be examined by the High Court.

9.3 The High Court would also examine the issues to which we have adverted in our Order dated 23.07.2015 uninfluenced by the observations made by it in the impugned order in the earlier round of litigation.

We however express no final opinion in regard to the merits of the contentions that may be open to the parties on those issues. Needless to say that upon vacation of the premises in their occupation, the appellants shall be entitled to claim rental as per the development agreements. No costs."

21. In the case of Rashmikaben Vikramkumar Patel Vs. Gujarat Housing Board (supra), this Court has considered the same scheme framed by the respondent State and, thereafter, observed in Paragraphs5 to 5.5, 10 and 17 as under:

"5. Learned Senior Advocate Mr.Anshin H. Desai appearing for respondent No.2 reiterated the submissions canvassed by the learned advocate Mr.Nirzar S. Desai on the points of nonjoinder Page 34 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT of proper party, suppression of material facts by the petitioners and with regard to the submission that the petitioners have not approached this Court with clean hands. It is submitted that the petitioners have filed Special Criminal Application alleging that respondent No.2 has given threat but no complaint or petition is filed alleging that somebody has forged the signatures of the petitioners on the document, which is produced at Page109 of the compilation. It is submitted that in fact, one of the petitioners on behalf of all has signed the document at Page109 of the compilation and given the consent for the purpose of redevelopment and, therefore, the submission canvassed on behalf of the petitioners that the signature at Page109 is not of one of the petitioner, is nothing but an afterthought. The petitioners have, at no point of time, objected for redevelopment by addressing any communication to respondent No.3 or to respondent No.1 or to any other authority. Thus, while considering the submissions of the petitioners, their conduct is also required to be considered by this Court.

5.1 Learned Senior Advocate Mr.Anshin H. Desai further submits that there is no dispute with regard to the proposition of law laid down by the Honourable Supreme Court that the property right is considered to be a human right and the person cannot be deprived of his right without following procedure of law. However, the said decision would not be applicable to the facts of the present case. It is submitted that in the present case, the petitioners are not deprived of their property right but in fact, they will get the property after redevelopment as per the tripartite agreement entered into between the respondents and as per the plan sanctioned by the competent authority.

5.2 Learned Senior Advocate thereafter submits that the petitioners have not Page 35 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT challenged the tripartite agreement and the decision rendered by the Bombay High Court would not be applicable to the facts of the present case.

5.3 Learned Senior Advocate for respondent No.2 would further contend that respondent No.1 Board has awarded the work order and entered into tripartite agreement with respondent No.2, after following the procedure and the petitioners have not challenged the procedure adopted by respondent No.1 for the purpose of redevelopment. It is submitted that as per the Guidelines of 2016 issued by the State Government for redevelopment, consent of 60% members is required. In the present case, though the petitioners have given the consent in the meeting, thereafter, at this stage, they are objecting for redevelopment. No other members have objected for redevelopment.

5.4 It is contended that respondent No.2 has spent more than Rs.7.5 crores till today and the estimated project cost is more than Rs.85 crores. It is submitted that as per the tripartite agreement, project is required to be completed by respondent No.2 within time frame of thirtysix months and, therefore, the reliefs prayed for by the petitioners may not be granted by this Court. At this stage, it is submitted that as per the tripartite agreement, the petitioners will be paid a sum of Rs.18,000/ towards rent per month to each shop owned by the petitioners and Rs.3 lacs per shop towards shifting charges and it is not in dispute that the petitioners have already shifted their business at Gota and, therefore, they will not suffer any hardship because of ongoing demolition. It is further contended that once the redevelopment work is over, the petitioners will be given a shop against each shop having 25% more area than the actual area of the shop at the time of Page 36 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT allotment, which would go to show that each and every aspect of hardship that the shop owner may face has been taken care of and, therefore, this Court may dismiss the petition.

5.5 Learned Senior Advocate Mr.Anshin H. Desai has placed reliance upon the decisions rendered by the Honourable Supreme Court in the case of Margaret Almeida and others vs. Bombay Catholic Cooperative Housing Society Limited and others reported in (2013) 6 SCC 538 and in the case of Muniraj R. Kurmi and others vs. State of Maharashtra and others reported in (2017) 5 SCC 204.

xxx xxx xxx

10. From the material placed on record, it is clear that the petitioners have never objected for redevelopment before any of the authorities and for the first time, in the present petition, an objection is raised against the redevelopment. It transpires from the record that at the relevant point of time, the petitioners were carrying on their business in the shops situated at Ekta Apartment and the members of Block No.28 have started vacating their premises in JuneJuly, 2018 and respondent No.2 has started demolition work in August, 2018 in other blocks. In spite of that, the petitioners have not raised any objection and at the last moment, in October, 2018, the present petition is filed. Thus, looking to the conduct of the petitioners, they are not entitled to claim the equitable reliefs prayed for in the present petition.

xxx xxx xxx 17 From the tripartite agreement produced on record, it is revealed that the petitioners and other shop owners will get Rs.18,000/ towards rent per month and Rs.3,00,000/ per shop Page 37 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT towards shifting charges. The petitioners will be given shop at the first floor against each shop having 25% more area than the actual area of the shop. Thus, when the petitioners will be getting property with 25% more carpet area and will be paid Rs.18,000/ towards rent per month during the period of redevelopment as well as shifting charges, this Court is of the view that the property right of the petitioners would not be affected.

This Court is of the considered view that in such redevelopment process when almost all the members except few have given their consent for redevelopment, at the instance of few members, majority members cannot be made to suffer. The construction of the building is very old and the building is damaged. Therefore, in the interest of the residents of such building, the decision of redevelopment is taken in good faith and in the interest of members of the building. Such process cannot be stalled at the instance of few members, who object for such redevelopment for their personal interest."

22. At this stage, it is pertinent to note that the aforesaid decision rendered by this Court in the case of Rashmikaben Vikramkumar Patel Vs. Gujarat Housing Board (supra), has attained finality and, therefore, the said decision would be binding to me.

23. In the case of Balasaheb Arjun Torbole and others Vs. Administrator and Divisional Commissioner and others (supra), the Honourable Supreme Court has observed in Paragraphs14, 15, 21 and 22 as under:

"14. Besides the statutory provisions and statutory regulations of 1991 which have been modified from time to time, the concerned Page 38 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT authority has also issued guidelines for the implementation of Slum Rehabilitation Scheme in Greater Mumbai and also circulars reflecting policy decisions. The guidelines, inter alia, indicate the procedure for submission, processing and approval of slum rehabilitation schemes. For the purpose of deciding the controversy at hand paragraphs 2, 3, 4, 5, 8 and 11 of clause IV relating to the procedure for submission indicate that 70% or more of the eligible hutment dwellers in a slum or pavement in a viable stretch at one place have to show their willingness to join slum rehabilitation scheme and come together to form cooperative society of all eligible hutment dwellers through a resolution to that effect. The chief promoter, office bearers and the members of the proposed society should collect the necessary documents and get the plot surveyed/measured and prepare map of the plot showing slum structures with the help of surveyors attached to the office of Additional Collector (Encroachment) or the Deputy Collector (Encroachment) of the zone.

15. The procedure for submission, processing and approval of slum rehabilitation schemes also contains a guideline that by undertaking the survey, information of the proposed members/slum dwellers should also be collected and Annexure II prescribed by SRA should be filled up so as to give the details of land occupied by the slum dwellers, number and type of structures such as residential, industrial etc. and the list of eligible and ineligible occupants and consent to join the scheme. The guidelines also disclose that earlier the procedure of filling up Annexure II format was required to be carried on by competent authorities but by way of subsequent simplification of procedure it is now required to be filled up by the promoter/cooperative housing society itself for submitting building proposal to SRA. The decision to search a competent developer to act as a promoter can be taken up by the proposed cooperative housing society of slum dwellers but Page 39 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT it has been clarified that the society itself or NGO/developer/owner can take up slum rehabilitation scheme as a promoter. The promoter has to appoint an architect to prepare the plans of the development of the slum area as per DCR 33(10). All required documents such as building plan, layout plan etc. along with Annexure I, Annexure II and Annexure III are to be submitted to SRA by the architect along with the application for approval of the slum rehabilitation scheme. The proposal so submitted is subjected to a prescrutiny by a designated engineer of SRA to ensure that it is complete with all documents and then the proposals are accepted. Thereafter the scrutiny of Annexures I, II and III begins in different wings such as Building Permissions, Eligibility Certification and Accounts & Finance respectively.

xxx xxx xxx

21. When in aggregate consent of 70% or more slum dwellers has been obtained, the essential purpose of slum rehabilitation scheme cannot be put to peril on the ground that certain procedures were not strictly followed or some steps were against procedures prescribed in the guidelines for preparation of Annexure II in a prescribed format. From the documents submitted and shown at the stage of hearing it has been noticed that even subsequent claims of some slum dwellers that they are eligible for rehabilitation have been verified and many have been allowed on the basis of relevant documents because it is not infrequent that at the time of one particular checking or verification some dwellers may be absent and might have gone to some other place. Clearly the process of preparation of the list described as Annexure II and its verification is meant to find out the claims of genuine slum dwellers who may be eligible for benefits under the slum rehabilitation scheme. Such beneficial provisions meant to ameliorate the poor Page 40 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT condition of slum dwellers, in our considered view, should not be jettisoned only on technical grounds or procedural infirmities unless the persons coming to the court and seeking relief through writ petition are able to show that they have suffered injustice or legal injury.

22. In the present case, the only legal injury to appellants as per submissions of Mr. Parikh is that if the private plots were treated as separate slum area, the residents of these plots alone could have formed and carried out development scheme through their own cooperative society and gained some advantages including monetary. Such a plea is too farfetched to establish legal injury to the appellants who claim to be slum dwellers and on such plea, in our considered view the appellants could not have been granted relief in writ jurisdiction which has been rightly denied to them, albeit for other reasons, after considering all their pleas on merits."

24. If the decision in the case of Rashmikaben Vikramkumar Patel Vs. Gujarat Housing Board (supra) is carefully seen, it is revealed that the facts were almost identical. This Court has specifically stated that the petitioners of the said petition are not deprived of their property right but they will get property after redevelopment as per the Tripartite Agreement entered into between the concerned parties. It was also observed by this Court that after the redevelopment process was started and number of members have vacated the premises, at last moment the petition was filed and, therefore, looking to the conduct of the said petitioners, they are not entitled claim equitable relief prayed for in the Page 41 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT said petition. It was also observed that in the redevelopment process when almost all the members except few have given their consent for redevelopment, at the instance of few members, majority members cannot be made to suffer. The construction of the building is very old and the building is damaged. Therefore, in the interest of the residents of such building, the decision of redevelopment is taken in good faith and in the interest of the members of the building. Such process cannot be stalled at the instance of few members, who object for such redevelopment for their personal interest.

25. As observed hereinabove, the quarters are approximately 40 years old and from the photographs placed on record, it is revealed that the same are in dilapidated condition and if the said flats are not demolished, there are all chances that at any time, accident may take place, which is dangerous to the life and property of the residents of the quarters. It has also come on record that approximately 158 members i.e. 76% of the members have vacated their premises and are residing at different places. Respondent No.3 developer is regularly paying Rs.5000/ per month by way of rent to such members and as pointed out by learned advocate Mr.Rao, respondent No.3 has incurred huge expenses. As per the Tripartite Agreement, the construction is to be made within a period of two years and because of the pendency of this petition and stay granted by this Page 42 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019 C/SCA/12374/2018 CAV JUDGMENT Court, the process of redevelopment is stopped.

26. The petitioners have failed to substantiate their allegation leveled in the memo of the petition that out of the transaction of redevelopment, respondent No.3 will earn more than Rs.200 crores. The said aspect is denied by the concerned respondents.

27. In view of the overall facts and circumstances of the present case, as discussed hereinabove, the petition deserves to be dismissed. Accordingly, the same is dismissed. The interim relief granted earlier is vacated forthwith.

(VIPUL M. PANCHOLI, J) piyush After the judgment is pronounced, learned advocate Mr.B.M. Mangukiya has requested to extend the stay granted by this Court for couple of weeks. The said request is opposed by learned advocate Mr.B.T. Rao for respondent No.3 and learned Assistant Government Pleader Mr.K.M. Antani for respondent No.1.

In view of the observations made in this judgment, the request is rejected.

(VIPUL M. PANCHOLI, J) piyush Page 43 of 43 Downloaded on : Fri Dec 27 23:48:49 IST 2019

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