Gujarat High Court
Sarojben Kiritbhai Shah Since Decd ... vs Ahmedabad Municipal Corporation on 23 January, 2023
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh Shastri
C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1075 of 2022
In
R/SPECIAL CIVIL APPLICATION NO. 8530 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In
R/LETTERS PATENT APPEAL NO. 1075 of 2022
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SAROJBEN KIRITBHAI SHAH SINCE DECD THROUGH HEIRS
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR YATIN OZA, Senior Advocate with MR AJIT S NAIR for
Appellants
MR SHALIN MEHTA, Senior Advocate with MS VISHWA G PATEL
for respondent No.9
MR JAL S UNWALA, Senior Advocate for RESPONDENT-
DEVELOPER
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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 23/01/2023
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. Present Letters Patent Appeal under Clause 15 of the Letters Patent is directed against the judgment and order passed by learned Single Judge dated 21.6.2022 in Special Civil Application No.8530 of 2019. Page 1 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023
2. Background of facts which has given rise to present Letters Patent Appeal are quoted hereunder:-
(1) Original petitioner is a registered Co-operative Housing Society, consisting of several residential units, total 11 residential complexes, in which 78 flats were constructed over the land at Jodhpur, Satellite, Ahmedabad way back in the year 1971. Said flats were constructed prior to almost more than 50 years, and were constructed by a Co-operative Housing Society, namely Swami Vivekanand Nagar Co-op. Housing Society Ltd.
pursuant to Building Permission granted in 1969. On account of passage of time and quality of construction, the condition of building deteriorated and said residential flats became dilapidated since several years and slabs practically in each block were deteriorated and have got damaged and internal steel frames in RCC slabs has also become damaged and are in such dangerous situation that even repair work is not possible to maintain its strength and realizing such structural damage of residential flats, general body of members of the society Page 2 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 resolved to go for redevelopment and for that purpose, an advertisement came to be issued on 8.9.2018. Pursuant to such advertisement, a developer namely Excel Life Space LLP and other developers approached the petitioner society. Negotiations took place and ultimately, petitioner society decided to go for such redevelopment work with Excel Life Space LLP - a developer of their society. Respondent - original petitioner informed Ahmedabad Municipal Corporation (for short 'Corporation') about such structural damage which requires immediate attention and as such, a request was made to extend permission. In response to that, authorized representative of original respondent No.1 made a spot visit on 12.12.2018 and realizing the position of construction prevailing of flats, a notice under Section 264 was issued on 15.12.2018 (one notice in common to whole society and one specifically to block No.D). By issuing such notice, respondent Corporation called upon the petitioner society to repair the damage under the supervision of Structural Engineer and submit necessary Page 3 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 structural stability certificate as well. (2) It is the case of the opponent society, who is original petitioner, that on request for structural stability report from one Shreeji Structurals and Structural Engineer they have clearly opined to demolish the building and to reconstruct building and a detailed report came to be submitted on 7.1.2019 attached along with the photographs and said report along with photographs are part of Annexure-IV. Original petitioner in addition to it has also got Non-Destructive testing done by M.K. Soil Laboratory and report of such laboratory has also clearly opined that property in question, i.e. flats are of about 45 years old and test result of rebound hammer and ultra- sonic pulse velocity tests indicate that quality of concrete/ building is very bad and doubtful and in turn, has also opined to get structural engineer's report at the earliest. Petitioner society then on 29.3.2019 submitted structural engineer report and soil test report to the respondent corporation and requested again to take necessary steps by submitting representation. But, then authorities did Page 4 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 not respond to the same but by passage of time, out of 78 members of petitioner society, 65 members have signed MoU and process for 9 other consenting members for signing MoU was under process as some of them are living abroad and as such, 74 members out of 78 have signed the notarized consent letter agreeing for redevelopment and overall consensus, almost in majority have generated for redevelopment instead of repairs. Original respondent Nos.5 to 9 initially did not agree for redevelopment, but then as on date of present Letters Patent Appeal, except one, who is respondent No.9.1, everybody has agreed for redevelopment.
(3) It is the case of original petitioner society that time and again, corporation was visited by members including filing of representations, lastly on 18.4.2019, corporation did not proceed ahead and in that situation, petitioner had to approach this Court since there was no action of any nature by respondent Corporation. Hence, Special Civil Application No.11945 of 2014 initially was presented and by order dated 27.1.2016, necessary directions were Page 5 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 issued and similarly, in another petition, being Special Civil Application No.5120 of 2017, directions have been issued by the High Court vide order dated 10.3.2017. By that time, one of the objectors had challenge redevelopment project in a co-operative society and had submitted a writ petition being Special Civil Application No.17931 of 2018, but same came to be disposed of vide judgment and order dated 16.1.2019. Observation contained in paragraph 42 tried to be relied upon by original petitioner was of almost a similar case and after narrating the circumstance with regard to the situation of construction of existing society and after referring to similar decision on the issue of redevelopment sought by authority, decided by this Court in earlier petition, present petition is brought before the Court by claiming the reliefs contained in paragraph 27 of the petition. (4) It appears from the record that vide order dated 8.1.2021, further reliefs have also been added and as such, the Court deems it proper to reproduce entire relief clause here-under:-
Page 6 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023
C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 "27(A) Your Lordships may be pleased to issue a writ of mandamus and/or writ in the nature of mandamus and/or appropriate writ, order or direction to the respondent corporation to grant necessary permission to demolish construction which is residential flats known as "Swami Vivekanandnagar Cooperative Housing Society Limited" and to grant further permission for redevelopment; which are suitable at Ahmedabad City (Vejalpur) Jodhpur village, T.P. Scheme No.5, Vajalpur, Final Plot No.173;
(B) In the alternative, Your Lordships may be pleased to issue a writ of mandamus and/or writ in the nature of mandamus and/or appropriate writ, order or direction, to respondent corporation, to decide representation dated 06.12.2018 and 18.04.2019, submitted by the petitioner society within two weeks and/or within the time period as may be stipulated by this Hon'ble Court;
(C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct respondent corporation to decide representation dated 16.12.2018 and 18.04.2019, submitted by the petitioner society within two weeks and/or within the time period as may be stipulated by this Hon'ble Court;
(D) An exparte ad interim relief in terms of prayer (C) above may kindly be granted.
(E) Such other and further relief/s as may be deemed just and necessary in the facts and circumstances of the present case may kindly be granted."
"27(AA) Your Lordships be pleased to declare that the petitioner society fulfills the mandate of Section 41A of the Gujarat Ownerships Flats Act 1973 and is therefore entitled to redevelop the building on Final plot no. 173, T.P. Scheme No. 5, Vejalpur.
(BB) Your Lordships be pleased to issue a writ of mandamus commanding Respondent No.1,2 and 3 to permit the petitioner society herein to carry Page 7 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 out the work of redevelopment on Final Plot No.173, T.P. Scheme No.5, Vejalpur, after demolishing the existing construction.
(BBB) Your lordships be pleased to issue a writ of mandamus directing Respondent No 1, 2 and 3 herein to sanction the redevelopment plans submitted to them on 13.07.2019 so as to enable the petitioner society and the respondent no. 4 to execute such plan.
(CC) Your Lordships be pleased to issue a writ of mandamus commanding Respondent No.1,2 and 3 to require Respondent Nos.5,6,8 and 9 to hand over vacant and peaceful possession of their flats for the purpose of redevelopment as per Section 41A of the Gujarat Ownerships Flats Act, 1973."
(5) With the aforesaid background, petition was heard at length by learned Single Judge upon completion of the pleadings and upon submission of Civil Applications for direction as well as early hearing and after extensive hearing and learned Single Judge has passed a detailed Judgment on 21.6.2022 and allowed the petition. Operative part of the said judgment reads:
"54. At the cost of repetition, so far as the observance of the provisions of the Act and of the Rules are concerned, pertinently the procedure was adopted by the petitioner - society seeking consent and has got consent of more than 75% of the members and after the enactment/introduction of the provisions of Section 41A of the Act of 1973, the petitioner - society has it its general body meeting dated 16.6.2020 and 12.7.2020, ratified the earlier procedure and therefore, it will not dis-entitle the petitioner - society seeking development.Page 8 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023
C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 If at all there is some aberration in the procedure, it will be for the appropriate authority to take action. In absence of any challenge to the decision of the general body, so also the development permission, the contention of the private respondents, would be misplaced.
55. In view of the aforementioned discussion, the petition, deserves to be allowed and is accordingly allowed. The petitioner society is permitted to act as per the development permission dated 5.3.2022 and the private respondents are directed to handover the possession of the respective flats for the purpose of redevelopment within a period of eight weeks from the date of the receipt of copy of this CAV judgment. Rule is made absolute to the aforesaid extent. No order as to costs.
56. In view of the disposal of the captioned writ petition, the connected Civil Applications, do not survive and also stand disposed of."
(6) It is this judgment and order passed by learned Single Judge is made the subject matter of present Letters Patent Appeal under clause 15 of the Letters Patent by original respondent No.9.1 and 9.2, who remained to be the sole objector now in the society. (7) With this background, present Letters Patent Appeal with request and consent of all learned advocates appearing for the parties is taken up for hearing upon their insistence
3. Learned Senior Advocate Mr. Yatin Oza appearing Page 9 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 with learned advocate Mr. Ajit S. Nair for appellant- original respondent No.9 and her legal representatives has vehemently contended that order passed by learned Single Judge is ex-facie not tenable in the eye of law, hence same deserves to be quashed and set aside.
4. It has been contended vehemently that what has been borne out of the record is that ultimate dispute is amongst the members. Out of 78 members, initially few members were objecting but then now, appellant even if the sole objector against the redevelopment is entitled to raise grievance against such and in respect of this private dispute, it is not open for the Court to exercise extraordinary jurisdiction under Article 226 of the Constitution of India.
5. It has been vehemently submitted that there is no provision either under the relevant Act or the Rules that such kind of summary eviction is permissible. It has been contended that even if one member is objecting to such redevelopment, said objection is sustainable since Page 10 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 appellant is a lawful member.
6. Learned Senior Advocate Mr. Oza has further submitted that it is quite erroneous to issue a writ of mandamus directing a private respondent in the petition to handover possession of respective flats for the purpose of redevelopment. In absence of any provision about eviction, there is hardly any reason to allow such writ to go by referring to provisions contained under Gujarat Ownership of Flats Act, 1973 as well as Rules. It has been contended that there is no provision at all of any summary eviction and as such, when no consequence is provided under the Act and the Rules, Court cannot exercise extraordinary ordinary jurisdiction by issuing writ against the private person. In fact, the amendment which has been made by the legislature in Statute named as Gujarat Ownership Flats (Amendment) Act, 2018, there is no provision made for summary eviction. By referring to amended Section 41A, learned Senior Advocate Mr. Oza has submitted that it is only a situation provided by virtue of which society can go ahead with Page 11 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 redevelopment issue. But, this provision is also not providing any such consequence unlike Maharashtra Act.
7. Learned Senior Advocate Mr. Oza has attempted to make comparison of legislation of Gujarat State as well as Maharashtra Act to indicate that there is no such consequence of summary eviction permissible and as such, no writ can be issued and that too, ordering a private person to handover possession.
8. Learned Senior Advocate Mr. Oza has submitted that Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 has clearly indicated in slum rehabilitation provision wherein consequences are prescribed under the Act itself, moment redevelopment permission is processed. By referring to Section 15, a contention is raised that in aforesaid Maharashtra legislation, Collector is invested with power to require a person in possession to surrender or deliver possession thereof and if the member is refusing, Collector is empowered to make land available to competent Page 12 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 authority by taking stringent measures. No such consequences are provided here in Gujarat legislation and therefore, when Gujarat Act is not permitting such provision of eviction, there is hardly any reason for the Court to adopt such analogy from Maharashtra legislation.
9. Learned Senior Advocate Mr. Oza has submitted that extraordinary jurisdiction is dependent upon the principle of equity and it is a settled position of law that equitable consideration cannot prevail over or overriding Statute and when that be so, no writ of mandamus can be issued.
10. Learned Senior Advocate Mr. Oza has submitted that there are several statutes, in which depending upon requirement, legislation itself has provided and empowered the authority to evict. Mr. Oza has submitted that under the provisions of Gujarat Public Premises Act, under the provisions of Town Planning Act, precisely Section 63, Rule 33 and also under the provisions of Gujarat Provincial Municipal Corporation Act, Sections Page 13 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 284-A and 388-A are empowering the authority to summarily evict person. Whereas, unlike Maharashtra Act and this Act, no such provision is made even after amendment and as such, intention of legislature was not in favour of such summary eviction without due process of law and and such, writ cannot be issued. Mr. Oza has submitted that whenever the legislature wanted to provide such consequence of summary eviction, it has been specifically provided in Statute, whereas here in the present Statute applicable to the controversy in question, even after amendment, no such consequence is provided and as such, to assume such situation in the legislation itself, according to Mr. Oza, is a dangerous proposition and no person will be safe if such kind of meaning is ascribed to the provision of the Act.
11. Learned Senior Advocate Mr. Oza has further submitted that by virtue of Section 9 of Code of Civil Procedure, Civil Courts have jurisdiction to deal with such kind of issue and the view which has been taken by learned Single Judge if allowed to be operated, then this Page 14 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 very remedy will be deprived and would circumvent the settled principles of law. No law permits eviction of a person without proper process and even Article 300A is also quite clear on this issue in the property right of a citizen and hence, when a writ is issued by learned Single Judge, if to be allowed to operate, same would indicate and invite disastrous consequences.
12. Learned Senior Advocate Mr. Oza has submitted that here, it is not a question of any statutory authority to be commanded since corporation itself has absolved itself from entering into disputed arena amongst members of society, then what is left out is a pure dispute between members vis-a-vis society and as such also no writ could have been issued in the manner in which learned Single Judge has issued.
13. It has been contended by learned Senior Advocate Mr. Oza that soil testing report originally done by the society is indicating that structure is repairable and thereafter with a view to achieve their goal, society has Page 15 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 taken a second opinion and on the basis of second opinion, which was unilaterally taken behind the back of the appellant, present petition came to be filed and an attempt is made to oust the appellant from society in an unceremonious manner which is not permissible within the parameters of law. Hence, he contends that learned Single Judge ought not to have issued a writ commanding the present appellant to handover possession of his residential flats.
14. Learned Senior Advocate Mr. Oza has submitted that there are several issues on which learned Single Judge has committed an error in exercising the discretion and as such, order deserves to be corrected. A law on interpretation of Statute is abundantly clear that hardship is of no consequence to interpret law in different manner than what has been intended by legislature and it is also quite clear proposition that it is not for the Court to fill up lacuna of Statute and as such, when provisions are not permitting such kind of summary eviction, Court ought not to have issued a writ. A concept of substantial Page 16 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 compliance which has been introduced by learned Single Judge while passing the order is also impermissible in view of the fact that this principle of sufficient compliance available if provision itself is a mandate to be complied. Whereas, here no such provision is made under the Act, by virtue of which a conclusion can be derived and as such, erroneous view is taken which deserves to be corrected.
15. To canvass his submission, Mr. Oza has made reference to Rule 18 and 19 and 20 of the Gujarat Ownership (Amendment) Rules and has submitted that there is no question of applying the principle like substantial compliance. On the contrary what is to be complied with is Rule 19. By referring to Rule 19, it has been submitted that no process is undertaken in this case and this Rule being mandatory in nature, principles of sufficient compliance cannot be applied. Non- appointment of Project Consultant and non-compliance of Rule 19(3) as well as 20 is sufficient enough to indicate that there appears to be an error in passing the impugned Page 17 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 order. It has been submitted that there are any of number of judgments which has taken the view consistently that when law requires a particular thing to be done in a particular manner, then same has to be done in that manner alone and here, it is completely given a go-bye either by an authority or by the society and this fact having not been appreciated and considered in the right spirit by learned Single Judge, impugned order requires to be interfered with. To substantiate his contention, Mr. Oza has made reference to few decisions, i.e. (i) (1999) 3 SCC 422 (paragraph 31), (ii) (2003) 2 SCC 111 (paragraph 40) and (iii) (2010) 2 SCC 513 (paragraph
11) and by referring to these decisions, a contention is raised that there is a clear error committed by the learned Single Judge. Hence, the order being perverse, not sustainable in the eye of law, he prays for same being corrected.
16. Learned Senior Advocate Mr. Oza has in addition to the aforesaid submissions has also placed on record a compilation of judgments to strengthen his submission Page 18 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 and thereby, by inviting attention to few observations contained in relevant paragraphs of the said decisions from the compilation, a request is made that order passed by learned Single Judge be set aside and Special Civil Application be dismissed.
17. It has been contended that simply because the sole objector remains against redevelopment, the Court in absence of any provision cannot order him to handover possession of his flat and that too by issuing mandate against private person which is outside the scope of Article 226 of the Constitution of India. No-doubt, the Court has very wide power to grant the relief of any nature, but when such relief is impermissible, not within the frame-work of any statutory provision, then in the absence thereof, no such writ can be issued. Hence, reasons which are assigned by learned Single Judge are not just and proper as such order under challenge deserves to be quashed.
18. Following are the judgments referred from the Page 19 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 judgment compilation:-
1) In the case of Raghunath Rai Bareja and Another Vs. Punjab National Bank and others reported in (2007) 2 SCC 230;
2) In the case of Narinder S. Chadha and others. Vs. Municipal Corporation of Mumbai and others reported in (2014) 15 SCC 689;
3) In the case of Commissioner of Central Excise, Bangalore Vs. Srikumar Agencies and others reported in (2009) 1 SCC 469;
4) In the case of Babu Varghese and others Vs. Bar Council of Kerala and others reported in (1999) 3 SCC 422;
5) In the case of Sri Jeyaram Educational Trust and Ors. Vs. A.G. Syed Mohideen and Ors. reported in (2010) 2 SCC 513;
6) Hind Rubber Industries Pvt. Ltd. and Ors. Vs. State of Maharashtra, through Urban Development Department & Ors., reported in 2022 SCC OnLine Bom 1640;
7) In the case of Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and others reported in, (2003) 2 SCC 111.
19. As against this, learned Senior Advocate Mr. Shalin Mehta appearing on behalf of original petitioner and society has vehemently opposed the stand of the appellant and has contended that detailed order is passed by the learned Single Judge after appreciating all the Page 20 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 submissions, after examining all material which has been produced by respective sides and a well reasoned order is passed which cannot be said to be erroneous in any form. On the contrary, the order passed by learned Single Judge after referring to the stand taken by either side and since entire material is taken note of, it cannot be said to be perverse in any form.
20. Learned Senior Advocate Mr. Shalin Mehta has submitted that here is a case in which present appellant who is the sole member is objecting to redevelopment, intended by all 77 members by now and on account of this sole objection, entire scheme has been stuck to the detriment of members who are 77 in numbers.
21. It has been contended that it is not the case that present appellant is surprised about this redevelopment project. On the contrary from day one, appellant is conscious about the decision of the society to go for redevelopment and on the contrary, he is not against redevelopment but also is inclined to have some terms to Page 21 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 be settled either with society or with developer and for that purpose, he is attempting to hamper the entire project. Learned Senior Advocate Mr. Shalin Mehta has apparently submitted from the reply affidavit filed by Mrs. Sarojben Kirtibhai Shah, original respondent No.9, who was aged about 71 years, which was sworn on 15.9.2019, that in paragraph 9 thereof, it is clearly stated that she is not dissenting from the project of redevelopment nor opposing the said project, but has one point of disagreement related to allotment of common place of society and it is quite clear from the record that appellant has neither challenged the resolution of the society nor challenged the commencement letter though from beginning, is aware about the same. Appellant herein was also quite aware about the development permission which has been granted for this project of redevelopment and the decision of General Body and yet no challenge is made to such at any point of time by the appellant and as such, when said commencement was already allowed to set in motion, it is impermissible for the appellant now to Page 22 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 object. On the contrary, initially there were four objectors against redevelopment, but then after disposal of Letters Patent Appeal, during the interregnum period, three members have not carried the matter further and as of now only appellant is out to raise an objection. Mr. Mehta has submitted that during pendency of the writ petition, society had sought development permission and also amended necessary prayers and after hearing at length all concerned persons, this Court passed a detailed order on 18.2.2021 directing the respondent corporation to consider the redevelopment plan and sanction the same in accordance with law and corporation having sanctioned redevelopment permission had also issued a commencement certificate (Raja- chitthi) on 5.3.2021 and it is in this context, development work has been undertaken by the society and at that stage, appellant has raised an objection. According to Mr. Mehta, objection is made with a view to take revenge against the society since in a residential society, appellant, who was original respondent No.9.1 was using residential premises for Page 23 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 commercial purpose and when society objected and was constrained to file lavad suit, this stand appears to have been taken. Said suit is also pending. By referring to photographs, learned Senior Advocate Mr. Mehta has submitted that present situation would disable that almost all the existing structures in the society are dismantled, only appellant's dilapidated structure is existing and thereby, appellant has attempted to hamper the entire development work and as such, after considering the overall situation and consequences which are prevailing, learned Single Judge has passed order which cannot be said to be erroneous in any form. Conduct of the appellant is also sufficient enough to indicate that view taken by learned Single Judge is quite just and proper.
22. Learned Senior Advocate Mr. Mehta has further submitted that learned Single Judge has arrived at a conclusion, based upon sound principles of law and has analyzed the relevant provisions contained under Section 41-A of the Act of 1973 and upon analysis of the said Page 24 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 provision, in juxtaposition to the situation which is prevailing, a view is taken which cannot be said to be perverse in any form. On the contrary, while interpreting and examining the material, learned Single Judge has also derived the reasons from the decision delivered by Hon'ble Apex Court in the case reported in 1965 (3) SCR 536 in the context of exercising jurisdiction under Article 226 of the Constitution of India and further, a reference is made to paragraph 25 of the decision delivered by the Coordinate Bench of this Court and when that be so, the view taken by learned Single Judge which it based on sound proposition, there can be hardly any reason for the appellant to agitate. It has further been submitted that doctrine of substantial compliance is found to be a judicial invention equitable in nature and as such, after referring to the observations contained in paragraph 24 of the decision, view is taken that here is a case in which there is substantial compliance of provision and since all majority members are in favour of redevelopment, in absence of challenge to the same by appellant, the relief Page 25 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 deserves to be granted. Accordingly, the judgment is passed, which according to him is just and proper.
23. Learned Senior Advocate Mr. Mehta has also submitted that here is a case in which the project of redevelopment has to be undertaken in a time schedule manner. Any interference at this stage would derail the entire project and that too at the instance of one person who either for his ego or for his oblique motive is out to object and learned Single Judge has also examined the conduct of appellant whereby it was clearly found that development permission which has been granted is not challenged by appellant nor there is any challenge to the resolution of general board and further no challenge to even letter of commencement and in the absence of challenge to same, simply because at one point of time, society objected against his commercial use of premise in residential society, appellant cannot hamper the entire project and all these issues have been examined by learned Single Judge and found that it is just and proper to extend the relief which has been prayed for and the Page 26 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 judgment is delivered. Hence, he contends there is no illegality of any nature reflecting from the impugned order.
24. Learned Learned Senior Advocate Mr. Shalin Mehta has drawn the attention of this Court that by virtue of redevelopment, a new well built society is going to emerge for the benevolent object of all members of society and for that purpose, Mr. Mehta has drawn attention to several photographs related to redevelopment project, which photographs are contained in Annexure-III on page 656 and from the MoU, which has been entered into and the development agreement of the area and to what extent, benefit would be extended to members on account of such project is also brought to the notice of this Court. From page 380 of the paper-book compilation, Mr. Mehta has submitted that on account of this work of redevelopment, for reallocation of members for a temporary period, benefit which is to be derived by members is that as against the area of 94 Sq. Yards in block No.A, a member will get flat of 4 BHK consisting of Page 27 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 158 Sq. Yards and in addition thereto, till reoccupation, a rent is provided of Rs.20,000/- per month and over and above, cash royalty of Rs.17 lakh has also been provided by developer and so far as B- Block is concerned, as against the area of merely 58 Sq. Yards, new construction consisting of 3 BHK of 99 Sq. Yards will be provided and for that temporary reallocation, an amount of Rs.15,000/- per month is being paid and additional cash royalty of Rs.12 lakh is provided and as such, when every member is going to be benefited, entire project cannot be allowed to be hampered at the instance of appellant only.
25. Learned Senior Advocate Mr. Shalin Mehta has submitted that argument of appellant that this is in fact eviction of appellant in reality is erroneous, but it is merely a reallocation for temporary period till new construction is allotted and therefore, in strict sense, writ is not issued to evict the appellant, it is only for handing over the possession for a temporary period till redevelopment takes place and as such, the manner in which the case is being presented is not just and proper. Page 28 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023
26. Learned Senior Advocate Mr. Shalin Mehta has submitted that had there been a case of eviction, in that sense, which is tried to be conveyed, probably the issue was open for appellant to agitate. But, here is a case where there is no eviction but is merely a temporary re- location and that too with due benefits as agreed upon. Hence, overall circumstances are considered and equitable relief has been granted, which is well within the scope of Article 226 of the Constitution of India.
27. Learned Senior Advocate Mr. Shalin Mehta has referred to certain decisions to substantiate his case and by referring to said proposition and observations, a contention is raised that appellant has not made out any case to seek any relief.
28. Following are the decisions referred to and relied upon by learned Senior Advocate Mr. Shalin Mehta:-
1) In the case of Binny Ltd. and Anr. Vs. V. Sadasivan & Ors. Reported in (2005) 6 SCC 657;
2) In the case of Gujarat University, Ahmedabad and Etc. Vs. Miss Sonal P. Shah and others, reported in AIR 1982 Guj. 58;Page 29 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023
C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023
3) In the case of Kamgar Sewa Sadan Co-operative Housing Society Ltd. Vs. Mr. Vijaykumar Vitthalrao Sarvade & Ors. [Judgment dated 8.2.2022 in Civil Appeal No.1222 of 2022, rendered by Hon'ble Supreme Court]
4) In the case of Sabhajit Ramyash Yadav and Another Vs. State of Maharashtra and ors. [Judgment rendered by High Court of Judicature at Bombay in Writ Petition No.444 of 2022 with other Interim Applications]
5) In the case of Dhaman Singh & Ors. Vs. State of Punjab and Ors., reported in 1985 SCC (2) 670;
6) In the case of Ratilal S. Pujara (Since Deceased) Through His L.Rs. and others Vs. Municipal Commissioner, Municipal Corporation of Greater Mumbai and others [Judgment dated 25.8.2022 in Civil Appeal No.5825 of 2022, rendered by Hon'ble Supreme Court]
29. In addition to this, learned Senior Advocate Mr. Mehta has drawn the attention of the Court to structural report which is placed on record of the compilation at Page 61 and 62 and by referring to the provisions of Rule 19 and 24, a contention is raised that view taken of a substantial compliance is permissible and Article 226 scope is that much limited that same cannot be exercised at the instance of sole objector in the society. When balance order is passed by the learned Single Judge, Page 30 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 same may not be interfered with. Mr. Mehta has further submitted that it is a settled position of law that scope of Letters Patent Appeal is limited to the extent to examine validity of the view taken by learned Single Judge and in exercise of such Letters Patent Appellate jurisdiction, view taken by learned Single Judge cannot be substituted in the absence of any distinguishable material or perversity or material irregularity. Since such contingencies are not reflecting on record, the view taken by learned Single Judge may not be substituted. Hence, overall circumstances according to Mr. Mehta would lead to a conclusion that no case is made out by appellant.
30. Learned Senior Advocate Mr. Mehta has also submitted that each member's interest is taken care of by virtue of the agreement. Further, relevant resolutions prescribing procedure for redevelopment have been considered and said provisions are taking care of the interest of every concern of the society and there is hardly any scope for appellant to object against all members in the manner in which objections are tried to Page 31 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 be raised. At the whims or oblique motive of the appellant, entire interest of all members of society may not be put to stake and for that purpose, ground reality as on date a reflected from the photographs produced on record, disclosing all buildings in the society are dismantled and it is only ground portion of the appellant which is in a dilapidated condition is existing. Hence, equitable jurisdiction deserves to be exercised in favour of the original petitioner and as such, requested to dismiss the Letters Patent Appeal.
31. A list of chronology of events is also produced on record by learned Senior Advocate and thereby requested the Court to dismiss the Letters Patent Appeal with costs.
32. In chorus to this submission, learned Senior Advocate Mr. Jal S. Unwala appearing for the developer has submitted that there is nothing which is to be further conveyed and he is adopting all the submissions of Mr. Mehta representing the original petitioner, but has emphatically submitted respondent No.3 has already Page 32 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 invested almost Rs.11 crores in this project and now in the midst said project has been intercepted on account of this litigation. Hence, he has earnestly requested this Court to dismiss the Letters Patent Appeal.
33. In rejoinder to this, learned Senior Advocate Mr. Oza has reiterated the very same submission which he has made on previous occasion and has contended that background of facts is such where an owner cannot be ousted without due process of law by issuing of writ of mandamus. He has further contended that resolution was signed by the members is not a correct fact and has submitted that the decisions which have been referred to by the learned Senior Advocate Mr. Mehta are of no assistance when the Act is different, where provisions are different and as such, in view of the settled principles of law, said observations and ratio cannot be applied as a straitjacket formula. He would submit that when Statute is not providing such kind of summary eviction appellant cannot be evicted. By referring to the decision on principle of precedent that one additional fact would Page 33 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 make a world of difference in applying the precedent, Mr. Oza has submitted that relying upon the said principle, the judgment cited by learned Senior Advocate may be discarded from its applicability as it was on a different facts than one on hand. It has been reiterated that when a substantial relief is granted, it cannot be said that a consequential relief is granted and by referring to the relief clause, precisely relief (CC), such relief is impermissible in view of literal meaning of Section 41A of the Act. Stand of the society that appointment of PMC was not made for want of money is no excuse when Statute is amending such appointment. Hence, looking to the stringent provision of law, including the amended provision, the view taken by learned Single Judge is absolutely impermissible and has apprehended a disastrous consequence if such writs are allowed to be issued against private person. Hence, by reiterating his submission, learned Senior Advocate Mr. Oza has requested to allow the Letters Patent Appeal by setting aside the impugned order. A submission is voiced out that Page 34 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 if this kind of writs are allowed, same will have a serious impact on redevelopment projects which are going on in the State by virtue of such amendment and as such he has requested the Court to take a possible view in consonance with the provisions, by allowing the appeal filed by the appellant. No other submissions have been made.
34. Having heard learned advocates appearing for the parties, we are of the considered view that following point would arise for our consideration:
(i) Whether the order passed by the learned Single Judge in Special Civil Application No.8350 of 2019 dated 21.6.2022 suffers from any infirmity in law or on facts calling for our interference?
BRIEF BACKGROUND OF THE CASE:
35. The writ applicant Swami Vivekanandnagar Co- Operative Housing Society Limited (hereinafter referred to as 'society' for brevity) is a Co-operative Housing Society registered under the Gujarat Co-Operative Page 35 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 Housing Societies Act and has constructed 78 flats in 11 residential blocks in the year 1971 after obtaining building permission in the year 1969 and revised plan in 1971 over Final Plot No.173 at Taluka City Vejalpur, Village: Jodhpur falling under Town Planning Scheme No.5, society proposed to redevelop the said residential flats which was said to be in a dilapidated condition endangering human life and as such a resolution came to be passed by the general body of members viz. majority of the members of the society on 5.7.2018, the committee forwarded circular dated 5.7.2018 to each of its members whereunder it was stated that the residential buildings were in dilapidated condition and it was proposed to redevelop the property and called for opinion from the members of the society. On 28.7.2018, the society forwarded another circular to every member, wherein the terms and conditions of the proposed redevelopment was stated and a form was attached to the circular seeking consent of the members for redevelopment. Out of 78 members, 71 members gave their consent. Hence, Page 36 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 managing committee and redevelopment committee together passed a resolution to call for tenders in the light of the majority of the members having consented for redevelopment by resolution dated 4.9.2018. Accordingly, on 8.9.2018, an advertisement came to be published in Gujarat Samachar on 28.9.2018 of new redevelopment committee having been formed and a resolution was passed on the said date by the new committee to call for extraordinary general body meeting to be held on 7.10.2018 in order to discuss the tenders received from the developers to be opened in the general body of members. In the extraordinary general body meeting held on 7.10.2018, 17 tenders received were opened in the presence of members and found 5 developers did not qualify as they did not fulfill the terms and conditions laid down by the society. Out of the remaining 12 developers, 4 developers were selected including respondent No.4 herein. On a site visit of the redevelopment committee to ascertain the schemes developed by the shortlisted by 4 developers, it resulted in redevelopment committee Page 37 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 selecting respondent No.4 herein. On being informed by the society to respondent No.4, it gave an offer on 27.9.2018. On scrutiny of the offer made by 4 th respondent, further negotiations were held by the committee in order to obtain or secure the best deal for its members. This resulted in respondent No.4 forwarding a revised offer on 17.10.2018. In its meeting held on 20.10.2018, it was resolved to appoint a Legal Consultant and Project Consultant.
36. Subsequently, the society after appointing legal consultant and project consultant held a meeting on 20.10.2018 of all the members of the committee and 85% of the committee members approved the selection of respondent No.4. Accordingly, a resolution came to be passed on 21.10.2018 and consent letter was also given by 74 members on 5.11.2018 and armed with the consent letters society intimated Ahmedabad Municipal Corporation ('AMC' for short) on 6.12.2018 about status of the building viz. condition of the building. In the meanwhile, a general body meeting was held on Page 38 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 25.11.2018 where 3 partners of the developing company were present and 42 members of the society were also present in the meeting, during which deliberations relating to the building plans, amenities to be provided in new building were discussed. It is thereafter letter was forwarded by society to the Estate Department of AMC informing them about the existing structure being in dilapidated condition. Hence, the officials of the AMC visited society premises on 12.12.2018 and issued two notices on 15.12.2018 under Section 264 of Gujarat Municipal Corporations Act viz. one to the society and to 78 individual members of 11 blocks directing the society to appoint a structural engineer to analyse the stability of the structure. Accordingly, the society appointed a structural engineer who visited the site and conducted all tests. When this test was in progress, respondent No.4 forwarded its final offer on 27.12.2018 by reiterating its offer made on 17.10.2018. The structural engineer, who visited the site and examined the structures, submitted a report on 7.1.2019 whereunder the said engineer Page 39 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 recommended for construction of new building instead of repairing the existing building on the ground that the buildings were severely damaged. A detailed discussion can be found from the order of the learned Single Judge in this regard vide paragraphs 22 to 24. On 26.1.2019, a newspaper report came to be published seeking for objections for title clearance. In the light of the report of the structural engineer, a meeting of the members was called for to ascertain their views and in the meeting held on 20.3.2019, out of 78 members, 74 members voted for redevelopment except for 4 members who were of the view that building should be repaired. By communication dated 21.3.2019, out of 4 members, 3 members in their reply stated that they are interested in repairs of the building and were not willing for redevelopment. In this background, society submitted the structural engineer's report to AMC on 29.3.2019 in reply to the notice issued by AMC under Section 264 of BPMC Act. In view of majority of the members having consented for redevelopment, an MOU was entered into by the society Page 40 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 with respondent No.4 on 2.4.2019. Since 3 members were insisting for repair of the building, knowing well that other members did not possess sufficient finance for repairing their houses, society approached the structural engineer seeking opinion with regard to cost that would be involved in repairing the building and the time that may be consumed and as such structural engineer submitted his report dated 1.4.2019 stating thereunder that time of 18 to 24 months would be required to complete the repair and the cost of repairs being very high. Again the society intimated AMC to take immediate action based on the representation submitted by the society on 29.3.2019 whereunder the structural engineer's report dated 1.4.2019 had also been attached. On account of inaction of AMC in not considering the prayer of the society by granting redevelopment permission, writ applications came to be filed initially seeking for a direction to AMC to accord permission. However, during pendency of Special Civil Application No.8530 of 2019 redevelopment permission having been Page 41 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 granted by AMC and as such petitioner reiterated for grant of incidental prayers sought for.
37. In the light of Section 41A of the Gujarat Ownership Flats Act, 1973 having been amended with effect from 21.5.2019, the society convened a general body meeting of its members. After deliberations, the society forwarded consent letters of its members confirming MoU dated 2.4.2019; consenting to give powers to the main committee of the society to undertake the redevelopment activity and also consenting for said amendment being applied to the project in question. On account of concrete slabs of certain houses having fallen down, the society resolved to secure one more report from the structural engineer and as such forwarded a letter on 15.10.2019 to the structural engineer refuting him to forward his report and accordingly, a second report was forwarded on 7.11.2019 whereunder Structural Engineer opined that buildings are in dilapidated condition and stated that immediate attention is required to be given. Respondent No.4 forwarded a communication to the society on Page 42 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 18.12.2019 as to how the rent would be paid to the residential buildings that would be occupied by the members of the society, who would be vacating the existing building and taking on rent different premises for enabling the commencement of redevelopment project by specifying the mode, method and period for which the rent would be paid by the developer. On account of there being a serious threat to the life of the occupants of the building, the society passed a resolution on 1.1.2020 resolving to hand over possession of the flat, occupants' right by signing redevelopment agreement and to hand over to the society, their respective flats for commencement of the rent payable to each member from 1.2.2020.
38. In the meanwhile, during the third week of March pandemic commenced and respondent No.7 herein by communication dated 16.3.2020 intimated the society of his consent also for redevelopment, though he had initially opposed the same.
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39. A society by name Anupam Society which is an adjacent society by communication dated 2.7.2020 intimated the petitioner society about slab of the building located in the subject property having fallen on 14.6.2020 and notified the petitioner society that same would have caused harm to the residents and requested the petitioner society to take immediate steps. Simultaneously, AMC forwarded a notice on 4.7.2020 to the petitioner society intimating the petitioner society about dilapidated state of its building and petitioner society having not taken any action and as such called upon the petitioner society to take immediate steps. This triggered the petitioner society to intimate AMC on 6.7.2020 seeking their permission to pull down the parts of the building and about pendency of the litigation which had come in the way of implementation of the redevelopment scheme and consent having not been given by few members.
40. In the meanwhile, the legal heirs of respondent No.9 filed a suit No.314 of 2020 against petitioner society. The Page 44 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 society filed a Lavad Suit No.327 of 2020 against the legal heirs of respondent No.9 contending that they were using residential premises for commercial purposes and also alleging illegal construction having been put up by them.
41. In the background of the society having filed Special Civil Application No.8530 of 2019 seeking for a direction to the corporation to issue licence and as such, an order came to be passed on 18.2.2021 by the learned Single Judge directing AMC to consider the redevelopment plan and sanction the same in accordance with law and preferably within a period of four weeks. This order which was challenged by the present appellant in Letters Patent Appeal No.465 of 2021 was withdrawn on 17.6.2021. Commencement letter (Raja Chitthi) came to be issued by AMC on 5.3.2021. Subsequently, on 22.6.2021, the legal heirs of respondent No.9 are said to have removed the illegally encroached portion of the society's land which was being used for commercial activities. Respondent Nos.5 and 6 intimated the society Page 45 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 of shifting from their flats and consenting for demolishing the illegal portion. Subsequently, on account of respondents having not vacated the portion of their building / flats in their occupation, the prayer sought for in the Special Civil Application came to be granted by the learned Single Judge by allowing the petition and permitted the society to act as per the development permission dated 5.3.2022 and also directed the private respondents to hand over possession of the respective flats for the purpose of redevelopment within a period of eight weeks from the date of receipt of the judgment.
42. On perusal of entire records and on bestowing our careful and anxious consideration to the rival contentions raised at the bar, it would emerge therefrom that undisputedly 78 flats were constructed in the year 1971 over the subject property pursuant to the permission granted in the year 1969. It is on account of the physical condition of the building having deteriorated, the society resolved to re-develop the property namely to put up residential building along with commercial building for Page 46 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 the benefits of its members. It is in this process, as already noticed hereinabove, meetings came to be held by the society namely by the re-development committee constituted for the said specific purpose, general body meetings of the members were held, the proposed course of action for undertaking re-development was also circulated amongst all the members and as already noticed hereinabove, all the members except four had objected to the same. Even during pendency of the proceedings, three persons have consented for the same except 9th respondent.
43. As on today, 9th respondent who is the member of the Cooperative society, has not raised any dispute before the competent authority raising any grievance with regard to the resolution passed by the committee whereunder the society has resolved to redevelop the property. In fact during the pendency of the petition before the learned Single Judge, re-development permission came to be accorded on 05.03.2021 which has not been challenged by 9th respondent till date. On this Page 47 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 short ground itself, present appeal is liable to be dismissed. However, we desist from doing so, inasmuch as learned Senior Counsel appearing for 9 th respondent having canvassed several issues as noticed in the arguments addressed on behalf of 9 th respondent. It would also be apt to notice at this juncture that society sought for writ of Mandamus to the Corporation to issue license and permission which came to be granted by the learned Single Judge. Hence, further prayer was sought for and said amendment was allowed vide order dated 18.02.2021. This was challenged by 9th respondent in Letters Patent Appeal No. 465 of 2021 and it was withdrawn on 17.06.2021. During the interregnum period, re-development permission (raja-chitthi) came to be issued by AMC and said order dated 05.03.2021 has not been challenged by the appellant namely 9th respondent till date.
44. Thus, except 9th respondent, no other persons are in occupation of the building in the subject property and/or objecting for redevelopment. Even arguments was Page 48 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 canvassed that 9th respondent had already shifted from the premises and only for the purposes of litigating the matter before this Court, respondent No.9 claims to have continued to be in possession of the property. In fact, photographs made available to us during the course of hearing would also persuade us to disbelieve the statement made by the learned Senior Advocate Mr. Yatin Oza, which was to the effect that legal heirs of the appellant are still in physical possession of the flat.
45. Section 41-A of the Gujarat Ownership Flats Act, 1973 enables the re-development of a building. For the purposes of convenience and immediate reference, we extract the said provision and it reads:
"41A. Re-development of flats and apartment. -
Notwithstanding anything contained in this Act, any work in relation to the re-development of a building can be carried out on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75 per cent. of the flats owners of such building :
Provided that, in respect of such building, -
(i) a period of twenty - five years must have been completed, from the date of issuance of permission for development by the concerned Authority; or Page 49 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023
(ii) the concerned Authority has declared that such building is in ruinous condition, or likely to fall, or in any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof.
Explanation. - For the purpose of this section, the expression "redevelopment" shall be the meaning as assigned to it in relevant Development Control Regulations."
46. The aforesaid provision was inserted by the Gujarat Act No. 5 of 2019 w.e.f. 21.05.2019. In this background, the annual general body meeting was convened by the society on 16.06.2019 to discuss about the applicability of amended provision. In view of the re-development of a building requiring approval of the 75% of the flat owners of such building, the matter was placed before the general body of the members held on 16.6.2019 which was attended to by the 64 members, wherein it was resolved as under:
"After this was introduced by the President, the new law for redevelopment has been enacted by the Government of Gujarat and the gazette has been issued to take action for the redevelopment of our society as per Article 41A. As it was approved, he sought the approval of all the members to complete the further proceedings as per the law and for this all the present members have stated their consent together. Therefore, everyone has agreed to complete the next procedure as soon as possible.Page 50 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023
C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 The new committee for this work has the full support of the members of the society to carry out all the work related to redevelopment in the interest of the society and they are given full authority to do so. The present committee will take charge till the redevelopment work is completed and possession of the new flat with BU permission is given to each member. Accordingly, power is delegated to them with the consent of all."
47. In fact, 9th respondent namely the appellant herein had also participated in the said meeting, whose name is found at Serial No. 18 of the proceedings of the meeting namely she has affixed her signature to the resolution dated 16.6.2019 which has not been challenged by her during her life time. It is in this background, the learned Single Judge has recorded finding at paragraph 30 of the order under challenge, that there was consent by the members to the extent of 93.5% and conditions stipulated under section 41A is clearly complied with by the society. The finding recorded by learned Single Judge reads :
"30. Before proceeding further, it is required to be noted that after the introduction of the provisions of Section 41A and is not disputed, a meeting of the petitioner - society was convened on 16.6.2019 for discussing few agendas. One of which was to apprise the members about Section 41A of the Act of 1973 and its effect. Meeting was attended by majority of members, who signed the resolution agreeing for the redevelopment. The said decision taken in the general body meeting, is not challenged by the private Page 51 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 respondents. On the contrary, private respondent 9 has signed the resolution without raising any objection. Thereafter, meeting of the executive committee was convened on 12.7.2019 ratifying the steps taken. Also, the petitioner-society convened the meeting of the general body on 20.7.2019 and again, did re-voting for redevelopment. According to the petitioner-society and not disputed, 74 members, out of 78 members, are in favour of the redevelopment. Hence, the consenting members are to the extent of 93.5%. "
48. The contention of Mr. Oza, learned Senior Advocate that there is no provision under the Gujarat Ownership Flats Act for providing summary eviction of a non- consenting member unlike the provision under the Maharashtra Housing and Area Development Act, 1976 or The Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, providing for such eviction and as such Writ Court could not have issued a Writ of Mandamus to the contesting respondents to quit and handover vacant possession of their flats, is no doubt an attractive argument which requires to be brushed aside, inasmuch as the Hon'ble Apex Court in the case of Binny Ltd. and Anr. versus V. Sadasivan and Others reported in (2005) 6 SCC 657, has held that the High Court under Article 226 of the Constitution of India is Page 52 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 empowered to issue Writ on the principles that it is a public law remedy and available against a body or persons performing public law function. In fact, the learned Single Judge had taken note of observations made by the Hon'ble Apex Court in the case of Dwarka Nath versus Income Tax Officer, reported in 1965 3 SCR 536, whereunder it has been held to the following effect:
"6. This article is couched in comprehensive phraseology and it ex facie confers a wide power on the high court to reach injustice wherever it is found. The constitution designedly used a wide language in describing the nature of the power, the purposes for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with the those in England, but only draws in analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary from of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself."Page 53 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023
C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023
49. It is in this background, the provision of section 41A of the Gujarat Ownership Flats Act, 1973, will have to be read and understood. A plain reading of the above provision would clearly indicate that it starts with a non obstante clause and it would indicate that any work in relation to the re-development of a building can be carried out on such terms and conditions as may be prescribed, after obtaining the consent of not less than 75 per cent of the flats owners of such building. The prescription is traceable to the amended rules namely Rule 18 and 19. Proviso thereto would indicate such building should have completed 25 years or more from the date of issuance of permission for development by the concerned Authority; or the concerned Authority has to declare that such building is in a 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. Aforesaid Rule 18 and 19 reads thus:
"18. Conditions for Re-development Project/ Work.- The terms and conditions governing the re- development work/project of a building to be carried Page 54 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 out by the Developer shall be as under, namely:-
(1) (a) The period of twenty-five years of a building shall have completed from the date of issuance of the permission for development by the concerned authority, or
(b) The building is declared dilapidated, ruinous or dangerous in any way to any person occupying, resorting to or passing by such structure or any other structure or place in the neighborhood thereof by the concerned authority, and (2) Consent of not less than seventy-five per cent. of the members of the building for re-development of the building shall be necessary.
19. Procedure for re-development.- (1) The Managing Committee or the Body of a Co-operative Society or Association by whatever name called which is managing the affairs of the building, either suo-moto or on an application received from one-fourth members of the flats or the apartments, as the case may be, with regard to undertaking the re-development of the building for the reasons as provided in section 41 A of the Act, the Managing Committee or the Body shall convene the special general meeting of the co-operative society or association within a period of one month from the date of such application to take the policy decision on re-development of the building. (2) The rules and the by-laws of the society or apartments made under the relevant law with respect to convening meetings of the General Body or the Managing Committee, notice, circulation of agenda items, quorum at the meetings, taking policy decisions, entering into 4 agreement, supplying minutes of the meeting to the members, etc. shall apply to the matters relating to re-development project.
(3) The Managing Committee shall place before the General Body the agenda item for taking policy decision relating to re-development of building; and for appointment of the Architect / Project Management Consultant to prepare the re-development project. The special general body meeting shall take a decision with Page 55 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 the consent of not less than seventy-five per cent. of the total members of the body for redevelopment of the building and select a Architect / Project Management Consultant to prepare the re-development project ; and authorize the Managing Committee to take all further necessary action/steps for re-development project. After taking decisions as aforesaid, all members of the building shall be informed with reference to the policy decision of re-development of the building taken in the meeting."
50. A plain reading of the above rules would indicate that it would reiterate what is stated in Clause (i) and (ii) of the proviso to Section 41A; it also mandates that such re-development can take place either at the instance or requisition 1/4th members of the flats or the apartment as the case may be or suo moto by convening meeting of the managing committee or special general meeting within a period of one month. The managing committee is required to place before the general body of its members the agenda item for taking a policy decision relating to re- development of a building and it is left to the discretion of the members to take decision and in the event of a decision is taken to re-develop and consent is given by the members, such consent should not be less then 75% of the total number of the members of the body for re- development of a building. Sub-Rule (3) also provide for Page 56 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 selection of Architect, Project Management Consultant to prepare a re-development project and the general body is empowered to authorize the managing committee to take all other necessary steps for re-development of the project and thereafter all the members of the building are required to be informed with regard to the policy decision of re-development of the building taken at such meeting. All these steps having been undisputedly taken by the petitioner society as already noticed by us hereinabove and this is also as discussed by the learned Single Judge in paragraph 43 onwards. Repetition of same would only burden this order. Hence, we are of the considered view that there is substantial and complete compliance of Section 41A of the Act and Rule 18 and 19.
51. In the instant case, it requires to be noticed that thrust of the argument of Mr. Yatin N. Oza, learned Senior Advocate appearing for respondent No.9 is to the effect that writ court is exercising powers of a civil court by directing eviction of the occupant of a flat and same is impermissible. He has also contended that unlike in Page 57 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 Maharashtra Housing and Area Development Act, 1976 wherein Section 95A provides for summary eviction of occupiers when consent of not less than 70% of the members of the society or association agreed for redevelopment, there is no such provision in the Gujarat Ownership Flats Act, 1973 and as such he has relied upon the judgment of the Hon'ble Apex Court that statutes have to be interpreted by applying literal rule of interpretation. It would be a benefit to note the propositions of law laid down by the Hon'ble Apex Court in this regard viz. in the case of Raghunath Rai Bareja and Another vs. Punjab National Bank and Others [(2007) 2 SCC 230] whereunder it came to be held as follows:
"40. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB vs. Securities and Exchange Board, India, AIR 2004 SC 4219. As held in Prakash Nath Khanna vs. C.I.T. 2004 (9) SCC 686, the language Page 58 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Financial Corporation vs. Rajiv Anand 2004 (11) SCC 625. Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the Court should not seek to amend the law in the grab of interpretation."
52. At the outset, it requires to be noticed that by calling upon the occupant (respondent No.9) to vacate the premises by issuance of writ of mandamus, there is no order of eviction is passed. The resolution of the general body of members passed by the majority (now all the members having consented for redevelopment except respondent No.9) would indicate that during the period of redevelopment taking place, all the occupants of the existing property who are in occupation of their respective flats would be provided alternate accommodation in a rented premises and rent of the such premises would also be paid by the developer himself. Thus, there is no eviction or dispossession. Eviction in terms of the prevalent rent laws or ejectment of an Page 59 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 occupant from the suit property as contemplated under the Transfer of Property Act would mean to dispossess a person in occupation of a premises under the authority of law by putting an end to such right. In other words, eviction means right to reside or occupy ceasing or such right getting terminated by operation of law. In the instant case, respondent No.9 is neither dispossessed nor evicted but has only been directed to be shifted to an alternate premises which she/they would continue to reside till redevelopment takes place. Temporary shifting of residents of a premises in redevelopment project would not amount to dispossession or eviction as sought to be contended. In fact, appellant is not deprived of the property viz. residential accommodation at all.
53. It would not be out of context also to refer to the fact that appellant has not challenged the development permission dated 5.3.2021 (Raja Chitthi). In fact, she has given her consent for redevelopment and has affixed her signature also to the resolution of the general body of the members dated 16.6.2019 (Annexure-C at Sr.No.18). In Page 60 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023 the special general meeting held on 7.10.2018 which was specifically convened for the purpose of discussing the redevelopment project, appellant herein participated in the said meeting and has affixed her signature to the minutes of the meeting at Sr.No.23, wehreunder the issues relating to appointment of legal adviser for the redevelopment project, finalising the builder from the offers received for redevelopment and other incidental works came to be discussed and resolution passed thereon. In fact, in the affidavit dated 15.9.2019 filed before the learned Single Judge, she has deposed to the following effect:
"9. I further say and submits that we are neither dissenting from the project of Re-development nor we are opposing the said project, but our only point for disagreeing is related to the allotment of common space of society. In this current re-development scheme, the allotment of common space of society is not being done equally amongst the members of the society and instead it is being done in an irrational way which is the main ground for the respondents to disagree with the allotment of common space of the society. The members who hold 94 sq. var built-up area land would be assigned higher rate of common plot of the society while rest of the members who holds less built-up area of land would be assigned lower rate of common plot of the society which is very irrational and discrimination in nature." (vide pages 431 and 432 of compilation) (emphasis supplied) Page 61 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023 C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023
54. Having affixed their signatures to the resolutions and having not questioned the resolutions so passed by taking appropriate steps, respondent Nos.5 to 8 herein as well as the appellant are estopped from contending contrary to the same, inasmuch as they are bound by resolutions for which they have affixed their signatures. Hence, we are of the considered view that no prejudice is caused to the appellant or similarly placed persons as discussed in detail by the learned Single Judge vide paragraph 37. In that view of the matter, we are unable to accept the contentions raised by learned Senior Advocate appearing for the appellant.
For the reasons aforestated, we proceed to pass following:
JUDGMENT
(i) Letters Patent Appeal No. 1075 of 2022 is hereby dismissed;
(ii) The judgment dated 21.6.2022 passed by the
learned Single Judge in Special Civil
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C/LPA/1075/2022 CAV JUDGMENT DATED: 23/01/2023
Application No.8530 of 2019 is affirmed;
(iii) No order as to costs.
(iv) All pending application stands consigned to records.
(ARAVIND KUMAR,CJ) (ASHUTOSH SHASTRI, J) Bharat Page 63 of 63 Downloaded on : Mon Jan 23 20:52:53 IST 2023