Gujarat High Court
Girishbhai Sumantlal Darji vs Ahmedabad Municipal Corporation on 29 September, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 336 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 12887 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In
R/LETTERS PATENT APPEAL NO. 336 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL Sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
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 ?
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GIRISHBHAI SUMANTLAL DARJI
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
MR R. M. CHAKWAWALA, WITH
MR KISHAN R CHAKWAWALA(9846) for the Appellant(s) No.
Page 1 of 12
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NEUTRAL CITATION
C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023
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1,2,3,4,5,6,7,8,9, 10, 11
MR ANUJ K. TRIVEDI for Respondent No.1
MR G.H. VIRK WITH MR SIMRANJITSINGH H. VIRK for Respondent No.2
MR ANSHIN DESAI, SENIOR COUNSEL with MR SHRINEEL SHAH, for
Respondent Nos.9, 10, 12, 15, 18 to 21, 23 to 26, 28, 33, 34, 36, 38 and 41
MS VENU NANAVATY for Respondent Nos.62 and 64, 67
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 29/09/2023
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. The present intra-court appeal has been filed on 1.2.2023 assailing the judgment and order dated 14.9.2022 passed by the learned Single Judge allowing Special Civil Application No.12887 of 2020, with the following reliefs:
"36. In view of the aforesaid discussion, this petition deserves to be allowed in terms of paragraphs 22B, C and D of the petition and is accordingly allowed. The petitioner-society is permitted to act as per the redevelopment agreement. The private respondents are directed to hand over the possession of the respective flats/units for the purpose of redevelopment within a period of eight weeks from the date of receipt of copy of this judgment. Rule is made absolute to the aforesaid extent. No order as to costs."Page 2 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023
NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined
2. The appellants herein are original respondents in Special Civil Application and are assailing the judgment of the learned Single Judge on the grounds that no direction can be issued by the learned Single Judge asking the appellants / original respondents to hand over physical possession of the flats in question on the premise that the redevelopment plan has been stalled at the instance of the appellants. The main ground of challenge to the order passed by the learned Single Judge is that the relief sought by the original petitioners (respondent Nos.55 to 97 herein) could not have been granted in view of the pendency of a civil suit filed by the appellants herein / original respondents viz. Civil Suit No.1693 of 2019, wherein 50 members of Anand Vihar Society raised a dispute against the Gujarat Housing Board, as also the developer viz. Siddhi Developer, with respect to the redevelopment process to be undertaken by them. It was argued that out of 132 members, 50 members are opposing the redevelopment process and once the said fact was brought before the learned Single Judge, there was no occasion for entertaining the writ petition, which was Page 3 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023 NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined filed by few of the members of the society, without any clear majority. The writ petition has been filed with the main following reliefs:
"22(B) YOUR LORSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to respondent no.2- Gujarat Housing Board to execute and implement the notices/orders dated 18/19.06.2019, 01.11.2019, 10.2.2020 issued by the Gujarat Housing Board - Respondent no.2 (Annexure-A,B,C,D,E,F) in the interest of justice.
(C) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction to the respondents no.1-Ahmedabad Municipal Corporation and respondent no.2- Gujarat Housing Board to take action of removal/demolition of illegal construction as per the Notices/orders dtd.14.08.2020 and 19.08.2020 issued by the Gujarat Housing Board for removal of illegal construction made/constructed by the private respondents in the interest of justice.
(D) YOUR LORDSHIPS may be pleased to direct the Respondent no.1 and no.2 for implementing and processing the Scheme for Redevelopment of Anand Vihar Society situated at Final Plot No.48 Page 4 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023 NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined (T.P.Scheme No.31) Village Vastrapur, Taluka Vejalpur, District Ahmedabad admeasuring 4319 sq.mtrs. as per the decision of the Respondent no.2- Gujarat Housing Board and as per the Letter of Acceptance dtd.21.06.2019 in the interest of justice.
(E) Pending admission, hearing and final disposal of the petition, YOUR LORDSHIPS may be pleased to direct the Respondent no.2-Gujarat Housing Board to immediately implement the notices within a time frame and take appropriate steps to evict and vacate the private respondents so as to effectively implement the redevelopment project of Anand Vihar Society in the interest of justice."
3. The facts relevant to decide the controversy at hand are that Anand Vihar Co-Operative Housing Society is a society of Gujarat Housing Board, having Final Plot No.48 (T.P. Scheme No.31), admeasuring 4319 sq. mtrs. at Village: Vastrapur, Taluka: Vejalpur, District: Ahmedabad, and consists of total 132 members, who are occupying the residential flats built on the said plot. On 21.3.2018, in the general meeting of the society, 60% of the flat owners had consented for redevelopment of the society. On 29.11.2018, consent of 101 members was sent to the Page 5 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023 NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined Gujarat Housing Board to grant permission for redevelopment and to invite tender for the same. On 18.2.2019, a public notice was issued inviting tender and redevelopment of the said society. Respondent No.4 viz. Siddhi Developers was engaged as developer for redevelopment of the said society and accordingly the letter dated 21.6.2019 was issued to the developer to go ahead with the redevelopment plan. It seems that Civil Suit No.1693 of 2019 was filed by 50 members of the said society on 28.11.2019 opposing the redevelopment process, terming it as illegal. A perusal of the plaint indicates that the civil suit was filed with the reliefs as follows:
"(21)(A) The disputed property as stated in the Para-2 of the Suit Application, which is situated in District Sub District Ahmedabad, Anandvihar Flats, Near Himmatlal Park, Ambavadi, which is having Regsitration as Anandvihar Apartment Association, vide Regsitered No.5/22-8-1983 and regarding the disputed property of having all the flats, the Defendant No.1 and 2 have started the procedure of Re-Development, hence it is requested to pass the order that, the Defendant No.1 and 2 have not any legal right or power to make such proceeding without written consent of the plaintiffs.Page 6 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023
NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined (B) The disputed property as stated in the Para-2 of the Suit Application, which is situated in District Sub District Ahmedabad, Anandvihar Flats, Near Himmatlal Park, Ambavadi, which is having Regsitration as Anandvihar Apartment Association, vide Registered No.5/22-8-1983 and regarding the disputed property of having all the flats, the Defendant No.1 and 2 of this case and his accomplices, servants, agents, officers or office- bearers shall nto execute any proceeding of Re- Development without consent of the Plaintiffs or shall not commit any fraud regarding the proceeding of Re-Development or they shall not commit such act so as to create any loss to the actual possession and using right of the Defendants, hence pass such Permanent Injunction Order against the Defendant No.1 and 2 and in in favour of the Plaintiffs."
4. The main ground of challenge, from a perusal of the plaint, indicates that the plaintiffs therein had opposed the redevelopment plan on the ground that the defendants therein viz. Gujarat Housing Board and Siddhi Developers cannot commence the procedure of redevelopment as they have no right to proceed without written consent of the plaintiffs. It is stated therein that the plaintiffs were occupying the flats Page 7 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023 NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined developed by Gujarat Housing Board on allotment or owners of the respective flats. There is no requirement of reconstruction. The entire procedure adopted by the defendants in proceeding for redevelopment and engagement of the developer is faulty.
5. We may note that no interim injunction has been granted to the plaintiffs in the aforesaid civil suit. The appellants herein claim to be the plaintiffs in the said suit.
6. Be that as it may, we may record that there is no dispute about the fact that the resolution to go for redevelopment was passed in the general meeting of the society on 21.3.2018. 60% of the members have consented for redevelopment, the reconstruction of the society and in continuation of the same, subsequent meetings were held and with the consent of the members, the proposal was sent to the Gujarat Housing Board by the society on 29.11.2018 to consider the redevelopment of the society. It is also undisputed, as has been recorded by the learned Single Judge, that the Gujarat Housing Board has accepted the proposal of the society and took the decision to redevelop the society. It is recorded by the learned Single Judge Page 8 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023 NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined that while considering the proposal of redevelopment, the Gujarat Housing Board has given consideration to the attending circumstances of the building being in dilapidated condition due to passage of time of more than four decades. The structure was declared unstable and it was opined that it would be posing risk to the residents of the society. After issuing public notice and completion of the process for engagement of developer, finalisation of the tender, letter of acceptance dated 21.6.2019 was issued to Siddhi Developer, respondent No.4 in the writ petition and about 60 members had vacated the premises immediately and handed over the possession to the developer, who has started releasing the rent since October 2019 in favour of those members. It is noted by the learned Single Judge from the material placed on record that it is clear that the resolution of the society was having consent of more than 60 members, as required under Section 41F of the Unamended Act, as per the policy of the State Government. The amendment to Section 41A of the Gujarat Ownership Flats Act, 1973, which came into force on 21.5.2019, provided that any work in relation to the redevelopment of the building can be carried out on such terms Page 9 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023 NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined and conditions as may be prescribed, after obtaining the consent of not less than 75% of the flat owners of such building. It is further noted in the judgment impugned that with the passage of time, more than 82% members have consented in favour of the redevelopment. The structural engineers after assessment of the condition of the building gave a stability certificate dated 15.3.2019, wherein final finding was that the building blocks even after extensive repair work cannot become safe and sound for human habitation. Recommendation was made to reconstruct to make it habitable again. In July 2019, notarised consent agreement came to be executed by around 80 members consenting to accept the redevelopment scheme and a tripartite agreement dated 3.3.2020 had been executed between 65 members of the society, Gujarat Housing Board and Siddhi Developers, agreeing upon the detailed terms and conditions of the whole redevelopment scheme. Taking note of the above, the learned Single Judge has drawn an opinion that there is a valid agreement executed in favour of the developer by the members of the Society as well as Gujarat Housing Board who is the owner of the land. Section 41A of the Gujarat Ownership Flats Page 10 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023 NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined Act, 1973 contains a provision to carry out redevelopment work of a building, which has been amended to provide that such work can be conducted after obtaining consent of not less than 75% of the flat owners of such building.
7. There is no dispute about the fact that more than 75% of the flat owners have consented for redevelopment.
8. We may note that at the inception of the argument in the present appeal, barring appellant No.3 namely, Chandrakantbhai Shriram Gupta, all other appellants herein have withdrawn the instant appeal and the appeal with respect to them has been dismissed as such on 13.9.2023, The lone appellant who is agitating the land for redevelopment on various grounds raised in the appeal, could not dispute that majority of the members of the society, 82% or more, have consented for redevelopment of the building in question. No dispute could be raised by the learned counsel for the said appellant that the building is more than four decades old and has outlived its life. It has become inhabitable and is posing risk to the residents of the society. In the light of the above admitted fact, only Page 11 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023 NEUTRAL CITATION C/LPA/336/2023 CAV JUDGMENT DATED: 29/09/2023 undefined contention of the learned counsel for the appellant that during the pendency of the civil suit the learned Single Judge could not have directed to carry out redevelopment process, is found misconceived. Moreover, from the above, it is clear that out of 50 plaintiffs, who have filed the civil suit on 28.11.2019, only few remain who seek to press the said suit. The lone appellant herein cannot be permitted to stall the redevelopment process which has already been prolonged for a period of more than 5 years.
9. For the above, in view of the findings returned by the learned Single Judge, we do not find any merit in the appeal. The appeal is dismissed, accordingly. No order as to costs.
10. In view of the dismissal of the appeal, civil application does not survive and it stands disposed of.
Sd/-
(SUNITA AGARWAL, CJ) Sd/-
(ANIRUDDHA P. MAYEE, J.) Bharat Page 12 of 12 Downloaded on : Tue Oct 03 20:36:19 IST 2023