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Judgment
Mauna M. Bhatt, J
Rule returnable forthwith. Learned Assistant Government Pleader Mr.Aakash Gupta waives service of notice of Rule on behalf of respondent No.1, learned advocate Mr.Anuj Trivedi waives service of notice of Rule on behalf of respondent Nos.2 to 4 and learned advocate Mr.C.S.Mohanan waives service of notice of Rule on behalf of respondent No.6.
This petition is filed seeking following prayers:
“A. This Hon'ble Court 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 directing the respondent no. 6 to vacate his Flat No. C/3 in the petitioner no. 1 society and hand over the peaceful and vacant possession thereof for the purpose of redevelopment as per Section 41A of the Gujarat Ownership Flats Act, 1973 within such period as this Hon'ble Court considers appropriate and to cooperate in the redevelopment of the petitioner no. 1 society and to not create hindrances or obstructions to the same whatsoever.
Alternatively, to prayer A,
B. This Hon'ble Court 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 directing the respondent nos. 2 to 4 authorities are to take appropriate steps for vacating/evicting the respondent no. 6 from his flat and demolishing the dangerous and dilapidated structure of the petitioner no. 1 society in terms of and in exercise of powers and duties under the provisions of the Gujarat Provisional Municipal Corporations Act, 1949 so as to enable the petitioner no. 1 society to be redeveloped as per Section 41A of the Gujarat Ownership Flats Act, 1973.
D. Pending the admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to direct the respondent no. 6 to vacate his Flat No. C/3 in the petitioner no. 1 society and hand over the peaceful and vacant possession thereof for the purpose of redevelopment as per Section 41A of the Gujarat Ownership Flats Act, 1973 within such period as this Hon'ble Court considers appropriate and to cooperate in the redevelopment of the petitioner no. 1 society and to not create hindrances or obstructions to the same whatsoever.
E. Ex parte ad interim relief in terms of prayer D hereinabove be granted.
F. Such other and further reliefs as may be deemed fit in the facts of the present case may be granted.”
Brief facts, referred in the petition, are as under:
3.1 The petitioner No.1 is a cooperative housing society registered under the provisions the Gujarat Co-operative Societies Act having registration no. GH 7599 dated 21.03.1980 and is owner of land admeasuring 842.50 sq.mtrs. in FP No.191 + 192 + 193 paiki in TP Scheme No.6 in Mouje: Paldi, situated near Ankur School, Fatehpura, Paldi, Ahmedabad. The building of the petitioner society is known as Building ‘C’ Fateh Apartments and was constructed with total 12 residential 2 BHK Apartments. The above construction was carried out at the relevant time after obtaining development permission/ Raja Chhithi on 30.05.1977. The Building Use Permission was also received on 19.01.1980. Thus, the building in question is more than 45 years old and used by the residents of said building since 1980.
3.2 It is case of the petitioners that the building is in extremely dilapidated condition and dangerous to human lives, which is evident from reports of structural engineers. There are two structural engineers’ reports annexed with the petition at Annexure “B” (Page-31 to 33 and Page 34 to 43).
3.3 Moreover, the photos along with report at page 44 to 46, support the dilapidated conditions of the Apartment in question. The respondent No.2 – Ahmedabad Municipal Corporation had also served Notice dated 27.02.2024, under Section 264 of The Gujarat Provincial Municipal Corporation Act (Annexure-C Page-47). Taking cognizance of dilapidated condition of subject Apartments, the respondent corporation had directed immediate repair or an appropriate action.
3.4. It is case of the petitioners that taking note of Notice dated 27.02.2024 of Ahmedabad Municipal Corporation and also noticing the fact that building is in such condition where repairs are practically not possible, the petitioner society-initiated process of redevelopment. Accordingly, the procedure contemplated under the provisions of the Gujarat Ownership Flats Act, 1973, (‘GOFA Act’ for short) was followed. Despite that the petitioner society was not in position to take peaceful and vacant possession from respondent No.6, which lead to filing of present petition.
3.5 It is case of the petitioners that conditions contemplated under section 41-A of GOFA Act, 1973 are fulfilled and therefore, considering the dilapidated condition of the Apartment, the respondent corporation may be directed to have peaceful and vacant possession of apartment of respondent No.6.
It is also noticed that this petition is filed through petitioner No.2 – Chairman and petitioner No.3- Secretary of petitioner No.1 society whereas respondent No.1 is State of Gujarat, respondent No.2 is a statutory authority and respondent Nos.3 & 4 are Officers of respondent No.1. Respondent No.5 is developer, who has agreed to redevelop the petitioner society’s flats and respondent No.6 is private respondent having flat No.C/3. Though served, respondent No.5 has chosen not to appear being formal party.
Heard learned advocate Ms.Amrita Thakore for the petitioners, learned Assistant Government Pleader Mr.Aakash Gupta for respondent No.1, learned advocate Mr.Anuj Trivedi for respondent Nos.2 to 4 and learned advocate Mr.C.S.Mohanan for respondent No.6.
Learned advocate for the petitioners submitted that co-operative society consisting of 12 flats of 2 BHK was constructed in the year 1977 and used since 1980 is not in dispute. Therefore, the subject apartments are more than 45 years old. Further, dilapidated condition of Apartments is also evident from the structural engineers reports at Annexure “B” (Page-31 to 33 and 34 to 43), supported by photograph at Pages 41 to 46. Moreover, Notice dated 27.02.2024 issued by Ahmedabad Municipal Corporation supports the case of the petitioner society that it requires immediate repair or appropriate action and therefore, process of redevelopment was initiated by the petitioner society by following the procedure.
6.1. Learned advocate Ms.Amrita Thakore submitted that Chronology of procedure followed by the petitioner-society in relation to redevelopment of subject apartments is as under:
17.9.2020
In the AGM held on this date, new Managing Committee was elected. Pertinently, R6 was present and became a member of Managing Committee and was a member of the Managing Committee through the redevelopment process. (pg. 248- 249)
15.5.2021
In the AGM held on this date, wherein members decided to go for redevelopment since building is old and members want new, better and larger space. (pg. 250)
19.8.2021
In the general body meeting held on this date, society decided to go for redevelopment. R6 also gave in-principle consent for the same. (pg. 70)
Offers were invited and petitioners approached several developers seeking offers. Other members of the society also made efforts in this direction.
One of the major requirements of the society was that the adjoining land admeasuring about 140 sq. mt. in front the society's land, where the society's members have been parking their vehicles, should be purchased so as to enable the society to get more FSI which would enable society to larger 3 BHK flats and adequate land for parking and common areas/amenities.
Only 3 developers, including R5, expressed interest and submitted offers. (pg. 71-82)
Out of these, only R5 agreed to assist the society in purchasing the said vacant plot.
2.1.2022
In view of this, society resolved to go ahead with redevelopment by R5. (pg. 83)
22.1.2022
Detailed resolution was passed for proceeding with redevelopment by R5. 11 out of 12 members (i.e. 91.67%) signed the said resolution. (pg. 84-94)
Society also got a project report prepared by a consultant. (pg. 95-98)
30.9.2023
MOU was executed with R5. (pg. 99-128)
30.9.2023
On the same day, due to the facilitation provided by R5, society was also able to purchase the adjoining vacant plot. It may be noted that each member of the society, except R6, contributed Rs. 1.5 lakhs towards purchase of the said plot. By WhatsApp message, R6 was requested to contribute but he did not. (pg. 309-310)
August 2024
In light of the frivolous objections raised by R6 for the first time in the reply to the petition, 11 out of 12 members have executed affidavits inter alia expressing the pressing need for redevelopment, consenting to redevelopment by R5, approving / ratifying the resolutions passed on 19.8.2021 and 2.1.2022 and the terms and condition of the MOU executed with R5 (pg. 287-308)
From the above chronology, it is evident that 11 out of 12 members (i.e. 91.67 %) have consented for redevelopment to be done by respondent No.5 – developer. In support, reliance may be placed on page-175, which is list of 11 members, who have consented for redevelopment and therefore, refusal on part of respondent No.6 to cooperate in redevelopment of the subject Apartment by not signing the MOU, may be ignored.
6.2 Learned advocate further submitted that the conditions mandatory under section 41-A of the Act have been complied with and therefore, objections raised by respondent No.6 may be ignored.
6.3. On merits, learned advocate submitted that as per MOU entered into between the Developer and other Apartment owners, there are better facilities provided in the proposed plan. MOU refers to larger size of flats, better specification, tentative plan, lift, bore, water tank, solar panel, etc. Further, as agreed upon by the Developer in the MOU, rent is agreed to be given for renting the premises till redevelopment of the subject property. Since the area was not sufficient for the parking purposes, the Developer facilitated in purchase of the adjacent land. Therefore, the objections raised by respondent no.6, that procedure was not followed and no transparency in relation to the redevelopment, is factually incorrect.
6.4. Learned advocate further submitted that in the Annual General Meeting held on 17.09.2020, a new Managing Committee was elected, in which, respondent No.6 became a member of Managing Committee and in that way, he was also member of Managing Committee through the redevelopment process.
6.5. Further, during the course of redevelopment process, respondent No.6 had not raised any objection, which he tried to take first time in the reply filed. Objections raised by filing the reply questioning the procedure followed as also not having the process adopted being transparent, being afterthoughts, deserve to be ignored.
6.6 So far as maintainability of the petition, which is contended in the reply, learned advocate submitted that the said issue is no more res-integra in view of the various decisions of this Court as well as the Hon’ble Supreme Court.
6.7 Moreover, there are no disputed question of facts arising in the present petition and therefore, the petition deserves to be allowed. Rest of the objections are raised without any evidence on record and therefore the same deserve to be ignored in view of the fact that more than 90% have agreed for the redevelopment.
6.8 In relation to the allegation made in the reply that Managing Committee is not duly constituted, learned advocate submitted that it has nothing to do with the redevelopment. Moreover, as per section 74 of the Gujarat Cooperative Societies Act, 1962, election is to be held every five years and in the present case, last election was held on 17.09.2020 wherein Managing Committee was elected. In the said election dated 17.09.2020, the petitioner Nos.2 & 3 were elected as Chairman and Secretary respectively and there is no denial to the fact that respondent No.6 was present in the said annual general meeting and become member of Managing Committee for redevelopment. Further, all the accounts have been approved in the Annual General Meeting. Therefore, objections raised being vague, deserve to be ignored. Rest of the objections, learned advocate submitted that the same are not required to be dealt with since they are not in relation to the redevelopment of the society.
6.9 In relation to the objections raised with regard to work to be allotted to respondent No.5 – Developer, learned advocate submitted that not a single document was produced questioning the trustworthiness or experience of respondent No.5. Further, it cannot be ignored that respondent No.5 had developed other properties also and therefore, the objections deserve to be ignored.
6.10 Further, on the aspect of written consent not taken from all the members on the ground that owners of flats 6, 8 and 12 have not given written consent, learned advocate submitted that the resolution passed on 22.01.2022 was signed by 11 out of 12 members. More than that, 11 out of 12 members have executed their affidavits by giving their consent to carry out redevelopment by respondent no.5 by approving / rectifying the resolutions passed on 19.08.2021 and 02.01.2022. Therefore, there being absolute transparency maintained, all the allegations deserve rejection.
6.11 On the aspect of condition of subject property, learned advocate submitted that it is not in dispute that the building is more than 25 years old and Structural Engineer reports support dilapidated conditions. Moreover, in view of section 41-A of the Act, consent of 75% members along with building should be 25 years old or declared as dangerous or likely to fall is sufficient for seeking the direction from the respondent corporation for peaceful and vacant possession. In this case, both the conditions are fulfilled.
6.12 In support of her submissions, learned advocate relied upon following decisions:
(i) The Bengal Secretariat Cooperative Land Mortgage Bank and Housing Society Limited V/s. Sri Aloke Kumar and another in Civil Appeal No.7261 of 2022 (dated 13.10.2022).
(ii) Rabari Tejmalbhai Gagabhai V/s. Ratnamani Cooperative Housing Society Limited in Letters Patent Appeal No.1427 of 2023 dated 08.12.2023
(iii) Ratnamani Cooperative Housing Society V/s. State of Gujarat in Special Civil Application No.11314 of 2022 dated 09.11.2023.
(iv) Girishbhai Sumantlal Darji V/s. Ahmedabad Municipal Corporation in Letters Patent Appeal No.336 of 2023 dated 29.09.2023
(v) Harshadbhai Ishvarlal Kiri V/s. Ahmedabad Municipal Corporation in Special Civil Application No.12887 of 2020 dated 14.09.2022
(vi) Sarojben Kiritbhai Shah V/s. Ahmedabad Municipal Corporation in Letters Patent Appeal No.1075 of 2022 dated 23.01.2023
(vii) Swami Vivekanand Cooperative Housing Society V/s. Ahmedabad Municipal Corporation in Special Civil Application No.8530 of 2019 dated 21.06.2022.
6.13 Learned advocate also relied upon the Structural Engineer Reports and submitted that objections raised, being vague and the same deserves to be ignored and therefore, this petition may be allowed.
On the other hand, learned advocate Mr.C.S.Mohanan for respondent No.6 submitted that general body meeting was held to decide for redevelopment of the petitioner society on 19.08.2021, at that time only 7 members including respondent no.6 were present. Respondent no.6 gave the consent specifically stating to offers and proposals. In the said meeting, there was no discussion with regard to purchase of adjacent land or not with regard to the redevelopment given to respondent No.5. In the meeting, there were three proposals received and ignoring the said proposals, redevelopment was given to respondent No.5, which is bad in law.
7.1 Learned advocate for respondent No.6 further submitted that in the general body meeting on 22.01.2022 only 8 members were present and therefore, there was no consent of more than 75%. Thereafter, in the meeting dated 22.01.2022, which was third meeting, only 8 members were present and therefore, contention that consent of more than 75% is contrary to the facts. Further, MOU of redevelopment signed between the parties and sale deed executed thereafter was not done in transparent manner. Moreover, in the public notice dated 10.10.2023 issued by advocate on behalf of the petitioner society inviting objections for title clearance was not served to respondent no.6 and therefore, there is defect in the procedure.
7.2 Learned advocate for respondent No.6 further submitted that Ahmedabad Municipal Corporation on 27.02.2024 issued Notice under section 264 of Gujarat Provincial Municipal Corporation Act to petitioner No.3 ie. Chairman of the society to carry out immediate repairs. It was not notice of demolition and there was wrong reading of notice dated 27.02.2024. learned advocate for respondent no.6 therefore submitted that since the petitioners had not complied with all the conditions of redevelopment project/work, the present petition deserves rejection.
7.3. Learned advocate for respondent no.6 submitted that as provided under section 19(3), of the Gujarat Ownership Flats Act, 1973 Act, no report of Architect Project Managerment Consultant as required under section 20(2), was invited. Provisions of section 21 and 23 of Act 1973, were not followed and therefore, the present petition deserves rejection.
Considered the submissions and decisions relied upon. In the opinion of this Court, for adjudication of this petition following issues are required to be considered:
(i) Whether the petition filed by the petitioner under Article 226 of the Constitution of India is maintainable or not?
(ii) Whether the procedure as contemplated under the provisions of The Gujarat Ownership Flats Act, 1973 and the Rules framed there under prior to decision of redevelopment has been followed by the petitioner or not?
(iii) Whether the requirement of section 41-A of The Gujarat Ownership Flats Act, 1973 are complied with so as to direct the respondent authorities to get peaceful and vacant possession of the subject apartment?
In relation to issue No.1, this Court in decision dated 05.07.2024 in case of Ajaybhai Purshottamdas Patel V/s. Rutul Park Cooperative Housing Society Limited in Letters Patent Appeal No.653 of 2024, has held as under:
“32. Coming to the plea of the appellant about the maintainability of the Writ petition or the issuance of Writ of mandamus by the learned Single Judge, we may note that the contractual obligations of the appellant are subject to the provisions of Sections 20, 21, 22 and 23 of the Act' 1973 of the Gujarat Ownership Flats Act, 1973 as aligned in the foregoing paragraphs of this judgment. The statute confers a duty upon the flat/apartment owner to abide by the aforesaid provisions and Section 21(3) providing for any covenant to the contrary about the usage of any areas and facilities of the apartment in its application for the claim of the appellant, the resolution dated 14.05.1978 would be a nullity. Whatever happened with the passage of time, the only permission granted by the Society in its resolution dated 14.05.1978 to permit the ground floor flat owners to use the open area around their flats was subject to the review by any subsequent resolution of the Society, which in the instant case came with the resolution to go in for redevelopment.
As the appellant being a member of the Society is obliged to obey the rules and bylaws of the Society and the decision of the Society for going for redevelopment, we hold that the contractual obligation of the appellant emanates from the two statutes, namely the Gujarat Cooperative Societies Act, 1961 and the Gujarat Ownership Flats Act, 1973. The source of privileges conferred upon the appellant and the duties and obligations of the appellant, emanating from the statute, the power of judicial review to issue directions in the nature of mandamus commanding the appellant to vacate the flat allotted to it in the Society and handover the peaceful and vacant possession for the redevelopment as per Section 41A of the Act' 1973, cannot be said to suffer from any error of law.
The plea of the appellant to dismiss the Writ petition being not maintainable is, thus, outrightly rejected.”
Moreover, in the decision dated 23.01.2023 in case of Sarojben Kiritbhai Shah V/s. Ahmedabad Municipal Corporation in Letters Patent Appeal No.1075 of 2022, it is held as under:
“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 nonconsenting 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 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 mold 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.”
Therefore, in view of the above referred decisions in the opinion of this Court, the contention of learned advocate for the respondent No.6 that writ petition under Article 226 of the Constitution of India is not maintainable, does not merit acceptance.
In relation to the issue of procedure not followed by the petitioner society, it is noticed that prior to the decision of redevelopment of subject apartment by majority members and allotment of redevelopment work to respondent no.5, procedure referred in Para 6.1 of this judgement, was followed. Therefore, the contention of respondent No.6 that procedure not followed by the society does not merit acceptance. Therefore the contention that redevelopment work was given to respondent no.5 without following the procedure as provided under the Rules and there was no transparency in the procedure is rejected.
Moreover, in the meeting dated 22.01.2022, resolution was passed to proceed with redevelopment wherein 11 out of 12 members had signed. Therefore, contention of learned advocate for the petitioners that more than 90% (91.67%) have agreed for proposal of redevelopment, merit acceptance.
Further, contention raised that in the general body meeting dated 02.01.2022 and 22.01.2022 only 8 members had signed the resolution as other members were not present and therefore, majority of 75% of members was not there in redevelopment is not acceptable since pursuant to the above objection raised during the course of hearing, all 11 members have filed their affidavits, which are on record from page-311 onwards of the present petition. Therefore, contention that there was no majority of more than 75% is not acceptable and rejected.
In relation to transparency, in the opinion of this Court, when the procedure has been followed, no further consideration is required. It would be apposite to refer the decision dated 08.12.2023 in the case of Rabari Tejmalbhai Gagabhai v. Ratnamani Cooperative Housing Society Limited in Letters Patent Appeal No.1427 of 2023, wherein, it is held as under:
“8. Having extensively gone through the provisions of Section 41-A read with the Rules 18 to 25 made thereunder, we record that the society for carrying out redevelopment work of the building has to follow the terms and conditions as laid down in Section 41-A which are :-
(i) The building shall have completed the period of twenty-five years from the date of issuance of the development permission by the concerned authority;
(ii) The concerned authority has declared the building being in ruinous condition, i.e. declared it dilapidated and dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighborhood thereof;
(iii) Consent of not less than 75% of the members of the building for redevelopment of the building has been obtained.
There is no dispute about the fact that the above noted three conditions for redevelopment project/work of the building in question has been fulfilled in the instant case. No such dispute has been raised that the concerned authority has not declared the building being in ruinous condition. The only dispute raised by the appellants (fifteen numbers of the society) is that the building is not in dilapidated condition, based on an alternative report of Structural Engineer. The said issue, as rightly held by the learned Single Judge, cannot be examined by us as a Court of appeal. The fact remains that the concerned authority, namely the Ahmedabad Municipal Corporation had issued a notice dated 19.05.2022, about three and a half years back, directing for carrying out major repairs of the building in question noticing that the building is in ruinous condition. More than 75% of the members have agreed for redevelopment and there is no dispute about the said fact. There is also no dispute about the date of development permission having been granted for the building as disclosed in the writ petition.
The only dispute which is being raised before us is about the procedure for redevelopment having not been followed by the concerned body of the society. In this regard we may note that a detail procedure under Rules 19 to 25 has been prescribed wherein it is provided that for making decision to undertake the redevelopment of the building, the Managing Committee or the body shall convene the special general meeting of the cooperative society or association. The Rules and the by-laws of the society with respect to convening of such meetings, such as notice, circulation of agenda items, quorum at the meetings, taking policy decisions, entering into an agreement, supplying the minutes of meeting of the members, etc. shall be applicable in the matters relating to redevelopment project. Sub-rule (3) of Rule 19 provides that the Managing Committee shall place before the general body the agenda items for taking policy decision relating to redevelopment of building; and for appointment of the Architect/ Project Management Consultant to prepare the redevelopment project. The special general body meeting shall take a decision with the consent of not less than 75% of the total members of the body for redevelopment of the building and select an Architect/Project Management Consultant to prepare the redevelopment project. The general body may authorize the Managing Committee to take all further necessary actions/steps for redevelopment project. To the above procedure, no illegality can be pointed out by the learned counsel appearing for the appellants. Rule 20 further provides that the Architect / Project Management Consultant appointed by the Committee as per the decision taken at the special general meeting, shall prepare the project report within two months from the date of appointment and submit the same to the Managing Committee. The project report contains the details as mentioned therein. It is further provided that the Architect/Project Management Consultant after preparation of the project report shall invite offers from the eligible contractors/builders/company or developer. Rules 21 and 22 provide the manner in which the selection of developer is to take place. In this regard, relevant is to note that the offer given by the respondent No.3 Developer for redevelopment of the society has been considered in the meeting dated 31.12.2020 of the society and the changes were suggested in the discussion. After incorporating those changes, the final offer of respondent No.3 has been accepted on 30.03.2021. Till date, only a Memorandum of Understanding has been arrived with the respondent No.3 Developer and no Development Agreement has so far been signed. Rule 23 provides the terms and conditions to be approved in the special general body meeting of the society to enter into a Development Agreement with the developer in consultation with Architect/Project Management Consultant. The conditions to be incorporated in the Development Agreement, amongst others, shall contain the conditions laid down in Clauses (i) to (x). Rule 24 provides that the developer will not be able to make any changes in the building plan except with the written permission of the Managing Committee. The procedure for allotment of new flats has been provided in Rule 25.
Taking note of the above provisions of the Rules made under the Gujarat Ownership Flats Act, 1973, we are of the considered opinion that due care has been taken by the Legislature to address the concern of the appellants herein.
The appellants can dispute the conditions of the Development Agreement, if not properly incorporated and shall have a right to participate in the process of development in a constructive way. However, 15 members out of total 96 members of the society cannot be permitted to stall the process of redevelopment only on their own suspicions and notions. There are no allegations of fraud or violation of any of the procedures prescribed in the Rules as noted hereinabove.
For the above reasoning in addition to the reasoning given by the learned Single Judge, we do not find it a fit case to interfere. The appeal is found devoid of merits and hence, dismissed. The appellants are directed to cooperate in the process of redevelopment of the society by giving constructive suggestions in the matter of entering of Development Agreement with the selected developer.
Subject to the above observations and directions, the appeal stands dismissed. Consequently, connected Civil Application also stands disposed of. No order as to costs.”
Thus, in relation to the issue that whether requirement of provisions of section 41-A of The Gujarat Ownership Flats Act, 1973 is fulfilled or not, in the opinion of this Court, in the present case, it is not in dispute that building is more than 45 years old. Moreover, Structural Engineer Reports (Annexure “B”, Page- 31 to 32 and 34 to 43) support the dilapidated condition of the building, as also Notice given by the Ahmedabad Municipal Corporation refers to condition of the building being dilapidated.
For the foregoing reasons, the present petition is required to be considered under Section 41A of the Act, 1973. The petitioner society meets with and complies with the conditions enumerated under Section 41A of the Act, 1973.
In view of the aforesaid, if the petitioner society decided to go for redevelopment, this Court under Article 226 of the Constitution of India, is inclined to entertain the present petition.
For the aforesaid reasons, the prayers as prayed for in the present petition, are required to be allowed and the same are allowed. The respondent No.6 is directed to vacate its flat in the petitioner No.1 society and handover the peaceful and vacant possession thereof for the redevelopment as per Section 41A of the Gujarat Ownership Flats Act, 1973, within a period of eight weeks from the date of receipt of the order and cooperate in the redevelopment of the petitioner No.1 Society.
With the aforesaid, the present petition stands allowed. Rule made absolute.