Gujarat High Court
Ganesharam Modaji Prajapati vs State Of Gujarat on 27 December, 2024
NEUTRAL CITATION
C/SCA/17672/2024 JUDGMENT DATED: 27/12/2024
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IN THE HIGH Court OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17672 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✔
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GANESHARAM MODAJI PRAJAPATI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DILIPKUMAR U PRAJAPATI(8344) for the Petitioner(s) No. 1,2,3,4,5
G H VIRK(7392) for the Respondent(s) No. 2,3,4
MR. SAHIL TRIVEDI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 27/12/2024
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocate
Mr.Simranjeet H. Virk for learned advocate Mr. G.H. Virk on
caveat waives service of notice of admission of this petition on
behalf of respondent Nos.2 to 4, and Mr. Sahil Trivedi, learned
Assistant Government Pleader, waives service of notice of
admission on behalf of respondent No.1 on an advanced copy.
2. By way of the present petition, the petitioners have
challenged the action of redevelopment of flats and shops
situated at Nidhi Apartment, Pragatinagar, Main Road Circle,
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near 132 Feet Ring Road, Ahmedabad, and so also challenged
the order dated 19.12.2024 passed by the Appellate Authority,
Urban Development and Urban Housing Department,
Gandhinagar, State of Gujarat, under Section 59 of the Gujarat
Housing Board Act, 1961 (hereinafter referred to as “the Act,
1961”) (Annexure A), confirming the order of eviction passed
by the competent officer – respondent no. 2 dated 10.09.2024,
under Section 56(1) read with Section 56(3) of the Act, 1961.
3. The petitioners have prayed in the present petition for
the following reliefs:-
“A. To quash and set aside the order of respondent no.1 dated
19.12.2024 confirming order of vacating the premises by the
Competent officer at Annexure A.
B. Pending admission, hearing and final disposal of this petition, It
may be directed to the respondents to maintain status quo and not
to follow the procedure of eviction with respect to order dated
19.12.2024 passed by respondent no.1. Mark A + Annex-A.
C. pass such other or further orders as may deem fit and proper.”
4. The short facts necessary to adjudicate the issues involved
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in the present petition are as follows:-
4.1 The petitioners have executed lease agreement with the
Gujarat Housing Board – respondent no.3, thereby running
their shops at Block No.1 of Nidhi Apartment situated at the
above-mentioned place. It is claimed in the petition that
Gujarat Housing Board had sold the shops run by the
petitioners, but in fact, it appears to be on lease and was
never sold by the Gujarat Housing Board.
4.2 The petitioners have been running their business at the
property in question after execution of such lease. One of the
copies of such lease agreement executed in favour of one
Rameshkumar Gandalal Prajapati is submitted at Annexure C,
which appears to have been executed on 13.12.1990.
Nonetheless, no copy of such lease deed in favour of any of
the petitioners has been submitted with the petition. Be that as
it may, it appears from execution of such lease that the
property in question is older than 25 years when the proposed
redevelopment was initiated by the Nidhi Apartment
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Association with respondent no.3, i.e., Housing Commissioner,
Gujarat Housing Board, Ahmedabad.
4.3 The Nidhi Apartment Association appears to have
registration no. 39 dated 17.10.1989. It consists of 100 flats of
HIG category and 60 shops. The total area of Nidhi Apartment
appears to be 10,752 square feet. The copy of the letter dated
13.12.2022 addressed by Nidhi Apartment Association to
respondent no.3, along with the minutes of the extraordinary
general meeting dated 24.11.2022 and the undertaking of
association dated 13.12.2022 and resolution dated 13.12.2022
of such association, is placed on record by Mr.S.H.Virk,
learned advocate appearing for respondent nos.2 to 4, for
ready perusal of this Court. The same is taken on record.
Nonetheless, the minutes of the extraordinary general meeting
of the Nidhi Apartment Association dated 24.11.2022 passed by
the Nidhi Apartment Association is already annexed with the
petition at Annexure K.
4.4 After reading the aforesaid letter, minutes of the
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extraordinary general meeting, and undertaking of the
association, they clearly suggest that, at the relevant point of
time, 94 flat owners out of 100 and 48 shop owners out of 60
have agreed for the redevelopment of housing as well as shops
hold by them.
4.5 Having consent of more than 75% members of the
association agreeing for the redevelopment, it was decided in
the extraordinary general meeting held by the association on
24.11.2022 that the redevelopment of their property be
undertaken at the earliest. While reading the minutes of the
meeting, it suggests that even two representatives of shop
owners were also nominated to take care of the interests of
shop owners apart from flat owners.
4.6 As per the aforesaid request made by the association
to respondent no.3, process of redevelopment has been
undertaken by the Housing Board as per the Redevelopment
Scheme, 2016 formulated by the Urban Development and
Urban Housing Department, Gandhinagar, State of Gujarat. The
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Housing Board invited tenders for redevelopment, and a letter
of acceptance dated 27.10.2023 was issued in favour of M/s
Ark Nirman Limited. Thereafter, a tripartite agreement was
executed on 27.04.2024 between the office bearers of the
association, respondent no.3 and respondent no.4, as well as
the developer.
4.7 As per the clause no.8 of tripartite agreement, after
the execution of such agreement, occupiers of flats and shops
were required to vacate their respective premises within 30
days. Thus, almost more than 90% of such occupiers have
vacated their respective premises. This Court has been
informed by learned advocate Mr.Virk that, except the present
petitioners, as on date, all other flat and shop owners have
vacated their premises to facilitate the process of
redevelopment.
4.8 The petitioners have objected to the redevelopment
and have not vacated their respective shop premises.
Respondent no.4 appears to have issued a notice of eviction on
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16.05.2024 to the petitioners, which was replied too by them
on 31.07.2024. The main grievance of the petitioners appears
to be that there are 10 building blocks of Nidhi Apartment,
consisting of 10 residential flats and 6 shops in each building.
As far as the present petitioners are concerned, they are
situated in block no.1, wherein out of 6 shops, the present
petitioners – shop owners i.e., 5 in number are not giving their
consent, albeit, all 10 flats owners given their respective
consent. Out of 16 members of block no.1, only 11 have
agreed to the redevelopment, i.e., less than 75%, which is the
requirement of law to proceed with the redevelopment. So,
according to petitioners, there was no requisite consent of
members obtained for redevelopment in accident with law.
4.9 Another grievance appears to have been raised by
petitioners before the authority that unless and until there is
development permission/Raja Chitthi of Ahmedabad Municipal
Corporation on submission of the plan, their vacating of shop
premises would not arise, as according to the petitioners, even
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as per Clause 8 of the tripartite agreement, after getting the
development permission, members are required to vacate their
premises within 30 days of receiving such development
permission. So far no development permission has been
obtained by the developer, the question of vacating their
premises would not arise.
4.10 The petitioners appear to have submitted their
additional reply on 29.08.2024, raising another grievance that
the area of common utility like toilets and bathrooms etc. is
not being calculated in the carpet area going to be allotted in
each member in the scheme of redevelopment, which is against
the terms of the tender. According to the petitioners, they
have share in the common area of the building along with
other members.
4.11 Taking note of the aforesaid objections and following
principles of natural justice, respondent no.2 vide its order
dated 10.09.2024, has declared that the petitioners have
violated the provisions of Section 60 A (2) of the Gujarat
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Housing Board (Amendment) Act, 2019 (hereinafter referred to
as “Amendment Act, 2019“), thereby, passed the order of
eviction under Section 56 (1) read with Section 56 (3) of the
Act, 1961.
4.12 The aforesaid order passed by respondent no. 2 has
been challenged in appeal by the petitioners, and after
considering all objections and hearing the petitioners, the
appellate authority of the Urban Housing Department,
Gandhinagar, State of Gujarat, vide its impugned order dated
19.12.2024, has dismissed the appeal of the petitioners,
thereby confirming the order dated 10.09.2024 passed by
respondent no. 2.
SUBMISSION OF PETITIONERS
5. Mr. Dilipkumar U. Prajapati, learned advocate appearing
for the petitioners, has vehemently submitted that respondent
no.2, as well as the appellate authority, have, without
considering the factual aspects of the matter, and wrongly
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interpreted the provisions of law, passed an order against the
petitioners. Mr. Prajapati, learned advocate appearing for the
petitioners, would submit that the petitioners’ shops, which
were in block no.1, which consists of 10 flats and 6 shops, out
of which only 11 members (10 flat members and 1 shop
owner) have agreed to the redevelopment. Further, learned
advocate for the petitioners would submit that the requirement
of getting consent from 75% of the occupiers of such building
is not available. According to the submission of learned
advocate for the petitioners, the criteria envisaged under
Section 60A of the Amendment Act, 2019 having not been
fulfilled, no redevelopment could have been undertaken by the
Housing Board. He would further submit that unless and until
the development permission /Raja Chitthi is issued by
Ahmedabad Municipal Corporation, as per the provisions of the
Gujarat Provincial Municipal Corporation Act, 1949 (hereinafter
referred to as “the Act, 1949”), vacating of shop premises by
petitioners would not arise, as according to the learned
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advocate for the petitioners, even Clause 8 of the tripartite
agreement, executed between the office bearers of Nidhi
Apartment, the Housing Board, and the developer, also
suggests that after obtaining such development permission,
within 30 days, members are required to vacate their premises.
According to the submission of learned advocate for the
petitioners, in the absence of any such development
permission, petitioners cannot be forced to vacate the premises.
5.1 Learned advocate for the petitioners would further
submit that the common area of toilets and bathrooms used by
members of the association requires to be considered pro-rata
as undivided shares of members, which is not considered while
executing the tripartite agreement between the aforesaid
parties.
5.2 Learned advocate for the petitioners would lastly
submit that because of the conditions stipulated in the
tripartite agreement, members will get less area than what was
shown in the tender condition. So, according to learned
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advocate for the petitioners, the impugned order is not in
accordance with law and is contrary to the settled principles of
redevelopment, and requires to be interfered.
SUBMISSION OF RESPONDENTS
6. Per Contra, learned advocate Mr.S.H.Virk would submit
that the present petition requires to be dismissed solely on the
ground of separation of material facts by the petitioners by not
disclosing that one Civil Suit no.777 of 2024 filed by the
petitioners before the City Civil Court, Ahmedabad, challenging
the tripartite agreement in question, has already been
dismissed by the City Civil Court on 04.12.2024. Having not
disclosed such fact, no equitable relief can be granted in favor
of the petitioners. He would further submit that, though the
petitioners, who are in minuscule minority, have tried their
best to stall redevelopment of the property in question,
wherein more than 93% of members of the Nidhi Apartment
Association agreed for redevelopment. The attempt of the
petitioners to stall the entire redevelopment is on frivolous
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grounds, which were raised before the authorities as well as in
the present petition.
6.1 Mr.Virk, learned advocate would further submit that
the definition of “building” given under the Act, 1961 read
with Section 18 (e) of the Gujarat Ownership Flats Act, 1973
(hereinafter referred to as the “Flat Act, 1973”) clearly ruled
out the first argument of the petitioners that there is no
consent of 75% of the members of the building. He would
further submit that the definition of “building” given under
the aforesaid Acts is completely misconstrued by the petitioners
with an oblique motive, as they are not ready to vacate their
shop premises.
6.2 Mr. Virk, learned advocate would further submit that
there is no correlation between obtaining development
permission and vacating premises because, as per the opinion
of Respondent no. 4 i.e., Executive Engineer of the Housing
Board, once the possession of each of the flat members’
premises is handed over to the developer, the actual process of
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redevelopment will start on getting development permission
and construction will be undertaken thereafter. He would
further submit that, so far as the area of common use, such as
the toilet and bathroom, is concerned, Respondent no.2 has
correctly observed in his order of eviction that the lease
agreement executed by the Housing Board with members
suggests that only the area of the shop is transferred, whereas
the area of the washroom etc., is not transferred in favor of
any of the members. According to submission of Mr. Virk,
learned advocate that the a close reading of the conveyance
deed/lease deed executed by the Housing Board suggests in
favour of members of Nidhi Apartment that the area of
common use is to be used by members without having any
transfer of title, unlike the area of the shop.
6.3 Mr.Virk, learned advocate would further submit that
when petitioners have a lease deed only for the area of the
shop, then the rest of the common facilities are to be used by
everyone without having any individual pro rata right, title, or
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interest. Even as per the rules of the General Development
Control Regulation (GDCR), all common facilities are required
to be provided to the members, as agreed in the
redevelopment agreement.
6.4 Mr.Virk, learned advocate appearing for Respondent
nos.2 to 4, would lastly submit that the entire petition is
misconceived on facts as well as law, which requires to be
dismissed with costs. Moreover, there is no error committed by
the appellate authority or Respondent no.2 while passing the
order of eviction against the petitioners herein. He would
submits that both the authorities have passed detail reason
order which may not be interfered by this Court.
6.5 To buttress his argument, he would rely on the
following decisions:
1. Nevil Mukesh Rathod & Ors. v. State of Gujarat Special Civil
Application No. 12340 of 2021, Oral Judgment dated 06.12.2021,
Para. Nos. 8, 9, 11, 14, 15-22;
2. Nevil Mukeshbhai Rathod v. State of Gujarat & Ors. Letters
Patent Appeal No. 108 of 2022, Oral Order dated 08.02.2022;
3. Dharmendra Ravipratap Rajak v. State of Gujarat Special
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Civil Application No. 16256 of 2021, Oral Order dated 27.01.2022,
Para Nos. 10, 11, 12;
4. Dharmendra Ravipratap Rajak v. State of Gujarat Letters
Patent Appeal No. 290 of 2022, Oral Judgment dated 24.01.2023,
Para Nos. 10, 11, 12;
5. Ahmedabad Municipal Sarjoben K. Shah v. Corporation
Letters Patent Appeal No. 1075 of 2022, CAV Judgment dated
23.01.2023 Para Nos. 49-52;
6. Hansaben Ratubhai Prajapati v. State of Gujarat & Ors.
Special Civil Application No. 4216 of 2023, Oral Order dated
11.04.2023, Para Nos. 3.7, 13 and 16;
7. Hansaben Ratubhai Prajapati v. State of Gujarat & Ors.
Letters Patent Appeal No. 526 of 2023 , Oral Order dated
26.04.2023, Para Nos. 2.2, 16, 17-24 and 28;
8. Harshadbhai Ishvarlal Kiri v. AMC & Ors. Special Civil
Application No. 12887 of 2020, Oral Judgment dated 14.09.2022;
9. Girishbhai Sumantlal Darji v. AMC & Ors. Letters Patent Appeal
No. 336 of 2023 CAV Judgment dated 29.09.2023.
7. Learned Assistant Government Leader, Mr. Sahil Trivedi,
appearing for Respondent no.1, would adopt the argument of
Mr.S.H.Virk, learned advocate appearing for Respondent nos.2
to 4.
8. No other and further submissions are being made by any
of the learned advocates appearing for the respective parties.
9. I have heard learned advocates for the respective parties
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and perused the impugned order as well as other documents
annexed with the petition and documents and decisions
provided by Mr.S.H.Virk, learned advocate appearing for
Respondent nos.2 to 4, which are referred to hereinabove.
ANALYSIS OF SUBMISSION AND FINDINGS
10. Before adverting and to appreciate the core issues raised
by learned advocate of the petitioners, the argument regarding
the suppression of facts by the petitioners about not disclosing
the fact that they have approached the Civil Court by filing
Civil Suit no.777 of 2024 is concerned, the learned advocate
for the petitioners has candidly submitted in his oral
submission that the petitioners did approach the Civil Court
challenging the aforesaid tripartite agreement, but the suit was
dismissed on technical grounds, as the Civil Court has no
jurisdiction to decide the lis between the parties, as per
Section 80 read with Section 71 of the Act, 1961.
10.1 It is expected from petitioners to disclose each and
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every fact in the petition when it seeks relief by filing a
petition under Article 226 of the Constitution of India.
Nonetheless, considering the nature of the controversy involved
in the present petition, and the suit being dismissed not on
merits but on technical reasons, as the Civil Court has no
jurisdiction to decide the lis between the parties, I am of the
view that controversy involved in the matter needs
adjudication.
10.2 So, considering such peculiar facts and circumstances
of the case, I am not in agreement with the submission of Mr.
S.H.Virk, learned advocate appearing for the respondent –
board, that the present petition requires to be dismissed on the
ground of suppression of material facts.
11. Now, before appreciating the arguments advanced by
learned advocates appearing for the respective parties, relevant
provisions of the Act, 1961, Amendment Act, 2019 and the
Flat Act, 1973 need to be taken note of, which are as under:
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SECTION 60A OF ACT, 2019
“60-A. Redevelopment of buildings or apartments.–(1)
Notwithstanding anything contained in this Act, any work in
relation to the re-development of a buildings or apartments may be
carried out by the Board, on such terms and conditions as may be
prescribed, after obtaining the consent of not less than 75 per cent
of the owners or occupiers of such building:
Provided that, in respect of such building,–
(i) a period of twenty-five years must have been completed, from
the date of issuance of permission for development by the
concerned Authority, or
(ii) the concerned Authority has declared that such building is in
ruinous condition, or likely to fall, or in any way dangerous to any
person occupying, resorting to or passing by such structure or any
other structure or place in the neighbourhood thereof.
Explanation.–For the purpose of this section, the expression “re-
development” shall have the meaning as assigned to it in the
Comprehensive General Development Control Regulations, 2017.
(2) It shall be obligatory for all the owners or occupiers to vacate
the existing premises for the purpose of re-development whenever
the Board decides to take up the procedure for re- development of
building after following due procedure of sub-section (1):
Provided that if any owner or occupier does not vacate the
premises, the Board shall cause to be served one month notice to
the said owner or occupier for vacating the existing premises:
Provided further that the Board or, as the case may be, the
individual agency shall have to provide alternate accommodation or
rent in lieu of alternate accommodation to the owners or occupiers
for the period of redevelopment.
(3) In case of failure to vacate the existing premises as provided in
sub-section (2) above, the owners or occupiers shall be treated as
unauthorized occupant on the land of the Board. The competentPage 19 of 34
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authority shall effect summary eviction of such owner or occupier
in accordance with the provisions laid down in sub-section (3) of
Section 56 of the Gujarat Housing Board Act, 1961 (Guj. 28 of
1961), as far as practicable.”.
SECTION 2 OF 5A OF THE ACT, 1961
“2. In this Act, unless there is anything repugnant in the subject
or context,–
(5A) “building” includes a building within the meaning of the
Gujarat Ownership Flats Act, 1973;”
SECTION 18(e) OF THE FLAT ACT 1973
“18. In this Part, unless the context otherwise requires,-
(e) “building” means a building containing five or more
apartments, or two or more buildings, each containing
two or more apartments, with a total of five or more
apartments for all such buildings, and comprising a part
of the property.”
12. As per the aforesaid provision of law, for redevelopment
of a building or apartment to be carried out by the board as
per the terms so described by it, it is mandatory to obtain the
consent of not less than 75% of the owners or occupiers of
such building. A further requirement for such redevelopment
would be that such building must be 25 years old from the
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date of issuance of permission for development by the
authority, or concerned authority has declared that such
building is in ruinous condition or likely to fall etc. Once, such
conditions, which are envisaged under Section 60 A (1) of the
Act, 1961 and Amendment Act, 2019 are fulfilled, the board
can proceed with its redevelopment.
13. Now, answering to the issues raised by the petitioners,
which requires to be appreciated as per the aforesaid
provisions of law prevailing as on date.
14. The first limb of the argument of petitioners is that there
is no requisite consent of 75% of members of Block no.1,
wherein 5 shops of the petitioners are situated. As of today,
out of 10 flat members and 6 shop owners of Block no.1, only
11 members–i.e., 10 (Flat Owners) + 1 (shop owner) have
given their consent, which is less than 75%. The argument of
the learned advocate for the petitioners is misconceived and
contrary to the definition of “building” given under the Act,
1961 read with the Flat Act, 1973. The close reading of the
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definition of “building” given under the aforesaid Acts would
indicate that a building means a building containing 5 or more
apartments or 2 or more buildings containing 2 or more
apartments and comprising a part of the property. So, reading
definition of “building” given under the Acts, nowhere it
remotely suggest that building to be considered block wise that
too of singular one.
15. Further, the definition of “building” is exhaustive as use
of the word ‘means’indicates that definition is hard and fast
definition, and no other meaning can be assigned to the
expression than is put down in the definition. To better
understand the principle of definition being exhaustive or not
and to elaborate the words of “means” and “includes”, it is
apt to refer and rely upon the following decisions of Hon’ble
Supreme Court of India in a case of P Kasilingam Versus P S G
College Of Technology, reported in 1995 Supp (2) SCC 348,
which reads as under:-
“19. …………………..A particular expression is often defined by
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the Legislature by using the word ‘means’ or the word ‘includes’.
Sometimes the words ‘means and includes’ are used. The use of
the word ‘means’ indicates that “definition is a hard and-fast
definition, and no other meaning can be assigned to the
expression than is put down in definition.” (See : Gough v.
Gough, (1891) 2 QB 665; Punjab Land Development and
Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court,
(1990) 3 SCC 682, at p.717. The word ‘includes’ when used,
enlarges the meaning of the expression defined so as to
comprehend not only such things as they signify according to
their natural import but also those things which the clause
declares that they shall include. The words ‘means and
includes’, on the other hand, indicate “an exhaustive
explanation of the meaning which, for the purposes of the Act,
must invariably be attached to these words or expressions.” (See
: Dilworth v. Commissioner of Stamps, 1899 AC 99 at pp. 105-
106 (Lord Watson); Mahalakshmi Oil Mills v. State of Andhra
Pradesh, (1989) 1 SCC 164, at p. 169 : (AIR 1989 SC 335 at p.
339)………………….”
16. In another decision in a case of National Insurance Co
Ltd & Anr Versus Kirpal Singh, reported in 2014 (5) SCC 189,
wherein it has been so held as under:-
15. Reference may also be made to K.V. Muthu v. Angamuthu
Ammal, 1997 2 SCC 53 where this Court made the following
apposite observations:
“28…….’10.”Apparently, it appears that the definition is
conclusive as the word “means” has been used to specify the
members, namely, spouse, son, daughter, grand-child or
dependent parent, who would constitute the family. Section
2 of the Act in which various terms have been defined, open
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requires” which indicates that the definitions, as for
example, that of “Family”, which are indicated to be
conclusive may not be treated to be conclusive if it was
otherwise required by the context. This implies that a
definition, like any other word in a statute, has to be read
in the light of the context and scheme of the Act as also the
object for which the Act was made by the Legislature.
11. While interpreting a definition, it has to be borne in
mind that the interpretation placed on it should not only be
not repugnant to the context, it should also be such as
would aid the achievement of the purpose which is sought
to be served by the Act. A construction which would defeat
or was likely to defeat the purpose of the Act has to be
ignored and not accepted.
12.Where the definition or expression, as in the instant case,
is preceded by the words “unless the context otherwise
requires”, the said definition set out in the Section is to be
applied and given effect to but this rule, which is the
normal rule may be departed from if there be something in
the context to show that the definition could not be
applied”.
16. We may also gainfully refer to the decision of this Court in
Reserve Bank of India v. Peerless General Finance, 1987 1 SCC 424
where this Court declared that the best interpretation is the one in
which the Court relies upon not only the test but also the context
in which the provision has been made. We can do no better than
to extract the following passage from that decision:
“33. Interpretation must depend on the text and the context.
They are the bases of interpretation. One may well say if
the text is the texture, context is what gives the colour.
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Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we
know why it was enacted. With this knowledge, the statute
must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by word. If a
statute is looked at, in the context of its enactment, with the
glasses of the statutemaker, provided by such context, its
scheme, the sections, clauses, phrases and words may take
colour and appear different than when the statute is looked
at without the glasses provided by the context. With these
glasses we must look at the Act as a whole and discover
what each section, each clause, each phrase and each word
is meant and designed to say as to fit into the scheme of
the entire Act. No part of a statute and no word of a statute
can be construed in isolation. Statutes have to be construed
so that every word has a place and everything is in its
place.” (emphasis supplied)
17. The petitioners want to dissect the buildings constructed
on the property in question into different parts, and according
to the petitioners, each block is a separate building from the
other blocks. Such a submission is not only misconceived on
facts but on law, runs counter to the definition of “building”
given under the Act. The context in which building used in
Section 60A(1) of the Amendment Act, 2019 also gives clear
intention of legislature that if consent of requisite numbers of
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members of building obtained then Board may carry out re-
development. Moreover, Section 60A(1) of the Amendment Act,
2019 opens with non-obstante clause, which override any
provisions of the Act, 1961 then also reading such provision in
context of its use and intention of legislature to bring it by
way of the amendment only suggest that building is to be
considered as a whole unlike block/unit wise as submitted by
the petitioners.
18. At the cost of repetition, I would like to observe that
all blocks of Nidhi Apartment constructed and existing on the
property in question would be considered as a building, and
while considering the provisions of Section 60 A (1) of the
Amendment Act, 2019, when consent of 75% of the occupiers
of such building i.e. 10 blocks of Nidhi Apartment in question
–is obtained by association, is self sufficient to proceed with
the redevelopment of such buildings. When the petitioners are
members of such association then its decision, which was taken
by majority of its members, would bind to them even though
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they have not agreed to it. There is no dispute about the fact
that out of 100 flat owners and 60 shop owners, 94 flat
owners and 48 shop owners i.e., 142 members have given
their consent for redevelopment, which is more than 75%.
There is no cavil about the fact of completion of 25 years of
Nidhi Apartment on the property in question from the date of
issuance of permission for development given by the concerned
authority.
19. So, as per the aforesaid facts and having fulfilled the
requirement of Section 60A(1) of the Amendment Act, 2019,
according to this Court, petitioners have no right to object to
redevelopment, as they are in minuscule minority.
20. So far as the second limb of the argument of the
petitioners is concerned, that unless and until development
permission /Raja Chitthi is obtained by the developer, they are
not required to vacate their shops and on obtaining such
permission, thereafter 30 days time available to vacate their
shop but not before such time.
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21. None of the petitioners at any point of time have shown
their willingness to accept the condition of the tripartite
agreement. Therefore, according to this Court, they cannot find
fault with such conditions enumerated in the agreement. It is a
complete misreading of Clause 8 of the tripartite agreement by
the petitioners. The close reading of Clause 8 of such an
agreement would indicate that an individual agreement is
required to be executed by every member of Nidhi Apartment
with the developer and Housing Board, giving them permission
to redevelop the property. On executing such a consent
agreement and development agreement, within 30 days
thereafter, all members of Nidhi Apartment are required to
hand over peaceful, vacant possession of their flats and shops
to the developer. So, it is incorrect to say that after getting
development permission, members are required to hand over
peaceful and vacant possession of their respective flats and
shops to the developer and not prior thereto.
22. At this stage, it is required to be noted that according to
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the oral submission of Mr.S.H.Virk, learned advocate appearing
for the board, that except for the present petitioners i.e., 5 in
number, all other members have vacated their respective
premises by executing their consent agreement in favor of the
developer and board. The conduct of petitioners would clearly
indicate that their intention is not bona fide, as they have
never agreed to execute such a consent agreement in favor of
the developer. Hence, they could not have imposed their own
terms on the majority views of the other members of the
apartment.
23. It is required to be considered and as observed in the
impugned order, that as per the opinion of the Executive
Engineer of the board, there is no nexus between getting
possession of premises from the members and development
permission, as development work will commence upon getting
development permission. According to the authority, if
members vacate their premises at the earliest, the process of
obtaining development permission will be undertaken, and
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upon receiving such permission, the development work will
immediately commence.
24. So, in view of the aforesaid facts and circumstances of
the case, there is no justifiable reason on the part of the
petitioners not to execute the consent agreement with the
developer and vacate their shop.
25. So far as the third limb of the argument of the
petitioners is concerned, that the area of common utility
services used by them requires to be distributed pro rata
amongst all members, is without any basis. Respondent no. 2,
while passing the order of eviction, has clearly observed in its
findings in para 5 that only the shop is transferred on the
basis of the lease in favor of the petitioners, and the area of
common utilities like bathrooms, toilets, etc., is not sold,
leased, or transferred in favor of the petitioners. It is not in
dispute that the ownership of the entire land in question is
with the Housing Board. When petitioners do not have any
right or title to such common utility services, except permissive
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use, their request is uncalled for and an unjustified demand by
the frustrated members, who are in minority and want to stall
the entire redevelopment. Learned advocate appearing for the
petitioners, during the course of his argument, has admitted
that, as per the tripartite agreement referred to above, more
area than actually used by the petitioners will be provided
after redevelopment. It has also been observed in the
impugned judgment that, per the redevelopment policy of
2016, a new shop will have 25% more area than currently
occupied by the petitioners. If this is so, the argument of the
petitioners is nothing but an attempt to delay the
redevelopment at the cost of others.
26. Even otherwise, this Court is in complete agreement with
the reasons assigned by the appellate authority as well as the
competent officer of the board while dismissing the appeal vide
its impugned judgment and order dated 19.12.2024 and
eviction order dated 10.09.2024, respectively.
27. The judgments relied upon by learned advocate Mr.S.H.
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Virk, appearing for the Housing Board, would fortify the views
taken by this Court while dismissing the arguments of the
petitioners. The ratio laid down in the above-referred decisions
of this Court clearly indicates that when there is consent from
75% or more members of the building for redevelopment, and
such building is older than 25 years from the date of its
permission for development by the concerned authority, and is
in a dilapidated or ruinous condition, then such redevelopment
cannot be stalled by other members of the building, who are
in the minuscule minority. It is also well settled legal position
of law that public interests would prevail over the private
interest and work of development cannot be stopped to secure
private interest when it is for the betterment of the public at
large.
28. As observed earlier in the judgment, nearly 93% of
members of Nidhi Apartment have agreed to redevelopment,
and a resolution was passed in November, 2022. Almost two
years have passed, yet the work of redevelopment, i.e., the
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reconstruction of the apartment, has not begun due to the
hindrance created by petitioners, who have the intention to
delay the redevelopment at any cost.
29. Such a frivolous attempt on the part of minority
members, like the present petitioners, requires to be
discouraged for the betterment of the majority members of the
apartment. It is the duty of this Court to nip in the bud such
actions by unscrupulous members stalling the development,
affecting the rights and interests of the majority members.
When the actions of the petitioners are not bona fide, this
Court would like to impose costs upon such petitioners.
CONCLUSION
30. The upshot of the aforesaid observations, discussions, and
findings is that there is no merit in any of the submissions
canvassed by the petitioners. For the aforesaid reasons, the
present petition requires to be dismissed and, hence,
DISMISSED with a costs of Rs.10,000/-. Rule discharged.
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30.1 The amount of costs shall be deposited by the
petitioners with the Gujarat State Legal Services Authority,
High Court of Gujarat, Sola at Ahmedabad.
(MAULIK J.SHELAT,J)
MOHD MONIS
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