IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sangeeta K. Vishen, J.
Swami Vivekanandnagar Co-operative Housing Society Limited – Petitioner
Versus
Ahmedabad Municipal Corporation – Respondent
R/Special Civil Application No. 8530 of 2019 With Civil Application (Fixing Date Of Early Hearing) No. 1 of 2021
Decided On : 21-06-2022
Constitution of India,1950 - Article 226 and 227 - Gujarat Ownerships Flats Act 1973 - Section 41A - Gujarat Provincial Municipal Corporation Act, 1949 - Section 264 - Indian Penal Code,1860 - Section 420 - Essential Commodities Act - Section 7 - Medical Council Act, 1956 - Section 33 - Electricity (supply) Act, 1948 - Section 79 - Code of Civil Procedure,1908 - Section 9 - Maharashtra Regional and Town Planning Act 1966 - Section 127 - Seeking the issuance of mandamus against the State and its authorities - Service of notice - Grant necessary permission to demolish construction - Respondent no.1 grant necessary permission for redevelopment of the residential flats situated forming part of Town Planning Scheme no.5, Final Plot and known Cooperative Housing Society Limited ground that residential flats are approximately 48 years old and in a dilapidated condition - petitioner – society had declared before this Court that as almost all prayers stand redressed during the pendency of the petition seeking direction to the respondent nos.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 - Before proceeding further, following facts are required to be taken note of - Captioned writ petition is filed by petitioner – Society Co-operative Housing Society Limited. According to it, there are 11 residential blocks, having 78 flats constructed over final plot - Building permission was granted in year 1969 and revised plan was sanctioned occupants of the said residential flats have formed co-operative housing society, which is registered and bears - society, by passage of time, the flats are in a dilapidated condition. Since last few years, slabs, in each block, are in deteriorated condition and are damaged inasmuch as, internal steel frames of RCC slabs and other structural members, beams, columns etc - are open to environment, which causes further dangerous condition. On account of corrosion, whole slab is likely to fall at any time which would endanger the humans/residents living in the said society – Held, Enactment has been substantially complied with notwithstanding noncompliance of directory requirements - In cases where substantial compliance has been found, there has been actual compliance with statute, albeit procedurally faulty - Doctrine of substantial compliance seeks to preserve need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted - Test for determining the applicability of the substantial compliance doctrine has been the subject of a myriad of cases and quite often, critical question to be examined is whether requirements relate to the "substance" or "essence" of the statute, if so, strict adherence to those requirements is a precondition to give effect to that doctrine - On other hand, if the requirements are Procedure or directory in that they are not of "essence" of thing to be done but are given with a view to the orderly conduct of business - society seeking consent and has got consent of more than 75% of members and after enactment/introduction of the provisions of Section 41A of the Act of 1973 petitioner – Society has it its general body meeting earlier procedure and therefore, it will not dis-entitle petitioner – society seeking development – Petition allowed.
JUDGMENT :
By the consent of the learned advocates appearing for the respective parties, the matter is taken up for final disposal.
2. Issue rule, returnable forthwith. Mr Deep D Vyas, learned advocate waives service of notice of rule on behalf of the respondent no.1, Mr Ajay A Dave, learned advocate waives service of notice of rule on behalf of the respondent no.4, Mr Shrijit G Pillai, learned advocate waives service of notice of rule on behalf of the respondent nos.5 and 6 and Mr Ajit S Nair, learned advocate waives service of notice of rule on behalf of the respondent nos.9.1 and 9.2.
3. The captioned writ petition, inter alia, prays for direction to the Ahmedabad Municipal Corporation i.e. respondent no.1 (hereinafter referred to as “the Corporation”) to grant necessary permission for redevelopment of the residential flats situated at Vejalpur, Village: Jodhpur, forming part of Town Planning Scheme no.5, Final Plot no.173 and known as Swami Vivekanandnagar Cooperative Housing Society Limited (hereinafter referred to as the “petitioner - society”) on the ground that the residential flats are approximately 48 years old and in a dilapidated condition, which require redevelopment at the earliest. The petitioner-society, initially had prayed for the following reliefs:-
(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.”
4. Subsequently, during the pendency and after enactment of the Gujarat Ownership Flats Act, 1973 (hereinafter referred to as the “Act of 1973”), by way of an amendment, following reliefs have been incorporated:-
(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 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. The learned counsel for the pe
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The court upheld the validity of redevelopment processes of co-operative housing societies, emphasizing majority consent and the necessity of addressing safety concerns over minority objections.
The court upheld the validity of the redevelopment process under Section 41A of the Gujarat Ownership Flats Act, 1973, and directed the respondents to vacate their flats and hand over peaceful and va....
The decision established that objections from individual members should not stall the redevelopment process initiated by the majority consent of a co-operative society, provided the society complies ....
The court upheld the validity of the redevelopment project under Section 41A of the Gujarat Ownership Flats Act, 1973, based on the majority consent of the members, dilapidated condition of the build....
Majority consent in cooperative societies is binding for redevelopment under Section 41A of the Gujarat Ownership Flats Act, enabling courts to enforce compliance despite minority objections.
A cooperative society can proceed with redevelopment if 75% of members consent, prioritizing safety and majority decisions over individual objections.
A co-operative society's decision for redevelopment, supported by majority consent, is binding on all members, and individual objections cannot impede the process if statutory conditions are satisfie....
Members of a cooperative society must adhere to the society's decisions and bylaws, losing individual rights in favor of collective governance.
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