IMPORTANT POINT
A cooperative society can proceed with redevelopment if 75% of members consent, prioritizing safety and majority decisions over individual objections.

JUDGMENT :

Vaibhavi D. Nanavati, J.

1. Mr. Bharat T. Rao, learned advocate appearing for the petitioner No.1- Society seeks permission to delete the present respondent no.5. Permission, as prayed for, is granted. The Registry is directed to delete the respondent no.5.

2. By way of the Civil Application (for Direction) No.1 of 2024 in the present petition, Mr. Bharat T. Rao, learned advocate prays that the present petitioner no.2 to be transposed as respondent no.6 in the main petition. This Court by even dated order, i.e. on 30.08.2024, allowed the said Civil Application.

3. Heard Mr. Bharat T. Rao, learned advocate appearing for the petitioner-society, Ms. Pooja Ashar, learned Assistant Government Pleader appearing for the respondent Nos.1 and 3– State, Ms. Ritu R. Guru, learned advocate appearing for the respondent no.2 – Corporation, Mr. Kamlesh B. Patel, learned advocate appearing for the private respondent no.4 and Mr. Daxay Patel, learned advocate appearing for the private respondent no.6 – M/s. Suryam Developers (transposed from petitioner no.2).

4. Brief facts leading to the filing of the present Petition reads thus:

4.1. The petitioner herein is a registered cooperative society registered under the provision of the Gujarat Cooperative Societies Act, 1961 vide registration no. 7024 dated 04.05.1978. There are in all total 96 flats in the petitioner society, which is known as ‘Bhavna Flats’ situated at Narayan Nagar Road, Vasna, Ahmedabad. The society has constructed flats on the land bearing Final Plot No. 319 of T.P. Scheme No. 22 of Mouje: Vasna admeasuring 6877 sq.yards i.e. 5750 sq.mtrs.

4.2. It is the case of the petitioner society that extraordinary general meeting was called on 22.09.2019, pursuant to the notice issued by the respondent no.2 – Ahmedabad Municipal Corporation (AMC) on 09.09.2019 under Section 264 of the Gujarat Provincial Municipal Corporation Act, 1949 because of dilapidated conditions of the flats. In the said extraordinary general meeting of the petitioner no.1 society, it was resolved that the society should be redeveloped, instead of, repairing.

4.3. The petitioner society has sought for opinion from the structural engineer, viz., Multi Engineers Pvt. Ltd. and the same has been given by the said company on 27.07.2019 and prior thereto, the Chartered Engineer has visited the petitioner society on 04.07.2019 and 09.07.2019, wherein, it is opined that the society is not safe and looking to the condition of the structure, the Chartered Engineer did not recommend to reside in the society and that there are chances of major casualty. The aforesaid report of the structural engineer dated 27.07.2019 is duly produced at Annexure-F.

4.4. When the resolution was finalized by the petitioner society on 26.01.2020 in the annual general meeting, the petitioner society passed the resolution and objectors names were also mentioned in the said resolution. The said resolution for redevelopment was passed by 3/4th majority and approval to the proposal of present respondent no.6 – M/s. Suryam Developers was reiterated as a developer. The development agreement came to be executed between the developer – respondent no.6 herein and the society – petitioner herein. The petitioner society and respondent no.6 – developer prepared the MOU, which came to be executed with each members of the society.

4.5. In the course of hearing, Mr. Rao, learned advocate appearing for the petitioner, on instructions, submits that out of total 96 members, 95 members have consented for the redevelopment as on date. The list showing the details of members of the society and the status of execution of MOU by individual members, duly produced at Annexure-I. It is submitted that, 6 members of the petitioner society including the respondent no.4 herein approached the Board of Nominees Court, Ahmedabad by filing Lavad Suit No. 165 of 2020, which came to be rejected by judgment and order dated 17.08.2022, which is duly produced at Annexure-L.

4.6. The sai