The amended rules of the Gujarat Ownership Flats Act do not apply retrospectively, and members who participated in redevelopment cannot later object on procedural grounds.

ORDER :

BIREN VAISHNAV,  A.C.J.

1. This appeal, under Clause 15 of the Letters Patent, has been filed against the oral judgement and order dated 26.09.2024 passed by the learned Single Judge in the captioned writ petition. The appeal is at the hands of the original respondents no. 7 & 8 – occupants of the original petitioner society.

1.1 The respondent no. 1 society had filed the aforesaid petition with a prayer that the respondent Municipal Corporation be directed to permit the society to repair and secure the dilapidated dangerous structure of society. Also was under challenge a notice dated 28.04.2022 by which the respondent authorities directed the society and its members to repair the structure.

2. It was the case of the society that by Resolution dated 30.01.2022, 32 out of 36 members/flat owners i.e. 89% of the society had agreed for redevelopment and signed a Memorandum of Understanding with respondent no. 5 in the petition. Having agreed to redevelopment at the instance of the members, in accordance with Section 41A of the Gujarat Ownership Flats Act, 1973 (for short ‘the Act’), the prescribed minimum required for consent of redevelopment it was the case of the petitioner society that except for respondents no. 6 to 9 others had consented to redevelopment and but for the appellants who were respondents no. 7 & 8, the redevelopment was stopped.

3. Mr. Dipan Desai, learned counsel for the appellants who were the original respondents no. 7 & 8 assailed the order before us submitting that the process of redevelopment was undertaken by a meeting of society dated 08.06.2014. Except the present appellants and one other respondent though had agreed to redevelopment, the appellants had not handed over the possession as though there were no objections to the redevelopment, there was nothing on record to show as to how respondent no. 5 was qualified to redevelop the society. He further submitted that the Gujarat Ownership of Flats (Amendment) Rules, 2019 (for short ‘the Rules’) came into effect from 26.12.2019. The rules in the case on hand had not been followed and therefore the appellants had not vacated the flats.

4. To the contention of the non-compliance of the rules, having heard the respective parties and considering Section 41A of the Act, the learned Single Judge found that the requisite condition for redevelopment had been complied with. On the issue whether the rules in question had been complied with, and they not being adhered to, considering the Rules, particularly Rules 19(3), 20, 21 and 22 of the Rules, which the learned Single Judge has reproduced, the learned Single Judge found from the sequence of dates that the process of redevelopment had begun much before the amended rules were notified and an in principle decision had been taken a few days before the rules were notified on 22.12.2019. Considering the prospective nature of the amendment, the learned Single Judge in paragraphs no. 20.6 and 20.7 held thus:

“20.6 Now, considering the fact situation from the view point of the law laid down, it would appear that the society vide General Body Meeting held in the year 2014 i.e. atleast five years prior to the amendment in Rules, had decided to undertake the process of redevelopment. The said decision had been reiterated throughout the years till the year 2019 that the society postponing the decision for few months in the interregnum. Now, if the amendments are perused, it would appear that Rule 19(3) envisages selection of Architect / Project Management Consultant for associating the redevelopment who would prepare a redevelopment project and whereas, Rule 20 inter alia envisages the Architect / Project Management Consultant to prepare project report within two months. The Architect / Project Management Consultant is, after preparing the project, requires to notify offers, thereafter, the Secretary display the list of offers on the notice board., thereafter, Rule 22 envisages selection.

20.7 In the considered opinion of t