Gopinath Apartment Co Operative Housing Society Limited v. State Of Gujarat
2024-11-19
MAUNA M.BHATT
body2024
DigiLaw.ai
JUDGMENT : Mauna M. Bhatt, J. ORDER IN CIVIL APPLICATION No.2 of 2024 This application is filed by the Petitioner seeking amendment in the prayer clause and also to bring on record certain additional documents. It is case of the applicant that in view of subsequent development during pendency of this petition, the amendment sought for is necessary. Further, the amendment prayed does not change the nature of pending proceedings. Considering the submissions and averments made in the application, the amendment sought for is allowed as it does not change the nature of the petition. The applicant is directed to carry out the amendment forthwith. Civil Application is allowed and disposed of accordingly. ORDER IN SPECIAL CIVIL APPLICATION 1. This petition is filed seeking to direct respondent No.2 (Ahmedabad Municipal Corporation) to take action under Sections 264 and 268 of the Gujarat Provincial Municipal Corporation Act (GPMC Act). It is the case of petitioner-society that it owns the land and structure thereon situated at Final Plot No.125 admeasuring 3271 sq.mtrs of land (Old Survey No.76+92), Non Agricultural land of Town Planning Scheme No.26, Mouje Vasna, Taluka Sabarmati, Ahmedabad -4 (Paldi), District Ahmedabad, and that, the construction is in a dilapidated condition which requires to be redeveloped and for that, peaceful and vacant possession from all members is required. Directions against respondent Nos.1 and 2 are also sought to aid and ensure to hand over peaceful and vacant possession of the subject premises from respondent Nos.4 to 15 for redevelopment as per Section 41A of the Gujarat Ownership Flats Act, 1973. Brief Facts: 2. The petitioner No.1 herein is a Co-operative Society (herein after referred as ‘the Society’) registered under the provisions of the Gujarat Co-operative Societies Act, 1961 having registration No.4945 with the certificate dated 12.07.1973. The said society is represented through its Chairman and Secretary in the present petition. The society is owner of the land bearing Final Plot No.124 admeasuring 3271 Sq.mtrs. (Old Survey no.76 + 92), Non-agricultural land of TP Scheme No.26, Mouje Vasna, Taluka: Sabarmati, District: Ahmedabad. The society consists of total 54 flats which are 40 years old, which are in a dilapidated condition. To ascertain the condition of the flats in question, the society had availed expert’s opinion in the form of structural stability certificate wherein, the building is stated to be unsafe to human life and requires demolition and rebuilding.
The society consists of total 54 flats which are 40 years old, which are in a dilapidated condition. To ascertain the condition of the flats in question, the society had availed expert’s opinion in the form of structural stability certificate wherein, the building is stated to be unsafe to human life and requires demolition and rebuilding. Structural Stability Certificate dated 17.11.2020 along with photographs is forming part of record at Annexure-B (page 31 to 34). 2.1. In view of dilapidated condition of the society, Resolution No. 2018/01, dated 12.05.2018 (Annexure C page 35) was passed by which a decision with consent of all members was taken to redevelop the Society and accordingly under very Resolution dated 12.05.2018, a committee comprising of 15 members was constituted to act for re-development of society. The members present in the meeting have signed the resolution. Thereafter, one more resolution No. 2019/01 dated 21.03. 2019 was passed wherein 15 members re-development committee was reduced to 9 members. Accordingly, Society’s general meeting was decided to be held on 08.10.2019 (Annexure-D2 page 40), to discuss and decide the issues (including the offers received by various developers) in relation to re-development. Minutes of the meeting dated 08.10.2019 were drawn and signed by members present. Thereafter, in AGM dated 10.03.2020 (Annexure-D4 page 50) a decision was taken by more than 75% of members to give work of redevelopment to respondent No.3. Circular letter dated 11.11.2020 (Annexure-D4 page 57) was issued. Vide circular letter dated11.11.2020 all members were informed to remain present in the meeting to be held with developer (respondent No.-3). It is case of the Society that detailed discussion was held, various issues were discussed, queries of the members were answered and resolved. After that majority members (44 out of 54) through voting had decided to assign work of redevelopment to respondent No.3. Copy of Resolution dated 27.12.2020 is at Annexure D7 page 58. Memorandum of Understanding dated 03.01.2021 was executed between members and developer whereby terms and conditions offered by respondent No.3 were approved. Thus, more than 75% members of the society have entered into tripartite Memorandum of Understanding (‘MOU’ for short) dated 03.01.2021 (Page 64 to 68). 2.2.
Copy of Resolution dated 27.12.2020 is at Annexure D7 page 58. Memorandum of Understanding dated 03.01.2021 was executed between members and developer whereby terms and conditions offered by respondent No.3 were approved. Thus, more than 75% members of the society have entered into tripartite Memorandum of Understanding (‘MOU’ for short) dated 03.01.2021 (Page 64 to 68). 2.2. It is case of the petitioner that though more than 75% members have entered into tripartite MOU and were agreeable for redevelopment of the society, the minority members who are arrayed as private respondents in the present petition have attenuated and interdicted the efforts of the petitioner – society seeking redevelopment and, therefore, the society issued notice to minority members on 22.08.2022 to sign the MOU failing which, the minority members will be liable for the peril of life and property of other members of the society. Replies were filed in response to notice dated 22.08.2022 objecting redevelopment on the ground that Structural Engineer’s certificate is vague and not specific. Consent of more than 75% members is not sufficient ground for redevelopment. Furthermore, the Developer must relocate the objecting members on the same floor with same amenities and priority must be given to objecting members to choose the area and size of the new flat. The objections raised are at Annexure H page 144 to 146. In view of the above position, the petitioner society met concerned officials of Ahmedabad Municipal Corporation – Respondent No.2 to take necessary action for providing vacant and peaceful possession from the objectors however, no positive action has been taken by the Corporation. An application dated 11.11.2022 to the Municipal Commissioner, Ahmedabad is also filed bringing out the facts as well as the provisions (Section 41A of the Act) of GOWF Act. The MOUs entered into between the parties by majority members were also brought to the notice of the authority. Despite that since no action has been taken for evicting the objectors of the society (respondent Nos.3 to 14) present petition is filed. Submissions on behalf of the petitioner 3. Learned advocate for the petitioner Mr.Premal Nanavaty invited attention of this Court to the chronology of events and submitted that firstly resolution No.2 of General Body Meeting dated 12.05.2018 was passed by which redevelopment Committee appointing 15 members was constituted.
Submissions on behalf of the petitioner 3. Learned advocate for the petitioner Mr.Premal Nanavaty invited attention of this Court to the chronology of events and submitted that firstly resolution No.2 of General Body Meeting dated 12.05.2018 was passed by which redevelopment Committee appointing 15 members was constituted. Thereafter, General meeting was held on 10.03.2020 with majority votes and accordingly offer of respondent No.3 was accepted with 39 votes out of 41 to assign redevelopment to respondent No.3. The types of flats which may have to be allotted to the existing members and conditions of allotment including proposed plans were discussed and circulated amongst all the members. After discussing all the points on 03.01.2021, the General Body gave final approval including the plans for redevelopment to respondent No.3 therefore, the contention of the objectors that procedure is not followed and decision has not been taken in a General Body Meeting by passing the resolution is factually incorrect. 3.1. Further, in view of clear language of Section 41A of the GOWF Act, only two requirements are to be satisfied for purpose of redevelopment i.e. (i) building should be 25 years old and (ii) the scheme of redevelopment has to be approved by 75% of the members. In the present case, admittedly both these conditions get fulfilled and therefore, Respondent No 2 be directed to take action for eviction and respondent Nos.4 to 14 may be directed to give peaceful and vacant possession of the property in question to respondent No.3. 3.2. Referring to the objections raised by private respondents Learned Advocate submitted that the objections raised can be summarized as under: (i) Declaration relief as sought cannot be granted. (ii) Relief prayed in this petition cannot be granted because it is akin to the relief prayed under Section 34 of the Specific Relief Act, which requires full-fledged trial. (iii) Relief sought against AMC under Section 264 and 268 of the GPMC Act, is not binding to the private respondents (objectors). (iv) The flats occupied by private respondents are in good shape and repairable. (v) Report of structural Engineer is not reliable because the same is not specific and cannot be accepted. (vi) Plans produced at (page 127) are not workable and better flats are kept reserved by the Developer. (vii) Providing of Bank guarantee is denied by the Developer.
(iv) The flats occupied by private respondents are in good shape and repairable. (v) Report of structural Engineer is not reliable because the same is not specific and cannot be accepted. (vi) Plans produced at (page 127) are not workable and better flats are kept reserved by the Developer. (vii) Providing of Bank guarantee is denied by the Developer. (viii) Since the rules vide Notification dated 15.07.2019 are not enacted therefore, Section 41A cannot be enforced All these objections are considered and dealt with by this Court in the following decisions and therefore the issue involved in this petition is no more res-integra and therefore the petition deserves to be allowed. The decisions are: 1. Special Civil Application No.5555 of 2024 Dated 19.09.2024, in the case of Patel Baug Co-operative Housing Society Limited & Anr. vs. State of Gujarat & Ors. 2. Letters Patent Appeal No.1427 of 2023 Dated 08.12.2023, in the case of Rabari Tejmalbhai Gagabhai vs. Ratnamani Cooperative Housing Society Ltd. Through Chairman Prakashkumar Gatttubhai Solanki. 3.3 Therefore, the AMC and private respondent Nos.4 to 14 may be directed to give peaceful vacant possession to the petitioner – society so that redevelopment can be carried out. Submissions on behalf of Respondent No.3 4. Learned senior counsel Mr.Yatin Oza appearing for respondent No.3- Developer submitted that the language of Section 41A of the Gujarat Ownership Flats Act is clear and unambiguous. The two conditions as referred in Section 41A of GOWF Act are fulfilled and therefore, private respondent Nos.4 to 14 may be directed to give vacant peaceful possession of the subject property to respondent No.3. Learned Senior Advocate submitted that along with submissions made by Mr. Nanavati for the petitioner, following submissions may be considered. 4.1. The Petition seeking writ of mandamus is maintainable in view of the decision of this Court in Letters Patent Appeal Nos.1075 of 2022, 1427 of 2023 and 653 of 2024. Relying upon para 35 of the decision in Letters Patent Appeal No. 1075 of 2022, learned Senior Advocate submitted that the very contention has been dealt with by observing that the petitioner – society has met with and complied with the provisions enumerated in 41A of the Act and once the society has decided to go for redevelopment, the order of learned Single Judge has not been disturbed and consequently the redevelopment process initiated by the society was permitted to go on.
Therefore, private respondent Nos.4 to 14 may be directed to give peaceful vacant possession of the property in question. Submissions on behalf of Private Respondents (Respondents No. 4 to 14): 5. Strenuously opposing the submissions made by learned advocates for the petitioner and respondent No.3, learned advocate Mr. Brijesh Trivedi with learned advocate Mr. Vivek Bhamare made following submissions: - (i) The petition is not maintainable since it is filed without authorization by General Body Meeting of Society. Referring to Section 37 of the Gujarat Co-operative Societies Act, 1961 (the Act, 1961’ for short) learned advocate submitted that as per Section 37 of 1961 Act the petitioner - Society is a body corporate and a distinct legal entity. Section 74 of the 1961 Act refers to power and functions of the committee. Section 78 of the 1961 Act, refers to Special General Meeting and a conjoint reading of Section 37 r/w Section 74 and 78 makes it clear that no proceedings can be initiated by the Society or any of its committee unless empowered by General Body Resolution. (ii) Further, Gujarat Co-operative Society Rules, 1965 (‘the Rules 1965’ for short) provides for procedure wherein Rule 33 refers to power of Managing Committee, Rule 34 provides for Duties of Managing Committee and Rule 42 refers to manner in which dispute under Section 96 is to be instituted. In view of above Rules also, Managing Committee is not empowered to institute proceedings without General Body Resolution. (iii) Further, Rule 42 refers to manner of referring dispute in FORM F, in which Clause 3 mandates resolution by General Body Meeting. Therefore, in absence of any resolution by the society in its General Body, the decision taken for redevelopment is erroneous. From the facts on record, it is evident that the resolution dated 14.11.2022 was passed by redevelopment committee and not by General Body Meeting of the Society and therefore, the resolution dated 14.11.2022 has no recognition in eye of law. (iv) Learned advocate further submitted that the resolution dated 14.11.2022 was not forming part of the petition when the petition was filed. The resolution dated 14.11.2022, was incorporated by way of an amendment and therefore the same deserves to be ignored. Further, the resolution dated 14.11.2022 not being passed in General Body Meeting, deserves to be ignored.
(iv) Learned advocate further submitted that the resolution dated 14.11.2022 was not forming part of the petition when the petition was filed. The resolution dated 14.11.2022, was incorporated by way of an amendment and therefore the same deserves to be ignored. Further, the resolution dated 14.11.2022 not being passed in General Body Meeting, deserves to be ignored. In support of his submissions, learned advocate relied upon following decisions with the proposition that proceedings initiated without proper authorization are not maintainable. In the case of State Bank of Travancore v/s. Kingston Computers 2011 (11) SCC 524 – Para 8 to 14 In the case of P Nazeer v/s. Salafi Trust AIR 2022 SC 1580 – Para 16 Thus, the petition may be dismissed only on the ground that resolution dated 14.11.2022, was passed by redevelopment committee and not by society in its general body meeting. 5.1. Further, since the petitioner has alternative remedy under the provisions of the Gujarat Co-Operative Society Act 1961, this petition deserves to be dismissed. On the aspect of alternative remedy, Learned Advocate submitted that the issue involved in this petition is to resolve inter se dispute between members of the Society. Section 96 of the Act, 1961 defines ‘Dispute’ for adjudication by the Board of Nominees and since the dispute raised in this petition falls within the purview of Section 96 of 1961 Act, present petition may be rejected on this ground. Moreover, Section 98 and 99 of the Act, 1961 outlines the adjudication procedure before the Board of Nominees, granting the said authority to take evidence, issue decrees and execute the decrees. The action of redevelopment is challenged in Lavad Suit No. 11 of 2023 before the Board of Nominees, Ahmedabad. In the decisions relied upon by the Society no proceedings were pending before appropriate forum and therefore, the decision that there is no bar on alternative remedy in redevelopment cases would not be applicable. 5.2. In this case the Society is seeking directions by placing reliance on the provisions of Gujarat Ownership Flats Act 1973. Section 18 of 1973 Act defines competent authority and as per the said Section, Registrar of Co-operative Societies is competent authority to adjudicate any dispute under the Gujarat Ownership Flats Act, 1973. Therefore, also since the petitioners have alternative remedy the present petition deserves rejection. 5.3.
Section 18 of 1973 Act defines competent authority and as per the said Section, Registrar of Co-operative Societies is competent authority to adjudicate any dispute under the Gujarat Ownership Flats Act, 1973. Therefore, also since the petitioners have alternative remedy the present petition deserves rejection. 5.3. The prayers prayed in the petition are not maintainable in a writ jurisdiction because the prayers sought are as under:- (i) A declaration that the society fulfills the requirement of Section 41A of the Gujarat Ownership Flats Act, 1973, making it eligible for redevelopment. (ii) A direction to Respondent No.2, Ahmedabad Municipal Corporation, to initiate proceedings under Section 264 and 268 of the GPMC Act for the entire society. 5.4. The first relief sought by the petitioner seeking declaration may be pursued through a suit under Section 34 of the Specific Relied Act. Moreover, a writ petition for such a declaration is not maintainable as per decision in the case of S. S. Developers V/s. Office of the Joint Director, Enforcement Directorate, Chennai reported in AIR Online 2021 MAD 1217. 5.5. The second relief sought by the petitioner regarding action under Section 264 and 268 of the GPMC Act would not be binding on them. Respondent No. 2 can only evict the owner or occupier of a building in dilapidated condition and present respondent’s block is not in such condition. The condition of the apartment where respondent Nos 4 to 14 reside, is not supported by report of structural engineer. The report filed by the Structural Engineer is general in nature. The property in question contains various blocks and the report nowhere mentions that the block belonging to private respondents deserves to be demolished. 5.6. Further, the prayer for action under Section 264 of the GPMC Act, 1949 is prayed against respondent No. 2 – Ahmedabad Municipal Corporation. Respondent No. 2 has yet not clarified its position and has not given any certificate in relation to dilapidated condition of the property in question more particularly in respect of block of private respondents. The petitioner after having received the reply by the respondents have filed Civil Application No. 1 of 2024 seeking amendment however the same has been objected by the respondents by filing their affidavit and therefore the application seeking amendment deserves to be rejected. 5.7. Further, the Structural Report on which heavy reliance has been placed is defective.
The petitioner after having received the reply by the respondents have filed Civil Application No. 1 of 2024 seeking amendment however the same has been objected by the respondents by filing their affidavit and therefore the application seeking amendment deserves to be rejected. 5.7. Further, the Structural Report on which heavy reliance has been placed is defective. The structural report at Annexure- B Page No. 31 refers to the condition of the subject property as ruinous. The said report is highly questionable since it does not give the exact details of the property and the same was not available at the time of passing the respective Resolutions. There are several disputed questions of fact questioning authenticity of the structural report. 5.8. The doctrine of Substantial Compliance allows for pardoning of non-compliance with ancillary or inconsequential conditions, distinguishing between essential and non-essential provisions. Therefore, essential condition of any Statute or Rule cannot be dispensed with. In the present case, petitioner is seeking compliance of Section 41A of the Gujarat Ownership Flats Act, 1973 which has been introduced to the Statute by way of Gujarat Amendment No. 5 of 2019 dated 21.05.2019. Section 44 of the Gujarat Ownership Flats Act, 1973 provides for power to make rule for carrying into effect the provisions of the Act. Along with Section 41A legislature in exercise of powers conferred by clause (e) of Sub-Section 2 of Section 44 introduced amendment to the Gujarat Ownership Flats Rules, 1973 named Gujarat Ownership Flats (Amendment) Rules, 2019 vide notification dated 26.12.2019. These Rules were meant to take effect from the date of publication in the official gazette, until then, they remain draft rules. In view of multiple decisions of this Court and the Supreme Court, provisions cannot be deemed redundant in absence of notified Rules, and draft rules may be treated as final of implementing 1973 Act. There is complete noncompliance of these Rules by the Society. Rules 19 to 22 of 2019 Rules provides for following procedure:- i. Calling for meeting to discuss redevelopment ii. Appointment of Architect/Project Management Consultant iii. Preparing the re-development project by Architect/Project Management Consultant iv. Preparing list of offers received v. Selection of developers vi. Agreement with developers 5.9. Above Rules were introduced to safe guard interest of members of Society.
Rules 19 to 22 of 2019 Rules provides for following procedure:- i. Calling for meeting to discuss redevelopment ii. Appointment of Architect/Project Management Consultant iii. Preparing the re-development project by Architect/Project Management Consultant iv. Preparing list of offers received v. Selection of developers vi. Agreement with developers 5.9. Above Rules were introduced to safe guard interest of members of Society. Rules introduced along with Section 41 A of 1961 Act are to be mandatory if Section 41A of 1961 Act is construed to be mandatory. Since no procedure was followed as mandated under Rule 19 to 22 of the Gujarat Ownership Flats (Amendment) Rules, 2019 no relief can be granted to the petitioner. It is evident that there is flagrant violation of Rule 19 to 23. 5.10. Further, the society had not taken any technical or financial advice for redevelopment till date. The reliance placed by the society on the Structural Engineer’s Report being not authentic, no relief can be granted since the redevelopment is offered for the personal gain which jeopardizes the benefits to Society at large. 5.11. Moreover, there are defects in the proposed plan. The plan produced by the society at Page No. 127 of the petition is defective on various counts. The main concern of the private respondents is that the proposed plan is not convenient and it would cause more prejudice to the respondents if they agree to the proposed redevelopment plan. 5.12. In support of his submissions, he relied upon the decision of the Supreme Court in the case of M/s. Shatistar Builders V/s. Narayan Khimanlal Totame and Ors., (1990) 1 SCC 520 to submit that the perspective that just because respondent No. 3 herein is giving new building would not absolve respondent No. 3 from giving a habitable building. 5.13. The petitioner – society has no power of eviction since the eviction is sought by placing reliance on Section 41A of the Gujarat Ownership Flats Act, 1973. The Registrar of Co- operative Societies being the competent authority has exclusive jurisdiction to adjudicate the dispute under this Act and therefore the significant power of eviction can only be exercised after through scrutiny of all claims from both the sides. 5.14. In view of above, the petition being devoid of merits the same may be rejected. 6.
The Registrar of Co- operative Societies being the competent authority has exclusive jurisdiction to adjudicate the dispute under this Act and therefore the significant power of eviction can only be exercised after through scrutiny of all claims from both the sides. 5.14. In view of above, the petition being devoid of merits the same may be rejected. 6. Learned advocate Mr.Deep Vyas for respondent No.2 submitted that though relief is prayed against respondent No.2, the role of Municipal Corporation in only with regard to development permission and in respect of the said prayer , the same shall be considered in accordance with law. Analysis and findings: - 7. Considered the submissions and also perused original file produced by the petitioner. For adjudication of the issues involved, revisitation of following facts would be necessary. (i) The society circulated a letter on 01.05.2018 with the subject: “To take consent of members by their physical presence for re-development of Gopinath Flats.’’ It was stated in letter dated 01.5.2018, that for the subject stated above, a General Body Meeting is decided to be held on 12.05.2018 at 9.PM in Society’s Compound. Members presence is a must. Absentism of members will be construed as their implied consent. (ii) Accordingly General Body Meeting was held on 12.05.2018 and Resolution No.2018/01 was passed. In the said meeting, with the consent of members, a decision was taken for redevelopment of the society. It was also decided to form a redevelopment committee to carry out work of re-development. A committee of 15 members was also constituted with their names as referred in page no-2, of resolution to do the needful in relation to redevelopment of Society. The resolution also refers that Society’s Chairman and Secretary have consented for formation of re-development Committee and to assign them work for re-development. The resolution dated 12.05.2018 was signed by 29 members. (iii) Thereafter, a General Body Meeting was held on 08.10.2019, to discuss the offers received by re-development Committee from various developers and also for the expenses for re-development. Members present had signed, the minutes of the meeting. (iv) Thereafter, Annual General Meeting (AGM) was held on 10.03.2020, where majority members (39 out of 41 votes) have accepted the offer of respondent No.3 as developer to redevelop the Society.
Members present had signed, the minutes of the meeting. (iv) Thereafter, Annual General Meeting (AGM) was held on 10.03.2020, where majority members (39 out of 41 votes) have accepted the offer of respondent No.3 as developer to redevelop the Society. In the minutes of meeting, it was also recorded that 1 out of 54 members had not consented for redevelopment and 3 out of 54 members have not given any reply. The type of flats which may have to be allotted to the existing members, the manner of allotment and condition of allotment including proposed plan were discussed and circulated amongst all the members. Minutes of the Annual General Meeting justifies such action. Accordingly, one circular dated 09.08.2020, was issued under the signature of Chairman and Secretory of the Society and also signed by respondent No.3. The said circular broadly refers to the terms and conditions between the parties. Consent accorded by 48 members out of 54 members is on record. Therefore, the contention of the Society that more than 75% of members have consented for redevelopment to be carried out by respondent no.3, merits acceptance. By one more circular dated 11.11.2020, members were informed to attend presentation on re-development by respondent no.3. It was also informed that lay-out plan will be given by respondent no.3 for redevelopment. The minutes of meeting dated 27.12.2020 records all details, in relation to redevelopment. Finally, on 03.01.2021 approval for redevelopment was given to respondent No.3 and accordingly MOU was entered between members of Society and respondent No.3 for new allotment after re-development. Therefore, the contention of private respondents that decision in relation to re-development was not taken by passing resolution in a General Body meeting is far from facts and not accepted. The society gave final approval through its majority members for development contract to be given to respondent No.3 and accordingly plans and other documents were submitted. Thus, there is no dispute to the fact that more than 75% (in this case 95%) have consented for redevelopment and the work to be given to respondent No.3. The structural report justifies the dilapidated condition of the apartment and its necessity for redevelopment. Therefore, contention of the Society that both the conditions of Section 41A of GOWF Act 1973 are fulfilled is justified. 7.1.
The structural report justifies the dilapidated condition of the apartment and its necessity for redevelopment. Therefore, contention of the Society that both the conditions of Section 41A of GOWF Act 1973 are fulfilled is justified. 7.1. As against above findings, the objections raised by respondent Nos.4 to 14 can be summarized as under: (i) Declaratory relief cannot be granted by this Court under Article 226 of the Constitution of India. (ii) The prayer made is akin to relief under Section 34 of Specific Relief Act and therefore cannot be granted in this petition. For such relief, Suit is to be filed which requires full-fledged trial. (iii) Relief sought against Ahmedabad Municipal Corporation under Sections 264 and 268 of GPMC Act is not binding to the contesting respondents. The flats/apartments occupied by private respondents are in good condition and not in dilapidated condition. The Structural report relates to one block and that also is repairable. (iv) Report of Structural Engineer is not reliable and deserves to be ignored. (v) Plans approved in General Meeting are not workable because the better flats were reserved by Developer which caused prejudice to the members of the society. Giving of bank guarantee which is the most important aspect has been denied by respondent No.3-developer. If anything goes wrong than the suffers would be members of the society which deserves consideration by this Court. Since rules vide notification dated 15.07.2019 are not enacted, Section 41A GOWF Act cannot be enforced. 7.2. Upon consideration of the objections raised, it is noticed that Coordinate Bench of this Court as also the Division Bench of this Court in the Swami Vivekanandnagar Cooperative Housing Society Limited vs. Ahmedabad Municipal Corporation reported in 2022 (4) GLR 2732 and (2) Sarojben Kiritbhai Shah Since Decd Through Heirs vs. Ahmedabad Municipal Corporation reported in 2023 (0) AIJEL-HC 244941, has considered this aspect. Since the very issue has been considered by this Court it would be apposite to refer to the said judgment wherein it is held as under: “48. It is true that there is no provision in the Act of 1973 for eviction of the members, but there lies a fallacy in the submission inasmuch as, there is no eviction and it is only temporary shifting for the betterment and in the larger interest of the members of the Society and in larger public interest.
It is true that there is no provision in the Act of 1973 for eviction of the members, but there lies a fallacy in the submission inasmuch as, there is no eviction and it is only temporary shifting for the betterment and in the larger interest of the members of the Society and in larger public interest. After the flats are constructed the private respondents and other members will be given possession and will occupy their respective flats once again and resultantly, no deprivation of the property. Hence, the submission of no provision of eviction and consequent eviction, is ill-founded and misplaced. 49. The contention that no mandamus can be issued to the private respondents, as there is no provision for eviction; notably, the petition and prayer in the petition is not against the private respondents in exclusivity, but also seeking direction against the Corporation, which is undoubtedly a statutory body. Now, in view of the development permission granted, this Court in exercise of its powers under Article 226 of the Constitution of India, can very well require the private respondents to handover the possession in furtherance of the development permission more particularly, considering the conditions of the buildings. Moreover, the petition has been filed by the Society, which is registered under the provisions of the Cooperative Societies Act, majority of the members have taken a decision according redevelopment. Perceptibly, the decision of the Society or the body going in redevelopment, has not been assailed by the private respondents before the appropriate forum or has taken any restraint order against the Society. Apt would be the judgment, in the case of Aditya Developers (supra) wherein it has been observed that – “By now it is well established position that once a person becomes a member of the Cooperative Society, he loses his individuality with the Society and he has no independent rights except those given to him by the statute and Bye-laws. The member has to speak through the Society or rather the Society alone can act and speaks for him qua the rights and duties of the Society as a body”. It has also been observed and held that the members cannot take stand-alone position but are bound by the majority decision of the General Body.
The member has to speak through the Society or rather the Society alone can act and speaks for him qua the rights and duties of the Society as a body”. It has also been observed and held that the members cannot take stand-alone position but are bound by the majority decision of the General Body. The learned counsel is right therefore, in contending that the objection raised by the private respondents that there is no privity of contract between the private respondents on one hand and the petitioner-society on the other, is not maintainable. In the present case, it is not disputed that the private respondents are the members of the Society and the General Body/ Executive Committee of the petitioner - society, if has taken a decision, consisting majority of the members, which is in conformity with the provisions of Section 41A of the Act of 1973, the objection of the private respondents, can hardly be maintained and therefore, it is rejected. 50. In the present case, though no notice has been issued, requiring the demolition of the property, however, the fact remains that there is a notice under Section 264 issued to the Society for carrying out necessary repairs and restrengthening of the building. Additionally, there are reports by the Structural Engineer, so also the soil testing laboratory that the condition of the building is dilapidated and requires urgent and is not fit for its safe use. Advise is also given that considering the damages and the condition of the building, it is desirable to demolish the building and reconstruct the same. Therefore, when there is a opinion by the expert that the building is not safe for its use and it should be reconstructed, there is no reason available to the private respondents to oppose the redevelopment only on the ground that the procedure adopted by the Society, is unjust and improper. 51. So far as the condition of the building is concerned, perceptibly, it is in dilapidated condition and likely to fall, which is supported by the opinions of the experts. It is thereafter that the issue will arise as to whether the procedure has been followed by the petitioner - society going for redevelopment.
51. So far as the condition of the building is concerned, perceptibly, it is in dilapidated condition and likely to fall, which is supported by the opinions of the experts. It is thereafter that the issue will arise as to whether the procedure has been followed by the petitioner - society going for redevelopment. Some steps were taken by the petitioner - society for the period from February, 2018 to December, 2019 and after the enactment of Section 41A of the Act of 1983, the General Body/Executive Committee has taken a decision with majority of members for redevelopment. Therefore, so far as the requirement as contained in the provisions of Section 41A, stands fulfilled. Once the requirement under Section 41A is fulfilled, the issue then will arise as to whether the procedure as provided under the Rules has been observed by the petitioner - society. 52. So far as the judgments relied upon by the learned counsel appearing for the private respondents and more particularly, the respondent no.9.1, it is required to be noted that there is no quarrel to the proposition that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. Pertinently, the Rules of 1974 are framed in exercise of the powers conferred by clause (e) of sub-section (2) of Section 44 read with Section 41A of the Act of 1973 and therefore, the rules are statutory in nature and to be adhered to. In the facts of the present case, it can be safely stated that there is substantial compliance of the rules; however, the minor aberrations cannot be fatal to the procedure adopted by the petitioner – society. 53. xxxxxxxx 54. At the cost of repetition, so far as the observance of the provisions of the Act and of the Rules are concerned, pertinently the procedure was adopted by the petitioner – society seeking consent and has got consent of more than 75% of the members and after the enactment/introduction of the provisions of Section 41A of the Act of 1973, the petitioner – society has it its general body meeting dated 16.6.2020 and 12.7.2020, ratified the earlier procedure and therefore, it will not dis-entitle the petitioner – society seeking development.
If at all there is some aberration in the procedure, it will be for the appropriate authority to take action. In absence of any challenge to the decision of the general body, so also the development permission, the contention of the private respondents, would be misplaced. 55. In view of the aforementioned discussion, the petition, deserves to be allowed and is accordingly allowed. The petitioner society is permitted to act as per the development permission dated 5.3.2022 and the private respondents are directed to handover the possession of the respective flats for the purpose of redevelopment within a period of eight weeks from the date of the receipt of copy of this CAV judgment. Rule is made absolute to the aforesaid extent. No order as to costs. 56. In view of the disposal of the captioned writ petition, the connected Civil Applications, do not survive and also stand disposed of.” 7.3. Further in the decision in the case of Sarojben Kiritbhai Shah Since Decd Through Heirs vs. Ahmedabad Municipal Corporation reported in 2023 (0) AIJEL-HC 244941 upholding the decision of learned Single Judge, Division Bench of this Court has held as under: “50. A plain reading of the above rules would indicate that it would reiterate what is stated in Clause (i) and (ii) of the proviso to Section 41A; it also mandates that such re-development can take place either at the instance or requisition 1/4th members of the flats or the apartment as the case may be or suo moto by convening meeting of the managing committee or special general meeting within a period of one month. The managing committee is required to place before the general body of its members the agenda item for taking a policy decision relating to redevelopment of a building and it is left to the discretion of the members to take decision and in the event of a decision is taken to re-develop and consent is given by the members, such consent should not be less then 75% of the total number of the members of the body for redevelopment of a building.
Sub-Rule (3) also provides for selection of Architect, Project Management Consultant to prepare a re-development project and the general body is empowered to authorize the managing committee to take all other necessary steps for redevelopment of the project and thereafter all the members of the building are required to be informed with regard to the policy decision of re-development of the building taken at such meeting. All these steps having been undisputedly taken by the petitioner society as already noticed by us hereinabove and this is also as discussed by the learned Single Judge in paragraph 43 onwards. Repetition of same would only burden this order. Hence, we are of the considered view that there is substantial and complete compliance of Section 41A of the Act and Rule 18 and 19. 51. In the instant case, it requires to be noticed that thrust of the argument of Mr. Yatin N. Oza, learned Senior Advocate appearing for respondent No.3 is to the effect that writ court is exercising powers of a civil court by directing eviction of the occupant of a flat and same is impermissible. He has also contended that unlike in Maharashtra Housing and Area Development Act, 1976 wherein Section 95A provides for summary eviction of occupiers when consent of not less than 70% of the members of the society or association agreed for redevelopment, there is no such provision in the Gujarat Ownership Flats Act, 1973 and as such he has relied upon the judgment of the Hon’ble Apex Court that statutes have to be interpreted by applying literal rule of interpretation. It would be a benefit to note the propositions of law laid down by the Hon’ble Apex Court in this regard viz. in the case of Raghunath Rai Bareja and Another vs. Punjab National Bank and Others [(2007) 2 SCC 230] whereunder it came to be held as follows: “40. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute.
The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB vs. Securities and Exchange Board, India, AIR 2004 SC 4219 . As held in Prakash Nath Khanna vs. C.I.T. 2004 (9) SCC 686 , the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, especially when a literal reading thereof produces an intelligible result, vide Delhi Financial Corporation vs. Rajiv Anand 2004 (11) SCC 625 . Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh vs. Road Rollers Owners Welfare Association 2004(6) SCC 210, and the Court should not seek to amend the law in the grab of interpretation.” 52. At the outset, it requires to be noticed that by calling upon the occupant (respondent No.9) to vacate the premises by issuance of writ of mandamus, there is no order of eviction is passed. The resolution of the general body of members passed by the majority (now all the members having consented for redevelopment except respondent No.9) would indicate that during the period of redevelopment taking place, all the occupants of the existing property who are in occupation of their respective flats would be provided alternate accommodation in a rented premises and rent of the such premises would also be paid by the developer himself. Thus, there is no eviction or dispossession. Eviction in terms of the prevalent rent laws or ejectment of an occupant from the suit property as contemplated under the Transfer of Property Act would mean to dispossess a person in occupation of a premises under the authority of law by putting an end to such right.
Thus, there is no eviction or dispossession. Eviction in terms of the prevalent rent laws or ejectment of an occupant from the suit property as contemplated under the Transfer of Property Act would mean to dispossess a person in occupation of a premises under the authority of law by putting an end to such right. In other words, eviction means right to reside or occupy ceasing or such right getting terminated by operation of law. In the instant case, respondent No.9 is neither dispossessed nor evicted but has only been directed to be shifted to an alternate premises which she/they would continue to reside till redevelopment takes place. Temporary shifting of residents of a premises in redevelopment project would not amount to dispossession or eviction as sought to be contended. In fact, appellant is not deprived of the property viz. residential accommodation at all. 53.xxxxxxxxx 54. Having affixed their signatures to the resolutions and having not questioned the resolutions so passed by taking appropriate steps, respondent Nos.5 to 8 herein as well as the appellant are estopped from contending contrary to the same, inasmuch as they are bound by resolutions for which they have affixed their signatures. Hence, we are of the considered view that no prejudice is caused to the appellant or similarly placed persons as discussed in detail by the learned Single Judge vide paragraph 37. In that view of the matter, we are unable to accept the contentions raised by learned Senior Advocate appearing for the appellant. For the reasons aforestated, we proceed to pass following: JUDGMENT : (i) Letters Patent Appeal No. 1075 of 2022 is hereby dismissed; (ii) The judgment dated 21.6.2022 passed by the learned Single Judge in Special Civil Application No.8530 of 2019 is affirmed; (iii) No order as to costs. (iv) All pending application stands consigned to records.” 7.4. Apart from the above two decisions, this Court in a very recent decision in Special Civil Application No.5555 of 2024 dated 19.09.2024 in the case of Patel Baug Co-operative Housing Society Limited & Anr. vs. State of Gujarat & Ors. has after taking into consideration various objections raised which are similar to the objections raised in the present petition has held as under: “Analysis:- 10.
vs. State of Gujarat & Ors. has after taking into consideration various objections raised which are similar to the objections raised in the present petition has held as under: “Analysis:- 10. Having heard the learned advocates appearing for the respective parties, following emerge: 10.1 The petitioner is a co-operative housing society registered on 30.11.1959 vide registration No.2599 and is the owner and occupier of the land bearing Final Plot No.486 in TP Scheme No.21, Ambawadi, admeasuring 10197 sq. mtrs. The petitioner society has in all 192 members. The petitioner society for its members got constructed 132 flats comprising of 1 BHK and 2 BHK upon receipt of necessary development permission and Building Use permission on 15.02.1986 from the respondent No.2. Since there was encroachment in the society though, 60 members of the society were allotted flats, the same were not constructed. However, encroachment over the land area of 2800 sq. yards for those 60 members was cleared and the said land is kept vacant for the said 60 members. The registered name of the society is Patel Baug Cooperative Housing Society Limited and is named as Kamla Apartments; the name being given by the members of the Kamla Apartments. 10.2 Considering the hardships faced by the members of the society, majority of members of the petitioner society decided to go for redevelopment of the society. In the year 2021, the petitioner society resolved to go for redevelopment. Offers came to be invited from various developers by the members of the society. The offer of the respondent No.3 came to be finalized vide letter dated 05.01.2022 for the purpose of redevelopment of the petitioner society. 10.3 The petitioner herein engaged licensed Structural Engineer of the respondent No.2 to assess the structural strength of the existing construction. The Structural Stability Report dated 10.02.2022 is duly produced at Annexure – E, page 162 to the petition wherein, it is certified that the building is not fit in strength and stability criteria and necessary measures are required to be taken to avoid fatal damage. 10.4 In a General Meeting held by the petitioner society on 14.02.2022, majority of the members of the petitioner society remained present and consented for redevelopment. Subsequent thereto, out of 192 members, majority of the members of the petitioner society have executed Memorandum of Understanding (MOU) with the respondent No.3.
10.4 In a General Meeting held by the petitioner society on 14.02.2022, majority of the members of the petitioner society remained present and consented for redevelopment. Subsequent thereto, out of 192 members, majority of the members of the petitioner society have executed Memorandum of Understanding (MOU) with the respondent No.3. The respondent Nos.4 to 11 have raised objections however, the members have not challenged the redevelopment procedure or the resolutions of the society, which is going on since the year 2018 before any Court of law. In view thereof, out of 192 members, 96% members are consenting for the redevelopment. 10.4.1 Pending the present petition, the respondent No.11 is agreed to redevelopment and has entered into MOU with the petitioner society and the respondent No.3 herein. The respondent No.10 has entered into MOU and was consenting for redevelopment however, has not signed the development agreement. 10.5 The society issued title clearance notice in the newspaper wherein, a reply was filed by the respondent No.5. The development permission for the redevelopment project is also issued by the respondent No.2 on 06.11.2023 and therefore, necessary statutory formalities and procedure for commencing redevelopment project, has also been completed. The development permission dated 06.11.2023 is duly produced at Annexure – J to the petition. In light of the Memorandum of Agreement, development permission for the new project as well as development agreement, the petitioner society has substantially complied with the Gujarat Ownership Flats Act, 1973 (for short ‘the Act, 1973’) more particularly, Section 41A of the Act, 1973.” 7.5. Therefore, in the opinion of this Court since the objections raised by the petitioners having been considered by this Court, this Court deems it appropriate not to independently consider the same. Further, in the decision of this Court in Letters Patent Appeal No.1427 of 2023, in the case of Rabari Tejmalbhai Gagabhai vs. Ratnamani Cooperative Housing Society Ltd. Through Chairman Prakashkumar Gatttubhai Solanki. dated 08.12.2023 after taking into consideration provisions of the Gujarat Ownership Flats Act, 1973 it has been held as under: “8.
Further, in the decision of this Court in Letters Patent Appeal No.1427 of 2023, in the case of Rabari Tejmalbhai Gagabhai vs. Ratnamani Cooperative Housing Society Ltd. Through Chairman Prakashkumar Gatttubhai Solanki. dated 08.12.2023 after taking into consideration provisions of the Gujarat Ownership Flats Act, 1973 it has been 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 twentyfive 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. 9. 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. 10. 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.
There is also no dispute about the date of development permission having been granted for the building as disclosed in the writ petition. 10. 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.
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. 11. 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. 12. 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.
There are no allegations of fraud or violation of any of the procedures prescribed in the Rules as noted hereinabove. 12. 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. 13. Subject to the above observations and directions, the appeal stands dismissed. Consequently, connected Civil Application also stands disposed of. No order as to costs.” 7.6. On the aspect of objection in relation to the maintainability of the petition on the ground that declaratory relief cannot be granted by way of filing writ petition under Article 226 of the Constitution of India, learned senior counsel Mr.Oza has relied upon the decision of this Court in Letters Patent Appeal No.653 of 2024 in Special Civil Application No.9304 of 2023 vide order dated 05.07.2024 holding as under:] “31. In view of the provisions contained in Sections 20, 21, 22 and 23 of the Act' 1973, noted herein above, we may record that the appellant cannot claim any right, title or interest in the common area, viz. the open space utilised by him for commercial purposes in the garb of a permission granted by the Society vide resolution dated 14.05.1978. 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.
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. 33. 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. 34. The plea of the appellant to dismiss the Writ petition being not maintainable is, thus, out rightly rejected.” 7.7. Thus, the contention raised by the private respondents that this petition is not maintainable is misconceived in view of the above referred decision. 7.8. Moreover, on the aspect of not following the procedure as contemplated under the Gujarat Co-Operative Societies Act 1961, learned Senior Counsel has relied upon the decision in the case of United Bank of India vs. Naresh Kumar and Ors. (1996) 6 SCC 660 wherein it is held as under: “10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any.
(1996) 6 SCC 660 wherein it is held as under: “10. It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, therefore, provides that in a suit by or against a corporation the Secretary of any Director or other Principal Officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition, thereto and dehors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of its officers a corporation can ratify the said action of its officer in signing the pleadings. Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.” 7.9.
Such ratification can be express or implied. The court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by its officer.” 7.9. Thus, in view of the resolutions, dated 12.05.2018, 8.10.2019 and 10.03.2020 passed by General Body, the objections raised by the private respondents are not required to be considered. 7.10. Now, this Court is taking up the decisions relied upon by learned advocate Mr.Trivedi for private respondent Nos.4 to 14. 7.11. Learned advocate Mr.Trivedi relied upon the decision of the Hon’ble Supreme Court in the case of P Nazeer etc. vs. Salafi Trust & Anr. etc to submit that the petition filed without authorization to the Chairman is bad in law. In the opinion of this Court, the same would not be applicable in the facts of the present case since as stated earlier a decision in General Body Meeting was taken on 12.05.2018 whereby majority members have consented for redevelopment and accordingly a committee has been constituted for redevelopment of the society. Further, as can be seen from resolution dated 12.05.2018, it is evident that all members have signed and consented for the same. Therefore, this decision has no application in the facts of the present case. 7.12. Another decision relied upon by learned advocate Mr.Trivedi of Hon’ble Supreme Court in the case of State Bank of Travancore vs. Kingston Computers(I) P Ltd., wherein it is held that unless a resolution is passed by a proper mode the suit filed on behalf of the appellant is not maintainable in absence of valid authorization. In this case, it is lastly contended that the resolution dated 14.11.2022 was not placed in the original petition and it was subsequently placed by way of amendment, the petition deserves to be dismissed. In the opinion of this Court the said decision would not be applicable since there is evidence to the effect that the resolution was passed in a General Body Meeting for redevelopment and accordingly, redevelopment Committee was constituted. Therefore, in the opinion of this Court, the decision relied upon by learned advocate has no application in the facts of the present case. 7.13. Lastly, learned advocate Mr.
Therefore, in the opinion of this Court, the decision relied upon by learned advocate has no application in the facts of the present case. 7.13. Lastly, learned advocate Mr. Trivedi submitted that decision relied upon by learned advocate for the petitioner in the case of Bhavdeep Cooperative Housing Society Ltd. through Ushaben Natvarbhai Amin & Ors. vs. State of Gujarat & Ors. reported in 2024 LawSuit (Guj) 535 cannot be relied upon due to injunction granted in Suit No. 683 of 2024. However, this submission is not acceptable for two reasons. Firstly, the ratio laid down by this court still holds the field. Secondly, a perusal of the injunction order granted in the suit would reveal that the issue was with regard to title of the property which was subject matter of the suit. CONCLUSION: 8. In the opinion of this Court as held by various decisions relied upon herein above, the two conditions which are mandatory in nature under Section 41A of GOF Act have been fulfilled in the present case and therefore, the present petition is required to be considered under Section 41A of the GOWF Act. 9. This Court under Article 226 of the Constitution of India would like to exercise its jurisdiction by not considering the objections raised by private respondents. 10. With the aforesaid reasons, the prayers prayed for in the present petition are required to be allowed and the same are allowed. 11. Respondent Nos. 4 to 14 are directed to vacate their respective flats in the petitioner – society and to hand over peaceful and vacant possession for redevelopment under Section 41A of the Gujarat Ownership Flats Act, 1973 within a period of eight weeks from the date of copy available of this order. It is also further directed that all members of the society are directed to cooperate with the redevelopment of the society. 12. With the above directions, the petition is allowed. Rule is made absolute. 13. Consequentially, Civil Applications, if any, also stands disposed of.