Maulik J. Shelat, J
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, 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, 1961â€) (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 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 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 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
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 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 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 Housing Board (Amendment) Act, 2019 (hereinafter referred to as
“Amendment Act, 2019â€), 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 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, 1949â€), vacating of shop premises by petitioners would not arise, as according to the learned 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 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 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, 1973â€) 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 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 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 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 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 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:
SECTION 60A OF ACT, 2019
“60-A. Redevelopment of buildings or apartments.â€"(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,â€
(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.â€"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 competent 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.â€.
SECTION 2 OF 5A OF THE ACT, 1961
“2. In this Act, unless there is anything repugnant in the subject or context,â€
(5A) ""building"" includes a building within the meaning of the Gujarat Ownership Flats Act, 1973;â€
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.â€
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 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 membersâ€"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 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 “includesâ€, 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 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)………………….â€
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 with the words ""in this Act, unless the context otherwise 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. 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 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 â€"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 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.
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 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 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 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. 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 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.
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.
