Can a Co-operative Housing Society That Meets Section 41-A Conditions Compel Eviction and Demolition for Redevelopment?

LawSikho
August 29, 2025
Category: High Court of Gujarat

High Court Upholds Section 41-A Framework for Redevelopment Under Art. 226; Binding Authority for Gujarat Societies

Summary

Category	Data
Case Name	SCA/12617/2023 of GUJARAT COLONY CO OP HO SOC LTD Vs STATE OF GUJARAT
CNR	GJHC240414052023
Date of Registration	20-07-2023
Decision Date	28-08-2025
Disposal Nature	38-RULE ABSOLUTE/ALLOWED @ FH
Judgment Author	HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Court	High Court of Gujarat at Ahmedabad
Bench	Single Judge (Hon’ble Mrs. Justice Mauna M. Bhatt)
Overrules / Affirms	Affirms prior LPA decision on Section 41-A compliance
Type of Law	Constitutional Petition under Article 226; Gujarat Ownership Flats Act, 1973
Questions of Law	Whether a co-operative housing society that fulfills the conditions under Section 41-A of the Gujarat Ownership Flats Act is entitled to seek eviction and demolition for redevelopment
Ratio Decidendi	When a co-operative housing society shows that: (i) the building is over twenty-five years old and declared dilapidated by the municipal authority; (ii) at least 75% of members have consented; and (iii) the Act’s procedures have been followed, the High Court under Article 226 may order eviction, demolition and redevelopment. Dissenting members may be directed to hand over possession subject to any pending civil suit determination. Court may also protect financial interests of dissenters by directing deposit of rent and transportation costs before the trial court’s Nazir.
Judgments Relied Upon	Rabari Tejmalbhai Gagabhai v. Ratnamani Co-operative Housing Society Ltd. (Letters Patent Appeal No. 1427 of 2023)
Logic / Jurisprudence / Authorities	Interpretation of Section 41-A read with Rules 18–25 of the Gujarat Ownership Flats Act; reliance on prior LPA in Rabari Tejmalbhai; exercise of inherent power under Article 226 of the Constitution
Facts as Summarised by the Court	Registered society since 28-08-1980 with 165 flats in seven blocks built in 1980; AMC notices of dilapidation issued on 29-09-2021 and 17-05-2022; resolutions passed for redevelopment with 91%+ consent; only one dissenting member remains with a related civil suit pending.

Practical Impact

Category	Impact
Binding On	All subordinate courts in Gujarat
Follows	Rabari Tejmalbhai Gagabhai v. Ratnamani Co-operative Housing Society Ltd. (LPA No. 1427 of 2023)

What’s New / What Lawyers Should Note

Clarifies that once a building is declared dilapidated by the municipal authority, is over twenty-five years old, and more than 75% of members consent under Section 41-A, the HC can order eviction, demolition and redevelopment.
Confirms that dissenting members can be directed to vacate subject to pending civil suit outcomes.
Directs deposit of rent, transportation charges and other MOU-specified payments before the Nazir of the trial court to safeguard dissenters’ financial interests.
Reinforces that compliance with Section 41-A procedural rules (resolutions, advertisements, tenders, MOU) is fatal to objections.

Summary of Legal Reasoning

The petition invokes Article 226 to enforce redevelopment under Section 41-A of the Gujarat Ownership Flats Act, 1973.
The Court reviewed AMC notices (29-09-2021; 17-05-2022) declaring the building dilapidated and unsafe.
It held that the society satisfied Section 41-A conditions: over twenty-five years old, statutory declaration of ruinous condition, and consent of more than 75% members.
Relying on Rabari Tejmalbhai Gagabhai (LPA No. 1427 of 2023), the Court affirmed that no procedural defect exists and redevelopment can proceed.
On dissent, the Court balanced the rights of the objecting member by tying possession to the outcome of a pending civil suit and ordering deposit of related costs with the Nazir.

Arguments by the Parties

Petitioner (Society)

Building is over 45 years old and structurally unsafe as per AMC notices.
All statutory procedures under Section 41-A and Rules 18–25 were followed (resolutions, tenders, MOU).
Over 91% of members consented; only one dissenter remains.
Will abide by any directions of the Civil Court in the pending suit regarding ownership and possession.

Respondent No. 18 (Objecting Member)

Ownership/possession dispute pending in Regular Civil Suit No. 176/2022.
No objection to redevelopment if possession of flat is handed over in accordance with trial court’s decision.
Requests deposit of rent, transportation and consequential charges before the Nazir of the Civil Court.

Factual Background

A cooperative housing society registered in 1980 with 165 flats sought redevelopment of seven blocks built over 45 years ago. Ahmedabad Municipal Corporation issued two notices (September 2021; May 2022) declaring the structure dilapidated and dangerous. The society passed resolutions and held meetings to invite tenders; M/s. Dynamic Infracon was selected with consent rising to 91% of members. One member dissented, maintaining a parallel civil suit on ownership.

Statutory Analysis

Section 41-A, Gujarat Ownership Flats Act, 1973: conditions for redevelopment—(i) building >25 years old, (ii) declared dilapidated by authority, (iii) consent of ≥75% members; read with Rules 18–25.
Article 226, Constitution of India: High Court’s power to issue writs and direct redevelopment under inherent powers.

Procedural Innovations

Integration of Art. 226 petition relief with pending civil suit by directing possession handover per trial court’s decision.
Direction to deposit rent, transportation costs and other payments with the Nazir of the trial court to ensure protection of dissenting members.

Alert Indicators

✔ Precedent Followed