Sprat (Society For Promoting ... vs Ahmedabad Municipal Corporation ...
2021 Latest Caselaw 18332 Guj

    C/SCA/13299/2021                               CAV JUDGMENT DATED: 13/12/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 13299 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

==========================================================

1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== SPRAT (SOCIETY FOR PROMOTING RATIONALITY) Versus AHMEDABAD MUNICIPAL CORPORATION (AMC) ========================================================== Appearance:

PARTY IN PERSON(5000) for the Petitioner(s) No. 1 MR DEEP D VYAS(3869) for the Respondent(s) No. 1,2,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 13/12/2021

CAV JUDGMENT

1 This petition under Article 226 of the Constitution of India has

been filed by the petitioner Society for Promoting Rationality ('SPRAT'

for short) for the following reliefs:

"PRAYERS

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The petitioner, terribly harmed by unimaginably unjust acts of a State entity and faced with an existentialist crisis - respectfully prays for judicial affirmation of the Petitioner's lawful and responsible conduct and exemplary justice, through the following prayers. This prayer excludes the claims for damages mentioned in paragraph 147.

May this Hon Court, and the greatest temple of justice in Gujarat, be pleased to grant the following prayers.

158. Taking into consideration the facts, submissions and grounds furnished in this petition, and such others as may be urged at the hearing, the Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other writ, direction or order allowing this petition and

A. Declaring the Respondent Corporation's following actions in respect of Muskaan Park built by the petitioner at mouje Vejalpur under TP Scheme No. 1, FP No. 220, as illegal and violative of the Constitution of India:

      i.     Inaction on PPP agreement
      ii.    Issue of notices of eviction and removal of assets

iii. Sealing the Park and keeping it sealed for 16 long months thus preventing it from removing its assets iv. Denying the reasonable time, the Petitioner sought to vacate the land v. The act of demolishing the Park vi. Destroying the reusability of the Petitioner's assets and failing to preserve the demolished goods safely.

Vii. Not allowing the Petitioner to collect its valuables during demolition.

B. Kindly Ordering RESTORATION of the Status Quo Ante as on the date of Sealing the Park, viz, 25 th Feb, 2020, and towards achieving that end, also:

i. Directing the Respondent to reallot the said land to the Petitioner for a term of 10 or more years to run the Park. ii. Directing the Respondent to build similar structures and to supply similar or like goods as the ones the Respondent illegally demolished and destroyed, or in the alternative, to pay to the Petitioner the sum of Rs. 75 lakh, so that the Petitioner may

C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021

rebuild the structure and acquire the goods that were destroyed to run the Park.

iii. Directing the Respondent to supply to the Petitioner, the facilities normally required to run a Park, including water, electricity, cleaning etc in the interest of public service. iv. Declaring the further proceedings and transactions that the Respondent may have undertaken, if any, in respect of, or about the said land, with anyone else, subsequent to the act of illegal demolition, as ultra vires and null and void.

C. Alternatively, Your Lordships may be pleased to kindly award to the Petitioner NGO, a compensation of Rs.171 Lakh [Rupees One Hundred Seventy One Lakh only] in the nature of exemplary damages.

D. Kindly ordering an independent probe in the conduct of the officials responsible for the acts determined as illegal and to take appropriate legal action stipulated against them, and to reporty action taken.

E. Kindly ordering the Respondent to issue a public apoloty for maligning the Petitioner or its officers in public, clearly absolving them of any wrong-doing.

F. Kindly issuing an order restraining the Respondent from intimidating or harassing the Petitioner, its trustees and officers, in any way.

G. Kindly awarding Rs.2 (two) lakh towards the costs to the Petitioner.

H. Pending hearing and final disposal of the petition kindly issuing an interim order:

i. Directing the Respondent to maintain status quo relating to the said plot of land of 2,500 Sq.Mtr, at FP No. 220/3 under TP Scheme No. 1 at Vejalpur, as on the date of sealing the Park. ii. Kindly ordering the Respondent to supply to the Petitioner a copy of the inventory of the Petitioner's assets, along with the photographs and video recording, as obtaining before demolition. iii. Directing the Respondent to return all the goods of the Petitioner, from AMC godown and from the Park site, and to deliver them at the Petitioner's godown at 107, Om Puri Road, Matar in Kheda district at the Respondent's own cost, under

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proper valuation, inventorying, and videography under the Court Commissioner's supervision.

I. Kindly granting, such other and further reliefs to the Petitioner as Your Lordships may be pleased to regard just and appropriate in the interest of justice and the nature of the case."

2         The facts in brief are as under:

2.1       Mr.Mohammed Hasan Jowher, the petitioner - President, appeared

as Party-in-Person and argued this petition highlighting the facts and the

action of the Ahmedabad Municipal Corporation which is under

challenge.

2.2 The petitioner is a public charitable trust duly registered under the

Bombay Public Trusts Act, dedicated primarily to promoting rationality

and encouraging scientific temper. The Society, according to the

petitioner, was partnered / patronized for social work by prestigious

entities like, the U.S Government, O.N.G.C, BSNL, IOCL, Ford

Foundation, RGF, TATA Chemicals, TCS, Shree Chemicals, Microsoft,

Google etc and by leaders like Mr. I.K. Gujral, Mr.Chandrashekhar and

Mr.Advani.

2.3 According to the petitioner, the Trust undertakes wide range of

services promoting communal harmony by invoking common sense and

every day science, undertaking non formal education and literacy through

its network of CARAVAN centres for multi purpose empowerment

across several cities and slums of Gujarat. The present case relates to the

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allotment, and thereafter the action of eviction of a plot of land, initially

allotted by Ahmedabad Urban Development Authority ("A.U.D.A" for

short) in the Ahmedabad's Juhapura area.

2.4 It is the case of the petitioner that on 05.01.2004, the Ahmedabad

Urban Development Authority allotted a plot of land, namely, Final Plot

No.220 admeasuring 2500/ sq.mtrs in the Vejalpur T.P Scheme No.1. The

said allotment of the plot was made pursuant to an application of the

petitioner Trust made to the Chairman of the A.U.D.A. The letter of

allotment stated that such allotment is made for a period of one year

without giving ownership rights to the petitioner institute. The letter dated

05.01.2004 was subsequently followed by a letter dated 29.09.2004, by

which, the petitioner Society was informed that the plot is alloted to the

petitioner Trust so that it can be used by the people of all communities for

carrying out extra co-curricular activities like games, exercises etc. The

plot would be alloted after the AUDA does the fencing work the

demarcation of the plot and levelling thereof. The allotment was made for

one year.

2.5 It is the case of the petitioner that a request was made to the

Vejalpur Nagarpalika which sanctioned water supply of around 10,000 to

15,000 litres and also supply of power for lighting of the park from the

street light. From the grant of the Member of the Parliament, a grant of

Rs.1 lakh was released so that at the park, called the 'Muskaan Park', a

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borewell can be made. The Ahmedabad Municipal Transport Services

started a bus service to the park which was used for supporting the

mission of promoting communal harmony as it was being used by both,

the Hindu and the Muslim community, wherein, they would come to

engage themselves in activities like Yoga and playing games etc.

2.6 It is the case of the petitioner that the petitioner had by publishing

Board, made it very clear that the ownership or the place was that of the

AUDA / AMC. The case of the petitioner is that it was only after a period

of almost two years that the park land was alloted to the petitioner that is

beyond the period of allotment initially as per the letter was for one year.

The Park was inaugurated on 01.01.2006 by his Excellency, the then

Governor of Gujarat, where the Chairman of A.U.D.A himself reamined

personally present. Even subsequently, the Mayor himself inaugurated a

brand new auditorium built by the Trust on the land which was a metallic

removable structure on 28.11.2010 at its own cost.

3 Mr.Mohammed Hasan Jowher, learned Party-in-Person, would

submit that in subsequent phases, the Society added toys, equipments for

adventure, exercise and science and this was the only green patch within

the vicinity. Councillors within the area were happy with the

development and found that the multi purpose auditorium, a mini zoo

space at a corner, the recreational activities of exercising, and adventure

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devices were adding value to the communities residing at the Juhapura

and the Vejalpur area.

3.1 In the year 2016, eleven years after the expiry of the alleged

allotment tenure, a water connection was approved. The case of the

petitioner is that, suddenly, after thirteen long years of unblemished

services by the Society, in an apparent act of vendata, a notice of eviction

was issued by the Ahmedabad Municipal Corporation on 17.10.2017.

3.2 Mr.Jowher, Party-in-Person, reading the notice would submit that

the notice indicated that the petitioner was called upon to submit the

documents to satisfy the authority whether the usage of the park, the plot

of land on which it was made and which was reserved for garden was

used in accordance with any permission. The communication further

asked the petitioner to remain present with documentary proof to show

whether there was any permission for using the plot in question. In the

event the petitioner failed to satisfy the authorities for usage of such plot

and the permissions, the Society was called upon to immediately stop

usage of such plot lest the petitioner would be asked to hand over the plot

to the Corporation immediately.

3.3 On receipt of such notice, a representation was made by the

Society on 04.11.2017 to consider that the petitioner had privately

mobilized and invested atleast Rs.35 lakhs on the plot of land which was

otherwise lying barren. Recreation and adventural activities to promote

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national integration, science and health were made on the park. A bus

service was launched, medical facilities and other collaborative services

were offered with the help of other NGOs like Helpage, International

Students Activist, national writers and the U.S Consulate Officers.

However, according to the petitioner, the Corporation did not accept the

credibility of the petitioner of the usage of the plot and on 06.11.2017

asked the petitioner to vacate the plot within seven days from the date of

receipt of notice. This was again followed by a communication dated

20.11.2017 informing the petitioner that the petitioner had failed to show

any permissions from the competent authorities for usage of the plot and

they were directed to hand over peaceful and vacant possession of the

plot within seven days.

3.4 To this notice, the petitioner, Mr.Jowher, would submit that the

Society wrote a letter on 24.11.2017 again reiterating the credentials of

the Society and the Park facilities which was a land otherwise alloted by

the AUDA. Mr.Jowher, would also submit that it was a recommendation

made by one Mr.Surendra Patel, the then chairman of Ahmedabad Urban

Development Authority that the plot must be given on the long term basis

to the petitioner Society as it was carrying out good work in terms of

using the plot for recreational purposes and a garden.

3.5 According to the petitioner, as stated in the petition, a meeting was

held with the then Municipal Commissioner, Shri Vijay Nehra, who

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promised to look into the issue and informed the concerned authorities to

differ eviction of the petitioner Society from the Park. Expecting that

such a meeting together with the representations made would have a

salutory effect, the petitioner believed that since the respondent did not

act on eviction notice for over 20 months, they would regularize

petitioner's possession rather than evict the petitioner.

3.6 This is evident from the fact that the Ahmedabad Municipal

Corporation thereafter on a request made for regularization, after a long

term / private partnership, requested the Municipal Commissioner by a

letter of 05.12.2017 to deter eviction. This was failed and on 03.02.2018,

the petitioner was given three days' time to evict from the plot. It appears

that subsequently by a letter dated 28.02.2018, the Director, Parks &

Gardens, an Officer of the Ahmedabad Municipal Corporation asked the

petitioner to provide details if it was willing to enter into a Public Private

Partnership for development and maintenance of the garden. To this, on

20.03.2018, the petitioner Society expressed its willingness to enter into a

Public Private Partnership. Nothing was heard from the Corporation,

however, by a letter dated 28.03.2018 addressed by the Corporation,

Parks & Gardens Wing, it was again pointed out to the petitioner that the

Corporation was willing to enter into a Public Private Partnership if the

petitioner was willing to give consent to enter into such an agreement. To

this, the institution agreed to enter into any kind of PPP arrangement.

C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021

3.7 Mr.Johar, party-in-person, would draw the attention of the Court to

a letter written by the Society on 16.04.2018, wherein, it was pleased to

offer unconditional consent for management of the park under the PPP

arrangement and to sign any appropriate M.O.U. Despite this, nothing

was heard from the Corporation and by another notice dated 01.01.2020,

the petitioner was asked to vacate the plot and remove their belongings

there on.

3.8 To this notice, a representation was made to the Corporation that

they would vacate the plot if more time was given to them because in

order to see that the huge structures like the auditorium etc., are

dismantled, they would need J.C.B Machines and more time to transport

the equipments which over a period of 15 years were part of the plot. This

was followed by a notice of 28.01.2020 and it is the case of the petitioner

that though a representation was made giving them a timeline of eviction

for vacating the land on 29.01.2020, the plot was sealed by the Municipal

Corporation on 25.02.2020. This hampered the petitioner's quest for

vacating the plot so that it could transfer its equipments after dismantling

them to their own owned plot at Matar. By the impugned notice of

04.06.2021, the Corporation evicted the petitioner, bull dozed into their

plot and damaged the property in question which is a subject matter of

challenge.

3.9 Mr.Jowher, Party-in-Person, would take the Court through the

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letters dated 08.03.2021, 23.04.2021, 26.02.2021, by which, the Society

requested time to vacate the land and therefore it was reasonably

expected that the Corporation would give them time to do so. However,

an e-mail was received on 04.06.2021, and simultaneously on 04.06.2021

the Corporation Officers landed up at the site and indiscriminately started

damaging the structures within the garden with the help of JCBs and

undid the work that the Society had undertaken in setting up these

structures and demolished the structures causing irrepairable damage to

the equipments such as computers, the auditorium structure and valuable

files and documents lying in the structures into complete disarray.

Mr.Jowher, party-in-person, would draw the attention of the Court to the

whatsapp chats between the Dy.Municipal Commissioner and the

Officers which undertook the exercise of removing the equipments and

though a timeline to vacate was given, though the park was sealed for

more than a year, and thereafter out of the blues, suddently the

Corporation swung into action damaging the property setup by the hard

work of the Officers of the NGO.

3.10 Mr.Jowher, invited the attention of the Court to the photographs

annexed to the petition from pages 164 onwards to submit as to how the

equipments were damaged and carried to a godown of the Corporation

and the petitioner was asked to collect the belongings from a site to which

the goods were transported.

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4 Mr.Deep Vyas, learned counsel appearing for the Corporation had

filed a sick note, as is recorded in the order while reserving the judgment,

however, since the petition was specifically fixed for hearing on

26.11.2021, specifically after an information given to Mr.Vyas, learned

advocate, on the preceeding days of the forthcoming hearing, since the

party-in-person requested for a hearing, the Court heard Mr.Sankhesara,

learned advocate appearing for Mr.Deep Vyas.

4.1 Mr.Sankhesara, learned counsel, took the Court to the affidavit-in-

reply filed by one Shri Atulgiri B Gosai, working as an In-charge Deputy

Estate Officer. He would submit that various communications were

addressed between the parties, wherein, the petitioner was informed that

the lands had vested with the authority for the purposes of reservation for

gardens. The petitioner was called upon to produce necessary evidence

and permissions for continuing with the possession and / or allotment.

Several warnings were given after they failed to produce necessary

information to stop the usage of the plot. Communications were

addressed in February 2018 to hand over possession. Notices were issued

on 01.01.2020 for removal of goods and thereafter since the petitioner

failed to hand over possession, the plot was sealed on 25.02.2020.

4.2 Mr.Sankhesara, learned advocate, would submit that since the

petitioner was in unauthorized occupation which was established,

entering into a Public Private Partnership was a mode to forestall

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eviction. After the sealing of the premises in 2020, though the petitoner

had enough time to vacate the plot and to remove his goods and

belongings, on an oral intimation on the previous day, i.e. on 03.06.2021,

implementaion measures were carried out on 04.06.2021 in presence of

the staff of the petitioner. It is submitted by Mr.Sankhesara, learned

advocate, though that three months' time was sought to evict and vacate

the land, the orders were implemented only sixteen months thereafter and

therefore there is nothing wrong in the action so carried out by the

Corporation. Reminders have been sent and the list of inventory was

drawn and the goods and the stock was carried to the south west zone

office of the Corporation and therefore the petition as framed and the

prayers made therein are misconceived. The petitioner did not respond to

the PPP Offer made thereafter and since the plot was not vested in it, no

right accrued to the petitioner for allotment of such plot.

5 From the submissions made by the respective parties, what is

evident is that the petitioner Trust known as Society for Promoting

Rationality in order to set up a patch of green land with an intention to

promote the activities of recreation etc., requested the then AUDA within

whose jurisdiction the plot fell for allotment of a plot of land to set up a

park and other recreational activities. Accordingly, by a communication

dated 05.01.2004, the plot was alloted to the petitioner. By a further

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communication dated 29.09.2004, it is specifically provided that the

Society will not be in a position to carry out any civil or permanent

construction but utilize the plot for extra co-curricular activities such as

Yoga, etc., so as to promote communal harmony on the plot which was

situated in the Juhapura / Vejalpur area. The letter clearly stated that the

plot will be put to use after AUDA carries out fencing, demarcation of the

land, levelling and prcocessing. The condition on which the plot was

alloted to it was for a tenure of one year. It has come on record through

the averments made in the petiton that it was in January 2006 that

possession of the plot was given by the Ahmedabad Urban Developement

Authority and the activities of the plot were set into motion by it being

formally inaugurated by the then Governor of Gujarat in presence of the

Chairman of AUDA.

5.1 It is also a matter to be noted and which is part of the record that

from time to time funds were given by various agencies including grants

from the Member of Parliament for setting up certain infrastructural

facilities like bore and water supply. Electricity connection was offered

and so was water connection by the Vejalpur Nagarpalika.

5.2 Through the correspondence on record that Mr.Jowher has annexed

to the petition and drawn the attention of the Court it is evident that for

the first time it was in October 2017 on the plot vesting with the

Ahmedabad Municipal Corporation, the Corporation asked for certain

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documents so that the petitioner could come forth and show necessary

evidence of the usage of the plot. Notices of October 2017 and November

2017 it was pointed out by the Corporation that the lands have vested

with the Authority for the purposes of reservation for gardens. The

petitioner was called upon to produce necessary evidence and

permissions for continuing with the possession and/or allotment. Time

was given that in the event it failed to produce such evidence it should

stop the use of the land and hand over possession. This is evident from

various notices of the Corporation dated 17.10.2017, 06.11.2017,

20.11.2017, 03.02.2018 which specifically gave seven days and three

days time to the petitioner to vacate the land. In the interregnum, as is

evident from the communications addressed by the councillors of the

Ahmedabad Municipal Corporation that a recommendation was made to

the Mayor of the Ahmedabad Municipal Corporation to regularize and

enter into a long term Public Private Participation with the petitioner

Society and continue the retention of the land with the petitioner as it was

being used for the extra co-curricular activities and the residents in the

vicinity were happy with the usage of the land and the usage that it was

put to.

5.3 Also on record are the letters of the Corporation asking the

petitioner whether it was willing to accept Public Private Participation

offer and regularization of allotment. From a letter dated 28.02.2018

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which is on record, it is established that the Director of Parks & Gardens,

another wing of the Ahmedabad Municipal Corporation had sought

details and consent of the petitoner on the question of public private

participation and the petitioner's willingness to do so. The petitioner

Society by a letter of 20.03.2018 accepted the public private participation

offer. To this consent was sought by the wing of the Ahmedabad

Municipal Corporation along with forms on 28.03.2018. That was

accepted by the petitioner. Despite reminders nothing was done by the

Corporation to get back whether such a public private participation offer

was accepted. Having done nothing for over a period of over two years,

the Corporation again swung into action by eviction notices dated

01.01.2020 and 28.01.2020 asking the petitioners to vacate forthwith.

Having failed to do so, and despite a request for time to vacate, looking to

the vastness of the project for 15 years that it had undertaken by virtue of

construction of makeshift auditorium and equipments, the petitioner

requested for three months time to vacate. On 25.02.2020, the

Ahmedabad Municipal Corporation issued a notice to seal the park. The

request of the petitioner therefore of vacating and the time asked for was

not accepted because it was prevented from vacating by virtue of the

authorities having sealed the park on 26.02.2020. In the interregnum, due

to the ensuing pandemic, a request was made by the petitioner to the

autorities to see that the goods that have been removed may be taken care

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of and the damage that was done in as much as the park remained

unprotected causing pilferage of large scale materials from the site.

Ultimately on 04.06.2021, demolition was carried out and the goods

shifted.

5.4 Admittedly therefore, though the letter of allotment specifically

states that the plot of land namely the Final Plot T.P. 20 was reserved for

gardens and was alloted to the petitioner for a period of one year, the

same effectively was handed over in the year 2006 to the petitoner. There

appears to be no complaint on the part of the authorities which owned the

plot, as far as its usage was concerned for period of 13 years from 2004 to

2017. In October 2017 the AMC sprung into action asking the petitioner

to come forth and produce necessary evidence for continuing the

possesion for the plot in question which was reserved for gardens.

Communications were exchanged inter se between the petitioner and the

Corporation which indicate that what was contemplated was at the hands

of the petitioner that it was willing to enter into public private partnership

with the Corporation in carrying out the activites for which the plot was

reserved i.e for gardens. The Corporation itself had in principle agreed to

it. However, it appears that nothing was either done on behalf of the

Corporation nor the follow up was made by the petitioner as to the status

of arrangement that was entered into namely Public Private Partnership

Agreement by signing a Memorandum of Understanding.

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5.5 On 25.02.2020, the Corporation sealed the park pursuant to the

notices issued in January 2020 and when a request was made by the

petitioner for some time to vacate the land. Admittedly from the time

when the park was sealed in February 2020 to the time when final

demolition was carried out on 04.06.2021 majority of the period as can be

taken judicial notice of, was a period when the State and the Country at

large was undergoing a wave what was popularly called the "Second

Wave" of the pandemic. Neither of the parties therefore, namely, the

petitioner or the Corporation could be faulted with not acting on the

Public Private Partnership MOU or having given them the timeline to

vacate. The averment in the affidavit therefore that the petitioner did not

vacate the land which was initially given to them and on a request for

three months, the implementaion had to be carried out because sixteen

months thereafter the land was not vacated.

5.6 From the credentials of the Society and the work that it carried out,

it is evident that though no right vested in the Society to continue with the

possession of the land inasmuch that it was initially given for a period of

one year and with the passage of time if it retianed the land no right

vested in it, the subsequent corespondence between the Corporation and

the petitioner Society would indicate that there was a tacit agreement that

in the event the petitioner was willing to enter into a Public Private

Partnership Arrangement to continue possession with the plot for which

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its use was already being put to i.e. for gardens, the purpose for which it

was reserved, the Ahmedabad Municipal Corporation having waited for

16 months, namely, from February 2020 to June 2021 possibly because of

the pandemic carried out large scale destruction of the structures on the

land in question. The photographs evidencing that are on record.

6 Prima facie, the nature of prayers made in the petition would

indicate that the act of demoliton, carrying away of properties, the

exchange of correspondences inter se and the prayer for damages and

restoration of property would require a detailed fact finding inquiry and

leading of evidence, which this Court may not be able to undertake with

its restrictions and permissibility in exercise of extra ordinary jurisdiction

under Article 226 of the Constitution of India.

7 This Court, however, based on the exchange of correspondence and

the pleadings, would certainly opine that when the petitioner Society with

its laudable credentials as put to in the pleadings was allotted a parcel of

land by the Ahmedabad Urban Development Authority for carrying out

the purposes of creating the recreational facilities, which it did, that it put

up such facilities with the help of the authorities is evident. Grants were

received from the M.P LADs funds. The Vejalpur Nagarpalika gave

water connection, electricity connection, albeit, the petitioner continued

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to remain in possession for over a period of 13 years despite the currency

of allotment being initially for an year may not give the petitioner a

vested right to occupy the land, however, when the petitioner was asked

to give details of the rights on the basis of which it was occupying the

land, for reasons unknown to this Court, notices of eviction were issued

and when a time line was sought for vacating the land and putting in

place the possesion and return it to the Ahmedabad Municipal

Corporation, possibly due to the pandemic in question, neither did the

petitioner vacate the land nor did the Corporation exercise its coercive

force to get the petitioner evicted. After the ebbing of the second wave,

the Corporation swung into action and demolished the properties and

equipments on the land on which the 'Muskaan Park' once stood. On the

issue of the petitioner and the Corporation entering into a Pubilc Private

Partnership the question still remains unanswered.

8 From the eviction notices, it is evident that the case of the

Corporation is that the final plot is reserved for gardens. This Court

cannot shut its eye to the documents placed on record which would

indicate that it was being used for the purposes of garden and other

recreational activities as it is evident from the photographs and the

communications on record. These facts are not facts which would deter

the Court from not exercising its right under Article 226 under the guise

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of it being a disputed question of fact. The fact is as is evident from

record that the land was already being put to use as a garden. Though the

allotment was made for a period of one year, the plot continued to remain

in possession of the petitioner for over a period of 15 years though

without any rightful occupation, the organization that carried out these

activities desrve better treatment. In context of the prayers that it was

meted out shabby treatment in terms of carrying out large scale

demolition of property and causing loss to the tune of several crores of

rupees is a question which would require a detailed fact finding inquiry

and leading of evidence.

9 The court will rest its case here. The plot in question admittedly till

date is being reserved for a public garden. In the event the Corporation

still wants to use the same for a public garden as it is so made out in the

affidavit-in-reply and in the event the petitioner is willing to enter into a

Public Private Partnership, the parties can enter into such an agreement

for carrying out the purposes for which the plot is reserved. As far as the

legality of the eviction and the manner in which it was carried out, it is

evident that the timeline was sought for vacating of the premises which

the Corporation had not granted, or may be could not get the same

vacated for over a period of sixteen months because of the pandemic.

However, that it suddenly swung into action as a State machinery and

C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021

demolished the large scale structures causing damage to the property of

the petitioner was unwarranted. However, the fact that the petitioner had

to vacate as the Society was over staying its tenure is evident, but the

manner of eviction was unfair.

10 With these observations and with the liberty to the petitioner to

approach appropriate Court for seeking damages of the action that the

Corporation has caused, this petition is disposed of. With a hope that in

the event, irrespective of the unfolding preceeding events, if the

Corporation wishes to undertake the usage of the plot which is already

reserved for gardens and if the petitoner Trust is willing to offer its

services, the entire issue be reconsidered and a fresh allotment of the plot

for usage of garden at the hands of the petitioner through a Public Private

Partnership be accordingly considered if it is possible in accordance with

law by the Corporation, particularly looking to the credentials of the

Society, which undertook the onerous task of using the property for

encouragement of such activities. The petition is disposed of accordingly

with a token costs of Rs.25,000/- that may be paid by the Corporation.

Rule is made absolute to the aforesaid extent.

(BIREN VAISHNAV, J) Bimal