Gujarat High Court
Sajidali Kausharali Shah vs Municipal Commissioner on 24 June, 2022
Bench: A.S. Supehia
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13581 of 2021
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 13581 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 13652 of 2021
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 13652 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
================================================================
SAJIDALI KAUSHARALI SHAH
Versus
MUNICIPAL COMMISSIONER
================================================================
Appearance: In Special Civil Application No.13581 Of 2021
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,3,4,5,6,7,8,9
MR. HJ KARATHIYA(7012) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,3,4,5,6,7,8,9
DS AFF.NOT FILED (N) for the Respondent(s) No. 3,4
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 1,2
================================================================
Appearance: In Special Civil Application No.13652 Of 2021
MR DAIFRAZ HAVEWALLA for the Petitioner Nos.1 to 9
MR ANUJ K TRIVEDI, for the Respondent No.4
MR KAUSHAL D PANDYA(2905) for the Respondent(s) No. 3
================================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 24/06/2022
COMMON ORAL JUDGMENT
1. In the present writ petitions, the petitioners have assailed the order
dated 18.02.2021 passed by the competent authority of the respondent-
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
Corporation under Section 5 of the Gujarat Public Premises (Eviction of
Unauthorised Occupants) Act, 1972 (for short "the Public Premises
Eviction Act") and the order dated 11.08.2021 passed by 11th Additional
District Judge, Surat in Misc. Civil Appeal No.11 of 2021 and Misc. Civil
Appeal No.8 of 2021.
2. The petitioners are in occupation of shops situated in shopping
complex constructed upon the land bearing nos.1961/A and 1961/B of
Ward No.2 Rudrapura, Surat, which belongs to Surat Municipal
Corporation (SMC).
3. In view of the Metro Rail Project (Phase-I), the SMC needed the
said land, on which the shops are situated in larger public interest and
hence, the Corporation initiated procedure under the the Public Premises
Eviction Act. Accordingly, notices were issued on 07.01.2021 under
Section 4 of the Public Premises Eviction Act calling upon the petitioners
to vacate the premises. They were also personally heard on 18.02.2021.
Ultimately, on 18.02.2021, an order under Section 5 of the Public
Premises Eviction Act was passed by the competent authority of the
respondent-Corporation directing the petitioners to evict the said
premises.
4. Being aggrieved by the said action, the petitioners filed a writ
petition being Special Civil Application No.3396 of 2021 before this
Court, which came to be withdrawn by the petitioners with a view to avail
alternative remedy under the Public Premises Eviction Act and the said
petition was disposed of on 25.02.2021. The petitioner had also made
representations to the respondent-Corporation. Thereafter, they filed an
appeal being Misc. Civil Appeal Nos.8 of 2021 and 11 of 2021 before the
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
District Court, Surat under Section 9 of the Act. After hearing the
concerned parties, the District Court authorized the action of the
Corporation and rejected the appeal vide order dated 11.08.2021. The
petitioners thereafter were also heard with regard to grant of alternative
accommodation. Ultimately, since the respondent-Corporation has no
policy of granting alternative accommodation, the request was rejected.
However, the Gujarat Metro Rail Corporation (GMRC) agreed to offer
compensation of Rs.1,11,000/- per petitioner subject to the verification.
5. Learned advocate Mr.Karathiya appearing for the petitioners has
submitted that the impugned action of the respondent-Corporation as well
as the impugned order passed by the District Court is required to be
quashed and set aside since the provisions of the Public Premises
Eviction Act will not apply in the present case. It is submitted by him that
though the lease deed had expired in the year 2016, all the petitioners
were paying rent to the respondent-Corporation and as per the provisions
of the Transfer of Property Act, 1882 (for short "the T.P. Act"), more
particularly Section 116 thereof, such action of the respondents can be
termed as extended holding. In support of his submissions, he has placed
reliance on the judgment of the Apex Court in the case of Bhuneshwar
Prasad vs. United Commercial Bank, 2000 (7) S.C.C. 232 and also the
decision of the Coordinate Bench of this Court dated 25.06.2019 passed
in Special Civil Application No.7899 of 2016. Thus, it is submitted by
him that the provisions of the T.P. Act, were required to be followed
before taking any action against the present petitioners. It is finally
asserted by the learned advocate that the petitioners are doing their
business since long and if the shops are removed, their livelihood will
likely to be affected and hence, an alternative shops or accommodation
may be granted to them. Thus, he has submitted that the impugned action
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
of the respondent-Corporation and the impugned orders may be set aside.
6. Per contra, learned advocate Mr.Kaushal Pandya appearing for the
respondents has submitted that the impugned order passed by the District
Court as well as the order passed by the respondent-Corporation may not
be set aside and the same are appropriately passed. It is submitted by him
that in view of the MEGA project of laying down Metro Rail Project in
Surat, the shopping centre, which was constructed on the land of the
Corporation, was required to be possessed. He has submitted that it is an
admitted position that the lease deed with the petitioners has expired in
the year 2016 and on the expiry of lease deed, they can be termed as
"unauthorised occupants" as per Section 2(h) of the Public Premises
Eviction Act.
7. Learned advocate Mr.Kaushal Pandya has further invited the
attention of this Court to the Clause 18 of the lease deed, which was
agreed upon by the petitioners and has submitted that as per the said
clause, the entire rent agreement and lease deed were subjected to the
provisions of the Public Premises Eviction Act. While referring to the
provisions of Section 4 of the Public Premises Eviction Act, he has
submitted that in case of unauthorised occupancy, the public premises can
be evicted by resorting to the provisions of the Public Premises Eviction
Act, but as per Clause (c) of Section 4(1) of the Public Premises Eviction
Act, if the competent authority is satisfied that the public premises is
required for any other purpose by the authority, the occupants can be
asked to be evicted. It is submitted that before taking any action against
the petitioners, all necessary and requisite procedure under the Public
Premises Eviction Act was followed. It is submitted by him that ample
opportunity was offered to the petitioners and they were also heard
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
personally with regard to the alternative accommodation as well as with
regard to compensation. Thus, he has submitted that the entire project is
stalled because of the pendency of this writ petition. He has submitted
that as per the observations made by the Supreme Court in the case of
National High Speed Rail Corporation Limited vs. Montecarlo Limited
and Another, 2022 SCC OnLine SC111, such MEGA projects cannot be
stalled of the litigation due to delay in execution of such project, they
could be saddled with damages.
8. This Court has heard the learned advocates appearing for the
respective parties to the lis at length and the relevant documents pointed
out by them are also perused.
9. The facts, as narrated hereinabove, are not in dispute that the land,
on which shopping centre in question is constructed, belongs entirely to
the Corporation. It is also not in dispute that all the lease deed and
agreements with the petitioners and the respective shop owners have
expired in the year 2016. It is not in dispute that the respondent-
Corporation has to remove the shops of the concerned shopping complex
because of the same there is an obstacle in the route of passing Metro Rail
Project (Phase-I) in the city of Surat. In view of the aforesaid Metro Rail
Project, the respondent-Corporation accordingly initiated action as per
Clause 18 of the lease agreement and issued notices to the petitioners to
evict their shops. Such notices were issued under Section 4 of the Public
Premises Eviction Act on 07.01.2021 and thereafter, it is also not
disputed by the petitioners that they were personally heard and ultimately,
an order under Section 5 of the Public Premises Eviction Act was passed
directing the petitioners to evict the premises. Being aggrieved by the said
order, the petitioners directly approached this Court by filing writ petition
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
being Special Civil Application No.3396 of 2021. On 25.02.2021, the
Court had disposed of the writ petition by observing thus:-
"Draft amendment is allowed. Petitioners to carry out the
amendment forthwith.
When the matter is called out, learned advocate for the
petitioners submitted that after filing of the petition, now the
concerned respondent authority has passed under Section 5 of the
Gujarat Public Premises (Eviction of Unauthorized Occupants) Act,
1972. It is submitted that the petitioners will challenge the said order
by filing appeal under the provisions of the aforesaid Act before the
concerned District Court. In view of the aforesaid development,
petition stands disposed off.
Liberty is reserved to the petitioners to file appeal before the
concerned District Court. It is clarified that this Court has not
examined the merits of the case and therefore as and when the appeal
is filed, the District Court shall examine the same on its own merits.
At this stage, learned advocate for the petitioners submitted
that the petitioners have already made representation before the
concerned respondent authorities for providing alternative
accommodation. It is open for the petitioners to pursue that
representation and/or file fresh representation before the respondent
authorities for alternative accommodation. The respondent authority
shall consider the said representation in accordance with law, within
a period of four weeks."
A bare perusal of the aforesaid order would reveal that in fact the
petitioners have admitted that they have challenged the said order under
the provisions of the Public Premises Eviction Act. The Court had also
observed that if the petitioners make representation before the concerned
respondent authorities for providing alternative accommodation, the
respondent authorities may consider the same in accordance with law.
10. Thus, before this Court, the writ petition filed by petitioners has
been withdrawn by making a specific statement that they will challenge
the order passed under Section 5 of the Public Premises Eviction Act by
filing an appeal under the said Act. Accordingly, the petitioners filed
Misc. Civil Appeal No.8 of 2021 and 11 of 2021 before the Court of 11 th
Additional District Judge, Surat, which was partly allowed by observing
thus:-
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
"16. Lastly, as per the contentions raised on behalf of Respondents
and the documentary evidence produced on record, the purpose
behind adopting procedure for eviction of the Appellants from the said
shops is a 'Public Purpose' i.e. to lay Phase -1 of the Metro Rail
project in the city of Surat. Development of the Metro Rail Project in
Surat city is crucial for public purpose. The premises of Shopping
Complex in which the Appellants are having their shops is an obstacle
in implementation of Metro Rail Project of the Government. The
purpose shown by the Respondent Corporation is in the larger public
interest.
17. All in all, from the above discussion and from the facts and
circumstances of the case, it clearly appears that the Respondent -
Corporation has adopted the procedures laid down in the said Act,
and the Respondent Corporation is justified in issuing Order for
Eviction under Sec. S of the said Act. There is no legal infirmity in the
action taken by the Respondent Corporation.
18. In view of above discussion, the Competent Authority of Surat
Municipal Corporation has not committed any error or illegality in
issuing notice under Sec. 4 of The Gujarat Public Premises
(Prevention of Unauthorised Occupancy), Act, 1972, and there does
not appear any illegality or perversity in the impugned order passed by
the Competent Authority of Respondent Corporation under Sec. 5 of
The Gujarat Public Premises (Eviction of Unauthorised Occupants)
Act, 1972, pursuant to the said notice under Sec. 4 of the said Act,
which is under challenge in this appeal. Hence, looking to the scope
and ambit of the act, the prayers sought for by the Appellants in this
Appeal do not deserve to be considered by this Court and no
interference is required by this Court in the impugned order passed by
the Competent Authority of the Respondent Corporation."
The present appeal is hereby partly allowed.
In exercise of the powers under Sec. 9 (3) of The Gujarat
Public Premises (Eviction of Unauthorised Occupants) Act,
1972, operation of the said order under Sec. 5 of The Gujarat
Public Premises (Eviction of Unauthorised Occupants) Act, 1972
, which is under challenge in this appeal, is hereby stayed for a
period of 4 (four) weeks from the date of this judgment in order
to comply with the impugned order passed by the Hon'ble High
Court of Gujarat in R/ Spl. C.A. No. 3396/21 in respect of
representations submitted by the Appellants to the Competent
Authority of Respondent Corporation.
No order as to costs"
11. 11th Additional District Judge, Surat has stayed the action of the
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
respondents for a period of four weeks from the date of judgment in order
to comply with the order passed by the Court with respect to the
representations filed by the appellants before the competent authority.
12. This Court does not find any illegality or irregularity committed by
the respondent-Corporation in following the provisions of the Public
Premises Eviction Act before passing the order. The petitioners were
given ample opportunity of hearing. The findings of the appellate forum
do not in any manner suffer from any vice of illegality or perversity. The
petitioners have miserably failed to show any violation of the provisions
of the Act. The provisions of Section 116 of the T.P.Act, on which
reliance is placed, will not apply in the case of the petitioners and hence,
as per their statement made before this Court in the earlier writ petition,
the case of the petitioners will fall under Section 4(1) of the Public
Premises Eviction Act. The same reads as under:-
"4. (1) If the competent officer is satisfied-
(a) that the person authorised to occupy any public premises has--
(i) not paid rent lawfully due from him in respect of such
premises for a period of more than two months, or
(ii) sub-let, without the permission of the State Government or,
as the case may be,the corporate authority, the whole or any part of
such premisses, or
(iii) committed, or is committing such acts of waste as are likely
to diminish materially the value, or impair substantially the utility, of the
premises, or
(iv) otherwise acted in contravention of any of the terms,
express or implied, under which he is authorised to occupy such,
premises, or
(b) that any person is in unauthorised occupation of any public
premises, or
(c) that any public premises are required for any other purpose of the
State Government, or, as the case may be, the corporate authority to
whom such premises belong, the competent officer shall,
notwithstanding anything contained in any other law for the time being
in force issue in the manner hereinafter provided a notice in writing
calling upon all persons concerned to show cause why an order of
eviction should not be made."
Clause (c) of sub-Section (1) of Section 4 of the Public Premises
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
Eviction Act mandates that if the competent officer is satisfied that any
public premises is required for any other purpose of the State
Government, or, as the case may be, the Corporate Authority to whom
such premises belong, he shall in the manner prescribed in the Public
Premises Eviction Act shall issue notices calling upon such persons why
any order of eviction should not be made. Thus, the provisions of the
Public Premises Eviction Act are self-explanatory that a person can be
asked to evict the premises if the authority is of the opinion that the
premises is needed for any other purpose.
13. Reliance placed by the learned advocate for the petitioners on the
judgment of the Supreme Court in the case of Bhuneshwar Prasad
(supra) will not apply in the facts of the case as in the case before the
Supreme Court, the entire issue was premised on the proceedings of the
trial court under the provisions of the T.P.Act.
14. Unquestionably, the petitioners have not invoked any remedy
under the T.P. Act before any forum. Similarly, the judgment dated
25.06.2019 passed in Special Civil Application No.7899 of 2016 by the
Coordinate Bench, on which reliance is placed, will not also apply in the
present case, because as per the Coordinate Bench of this Court, there
was nothing brought on record to suggest that the lease period has expired
or the lease period has been determined.
15. In the present case, as noticed hereinabove, in the earlier writ
petition, which was filed by the petitioners, they have chosen to withdraw
the same to challenge such action under the Public Premises Eviction Act
before the appropriate authority by filing an appeal. It is also not in
dispute that they are also governed by the terms and conditions of the
lease deed, more particularly Clause 18 of the lease deed, in which they
have agreed upon that any action under the lease deed, would be
governed by the Public Premises Eviction Act. After having availed the
remedy before the Appellate forum under the Public Premises Eviction
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
Act, they cannot take a volte face and contend that the provisions of the
Public Premises Eviction Act are not applicable but they are governed by
the provisions of the T.P. Act. No one had restrained the petitioners from
filing appropriate proceedings under the T.P.Act. The petitioners cannot
avail legal remedies on piece meal basis by resorting to trial and error
method. Hence, the submission in this regard does not merit acceptance.
16. At this stage, it would be apposite to refer to the observations made
by the Supreme Court in the case of National High Speed Rail
Corporation Limited (supra) in paragraph no.94 and 95 has held thus:-
"94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative
action.
(2) The court does not sit as a court of appeal but merely reviews the
manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative
decision. If a review of the administrative decision is permitted it will
be substituting its own decision, without the necessary expertise which
itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial
scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the
contract is reached by process of negotiations through several tiers.
More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a
fair play in the joints is a necessary concomitant for an administrative
body functioning in an administrative sphere or quasi-administrative
sphere. However, the decision must not only be tested by the
application of Wednesbury principle of reasonableness (including its
other facts pointed out above) but must be free from arbitrariness not
affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the
administration and lead to increased and unbudgeted expenditure.
Based on these principles we will examine the facts of this case since
they commend to us as the correct principles.
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
95. Even while entertaining the writ petition and/or granting the stay
which ultimately may delay the execution of the Mega projects, it must
be remembered that it may seriously impede the execution of the
projects of public importance and disables the State and/or its
agencies/instrumentalities from discharging the constitutional and
legal obligation towards the citizens. Therefore, the High Courts
should be extremely careful and circumspect in exercise of its
discretion while entertaining such petitions and/or while granting stay
in such matters. Even in a case where the High Court is of the prima
facie opinion that the decision is as such perverse and/or arbitrary and/
or suffers from mala fides and/or favouritism, while entertaining such
writ petition and/or pass any appropriate interim order, High Court
may put to the writ petitioner's notice that in case the petitioner loses
and there is a delay in execution of the project due to such proceedings
initiated by him/it, he/they may be saddled with the damages caused for
delay in execution of such projects, which may be due to such frivolous
litigations initiated by him/it. With these words of caution and advise,
we rest the matter there and leave it to the wisdom of the concerned
Court(s), which ultimately may look to the larger public interest and
the national interest involved.
In paragraph no.94, more particularly Paragraph no.94(5), it is held
that the Government must have freedom of contract. It is directed by the
Apex Court that in the writ petition and/or granting the stay which
ultimately may delay the execution of the Mega projects, it must be
remembered that it may seriously impede the execution of the projects of
public importance and disables the State and/or its agencies/
instrumentalities from discharging the constitutional and legal obligation
towards the citizens. Therefore, the High Courts should be extremely
careful and circumspect in exercise of its discretion while entertaining
such petitions and/or while granting stay in such matters.
17. In the present case, the decision made by the Corporation asking
the petitioners to evict the premises is for the implementation of the
Metro Rail Project, is in the benefit of the public at large. The Supreme
Court has cautioned that the writ petition granting the stay which
ultimately may delay the execution of the Mega projects, may seriously
impede the execution of the projects and also attract damages because of
such delay.
C/SCA/13581/2021 JUDGMENT DATED: 24/06/2022
18. In the present case, this Court had directed the authorities to
maintain status-quo vide order dated 23.09.2021 and the entire project has
been stalled. The petitioners are also unable to show anything that there is
any policy framed for offering any alternative accommodation adopted by
the SMC. However, the GMRC has agreed to offer compensation of
Rs.1,11,000/- to each of the petitioners.
19. In view of the aforesaid facts and circumstances, the writ petitions
are devoid of merits and hence, the same are rejected. Notice is
discharged. Interim relief if any, stands vacated.
20. At this stage, learned advocate Mr.Karathiya appearing for the
petitioners requests to extend the interim order for some time. The request
is refused in light of the observations made by the Supreme Court in the
case of National High Speed Rail Corporation Limited (supra), as any
further stay would further result into stalling of the project.
21. In view of the order passed in the main matters, the connected civil
applications do not survive and the same are disposed of accordingly.
Sd/-
(A. S. SUPEHIA, J)
ABHISHEK/47+48
