Ahmedabad Municipal Corporation ... vs Sprat (Society For Promoting ...
2022 Latest Caselaw 9373 Guj

    C/LPA/193/2022                              CAV JUDGMENT DATED: 21/10/2022




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/LETTERS PATENT APPEAL NO. 193 of 2022
                             In
        R/SPECIAL CIVIL APPLICATION NO. 13299 of 2021
                            With
           R/LETTERS PATENT APPEAL NO. 434 of 2022
                              In
         SPECIAL CIVIL APPLICATION NO. 13299 of 2021

FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR

and

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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

1 Whether Reporters of Local Papers may be NO allowed to see the judgment ?

2 To be referred to the Reporter or not ? NO

3 Whether their Lordships wish to see the fair copy NO of the judgment ?

4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

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

MR DEEP D VYAS(3869) for the Appellant(s) No. 1,2,3 DS AFF.NOT FILED (N) for the Respondent(s) No. 1 =============================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

and HONOURABLE MR. JUSTICE ASHUTOSH J.

SHASTRI

Date : 21/10/2022 CAV JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. These intra-court appeals are directed against the

judgment passed in Special Civil Application No.13299 of

2021 dated 13.12.2021 disposing of the petition by

reserving liberty to the petitioner to approach the

appropriate court for damages for the action that

corporation had caused and imposing a token cost of

Rs.25,000/- to be paid by the corporation in favour of the

petitioner.

BRIEF BACKGROUND OF THE CASE:

2. Petitioner which is a Public Charitable Trust

registered under the Bombay Public Trusts Act filed

Special Civil Application No.13297 of 2021 essentially

questioning the action of the Ahmedabad Municipal

Corporation ('AMC' for short) who had sealed the park

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

established by the petitioner and demolished certain

structures existing in the park on the ground of same

being illegal.

3. AMC who had appeared on service of notice had

filed the reply statement denying the averments made in

the writ application except to the extent expressly

admitted thereunder and contending, inter alia, that

petitioner was granted permission to use the land / plot

measuring 50x50 sq.mtrs. at Mouje: Vejalpur in Final Plot

No.220 of T.P. Scheme No.1 with a condition that no

permanent structure can be put up on the said plot and

same has to be used by the people of all communities for

carrying out extra co-curricular activities, sports, exercise

and cultural activity and said permissive use granted by

Ahmedabad Urban Development Authority (For short

'AUDA') was for a period of one year and no right vested

with the petitioner to use the said land unilaterally and as

such the petition was liable to be dismissed.

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

4. The learned Single Judge noticed that petitioner

with an intention to promote the activity of recreation,

etc. had requested the then AUDA within whose

jurisdiction the plot fell for allotment, had resulted in a

communication dated 5.1.2004 being forwarded by AUDA

to the petitioner which was followed by communication

dated 29.9.2004 clearly indicating thereunder that

petitioner society would not be in a position to carry out

any civil or permanent construction over the land

permitted to be used but utilise the plot only for extra

curriculum activity for a period of one year. The learned

Single Judge also noticed that from time to time funds

were provided by various agencies including the grant

from the Member of Parliament for the setting up of

infrastructural facilities, water supply, electricity

connection and water connection and records disclose

that despite there being an offer by the successor in the

case of AUDA namely AMC offering the petitioner the

public private participation for which the consent had

also been given by the petitioner on being asked by AMC

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

and thereafter eviction notice had been issued by AMC

calling upon the petitioner to vacate and handover

possession, which had not been complied by the

petitioner and as such time sought for by the petitioner to

vacate the park not having been granted, it resulted in

notice dated 25.2.2020 being issued to the petitioner to

seal the park and time sought for by petitioner was not

granted. As a result of this, park came to be sealed on

26.2.2020 and as such learned Single Judge arrived at a

conclusion that prima facie the nature of the prayers

made in the petition would indicate that act of demolition

carrying away the property located in the park was for

award of damages and restoration of the property which

requires detailed fact-finding inquiry and leading of

evidence being impermissible in the extraordinary

jurisdiction under Article 226 of the Constitution of India,

reserved right of the petitioner to approach the

appropriate court for seeking damages. Hence, the

petition came to be disposed of by arriving at a

conclusion that award of Rs.25,000/- as costs to petitioner

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

on the ground that petitioner organisation which had

been remained in possession of the disputed property for

over a period of long years, deserved better treatment

and on account of demolition of whatsoever structures

had awarded said costs.

5. Writ applicant not being satisfied with the limited

prayer that was granted and reiterating that writ court

ought to have granted all the prayers that were sought

for in the Special Civil Applications, has preferred Letters

Patent Appeal No.434 of 2022. Whereas AMC and

respondent Nos.2 and 3 before the learned Single Judge

being aggrieved by the award of damages of Rs.25,000/-

to the petitioner is before this Court assailing the same.

Hence, these two appeals are clubbed, heard and

disposed of by this common judgment.

6. It is the contention of Mr. Mohammed Hasan

Jowher, party appearing in person on behalf of writ

applicant that learned Single Judge had committed a

serious irregularity in not granting the prayers sought for

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

in the petition in its entirety. He would submit that

originally land was in the ownership of AUDA and

subsequently transferred to AMC and the learned Single

Judge has already held that petitioner has been wronged

and as such the only course which was left open to the

learned Single Judge was to award the damages which

was sought for by writ applicant by way of an alternate

prayer as more fully indicated in the Letters Patent

Appeal. He would also submit that there is blatant

violation of the law by the AMC authorities and Court

cannot become a silent spectator or remain as helpless

observer of executive excess. He would submit that AMC

being an instrumentality of the State was required to act

in a fair and reasonable manner and contrary to the same

has exhibited a hostile attitude towards petitioner namely

the writ applicant which is an Non-Government

Organisation (For short 'NGO') which had established the

garden / park in the subject park and nurtured it for 17

long years. He would submit a legal obligation was cast

on the statutory authorities like AMC and instead of

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

extending their hand to the petitioner in fulfilling the said

obligation, they have acted in a highly illegal manner by

not only sealing the park but also not permitting the writ

applicant to retrieve its material after passing the order

of sealing and in a barbaric manner directed the

petitioner to vacate the park and bulldozed the entire

park reducing its expensive structures, gadgets and the

stocks to sheer scrap. He would elaborate his

submissions by contending that appellant is a public

charitable trust led by some of India's distinguished

achievers and had been adjudged as one of the India's 13

best NGO's and had been partnered by prominent

international companies and was running number of

unique centres for multi-dimensional empowerment

across Gujarat, offering non-formal education, science

appreciation, promoting inter-faith harmony and on the

advice of experts to explore recreational activity as a

medium to achieve these objects, it had approached

AUDA and offered to set up a unique multi-purpose park

at its own cost, if guaranteed long term management and

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

holding which resulted in a letter of allotment dated

5.1.2004 and on being objected to restructuring the term

of allotment of one year resulted in a fresh

communication dated 29.9.2004 being forwarded by

AUDA to the petitioner whereunder it permitted the

petitioner for installation of sports equipment which also

removed the termination clause and oral assured of long

term permission.

7. He would contend that petitioner established the

park accordingly and possession of the park as continued

with the petitioner society as it was managing

successfully at considerable cost and at the instance of

the donors a multi-purpose park for integrated socio-

cultural empowerment had been commenced which

received widespread accolades even by the Mayor and

Councillors, etc. It is also contended by him that park was

inaugurated by the then the Governor of Gujarat and also

the Chairman of AUDA. It is also contended that several

funds had flown for improvement of the park and by using

the said money several initiatives at the park came to be

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

established. He would contend the subsequent events

happened even after the expiry of one year term fixed

under the allotment letter and there was no steps taken

for either evicting the writ applicant or calling upon it to

vacate, since establishment of the park had earned

widespread accolades. Elaborating his submission with

regard to the grounds urged before the learned Single

Judge a well as urged in the present appeal, he would

draw the attention of the Court to the correspondence

that enured between the petitioner trust and various

persons including the then former AUDA Chairman which

ultimately resulted in consent sought for by the AMC for

public private partnership arrangement which was

preceded by notice of eviction and on being informed of

the consent of the petitioner to have the PPP but on

account of the threat of being dispossessed hanging on its

head, it resulted in reminding the AMC for execution of

PPP and simultaneously agreeing to vacate the park for

which three months' time to vacate was sought for and it

was also agreed by the petitioner that it would vacate the

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

park in such a manner and hand over the possession of

the land on 30.4.2020 and on account of there being no

reply, Board of Governors of the petitioner trust passed a

resolution dated 20.2.2020 to vacate the park which was

under duress. Yet, AMC sealed the park on 25.2.2020 and

as such petitioner had started packing up and from the

date of sealing petitioner had no access to its assets

inside the park and despite submitting representation to

unseal the park to enable the petitioner to dis-assemble

the assets and remove the same to any other place by

submitting representation from 25.2.2020 till 4.6.2021

did not yield any result but as a counterblast to the

request made, AMC authorities without any notice

demolished all the structures that were built and existing

in the park and shifted the same to its own godown and

even request made to the authorities to permit the

petitioner to retrieve the valuables lying at the park was

not permitted and hence, these acts had been noticed by

the learned Single Judge as being highhanded act and yet

not awarded any reasonable compensation and/or writ of

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

mandamus was not issued directing the AMC to restore

the park to the petitioner which was used by the people of

the locality and who are now being deprived of the same.

Hence, he prays for grant of the prayer sought for before

the learned Single Judge and reiterated in the appeal.

8. Mr. Prashant G. Desai, learned Senior Advocate

appearing for the AMC would submit that subject land is

reserved for a particular purpose and it cannot be used

for any other purpose. He would submit that subject land

admittedly belonged to AMC and no application was filed

under Section 254 of the Gujarat Municipal Corporations

Act to put up any construction in the land by petitioner

and till date petitioner has not placed on record any such

application having been filed. He would submit that way

back in the year 2017 writ applicant had been asked to

vacate and handover possession of the area and

petitioner has also been called upon to produce the

authority under which it is in occupation of the land and

there being no such proof having been tendered, the

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

occupation of the writ applicant had become illegal. He

would submit that even on 3.10.2018 a notice came to be

issued by the Estate Officer of AMC to the writ applicant

calling upon the writ applicant to handover vacant

possession of the plot and contending that writ applicant

had no authority to put up any permanent structures and

what was permitted initially by the predecessor in

interest of AMC was only to the extent of permitting the

petitioner to utilise the land as a park in open space and

continuation beyond period of one year was itself illegal

and without authority of law. It is further contended that

a tender has been floated for maintenance of garden and

constructing the garden in the garden area viz. subject

land and also to construct the underground tank at a cost

of Rs.28 lakh and same is being processed. Hence, he

prays for dismissal of the appeal.

9. Having heard the learned advocates appearing

for the parties and having gone through the material

on record prima-facie perusal of detailed order

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

passed by the learned single Judge, it is quite clear

and visible while dealing with the grievance of the

appellant, learned single Judge has examined not only

the legally permissible stand of the appellant but has

also examined the material placed before the Court.

After analysing the entire material placed before the

Court, conclusion arrived at by the learned Single

Judge cannot be said to be suffering from voice of any

non-application of mind nor reflects any perversity

nor it can be said to be irrational. Detailed conclusion

which has been arrived is on the basis of practically

analysing the material on record. We deem it proper

to quote relevant conclusion recorded by the learned

Single Judge :-

"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 allotted to the petitioner for a period of one year, the same effectively was handed over in the year 2006 to the petitioner.

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

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

2004 to 2017. In October 2017 the AMC sprung into action asking the petitioner to come forth and produce necessary evidence for continuing the possession 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 activities 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.

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 implementation 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

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

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 retained the land no right vested in it, the subsequent correspondence 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 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 demolition, 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 impressibility in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India."

10. Learned single Judge found that the grievance of

writ applicant with regard to action of the

Corporation reflects a highly disputed question for

the fact which cannot be gone into in writ jurisdiction

and as such has left open the right of petitioner to

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

seek remedy of damages before the competent Civil

Court and accordingly petition came to be disposed

of. The said observations are also seems relevant

which are reproduced hereunder:-

"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 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 deserve 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

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

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 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 proceeding events, if the Corporation wishes to undertake the usage of the plot which is already reserved for gardens and if the petitioner 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."

11. It would emerge from the aforesaid observations

of the learned single Judge that remedy is left open to

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the writ applicant to seek for damage, if on account of

act of the officials of Corporation some damage has

taken place and learned single Judge has rightly

observed that said issue cannot be examined on the

basis of affidavits under Article 226 of the

Constitution of India, in view of settled proposition of

law. We see no reason to take a different view in

absence of any distinguishable material brought

before us. Hence, we see no reason to disturb the

findings arrived at by the learned single Judge. Same

are in consonance with the material placed on record.

12. By virtue of communication dated 05.01.2004, the

writ applicant was permitted to use 200 square meters of

land for one year only under the conditions stipulated

thereunder, viz., the land was to be kept open for children

of all communities in the surrounding area to use it for

sports and exercises. It was also made clear that the

petitioner would not claim any kind of ownership either in

present or in future. It was specifically made clear by

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

AUDA that in the event of plot being used for other than

the purpose stated thereunder, the Authority may

prohibit the use of plot without giving any notice. It was

also made clear that AUDA can discontinue the use of the

plot by the petitioner at any time without notice, when

the need arises for this plot. The conditions stipulated by

AUDA for the use of the plot by the petitioner can be

traceable to the communication dated 29.09.2004, which

reads thus:

"No civil or permanent construction can be done in this plot. This land is allotted for use by the people of all communities for sports, exercises as well as for non-communal cultural activities. The "SPRAT" organization will not have any right of ownership on this land nor will it be able to claim ownership in the future.

AUDA has full authority to grant the land attached to this plot for educational, commercial or any other uses.

"SPRAT" will only be able to move in its equipment after AUDA completes demarcation

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

of the land and fencing at this place and completing the work of filling, levelling and pressing.

At the request of the SPRAT, the Chairman has approved the installation of some sports equipment for AUDA-Muskaan. "SPRAT" will be responsible for their supervision. The equipment to be placed by "SPRAT" should be made keeping in mind the safety of the children.

The sanction of the use of the above land is given for one year.

If he Authority comes to know of any commercial or illegal use of this land, it may immediately stop its usage."

13. From the stand of the authority, it is clear that under

the Town Planning Scheme, the subject land was

reserved for a particular purpose and same has to be

used for the said purpose only. The area was reserved for

garden only under the Town Planning Scheme, and

therefore, there was a necessity for the authority to keep

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reserved the said area for garden as it was obligatory on

the part of authority to keep the Town Planning Scheme

intact, and therefore, the activities which was undertaken

by the petitioner being category to the Town Planning

Scheme, the authorities had to take action.

14. So far as grant of reasonable opportunity to the

appellant is concerned, it is quite visible that hearing was

extended on 17.10.2017 by issuance of first notice

thereafter second notice was also issued on 06.11.2017

for a period of seven days and from the year 2017

onwards enough opportunity has been extended by

informing the appellant to vacate the premises. Learned

Senior counsel appearing for AMC would submit seven

days notice was given on 03.02.2018, three days notice

was again given on 01.01.2020 and further three days

notice was given again on 28.01.2020 and thereafter on

29.01.2021 period has been enlarged and it is only

thereafter possession of subject property has been

resumed in the month of June, 2021 and their aspects has

been rightly considered by the learned Single Judge while

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disposing of the petition. It has also been observed from

the stand of the authority that for constructing the

auditorium or any other structure over the subject plot

not a single application seeking permission of AMC was

made by writ applicant as required under section 254 of

GPMC Act.

15. The records on hand would disclose that writ

applicant, in utter disregard to sections 253 and 254 of

GPMC Act, has put up construction which are of

permanent in nature and the photographs produced along

with writ application as well as the present appeal would

go to show that several permanent structures have been

put up. Though writ applicant would contend that the

same were carried out after bringing them to the notice

of the AMC Authorities, there is no material whatsoever

to establish the fact that such constructions have come up

after approval from the authorities or the approval was

sought for from the authorities and pending consideration

of such request the construction having been put up. It is

in this background that the AMC Authorities from the

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year 2017 onwards have issued repeated notices to the

writ applicant calling upon them to hand over possession

of the land which is reserved for garden purposes. Under

the guise of utilisaiton of the land for the garden, if the

writ applicant has put up any structures, that too without

permission, it cannot be gainsaid by the writ applicant

that even in such circumstances the Corporation

Authorities were not justified in taking appropriate action

to resume possession. It may be true that after such

notices were issued by the Corporation and before action

was taken to resume possession, certain developments

like conducting the programmes in the subject land,

activities being carried on at the said land had taken

place under the guise of either the officials of the

Municipal Corporation or any other official, which can be

construed as legalising the illegality perpetrated by the

writ applicant. These acts would not confer any legal

right in favour of the writ applicant to continue to be in

possession of the subject land. The permissive use which

was granted in the year 2004 was for a period of one year

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

was never continued. However, the AMC seems to have

not taken any steps and there was no follow up made by

the petitioner with regard to the suggested project of

Public Private Partnership agreement as suggested by the

AMC by signing an MOU by the writ applicant.

16. For the reasons aforestated, we are of the

considered view that the findings recorded by the learned

Single Judge would not call for any interference and it is

in consonance with the material placed on record before

the learned Single Judge.

17. For the reasons aforestated, we proceed to pass the

following

ORDER

(i) Letters Patent Appeal No.434/2022 and

193/2022 are hereby dismissed and order

passed in Special Civil Application

No.13299/2021 stands affirmed.

C/LPA/193/2022 CAV JUDGMENT DATED: 21/10/2022

(ii) No order as to costs.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) Bharat