Shivabhai Devshibhai Sukhadiya vs Municipal Commissioner
2022 Latest Caselaw 8046 Guj

     C/SCA/18786/2018                                      JUDGMENT DATED: 16/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18786 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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

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 ?

==========================================================
                SHIVABHAI DEVSHIBHAI SUKHADIYA & 6 other(s)
                                 Versus
                    MUNICIPAL COMMISSIONER & 2 other(s)
==========================================================
Appearance:
MR NIKUL K SONI(5122) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR HS MUNSHAW(495) for the Respondent(s) No. 1,3
RULE SERVED BY DS for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                Date : 16/09/2022

                               ORAL JUDGMENT

1. Challenge in this petition is made by the

petitioners to the Resolution No.65 dated 13.06.2018

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

passed by respondent no.1 - Corporation, whereby the

Corporation is not handing over the possession of the

school premises no.49 which is the ownership of the

petitioners, as the said premises is not in use by the

Corporation as a school premises since long.

2. Heard learned advocates for the respective

parties at length.

3.1 Learned advocate for the petitioner/s has

submitted that they are the owners of the school

premises and the said said school premises was given on

rent to the Rajkot Municipal Corporation to run the

school. He has submitted that the said school premises is in dilapidated condition and non-use since long. He

has submitted that the petitioners have asked the

Corporation to hand over the premises but they did not

pay any heed towards it.

3.2 He has submitted that the petitioners have

filed a civil suit before the competent civil Court for

getting possession of the premises. The Corporation has

written a letter to the petitioners stating therein that if

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

the petitioners withdraw the suit, the Corporation will

allot another piece of land to the petitioners in place of

the school premises. He has submitted that the

petitioners have withdrawn the suit unconditionally, but

the Corporation has not allotted any plot to the

petitioners. He has submitted that the petitioners have

approached the various authorities from pillar to posts

but it has no meaning. He has submitted that the

Corporation has neither returned the said premises to

the petitioners nor has allotted any alternative plot as

promised by them to the petitioners till today.

3.3 He has submitted that similarly situated other

premises owners have approached this Court and this Court has quashed and set aside the action of the

Corporation and allowed the petitions with cost. He has

submitted that the Corporation has returned the

premises to those who have approached this Court and

not to the others who have not approached this Court,

though the Corporation has decided to treat all the

persons on the same line vide its Resolution No.54 dated

14.08.2017.

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

3.4 He has submitted that considering the facts

and circumstances of the present case, this petition may

be allowed with heavy cost.

4.1 Per contra, Mr. Munshaw, learned advocate for the Corporation has submitted that it is true that the

premises in question is a rental premises and the

petitioners are the owners of the said premises. He has

submitted that the Corporation is maintaining all the

buildings which are on rent. He has submitted that the

Corporation has used this building for many years for

the purpose of running the school, which is undisputed

fact. He has submitted that it is true that the school

premises in question is not in use since long, but the same will be getting repairing soon and the same will be

taken in use for Anganwadi. He has submitted that at

present, the said Anganwadi work is reduced but the

premises will be taken in use for the same soon. He has

submitted that the action of the Corporation is proper

and just. He has submitted that this petition may be

dismissed.

5. I have heard learned advocates for the

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

respective parties and I have gone through the material

on record, the picture which has emerged before this

Court is as under :

5.1 It is an undisputed fact that the premises in

question i.e. school premises no.49 is of the ownership of

the petitioner/s. The said premises is a residential house.

5.2 It is also an undisputed fact that the said

premises is given on rent to the Rajkot Municipal

Corporation for running of school.

5.3 One Regular Civil Suit No.33 of 1995 was filed

by the petitioners to get the premises back.

5.4 The Corporation has sent a letter dated

29.09.2001 to the petitioners and thereby agreed to give

alternate plot of the same size in the same vicinity,

subject to withdrawal of suit proceedings.

5.5 To which the petitioners were agreed and

accordingly, withdrawn the suit proceedings

unconditionally.

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

5.6 Thereafter, the Corporation did not pay any

heed towards the same. Therefore, the petitioners has

written a letter dated 15.07.2005 to the Corporation and

requested them to act as promised.

5.7 After taking many follow ups with the

Corporation by the petitioners, the Corporation has

passed one Resolution No.88 dated 23.05.2008, whereby

they have formed one Committee and decided to take

33% amount of the current market value of the premises

from their owners and thereby to hand over the

possession to them.

5.8 Thereafter, the Committee has decided the

market value of the premises in lakhs of rupees.

5.9 It is noted that the premises in question is

not in use and already closed since long and at present,

the said premises is in dilapidated condition, which can

be seen from the photographs attached with the petition,

which is admitted by the respondent - Corporation.

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

5.10 The petitioners have approached various

authorities and rushed from pillar to post but it has no

meaning.

5.11 The petitioners have drawn attention towards

various incidents whereby the Corporation has given the

possession of such premises to their owner/s.

5.12 It is important to note here that the said

Resolution No.88 dated 23.05.2008 passed by the

respondent No.1 - Rajkot Municipal Corporation was

challenged by one of the similarly situated persons before

this Court by filing a petition being Special Civil

Application No.1871 of 2014. This Hon'ble Court, after hearing the rival parties, has allowed the said petition

with costs by quashing and setting aside the Resolution

No.88 dated 23.05.2008 passed by the Rajkot Municipal

Corporation.

5.13 It is noted that various petitions on the same

line have been preferred by the owners of the premises

against the Corporation and all the petitions were

allowed by this Court with cost.

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

5.14 Thereafter, the Corporation has handed over

the possession of such owners who have approached this

Court and received the orders.

5.15 The Primary Education Committee of the

Corporation has passed one Resolution No.54 dated

14.08.2017 and decided that the same policy be applied

in all similar cases.

5.16 It is important to note here that though there

is a policy of the Corporation as well as there are

various orders against the Corporation for the similar

issues qua other school premises, the Standing Committee of the Rajkot Municipal Corporation has

passed one Resolution No.65 dated 13.06.2018 and

thereby decided to use such rental premises for other

educational purpose and for the use of 'Anganwadi'.

Looking to the said Resolution No.65, the Corporation

has taken into consideration the Resolution No.88 dated

23.05.2008. It is noted that said Resolution No.88 dated

23.05.2008 is quashed and set aside by this Court vide

oral order dated 08.11.2017 passed in Special Civil

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

Application No.1871 of 2014. Thus, such action of the

Corporation is completely arbitrary.

5.17 Thus, looking to the entire facts and

circumstances of the case, it transpires that the Rajkot

Municipal Corporation has very cleverly played mischief

with the petitioners. They have written a letter to the

petitioners to withdraw the suit first and then create a

wrong hope to allot another land of same size to the

petitioners, on that basis, the petitioners have withdrawn

the suit from the competent Civil Court, but the

Corporation has neither handed over the premises in

question nor allotted new piece of land to the petitioners,

the petitioners have approached many times, but it has no meaning and on the contrary to frame one Committee

and thereby tried to collect 33% current market value of

the premises in question, which was set aside by this

Court, some premises were handed over to their owners

and now has come with the new resolution and thereby

denied to hand over the possession of the premises. Such

action of the Corporation is highly improper and also

arbitrary and thus, become illegal. This is also

specifically asked to learned advocate Mr.Munshaw for

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

the Corporation about the present status of such

premises but Mr.Munshaw, learned, on instructions, has

submitted that such premises are unused since long.

Thus, the impugned action of the Corporation is therefore

required to be quashed and set aside with the cost. I

find that this is a fit case where this Court has to

exercise extra-ordinary powers under Article 226 of the

Constitution of India to prevent the miscarried of justice.

This petition therefore needs to be allowed by quashing

and setting aside the impugned Resolution No.65 dated

13.06.2018.

6. For the reasons recorded above, the following

order is passed.

6.1 The present petition is allowed. Rule is made

absolute.

6.2 The impugned Resolution No.65 dated

13.06.2018 passed by the General Board of the Rajkot

Municipal Corporation, Rajkot is found illegal and

improper and hence, quashed and set aside, qua school

premises No.49.

C/SCA/18786/2018 JUDGMENT DATED: 16/09/2022

6.3 Any consequential resolution/s based on the

Resolution No.65 dated 13.06.2018 passed by the Rajkot

Municipal Corporation, Rajkot does not find in accordance

with law and therefore, does not survive and are thus,

quashed and set aside, qua school premises No.49.

6.4 The respondent No.1 - Rajkot Municipal

Corporation shall handover peaceful and vacant

possession of the school premises No.49 to the

petitioners, within a period of two weeks from today.

Direct service is permitted.

(SANDEEP N. BHATT,J) M.H. DAVE