Kamleshbhai Jagjivanbhai ... vs Municipal Commissioner
2022 Latest Caselaw 8047 Guj

     C/SCA/18784/2018                                      JUDGMENT DATED: 16/09/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18784 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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 ?

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             KAMLESHBHAI JAGJIVANBHAI AMBALIYA & 1 other(s)
                               Versus
                 MUNICIPAL COMMISSIONER & 2 other(s)
==========================================================
Appearance:
MR NIKUL K SONI(5122) for the Petitioner(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 1,3
RULE SERVED BY DS for the Respondent(s) No. 2
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    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.19 dated 13.08.2018

C/SCA/18784/2018 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.62 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

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

C/SCA/18784/2018 JUDGMENT DATED: 16/09/2022

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.

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

C/SCA/18784/2018 JUDGMENT DATED: 16/09/2022

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

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.62 is of the ownership of

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

C/SCA/18784/2018 JUDGMENT DATED: 16/09/2022

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 The petitioners have written a letter to the

Corporation for getting back the possession of their

ownership, but the Corporation did not pay any heed

towards it.

5.4 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.

5.5 Thereafter, the Committee has decided the

market value of the premises in lakhs of rupees.

5.6 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

C/SCA/18784/2018 JUDGMENT DATED: 16/09/2022

seen from the photographs attached with the petition,

which is admitted by the respondent - Corporation.

5.7 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.

5.8 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.

5.8 It is noted that various petitions on the same

C/SCA/18784/2018 JUDGMENT DATED: 16/09/2022

line have been preferred by the owners of the premises

against the Corporation and all the petitions were

allowed by this Court with cost.

5.9 Thereafter, the Corporation has handed over

the possession of such owners who have approached this

Court and received the orders.

5.10 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.

5.11 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.19 dated 13.08.2018 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

C/SCA/18784/2018 JUDGMENT DATED: 16/09/2022

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

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

Corporation is completely arbitrary.

5.12 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. 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 the Corporation about

the present status of such premises but Mr.Munshaw,

C/SCA/18784/2018 JUDGMENT DATED: 16/09/2022

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.19 dated 13.08.2018.

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.19 dated

13.08.2018 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.62.

6.3 Any consequential resolution/s based on the

C/SCA/18784/2018 JUDGMENT DATED: 16/09/2022

Resolution No.19 dated 13.08.2018 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.62.

6.4 The respondent No.1 - Rajkot Municipal

Corporation shall handover peaceful and vacant

possession of the school premises no.62 to the petitioners,

within a period of two weeks from today.

Direct service is permitted.

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