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2021 DIGILAW 494 (GUJ)

Manilal Rambhai Bhandari v. State of Gujarat

2021-06-29

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:- “(A) This Honourable Court be pleased to admit this petition. (B) That the Hon’ble Court be pleased to issue an appropriate writ, order or direction to the respondents directing them to comply with the order passed by this Hon’ble Court while disposing Special Civil Application No. 15389 of 2014 dated 14.11.2016 pursuant to the application dated 14.06.2021 which has been made by the petitioners to the Collector, as per the direction of this Hon’ble Court and further direct the Collector, Navsari to approach the Charity Commissioner by making an application and pray for simplifying the process of allotment of shops constructed by the Unai Mataji Trust, instead of conducting auction for the shops every three years, which would meet the ends of justice. (C) That this Hon’ble Court be pleased to quash and set aside the notice dated 05.06.2021 issued by the Chairman of the Respondent No. 4 Trust as it contains false assertions and is in direct conflict and contravention of the order passed by this Hon’ble Court in Special Civil Application No. 15389 of 2014. (D) That pending the hearing and final disposal of this petition, the Hon’ble Court be pleased to stay implementation and execution of the notice dated 05.06.2021 issued by the Chairman of the Respondent No. 4 Trust and be pleased to further restrain the Trust and its Chairman who is also the Deputy Collector, Vansda Prant from dispossessing the petitioners from the shops constructed by the respondent no. 4 trust. (E) For ad-interim relief in terms of prayer D. (F) For such other and further reliefs as the Hon’ble Court may deem just and proper in the facts and circumstances of the case. (G) Be pleased to pass such other and further orders as may be deemed fit and proper in the interest of justice. (H) Be pleased to award cost of this petition from the respondents.” 2. It is the case of the petitioners that the petitioners are the occupiers of the shops allotted to them pursuant to the auction held by the respondent Nos. 3 and 4. (H) Be pleased to award cost of this petition from the respondents.” 2. It is the case of the petitioners that the petitioners are the occupiers of the shops allotted to them pursuant to the auction held by the respondent Nos. 3 and 4. The respondent No. 4 Trust had resolved to renovate the temple of Shri Unai Mataji and for that purpose, the respondent No. 1 granted permission on certain terms vide letter dated 24.07.2001. It was suggested to construct a Shopping Center and Dharamsala so as to derive the regular income of the Trust. Pursuant to the above permission having been granted, the respondent Trust constructed a shopping center in the year 2003 and upon certain terms and conditions after following the procedure, some 19 persons were short-listed including the petitioners and the grievance is that though the shops were to be allotted on long term term basis, came to be allotted only for three years. The petitioners, pursuant to the said process of allotment, deposited the amount as per the requirement and allotment came to be made in favour of the petitioners calling upon the petitioners to pay a monthly rent of Rs. 500/-. The order in that respect is of 29.03.2004. 2.1 The petitioners have asserted in the petition that after completion of three years’ period, the respondents continued to allot the shops to the highest bidders by increasing the amount of rent and it is the case of the petitioners that in the year 2008 once again, the respondent Nos. 3 and 4 followed the very same procedure and auctioned the shops and the petitioners having participated were leased out the shops for a further period of three years. An order dated 09.05.2008 is an approving order on auction and allotment in favour of the petitioners. It is the further case of the petitioners that after lapse of three years, further in the year 2011, the respondents again conducted the auction procedure with the increased of amount of rent in which the petitioners came to be allotted since they were the highest bidders. It is the further case of the petitioners that after lapse of three years, further in the year 2011, the respondents again conducted the auction procedure with the increased of amount of rent in which the petitioners came to be allotted since they were the highest bidders. 2.2 By raising a grievance, a representation was made by the petitioners to the Hon’ble concerned Minister at a relevant point of time as well as to respondent No. 4 Trust with a request that they may be allotted the very same shops which they were holding at the same rate of rent. Such representation was made on 17.07.2011 and again reiterated on 15.11.2011. It is asserted that the Government has issued instructions for allotting the shops in question for more than three years and for that purpose, the respondent Nos. 3 and 4 were directed to initiate the proceedings for getting permission from the Charity Commissioner. However, according to the petitioners, till date, no any proceedings were initiated by the respondent Nos. 3 and 4 for getting such permission for allotment of shops on long term basis. In any case, the petitioners have been continued in the shops on the renewed lease period from time to time till June 2014. Incidentally, it has been mentioned by the petitioners that the District Panchayat has constructed a new shopping center in the nearby vicinity and the shops have been allotted in the shopping center of District Panchayat at a much lesser rent then what has been charged by the respondent No. 4 Trust. When the grievance was raised, notice came to be issued on 02.09.2014 by the respondent No. 3 calling upon the petitioners to hand over the possession of the shops even though it was agreed that the lease would be of five years and not of thee years and instead of approaching the Charity Commissioner, notice came to be issued. This had given rise to filing of Special Civil Application No. 15389 of 2014 by the petitioners challenging the said notice and communication dated 02.09.2014. The said petition came up for consideration before the High Court wherein by making certain observations, the petition came to be disposed of vide order dated 14.11.2016. This had given rise to filing of Special Civil Application No. 15389 of 2014 by the petitioners challenging the said notice and communication dated 02.09.2014. The said petition came up for consideration before the High Court wherein by making certain observations, the petition came to be disposed of vide order dated 14.11.2016. Few observations have been made in the said order and according to the petitioners, in defiance thereof, the authority has not adhered to the grievance of the petitioners and by making an assertion on oath that the said order was not communicated by learned advocate at a relevant point of time. The said petitioners have throughout represented before the Deputy Collector who incidentally was the Chairman of the Trust and requested to take a suitable measures before the Charity Commissioner for the purpose of allotment of shops on long term basis. But, according to the petitioners, even the Deputy Collector ignored the said request and the respondents have stopped collecting rent from the petitioners from the year 2017. Last rent receipt was issued in the year 2017. Thereafter, it is the grievance of the petitioners that no redressal is made to the repeated requests and instead of resolving the issue, to the surprise of the petitioners, notice came to be issued on 05.06.2021 by the Deputy Collector in the capacity as Chairman of the respondent No. 4 Trust mentioning that the term of the lease of these 18 shops had expired on 25.07.2014, but the petitioners have not handed over the shops and as such, were directed and called upon to hand over the possession of the shops on or before 15.06.2021 and if possession will not be handed over, consequence was mentioned to be followed. Again, the petitioners made a representation on 14.06.2021, in which in a helpless situation, by exerting force upon the petitioners, the respondents got affidavits of the petitioners that they will hand over the vacant possession of the shops along with the outstanding rent on 30.06.2021. It in this situation, the petitioners have approached this Court by way of present petition under Article 226 of the Constitution of India. 3. Learned advocate Mr. It in this situation, the petitioners have approached this Court by way of present petition under Article 226 of the Constitution of India. 3. Learned advocate Mr. Zubin Bharda appearing on behalf of the petitioners has submitted that the respondent Trust as well as the authority were in hand in glow in not taking any step to get permission for allotment of shops on long term basis and conveniently were changing the stand. It has been contended that there was a serious grievance voiced out throughout including represented before the Hon’ble Minister requesting the respondents to allot the shops on long term basis and to some extent, the Government had also intervened and directed the respondent Trust to take appropriate steps before the Charity Commissioner, but the respondents have not taken any step and on the contrary, the order is passed to take away the possession in these hard days when the entire society is suffering from pandemic of Covid-19. It has been submitted that the petitioners have hardly been able to meet their needs and survive own livelihood, but the authorities have not paid any attention and instead of resolving the grievance, have created a situation whereby the petitioners are directed to hand over the possession of the shops along with the outstanding rent. Mr. Bharda has submitted that in such a situation when the petitioners have not been able to carry out the business and have not been able to persuade the authority, some respect be given so that appropriate decision can be taken by the authority, but in any case, the issuance of notice by the authority is an arbitrary exercise of power which requires this Court to intervene. Learned advocate Mr. Bharda has submitted that the chronology of events as indicated above is clearly suggesting and by giving a short term lease, the Trust is just generating money and such arbitrary act requires intervention of this Court. Learned advocate Mr. Bharda has submitted that the notice in question is untenable in the peculiar background of facts and as such, the reliefs prayed for deserve to be granted. Learned advocate Mr. Bharda has submitted that the notice in question is untenable in the peculiar background of facts and as such, the reliefs prayed for deserve to be granted. On the contrary, in view of the observations made by the Hon’ble Court in earlier round of litigation, some steps are required to be taken by the respondents to approach the Charity Commissioner for simplifying the process of allotment and it is requested in the meantime to protect the petitioners from dispossession. No other submissions have been made. 4. Heard learned advocate Mr. Zubin Bharda for the petitioners. Before dealing with the stand taken by him, few circumstances are not possible to be unnoticed by this Court. 4.1 These petitioners have throughout participated in the process of allotment of shops as and when took place and at a later point of time, have raised a grievance with regard to charging of rent as well as with regard to allotment on a short term basis and when such grievance is raised, in the interest of trust, it appears that originally on 02.09.2014, notice came to be issued to hand over to the possession which led to filing of the petition by the petitioners being Special Civil Application No. 15389 of 2014. Few observations contained in the order dated 14.11.2016 passed in the said Special Civil Application No. 15389 of 2014 deserve to be quoted hereunder:- “3. Mr. Thakore, learned advocate for the petitioners submits that the petitioners are still in possession of the shops in question. It is further contended by the learned advocate for the petitioners that the conditions on which the auction is to be held and the conditions on which such lease has to be granted is not followed by respondent no. 4 trust and instead of 5 years' lease, has provided only 3 years' lease and the rent has been charged at an excessive rate than provided in conditions, more particularly, condition no. 4 thereof. As far as the prayers are concerned, it is an admitted position that the lease period is over and therefore, no further orders are required to be passed. 4 thereof. As far as the prayers are concerned, it is an admitted position that the lease period is over and therefore, no further orders are required to be passed. As far as the impugned notices are concerned, though they are termed as notices, in opinion of this Court, the same are communications given to each of the occupants who are petitioners before this Court and the copy of which is given to the District Collector, Navsari. As far as the prayers prayed for in Paragraph 23 is concerned, it would be open for the petitioners to approach the District Collector as well as the competent authority under the Bombay Public Trusts Act. If any such application is filed, the authority shall look into it in accordance with law as expeditiously as possible.” 4.2 It appears that these petitioners are in occupation and have retained the possession of the shops even after the lease period having been over undisputably and as per their own assertion, they have stopped the payment of rent right from 2017 which has led the respondents to issue notice on 05.06.2021. A perusal of the notice at Annexure-G, Page 65 is clearly indicating that these petitioners appears to have not vacated the premises even after the lease period having been over long back in July 2014. It is the settled position of law that the possession must be backed by some legal right or with some documents having force in law. Here, indisputably, the lease period has already expired as indicated above. No fresh lease is executed nor even the rent is paid after 2017 as indicated and on the contrary, it appears that much more time is given to the petitioners and as such, since the notice in question is clearly indicating that the lease period expired on 25.07.2014, the possession of the shops cannot be said to be lawful in any manner. 4.3 In addition thereto, it appears from the record that on 14.06.2021, a request was made before the Collector, Navsari pointing out the grievance, but then the very petitioners have signed an undertaken in a specific form and thereby, it has been clearly undertaken that they will vacate the premises and hand over the same by 9.00 a.m. on or before 30.06.2021. It is also revealing from the said undertaking that after giving the impugned notice on 05.06.2021, time was granted to vacate the shops and looking to the prevailing situation, the authorities have permitted the petitioners to avail some reasonable time and for that purpose, these petitioners have filed an undertaking to hand over the possession up to 30.06.2021. The undertaking whether is given under coercion, is a matter of serious dispute which this Court is not inclined to examine. The reason for such is that indisputably in July 2014, the lease has expired and the rent has not been paid by the petitioners and therefore, in the present form, the petitioners are appearing to be unauthorized occupants of the shops in question. 4.4 In addition to this, under one pretext or other, these petitioners appear to have retained the possession of the shops and in the previous round of litigation, the petition came to be disposed of in November 2016, in which, there was a clear admission on the part of the petitioners that the lease period is over and therefore, no further orders were required to be passed. A mere assertion that it would be open for the petitioners to approach the District Collector as well as the competent authority under the Bombay Public Trust Act would not give licence to the petitioners to retain the possession and it appears that the petitioners have remained dormant except making representations. However, be that as it may. It appears that the petition contains serious disputed questions of facts with regard to execution of undertaking before the authority and further with regard to further steps which the petitioners have taken before the authority after disposal of first petition and be that as it may, the possession of the petitioners is not backed by any legal force and therefore, no case is made out by the petitioners to call for any interference. 5. Learned counsel Mr. Bharda has requested that some respite be given to the petitioners in view of present pandemic situation, but then, undue sympathy, it is not possible to be extended to the petitioners in view of aforesaid peculiar background of facts and more particularly, undisputably, when these petitioners have signed an undertaking to hand over the possession by 30.06.2021. Learned counsel Mr. Bharda has requested that some respite be given to the petitioners in view of present pandemic situation, but then, undue sympathy, it is not possible to be extended to the petitioners in view of aforesaid peculiar background of facts and more particularly, undisputably, when these petitioners have signed an undertaking to hand over the possession by 30.06.2021. Therefore, at a last moment, the petitioners may not be allowed to utilize an extraordinary jurisdiction of this Court to keep themselves away from the undertaking which they have given. 6. At this stage, the Court is mindful of the decision delivered by the Division Bench of this Court which is reported in 2018 SCC Online (Gujarat) 951 wherein while dealing with the issue related to expiration of lease period, the Hon’ble Court has clearly observed that the petitioners are not entitled to even alternative prayer to permit to remain in possession for further period of one year. Since the lease period is already expired, it is obligatory on the part of the petitioners to hand over the possession. The terms and conditions not only of the agreement are breached but in this case undertaking is binding upon the petitioners and as such, no writ is possible to be issued in favour of the petitioners. Hence, in absence of any merit visible from the record, the petition is not entertainable. Accordingly, the same stand dismissed with no order as to the costs.