Gujarat High Court
Sprat (Society For Promoting ... vs Ahmedabad Municipal Corporation (Amc) on 13 December, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13299 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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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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SPRAT (SOCIETY FOR PROMOTING RATIONALITY)
Versus
AHMEDABAD MUNICIPAL CORPORATION (AMC)
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
MR DEEP D VYAS(3869) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 13/12/2021
CAV JUDGMENT
1 This petition under Article 226 of the Constitution of India has been filed by the petitioner Society for Promoting Rationality ('SPRAT' for short) for the following reliefs:
"PRAYERS Page 1 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 The petitioner, terribly harmed by unimaginably unjust acts of a State entity and faced with an existentialist crisis - respectfully prays for judicial affirmation of the Petitioner's lawful and responsible conduct and exemplary justice, through the following prayers. This prayer excludes the claims for damages mentioned in paragraph 147.
May this Hon Court, and the greatest temple of justice in Gujarat, be pleased to grant the following prayers.
158. Taking into consideration the facts, submissions and grounds furnished in this petition, and such others as may be urged at the hearing, the Hon'ble Court may kindly be pleased to issue a writ of mandamus or any other writ, direction or order allowing this petition and A. Declaring the Respondent Corporation's following actions in respect of Muskaan Park built by the petitioner at mouje Vejalpur under TP Scheme No. 1, FP No. 220, as illegal and violative of the Constitution of India:
i. Inaction on PPP agreement
ii. Issue of notices of eviction and removal of assets
iii. Sealing the Park and keeping it sealed for 16 long months thus preventing it from removing its assets iv. Denying the reasonable time, the Petitioner sought to vacate the land v. The act of demolishing the Park vi. Destroying the reusability of the Petitioner's assets and failing to preserve the demolished goods safely. Vii. Not allowing the Petitioner to collect its valuables during demolition.
B. Kindly Ordering RESTORATION of the Status Quo Ante as on the date of Sealing the Park, viz, 25 th Feb, 2020, and towards achieving that end, also:
i. Directing the Respondent to reallot the said land to the Petitioner for a term of 10 or more years to run the Park. ii. Directing the Respondent to build similar structures and to supply similar or like goods as the ones the Respondent illegally demolished and destroyed, or in the alternative, to pay to the Petitioner the sum of Rs. 75 lakh, so that the Petitioner may Page 2 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 rebuild the structure and acquire the goods that were destroyed to run the Park.
iii. Directing the Respondent to supply to the Petitioner, the facilities normally required to run a Park, including water, electricity, cleaning etc in the interest of public service. iv. Declaring the further proceedings and transactions that the Respondent may have undertaken, if any, in respect of, or about the said land, with anyone else, subsequent to the act of illegal demolition, as ultra vires and null and void.
C. Alternatively, Your Lordships may be pleased to kindly award to the Petitioner NGO, a compensation of Rs.171 Lakh [Rupees One Hundred Seventy One Lakh only] in the nature of exemplary damages.
D. Kindly ordering an independent probe in the conduct of the officials responsible for the acts determined as illegal and to take appropriate legal action stipulated against them, and to reporty action taken.
E. Kindly ordering the Respondent to issue a public apoloty for maligning the Petitioner or its officers in public, clearly absolving them of any wrong-doing.
F. Kindly issuing an order restraining the Respondent from intimidating or harassing the Petitioner, its trustees and officers, in any way.
G. Kindly awarding Rs.2 (two) lakh towards the costs to the Petitioner.
H. Pending hearing and final disposal of the petition kindly issuing an interim order:
i. Directing the Respondent to maintain status quo relating to the said plot of land of 2,500 Sq.Mtr, at FP No. 220/3 under TP Scheme No. 1 at Vejalpur, as on the date of sealing the Park. ii. Kindly ordering the Respondent to supply to the Petitioner a copy of the inventory of the Petitioner's assets, along with the photographs and video recording, as obtaining before demolition. iii. Directing the Respondent to return all the goods of the Petitioner, from AMC godown and from the Park site, and to deliver them at the Petitioner's godown at 107, Om Puri Road, Matar in Kheda district at the Respondent's own cost, under Page 3 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 proper valuation, inventorying, and videography under the Court Commissioner's supervision.
I. Kindly granting, such other and further reliefs to the Petitioner as Your Lordships may be pleased to regard just and appropriate in the interest of justice and the nature of the case."
2 The facts in brief are as under:
2.1 Mr.Mohammed Hasan Jowher, the petitioner - President, appeared as Party-in-Person and argued this petition highlighting the facts and the action of the Ahmedabad Municipal Corporation which is under challenge.
2.2 The petitioner is a public charitable trust duly registered under the Bombay Public Trusts Act, dedicated primarily to promoting rationality and encouraging scientific temper. The Society, according to the petitioner, was partnered / patronized for social work by prestigious entities like, the U.S Government, O.N.G.C, BSNL, IOCL, Ford Foundation, RGF, TATA Chemicals, TCS, Shree Chemicals, Microsoft, Google etc and by leaders like Mr. I.K. Gujral, Mr.Chandrashekhar and Mr.Advani.
2.3 According to the petitioner, the Trust undertakes wide range of services promoting communal harmony by invoking common sense and every day science, undertaking non formal education and literacy through its network of CARAVAN centres for multi purpose empowerment across several cities and slums of Gujarat. The present case relates to the Page 4 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 allotment, and thereafter the action of eviction of a plot of land, initially allotted by Ahmedabad Urban Development Authority ("A.U.D.A" for short) in the Ahmedabad's Juhapura area.
2.4 It is the case of the petitioner that on 05.01.2004, the Ahmedabad Urban Development Authority allotted a plot of land, namely, Final Plot No.220 admeasuring 2500/ sq.mtrs in the Vejalpur T.P Scheme No.1. The said allotment of the plot was made pursuant to an application of the petitioner Trust made to the Chairman of the A.U.D.A. The letter of allotment stated that such allotment is made for a period of one year without giving ownership rights to the petitioner institute. The letter dated 05.01.2004 was subsequently followed by a letter dated 29.09.2004, by which, the petitioner Society was informed that the plot is alloted to the petitioner Trust so that it can be used by the people of all communities for carrying out extra co-curricular activities like games, exercises etc. The plot would be alloted after the AUDA does the fencing work the demarcation of the plot and levelling thereof. The allotment was made for one year.
2.5 It is the case of the petitioner that a request was made to the Vejalpur Nagarpalika which sanctioned water supply of around 10,000 to 15,000 litres and also supply of power for lighting of the park from the street light. From the grant of the Member of the Parliament, a grant of Rs.1 lakh was released so that at the park, called the 'Muskaan Park', a Page 5 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 borewell can be made. The Ahmedabad Municipal Transport Services started a bus service to the park which was used for supporting the mission of promoting communal harmony as it was being used by both, the Hindu and the Muslim community, wherein, they would come to engage themselves in activities like Yoga and playing games etc. 2.6 It is the case of the petitioner that the petitioner had by publishing Board, made it very clear that the ownership or the place was that of the AUDA / AMC. The case of the petitioner is that it was only after a period of almost two years that the park land was alloted to the petitioner that is beyond the period of allotment initially as per the letter was for one year. The Park was inaugurated on 01.01.2006 by his Excellency, the then Governor of Gujarat, where the Chairman of A.U.D.A himself reamined personally present. Even subsequently, the Mayor himself inaugurated a brand new auditorium built by the Trust on the land which was a metallic removable structure on 28.11.2010 at its own cost.
3 Mr.Mohammed Hasan Jowher, learned Party-in-Person, would submit that in subsequent phases, the Society added toys, equipments for adventure, exercise and science and this was the only green patch within the vicinity. Councillors within the area were happy with the development and found that the multi purpose auditorium, a mini zoo space at a corner, the recreational activities of exercising, and adventure Page 6 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 devices were adding value to the communities residing at the Juhapura and the Vejalpur area.
3.1 In the year 2016, eleven years after the expiry of the alleged allotment tenure, a water connection was approved. The case of the petitioner is that, suddenly, after thirteen long years of unblemished services by the Society, in an apparent act of vendata, a notice of eviction was issued by the Ahmedabad Municipal Corporation on 17.10.2017. 3.2 Mr.Jowher, Party-in-Person, reading the notice would submit that the notice indicated that the petitioner was called upon to submit the documents to satisfy the authority whether the usage of the park, the plot of land on which it was made and which was reserved for garden was used in accordance with any permission. The communication further asked the petitioner to remain present with documentary proof to show whether there was any permission for using the plot in question. In the event the petitioner failed to satisfy the authorities for usage of such plot and the permissions, the Society was called upon to immediately stop usage of such plot lest the petitioner would be asked to hand over the plot to the Corporation immediately.
3.3 On receipt of such notice, a representation was made by the Society on 04.11.2017 to consider that the petitioner had privately mobilized and invested atleast Rs.35 lakhs on the plot of land which was otherwise lying barren. Recreation and adventural activities to promote Page 7 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 national integration, science and health were made on the park. A bus service was launched, medical facilities and other collaborative services were offered with the help of other NGOs like Helpage, International Students Activist, national writers and the U.S Consulate Officers. However, according to the petitioner, the Corporation did not accept the credibility of the petitioner of the usage of the plot and on 06.11.2017 asked the petitioner to vacate the plot within seven days from the date of receipt of notice. This was again followed by a communication dated 20.11.2017 informing the petitioner that the petitioner had failed to show any permissions from the competent authorities for usage of the plot and they were directed to hand over peaceful and vacant possession of the plot within seven days.
3.4 To this notice, the petitioner, Mr.Jowher, would submit that the Society wrote a letter on 24.11.2017 again reiterating the credentials of the Society and the Park facilities which was a land otherwise alloted by the AUDA. Mr.Jowher, would also submit that it was a recommendation made by one Mr.Surendra Patel, the then chairman of Ahmedabad Urban Development Authority that the plot must be given on the long term basis to the petitioner Society as it was carrying out good work in terms of using the plot for recreational purposes and a garden. 3.5 According to the petitioner, as stated in the petition, a meeting was held with the then Municipal Commissioner, Shri Vijay Nehra, who Page 8 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 promised to look into the issue and informed the concerned authorities to differ eviction of the petitioner Society from the Park. Expecting that such a meeting together with the representations made would have a salutory effect, the petitioner believed that since the respondent did not act on eviction notice for over 20 months, they would regularize petitioner's possession rather than evict the petitioner. 3.6 This is evident from the fact that the Ahmedabad Municipal Corporation thereafter on a request made for regularization, after a long term / private partnership, requested the Municipal Commissioner by a letter of 05.12.2017 to deter eviction. This was failed and on 03.02.2018, the petitioner was given three days' time to evict from the plot. It appears that subsequently by a letter dated 28.02.2018, the Director, Parks & Gardens, an Officer of the Ahmedabad Municipal Corporation asked the petitioner to provide details if it was willing to enter into a Public Private Partnership for development and maintenance of the garden. To this, on 20.03.2018, the petitioner Society expressed its willingness to enter into a Public Private Partnership. Nothing was heard from the Corporation, however, by a letter dated 28.03.2018 addressed by the Corporation, Parks & Gardens Wing, it was again pointed out to the petitioner that the Corporation was willing to enter into a Public Private Partnership if the petitioner was willing to give consent to enter into such an agreement. To this, the institution agreed to enter into any kind of PPP arrangement. Page 9 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022
C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 3.7 Mr.Johar, party-in-person, would draw the attention of the Court to
a letter written by the Society on 16.04.2018, wherein, it was pleased to offer unconditional consent for management of the park under the PPP arrangement and to sign any appropriate M.O.U. Despite this, nothing was heard from the Corporation and by another notice dated 01.01.2020, the petitioner was asked to vacate the plot and remove their belongings there on.
3.8 To this notice, a representation was made to the Corporation that they would vacate the plot if more time was given to them because in order to see that the huge structures like the auditorium etc., are dismantled, they would need J.C.B Machines and more time to transport the equipments which over a period of 15 years were part of the plot. This was followed by a notice of 28.01.2020 and it is the case of the petitioner that though a representation was made giving them a timeline of eviction for vacating the land on 29.01.2020, the plot was sealed by the Municipal Corporation on 25.02.2020. This hampered the petitioner's quest for vacating the plot so that it could transfer its equipments after dismantling them to their own owned plot at Matar. By the impugned notice of 04.06.2021, the Corporation evicted the petitioner, bull dozed into their plot and damaged the property in question which is a subject matter of challenge.
3.9 Mr.Jowher, Party-in-Person, would take the Court through the Page 10 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021
letters dated 08.03.2021, 23.04.2021, 26.02.2021, by which, the Society requested time to vacate the land and therefore it was reasonably expected that the Corporation would give them time to do so. However, an e-mail was received on 04.06.2021, and simultaneously on 04.06.2021 the Corporation Officers landed up at the site and indiscriminately started damaging the structures within the garden with the help of JCBs and undid the work that the Society had undertaken in setting up these structures and demolished the structures causing irrepairable damage to the equipments such as computers, the auditorium structure and valuable files and documents lying in the structures into complete disarray. Mr.Jowher, party-in-person, would draw the attention of the Court to the whatsapp chats between the Dy.Municipal Commissioner and the Officers which undertook the exercise of removing the equipments and though a timeline to vacate was given, though the park was sealed for more than a year, and thereafter out of the blues, suddently the Corporation swung into action damaging the property setup by the hard work of the Officers of the NGO.
3.10 Mr.Jowher, invited the attention of the Court to the photographs annexed to the petition from pages 164 onwards to submit as to how the equipments were damaged and carried to a godown of the Corporation and the petitioner was asked to collect the belongings from a site to which the goods were transported.
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C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 4 Mr.Deep Vyas, learned counsel appearing for the Corporation had
filed a sick note, as is recorded in the order while reserving the judgment, however, since the petition was specifically fixed for hearing on 26.11.2021, specifically after an information given to Mr.Vyas, learned advocate, on the preceeding days of the forthcoming hearing, since the party-in-person requested for a hearing, the Court heard Mr.Sankhesara, learned advocate appearing for Mr.Deep Vyas.
4.1 Mr.Sankhesara, learned counsel, took the Court to the affidavit-in- reply filed by one Shri Atulgiri B Gosai, working as an In-charge Deputy Estate Officer. He would submit that various communications were addressed between the parties, wherein, the petitioner was informed that the lands had vested with the authority for the purposes of reservation for gardens. The petitioner was called upon to produce necessary evidence and permissions for continuing with the possession and / or allotment. Several warnings were given after they failed to produce necessary information to stop the usage of the plot. Communications were addressed in February 2018 to hand over possession. Notices were issued on 01.01.2020 for removal of goods and thereafter since the petitioner failed to hand over possession, the plot was sealed on 25.02.2020. 4.2 Mr.Sankhesara, learned advocate, would submit that since the petitioner was in unauthorized occupation which was established, entering into a Public Private Partnership was a mode to forestall Page 12 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 eviction. After the sealing of the premises in 2020, though the petitoner had enough time to vacate the plot and to remove his goods and belongings, on an oral intimation on the previous day, i.e. on 03.06.2021, implementaion measures were carried out on 04.06.2021 in presence of the staff of the petitioner. It is submitted by Mr.Sankhesara, learned advocate, though that three months' time was sought to evict and vacate the land, the orders were implemented only sixteen months thereafter and therefore there is nothing wrong in the action so carried out by the Corporation. Reminders have been sent and the list of inventory was drawn and the goods and the stock was carried to the south west zone office of the Corporation and therefore the petition as framed and the prayers made therein are misconceived. The petitioner did not respond to the PPP Offer made thereafter and since the plot was not vested in it, no right accrued to the petitioner for allotment of such plot. 5 From the submissions made by the respective parties, what is evident is that the petitioner Trust known as Society for Promoting Rationality in order to set up a patch of green land with an intention to promote the activities of recreation etc., requested the then AUDA within whose jurisdiction the plot fell for allotment of a plot of land to set up a park and other recreational activities. Accordingly, by a communication dated 05.01.2004, the plot was alloted to the petitioner. By a further Page 13 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 communication dated 29.09.2004, it is specifically provided that the Society will not be in a position to carry out any civil or permanent construction but utilize the plot for extra co-curricular activities such as Yoga, etc., so as to promote communal harmony on the plot which was situated in the Juhapura / Vejalpur area. The letter clearly stated that the plot will be put to use after AUDA carries out fencing, demarcation of the land, levelling and prcocessing. The condition on which the plot was alloted to it was for a tenure of one year. It has come on record through the averments made in the petiton that it was in January 2006 that possession of the plot was given by the Ahmedabad Urban Developement Authority and the activities of the plot were set into motion by it being formally inaugurated by the then Governor of Gujarat in presence of the Chairman of AUDA.
5.1 It is also a matter to be noted and which is part of the record that from time to time funds were given by various agencies including grants from the Member of Parliament for setting up certain infrastructural facilities like bore and water supply. Electricity connection was offered and so was water connection by the Vejalpur Nagarpalika. 5.2 Through the correspondence on record that Mr.Jowher has annexed to the petition and drawn the attention of the Court it is evident that for the first time it was in October 2017 on the plot vesting with the Ahmedabad Municipal Corporation, the Corporation asked for certain Page 14 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 documents so that the petitioner could come forth and show necessary evidence of the usage of the plot. Notices of October 2017 and November 2017 it was pointed out by the Corporation that the lands have vested with the Authority for the purposes of reservation for gardens. The petitioner was called upon to produce necessary evidence and permissions for continuing with the possession and/or allotment. Time was given that in the event it failed to produce such evidence it should stop the use of the land and hand over possession. This is evident from various notices of the Corporation dated 17.10.2017, 06.11.2017, 20.11.2017, 03.02.2018 which specifically gave seven days and three days time to the petitioner to vacate the land. In the interregnum, as is evident from the communications addressed by the councillors of the Ahmedabad Municipal Corporation that a recommendation was made to the Mayor of the Ahmedabad Municipal Corporation to regularize and enter into a long term Public Private Participation with the petitioner Society and continue the retention of the land with the petitioner as it was being used for the extra co-curricular activities and the residents in the vicinity were happy with the usage of the land and the usage that it was put to.
5.3 Also on record are the letters of the Corporation asking the petitioner whether it was willing to accept Public Private Participation offer and regularization of allotment. From a letter dated 28.02.2018 Page 15 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 which is on record, it is established that the Director of Parks & Gardens, another wing of the Ahmedabad Municipal Corporation had sought details and consent of the petitoner on the question of public private participation and the petitioner's willingness to do so. The petitioner Society by a letter of 20.03.2018 accepted the public private participation offer. To this consent was sought by the wing of the Ahmedabad Municipal Corporation along with forms on 28.03.2018. That was accepted by the petitioner. Despite reminders nothing was done by the Corporation to get back whether such a public private participation offer was accepted. Having done nothing for over a period of over two years, the Corporation again swung into action by eviction notices dated 01.01.2020 and 28.01.2020 asking the petitioners to vacate forthwith. Having failed to do so, and despite a request for time to vacate, looking to the vastness of the project for 15 years that it had undertaken by virtue of construction of makeshift auditorium and equipments, the petitioner requested for three months time to vacate. On 25.02.2020, the Ahmedabad Municipal Corporation issued a notice to seal the park. The request of the petitioner therefore of vacating and the time asked for was not accepted because it was prevented from vacating by virtue of the authorities having sealed the park on 26.02.2020. In the interregnum, due to the ensuing pandemic, a request was made by the petitioner to the autorities to see that the goods that have been removed may be taken care Page 16 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 of and the damage that was done in as much as the park remained unprotected causing pilferage of large scale materials from the site. Ultimately on 04.06.2021, demolition was carried out and the goods shifted.
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 alloted to the petitioner for a period of one year, the same effectively was handed over in the year 2006 to the petitoner. 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 2004 to 2017. In October 2017 the AMC sprung into action asking the petitioner to come forth and produce necessary evidence for continuing the possesion 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 activites 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.
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C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 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 implementaion 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 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 retianed the land no right vested in it, the subsequent corespondence 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 Page 18 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 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 demoliton, 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 permissibility in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India.
7 This Court, however, based on the exchange of correspondence and the pleadings, would certainly opine that when the petitioner Society with its laudable credentials as put to in the pleadings was allotted a parcel of land by the Ahmedabad Urban Development Authority for carrying out the purposes of creating the recreational facilities, which it did, that it put up such facilities with the help of the authorities is evident. Grants were received from the M.P LADs funds. The Vejalpur Nagarpalika gave water connection, electricity connection, albeit, the petitioner continued Page 19 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 to remain in possession for over a period of 13 years despite the currency of allotment being initially for an year may not give the petitioner a vested right to occupy the land, however, when the petitioner was asked to give details of the rights on the basis of which it was occupying the land, for reasons unknown to this Court, notices of eviction were issued and when a time line was sought for vacating the land and putting in place the possesion and return it to the Ahmedabad Municipal Corporation, possibly due to the pandemic in question, neither did the petitioner vacate the land nor did the Corporation exercise its coercive force to get the petitioner evicted. After the ebbing of the second wave, the Corporation swung into action and demolished the properties and equipments on the land on which the 'Muskaan Park' once stood. On the issue of the petitioner and the Corporation entering into a Pubilc Private Partnership the question still remains unanswered.
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 Page 20 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 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 desrve 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 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 Page 21 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022 C/SCA/13299/2021 CAV JUDGMENT DATED: 13/12/2021 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 preceeding events, if the Corporation wishes to undertake the usage of the plot which is already reserved for gardens and if the petitoner 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.
(BIREN VAISHNAV, J) Bimal Page 22 of 22 Downloaded on : Wed Jan 12 09:32:14 IST 2022