Gujarat High Court
Ahmedabad Gymkhana Club vs Union Of India on 26 August, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SCA/9772/2021 ORDER DATED: 26/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9772 of 2021
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AHMEDABAD GYMKHANA CLUB
Versus
UNION OF INDIA
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Appearance:
MR MIHIR JOSHI, SR. ADVOCATE with MR SALIL M THAKORE(5821) for
the Petitioner(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 1 - 2
MR D C SEJPAL(1322) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 26/08/2021
ORAL ORDER
1. Heard learned Senior Advocate Mr. Mihir Joshi with learned Advocate Mr. Salil M. Thakore for the petitioner, learned Advocate Mr. Ankit Shah for the respondent Nos. 1 and 2 and learned Advocate Mr. D.C. Sejpal for the respondent No.3.
2. Learned Senior Advocate Mr. Mihir Joshi with learned Advocate Mr. Salil M. Thakore for the petitioner request for permission to grant the proposed draft amendment. Permission is granted. Amendment to be carried out within a period of one week.
3. By way of this petition the petitioner seeks to assail an order passed by the respondent No.2 herein whereby the lease deed in favour of the petitioner-Club from the year 1932 has been terminated vide an order dated 25.06.2021.
4. Learned Senior Advocate Mr. Mihir Joshi for the petitioner has drawn the attention of this Court to a show-cause notice issued to the Page 1 of 7 Downloaded on : Wed Sep 08 14:57:09 IST 2021 C/SCA/9772/2021 ORDER DATED: 26/08/2021 petitioner on 09.01.2017, wherein the main allegations against the petitioner- Club, which later on were considered for the purpose of terminating the lease were with regard to the petitioner organizing marriages and coaching classes within the premises of the Club which amounted to using of land for commercial purpose and thus was in violation of lease condition No. 1(6).
5. Learned Senior Advocate has further drawn the attention of this Court to the reply filed by the petitioner dated 06.02.2017, wherein it is inter alia contended that while the marriage functions were organized, but they were by the individual members of the Club and not by the Club itself and whereas it is sought to be contended that such functions have now not been conducted since last more than a decade, more particularly since such functions even have not been permitted by the Cantonment Authority or the Army Authorities.
6. Learned Senior Counsel has thereafter taken this Court to the impugned order dated 25.06.2021 and it is sought to be contended that the said order has been passed approximately four and a half years after the show-cause notice has been issued and whereas the said order does not reflect any application of mind by the authority concerned as regards the reply given by the present petitioner. It is also sought to be contended that in the reply, the petitioner had also sought for a personal hearing which also had not been granted. Learned Senior Advocate has further drawn the attention of this Court to the recital in the order dated 25.06.2021, wherein it is inter alia mentioned that the reply to the show-cause notice of the petitioner has been duly considered by the competent authority and whereas it is sought to be contended that essentially the order dated 25.06.2021 is only a communication of the impugned order, whereas the impugned order appears to have been passed by the different authority which is not on record.
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7. Learned Senior Advocate has thereafter submitted that as far as the allegation in the show-cause notice which has been used as a ground for terminating the lease agreement is concerned, the marriage functions have not been conducted since more than a decade and such pertinent averment in the reply has not been considered at all in the final order. Learned Senior Advocate has further submitted that the Club is an association of persons and whereas there is an element of mutuality where members give service to themselves and all the charges for such services are go to the common use and there is no element of the profit motive. Learned Senior Advocate has further submitted that as far as the allegation of coaching classes is concerned, there is no coaching class per se held within the premises rather they are sports coaching classes inside the premises for the benefit of the members of the Club. Learned Senior Advocate has further submitted that the such activities are not in violation of the by-laws of the Club and whereas the attention of this Court has also been drawn to the old as well as new by-laws which are part of the petition. Learned Senior Advocate has further submitted that even the lease condition, violation of which is claimed by the respondent authorities, inter alia envisages that the Club can be used even for any other purpose and only requirement is that consent of the Cantonment Authority has to be taken, whereas learned Senior Advocate submits that it is not that the Club was being used for any other purpose, but rather the submission being that even otherwise there was a permissibility element with regard to activity other than as envisaged. Learned Senior Advocate has further assailed the impugned order on the ground of proportionality inasmuch as it is submitted that assuming that the infractions as mentioned in the show-cause notice were accepted then also they were not of such nature that the punishment of termination of the lease would be the natural punishment. It is further submitted that the punishment is highly disproportionate to the charges even if they are held to be correct. Learned Senior Advocate has therefore submitted that these issues have not been taken into consideration by the respondent authorities, Page 3 of 7 Downloaded on : Wed Sep 08 14:57:09 IST 2021 C/SCA/9772/2021 ORDER DATED: 26/08/2021 and therefore the present petition may be entertained and the impugned order may be quashed and set side and in the interregnum, the same may be stayed.
8. This petition is strongly opposed by the learned Advocate Mr. Ankit Shah for the respondent Nos. 1 and 2 as well as learned Advocate Mr. D.C. Sejpal for the respondent No.3. Learned Advocate Mr. Shah has sought to raise a preliminary objection with regard to maintainability of the petition and has submitted that since the dispute essentially is of contractual nature, the writ petition would not lie before this Court. As far as the merits are concerned, learned Advocate Mr. Shah has contended that even in the reply to the show-cause notice there is an admission on behalf of the petitioner that the premises of the Club had been used for marriage purposes. It is further submitted by learned Advocate Mr. Shah that the sports coaching classes to the members of the Club was not the reason for termination of lease rather the coaching provided to guests of the members of the Club, which was one of the reasons which has found favour with the respondent authorities for terminating the lease contract.
9. As far as the submission of learned Senior Advocate for the petitioner for no opportunity of being heard having been granted, it has been submitted by learned Advocate Mr. Shah that such the order is administrative in nature and not by quasi judicial authority and therefore there is no occasion for the petitioner to have sought for opportunity of being heard before passing of the order. As far as the issue of proportionality raised by the learned Senior Advocate for the petitioner is concerned, it is submitted by learned Advocate Mr. Shah that since the lease agreement itself contemplates cancellation for violation of any terms, and therefore no lesser penalty could have been imposed upon the petitioner, more particularly since the respondent authorities are of the opinion that there has been a clear violation of provisions of the lease deed. As regards Page 4 of 7 Downloaded on : Wed Sep 08 14:57:09 IST 2021 C/SCA/9772/2021 ORDER DATED: 26/08/2021 the submission by learned Senior Advocate for the petitioner that the order in question is a mere communication of an order passed by different authority, more particularly with regard to the recital in the impugned order at last para of page 2 as well as the averments made in the affidavit-in-reply at para 15 as well as para 23, it is submitted by learned Advocate Mr. Shah that both the order as well as the affidavit-in-reply are not happily worded and that the impugned order has been passed by the signatory himself i.e. respondent No.2. It is submitted that other then the said order there is no order passed by any authority to whom the respondent No.2 is subordinate to. Learned Advocate Mr. Shah therefore submits that since the dispute is with regard to the lease is in realm of the contract between the parties and since the order impugned in the petition is a well reasoned order, this Court may not entertain this petition much less grant an interim relief in favour of the petitioner.
10. Learned Senior Advocate Mr. Mihir Joshi in rejoinder has submitted, as regards the preliminary objection raised by the respondents with regard to the maintainability of the petition, that by now is a well settled position that when any authority which is State under Article 12 of the Constitution of India passes any order, then on the ground of the order not being reasonable and lawful, this Court under Article 226 of the Constitution of India would be competent to hear and decide the petition. Learned Senior Advocate has relied upon the observations of the Supreme Court in case of M/s Dwarkadas Marfatia and Sons v. Bombay Port Trust , reported in (1989) 3 Supreme Court Cases 293, more particularly in para 27 thereof, where the Hon'ble Supreme Court has inter alia held thus; "If a governmental policy or action even in contractual matters fails to satisfy the test of reasonableness, it would be unconstitutional".
11. As regards the submission that the order as well as the affidavit are not happily worded, it is submitted by learned Senior Advocate Mr. Joshi Page 5 of 7 Downloaded on : Wed Sep 08 14:57:09 IST 2021 C/SCA/9772/2021 ORDER DATED: 26/08/2021 that the order as well as affidavit-in-reply convey only one meaning i.e. that there was a different authority which was the competent authority and the order has been passed by such an authority and which was communicated by the respondent No.2, more particularly since the word "served" is used in paras 15 and 23 in the affidavit-in-reply. Learned Senior Advocate submits that even otherwise the recital in the order as well as averments made in the affidavit-in-reply can also be read to mean that the authority which has passed the order was acting under the dictates of a different authority and therefore also the order would required to be interfered.
12. Heard learned Advocates for the parties. This Court was appreciated the fact that the lease itself was signed between the then State and the petitioner in the year 1932 and has been continuing in favour of the petitioner all throughout. Prima facie this court is of the opinion that the impugned order, for terminating of the lease does not state any reason therein rather the allegations/charges as levelled against the petitioner in the show-cause notice have been reproduced in the impugned order and further more the reply of the petitioner does not appear to have been considered by the respondent at all. This Court is of the prima faice opinion that the allegations against the petitioner are of having used the Club for the purpose of marriages as well as for coaching classes and for the purpose of entertaining the guest which according to the respondent, was a violation of the lease conditions, whereas it is prima faice the opinion of this Court that conducting marriage inside the premises of Club or conducting coaching classes for the members of the Club or even entertaining the guests of the members of the Club would not fall into the meaning of a commercial activity, more particularly in the context of the dispute raised in the petition. Furthermore, as observed hereinabove, condition No. 1(6) of the lease deed which is being relied upon by the respondent for terminating the contract of lease itself contemplates that even if an activity which is not within the purpose for which the Club had been created were to be permitted in the Page 6 of 7 Downloaded on : Wed Sep 08 14:57:09 IST 2021 C/SCA/9772/2021 ORDER DATED: 26/08/2021 Club then the same could not have been with the consent of the Cantonment Authority. Thus, the lease itself envisages that the other activity then for which the lease had been granted could have been conducted by the Club. The only requirement was that permission ought to have been taken. Again in the impugned order neither there is reference to the specific averments in the reply by the petitioner to the show-cause notice that the marriages which are stated to have been conducted in the Club have not been conducted for the last 10 years. On the aspect of preliminary objection, in the considered opinion of this Court, the observations of the Hon'ble Supreme Court referred to hereinabove takes care of the issue, and therefore the preliminary objection is decided against the respondents.
13. In this view of the matter, this Court is of the considered opinion that prima faice case for interfere is made out. Hence, issue Rule, returnable on 20.10.2021.
14. Interim relief in terms of Para 33(B) is granted.
15. Learned Advocate Mr. Shah waives service of Rule on behalf of the respondent Nos. 1 and 2 and learned Advocate Mr. Sejpal waives service of Rule for the respondent No.3.
(NIKHIL S. KARIEL,J) BDSONGARA Page 7 of 7 Downloaded on : Wed Sep 08 14:57:09 IST 2021