Gujarat High Court
Hiralal Chhaganlal Patel vs State Of Gujarat on 11 April, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/9341/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9341 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as to No
the interpretation of the Constitution of India or any order made
thereunder ?
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HIRALAL CHHAGANLAL PATEL & 1 other(s)
Versus
STATE OF GUJARAT & 10 other(s)
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Appearance:
MR ASIM J PANDYA(542) for the Petitioner(s) No. 1,2
MS ASMITA PATEL, AGP (99) for the Respondent(s) No. 1
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1
MR MB GANDHI(326) for the Respondent(s) No. 4
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 4
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MR MAYUR RAJGURU(1198) for the Respondent(s) No. 10,11,5,6,7,8,9
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 11/04/2019
ORAL JUDGMENT
1. RULE. Learned AGP Ms.Asmita Patel waives service of Rule on behalf of respondent No.1, learned Advocate Mr.H.S.Munshaw waives service of Rule on behalf of respondent No.2, learned Advocate Mr.M.B.Gandhi waives Page 1 of 11 C/SCA/9341/2016 JUDGMENT service of Rule on behalf of respondent No.4 and learned Advocate Mr.Mayur Rajguru waives service of Rule on behalf of respondent Nos.5 to 11.
2. This petition under Article 226 of the Constitution of India is filed for setting a side the order dated 09.05.2016 bearing No.GIDC/PRME/Bhavan/2194 by the Regional Manager, GIDC, Bhavnagar. The petition also prays for direction to declare the action of the respondents, more particularly Nos.2 and 3 of closing entrance of the property of the petitioner by constructing a brick wall being without jurisdiction and authority of law and remove the same.
3. It is the case of the petitioner that the petitioner is lawful occupant of the premises allotted by the respondent-GIDC, where the petitioner is carrying out legal industrial activity. Opposite to the premises of the petitioner, is a residential settlement and the residents of such area raised certain objections against the petitioner and his staff /workers for creating nuisance in various manners. Such objections were raised to the local authority as well as GIDC. Based on such objections, GIDC, without authority, has issued the impugned order and the respondent-Municipal Corporation has forcibly constructed wall and blocked entrance. Page 2 of 11
C/SCA/9341/2016 JUDGMENT
4. Learned Advocate for the petitioners submitted that the petitioner, after following due process, had purchased the premises from the original allottee and the respondent-GIDC has recognized such allotment and therefore, all the rules and regulations which were applicable to the original allottee are now applicable to the petitioner as well. It is submitted that by issuing the impugned order dated 09.05.2016, the petitioner was asked to vacate the premises and such order is, therefore, not only against principles of natural justice but is based on extraneous consideration, which cannot be the ground for invoking Clause-2(n) or Clause-2(r), breach of which is alloted in the impugned order. 4.1 It is submitted that after petitioner came in possession of the premises, the petitioner had resorted to legal means to get the portion of the construction regularized and regularize plan of construction shows presence of entrance into the premises on the TP road, opposite to the residential locality existing. It is submitted that on frivolous grounds to disturb functioning of the petitioner's factory, objections were raised by locals and though such objections were required to be disregarded, the respondent authorities, accepting such objections to be true, without affording an opportunity to explain to the petitioner, has passed the Page 3 of 11 C/SCA/9341/2016 JUDGMENT impugned order asking the petitioner to vacate the premises.
4.2 It is submitted that the local residents had initiated the proceedings under the provisions of the Criminal Procedure Code before the Sub-divisional Magistrate and only one person was playing proactive role, objecting against industrial activity in the area. It is submitted that the Sub-divisional Magistrate also, after taking into consideration such objections, could not conclude that the allegations made by the local residents were true and correct, but left it open to the authorities to look into it, verify and then take action. Despite this position, the respondent-Municipal Corporation has proceeded to block entrance of the petitioner by constructing wall. Such action of the respondents was without any authority of law.
5. As against this, learned Advocate for the respondent-GIDC relied upon the affidavit in reply and submitted that the petitioner was in breach of contract /terms of lease agreement, more particularly acted contrary to the provisions of Clauses2(n) and 2(r) and therefore, the respondent-GIDC was justified in passing the impugned order.
5.1 It is submitted that when the local residents
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had brought to the notice of the respondent-GIDC about the manner in which nuisance was created, more particularly by the staff and workers of the petitioner and others which was affecting the family life of the local residents, especially the lady members, it was necessary for GIDC to take necessary action as it was found in the interest of local public.
6. Learned Advocate for the respondent-Corporation submitted that the petitioner had earlier filed petition for the same relief being Special Criminal Application No.6986 of 2015 for identical prayers, i.e. declaring action of closing entrance of the premises of constructing brick wall as illegal and pull down such construction. However, this Court by order dated 07.01.2016 has declined to entertain such petition and therefore, insofar as prayer against the respondent- Municipal Corporation, the petition be held as not maintainable.
7. Having heard learned Advocates for the parties and having perused documents on record, it appears that original allottee of the plot being 48B, Vitthalwadi GIDC was one P.D.Brothers, from whom the present petitioner had purchased the premises by executing necessary documents in the year 2003. This was after issuance of 'No Due Certificate' to the original allottee and final Page 5 of 11 C/SCA/9341/2016 JUDGMENT transfer order dated 20.11.2006, by which plot No.48B stood transferred to the petitioner for the purpose of rough and polishing diamonds. The supplementary agreement also came to be executed between the petitioner, GIDC and original allottee. It appears that at the relevant time, when the petitioner came in possession of this premises, certain unauthorized construction was also existing which was observed in the transfer order of GIDC. The petitioner under the relevant provisions of law got such construction regularized under the Impact Fee Act with the Bhavnagar Municipal Corporation. It appears that the premises has two entrances, one on the TP road, facing residential area and another on the internal road of GIDC. The objections raised by the local residents were various in nature and were to the effect that working of the staff and workers in the premises was causing nuisance for the local residents. This was the basis for the respondent- GIDC to invoke Clauses-2(n) and 2(r) of the lease agreement. Clauses-2(n) and 2(r) of the lease agreement read as under:-
"(n) That he shall not do or permit any thing to be done on the demised premises which may be a nuisance, annoyance or disturbance to the owners, occupiers or residents of other premises in vicinity Page 6 of 11 C/SCA/9341/2016 JUDGMENT
(r) That he will not transfer, assign, underlet or part with the possession of the demised premises or any part thereof or any interest therein without the previous permission of the Lessor. For the purpose of this covenant, any change in the constitution of the Lessee shall be deemed to be a transfer by the Lessee of his interest in the demised premises in favour of another person, Provided that where the Lessee is a body corporate, a change in its Board of Directors or Managing Committee by whatever name called shall not be deemed to be a change in the constitution of the Lessee, Provided further that where the Lessee, for the purpose of constructing a building on the demised premises, is to obtain loan from a bank or other financial institution by mortgaging his leasehold interest in the demised premises in favour of such bank or institution, permission of the Lessor shall be deemed to have been given subject to the conditions-
(a) that such mortgage shall not affect the rights and powers of the Lessor under this Lease Deed, and
(b) that the Lessor before exercising his rights and powers under this Lease Deed will consult the bank or as the case may be, the financial institution concerned."
8. It appears that the respondent-GIDC had invoked Clause-2(r) on the ground that the petitioner, without Page 7 of 11 C/SCA/9341/2016 JUDGMENT permission of the GIDC, sought to transfer the premises in name of the petitioner No.2. At this stage, learned Advocate for the petitioners makes a statement that efforts of the petitioner to transfer the premises in name of petitioner No.2 has not fructified and and therefore, there is no transfer or attempt to transfer the premises to petitioner No.2 and therefore, there is no cause for invoking Clause-2(r).
8.1 Clause-4 of the lease agreement reads as under:-
"4 If the said rent hereby reserved or any installment of premium price shall be in arrears for more than two months whether the same shall have been legally demanded or not or if and whenever there shall be a breach by the Lessee of any of the covenants herein contained the Lessor may reenter upon any part of the demised premises in the name of the whole and thereupon the term hereby granted and right to any renewal thereof shall absolutely cease and determine and in that case no compensation shall by payable to the Lessee on account of the buildings or improvements built or carried out on the demised premises or claimed by the Lessee on account of such buildings or improvements, Provided always that the power of reentry herinbefore contained shall not be exercised unless and until Page 8 of 11 C/SCA/9341/2016 JUDGMENT the Chief Executive Officer on behalf of the Lessor shall have given to the Lessee a notice in writing of his intention to enter and of the specific breach or breaches of covenants in respect of which the reentry is intended to be made and default shall have been made by the Lessee in remedying such breach or breaches within three months after the giving of such notice."
8.2 The aforesaid clause clearly provides for GIDC to reenter the premises. However, such power is to be exercised only after Chief Executive Officer gives notice to the lessee in writing of his intention to enter on account of specific breach of the purchase of covenants (lease agreement).
9. On going through the record of this case, it is evident that no notice as contemplated under Clause-4 is issued before passing the impugned order dated 09.05.2016. The impugned order entails grave consequences as it class for eviction of the petitioner from the premises. Hence, over and above provisions of Clause-4 of the lease agreement, even principles of natural justice would require an opportunity of hearing to be afforded to the petitioner when he is to face such grave consequences.
10. This Court is therefore of the view that as the Page 9 of 11 C/SCA/9341/2016 JUDGMENT order dated 09.05.2016 is passed without following the principles of natural justice and without complying the requirements of Clause-4, is required to be quashed and set aside.
11. Insofar as issue of construction of wall on the premises of the petitioner by the respondent-Corporation, documents on record and the affidavit of the respondent- GIDC would indicate that the prevailing situation of friction between the local residents and the workers of GIDC, including that of the petitioner was required to be addressed to prevent any further unpleasant situation. The authorities therefore would not be expected to sit and watch and let the situation grow out of control. The exercise of construction the wall in the opinion of the Court is in that direction. Moreover, considering the observations of this Court in Special Criminal Application No.6986 of 2015, refraining from exercising jurisdiction under Article 226 considering the disputed questions of facts involved, this Court cannot take a different view while exercising jurisdiction under Article 226. Hence, prayer of the petitioner in terms of para-8-B, C and D cannot be accepted.
12. In view of the aforesaid discussion, the petition is partly allowed. The order dated 09.05.2016- Annexure-A to the petition is quashed and set aside. Page 10 of 11
C/SCA/9341/2016 JUDGMENT Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(A.Y. KOGJE, J) SHITOLE Page 11 of 11