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2021 Supreme(Guj) 1098
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
SUSHMABEN PRAKASHCHANDRA PUNJABI - Appellant
Versus
STATE OF GUJARAT & others - Respondent
SPECIAL CIVIL APPLICATION NO. 12650 of 2017
Decided On : 29-11-2021
For The Appellant : MR SP MAJMUDAR, SHASHVATA U SHUKLA
For The Respondent:MR.MEET THAKKAR, AGP, MR.MAULIK NANAVATI, ADVOCATE for NANAVATI AND CO.
Headnote:
Constitution of India, 1950 - Writ petition - Article 226, 19(i)(g) - Gujarat Provincial Municipal Corporation Act - Section 264 - Rent Act - Section 10D(4) - Declare act of dispossessing Petitioner, by demolishing rented shop by Respondents as arbitrary, illegal, unconstitutional and violative of Art 19(i)(g) - Petitioner submit that it is evident on reading notice that what was stated was that shop had become dangerous to occupy, was in a dilapidated condition and therefore ought to have been repaired - He submitted that an opportunity ought to have been given to tenant to undertake repairs - Municipal Corporation would submit that if prayers as initially framed in petition are closely read, it would indicate that prayer was to declare the act of dispossessing petitioner and demolition of rented shop by Municipal Corporation be declared as illegal - At that point of time, Corporation was never a party respondent – Held, petitioner ought not to be ousted only on ground of delay in joining necessary party, reading Section 264 of Act would make it clear that if at any time it appears to Commissioner that any structure is in a ruinous condition or likely to fall or in any way dangerous to any person occupying, restoring or passing by such structure or any other structure or any place thereof or neighborhood, Commissioner may by a written notice require owner or occupier of such structure to pull down, secure, remove or repair such structure or thing - On condition that there has been a violation of principles of natural justice the structure was pulled down immediately and notice being given later, what is evident is that opportunity was given - Challenge to notices of quashing are only postfacto decision which clearly is reflected as an afterthought when read in context of pleadings - Though it was canvassed in view of interpretation of Section 264 of Act, amended prayer to restore possession and permit petitioner to carry out his business with a direction to respondent-Corporation to reconstruct shop of petitioner cannot be granted as admittedly, ownership does not vest with Corporation - Petition dismissed.
JUDGMENT :
1. Draft amendment is granted. To be carried out forthwith.
2. By this petition under Article 226 of the Constitution of India, when the petition was initially filed, the prayer of the petitioner read as under:
“B) Your Lordships may be pleased issue a writ of Certiorari or writ of Mandamus or any other appropriate writ, order or direction in the nature of Certiorari or Mandamus and declare the act of dispossessing the Petitioner, by demolishing rented shop by the Respondents with the help of Vadodara Municipal Corporation on 12/05/2017 is arbitrary, illegal, unconstitutional and violative of Art 19(i)(g) of the Constitution of India.”
3. The case of the petitioner-Sushmaben Prakashchandra Punjabi in the petition was that the father-in-law of the petitioner late Vaishakhimal Punjabi had taken the shop on rent from the respondent no.2-District Panchayat, Vadodara, which was located near Damajirao Dharamshala, opposite railway station, Vadodara. A small restaurant in the name of Shere- Punjab was started. The license was produced. The father in law of the petitioner died on 05.08.1975 and the tenancy rights were transferred in the name of the petitioner’s husband Mr.Prakashchandra Vaishakhimal Punjabi. On the death of the petitioner’s husband on 05.03.2005, the petitioner applied for becoming a tenant of shop vide application dated 01.11.2006. A resolution was passed and by resolution no.65, the petitioner was declared as tenant of the shop. The petitioner had necessary permissions to run the restaurant. The cause of approaching the Court in the year 2017 was the notices issued by the Vadodara Municipal Corporation on 11.05.2017 under Section 264 of the Gujarat Provincial Municipal Corporation Act opining that the rented premises were in dilapidated condition and therefore need to be demolished. The notice also stated that a cost certificate under Section 10D(4) of the Rent Act would be given and permission to repair the same also would be furnished. It is in this context that the petitioner made prayer which is referred to herein above.
4. On 13.10.2021, the petition was amended and the amended prayer of the petition read as under:
“7(AA) Your Lordships may be pleased issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside impugned notice dated 11.05.2017 and 12.05.2017 issued by the respondent-corporation (at ANNEXURE-K (Colly) hereto);
5. Mr.Majmudar learned counsel appearing for the petitioner would draw the attention of the Court to the notice dated 11.05.2017 and submit that it is evident on reading the notice that what was stated therein was that the shop had become dangerous to occupy, was in a dilapidated condition and therefore ought to have been repaired. He submitted that an opportunity ought to have been given to the tenant to undertake repairs. Without such an opportunity being offered, in violation of principles of natural justice, vide a procedure which was unwarranted and illegal, demolition was carried out on 12.05.2015. Mr.Majmudar would invite the attention of the Court to the pleadings particularly para 2.5 thereof to indicate that the demolition was done illegally and was malice and bad in law. Relying on Section 264 of the Act and in support thereof a decision of this Court in case of Baroda Municipal Corporation v. the Heirs of Deceased Shah Kanaiyalal Jain reported in 1994 (1) GCD 916 was cited, Mr.Majmudar would invite the attention of the Court to para 7 thereof, wherein, the Court observed that the procedure under Section 264(1) of the Act has to be exercised in accordance with law and the same is not exercised bona-fide and is an outcome of mala-fide and it is susceptible to be set aside. He would submit that a petitioner was a lawful tenant and could not have been evicted by the landlord District Panchayat without following the provisions of Gujarat Public Premises Eviction Act, 1972. There were resolutions reco
