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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Biren Vaishnav, J.
Ahmedabad Gymkhana Club – Petitioner
Versus
Union Of India – Respondent
R/Special Civil Application No. 9772 of 2021 with Civil Application (For Direction) No. 1 of 2022 with Civil Application (For Stay) No. 3 of 2022
Decided On : 21-11-2022
lease - Public Premises Act, 1971 - 1932, 1962 - The court dismissed the petition filed by Ahmedabad Gymkhana Club challenging the termination of lease and eviction notice. The court found that the matter was purely contractual and did not involve public law elements. The court also noted that the Public Premises Act provided a remedy for appeal, and therefore, a writ under Article 226 could not be used to bypass the available remedy.
Fact of the Case:
The Ahmedabad Gymkhana Club, established in 1885, was granted a lease in 1932 for 30 years, renewable up to 90 years. The lease was last renewed in 1962. The Defense Estate Officer issued a show cause notice in 2017, alleging breach of lease conditions, and subsequently terminated the lease in 2021. The club's application for lease extension was also rejected.
Finding of the Court:
The court found that the matter was purely contractual and did not involve public law elements. The court also noted that the Public Premises Act provided a remedy for appeal, and therefore, a writ under Article 226 could not be used to bypass the available remedy.
Issues: The issues included the alleged breach of lease conditions, the rejection of the lease extension application, and the applicability of the Public Premises Act.
Ratio Decidendi: The court held that the matter was contractual and did not involve public law elements. The court also noted that the Public Premises Act provided a remedy for appeal, and therefore, a writ under Article 226 could not be used to bypass the available remedy.
Final Decision: The petition was dismissed, and the interim relief granted earlier was extended until 03.01.2023.
JUDGMENT :
1. Ahmedabad Gymkhana Club situated on land bearing number 109 admeasuring 1.77 acres in the Cantonment of Ahmedabad has filed this petition challenging the order dated 25.06.2021 by which pursuant to a show cause notice dated 09.01.2017, the Defense Estate Officer, Gujarat Circle, Ahmedabad, determined the lease given to the Club. Also under challenge by way of subsequent amendments is the Eviction Notice dated 04.08.2021 and an order dated 20.05.2022, by which, the application for grant of renewal and extension of lease has been rejected.
2. By way of a separate Civil Application, the petitioner – Club has prayed for suspension of the eviction notice dated 18.10.2022 directing the petitioner club to show cause on or before 25.10.2022 as to why an eviction order should not be made.
3. Facts in brief would indicate that it is the case of the petitioner that the Ahmedabad Gymkhana Club was established in the year 1885 as one of the Ahmedabad’s oldest recreational club. It is the case of the petitioner that high ranking Army Officers are in the management of the Club. These positions are held by them by virtue of the bye -laws in force.
3.1 It is the case of the petitioner that a lease was granted to the petitioner-Club in 1932 i.e. on 12.01.1932 for a period of 30 years renewable upto 90 years. The lease was renewed for 30 years on 01.10.1962. It is the case of the petitioner that though the Club had applied for renewal in the year 1992, no decision has been taken on such application. On 09.01.2017, a notice was issued by the Defense Estate Officer, asking the petitioner to show cause as to why the lease of the petitioner be not terminated. The grounds on which such termination was sought that, the lease had not been renewed though a request was made and that there is breach of conditions of the lease and the condition 1(5) & (6). The petitioner replied to the show cause Notice on 06.02.2017 stating that no marriage functions or functions have been organized by the members for their family, no coaching classes or any educational activities has ever been arranged and the Club is only permitting coaching for sports activity like badminton, swimming etc. It is the case of the petitioner that no action was taken thereafter.
3.2 In the meantime, on 10.03.2017, the Government of India, through the Ministry of Defense, came out with a communication that as the Ministry has been working on formulation of a new policy with respect to cantonment lands to deal with leased sights, those whose lease tenure has expired or is expiring soon, and since the formulation of the policy is to take some time, in order to regularize the occupation of these sights, the government has decided to take some interim measures. One of which measure is that where the lease had expired on or before 31.12.2018 such lease will be extended till 31.12.2018. The petitioner requested for extension of lease by letters dated 26.08.2019 and 02.12.2019. In February, 2021, the interim policy dated 10.03.2017 was extended till 31.12.2021 or till finalization of the new policy. In the meantime, the petitioner sought information on the application for extension of lease. On 25.06.2021, by the notice impugned in this petition, the respondent determined the lease after taking into consideration the response of the petitioner to the show cause notice dated 09.01.2017. On receiving the order, a representation was made on 29.06.2021 stating that there was no breach of the conditions inasmuch as, the leased premises were being used only for a Club. No marriage functions or such functions have been organized since ten years. The activities are in accordance with terms of the lease. During the pendency of the petition, on 04.08.2021 an Eviction Notice was issued under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. The termination order dated 25.06.2021 and the notice under the Public Premises Act has been stayed by an order dated 26.08.2021 which read
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