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Judgment
R.M.Chhaya, J
Heard Mr. Mehul Sharad Shah, learned counsel for the petitioners, Mr. Tirthraj Pandya, learned AGP for respondent No.1 & 3 and Mr. Premal
Joshi, learned counsel for respondent No.2 through Video Conferencing.
By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
“(A) to issue a writ of mandamus or any other appropriate writ, order or direction, directing respondent no.2 to consider the date of
commencement of agreement from 24.04.2015 as permission to commence “Visamo†(Hotel White Feather) was granted by the Collector only
on 29.04.2017 and thereby deduct the said period from the total period of contract.
(B) to issue a writ of mandamus or any other appropriate writ, order or direction, declaring that the action of respondents in taking forceful possession
of the contractual premises as illegal, and in violation of principles of natural justice and thereby, be pleased to quash and set aside the office order
dated 25.06.2020 issued by the Manager (Commercial) of Tourism Corporation of Gujarat Ltd.
(C) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to consider to renew the period of
agreement for additional period of five years, considering the date of commencement of the initial contract as 30.04.2017.
(D) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to consider the extension of period of six
months, in view of Covid-19 Global Pandemic, as directed by the Government of India vide Notification dated 13.05.2020.
(E) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to handover the possession
of Visamo â€" Hotel White Feather at Saputara to the petitioners;
(F) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to extend the period of
contract for another six months in view of Covid-19 Global Pandemic, as directed by the Government of India vide Notification dated 13.05.2020.
(G)xxxâ€
This Court while issuing notice, has passed the following order on 01.07.2020:
“1. By way of this petition, the petitioner challenges the alleged illegal action of respondent no.2- Tourism Corporation of Gujarat Limited (TCGL)
for taking forceful possession of the Visama (presently known as Hotel White Feather) at Saputara on 25.06.2020 and also appointing the manager for
running the hotel. This, according to the petitioner, is without issuance of notice or without affording any opportunity of hearing and in gross violation of
principles of natural justice. As averred by the Petitioner, any gross violation of principles of natural justice would entitle the party to approach this
Court seeking writ of mandamus or any other appropriate writ under Article 226 of the Constitution of India.
The prayers sought for are as follows: -
“(A) to issue a writ of mandamus or any other appropraite writ, order or direction, directing respondent no.2 to consider the date of
commencement of agreement from 24.04.2015 as permission to commence “Visamo†(Hotel White Feather) was granted by the Collector only
on 29.04.2017 and thereby deduct the said period from the total period of contract.
(B) to issue a writ of mandamus or any other appropriate writ, order or direction, declaring that the action of respondents in taking forceful possession
of the contractual premises as illegal, and in violation of principles of natural justice and thereby, be pleased to quash and set aside the office order
dated 25.06.2020 issued by the Manager (Commercial) of Tourism Corporation of Gujarat Ltd.
(C) to issue a writ of mandamus or any other appropraite writ, order or direction, directing the respondents to consider to renew the period of
agreement for additional period of five years, considering the date of commencement of the initial contract as 30.04.2017.
(D) to issue a writ of mandamus or any other appropraite writ, order or direction, directing the respondents to consider the extension of period of six
months, in view of Covil-19 Global Pandemic, as directed by the Government of India vide Notification dated 13.05.2020.
(E) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to handover the possession
of Visamo â€" Hotel White Feather at Saputara to the petitioners;
(F) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondents to extend the period of
contract for another six months in view of Covid-19 Global Pandemic, as directed by the Government of India vide Notification dated 13.05.2020.
(G) to pass such other and further order/s as may be just and necessary in the circumstances of the case.â€
We have heard learned advocate Mr. Mehul Shah appearing for the petitioners who has taken us through the chronological events which have
taken place right from the issuance of the tender notice till the taking over of the possession by the respondent no. 2 of ’Visamo’. He has
fervently urged that with difficulties, in this Pandemic of COVID-19, businesses are permitted to be started and the petitioner also had some bookings
which were needed to be cancelled and it also has earned the name and fame after spending huge amount as per the terms of contract, therefore,
without affording any opportunity, the Petitioner could not have been throw out of his business in arbitrary manner and hence, he fervently urged that
the mandatory relief of permitting the petitioner to run the business be granted till the matter is heard and decided , for which, all necessary conditions
may be imposed by the Court. He has also substantiated his submissions with his certain authorities.
Learned advocate Mr. Premal Joshi appearing for and on behalf of the respondent no. 2 on caveat has responded to the submissions of learned
advocate Mr. Shah. He has extensively made his submissions to urge strenuously that this petition is not maintainable and it is only after the
contractual period of 5 years got over, the possession has been taken over as the Petitioner did not fulfill its contractual obligations. He has also urged
the Court to relegate the parties to the Arbitral Tribunal as there is an explicit clause of Arbitration governing the relationship between the parties.
He also submitted that.
We have also heard learned Assistant Government Pleader Ms. Jyoti Bhatt representing the State and the Collector both, who has urged that no
prayer has been sought against the order of collector nor any action has been challenged, therefore, the dispute is essentially between the petitioner
and respondent no.2.
Keeping all contentions open including of maintainability of Petition, issue Notice returnable on 06.07.2020. Learned advocate Mr. Premal Joshi
waives service of notice for and on behalf of the respondent no.2. Learned Assistant Government Pleader Ms. Jyoti Bhatt waives service of notice
for and on behalf of the respondent nos. 1 and 3.
Before we proceed to consider the submissions of both the sides, the request on the part of the respondent no.2 for placing on record, the affidavit-
in-reply to the averments in the petition is required to be accepted. Let such reply be filed by the contesting Respondent no.2 on or before 06.07.2020
with an advance copy to the other side. Learned Assistant Government Pleader Ms. Bhatt, if is desirous to file her reply, she may do that with an
advance copy to the other side.
Let the status-quo be maintained by both the sides. The panchnama which has been carried out on 25.06.2020 mentions that â€the committee of
TCGL has taken the possession of Visamo (presently known as Hotel White Feather) at Saputara on 25.06.2020 as per the terms and conditions of
the agreement and the property will be operated by the Manager of TCGL and he will be acting as caretaker/responsible officer for the said
property.†Manager Mr.R.J.Bhosle is deputed as a caretaker.
Name of learned advocate Mr. Premal Joshi appearing for respondent no.2 shall be reflected in the cause list.
Service of notice through e-mode is permitted. Copy of this order be made available to the parties through e-mode.â€
Thereafter, the pleadings have been exchanged between the parties and ultimately, upon hearing learned counsel for the parties, this Court passed
the following order on 27.07.2020 :
“Heard Mr. Mehul Sharad Shah, learned advocate appearing for the petitioners, Ms. Dhwani, learned AGP for respondent Nos.1 and 3 and Mr.
Premal Joshi, learned advocate appearing for respondent No.2.
Mr. Premal Joshi, learned advocate appearing for respondent No.2 to take instructions. The status quo shall continue to be maintained by both the
parties, till next date of hearing. S.O to 04.08.2020.â€
Mr. Premal Joshi, learned counsel for respondent No.2, on written instructions, states that, the Managing Director of Tourism Corporation of
Gujarat Ltd., shall hear the petitioners through their authorized officer on 10.08.2020 at 12'o clock at Noon at his Chamber situated at Block No.16/17,
4th Floor, Udyog Bhavan, Gandhinagar.
As averred in the petition and as pointed out by learned counsel for the parties, the petitioners are at liberty to raise all contentions as raised in this
petition before the Managing Director and the Managing Director shall also hear the petitioners on the following three aspects:-
(i) The extension clause provided in the agreement;
(ii) To exclude the period of date of letter by which the petitioners were granted permission and the actual date of its starting, which was subject to
permission from the Collector, which as per the facts took considerable time;
(iii) On the basis of the Circular issued by the Government of India, the petitioner also intends to claim six months' extension due to Covid-19 Global
Pandemic.
It is further directed that, the Managing Director after hearing the authorized representative of the petitioners, shall take appropriate decision in the
matter, without in any manner being influenced by the impugned order in this petition and shall deal with all aspects that may be raised before him/her.
It is further directed that the Managing Director shall not be influenced by any of the observations made in the impugned order as well as even the
factum of taking over the possession and shall decide all the issues independently by a reasoned order. Such decision may be taken as expeditiously as
possible. Status quo granted by this Court will continue for one week after the order is passed by the authority concerned as directed above in this
order.
With the above observations and direction, present petition stands disposed of. Direct service through E-mail is permitted.