NAGPUR METRO RAIL CORPORATION LIMITED versus ORBIT MOTELS AND INNS PRIVATE LIMITED, NAGPUR & ORS. on 6 December 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentFand order passed by the High Court of Judicature at Bombay Bench atNagpur in Writ Petition (C) No. 6581 of 2015 by which the High Courthas allowed the said writ petition preferred by the private respondentherein – original writ petitioner and has directed the appellant – NagpurMetro Rail Corporation Limited (hereinafter referred to as “Metro”) toremove itself from the property in question and hand over the possessionGof the same to the original writ petitioner by holding that the action onthe part of the appellant - Metro of forcibly and highhandedly enteringinto the premises of the appellant and forcibly securing the possession ofthe same is arbitrary and illegal, the original respondent No. 1 – Metrohas preferred the present appeal.

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2. Area admeasuring 9343 square meters, bearing Survey No.169, City Survey No. 1864 of Mouza Sitabuldi, District Nagpur wasowned by the Public Works Department of the State of Maharashtra.A lease was executed in favour of the Maharashtra TourismDevelopment Corporation Limited (hereinafter referred to as “TourismCorporation”) with respect to the subject land. That the land was sub-leased by the Tourism Corporation to the respondent No. 1 herein –original writ petitioner on 17.07.1995 for a period of 30 years. The saidlease was subject to the right of requisition and consequent terminationof the lease by the State of Maharashtra, in case, land in question wasrequired for public purpose, without any right to the Tourism Corporationas well as the lessee to challenge such intention of the Government ofMaharashtra.

2.1 It appears that in the year 2002, the Tourism Corporation videletter dated 27.05.2002 terminated the lease dated 17.07.1995. Therespondent No. 1 – original writ petitioner filed a Special Civil Suit No.413 of 2002 against the Tourism Corporation for declaration and permanentinjunction, which is reported to be pending in the Court of Civil Judge,Senior Division, Nagpur. It is reported that currently the said suit is atthe stage of evidence.

2.2 It appears that the Tourism Corporation also initiated in theyear 2004, the proceeding under Sections 5(1) and (2) of the BombayGovernment Premises (Eviction) Act, 1995 against the respondent No.1 herein – original writ petitioner seeking recovery of dues and peacefulpossession of the land and structure erected thereon. However, itappears that the said proceedings came to be withdrawn statingsettlement.

2.3 It appears that thereafter the Government of India conveyedits approval for the implementation of the Nagpur Metro Rail Project.The appellant herein – Nagpur Metro Rail Corporation Limited was tofunction as a special purpose vehicle for the implementation of the project,the legal framework of the project was to be as per the Metro Railways(Construction of Works) Act, 1978. Thus, the appellant herein - Metrocame into existence. That thereafter, the Government resolution dated01.06.2015 came to be issued by the Government of State of Maharashtradetailing the scope of “advance possession” and describing its necessity.The advance possession would mean possession that is delivered to anauthority for a project for public purpose without completing the formality A

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Aof actual permission. It appears that in order to implement the project inpublic interest, the project being the prestigious project of the city ofNagpur, and as the appellant was in need of the land, the appellant videcommunication dated 27.07.2015 requested the State of Maharashtrafor the Development of the Metro Rail Project as there was no land inthe vicinity.B

2.4 The Collector vide order dated 25.08.2015 considering therequest of the appellant allotted the land in question admeasuring 9343square meters. The Collector considered the resolution dated 30.01.2014by which the State Government gave sanction and the approval dated21.08.2014 was given by the Central Government to the Nagpur MetroCRail Project. At this stage, it is required to be noted that the orderdated 25.08.2015 categorically mentioned that the allotment is subjectto the outcome of the Civil Suit No. 413 of 2002. In consonance withthe order dated 25.08.2015 passed by the Collector, the possession ofthe aforesaid land was handed over by the Senior Regional Manager Dof the Tourism Corporation to the representative of the Collector, Nagpur(City) and accordingly the possession of 7495 sq. mtrs. was, thus,taken over from the respondent No. 1 and handed over to the appellanton 26.08.2015.

2.5 That the respondent No. 1 – original writ petitioner, a lessee,Ewhose lease was already terminated in the year 2002 filed a WritPetition No. 6581 of 2015 against the Metro; District Collector; TourismCorporation and the State of Maharashtra before the High Courtchallenging the action of the Metro in securing possession of the landin question. Vide order dated 08.12.2015, the High Court issued a noticein the writ petition and passed ad-interim order of status quo. TheFTourism Corporation filed reply to the writ petition and submitted thatthe order dated 25.08.2015 passed by the Collector is perfectly legaland in view of the said order the possession of the land was handedover to the appellant - Metro. Maintainability of the writ petition wasalso raised.G

2.6 The appellant - Metro also filed its reply to the writ petitionand submitted that the Collector has allotted the land in question to theappellant vide order dated 25.08.2015 and the possession of the saidland was also handed over to the appellant on 26.08.2015. It was submittedthat therefore, it cannot be said that Metro has forcibly entered the land.HIt was submitted that the Metro was legally put in possession.

2.7 The writ petition was also opposed by the District Collector. Acounter was filed on behalf of the Collector also. It was submitted thatthe land in question belonged to the Public Works Department of theState of Maharashtra and in the year 1992, the land was leased to theTourism Corporation and the Tourism Corporation had subsequentlyfurther sub-leased to the respondent No. 1 herein – original writ petitioner– lessee. It was submitted that thereafter the lease in favour of therespondent No. 1 – original writ petitioner was terminated, which wasthe subject matter of the suit. It was submitted that in order to executethe Nagpur Metro Rail Project order dated 25.08.2015, the DistrictCollector transferred the land to the appellant subject to the outcome ofthe Civil Suit No. 413 of 2002 filed by the respondent No. 1 – originalwrit petitioner. It was submitted that the Tourism Corporation and theSub-Divisional Officer handed over the advance possession to theappellant on 26.08.2015.

2.8 By the impugned judgment and order, the High Court hasallowed the said writ petition and has directed the appellant - Metroto hand over the possession of the land in question to the respondentNo. 1 – original writ petitioner and the appellant – Metro has beenrestrained from dispossessing the respondent No. 1. The impugnedjudgment and order passed by the High Court is the subject matter ofpresent appeal.

2.9 By the interim order dated 30.09.2016, this Court has stayedthe operation of the impugned judgment and order passed by the HighCourt. That thereafter the land in question is being used by the appellant– Metro for Nagpur Metro Rail Project. That is where the matter stands.

3. Shri K.V. Viswanathan, learned senior counsel appearing onbehalf of the Metro has made the following submissions in support of hisprayer to quash and set aside the impugned judgment and order passedby the High Court:-

(i) That the Hon’ble High Court has erred in maintaining thewrit petition under Article 226 of the Constitution of India.It is submitted that the Hon’ble High Court hasmisinterpreted the provision of Section 39 of the MetroRailways (Construction of Works) Act, 1978 by holding thatthe jurisdiction of the Civil Court is barred and therefore aCivil Suit could not have been instituted. It is submitted that A

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the bar of Civil Suit will only apply in cases wherein there isadequate remedy or forum provided under the Act and nototherwise. In the alternative, it is submitted that Section 39uses the words – “no suit or application for injunction shalllie in any court against the Central Government orMetro………..…..” The bar is on injunction and not onfiling declaration suit for confirming clear title over property.It is submitted that injunction is only the consequential orancillary relief to declaration. Therefore, only when the titleto land is clear and established beyond doubt by declaration,and then there is dispossession by the Metro authorities (inwhich circumstances suit for injunction would be filed) thebar under Section 39 would operate. It is submitted that inthe present case, the respondent No. 1’s title was unclearand the suit was pending at the instance of respondent No.1. It is submitted that it is an established principle of lawthat when there is a cloud over the title, a suit for mereinjunction is not maintainable and it is imperative to file asuit for declaration.;

(ii) That there were disputed questions of facts on the issue ofpossession and whether it was taken in accordance withlaw as raised in the writ petitioner and therefore this couldnot have been adjudicated by the High Court in the writpetition.

(iii) That there was a cloud over the title of the respondent No.1 – original writ petitioner - respondent No. 1; the respondentNo. 1 was a sub-lessee, whose lease already stoodterminated by the Government; no interim relief was soughtfor and no interim order was passed. In fact, the allotmentorder dated 25.08.2015 clearly stated that the allotment wassubject to the outcome of the Civil Suit No. 413 of 2002filed by the respondent No. 1, currently, which is still pending.It is submitted that unless and until the respondent No. 1succeeds in Civil Suit, it had no right to challenge theacquisition and/or action of the Metro and in fact the Metrois in possession pursuant to the order passed by theGovernment dated 25.08.2015.

(iv) It is submitted that even the allotment order dated25.08.2015 by which the land had been allotted to theappellant had not been challenged. Therefore, by way ofoperation of principle of waiver, the respondent No. 1 is notentitled to question the handing over of possession to theappellant, which is only pursuant to the aforesaid order dated25.08.2015, which is virtually a declaratory relief.

(v) It is further submitted that as such the land in question,which originally was leased to the respondent No. 1, whoselease has been terminated, for which the Civil Suit is pending,has been used by the Metro for a public purpose namelyNagpur Metro Rail Project. That there is no alternate spaceavailable for the appellant to the land in question as on oneside there is a heritage structure – Kasturchand Park andon the other side there is RBI. Therefore, for building ofthe station, there is only the vacant subject land which isneeded for the metro station. It is submitted that withoutthe said land, the Metro Project will come to halt and willbe stranded as the funding for the project is already tied upand project would be seriously affected if the work is to bestopped.

4. Present appeal is vehemently opposed by Shri Kapil Sibal,learned senior counsel appearing on behalf of respondent No. 1.

4.1 It is submitted that there was a registered deed of lease dated17.07.1995 in favour of the respondent No. 1. The respondent No. 3herein transferred in favour of respondent No. 1 herein by way of lease,the entire land in question for a period of 30 years for the purpose ofconstructing the hotel complex. It is submitted that since the executionof the lease deed dated 17.07.1995, the appellant is continuously,uninterruptedly, and lawfully in actual physical and peaceful use,occupation and possession of the entire land in question. That therespondent No. 1 had deposited with respondent No. 3 the annual rentat the rate of Rs. 96,250/- in accordance with terms of the lease deed.

4.2 It is submitted that suddenly on 27.05.2002, the respondentNo. 3 herein, issued a notice, terminating the lease, contrary to the termsand conditions of the lease deed. That by the said notice, the respondentNo. 3 herein threatened to resume the possession of the land together A

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Awith structures thereon on 12.06.2002. the respondent No. 1 hereintherefore immediately challenged the said illegal and arbitrary act on thepart of the respondent No. 3 by filing Civil Suit No. 413 of 2002 againstthe respondent No. 3 herein for a declaration and permanent injunction,which is pending adjudication. It is submitted that the actual physical andlawful possession of the suit property continues to be with the respondentBNo. 1 herein. It is submitted that in that view of the matter, the peacefulpossession of the respondent No. 1 herein could not have been disturbedor interfered with without following the due process of law.

4.3 It is submitted that the action on the part of respondent No. 2herein of handing over the advance paper (symbolic / token) possessionCof the property to the appellant herein and the action on the part of theappellant herein now forcibly entering into the suit property by breakingthe eastern side compound wall of the suit property and encroachingupon about 3000 square feet of land of the property is patently arbitrary,illegal, improper and high handed and therefore, the Hon’ble High CourtDhas rightly allowed the writ petition and rightly declared that the actionon the part of the appellant herein – Metro is arbitrary and illegal. It issubmitted that therefore the Hon’ble High Court has rightly passed afurther order directing the appellant – Metro to remove itself from theproperty and hand over the possession of the same to the respondentNo. 1 – original writ petitioner. It is submitted that the Hon’ble HighECourt has rightly restrained the appellant and others from dispossessingthe original writ petitioner without following the due process of law. It issubmitted that the impugned judgment and order passed by the HighCourt is absolutely legal, just and proper, which is not required to beinterfered with by this Court.F5. Heard the leaned senior counsel appearing on behalf of theparties at length.

6. At the outset, it is required to be noted that pursuant to theallotment order dated 25.08.2015 by the Collector, the land in questionhas been allotted to the appellant for a public purpose namely, NagpurGMetro Rail Project. Pursuant to the said allotment order, the appellanthas been in occupation and possession of the land in question, which isbeing used by the appellant for railway project. The order of allotmentdated 25.08.2015 has not been challenged at all by the original writpetitioner – respondent No. 1 herein. Therefore, as such, when theHappellant is allottee of the land in question pursuant to the allotment order dated 25.08.2015 and is in occupation and possession of the allottedland, which is being used for a public purpose, i.e., Nagpur Metro RailProject, the appellant cannot be said to be in illegal possession. Therefore,as such, the High Court has materially erred in observing and holdingthat the appellant is in illegal possession and occupation of the land inquestion.

6.1 Even otherwise, the High Court ought not to have entertainedthe writ petition preferred by the respondent No. 1 herein consideringthe fact that there was a cloud over the title of the respondent No. 1. Itis required to be noted that the respondent No. 1 claimed the right as alessee pursuant to the registered Lease Deed dated 17.07.1995. However,the lease in favour of the respondent No. 1 – original writ petitioner hasbeen terminated by notice dated 27.05.2002. The termination of the leaseis the subject matter of Civil Suit No. 413 of 2002 filed by the respondentNo. 1 against respondent No. 3 herein. Neither any interim relief / orderhad been prayed nor there was an interim relief in favour of therespondent No. 1 in the pending suit. In the meantime, considering thepublic need and in the larger public interest, the land in question is allottedto the Metro for Nagpur Metro Rail Project.

At the cost of repetition, it is observed that the allotment dated25.08.2015 is not under challenge and the same has not been challengedat all. Therefore, unless and until, the rights of the original writ petitionerin the land in question are established, which shall be decided in the CivilSuit which is pending, the writ petition filed by the original writ petitionercould not have been entertained by the High Court.

6.2 Even otherwise, in view of the disputed question of facts thatwhether the actual possession was taken over or not and / or whetherthe appellant herein was handed over the possession rightly or not, theHigh Court ought not to have passed the impugned judgment and orderand ought not to have issued the impugned directions in exercise of thepowers under Article 226 of the Constitution of India. At this stage, it isrequired to be noted that if the respondent No. 1 succeeds in the suitfiled by him, in that case, it may claim the compensation, but unless anduntil its rights are crystalised in a pending suit, a public project cannot bestalled. The allotment order dated 25.08.2015 and the possession handedover to the appellant pursuant to the said allotment cannot be said to beper se illegal. Under the circumstances, the impugned judgment andorder passed by the High Court is unsustainable.

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A7. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passed bythe High Court is hereby quashed and set aside. The original writ petitionfiled by the respondent No. 1 herein stands dismissed. However, CivilSuit No. 413 of 2002 pending before the competent Civil Court be decidedand disposed of in accordance with law and on its own merits as theBsame is not the subject matter of present litigation.

Present appeal is allowed accordingly. No costs.

Pending application, if any, also stands disposed of.

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Devika Gujral

(Assisted by : Mahendra Yadav, LCRA)

Appeal allowed

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