Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8582 OF 2022
Nagpur Metro Rail Corporation Limited …Appellant(s)
Versus
Orbit Motels and Inns Private Limited,
Nagpur & Ors. …Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Judicature at Bombay Bench at
Nagpur in Writ Petition (C) No. 6581 of 2015 by which the High Court
has allowed the said writ petition preferred by the private respondent
herein – original writ petitioner and has directed the appellant – Nagpur
Metro Rail Corporation Limited (hereinafter referred to as “Metro”) to
remove itself from the property in question and hand over the
Signature Not Verified
possession of the same to the original writ petitioner by holding that the
Digitally signed by
Sanjay Kumar
Date: 2022.12.06
17:25:11 IST
Reason:
action on the part of the appellant - Metro of forcibly and highhandedly
entering into the premises of the appellant and forcibly securing the
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possession of the same is arbitrary and illegal, the original respondent
No. 1 – Metro has preferred the present appeal.
2. Area admeasuring 9343 square meters, bearing Survey No. 169,
City Survey No. 1864 of Mouza Sitabuldi, District Nagpur was owned by
the Public Works Department of the State of Maharashtra. A lease was
executed in favour of the Maharashtra Tourism Development
Corporation Limited (hereinafter referred to as “Tourism Corporation”)
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 said lease was
subject to the right of requisition and consequent termination of the lease
by the State of Maharashtra, in case, land in question was required for
public purpose, without any right to the Tourism Corporation as well as
the lessee to challenge such intention of the Government of
Maharashtra.
2.1 It appears that in the year 2002, the Tourism Corporation vide letter
dated 27.05.2002 terminated the lease dated 17.07.1995. The
respondent No. 1 – original writ petitioner filed a Special Civil Suit
No. 413 of 2002 against the Tourism Corporation for declaration and
permanent injunction, which is reported to be pending in the Court of
Civil Judge, Senior Division, Nagpur. It is reported that currently the said
suit is at the stage of evidence.
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2.2 It appears that the Tourism Corporation also initiated in the year
2004, the proceeding under Sections 5(1) and (2) of the Bombay
Government Premises (Eviction) Act, 1995 against the respondent No. 1
herein – original writ petitioner seeking recovery of dues and peaceful
possession of the land and structure erected thereon. However, it
appears that the said proceedings came to be withdrawn stating
settlement.
2.3 It appears that thereafter the Government of India conveyed its
approval for the implementation of the Nagpur Metro Rail Project. The
appellant herein – Nagpur Metro Rail Corporation Limited was to
function 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 -
Metro came into existence. That thereafter, the Government resolution
dated 01.06.2015 came to be issued by the Government of State of
Maharashtra detailing the scope of “advance possession” and describing
its necessity. The advance possession would mean possession that is
delivered to an authority for a project for public purpose without
completing the formality of actual permission. It appears that in order to
implement the project in public interest, the project being the prestigious
project of the city of Nagpur, and as the appellant was in need of the
land, the appellant vide communication dated 27.07.2015 requested the
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State of Maharashtra for the Development of the Metro Rail Project as
there was no land in the vicinity.
2.4 The Collector vide order dated 25.08.2015 considering the request
of the appellant allotted the land in question admeasuring 9343 square
meters. The Collector considered the resolution dated 30.01.2014 by
which the State Government gave sanction and the approval dated
21.08.2014 was given by the Central Government to the Nagpur Metro
Rail Project. At this stage, it is required to be noted that the order dated
25.08.2015 categorically mentioned that the allotment is subject to the
outcome of the Civil Suit No. 413 of 2002. In consonance with the order
dated 25.08.2015 passed by the Collector, the possession of the
aforesaid land was handed over by the Senior Regional Manager of 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 appellant on
26.08.2015.
2.5 That the respondent No. 1 – original writ petitioner, a lessee,
whose lease was already terminated in the year 2002 filed a Writ Petition
No. 6581 of 2015 against the Metro; District Collector; Tourism
Corporation and the State of Maharashtra before the High Court
challenging the action of the Metro in securing possession of the land in
question. Vide order dated 08.12.2015, the High Court issued a notice
in the writ petition and passed ad-interim order of status quo. The
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Tourism Corporation filed reply to the writ petition and submitted that the
order dated 25.08.2015 passed by the Collector is perfectly legal and in
view of the said order the possession of the land was handed over to the
appellant - Metro. Maintainability of the writ petition was also raised.
2.6 The appellant - Metro also filed its reply to the writ petition and
submitted that the Collector has allotted the land in question to the
appellant vide order dated 25.08.2015 and the possession of the said
land was also handed over to the appellant on 26.08.2015. It was
submitted that therefore, it cannot be said that Metro has forcibly entered
the land. It was submitted that the Metro was legally put in possession.
2.7 The writ petition was also opposed by the District Collector. A
counter was filed on behalf of the Collector also. It was submitted that
the land in question belonged to the Public Works Department of the
State of Maharashtra and in the year 1992, the land was leased to the
Tourism Corporation and the Tourism Corporation had subsequently
further sub-leased to the respondent No. 1 herein – original writ
petitioner – lessee. It was submitted that thereafter the lease in favour of
the respondent No. 1 – original writ petitioner was terminated, which was
the subject matter of the suit. It was submitted that in order to execute
the Nagpur Metro Rail Project order dated 25.08.2015, the District
Collector transferred the land to the appellant subject to the outcome of
the Civil Suit No. 413 of 2002 filed by the respondent No. 1 – original writ
petitioner. It was submitted that the Tourism Corporation and the Sub-
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Divisional Officer handed over the advance possession to the appellant
on 26.08.2015.
2.8 By the impugned judgment and order, the High Court has allowed
the said writ petition and has directed the appellant - Metro to hand over
the possession of the land in question to the respondent No. 1 – original
writ petitioner and the appellant – Metro has been restrained from
dispossessing the respondent No. 1. The impugned judgment and order
passed by the High Court is the subject matter of present appeal.
2.9 By the interim order dated 30.09.2016, this Court has stayed the
operation of the impugned judgment and order passed by the High
Court. 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 on behalf
of the Metro has made the following submissions in support of his prayer
to quash and set aside the impugned judgment and order passed by the
High Court:-
(i) That the Hon’ble High Court has erred in maintaining the writ
petition under Article 226 of the Constitution of India. It is
submitted that the Hon’ble High Court has misinterpreted the
provision of Section 39 of the Metro Railways (Construction of
Works) Act, 1978 by holding that the jurisdiction of the Civil
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Court is barred and therefore a Civil Suit could not have been
instituted. It is submitted that the bar of Civil Suit will only apply
in cases wherein there is adequate remedy or forum provided
under the Act and not otherwise. In the alternative, it is
submitted that Section 39 uses the words – “no suit or
application for injunction shall lie in any court against the
Central Government or Metro………..…..” The bar is on
injunction and not on filing declaration suit for confirming clear
title over property. It is submitted that injunction is only the
consequential or ancillary relief to declaration. Therefore, only
when the title to land is clear and established beyond doubt by
declaration, and then there is dispossession by the Metro
authorities (in which circumstances suit for injunction would be
filed) the bar under Section 39 would operate. It is submitted
that in the present case, the respondent No. 1’s title was
unclear and the suit was pending at the instance of respondent
No. 1. It is submitted that it is an established principle of law
that when there is a cloud over the title, a suit for mere
injunction is not maintainable and it is imperative to file a suit for
declaration.;
(ii) That there were disputed questions of facts on the issue of
possession and whether it was taken in accordance with law as
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raised in the writ petitioner and therefore this could not have
been adjudicated by the High Court in the writ petition.
(iii) That there was a cloud over the title of the respondent No. 1 –
original writ petitioner - respondent No. 1; the respondent No. 1
was a sub-lessee, whose lease already stood terminated by the
Government; no interim relief was sought for and no interim
order was passed. In fact, the allotment order dated
25.08.2015 clearly stated that the allotment was subject to the
outcome of the Civil Suit No. 413 of 2002 filed by the
respondent No. 1, currently, which is still pending. It is
submitted that unless and until the respondent No. 1 succeeds
in Civil Suit, it had no right to challenge the acquisition and/or
action of the Metro and in fact the Metro is in possession
pursuant to the order passed by the Government dated
25.08.2015.
(iv) It is submitted that even the allotment order dated 25.08.2015
by which the land had been allotted to the appellant had not
been challenged. Therefore, by way of operation of principle of
waiver, the respondent No. 1 is not entitled to question the
handing over of possession to the appellant, which is only
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pursuant to the aforesaid order dated 25.08.2015, 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, whose lease has
been terminated, for which the Civil Suit is pending, has been
used by the Metro for a public purpose namely Nagpur Metro
Rail Project. That there is no alternate space available for the
appellant to the land in question as on one side there is a
heritage structure – Kasturchand Park and on the other side
there is RBI. Therefore, for building of the station, there is only
the vacant subject land which is needed for the metro station. It
is submitted that without the said land, the Metro Project will
come to halt and will be stranded as the funding for the project
is already tied up and project would be seriously affected if the
work is to be stopped.
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 dated
17.07.1995 in favour of the respondent No. 1. The respondent No. 3
herein 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 of
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constructing the hotel complex. It is submitted that since the execution
of 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 the
respondent No. 1 had deposited with respondent No. 3 the annual rent
at 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 respondent No. 3
herein, issued a notice, terminating the lease, contrary to the terms and
conditions of the lease deed. That by the said notice, the respondent
No. 3 herein threatened to resume the possession of the land together
with structures thereon on 12.06.2002. the respondent No. 1 herein
therefore immediately challenged the said illegal and arbitrary act on the
part of the respondent No. 3 by filing Civil Suit No. 413 of 2002 against
the respondent No. 3 herein for a declaration and permanent injunction,
which is pending adjudication. It is submitted that the actual physical
and lawful possession of the suit property continues to be with the
respondent No. 1 herein. It is submitted that in that view of the matter,
the peaceful possession of the respondent No. 1 herein could not have
been disturbed or interfered with without following the due process of
law.
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4.3 It is submitted that the action on the part of respondent No. 2
herein of handing over the advance paper (symbolic / token) possession
of the property to the appellant herein and the action on the part of the
appellant herein now forcibly entering into the suit property by breaking
the eastern side compound wall of the suit property and encroaching
upon about 3000 square feet of land of the property is patently arbitrary,
illegal, improper and high handed and therefore, the Hon’ble High Court
has rightly allowed the writ petition and rightly declared that the action on
the part of the appellant herein – Metro is arbitrary and illegal. It is
submitted that therefore the Hon’ble High Court has rightly passed a
further order directing the appellant – Metro to remove itself from the
property and hand over the possession of the same to the respondent
No. 1 – original writ petitioner. It is submitted that the Hon’ble High Court
has rightly restrained the appellant and others from dispossessing the
original writ petitioner without following the due process of law. It is
submitted that the impugned judgment and order passed by the High
Court is absolutely legal, just and proper, which is not required to be
interfered with by this Court.
5. Heard the leaned senior counsel appearing on behalf of the parties
at length.
6. At the outset, it is required to be noted that pursuant to the
allotment order dated 25.08.2015 by the Collector, the land in question
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has been allotted to the appellant for a public purpose namely, Nagpur
Metro Rail Project. Pursuant to the said allotment order, the appellant
has been in occupation and possession of the land in question, which is
being used by the appellant for railway project. The order of allotment
dated 25.08.2015 has not been challenged at all by the original writ
petitioner – respondent No. 1 herein. Therefore, as such, when the
appellant is allottee of the land in question pursuant to the allotment
order dated 25.08.2015 and is in occupation and possession of the
allotted land, which is being used for a public purpose, i.e., Nagpur
Metro Rail Project, the appellant cannot be said to be in illegal
possession. Therefore, as such, the High Court has materially erred in
observing and holding that the appellant is in illegal possession and
occupation of the land in question.
6.1 Even otherwise, the High Court ought not to have entertained the
writ petition preferred by the respondent No. 1 herein considering the
fact that there was a cloud over the title of the respondent No. 1. It is
required to be noted that the respondent No. 1 claimed the right as a
lessee pursuant to the registered Lease Deed dated 17.07.1995.
However, the lease in favour of the respondent No. 1 – original writ
petitioner has been terminated by notice dated 27.05.2002. The
termination of the lease is the subject matter of Civil Suit No. 413 of
2002 filed by the respondent No. 1 against respondent No. 3 herein.
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Neither any interim relief / order had been prayed nor there was an
interim relief in favour of the respondent No. 1 in the pending suit. In the
meantime, considering the public need and in the larger public interest,
the land in question is allotted to the Metro for Nagpur Metro Rail
Project.
At the cost of repetition, it is observed that the allotment dated
25.08.2015 is not under challenge and the same has not been
challenged at all. Therefore, unless and until, the rights of the original
writ petitioner in the land in question are established, which shall be
decided in the Civil Suit which is pending, the writ petition filed by the
original writ petitioner could not have been entertained by the High
Court.
6.2 Even otherwise, in view of the disputed question of facts that
whether the actual possession was taken over or not and / or whether
the appellant herein was handed over the possession rightly or not, the
High Court ought not to have passed the impugned judgment and order
and ought not to have issued the impugned directions in exercise of the
powers under Article 226 of the Constitution of India. At this stage, it is
required to be noted that if the respondent No. 1 succeeds in the suit
filed by him, in that case, it may claim the compensation, but unless and
until its rights are crystalised in a pending suit, a public project cannot be
stalled. The allotment order dated 25.08.2015 and the possession
handed over to the appellant pursuant to the said allotment cannot be
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said to be per se illegal. Under the circumstances, the impugned
judgment and order passed by the High Court is unsustainable.
7. In view of the above and for the reasons stated above, the present
appeal succeeds. The impugned judgment and order passed by the
High Court is hereby quashed and set aside. The original writ petition
filed by the respondent No. 1 herein stands dismissed. However, Civil
Suit No. 413 of 2002 pending before the competent Civil Court be
decided and disposed of in accordance with law and on its own merits as
the same is not the subject matter of present litigation.
Present appeal is allowed accordingly. No costs.
Pending application, if any, also stands disposed of.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
DECEMBER 06, 2022. [M.M. SUNDRESH]
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