NAGPUR METRO RAIL CORPORATION LIMITEDversusORBIT MOTELS AND INNS PRIVATE LIMITED, NAGPUR & ORS.

650                      [2022]REPORTS
               SUPREME COURT   16 S.C.R. 650                [2022] 16 S.C.R.


A            NAGPUR METRO RAIL CORPORATION LIMITED
                                         v.
       ORBIT MOTELS AND INNS PRIVATE LIMITED, NAGPUR &
                            ORS.
B                        (Civil Appeal No. 8582 of 2022)
                              DECEMBER 06, 2022
                [M. R. SHAH AND M. M. SUNDRESH, JJ.]
             Public property – Termination of lease – Allotment for public
      need and larger public interest – In the instant case, private
C
      respondent was the sub-lessee of the Tourism Corporation, who
      was the lessee of the Public Works Department of the State of
      Maharashtra – The 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
D     any right to the Tourism Corporation as well as the lessee to
      challenge such intention of the Government of Maharashtra – The
      Tourism Corporation terminated the lease granted to the respondent
      – Thereafter the lease granted to the Tourism Corporation was
      terminated in pursuance of the order of the State citing public interest
      involving Nagpur Metro Rail Project and the allotment was made to
E
      appellant-Nagpur Metro Rail Corporation – The private respondent
      (sub-lessee) challenged the termination of lease before the High
      Court – High Court allowed the writ petition holding that appellant
      took over the possession forcibly and highhandedly by entering
      into the premises and, therefore, the same was arbitrary and illegal
F     – Hence instant appeal – Held: Pursuant to the order of the State,
      the appellant was given occupation and possession of the land in
      question, and the allotment order itself was not challenged, therefore,
      the appellant cannot be said to be in illegal possession – Also the
      lease granted to the respondent was terminated and the fact of said
      termination is in question in a civil suit (pending) and hence his
G
      right is not clear – Further the allotment to the Corporation was
      made considering the public need and larger public interest and
      since the same was not challenged hence High Court erred in
      allowing the petition.

H
                                        650
    NAGPUR METRO RAIL CORPORATION LTD. v. ORBIT                         651
         MOTELS AND INNS PVT. LTD., NAGPUR

      Allowing the appeal, the Court                                    A
       HELD: 1. Pursuant to the allotment order dated 25.08.2015
by the Collector, the land in question 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       B
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. Therefore, as such, when the
appellant is allottee of the land in question 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          C
cannot be said to be in illegal possession. Therefore, as such,
the High Court has materially erred in holding that the appellant
is in illegal possession and occupation of the land in question.
[Para 6][658-F-H; 659-A-B]
       2. Even otherwise, the High Court ought not to have              D
entertained the writ petition preferred by respondent No.1
considering the fact that there was a cloud over the title of the
respondent No.1. 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           E
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. Neither any interim relief / order had been prayed nor there
was an interim relief in favour of respondent No. 1 in the pending
suit. In the meantime, considering the public need and in the           F
larger public interest, the land in question is allotted to the Metro
for Nagpur Metro Rail Project. [Para 6.1][659-B-D]
      3. 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 was handed over the possession rightly or         G
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. If respondent No.1 succeeds in the suit
                                                                        H
652            SUPREME COURT REPORTS                         [2022] 16 S.C.R.


A     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 said to be per se illegal. Under the
      circumstances, the impugned judgment and order passed by the
B
      High Court is unsustainable. [Para 6.2][659-F-H]
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8582
      of 2022.
            From the Judgment and Order dated 16.09.2016 of the High Court
C     of Judicature at Bombay, Bench at Nagpur in Writ Petition No. 6581 of
      2015.
            K. V. Viswanathan, S.K. Mishra, Sr. Advs., Kaustubh Deogade,
      Satyajit A. Desai, Amit Kumar Pathak, Satya Kam Sharma, Gajanan N.
      Tirthkar, Abhinav Mutyalwar, Siddharth Gautam, Ms. Anagha S. Desai,
      Advs. for the Appellant.
D
            Kapil Sibal, Sr Adv., Aniruddha Joshi, Ms. Manisha Singh, Nizam
      Pasha, Ms. Shwetal Shepal, Chander Shekhar Ashri, Sachin Patil, Anis
      R. Shah, Brij Kumar Shah, Adarsh Kumar Pandey, Ms. Shivani Rautela,
      Ms. Apurva, Satayam Singh, Shivaji M. Jadhav, M/s S. Jadhav and
      Company, Anand Dilip Landge, Siddharth Dharmadhikari, Aaditya A.
E     Pandey, Avineesh Jha, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            M. R. SHAH, J.
             1. Feeling aggrieved and dissatisfied with the impugned judgment
F     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 possession
G     of the same to the original writ petitioner by holding that the action on
      the part of the appellant - Metro of forcibly and highhandedly entering
      into the premises of the appellant and forcibly securing the possession of
      the same is arbitrary and illegal, the original respondent No. 1 – Metro
      has preferred the present appeal.
H
   NAGPUR METRO RAIL CORPORATION LTD. v. ORBIT                                 653
  MOTELS AND INNS PVT. LTD., NAGPUR [M. R. SHAH, J.]

       2. Area admeasuring 9343 square meters, bearing Survey No.              A
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-
                                                                               B
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         C
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      D
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.
       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            E
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.
                                                                               F
       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          G
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    H
654            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     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 State of Maharashtra
      for the Development of the Metro Rail Project as there was no land in
      the vicinity.
B
             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
C     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
D     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,
E     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
F     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.
G            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.
H     It was submitted that the Metro was legally put in possession.
   NAGPUR METRO RAIL CORPORATION LTD. v. ORBIT                                 655
  MOTELS AND INNS PVT. LTD., NAGPUR [M. R. SHAH, J.]

       2.7 The writ petition was also opposed by the District Collector. A     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
                                                                               B
– 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        C
writ petitioner. It was submitted that the Tourism Corporation and the
Sub-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          D
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.                                                                E
      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           F
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.     G
             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 Court is barred and therefore a
             Civil Suit could not have been instituted. It is submitted that   H
656          SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A              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
B
               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
C              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
D              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
E              law as 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
F              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
G              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.
H
   NAGPUR METRO RAIL CORPORATION LTD. v. ORBIT                                 657
  MOTELS AND INNS PVT. LTD., NAGPUR [M. R. SHAH, J.]

      (iv)   It is submitted that even the allotment order dated               A
             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 pursuant to the aforesaid order dated
                                                                               B
             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
                                                                               C
             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        D
             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,             E
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        F
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
                                                                               G
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
                                                                               H
658             SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A     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
B
      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.
             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
C
      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
D     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
E
      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.
F
             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
      has been allotted to the appellant for a public purpose namely, Nagpur
G     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
H     appellant is allottee of the land in question pursuant to the allotment
   NAGPUR METRO RAIL CORPORATION LTD. v. ORBIT                                    659
  MOTELS AND INNS PVT. LTD., NAGPUR [M. R. SHAH, J.]

order dated 25.08.2015 and is in occupation and possession of the allotted        A
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.
                                                                                  B
        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        C
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. 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            D
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   E
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              F
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         G
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 said to be
per se illegal. Under the circumstances, the impugned judgment and
order passed by the High Court is unsustainable.                                  H
660             SUPREME COURT REPORTS                        [2022] 16 S.C.R.


A            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
B
      same is not the subject matter of present litigation.
             Present appeal is allowed accordingly. No costs.
             Pending application, if any, also stands disposed of.

C     Devika Gujral                                                  Appeal allowed
      (Assisted by : Mahendra Yadav, LCRA)




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