ao26.11.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
APPEAL AGAINST ORDER NO.26/2011
APPELLANTS : 1. R.B. Shreeram Religious & Charitable
Trust, duly registered under the
Bombay Public Trust Act, 1950,
having its registration no.E-11(B),
and registered office at Shreeram
Bhawan, Tumsar, Dist. Bhandara,
acting through its attorney/trustee
Shri Dhanendra Bhikaji Yerpude,
aged about 48 years, Occ. Service,
ig R/o Kanhan, Tah. Parseoni, Dist.
Nagpur.
2. Shri Narayandasji Saraf, major,
Occ. Business, Managing Trustee of
plaintiff no.1 trust, r/o Shreeram
Bhawan, Main Road, Tumsar.
3. Shri Ramkisanji Saraf, major, Occ.
Business, Trustee of plaintiff no.1
trust, r/o Shreeram Bhawan, Main
Road, Tumsar.
4. Shri Murlidharji Saraf, major,
Occ. Business, Managing Trustee of
plaintiff no.1 trust, r/o Shreeram
Bhawan, Canal Road, Ramdaspeth,
Nagpur.
5. Shri Manoj Saraf, major, Occ.
Business, Trustee of plaintiff no.1
trust, r/o Shreeram Bhawan, Main
Road, Tumsar.
6. Shri Vinod Saraf, major, Occ.
Business, Managing Trustee of
plaintiff no.1 trust, r/o Shreeram
Bhawan, Canal Road, Ramdaspeth,
Nagpur.
[Original plaintiffs on R.A.]
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...Versus...
RESPONDENTS : 1. The Nagpur Improvement Trust,
A statutory body created under the
provisions of the Nagpur Improvement
Trust Act, 1936, acting through its
Chief Executive Officer, having its
office at Near Liberty Cinema,
Station Road, Sadar, Nagpur.
2. The Chairman,
Nagpur Improvement Trust,
having its office at Near Liberty
Cinema, Station Road, Sadar, Nagpur.
ig 3. Dr. Sanjay Mukherjee,
c/o Nagpur Improvement Trust,
having its office at Near Liberty
Cinema, Station Road, Sadar, Nagpur.
4. Shri Sudhakar Kohle,
Corporator, N.M.C. C/o Nagpur
Improvement Trust, having its office
at Near Liberty Cinema, Station
Road, Sadar, Nagpur.
Or R/o Jankinagar, Near Udaynagar
Chouk, Nagpur.
5. CPH -Center Point Hospital,
Medical Research Institute Pvt.Ltd.,
a company registered under the
provisions of the Companies Act,
1956, having its registration
number U 85110 MH 2009 PTC 193605,
and registered office at G-10,
Mehadia Bhavan, Dhantoli, Wardha
Road, Nagpur through its authorized
signatory Dr. Shishir Kolhe, major,
occ.: Doctor, r/o 166, Bajaj Nagar,
Nagpur.
[Original Defendants on R.A.]
------------------------------------------------------
[Shri S.P. Dharmadhikari, Sr. Adv. with Shri A.G. Gharote, Adv. for appellants]
[Shri S.K. Mishra, Adv. for respdt. Nos.1 to 3]
------------------------------------------------------
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CORAM : A.B. CHAUDHARI, J.
Date of reserving the judgment : 19.04.2011
Date of pronouncing the judgment : 06.05.2011
J U D G M E N T
1. Heard.
2. Admit.
3. Taken up for final disposal with the consent
of the learned Counsel for the rival parties.
4. Being aggrieved by the order dated
20.1.2011, passed by the 3rd Jt. Civil Judge, Senior
Division, Nagpur, below Exh.5, in Special Civil Suit
No.1186/2010, rejecting the said application for grant
of temporary injunction, the present appeal against
order has been filed by the original plaintiffs-
appellants herein.
FACTS :
5. The appellants are the original plaintiffs
in Special Civil Suit No.1186/2010 for declaration,
permanent injunction and damages in which they filed
application (Exh.5) for grant of temporary injunction
pending decision of the suit. In the suit, they have
prayed for a decree to declare order dated 30.9.2010
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passed by defendant No.2 Chairman of defendant No.1
Nagpur Improvement Trust (for short, hereinafter
referred to as the N.I.T. ) as illegal, mala fide and
in collusion with defendant No.4 Corporator of
Nagpur Municipal Corporation (for short, hereinafter
referred to as the N.M.C. )and have also claimed
permanent injunction in the matter of enforcement of
the said order dated 30.9.2010 by which the defendant-
N.I.T. cancelled allotment of plot that was given for
Dharmashala purpose and ordered ‘re-entry’. In
response to the suit summons, defendant Nos.1 to 3
filed their composite written statement as well as
reply to the application for temporary injunction and
vehemently opposed the suit inter alia on the ground
of maintainability in the light of Sections 114 and
115 of the Nagpur Improvement Trust Act, 1936 (for
short, hereinafter referred to as the N.I.T. Act ).
It is the case of the plaintiffs in the suit that the
appellant-Trust came into existence by virtue of
indenture made on 15.2.1951 by Sheth Raibahaddur
Daluramji of Tumsar. The Trust was allotted an open
site by the N.I.T. opposite to the Government Medical
College and Hospital at Nagpur for charitable purpose,
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namely for construction of Dharmashala with ancillary
and related partly commercial structures to be
constructed. The constructions of Dharmashala, shops
were made so also garages by the Trust. Similarly,
commercial constructions said to be without sanction
were made looking to the need of the passengers and
for achieving the charitable purpose of Dharmashala.
But then N.I.T. regularized all the structures by
charging extra premium and thus the constructions made
over and above sanctioned limit came to be regularized
with which no hue and cry was made by the N.I.T..
Thereafter, a lease for the first time came to be
registered on 31.7.1996 along with correction dated
21.5.2008 and the lease is valid till the year 2013.
However, on 10.12.2009 the N.I.T. issued a show-cause-
notice (first show-cause-notice) alleging that (i) the
allotment of land was only for construction of
Dharmashala building and for no other purpose, (ii) 32
rooms on the ground floor of Dharmashala have been
given on rent for running a private hospital, (iii)
ten shops on the ground floor on the Rambagh road have
also been let out on rent. (iv) in the two garages/
building towards Ajni Road, Shankar Ashram and Shankar
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Bhojnalaya are being run. and (v) Lalit Shankar
Purohit has been inducted as a tenant and he is
residing in Dharmashala as his permanent abode.
6. The appellants filed their reply on
23.12.2009 and stated that the N.I.T. itself had
sanctioned commercial use by regularizing commercial
structures. The first and second floor rooms of
Dharmashala were provided for the patients and their
relatives, who visit the Government Medical College
and Hospital, on concessional rates and the shops on
the ground floor are the shops which are essential for
the convenience of these passengers such as laundry,
barber, restaurant etc.. Shankar Ashram and Shankar
Bhojanalaya at Ajni side were being used for providing
food to the patients and their relatives staying in
Dharmashala. At any rate, in accordance with the
Development Control Regulations, 2000 for Nagpur City
which are in force from 9.10.2010 and in particular
Regulation ‘M’ (7) (2) of the Regulations, the use
made by the appellants for providing private hospital
on the ground floor on Leave and Licence in 32 rooms
is not in derogation of the said Regulations of 2000
and consequently, there were no violations at all. The
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inspection of the building was undertaken by the
Divisional Office (South) of N.I.T. behind the back of
the appellants and the report was submitted. The said
report was obviously without looking to the earlier
sanction plans compounding and regularizing the excess
constructions etc. and thus the report was unreliable.
But based on the said report dated 8.10.2010 made by
the said officer, second show-cause-notice dated
16.12.2010 was issued to the appellants as to why the
lease of plot in question, namely plot No.2 (I-A) and
(I) should not be cancelled. It was alleged in the
said show-cause-notice that as per the spot
inspection, the appellants have indulged in commercial
exploitation of properties in breach of terms and
conditions i.e. (i) shops were constructed without
prior sanction of the N.I.T., (ii) regulations framed
under Section 19 of the N.I.T. Act were breached,
(iii) a big hospital by name ‘Center Point Hospital’
has been housed on the ground floor of Dharmashala
building and a pathology laboratory in three rooms has
been operating therein and (iv) several unauthorized
changes have been made in the building without prior
sanction of the N.I.T..
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7. The appellants had filed reply stating
therein that the constructions made or additional
constructions made were not in violation of any
Development Control Rules and in fact were
contemplated by Regulation ‘M’ (7)(2) and further the
shops were constructed as per sanctioned plans. Apart
from that now the N.I.T. was no more the planning
authority and the planning authority being the N.M.C.,
the revised plans for regularization of constructions
were submitted to the planning authority, namely
N.M.C. However, due to objection taken by the N.I.T.
the revised plans have been kept on hold which
otherwise would have been sanctioned in normal course.
None of the conditions of the lease-deed or of the
original allotment orders have at all been breached.
The appellants then alleged that one Sudhakar Kohale
the local corporator from Janki Nagar ward No.136 is
also a Trustee of N.I.T. and he with oblique motive
pressurized N.I.T. to take action against the
appellants. It is in this background the suit was
filed for the reliefs stated above.
8. In the written statement filed by the N.I.T.
preliminary objections about maintainability of the
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suit due to bar under Sections 114 and 115 of the
N.I.T. Act were raised. It was then stated in the
written statement that in the recent past the
appellants made huge constructions on the ground floor
in the area open to sky in the middle of the plot by
showing temporary constructions even for which
permission from the planning authority was required.
Thus, the constructions having been made without
permission were totally illegal and that is why the
revised plan was filed by the appellants themselves
which shows that the appellants very well knew that
they made several illegal constructions. 32 rooms on
the ground floor of Dharmashala facing the Medical
College have been let out to private limited company,
namely Center Point Hospital for running a hospital.
In these rooms, operation theatre, private rooms have
been utilized for patients at cost rather than for the
use of Dharmashala. The rent that has been charged as
per the Leave and Licence Agreement is Rs.1,00,000/-
per month with escalation of 5% every year and thus
the appellants have indulged in full commercial
exploitation thereof without permission and in breach
of the charitable object for which plots were given.
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The inspection of the entire premises was made and the
inspection report was submitted. On earlier occasions
also the appellants have been found to be violating
conditions of the lease. The appellants have made a
representation to the State Government on 15.1.2007
for change of use from public utility to commercial
which clearly supports the case of the N.I.T. that the
appellants do not have bona fide intention to run
Dharmashala.
Several documents and photographs have been
filed along with this appeal on record. The appeal was
heard on several dates.
SUBMISSIONS MADE ON BEHALF OF THE APPELLANTS :
9. Shri S.P. Dharmadhikari, learned Senior
Advocate assisted by other Advocates made the
following submissions :
(a) Indenture dated 23.5.1996 registered
with the N.I.T. as lessor with appellants/lessee in
schedule-A shows the user of plot as charitable Trust.
The Center Point Hospital that has been operating on
the ground floor in 32 rooms is on Leave and Licence
basis for limited period up to 2013 and running the
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said hospital is a part of the charitable purpose of
the appellant/Trust and therefore, there is no
deviation whatsoever or breach of any condition.
Development Control Regulations, 2000 and in
particular the Regulation ‘M'(7)(2) clearly covers the
said aspect and therefore, even as per Development
Control Regulations the purpose, namely running of
hospital etc. falls within the ambit of the public
purpose mentioned for which the plots were allotted to
the appellants/Trust. There is no breach of conditions
to run Dharmashala and allied building for hospital
and charitable purpose which is the object of the
appellants/Trust as well as the user at the time of
allotment.
(b) Dharmashala building as it stands
is being used for residence of the passengers,
patients and their relatives visiting the Government
Medical College and Hospital on concessional rates
even now and there is no breach whatsoever in that
context.
(c) Two show-cause-notices issued by
the respondents and the replies filed thereto in the
first place have not been properly considered by the
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Board of Trustees of N.I.T. or by the Chairman of
N.I.T.. The inspection report prepared by the
Divisional Officer (South) that has been relied upon
by the Board of Trustees as well as the Chairman of
the N.I.T. could not have been considered since the
inspections were made behind the back of the
appellants and contained all untrue facts contrary to
the record of the N.I.T. itself. The fact that the
N.I.T.
itself had charged premium for extra
constructions for commercial purpose way back in the
year 1968 and regularized the constructions made
excess or for the ten shops which were utilized for
activity ancillary to the object of Dharmashala being
known to the inspecting officers shows total non-
application of mind and without looking into the
records of the N.I.T..
(d) 32 rooms on the ground floor given
to the Center Point Hospital on Leave and Licence
basis at the rent of Rs.1,00,000/- per month has not
caused any inconvenience to the passengers, relatives
or patients coming to the Government Medical College
and Hospital since other large number of rooms are
still vacant and are used by them at concessional
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rates. The eateries Shankar Bhojanalaya and Shankar
Ashram located at Ajni road side are serving the need
of the patients and their relatives and passengers
visiting the Government Medical College and Hospital
since long. The person by name Lalit Purohit is a
caretaker of Dharmashala and therefore, cannot be
called a tenant. Out of 115 rooms even now 83 rooms
are being used for Dharmashala.
(e) The Board of Trustees of N.I.T. in
its meeting dated 14.09.2010 decided to cancel the
allotment of the suit plots. Perusal of the said
resolution of the Board of Trustees will show that
Board which is the highest authority in the N.I.T. has
already taken a decision to cancel the allotment. The
impugned order passed by the Chairman of the Trust
thereafter was nothing but a farce inasmuch as the
Chairman of the Trust is duty bound to implement the
decision of the Board that was taken on 14.9.2010 and
thereafter the entire process of hearing and making
order is wrong which vitiates the order made by the
Chairman that is impugned in the civil suit. On this
count alone the said order becomes null and void and
therefore, a very strong prima facie case has been
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made out by the appellants for grant of temporary
injunction.
(f) Perusal of the resolution of the
Board and the order of N.I.T. show that what was not
stated in the show-cause-notice was considered in the
resolution and the order and therefore, the appellants
are put to great prejudice and therefore, the order of
the Chairman is clearly illegal.
(g) There is no allegation even by the
N.I.T. in the show-cause-notice or anywhere that the
money earned out of the Leave and Licence Agreement
was not being utilized for the purpose of Dharmashala
or for the charitable purpose for which plots were
given to the appellants.
(h) There is no allegation that the
appellants/Trustees have taken away the money for
themselves. On the contrary, the said funds are being
utilized for the maintenance of Dharmashala and
therefore, there is nothing wrong, if the money is
utilized for meeting the expenses required by the
Trust.
(i) None of the covenants in the
allotment order or the lease-deed at all permit the
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N.I.T. to forfeit the lease and make re-entry on the
property.
(j) The Board and the Chairman have
adjudicated about alleged breaches. The N.I.T. cannot
be a judge in its own cause by making adjudication
that the appellants have violated the terms and
conditions of the covenants of the lease or terms and
conditions in the allotment order of plot originally
made. Neither the N.I.T. nor the Chairman can make an
order to march and take possession of the plots from
the appellants, particularly when there is a stout
denial by the appellants about any breach of the terms
and conditions on their part. It is well settled law
that a lessor (N.I.T.) if wants eviction of its lessee
has to approach the appropriate Court in appropriate
proceedings in the nature of suit or otherwise for
claiming possession or for making re-entry or
forfeiture of the lease. But it cannot barge its
entry and take possession.
(k) The fact that the N.I.T. has given
only 30 days period contrary to the 90 days period
required to be given shows mala fide intention on the
part of the N.I.T. at the instance of one of its
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Trustees, who is Corporator, instrumental in the
entire operation of attempting to evict the appellants
without due course of law.
(l) There is no provision under the
N.I.T. Act or other Regulations or the Nagpur
Improvement Trust Land disposal Rules, 1983 to make
re-entry and take possession of the plots in question.
There is no power in the N.I.T. – lessor to force its
entry and
ig take possession in the absence of any
adjudication by the competent civil Court. The
impugned order, however, speaks about taking
possession within 30 days which is wholly illegal.
There is no power under any of the terms and
conditions of the lease or the covenants in the matter
of allotment of plots, permitting the N.I.T. – lessor
to take possession.
(m) Section 118 of the Transfer of
Property Act provides for the entitlement of lessee to
assign and therefore, no fault can be found out with
the appellants/Trust if it has leased some portion of
the building for the Center Point Hospital. Section
52 of the Easement Act entitles the lessee to give
licence.
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(n) Bar of Section 114 and 115 of the
N.I.T. Act does not apply in the instant case since
none of the acts of the Board of Trustees and the
Chairman of N.I.T. fall within the protection under
Section 114 and 115 of the N.I.T. Act.
(o) At any rate, whatever the alleged
extra constructions have been made on the suit plot
the revised plans have been submitted to the competent
planning authority i.e. N.M.C. under the Maharashtra
Regional & Town Planning Act, 1966. There is enabling
provision in favour of the appellants to apply for
regularization of constructions made in excess or
without prior sanction. The appellants are certainly
entitled to take advantage of those provisions and
that is why they have applied by submitting the
revised plans for sanction. But again with clear
mala fide intentions, the N.I.T. raised objection with
N.M.C. not to sanction the said revised plans.
(p) The trial Court committed an error
in rejecting an application (Exh.5) ignoring the fact
that all the disputed questions of facts and law
raised by the appellants were required to be decided
on evidence and till then the status quo was required
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to be maintained during the pendency of the suit. The
impugned order passed by the Civil court is illegal
and therefore, it is necessary to direct the parties
to maintain status quo till the decision of the suit.
Learned Counsel for the appellants cited the
following decisions.
(i) Express Newspapers Pvt. Ltd. v. Union of
India (1986 (1) SCC 133).
(ii) State of U.P. & others v. Maharaja
Dharmander Prasad Singh (AIR 1989 SC 997).
(iii) M/s. Raptakos Brett & Co. Ltd. v.
Ganesh Property (AIR 1998 SC 3085).
(iv) N. Umapathy v. B.V. Muniyappa (1997 (9)
SCC 247).
(v) Dinesh Mathur v. O.P. Arora (1997 (10)
SCC 520).
(vi) Raghuram Rao and others v. Eric P.
Mathias and others (AIR 2002 SC 797).
(vii) The Poona City Municipal Corporation
v. Dattatraya Nagesh Deodhar (1965 Supreme Court 555).
(viii) Pune Municipal Corporation and
another v. Mohan Shrikrishna Assava (1992 (3) BCR
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540).
(ix) Vasant Ambadas Pandit v. Bombay Municipal Corporation and others (AIR 1981 Bombay 394). (x) Girish Manohar Wazalwar v. Purshottam
Parasram Kotangale (1996 (1) Mh.L.J. 673).
(xi) P.C. Raja Ratnam Institution v.
Municipal Corporation of Delhi (AIR 1990 Supreme Court
816).
(xii) Jamshetjee Jeejeebhoy Baronet and
others v. State of Maharashtra (2004(5) Bom.C.R. 40).
(xiii) Pragati Mahila Mandal, Nanded v.
Municipal Council, Nanded (2011 (3) S.C.C. 464).
(xiv) ORYX Fisheries Pvt. Ltd. v. Union of
India and others (Civil Appeal No. of 2010 (Arising
out of Special Leave Petition (C) No.27615/08).
(xv) Shri Tejpal Singh Arora v. The State of
Maharashtra and others(W.P. No.3806/2002).
(xvi) Secretary, Teliparamba Education
Society v. Moothedath Mallisseri Illath M.N. (1997
DGLS (Soft.) 382).
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SUBMISSIONS MADE ON BEHALF OF THE RESPONDENTS :
10. Shri S.K. Mishra, learned Counsel for the
respondents made the following submissions.
(i) The memorandum dated 22.8.1953
about allotment of site for Dharmashala near
Government Medical College and Hospital shows that the
plot shall be used for Dharmashala and for no other
purpose. Any diversion will entail the forfeiture of
lease and resumption of the land. For any breach, the
N.I.T. will be entitled to re-enter the land and the
lessee will be entitled to remove only the
superstructure. These terms and conditions in the
original memorandum aforesaid clearly provide for the
purpose for which allotment was made. In case of
diversion of purpose or breach of terms and conditions
power to forfeit the lease and re-enter and take
possession is clearly spelt out.
(ii) There is no dispute that the
allotment of plots were made to the appellants only
for construction of Dharmashala and for providing
conveniences to the passengers, patients and their
relatives visiting the Government Medical College and
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Hospital and not for visiting any other hospital much
less private hospital. In the wake of the admitted
position that 32 rooms on the ground floor have been
given on Leave and Licence to a private Company which
runs a hospital and the rooms meant for Dharmashala
are being utilized for admitting the patients and
treating them and charging them for the room services
without prior sanction of N.I.T., is clearly contrary
to the memorandum of allotment of plots originally
made and lease-deed that was registered in the year
1996 and these breaches clearly violate the terms and
conditions of the allotment of plots.
(iii) The submission made by the learned
Counsel for the appellants about want of prior
permission from N.I.T. and extra constructions made in
the premises for the alleged charitable purpose is
wholly misconceived because the terms and conditions
of the allotment and the lease-deed do not permit any
such use.
(iv) The attempt of the appellants to
rely upon regulation No. M (7) (2) is misconceived
because the Development Control Regulations have been
framed in the year 2000 and the appellants cannot talk
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about these regulations when they are governed by the
terms and conditions in the original allotment order
and the lease-deed. There is no dispute that the
appellants have not obtained any permission from the
N.I.T. for deviating the object for which the plots
were given.
(v) Show-cause-notices given by the
N.I.T. and the Board resolution passed on 14.9.2010 by
the N.I.T. so also the order made by the Chairman
which is a subject matter of the suit are inconsonance
with the principles of natural justice. There is no
dispute that the appellants through their Advocate
were heard by both the parties before the order was
made. The Chairman of the N.I.T. has independently
heard the appellants, examined all the documents and
thereafter has come to a conclusion that the
appellants have committed several breaches of terms
and conditions and deviated the object for which the
plots were given only for reaping the benefits by
commercial exploitation of the property. By simpling
pointing out some from the several omissions in the
show-cause-notices or in the orders in substance the
appellants cannot get away with the fact that there
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are substantial and major violations made by the
appellants and the very object of providing shelter to
the passengers has been completely wiped out.
(vi) Most of the facts in the
inspection report of the Divisional Officer (South)
and the observations in the orders made by the
Chairman and breaches stated by the N.I.T. have gone
undisputed by the appellants and rather there is
confirmation
ig of such violations by the appellants
themselves when they submitted a revised plan to the
N.M.C. praying for regularization of the illegal
constructions made without prior permission that too
of the N.I.T. who is the original landlord. In the
wake of this position about admitted facts there is a
strong material to come to a prima facie conclusion
that the appellants have clearly breached the terms
and conditions of allotment and the lease-deed so also
the law in force. The trial Court has rightly rejected
the application since the Court is not supposed to
protect the violators of law, the appellants in the
present case.
(vii) Learned Counsel for the N.I.T.
invited my attention to the provisions of the Nagpur
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Improvement Trust Land Disposal Rules, 1983 and in
particular Section 55 of the N.I.T. Act and Rules 12,
15, 25 of the Rules. He also invited my attention to
the various terms and conditions in the original
allotment order and the lease-deed and the relevant
regulations with which reference will be made.
According to the learned Counsel for the
N.I.T. there is bar under Sections 114 and 115 of the
N.I.T. Act which directly comes in the way of the
appellants and therefore, if the suit is not
maintainable due to the said bar, the Court could not
have issued any temporary injunction.
(viii) The public purpose cannot be put
to frustration by asking the N.I.T. to again go to
civil Court as suggested by the appellants and get a
decision after number of years, which would certainly
cause direct loss to the public at large and the
N.I.T..
(ix) In the instant case, the breaches
have been proved by the N.I.T. by various evidences
placed before the trial Court as well as this Court
including the photographs which are admitted and
therefore, the submission made by the learned Counsel
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for the appellants that there are serious disputes
about the violations and breaches of conditions is
wholly incorrect and in that view of the matter, it
cannot be said that those alleged questions are
required to be decided by the civil Court. Admission
is the best piece of evidence and in the instant case
there are admissions in the form of documentary
evidence and that documentary evidence is not in
dispute. Therefore, as per the terms and conditions
when there is breach of terms and conditions, the
N.I.T. gets right under the terms and conditions of
the original allotment order, its regulations, the
Land Disposal Rules and enabling power under N.I.T.
Act as authority under law, to take possession by
giving appropriate notice in accordance with law.
He relied on the following decisions.
(i) Akbar Karimuddin Malik v. Nagpur
Improvement Trust and another, (Civil Revision
Application No.937/1993, decided on 25.09.1995).
(ii) State of Tamil Nadu & Anr. v. P.
Krishnamurthy & Ors. (AIR 2006 Supreme Court 1622).
(iii) Abdul Jabbar s/o Haji Mohammed Ibrahim
v. The Chairman, Nagpur Improvement Trust, Nagpur and
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another (Civil Revision Application No.345/1993,
decided on 2.4.1993).
(iv) State of T.N. and another v.
P.Krishnamurthy and others (2006 (4) SCC 517).
(v) Tukaram Laxman since deceased by his
legal representatives & others v. Sk. Ameer s/o Sk.
Osman & others (1983 (1) Bom. C.R. 17).
(vi) Rizwana Nizamuddin Shaikh v. Additional
Collector & others (2004 (Supp.2) Bom. C.R. 308).
(vii) Saraswati Dalmia & others v. Collector
of Bombay & others (2005 (1) Bom. C.R. 686).
(viii) Raosaheb Anand Shinde v. State of
Maharashtra (2006 (1) Bom.C.R. 756).
CONSIDERATION :
11. Nagpur was the capital of central provinces.
In 1947 the Government planned and erected a medical
college and hospital for providing medical facility
for the populace in a very big area under the central
provinces i.e. the entire Vidarbha region and some
area from Madhya Pradesh. The obvious reason was to
cater to the need of all classes of people at that
time due to paucity of medical facility. However, as
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the time passed, private clinics, hospitals came to be
established slowly and slowly in the entire region and
now for the last about 20 years this Government
Medical College and Hospital is of immense use to
middle class, lower class and poor people. To put it
other way, the people, who can afford to have the
medical facilities elsewhere ceased to rush to
Government Medical College. The Government Medical
College, Nagpur has earned a name and reputation in
the country and abroad. The doctors produced by this
college are serving worldwide. However, in the recent
past, this medical college and hospital was neglected,
with the result the beneficiaries were put to
innumerable inconveniences. It is a matter of record
that after Public Interest Litigations were filed in
this Court and as a result, the medical college and
hospital has been saved to some extent from utter
neglect. There has been substantial increase in the
number of private hospitals in the city of Nagpur.
But the cost incurred in these private hospitals is
beyond the capacity of a common man. The trend to
recover as much money as possible from the patients is
a matter of a serious concern. Added to it, big
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private hospitals/companies with only profit making
motive have also started their operations where poor
has no place.
12. It would not be wrong to say that there have
been regular attempts successfully and unsuccessfully
by the vested interests to paralyze the facilities in
Government Medical College like M.R.I., C.T.Scan,
Ultra-Sound, Dimensional Echo cardiography, Colour
Doppler, Pathology, Biochemistry, by use of direct and
indirect methods, thereby patients being compelled to
get medical reports of these facilities from private
clinics and hospitals of course on payment of
unaffordable higher costs.
13. The main sufferer in the process is the poor
patient who is required to shell out money from his
pocket, even by selling his possessions for making
payments, which otherwise he would not have been
required to pay in the Government Medical College and
Hospital. Similar is the case with the arrangement for
stay of patients and those who accompany the patients.
The poor patients cannot afford to pay for staying at
a place nearer to Government Medical College &
Hospital. When the medical college was started, the
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problem about stay of patients and their relatives was
given a thought. At that time in the year 1952, Rai
Bahaddur Seth Shriram Daluramji of Tumsar with a
philanthropic object in his mind to provide a shelter
to the patients and their relatives visiting the
Government Medical College and Hospital from all over
the central provinces set up a sum of Rs.51,000/-. He
made a request to Nagpur Improvement Trust for
allotment of land exactly opposite to the site of
medical college for construction of Dharmashala.
Thereafter, Trust was formed and various
memorandums/letters were issued vide dated 21.1.1953,
21.8.1953, 31.10.1953 and 7.9.1954. Finally, the area
of 49870 sq. ft. was allotted to the Trust out of
which 3000 sq. ft. area was allowed for construction
of shops as an integral part of Dharmashala and thus
for Dharmashala the area allotted was 46870 sq. ft..
Thereafter, some events like additional construction;
regularization thereof took place. The Nagpur
Improvement Trust also realized that for achieving the
object of setting up Dharmashala and providing more
facilities, additional land would be required by the
appellant-Trust and therefore, under letter dated
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29.1.1958 the Board of Nagpur Improvement Trust
sanctioned 13000 sq. ft. of land in addition for
Dharmashala specifically indicating therein that two
plots shall be treated as one unit. It was also stated
that the said additional land was meant for providing
kitchen blocks, garages and conveniences for the
public intending to use the facilities in the medical
college and Dharmashala. Thereafter on 19.6.1968
another latter was issued by Nagpur Improvement Trust
in supersession of letter dated 14.11.1963
regularizing the excess construction of 4426 sq.ft.
that was made without permission of Nagpur Improvement
Trust upon additional payment of premium etc.
14. It appears that on 20.4.1959 the Nagpur
Improvement Trust issued a show-cause-notice to the
appellant as to why the allotment should not be
cancelled as the appellant was using the land for the
purpose other than Dharmashala since according to
Nagpur Improvement Trust the first floor of the
building was let out for residential and other
purposes. It was followed by another show-cause-notice
dated 18.1.1960 stating therein that second floor of
the building was being used for residential and other
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purposes and hotel adjacent to Dharmashala and
therefore, why allotment should not be cancelled.
Third show-cause-notice was issued on 11.2.1961
mentioning therein that the rooms on the ground floor
in the Dharmashala were let out and also on the other
floors, contrary to the use of Dharmashala. It appears
that thereafter there was a complete silence till
18.11.2009 when the Divisional Officer of Nagpur
Improvement Trust made a report that huge unauthorized
constructions were made on the ground floor and 32
rooms of Dharmashala on the ground floor were leased
out for a private hospital. It is also stated in the
report that ten shops were utilized for commercial
purpose and at Ajni road Shankar Ashram Shala and
Shankar Bhojanalaya were running as full-fledged
restaurants with full commercial and profiteering in
contravention for the use of Dharmashala and further
that one Lalit Shankar Purohit has been given some
rooms of Dharmashala for his permanent residence.
15. Preliminary objection as to the
maintainability of suit :
It is an admitted position that though the
respondents raised an objection that suit was not
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maintainable due to bar of Section 114 and Section 115
of the N.I.T. Act in the written statement, they did
not file any application under Section 9-A of the Code
of Civil Procedure nor sought framing of preliminary
issue before the lower Court. Therefore, this Court
does not want to deal with the said preliminary
objections in this appeal and proceeds to determine
the appeal on its own merits.
Before going into the various submissions on
facts and evidence in this case, it is necessary to
consider submissions made by learned Senior Advocate
Shri Dharmadhikari based on various decisions of the
Supreme Court right from Express Newspapers Pvt. Ltd.
and others v. Union of India and others, reported in
1986 (1) Supreme Court Cases 133 till Dinesh Mathur
v. O.P. Arora, reported in 1997 (10) SCC 520 on the
following proposition of law.
Respondent-N.I.T. cannot adjudicate that
the appellants have violated the terms and conditions
of the original allotment order, lease-deed,
regulations and the provisions of the N.I.T. Act as it
is a lessor and the only course left open to the
N.I.T. is to file a suit for eviction of the
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appellants from the suit plot and get the adjudication
done from the civil Court, which could be done only by
tendering oral as well as documentary evidence and
therefore, the order of temporary injunction to
maintain status quo pending decision of the suit on
merits finally is essential.
16. At the outset, this Court finds upon careful
reading of the aforesaid decisions cited that the
action to evict the lessees in those cases by the
lessor was the subject matter of challenge before the
Supreme Court and in some cases before the High Court
in their writ jurisdiction. It is in the context of
the said jurisdiction, it was held that the only
remedy that could be available was that a competent
civil Court would adjudicate upon the dispute between
the parties and decide the questions arising in the
matter and the lessor does not have right to cancel
the lease and march with a view to take possession of
the properties by force as the same would be destructive
of rule of law. To put it other way, in all those
decisions, the Apex Court prohibited the lessor from
adjudicating on the issues arising in the matter of
process of forfeiture of lease, re-entry and marching
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to take possession. In my opinion and with due respect
to the law laid down in the aforesaid decisions, there
can absolutely be no quarrel with the said proposition
of law but there is a very important distinguishing
feature, namely that in all the aforesaid decisions
the proceedings were not before the civil Court but
the proceedings were before the higher Courts in their
respective writ jurisdictions. In the instant case the
proceedings have been instituted in the civil Court by
way of a suit and the respondent-N.I.T. has joined the
issue in the suit and the civil Court will frame the
issues on the questions of facts and evidence and
decide them in accordance with law. In the civil Court
where the suit has been filed and is being contested,
it will decide whether the appellants are entitled to
protect their possession over the suit property after
deciding the issues on merits upon recording evidence
and the rights and powers of the N.I.T.. To sum up, I
hold that the law laid down in the aforesaid decisions
cannot be intended to mean that the N.I.T. must file
suit for eviction, get adjudicated about the breaches
alleged and then seek a decree for eviction. That is
not necessary because the suit in question is already
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before the civil Court wherein it will decide all the
issues whether there are violations or not, whether
actions of N.I.T. are valid or not, including the
issue about the protection to be given, if any, to the
appellants. The Court will also decide whether the
appellants are entitled to permanent injunction or not
so also the declarations which have been claimed by
the appellants in the suit. Consequently, all the
submissions criticizing the Board resolution/order of
Chairman of N.I.T. or the adjudication by N.I.T. as
Judge in its own cause do not need to be addressed.
17. To repeat, since the aforesaid composite
suit has been filed for declaration, permanent
injunction and so on and so forth by the appellants
for adjudication, there is no question of N.I.T. being
the Judge in its own cause . But since they have also
filed an application for grant of temporary injunction
(Exh.5) claiming temporary injunction during the
pendency of the suit, it is for the appellants to
establish the following three legal requirements.
(a) prima facie case.
(b) balance of convenience.
(c) irreparable injury i.e. the plaintiffs
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can not be compensated by adequate damages.
18. The trial court has rejected the application
(Exh.5) by giving reasons. It becomes necessary for
this Court therefore to examine whether the appellants
satisfy all the above requirements for grant of
temporary injunction pending decision of a suit. This
Court, therefore, proceeds to determine the same.
19. Memorandum No.ES/22378 dated 22.8.1953 was
issued by the N.I.T. regarding allotment of site for
Dharmashala near medical college. It contains in all
nine clauses, out of which I quote clause Nos.2 to 5
hereunder.
2. That the plot shall be used
for construction of a Dharma Shala for the
use of public in general, and purpose
ancillary thereto and for no other purpose.
3. That, there should be no
diversion of the purpose for which land is
proposed to be allotted. Any diversion will
entail forfeiture of the lease and resumption
of the land.
4. That the land proposed to be
allotted will not be transferred except to
another Public Trust and with the previous
approval of the Board of Trustees.
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5. For any breach of any of the
conditions specified above and those
mentioned in the above deed that will be
executed, the Nagpur Improvement Trust will
be entitled to re-enter the land, the lease
being only entitled to remove the
superstructures.
20. Perusal of the above clauses show that the
plot allotted ig shall be used for construction of
Dharmashala for the use of public in general and for
no other purpose. That there shall be no diversion of
the purpose and any diversion will entail forfeiture
of the lease and resumption of the land. That for any
breach of the conditions the N.I.T. will be entitled
to re-enter the land, the lessee only being entitled
to remove the superstructures. These conditions were
accepted by the appellants. These conditions clearly
provide that in case of any diversion, there shall be
forfeiture of lease and resumption of the land and the
N.I.T. will be entitled to re-enter the land. By
memorandum dated 24.2.1955, the appellants were asked
to take additional land on lease admeasuring
13,000 sq. ft. again for the purpose of Dharmashala
only but with some premium which the appellants
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accepted and paid the amounts. On 29.1.1958 another
memorandum was issued, wherein it was reiterated that
the additional land allotted was reserved for public
institution for construction of kitchen blocks and
garages for providing more convenience to the people
and the additional plot and the earlier plot shall be
treated as one unit. By memorandum dated 14.11.1963
excess consideration of about 4462 sq. ft. that too
under
commercial use made by the appellants was
regularized upon charging additional premium since
that was without sanction of N.I.T.. On 23.5.1996 the
lease-deed was executed between the parties and was
got registered. The following clauses of the
lease-deed are relevant.
(i-1) The lessee shall not
disturb, or build over, or otherwise deal
or interfere with any of the service lines
referred to in sub-clause (h-1) without the
previous permission in writing of the
authority which laid the service line.
(j) The lessee shall not assign
transfer or part-with the possession of the
demised premises so as to cause any
division therein or otherwise to alter the
nature of this present demise.
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Provided, however, that the lessor may
subject to such terms and conditions as it
may fix, grant permission to the lessee to
assign transfer or to part with possession
of the demised premises so as to cause any
sub-division therein or otherwise alter the
nature of this present demise.
(k) The lessee shall not without the
previous permission in writing of the
lessor, use or allow to be used the
premises
contravention
of
of
the
the
demised
regulation
land
framed
in
under section 90 of the Nagpur Improvement
Trust Act, 1936 and Development Control
Rules.
(l) The lessee as also the assignee
and the mortgagee shall within one month of
assignment mortgage or transfer of the
demised premises deliver a notice of such
assignment mortgage or transfer to the
lessor setting for the names and
description of the parties to every such
assignments, mortgage of transfer and the
particulars and the effect thereof.
(l-a) The lessor, in case the
notice referred to in sub-clause (1) is
delivered to it, shall intimate to the
lessee, assignee mortgagee or transferee
about arrears of the Trust dues and its
right of re-entry, re-possession over the
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demised premises to remedy breach of any or
all clauses of conditions of lease within a
period of three months of the date of the
intimation to that effect.
(m) The decision of the lessor or any
person it may appoint in this behalf on any
question which may arise concerning any
alleged breach of any of the foregoing
clauses shall be final.
2) The lessor covenants
lessee paying the rent hereby reserved and
that the
performing and observing the conditions
herein contained shall peace obley hold and
enjoy the said land during the said term
without any lawful interruption or
disturbance by the lessor or any person
lawfully claiming it.
Provided that if the said rent of any
part thereof shall at any time be in
arrears and unpaid for one calendar month
next after the date whereon the same shall
have become due whether they shall have
been lawfully demanded or not as also upon
the breach of non-observance by the lessee
of any of the said conditions the lessor
may not withstanding the waiver of any
previous cause or right of re-entry, enter
upon the said land and re-possess it as it
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this demise had not been made, the lessee
in such case being entitled within three
calendar months from the date of such
re-entry to remove all building and
fixtures which at any time during the
currency of the demise shall have been
erected or affixed by him upon the said
land.
Provided further that when any cause
of
right of re-entry arises
foregoing proviso, it shall be lawful for
under the
the lessor, as the consideration for the
non-exercise of the power of re-entry to
receive from the lessee a sum of money not
exceeding two years ground rent.
Provided also that when any cause or
right of re-entry arises under the first
proviso, upon the breach of non-observance
of the condition of sub-clause (d) clause
(l) thereof in respect of errection or
alteration it shall be lawful for the
lessor to ask the lessee to demolish or
alter the unauthorized construction, as it
may deem necessary, within reasonable time,
as a consideration for the non-exercise of
the power of re-entry instead of receiving
a sum of money as provided above.
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21. The aforesaid clauses if carefully read will
show that the appellants agreed not to disturb, build
over or otherwise deal with the suit property and not
to interfere with the service, without prior
permission in writing of the authority.
22. The appellants agreed with clause (i) not to
assign or transfer or part with the possession. It
also provides not to alter the nature of the present
demised premises. It also provides in clause (k) that
without permission of the N.I.T. in writing the
demised premises cannot be used for any other purpose.
Clause (2) aforesaid then provides that in case of
breach of non-observance by the lessee of any of the
conditions, the lessor may exercise a right of
re-entry and re-possess it as it the demise had not
been made. The appellants have agreed with the said
condition in clause (d) with open eyes and in my
opinion, they are bound by it. Similar is the position
in third proviso of clause (2) providing for the
N.I.T. lessor to exercise power of re-entry if then
the authorized construction is not demolished etc. but
then that is the discretion given to the N.I.T..
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23. To sum up, the aforesaid conditions
mentioned hereinabove are the agreed terms and
conditions by which the appellants have agreed that
the N.I.T. shall re-enter and take possession of the
suit property in the aforesaid contingencies.
24. It is in the above background now this Court
will have to find out whether the evidence placed by
both parties on record and the documentary or other
evidences which are not in dispute would show that
there are violations or breaches of terms and
conditions. After hearing learned Counsel for the
rival parties, this Court finds that following are the
facts and evidences in the form of documentary
evidence and my reasons which clearly show that there
are serious violations made by the appellants in
respect of breach of the terms and conditions of the
allotment order and lease-deed and for which no
evidence is required to be led before the civil Court
at trial or to find out whether a prima facie case is
made out by the appellants or not for grant of
temporary injunction. (a) From the Leave and Licence
Agreement filed on record by the appellants themselves
with a private company running Center Point Hospital
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on the ground floor of the Dharmashala facing the
Government Medical College and Hospital wholly
unconnected with the appellants but being a licensee
on payment of Rs.1,00,000/- per month, it is clear
that appellants had exploited the ground floor rooms
meant for the passengers for reaping profits
@ Rs.1,00,000/- per month. This hospital has a
operation theatre, pathology laboratory, care
diagnostic center, medicine shops and x-ray and other
machines. Looking to the photographs it appears that
the face lift given to the front area of this building
i.e. 32 rooms on the ground floor, huge expenditure
appears to have been made and in fact private rooms
for the patients at cost seems to have been a source
of income for the hospital from each room. (b) Due to
the activity of running private hospital in the
Dharmashala on almost entire ground floor, the entire
open space surrounding to Dharmashala is being used
for parking. (c) Perusal of the photographs of Shankar
Ashram Canteen and Shankar Ashram Bhojanalaya show
that they are being utilized as regular hotels
providing food and canteen providing snacks food etc..
(d) The temporary sanction granted by the N.I.T. for
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these structures where these canteen and Bhojanalaya
are located were only for storing construction
materials at the time of construction of building of
Dharmashala and thereafter for providing convenience
to the passengers for garages etc.. This fact is not
in dispute. (e) There is no evidence to show that
Shankar Ashram Canteen and Shankar Ashram Bhojanalaya
were permitted to be started in these garages or that
these garages meant for public conveniences in the
original allotment order could be utilized for running
hotel business. This documentary evidence about the
temporary sanction for garages and absence of any
document placed on record by the appellants for
allowing Shankar Ashram Canteen and Shankar Ashram
Bhojanalaya lead me to show that the whole activities
are unauthorized and in breach of the terms and
conditions. (f) Assuming that the said canteen and
Bhojanalaya are catering to need of patients,
passengers and their relatives, there is absolutely no
evidence placed on record by the appellants as to what
is their control on these two establishments and at
what rate, these canteen and Bhojanalaya are providing
food and other eatables to the visitors. It was the
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duty of the appellants to place on record the evidence
in the form of affidavits or documentary evidence
showing that canteen and Bhojanalaya were being run in
these garages by providing food at subsidized and
concessional rates. No agreement between the
appellants and canteen and Ashram Bhojanalaya has been
placed on record to show the terms and conditions of
subletting nor there is anything on record to show
that they were allowed to be operated with written
sanction or permission from the N.I.T.. No
document/indenture between them has been placed on
record to show that the appellants have any control
over them at least in the matter of providing food
etc. at subsidized or concessional rates to those
visiting Dharmashala. In the absence of any
documentary evidence about the occupation of canteen
and Shankar Bhojanalaya and the terms and conditions
of lease or as the case may be, it is clear that the
appellants have allowed the regular hoteliers to do
business and earn huge profits from the public at
large giving complete go-bye to the very purpose for
which such prime land was allotted to the appellants.
It is not known what income the appellants must have
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been deriving from the said canteen and Bhojanalaya
situated almost on 1/4th acre of land in the heart of
Nagpur City. It was for the appellants to clear all
these points but the appellants did not place any
material on record or affidavit evidence to that
effect. It clearly appears that Shankar Ashram Canteen
and Shankar Ashram Bhojanalaya have been operating for
many years and therefore, the appellants must have
reaped monetary benefits but they are not coming clean
before the Court.
25. It is an admitted fact that the appellants
had directly applied to the State Government under
Section 37 of the Maharashtra Regional & Town Planning
Act, 1966 for changing the use of plot from public
purpose to commercial purpose vide application dated
15.1.2007. This clearly shows that on the date of this
application, the appellants themselves decided that
they must get regularised commercial exploitation
being made by them of the property belonging to N.I.T.
by getting minor modification done under Section 37 of
the Maharashtra Regional & Town Planning Act directly
from the State Government. It appears that the
Government referred the matter to N.I.T. which passed
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a resolution on 17.10.2007 and rejected the proposal
made by the appellants and then there was a silence.
Thus, making of the said representation to change the
user from public utility to commercial use by the
appellants clearly speaks volumes about the intentions
on the part of the appellants to get conversion at the
cost of public utility. Fortunately, the State
Government and the N.I.T. did not fall pray to the
said
proposal. This conduct on the part of the
appellants is enough to conclude that there are no
bona fides in the appellants for claiming that it
would continue to operate Dharmashala and thus satisfy
the public purpose for which plots were allotted.
26. The inspection report prepared by the
Divisional Officer (South) dated 8.2.2010 has been
carefully seen by me. This inspection report gives in
details as to how major changes have been made to suit
the requirements of running a private limited hospital
on fully commercial basis. This report further shows
that the entire space in the middle of the Dharmashala
open to sky has been closed and the structures have
been erected therein to suit the requirements of
private limited hospital and operation theatre
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admeasuring 4576 sq. ft. has been erected there. This
report inter alia contains several other things. The
submission made by learned Senior Advocate
Shri Dharmadhikari that this report is liable to be
rejected by this Court since the same was prepared
behind the back of the appellants would have appealed
to this Court. However, it is seen that the appellants
themselves have prepared a big revised plan and
submitted to the N.M.C. with a request to regularize
several structures and changes and modifications made
in the original building of Dharmashala to suit the
establishment of private hospital. If this revised map
is carefully compared with the said inspection report
about which contention has been made that it should be
rejected, it is clearly seen that whatever has been
stated in the inspection report is fully corroborated
by the said revised map prepared by the appellants and
submitted by the appellants to the N.M.C., planning
authority, for regularization, sanction and so on and
so forth. Thus, the appellants themselves have
provided documentary evidence before this Court,
showing that they have made several constructions,
modifications and so on and so forth in the building
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of Dharmashala to suit the need of a full fledged
private hospital run by a private limited company for
commercial exploitation. Needless to say that all that
was done without permission of the N.I.T. and in
clearcut breach of the aforesaid terms and conditions
mentioned by me herein before.
27. No other evidence is required when the
appellants themselves have produced the said evidence
to infer
that the appellants have converted the
Dharmashala into a private hospital.
28. It is seen that there are several pathology
laboratories operating in this Dharmashala building
which is clear from the photographs and the inspection
report so also x-ray and other modern machines. To
repeat, major operation of Dharmashala building has
been in utilization for hospital and allied and
connected activities of the hospital.
29. The submission made by learned Senior
Advocate Shri Dharmadhikari that even now 88 rooms are
being utilized for giving to the passengers, patients
and their relatives in the Dharmashala is based on no
prima facie evidence. There is absolutely no evidence
placed on record to show that during the last 10-20
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years or in the last five years a single room has been
given to the patients, their relatives or passengers
coming to Government Medical College and Hospital on
concessional basis or free of cost. Apart from that no
documentary evidence is placed nor there is affidavit
of a single person from the appellants to show a
single detail about single passenger, patient or
relative staying in Dharmashala. If the appellants
wanted to
establish a prima facie case that
Dharmashala was still being utilized for passengers,
patients and their relatives, it was for them to prove
the same by documentary proof or evidence by way of
affidavit before the trial Court to establish
accordingly. To say that he same is a matter of trial
is no use since the appellants could have easily
produced the concerned registers for the last couple
of years showing the same. If the rooms were given on
concessional rates, where is the evidence in the form
of receipts, ledgers audit reports for the last
several years. No audited reports required to be
submitted every year to the Charity Commissioner have
been placed on record. That would have clearly
revealed the income from passengers even if meagre and
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the expenditure over maintenance. When asked, learned
Senior Advocate Shri Dharmadhikari fairly stated that
nothing of this sort was filed on record. However, I
find that this is totally absent which clearly shows
that the appellants completely forgot that the
property was to be utilized for the poor and needy
passengers, patients and their relatives, visiting
Government Medical College and Hospital.
30.
The submission that Shri Lalit Purohit was
inducted as caretaker in the Dharmashala is again
without any evidence. Nothing prevented the appellants
from providing any documentary proof or evidence by
way of affidavit about the terms and conditions of
employment/contract of Shri Lalit Purohit with
Dharmashala. It was for the appellants to prove prima
facie that Shri Lalit Purohit was inducted as a
caretaker and the terms and conditions of his
employment/contract ought to have been brought on
record before the Court.
31. The submission made by learned Senior
Advocate Shri Dharmadhikari that the Trust is
achieving the object of providing treatment to the
patients by giving 32 rooms on the ground floor to
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Center Point Hospital does not appeal to me. In the
first place, the appellant/Trust is collecting
Rs.1,00,000/- per month as licence fee from the said
private hospital which must have been taking fullest
advantage of the location, namely opposite Government
Medical College and Hospital, Nagpur and thus earning
huge income. There is no record placed before the
Court to show that the said Center Point Hospital is
under any control of the appellants. It is a private
limited company doing its business of running a
hospital and hospitality at cost in the building meant
for Dharmashala. There is nothing on the record to
show that treatment to the patients is free of cost or
on concessional rates. There must not be any record
obviously because the appellants do not have any
control on the said hospital about regulation of
charges to be recovered from the patients and at least
no material has been placed on record to show that the
appellants have reserved any right by any indenture in
the matter of charges to be recovered from the
patients. No evidence in the form of accounts, income
and expenditure daily book, audits of the said company
showing that the patients staying in Dharmashala
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ao26.11.odt 54
instead of being allowed to be treated at Government
Medical College and Hospital were treated on
concessional rates by this hospital from the date it
is operating on Leave and Licence or that the
appellants have certified accordingly. It is difficult
to believe that the private limited company running a
hospital for doing its business would do so and that
too having spent huge money for changing the face of
the Dharmashala. The submission that the appellants
have been doing the same activity and it falls under
regulation M (7) (2) therefore does not impress me
at all.
32. Submission made by learned Senior Advocate
Shri Dharmadhikari that all the allegations made by
the N.I.T. in the show-cause-notices are disputed and
they are required to be tested upon adducing the
evidence at the regular trial before the civil Court,
therefore, does not impress me since I have clearly
pointed out in the earlier paragraphs the undisputed
position about the violations and breaches of terms
and conditions made by the appellants and that too by
documentary evidence mostly provided by the appellants
themselves.
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33. To sum up, on the facts, in my opinion, no
prima facie case at all has been made out by the
appellants and on the contrary the appellants have
deprived the needy and poor patients, their relatives
and passengers from taking advantage of the
Dharmashala. That is unfortunate and shows that
philanthropy is vanishing fast.
34. Balance of convenience in the above fact
situation where the appellants have clearly committed
breach of trust of N.I.T. and public at large and in
particular the poor passengers, patients and relatives
for many years, cannot lie in favour of the appellants
merely because the appellants are in possession of the
suit properties. Public interest has to be a paramount
consideration even while finding out the balance of
convenience. In my opinion, if the appellants are
allowed to enjoy the benefits from the said public
property for another decade or so by waiting for final
decision of the civil suit/appeals etc. the public
interest would be wholly jeopardized. This Court would
never remain a mute spectator.
35. As regards the irreparable loss, I find that
in case the appellants succeed in the suit, they can
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definitely be compensated by way of damages and
therefore, there is no such loss which can be said to
be irreparable.
36. The N.I.T. has filed an undertaking signed
by executive officer, N.I.T., Nagpur dated 19.4.2011
vide St. No.4026/2011, stating therein that the N.I.T.
undertakes to use the suit plots for the same purpose
for which they were allotted to the appellants or
would allot the same to other institution if needed.
This being the case, the balance of convenience
certainly remains in favour of the N.I.T. rather than
the appellants. This Court, however, has a strong
reservation about the N.I.T. allotting the land to
some other institution since in the present scenario
it is the N.I.T. which can provide the best to the
people at large by running Dharmashala since it has
been doing very well in running other activities in
the city of Nagpur, keeping in mind the interest of
the public at large. To allot the said property to any
other Trust/Institution most of which are run by the
influential people, their kith and kin for huge
profits in the city of Nagpur and State of Maharashtra
is to fall in another trap. The majority of charitable
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and other Trusts/Institutions who have obtained lands
from N.I.T. have been doing business rather than
philanthropy in blatant violations of terms and
conditions. Shri Mishra, the learned Counsel for
N.I.T. stated that there are about 250 public utility
plots in the city of Nagpur which are misutilised for
business . But this Court granted stay of taking
possession as N.I.T. did not allegedly (as stated by
the petitioners in those petitions) comply with the
principles of natural justice. Nothing can be said
here except saying good-luck to N.I.T. and the
common man. Thus, the present scenario in the State of
Maharashtra does not permit handing over the suit
property to other institution. The said undertaking
marked x is accepted with a hope and trust that
N.I.T. itself would run the Dharmashala.
37. I, thus, find that none of the ingredients
for granting temporary injunction pending decision of
the suit have at all been satisfied by the
appellants/plaintiffs and therefore, they are not
entitled to grant of temporary injunction pending
decision of the suit.
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38. As to the right of re-entry and forfeiture
of lease and taking possession, I have already
discussed that the appellants have clearly agreed to
the aforesaid eventuality of forfeiture of lease
re-entry and possession to be delivered to the N.I.T.
in the event of breach of terms and conditions. I have
clearly held that breach of terms and conditions are
writ large and duly established from the documents
filed by the appellants and N.I.T.. In other words,
there are no major debatable issues which should go
for trial. In the face of the agreed position by the
appellants themselves, I do not think that they can be
allowed to back out now. This is all the more so
because this Court has recorded a categorical finding
about undisputed violations established on record.
However, I find that the notice that was given by the
N.I.T. to enter the land in question by 30 days is not
correct. Notice ought to have been for a period of
three months as provided in clause (l-a).
39. To part with, it is unfortunate, that the
appellants did not realize that the patients visiting
the Government Medical College and Hospital would be
diverted to the said Center Point Hospital from the
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Government Medical College and Hospital by brokers and
Dalals at the cost of poor people who would be
compelled to sell their belongings or the possessions
or the property for saving the life of patients which
otherwise they may not have been required to for
treatment in the Government Medical College and
Hospital.
40. For all the reasons, therefore, I do not
find that the appellants have made out any case for
interference. On the contrary, the public interest
requires that the N.I.T. must be allowed to take
possession of the suit properties but by giving notice
of three months and carry out the activities itself by
running Dharmashala and providing other facilities,
amenities to the patients, their relatives and
passengers visiting the Government Medical College and
Hospital.
41. To sum up, I do not find any substance in
the present appeal against order. The same is,
therefore, dismissed. No order as to costs.
JUDGE
ssw
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