{"id":208795,"date":"2011-05-06T00:00:00","date_gmt":"2011-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/appeal-against-order-no-262-vs-unknown-on-6-may-2011"},"modified":"2017-04-08T05:02:52","modified_gmt":"2017-04-07T23:32:52","slug":"appeal-against-order-no-262-vs-unknown-on-6-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/appeal-against-order-no-262-vs-unknown-on-6-may-2011","title":{"rendered":"Appeal Against Order No.26\/2 vs Unknown on 6 May, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Appeal Against Order No.26\/2 vs Unknown on 6 May, 2011<\/div>\n
Bench: A. B. Chaudhari<\/div>\n
     ao26.11.odt                      1\n\n\n\n\n                                                                  \n            IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                       NAGPUR BENCH, NAGPUR\n\n\n\n\n                                          \n                   APPEAL AGAINST ORDER NO.26\/2011\n\n\n     APPELLANTS :     1. R.B. Shreeram Religious & Charitable\n                         Trust, duly registered under the\n\n\n\n\n                                         \n                         Bombay Public Trust Act, 1950,\n                         having its registration no.E-11(B),\n                         and registered office at Shreeram\n                         Bhawan, Tumsar, Dist. Bhandara,\n                         acting through its attorney\/trustee\n\n\n\n\n                              \n                         Shri Dhanendra Bhikaji Yerpude,\n                         aged about 48 years, Occ. Service,\n                    ig   R\/o Kanhan, Tah. Parseoni, Dist.\n                         Nagpur.\n\n                      2. Shri Narayandasji Saraf, major,\n                  \n                         Occ. Business, Managing Trustee of\n                         plaintiff no.1 trust, r\/o Shreeram\n                         Bhawan, Main Road, Tumsar.\n\n                      3. Shri Ramkisanji Saraf, major, Occ.\n      \n\n                         Business, Trustee of plaintiff no.1\n                         trust, r\/o Shreeram Bhawan, Main\n   \n\n\n\n                         Road, Tumsar.\n\n                      4. Shri Murlidharji Saraf, major,\n                         Occ. Business, Managing Trustee of\n                         plaintiff no.1 trust, r\/o Shreeram\n\n\n\n\n\n                         Bhawan, Canal Road, Ramdaspeth,\n                         Nagpur.\n\n                      5. Shri Manoj Saraf, major, Occ.\n                         Business, Trustee of plaintiff no.1\n\n\n\n\n\n                         trust, r\/o Shreeram Bhawan, Main\n                         Road, Tumsar.\n\n                      6. Shri Vinod Saraf, major, Occ.\n                         Business, Managing Trustee of\n                         plaintiff no.1 trust, r\/o Shreeram\n                         Bhawan, Canal Road, Ramdaspeth,\n                         Nagpur.\n                                 [Original plaintiffs on R.A.]\n\n\n\n\n                                          ::: Downloaded on - 09\/06\/2013 17:16:10 :::\n      ao26.11.odt                                2\n\n\n\n\n                                                                            \n                               ...Versus...\n\n     RESPONDENTS :       1. The Nagpur Improvement Trust,\n\n\n\n\n                                                    \n                            A statutory body created under the\n                            provisions of the Nagpur Improvement\n                            Trust Act, 1936, acting through its\n                            Chief Executive Officer, having its\n                            office at Near Liberty Cinema,\n\n\n\n\n                                                   \n                            Station Road, Sadar, Nagpur.\n\n                         2. The Chairman,\n                            Nagpur Improvement Trust,\n                            having its office at Near Liberty\n\n\n\n\n                                     \n                            Cinema, Station Road, Sadar, Nagpur.\n                     ig  3. Dr. Sanjay Mukherjee,\n                            c\/o Nagpur Improvement Trust,\n                            having its office at Near Liberty\n                            Cinema, Station Road, Sadar, Nagpur.\n                   \n                         4. Shri Sudhakar Kohle,\n                            Corporator, N.M.C. C\/o Nagpur\n                            Improvement Trust, having its office\n                            at Near Liberty Cinema, Station\n      \n\n                            Road, Sadar, Nagpur.\n   \n\n\n\n                              Or R\/o Jankinagar, Near Udaynagar\n                              Chouk, Nagpur.\n\n                         5. CPH -Center Point Hospital,\n\n\n\n\n\n                            Medical Research Institute Pvt.Ltd.,\n                            a company registered under the\n                            provisions of the Companies Act,\n                            1956, having its registration\n                            number U 85110 MH 2009 PTC 193605,\n                            and registered office at G-10,\n\n\n\n\n\n                            Mehadia Bhavan, Dhantoli, Wardha\n                            Road, Nagpur through its authorized\n                            signatory Dr. Shishir Kolhe, major,\n                            occ.: Doctor, r\/o 166, Bajaj Nagar,\n                            Nagpur.\n                                        [Original Defendants on R.A.]\n     ------------------------------------------------------\n     [Shri S.P. Dharmadhikari, Sr. Adv. with Shri A.G. Gharote, Adv. for appellants]\n     [Shri S.K. Mishra, Adv. for respdt. Nos.1 to 3]\n     ------------------------------------------------------\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 17:16:10 :::\n      ao26.11.odt                          3\n\n\n\n\n                                                                       \n                                    CORAM        : A.B. CHAUDHARI, J.\n\n     Date of reserving the judgment   : 19.04.2011\n\n\n\n\n                                               \n     Date of pronouncing the judgment : 06.05.2011\n\n\n     J U D G M E N T\n<\/pre>\n
     1.            Heard.\n<\/p>\n
     2.            Admit.\n<\/p>\n
     3.            Taken up for final disposal with the consent<\/p>\n
     of the learned Counsel for the rival parties.\n<\/p>\n
     4.            Being    aggrieved     by         the       order          dated<\/p>\n
     20.1.2011, passed by the 3rd Jt. Civil Judge, Senior<\/p>\n
     Division, Nagpur, below Exh.5, in Special Civil Suit<\/p>\n
     No.1186\/2010, rejecting the said application for grant<\/p>\n
     of temporary injunction, the present appeal against<\/p>\n
     order    has   been    filed   by   the      original         plaintiffs-\n<\/p>\n
     appellants herein.\n<\/p>\n
     FACTS :\n<\/p>\n
     5.            The appellants are the original plaintiffs<\/p>\n
     in Special Civil Suit No.1186\/2010 for declaration,<\/p>\n
     permanent injunction and damages in which they filed<\/p>\n
     application (Exh.5) for grant of temporary injunction<\/p>\n
     pending decision of the suit. In the suit, they have<\/p>\n
     prayed for a decree to declare order dated 30.9.2010<\/p>\n
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\n      ao26.11.odt                               4<\/span><\/p>\n
     passed by defendant No.2                 Chairman of defendant No.1<\/p>\n
     Nagpur        Improvement        Trust   (for       short,        hereinafter<\/p>\n
     referred to as           the N.I.T. ) as illegal, mala fide and<\/p>\n
     in   collusion       with     defendant       No.4           Corporator           of<\/p>\n
     Nagpur Municipal Corporation (for short, hereinafter<\/p>\n
     referred       to   as     the    N.M.C. )and        have      also      claimed<\/p>\n
     permanent injunction in the matter of enforcement of<\/p>\n
     the said order dated 30.9.2010 by which the defendant-\n<\/p>\n
     N.I.T. cancelled allotment of plot that was given for<\/p>\n
     Dharmashala         purpose       and     ordered         ‘re-entry’.             In<\/p>\n
     response to the suit summons, defendant Nos.1 to 3<\/p>\n
     filed their composite written statement as well as<\/p>\n
     reply to the application for temporary injunction and<\/p>\n
     vehemently opposed the suit inter alia on the ground<\/p>\n
     of maintainability in the light of Sections 114 and<\/p>\n
     115 of the Nagpur Improvement Trust Act, 1936 (for<\/p>\n
     short, hereinafter referred to as the                         N.I.T. Act ).\n<\/p>\n
     It is the case of the plaintiffs in the suit that the<\/p>\n
     appellant-Trust          came     into    existence          by     virtue        of<\/p>\n
     indenture       made     on     15.2.1951      by     Sheth       Raibahaddur<\/p>\n
     Daluramji of Tumsar. The Trust was allotted an open<\/p>\n
     site by the N.I.T. opposite to the Government Medical<\/p>\n
     College and Hospital at Nagpur for charitable purpose,<\/p>\n
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\n      ao26.11.odt                          5<\/span><\/p>\n
     namely for construction of Dharmashala with ancillary<\/p>\n
     and    related     partly    commercial        structures            to      be<\/p>\n
     constructed. The constructions of Dharmashala, shops<\/p>\n
     were made so also garages by the Trust. Similarly,<\/p>\n
     commercial constructions said to be without sanction<\/p>\n
     were made looking to the need of the passengers and<\/p>\n
     for achieving the charitable purpose of Dharmashala.\n<\/p>\n
     But   then    N.I.T.   regularized       all    the     structures           by<\/p>\n
     charging extra premium and thus the constructions made<\/p>\n
     over and above sanctioned limit came to be regularized<\/p>\n
     with which no hue and cry was made by the N.I.T..\n<\/p>\n
     Thereafter, a lease for the first time came to be<\/p>\n
     registered on 31.7.1996 along with correction dated<\/p>\n
     21.5.2008 and the lease is valid till the year 2013.\n<\/p>\n
     However, on 10.12.2009 the N.I.T. issued a show-cause-\n<\/p>\n
     notice (first show-cause-notice) alleging that (i) the<\/p>\n
     allotment     of   land     was   only     for      construction             of<\/p>\n
     Dharmashala building and for no other purpose, (ii) 32<\/p>\n
     rooms on the ground floor of Dharmashala have been<\/p>\n
     given on rent for running a private hospital, (iii)<\/p>\n
     ten shops on the ground floor on the Rambagh road have<\/p>\n
     also been let out on rent. (iv) in the two garages\/<\/p>\n
     building towards Ajni Road, Shankar Ashram and Shankar<\/p>\n
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\n      ao26.11.odt                                 6<\/span><\/p>\n
     Bhojnalaya          are    being    run.    and        (v)      Lalit       Shankar<\/p>\n
     Purohit       has    been    inducted       as     a    tenant        and     he     is<\/p>\n
     residing in Dharmashala as his permanent abode.\n<\/p>\n
     6.             The        appellants       filed         their         reply         on<\/p>\n
     23.12.2009          and    stated    that       the    N.I.T.        itself        had<\/p>\n
     sanctioned commercial use by regularizing commercial<\/p>\n
     structures.          The    first    and    second          floor        rooms       of<\/p>\n
     Dharmashala were provided for the patients and their<\/p>\n
     relatives, who visit the Government Medical College<\/p>\n
     and Hospital, on concessional rates and the shops on<\/p>\n
     the ground floor are the shops which are essential for<\/p>\n
     the convenience of these passengers such as laundry,<\/p>\n
     barber, restaurant etc.. Shankar Ashram and Shankar<\/p>\n
     Bhojanalaya at Ajni side were being used for providing<\/p>\n
     food to the patients and their relatives staying in<\/p>\n
     Dharmashala.          At    any    rate,    in      accordance           with      the<\/p>\n
     Development Control Regulations, 2000 for Nagpur City<\/p>\n
     which are in force from 9.10.2010 and in particular<\/p>\n
     Regulation ‘M’ (7) (2) of the Regulations, the use<\/p>\n
     made by the appellants for providing private hospital<\/p>\n
     on the ground floor on Leave and Licence in 32 rooms<\/p>\n
     is not in derogation of the said Regulations of 2000<\/p>\n
     and consequently, there were no violations at all. The<\/p>\n
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\n      ao26.11.odt                            7<\/span><\/p>\n
     inspection    of     the    building       was    undertaken           by     the<\/p>\n
     Divisional Office (South) of N.I.T. behind the back of<\/p>\n
     the appellants and the report was submitted. The said<\/p>\n
     report was obviously without looking to the earlier<\/p>\n
     sanction plans compounding and regularizing the excess<\/p>\n
     constructions etc. and thus the report was unreliable.\n<\/p>\n
     But based on the said report dated 8.10.2010 made by<\/p>\n
     the    said   officer,       second     show-cause-notice                  dated<\/p>\n
     16.12.2010 was issued to the appellants as to why the<\/p>\n
     lease of plot in question, namely plot No.2 (I-A) and<\/p>\n
     (I) should not be cancelled. It was alleged in the<\/p>\n
     said     show-cause-notice        that           as     per       the        spot<\/p>\n
     inspection, the appellants have indulged in commercial<\/p>\n
     exploitation    of    properties       in     breach        of    terms       and<\/p>\n
     conditions    i.e.    (i)    shops     were      constructed           without<\/p>\n
     prior sanction of the N.I.T.,              (ii) regulations framed<\/p>\n
     under Section 19 of the N.I.T. Act were breached,<\/p>\n
     (iii) a big hospital by name ‘Center Point Hospital’<\/p>\n
     has been housed on the ground floor of Dharmashala<\/p>\n
     building and a pathology laboratory in three rooms has<\/p>\n
     been operating therein and (iv) several unauthorized<\/p>\n
     changes have been made in the building without prior<\/p>\n
     sanction of the N.I.T..\n<\/p>\n
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\n      ao26.11.odt                                  8<\/span><\/p>\n
     7.            The     appellants        had       filed        reply         stating<\/p>\n
     therein       that    the     constructions           made       or    additional<\/p>\n
     constructions         made     were     not      in      violation           of     any<\/p>\n
     Development          Control         Rules       and        in        fact         were<\/p>\n
     contemplated by Regulation ‘M’ (7)(2) and further the<\/p>\n
     shops were constructed as per sanctioned plans. Apart<\/p>\n
     from that now the N.I.T. was no more the planning<\/p>\n
     authority and the planning authority being the N.M.C.,<\/p>\n
     the revised plans for regularization of constructions<\/p>\n
     were    submitted       to     the     planning          authority,           namely<\/p>\n
     N.M.C. However, due to objection taken by the N.I.T.\n<\/p>\n
     the    revised       plans     have     been       kept       on      hold        which<\/p>\n
     otherwise would have been sanctioned in normal course.\n<\/p>\n
     None of the conditions of the lease-deed or of the<\/p>\n
     original allotment orders have at all been breached.\n<\/p>\n
     The appellants then alleged that one Sudhakar Kohale<\/p>\n
     the local corporator from Janki Nagar ward No.136 is<\/p>\n
     also a Trustee of N.I.T. and he with oblique motive<\/p>\n
     pressurized          N.I.T.     to     take        action          against          the<\/p>\n
     appellants. It is in this background the suit was<\/p>\n
     filed for the reliefs stated above.\n<\/p>\n
     8.            In the written statement filed by the N.I.T.\n<\/p>\n
     preliminary objections about maintainability of the<\/p>\n
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\n      ao26.11.odt                           9<\/span><\/p>\n
     suit due to bar under Sections 114 and 115 of the<\/p>\n
     N.I.T. Act were raised. It was then stated in the<\/p>\n
     written       statement   that   in       the     recent         past       the<\/p>\n
     appellants made huge constructions on the ground floor<\/p>\n
     in the area open to sky in the middle of the plot by<\/p>\n
     showing       temporary   constructions            even        for       which<\/p>\n
     permission from the planning authority was required.\n<\/p>\n
     Thus,     the   constructions    having         been       made      without<\/p>\n
     permission were totally illegal and that is why the<\/p>\n
     revised plan was filed by the appellants themselves<\/p>\n
     which shows that the appellants very well knew that<\/p>\n
     they made several illegal constructions. 32 rooms on<\/p>\n
     the ground floor of Dharmashala facing the Medical<\/p>\n
     College have been let out to private limited company,<\/p>\n
     namely Center Point Hospital for running a hospital.\n<\/p>\n
     In these rooms, operation theatre, private rooms have<\/p>\n
     been utilized for patients at cost rather than for the<\/p>\n
     use of Dharmashala. The rent that has been charged as<\/p>\n
     per the Leave and Licence Agreement is Rs.1,00,000\/-\n<\/p>\n
     per month with escalation of 5% every year and thus<\/p>\n
     the     appellants    have   indulged        in      full       commercial<\/p>\n
     exploitation thereof without permission and in breach<\/p>\n
     of the charitable object for which plots were given.\n<\/p>\n
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\n      ao26.11.odt                         10<\/span><\/p>\n
     The inspection of the entire premises was made and the<\/p>\n
     inspection report was submitted. On earlier occasions<\/p>\n
     also the appellants have been found to be violating<\/p>\n
     conditions of the lease. The appellants have made a<\/p>\n
     representation to the State Government on 15.1.2007<\/p>\n
     for change of use from public utility to commercial<\/p>\n
     which clearly supports the case of the N.I.T. that the<\/p>\n
     appellants do not have bona fide intention to run<\/p>\n
     Dharmashala.\n<\/p>\n
                   Several documents and photographs have been<\/p>\n
     filed along with this appeal on record. The appeal was<\/p>\n
     heard on several dates.\n<\/p>\n
     SUBMISSIONS MADE ON BEHALF OF THE APPELLANTS :\n<\/p>\n
     9.            Shri   S.P.    Dharmadhikari,          learned          Senior<\/p>\n
     Advocate      assisted      by   other     Advocates            made       the<\/p>\n
     following submissions :\n<\/p>\n
                   (a)    Indenture dated 23.5.1996 registered<\/p>\n
     with the N.I.T. as lessor with appellants\/lessee in<\/p>\n
     schedule-A shows the user of plot as charitable Trust.\n<\/p>\n
     The Center Point Hospital that has been operating on<\/p>\n
     the ground floor in 32 rooms is on Leave and Licence<\/p>\n
     basis for limited period up to 2013 and running the<\/p>\n
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\n      ao26.11.odt                              11<\/span><\/p>\n
     said hospital is a part of the charitable purpose of<\/p>\n
     the    appellant\/Trust          and     therefore,           there        is      no<\/p>\n
     deviation whatsoever or breach of any condition.\n<\/p>\n
                    Development Control Regulations, 2000 and in<\/p>\n
     particular the Regulation ‘M'(7)(2) clearly covers the<\/p>\n
     said aspect and therefore, even as per Development<\/p>\n
     Control       Regulations     the     purpose,       namely        running        of<\/p>\n
     hospital etc. falls within the ambit of the public<\/p>\n
     purpose mentioned for which the plots were allotted to<\/p>\n
     the appellants\/Trust. There is no breach of conditions<\/p>\n
     to run Dharmashala and allied building for hospital<\/p>\n
     and charitable purpose which is the object of the<\/p>\n
     appellants\/Trust as well as the user at the time of<\/p>\n
     allotment.\n<\/p>\n
                    (b)        Dharmashala building as it stands<\/p>\n
     is    being     used    for    residence           of    the      passengers,<\/p>\n
     patients and their relatives visiting the Government<\/p>\n
     Medical       College   and   Hospital        on    concessional             rates<\/p>\n
     even now and there is no breach whatsoever in that<\/p>\n
     context.\n<\/p>\n
                    (c)        Two       show-cause-notices              issued        by<\/p>\n
     the respondents and the replies filed thereto in the<\/p>\n
     first place have not been properly considered by the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:16:10 :::<\/span>
\n      ao26.11.odt                              12<\/span><\/p>\n
     Board of Trustees of N.I.T. or by the Chairman of<\/p>\n
     N.I.T..       The        inspection     report        prepared          by      the<\/p>\n
     Divisional Officer (South) that has been relied upon<\/p>\n
     by the Board of Trustees as well as the Chairman of<\/p>\n
     the N.I.T. could not have been considered since the<\/p>\n
     inspections         were     made      behind      the       back       of      the<\/p>\n
     appellants and contained all untrue facts contrary to<\/p>\n
     the record of the N.I.T. itself. The fact that the<\/p>\n
     N.I.T.\n<\/p>\n
                   itself       had   charged         premium          for        extra<\/p>\n
     constructions for commercial purpose way back in the<\/p>\n
     year     1968    and       regularized    the       constructions              made<\/p>\n
     excess or for the ten shops which were utilized for<\/p>\n
     activity ancillary to the object of Dharmashala being<\/p>\n
     known    to     the      inspecting    officers        shows       total       non-\n<\/p>\n
     application         of    mind   and    without       looking         into      the<\/p>\n
     records of the N.I.T..\n<\/p>\n
                   (d)            32 rooms on the ground floor given<\/p>\n
     to the Center Point Hospital on Leave and Licence<\/p>\n
     basis at the rent of Rs.1,00,000\/- per month has not<\/p>\n
     caused any inconvenience to the passengers, relatives<\/p>\n
     or patients coming to the Government Medical College<\/p>\n
     and Hospital since other large number of rooms are<\/p>\n
     still vacant and are used by them at concessional<\/p>\n
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\n      ao26.11.odt                          13<\/span><\/p>\n
     rates. The eateries Shankar Bhojanalaya and Shankar<\/p>\n
     Ashram located at Ajni road side are serving the need<\/p>\n
     of the patients and their relatives and passengers<\/p>\n
     visiting the Government Medical College and Hospital<\/p>\n
     since long. The person by name Lalit Purohit is a<\/p>\n
     caretaker      of   Dharmashala    and     therefore,           cannot        be<\/p>\n
     called a tenant. Out of 115 rooms even now 83 rooms<\/p>\n
     are being used for Dharmashala.\n<\/p>\n
                   (e)         The Board of Trustees of N.I.T. in<\/p>\n
     its meeting dated 14.09.2010 decided to cancel the<\/p>\n
     allotment     of    the   suit   plots.     Perusal        of     the     said<\/p>\n
     resolution of the Board of Trustees will show that<\/p>\n
     Board which is the highest authority in the N.I.T. has<\/p>\n
     already taken a decision to cancel the allotment. The<\/p>\n
     impugned order passed by the Chairman of the Trust<\/p>\n
     thereafter was nothing but a farce inasmuch as the<\/p>\n
     Chairman of the Trust is duty bound to implement the<\/p>\n
     decision of the Board that was taken on 14.9.2010 and<\/p>\n
     thereafter the entire process of hearing and making<\/p>\n
     order is wrong which vitiates the order made by the<\/p>\n
     Chairman that is impugned in the civil suit. On this<\/p>\n
     count alone the said order becomes null and void and<\/p>\n
     therefore, a very strong prima facie case has been<\/p>\n
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\n      ao26.11.odt                              14<\/span><\/p>\n
     made out by the appellants for grant of temporary<\/p>\n
     injunction.\n<\/p>\n
                   (f)         Perusal of the resolution of the<\/p>\n
     Board and the order of N.I.T. show that what was not<\/p>\n
     stated in the show-cause-notice was considered in the<\/p>\n
     resolution and the order and therefore, the appellants<\/p>\n
     are put to great prejudice and therefore, the order of<\/p>\n
     the Chairman is clearly illegal.\n<\/p>\n
                   (g)         There is no allegation even by the<\/p>\n
     N.I.T. in the show-cause-notice or anywhere that the<\/p>\n
     money earned out of the Leave and Licence Agreement<\/p>\n
     was not being utilized for the purpose of Dharmashala<\/p>\n
     or for the charitable purpose for which plots were<\/p>\n
     given to the appellants.\n<\/p>\n
                   (h)         There     is    no     allegation           that      the\n\n\n\n\n\n     appellants\/Trustees        have     taken        away       the     money       for\n\n<\/pre>\n
     themselves. On the contrary, the said funds are being<\/p>\n
     utilized      for   the   maintenance            of      Dharmashala            and<\/p>\n
     therefore, there is nothing wrong, if the money is<\/p>\n
     utilized      for   meeting   the    expenses           required          by    the<\/p>\n
     Trust.\n<\/p>\n
                   (i)         None    of      the        covenants           in     the<\/p>\n
     allotment order or the lease-deed at all permit the<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:16:10 :::<\/span>
\n      ao26.11.odt                          15<\/span><\/p>\n
     N.I.T. to forfeit the lease and make re-entry on the<\/p>\n
     property.\n<\/p>\n
                   (j)      The    Board       and    the     Chairman          have\n\n     adjudicated about alleged breaches.                The N.I.T. cannot\n\n\n\n\n                                              \n<\/pre>\n
     be a judge in its own cause by making adjudication<\/p>\n
     that    the    appellants    have    violated          the      terms       and<\/p>\n
     conditions of the covenants of the lease or terms and<\/p>\n
     conditions in the allotment order of plot originally<\/p>\n
     made. Neither the N.I.T. nor the Chairman can make an<\/p>\n
     order to march and take possession of the plots from<\/p>\n
     the appellants, particularly when there is a stout<\/p>\n
     denial by the appellants about any breach of the terms<\/p>\n
     and conditions on their part.             It is well settled law<\/p>\n
     that a lessor (N.I.T.) if wants eviction of its lessee<\/p>\n
     has to approach the appropriate Court in appropriate<\/p>\n
     proceedings in the nature of suit or otherwise for<\/p>\n
     claiming      possession     or     for     making         re-entry           or<\/p>\n
     forfeiture of the lease.             But it cannot barge its<\/p>\n
     entry and take possession.\n<\/p>\n
                   (k)      The fact that the N.I.T. has given<\/p>\n
     only 30 days period contrary to the 90 days period<\/p>\n
     required to be given shows mala fide intention on the<\/p>\n
     part of the N.I.T. at the instance of one of its<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 17:16:10 :::<\/span>
\n      ao26.11.odt                                   16<\/span><\/p>\n
     Trustees,       who        is    Corporator,         instrumental             in     the<\/p>\n
     entire operation of attempting to evict the appellants<\/p>\n
     without due course of law.\n<\/p>\n
                    (l)              There    is    no     provision          under       the\n\n\n\n\n                                                       \n     N.I.T.        Act    or     other       Regulations            or      the      Nagpur\n\n<\/pre>\n
     Improvement Trust Land disposal Rules, 1983 to make<\/p>\n
     re-entry and take possession of the plots in question.\n<\/p>\n
     There is no power in the N.I.T. – lessor to force its<\/p>\n
     entry    and
\n                      ig take    possession        in      the      absence        of     any<\/p>\n
     adjudication          by        the    competent         civil        Court.         The<\/p>\n
     impugned        order,           however,          speaks         about         taking<\/p>\n
     possession within 30 days which is wholly illegal.\n<\/p>\n
     There     is    no     power          under    any      of      the      terms       and<\/p>\n
     conditions of the lease or the covenants in the matter<\/p>\n
     of allotment of plots, permitting the N.I.T. – lessor<\/p>\n
     to take possession.\n<\/p>\n
                    (m)              Section       118     of     the      Transfer         of<\/p>\n
     Property Act provides for the entitlement of lessee to<\/p>\n
     assign and therefore, no fault can be found out with<\/p>\n
     the appellants\/Trust if it has leased some portion of<\/p>\n
     the building for the Center Point Hospital. Section<\/p>\n
     52 of the Easement Act entitles the lessee to give<\/p>\n
     licence.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 17:16:10 :::<\/span>
\n      ao26.11.odt                           17<\/span><\/p>\n
                   (n)          Bar of Section 114 and 115 of the<\/p>\n
     N.I.T. Act does not apply in the instant case since<\/p>\n
     none of the acts of the Board of Trustees and the<\/p>\n
     Chairman of N.I.T. fall within the protection under<\/p>\n
     Section 114 and 115 of the N.I.T. Act.\n<\/p>\n
                   (o)          At any rate, whatever the alleged<\/p>\n
     extra constructions have been made on the suit plot<\/p>\n
     the revised plans have been submitted to the competent<\/p>\n
     planning authority i.e. N.M.C. under the Maharashtra<\/p>\n
     Regional & Town Planning Act, 1966.                 There is enabling<\/p>\n
     provision in favour of the appellants to apply for<\/p>\n
     regularization       of    constructions        made      in     excess        or<\/p>\n
     without prior sanction. The appellants are certainly<\/p>\n
     entitled to take advantage of those provisions and<\/p>\n
     that    is    why   they   have    applied       by     submitting           the<\/p>\n
     revised plans for sanction.                 But again with clear<\/p>\n
     mala fide intentions, the N.I.T. raised objection with<\/p>\n
     N.M.C. not to sanction the said revised plans.\n<\/p>\n
                   (p)          The trial Court committed an error<\/p>\n
     in rejecting an application (Exh.5) ignoring the fact<\/p>\n
     that    all   the   disputed      questions       of     facts       and     law<\/p>\n
     raised by the appellants were required to be decided<\/p>\n
     on evidence and till then the status quo was required<\/p>\n
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\n      ao26.11.odt                               18<\/span><\/p>\n
     to be maintained during the pendency of the suit. The<\/p>\n
     impugned order passed by the Civil court is illegal<\/p>\n
     and therefore, it is necessary to direct the parties<\/p>\n
     to maintain status quo till the decision of the suit.\n<\/p>\n
                    Learned Counsel for the appellants cited the<\/p>\n
     following decisions.\n<\/p>\n
                    (i) Express Newspapers Pvt. Ltd. v. Union of<\/p>\n
     India<\/a> (1986 (1) SCC 133).\n<\/p>\n
                    (ii) State      of   U.P.       &   others        v.     Maharaja<\/p>\n
     Dharmander Prasad Singh (AIR<\/a> 1989 SC 997).\n<\/p>\n
                    (iii)    M\/s.   Raptakos        Brett       &    Co.      Ltd.      v.\n<\/p>\n
     Ganesh Property (AIR 1998 SC 3085).\n<\/p>\n
                    (iv) N. Umapathy v. B.V. Muniyappa<\/a> (1997 (9)<\/p>\n
     SCC 247).\n<\/p>\n
                    (v) Dinesh Mathur v. O.P. Arora<\/a> (1997 (10)<\/p>\n
     SCC 520).\n<\/p>\n
                    (vi) Raghuram        Rao   and       others       v.     Eric       P.\n<\/p>\n
     Mathias and others (AIR 2002 SC 797).\n<\/p>\n
                    (vii) The Poona City Municipal Corporation<\/p>\n
     v. Dattatraya Nagesh Deodhar<\/a> (1965 Supreme Court 555).\n<\/p>\n
                    (viii)      Pune     Municipal            Corporation             and<\/p>\n
     another       v.   Mohan   Shrikrishna         Assava        (1992       (3)     BCR<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:16:10 :::<\/span>
\n      ao26.11.odt                               19<\/span><\/p>\n
     540).\n<\/p>\n
                    (ix) Vasant         Ambadas         Pandit          v.       Bombay\n\n\n\n\n                                                    \n     Municipal          Corporation    and    others        (AIR<\/a>      1981       Bombay\n\n     394).\n\n\n\n\n                                                   \n                    (x)    Girish Manohar Wazalwar v. Purshottam\n\n<\/pre>\n
     Parasram Kotangale (1996 (1) Mh.L.J. 673).\n<\/p>\n
                    (xi) P.C.         Raja    Ratnam           Institution              v.\n<\/p>\n
     Municipal Corporation of Delhi (AIR 1990 Supreme Court<\/p>\n
     816).\n<\/p>\n
                    (xii)     Jamshetjee       Jeejeebhoy             Baronet         and<\/p>\n
     others v. State of Maharashtra<\/a> (2004(5) Bom.C.R. 40).\n<\/p>\n
                    (xiii)     Pragati       Mahila       Mandal,         Nanded        v.\n<\/p>\n
     Municipal Council, Nanded (2011 (3) S.C.C. 464).\n<\/p>\n
                    (xiv) ORYX Fisheries Pvt. Ltd. v. Union of<\/p>\n
     India and others (Civil Appeal No. of<\/a> 2010 (Arising<\/p>\n
     out of Special Leave Petition (C) No.27615\/08).\n<\/p>\n
                    (xv) Shri Tejpal Singh Arora v. The State of<\/p>\n
     Maharashtra and others(W.P. No.3806\/2002).\n<\/p>\n
                    (xvi)      Secretary,           Teliparamba              Education<\/p>\n
     Society       v.    Moothedath     Mallisseri Illath               M.N.<\/a>      (1997<\/p>\n
     DGLS (Soft.) 382).\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:16:10 :::<\/span>
\n      ao26.11.odt                                  20<\/span><\/p>\n
     SUBMISSIONS MADE ON BEHALF OF THE RESPONDENTS :\n<\/p>\n
     10.             Shri S.K. Mishra, learned Counsel for the<\/p>\n
     respondents made the following submissions.\n<\/p>\n
                     (i)           The     memorandum            dated         22.8.1953\n\n     about         allotment       of     site     for         Dharmashala              near\n\n<\/pre>\n
     Government Medical College and Hospital shows that the<\/p>\n
     plot shall be used for Dharmashala and for no other<\/p>\n
     purpose. Any diversion will entail the forfeiture of<\/p>\n
     lease and resumption of the land. For any breach, the<\/p>\n
     N.I.T. will be entitled to re-enter the land and the<\/p>\n
     lessee         will    be      entitled           to     remove         only        the<\/p>\n
     superstructure.            These     terms    and       conditions           in     the<\/p>\n
     original memorandum aforesaid clearly provide for the<\/p>\n
     purpose        for    which    allotment          was    made.       In     case      of<\/p>\n
     diversion of purpose or breach of terms and conditions<\/p>\n
     power    to     forfeit       the    lease        and    re-enter         and     take<\/p>\n
     possession is clearly spelt out.\n<\/p>\n
                     (ii)          There     is        no     dispute          that      the<\/p>\n
     allotment of plots were made to the appellants only<\/p>\n
     for    construction           of    Dharmashala         and      for      providing<\/p>\n
     conveniences          to   the     passengers,          patients        and      their<\/p>\n
     relatives visiting the Government Medical College and<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:16:10 :::<\/span>
\n      ao26.11.odt                              21<\/span><\/p>\n
     Hospital and not for visiting any other hospital much<\/p>\n
     less private hospital. In the wake of the admitted<\/p>\n
     position that 32 rooms on the ground floor have been<\/p>\n
     given on Leave and Licence to a private Company which<\/p>\n
     runs a hospital and the rooms meant for Dharmashala<\/p>\n
     are   being     utilized    for     admitting          the     patients         and<\/p>\n
     treating them and charging them for the room services<\/p>\n
     without prior sanction of N.I.T., is clearly contrary<\/p>\n
     to the memorandum of allotment of plots originally<\/p>\n
     made and lease-deed that was registered in the year<\/p>\n
     1996 and these breaches clearly violate the terms and<\/p>\n
     conditions of the allotment of plots.\n<\/p>\n
                   (iii)        The submission made by the learned<\/p>\n
     Counsel       for    the   appellants         about       want       of      prior<\/p>\n
     permission from N.I.T. and extra constructions made in<\/p>\n
     the premises for the alleged charitable purpose is<\/p>\n
     wholly misconceived because the terms and conditions<\/p>\n
     of the allotment and the lease-deed do not permit any<\/p>\n
     such use.\n<\/p>\n
                   (iv)         The attempt of the appellants to\n\n     rely upon regulation          No.    M    (7) (2) is misconceived\n\n<\/pre>\n
     because the Development Control Regulations have been<\/p>\n
     framed in the year 2000 and the appellants cannot talk<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:16:10 :::<\/span>
\n      ao26.11.odt                               22<\/span><\/p>\n
     about these regulations when they are governed by the<\/p>\n
     terms and conditions in the original allotment order<\/p>\n
     and   the     lease-deed.         There   is     no    dispute         that      the<\/p>\n
     appellants have not obtained any permission from the<\/p>\n
     N.I.T. for deviating the object for which the plots<\/p>\n
     were given.\n<\/p>\n
                    (v)          Show-cause-notices               given        by     the<\/p>\n
     N.I.T. and the Board resolution passed on 14.9.2010 by<\/p>\n
     the N.I.T. so also the order made by the Chairman<\/p>\n
     which is a subject matter of the suit are inconsonance<\/p>\n
     with the principles of natural justice. There is no<\/p>\n
     dispute       that   the    appellants        through        their      Advocate<\/p>\n
     were heard by both the parties before the order was<\/p>\n
     made. The Chairman of the N.I.T. has independently<\/p>\n
     heard the appellants, examined all the documents and<\/p>\n
     thereafter       has       come     to    a     conclusion            that       the<\/p>\n
     appellants have committed several breaches of terms<\/p>\n
     and conditions and deviated the object for which the<\/p>\n
     plots were given only for reaping the benefits by<\/p>\n
     commercial exploitation of the property. By simpling<\/p>\n
     pointing out some from the several omissions in the<\/p>\n
     show-cause-notices or in the orders in substance the<\/p>\n
     appellants cannot get away with the fact that there<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                    23<\/span><\/p>\n
     are    substantial         and     major       violations            made      by     the<\/p>\n
     appellants and the very object of providing shelter to<\/p>\n
     the passengers has been completely wiped out.\n<\/p>\n
                    (vi)           Most        of        the        facts          in      the<\/p>\n
     inspection report of the Divisional Officer (South)<\/p>\n
     and    the     observations          in    the        orders         made      by     the<\/p>\n
     Chairman and breaches stated by the N.I.T. have gone<\/p>\n
     undisputed       by     the      appellants          and      rather        there       is<\/p>\n
     confirmation
\n                      ig   of   such    violations             by     the      appellants<\/p>\n
     themselves when they submitted a revised plan to the<\/p>\n
     N.M.C.        praying      for    regularization               of     the      illegal<\/p>\n
     constructions made without prior permission that too<\/p>\n
     of the N.I.T. who is the original landlord. In the<\/p>\n
     wake of this position about admitted facts there is a<\/p>\n
     strong material to come to a prima facie conclusion<\/p>\n
     that the appellants have clearly breached the terms<\/p>\n
     and conditions of allotment and the lease-deed so also<\/p>\n
     the law in force. The trial Court has rightly rejected<\/p>\n
     the application since the Court is not supposed to<\/p>\n
     protect the violators of law, the appellants in the<\/p>\n
     present case.\n<\/p>\n
                    (vii)          Learned          Counsel         for      the        N.I.T.\n<\/p>\n
     invited my attention to the provisions of the Nagpur<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                             24<\/span><\/p>\n
     Improvement Trust Land Disposal Rules, 1983 and in<\/p>\n
     particular Section 55 of the N.I.T. Act and Rules 12,<\/p>\n
     15, 25 of the Rules. He also invited my attention to<\/p>\n
     the    various    terms     and    conditions          in     the     original<\/p>\n
     allotment order and the lease-deed and the relevant<\/p>\n
     regulations with which reference will be made.\n<\/p>\n
                   According     to    the   learned        Counsel         for     the<\/p>\n
     N.I.T. there is bar under Sections 114 and 115 of the<\/p>\n
     N.I.T. Act which directly comes in the way of the<\/p>\n
     appellants       and    therefore,       if       the       suit       is      not<\/p>\n
     maintainable due to the said bar, the Court could not<\/p>\n
     have issued any temporary injunction.\n<\/p>\n
                   (viii)        The public purpose cannot be put<\/p>\n
     to frustration by asking the N.I.T. to again go to<\/p>\n
     civil Court as suggested by the appellants and get a<\/p>\n
     decision after number of years, which would certainly<\/p>\n
     cause    direct      loss   to    the   public       at     large      and     the<\/p>\n
     N.I.T..\n<\/p>\n
                   (ix)          In the instant case, the breaches<\/p>\n
     have been proved by the N.I.T. by various evidences<\/p>\n
     placed before the trial Court as well as this Court<\/p>\n
     including      the     photographs      which        are      admitted         and<\/p>\n
     therefore, the submission made by the learned Counsel<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                 25<\/span><\/p>\n
     for the appellants that there are serious disputes<\/p>\n
     about the violations and breaches of conditions is<\/p>\n
     wholly incorrect and in that view of the matter, it<\/p>\n
     cannot        be   said   that      those        alleged          questions        are<\/p>\n
     required to be decided by the civil Court. Admission<\/p>\n
     is the best piece of evidence and in the instant case<\/p>\n
     there     are      admissions       in    the      form       of     documentary<\/p>\n
     evidence       and    that    documentary           evidence          is    not      in<\/p>\n
     dispute. Therefore, as per the terms and conditions<\/p>\n
     when there is breach of terms and conditions, the<\/p>\n
     N.I.T. gets right under the terms and conditions of<\/p>\n
     the   original       allotment       order,        its     regulations,            the<\/p>\n
     Land Disposal Rules and enabling power under N.I.T.\n<\/p>\n
     Act as authority under law, to take possession by<\/p>\n
     giving appropriate notice in accordance with law.\n<\/p>\n
                    He relied on the following decisions.\n<\/p>\n
                    (i)    Akbar      Karimuddin            Malik         v.       Nagpur\n\n     Improvement          Trust    and        another,          (Civil          Revision\n\n\n\n\n\n<\/pre>\n
     Application No.937\/1993, decided on 25.09.1995).\n<\/p>\n
                    (ii) State      of    Tamil         Nadu       &    Anr.       v.     P.\n<\/p>\n
     Krishnamurthy & Ors. (AIR 2006 Supreme Court 1622).\n<\/p>\n
                    (iii) Abdul Jabbar s\/o Haji Mohammed Ibrahim<\/p>\n
     v. The Chairman, Nagpur Improvement Trust, Nagpur and<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                        26<\/span><\/p>\n
     another       (Civil   Revision    Application            No.345\/1993,<\/p>\n
     decided on 2.4.1993).\n<\/p>\n
                   (iv) State    of     T.N.        and        another           v.\n<\/p>\n
     P.Krishnamurthy and others (2006 (4) SCC 517).\n<\/p>\n
                   (v)   Tukaram Laxman since deceased by his<\/p>\n
     legal representatives & others v. Sk. Ameer s\/o Sk.\n<\/p>\n
     Osman & others (1983 (1) Bom. C.R. 17).\n<\/p>\n
                   (vi) Rizwana Nizamuddin Shaikh v. Additional<\/p>\n
     Collector & others<\/a> (2004 (Supp.2) Bom. C.R. 308).\n<\/p>\n
                   (vii) Saraswati Dalmia & others v. Collector<\/p>\n
     of Bombay & others<\/a> (2005 (1) Bom. C.R. 686).\n<\/p>\n
                   (viii)   Raosaheb   Anand     Shinde       v.     State       of<\/p>\n
     Maharashtra<\/a> (2006 (1) Bom.C.R. 756).\n<\/p>\n
     CONSIDERATION :\n<\/p>\n
     11.           Nagpur was the capital of central provinces.\n<\/p>\n
     In 1947 the Government planned and erected a medical<\/p>\n
     college and hospital for providing medical facility<\/p>\n
     for the populace in a very big area under the central<\/p>\n
     provinces i.e. the entire Vidarbha region and some<\/p>\n
     area from Madhya Pradesh. The obvious reason was to<\/p>\n
     cater to the need of all classes of people at that<\/p>\n
     time due to paucity of medical facility. However, as<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                            27<\/span><\/p>\n
     the time passed, private clinics, hospitals came to be<\/p>\n
     established slowly and slowly in the entire region and<\/p>\n
     now    for     the   last   about    20     years      this       Government<\/p>\n
     Medical College and Hospital is of immense use to<\/p>\n
     middle class, lower class and poor people. To put it<\/p>\n
     other way, the people, who can afford to have the<\/p>\n
     medical        facilities    elsewhere        ceased         to      rush       to<\/p>\n
     Government       Medical    College.      The     Government           Medical<\/p>\n
     College, Nagpur has earned a name and reputation in<\/p>\n
     the country and abroad.             The doctors produced by this<\/p>\n
     college are serving worldwide.              However, in the recent<\/p>\n
     past, this medical college and hospital was neglected,<\/p>\n
     with     the     result     the    beneficiaries           were        put      to<\/p>\n
     innumerable inconveniences.            It is a matter of record<\/p>\n
     that after Public Interest Litigations were filed in<\/p>\n
     this Court and as a result, the medical college and<\/p>\n
     hospital has been saved to some extent from utter<\/p>\n
     neglect. There has been substantial increase in the<\/p>\n
     number of private hospitals in the city of Nagpur.\n<\/p>\n
     But the cost incurred in these private hospitals is<\/p>\n
     beyond the capacity of a common man.                         The trend to<\/p>\n
     recover as much money as possible from the patients is<\/p>\n
     a   matter      of   a   serious    concern.       Added       to     it,     big<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                            28<\/span><\/p>\n
     private hospitals\/companies with only profit making<\/p>\n
     motive have also started their operations where poor<\/p>\n
     has no place.\n<\/p>\n
     12.           It would not be wrong to say that there have<\/p>\n
     been regular attempts successfully and unsuccessfully<\/p>\n
     by the vested interests to paralyze the facilities in<\/p>\n
     Government      Medical      College    like        M.R.I.,         C.T.Scan,<\/p>\n
     Ultra-Sound,        Dimensional     Echo      cardiography,              Colour<\/p>\n
     Doppler, Pathology, Biochemistry, by use of direct and<\/p>\n
     indirect methods, thereby patients being compelled to<\/p>\n
     get medical reports of these facilities from private<\/p>\n
     clinics       and   hospitals     of    course          on      payment         of<\/p>\n
     unaffordable higher costs.\n<\/p>\n
     13.           The main sufferer in the process is the poor<\/p>\n
     patient who is required to shell out money from his<\/p>\n
     pocket, even by selling his possessions for making<\/p>\n
     payments,      which    otherwise      he    would       not      have      been<\/p>\n
     required to pay in the Government Medical College and<\/p>\n
     Hospital. Similar is the case with the arrangement for<\/p>\n
     stay of patients and those who accompany the patients.\n<\/p>\n
     The poor patients cannot afford to pay for staying at<\/p>\n
     a     place    nearer   to    Government         Medical          College         &<\/p>\n
     Hospital.       When the medical college was started, the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                              29<\/span><\/p>\n
     problem about stay of patients and their relatives was<\/p>\n
     given a thought.          At that time in the year 1952, Rai<\/p>\n
     Bahaddur       Seth   Shriram      Daluramji         of    Tumsar        with       a<\/p>\n
     philanthropic object in his mind to provide a shelter<\/p>\n
     to   the      patients    and    their    relatives            visiting         the<\/p>\n
     Government Medical College and Hospital from all over<\/p>\n
     the central provinces set up a sum of Rs.51,000\/-. He<\/p>\n
     made    a     request     to    Nagpur        Improvement            Trust      for<\/p>\n
     allotment of land exactly opposite to the site of<\/p>\n
     medical       college     for    construction             of    Dharmashala.\n<\/p>\n
     Thereafter,           Trust      was      formed               and       various<\/p>\n
     memorandums\/letters were issued vide dated 21.1.1953,<\/p>\n
     21.8.1953, 31.10.1953 and 7.9.1954. Finally, the area<\/p>\n
     of 49870 sq. ft. was allotted to the Trust out of<\/p>\n
     which 3000 sq. ft. area was allowed for construction<\/p>\n
     of shops as an integral part of Dharmashala and thus<\/p>\n
     for Dharmashala the area allotted was 46870 sq. ft..\n<\/p>\n
     Thereafter, some events like additional construction;\n<\/p>\n
     regularization           thereof       took      place.          The       Nagpur<\/p>\n
     Improvement Trust also realized that for achieving the<\/p>\n
     object of setting up Dharmashala and providing more<\/p>\n
     facilities, additional land would be required by the<\/p>\n
     appellant-Trust          and    therefore,        under        letter        dated<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                     30<\/span><\/p>\n
     29.1.1958        the     Board       of     Nagpur          Improvement               Trust<\/p>\n
     sanctioned 13000 sq. ft. of land                                in addition for<\/p>\n
     Dharmashala specifically indicating therein that two<\/p>\n
     plots shall be treated as one unit. It was also stated<\/p>\n
     that the said additional land was meant for providing<\/p>\n
     kitchen        blocks,      garages        and        conveniences            for       the<\/p>\n
     public intending to use the facilities in the medical<\/p>\n
     college        and     Dharmashala.             Thereafter           on      19.6.1968<\/p>\n
     another latter was issued by Nagpur Improvement Trust<\/p>\n
     in     supersession             of        letter            dated          14.11.1963<\/p>\n
     regularizing the excess construction of 4426 sq.ft.\n<\/p>\n
     that was made without permission of Nagpur Improvement<\/p>\n
     Trust upon additional payment of premium etc.<\/p>\n
     14.            It     appears      that     on        20.4.1959           the     Nagpur<\/p>\n
     Improvement Trust issued a show-cause-notice to the<\/p>\n
     appellant       as     to    why     the    allotment             should         not     be<\/p>\n
     cancelled as the appellant was using the land for the<\/p>\n
     purpose       other     than     Dharmashala              since       according          to<\/p>\n
     Nagpur        Improvement       Trust       the        first        floor        of     the<\/p>\n
     building        was    let     out        for        residential           and        other<\/p>\n
     purposes. It was followed by another show-cause-notice<\/p>\n
     dated 18.1.1960 stating therein that second floor of<\/p>\n
     the building was being used for residential and other<\/p>\n
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\n      ao26.11.odt                              31<\/span><\/p>\n
     purposes       and    hotel      adjacent        to      Dharmashala            and<\/p>\n
     therefore,      why    allotment        should      not       be    cancelled.\n<\/p>\n
     Third     show-cause-notice          was       issued          on     11.2.1961<\/p>\n
     mentioning therein that the rooms on the ground floor<\/p>\n
     in the Dharmashala were let out and also on the other<\/p>\n
     floors, contrary to the use of Dharmashala. It appears<\/p>\n
     that    thereafter     there      was    a    complete         silence         till<\/p>\n
     18.11.2009      when    the      Divisional         Officer         of     Nagpur<\/p>\n
     Improvement Trust made a report that huge unauthorized<\/p>\n
     constructions were made on the ground floor and 32<\/p>\n
     rooms of Dharmashala on the ground floor were leased<\/p>\n
     out for a private hospital. It is also stated in the<\/p>\n
     report that ten shops were utilized for commercial<\/p>\n
     purpose and at Ajni road Shankar Ashram Shala and<\/p>\n
     Shankar       Bhojanalaya     were       running         as     full-fledged<\/p>\n
     restaurants with full commercial and profiteering in<\/p>\n
     contravention for the use of Dharmashala and further<\/p>\n
     that one Lalit Shankar Purohit has been given some<\/p>\n
     rooms of Dharmashala for his permanent residence.\n<\/p>\n
     15.           Preliminary          objection              as          to        the<\/p>\n
     maintainability of suit :\n<\/p>\n
                   It is an admitted position that though the<\/p>\n
     respondents      raised     an    objection         that       suit      was    not<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                32<\/span><\/p>\n
     maintainable due to bar of Section 114 and Section 115<\/p>\n
     of the N.I.T. Act in the written statement, they did<\/p>\n
     not file any application under Section 9-A of the Code<\/p>\n
     of Civil Procedure nor sought framing of preliminary<\/p>\n
     issue before the lower Court.                    Therefore, this Court<\/p>\n
     does    not        want   to     deal   with     the      said      preliminary<\/p>\n
     objections in this appeal and proceeds to determine<\/p>\n
     the appeal on its own merits.\n<\/p>\n
                    Before going into the various submissions on<\/p>\n
     facts and evidence in this case, it is necessary to<\/p>\n
     consider submissions made by learned Senior Advocate<\/p>\n
     Shri Dharmadhikari based on various decisions of the<\/p>\n
     Supreme Court right from Express Newspapers Pvt. Ltd.\n<\/p>\n
     and others v. Union of India and others, reported in<\/p>\n
     1986 (1) Supreme Court Cases 133 till                           Dinesh Mathur<\/p>\n
     v. O.P. Arora,<\/a> reported in 1997 (10) SCC 520 on the<\/p>\n
     following proposition of law.\n<\/p>\n
                        Respondent-N.I.T.           cannot      adjudicate            that<\/p>\n
     the appellants have violated the terms and conditions<\/p>\n
     of     the         original       allotment         order,          lease-deed,<\/p>\n
     regulations and the provisions of the N.I.T. Act as it<\/p>\n
     is a lessor and the only course left open to the<\/p>\n
     N.I.T.        is    to    file    a     suit    for      eviction          of     the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                            33<\/span><\/p>\n
     appellants from the suit plot and get the adjudication<\/p>\n
     done from the civil Court, which could be done only by<\/p>\n
     tendering oral as well as documentary evidence and<\/p>\n
     therefore,         the   order   of   temporary           injunction            to<\/p>\n
     maintain status quo pending decision of the suit on<\/p>\n
     merits finally is essential.\n<\/p>\n
     16.            At the outset, this Court finds upon careful<\/p>\n
     reading       of   the   aforesaid    decisions         cited       that      the<\/p>\n
     action to evict the lessees in those cases by the<\/p>\n
     lessor was the subject matter of challenge before the<\/p>\n
     Supreme Court and in some cases before the High Court<\/p>\n
     in their writ jurisdiction. It is in the context of<\/p>\n
     the   said     jurisdiction,     it    was      held      that      the     only<\/p>\n
     remedy that could be available was that a competent<\/p>\n
     civil Court would adjudicate upon the dispute between<\/p>\n
     the parties and decide the questions arising in the<\/p>\n
     matter and the lessor does not have right to cancel<\/p>\n
     the lease and march with a view to take possession of<\/p>\n
     the properties by force as the same would be destructive<\/p>\n
     of rule of law. To put it other way, in all those<\/p>\n
     decisions, the Apex Court prohibited the lessor from<\/p>\n
     adjudicating on the issues arising in the matter of<\/p>\n
     process of forfeiture of lease, re-entry and marching<\/p>\n
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\n      ao26.11.odt                  34<\/span><\/p>\n
     to take possession. In my opinion and with due respect<\/p>\n
     to the law laid down in the aforesaid decisions, there<\/p>\n
     can absolutely be no quarrel with the said proposition<\/p>\n
     of law but there is a very important distinguishing<\/p>\n
     feature, namely that in all the aforesaid decisions<\/p>\n
     the proceedings were not before the civil Court but<\/p>\n
     the proceedings were before the higher Courts in their<\/p>\n
     respective writ jurisdictions. In the instant case the<\/p>\n
     proceedings have been instituted in the civil Court by<\/p>\n
     way of a suit and the respondent-N.I.T. has joined the<\/p>\n
     issue in the suit and the civil Court will frame the<\/p>\n
     issues on the questions of facts and evidence and<\/p>\n
     decide them in accordance with law. In the civil Court<\/p>\n
     where the suit has been filed and is being contested,<\/p>\n
     it will decide whether the appellants are entitled to<\/p>\n
     protect their possession over the suit property after<\/p>\n
     deciding the issues on merits upon recording evidence<\/p>\n
     and the rights and powers of the N.I.T.. To sum up, I<\/p>\n
     hold that the law laid down in the aforesaid decisions<\/p>\n
     cannot be intended to mean that the N.I.T. must file<\/p>\n
     suit for eviction, get adjudicated about the breaches<\/p>\n
     alleged and then seek a decree for eviction. That is<\/p>\n
     not necessary because the suit in question is already<\/p>\n
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\n      ao26.11.odt                             35<\/span><\/p>\n
     before the civil Court wherein it will decide all the<\/p>\n
     issues whether there are violations or not, whether<\/p>\n
     actions of N.I.T. are valid or not, including the<\/p>\n
     issue about the protection to be given, if any, to the<\/p>\n
     appellants. The Court will also decide whether the<\/p>\n
     appellants are entitled to permanent injunction or not<\/p>\n
     so also the declarations which have been claimed by<\/p>\n
     the    appellants      in   the   suit.      Consequently,             all     the<\/p>\n
     submissions criticizing the Board resolution\/order of<\/p>\n
     Chairman of N.I.T. or the adjudication by N.I.T. as<\/p>\n
      Judge in its own cause           do not need to be addressed.\n<\/p>\n
     17.            To    repeat,   since    the      aforesaid           composite<\/p>\n
     suit     has    been     filed    for     declaration,               permanent<\/p>\n
     injunction and so on and so forth by the appellants<\/p>\n
     for adjudication, there is no question of N.I.T. being<\/p>\n
     the    Judge in its own cause . But since they have also<\/p>\n
     filed an application for grant of temporary injunction<\/p>\n
     (Exh.5)       claiming      temporary     injunction             during        the<\/p>\n
     pendency of the suit, it is for the appellants to<\/p>\n
     establish the following three legal requirements.\n<\/p>\n
                    (a)    prima facie case.\n\n                    (b)    balance of convenience.\n\n                    (c)    irreparable injury i.e. the plaintiffs\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 17:16:11 :::<\/span>\n      ao26.11.odt                             36<\/span>\n\n\n\n\n                                                                           \n<\/pre>\n
     can not be compensated by adequate damages.\n<\/p>\n
     18.           The trial court has rejected the application<\/p>\n
     (Exh.5) by giving reasons. It becomes necessary for<\/p>\n
     this Court therefore to examine whether the appellants<\/p>\n
     satisfy       all   the   above   requirements              for      grant       of<\/p>\n
     temporary injunction pending decision of a suit.                               This<\/p>\n
     Court, therefore, proceeds to determine the same.\n<\/p>\n
     19.           Memorandum No.ES\/22378 dated 22.8.1953 was<\/p>\n
     issued by the N.I.T. regarding allotment of site for<\/p>\n
     Dharmashala near medical college. It contains in all<\/p>\n
     nine clauses, out of which I quote clause Nos.2 to 5<\/p>\n
     hereunder.\n<\/p>\n
                          2.   That    the   plot        shall       be     used<\/p>\n
           for construction of a Dharma Shala for the
\n           use      of   public   in     general,           and       purpose
\n           ancillary thereto and for no other purpose.\n<\/p>\n
                         3.    That,    there          should          be      no
\n           diversion of the purpose for which land is
\n           proposed to be allotted. Any diversion will
\n           entail forfeiture of the lease and resumption<\/p>\n
           of the land.\n<\/p>\n
                         4.    That the land proposed to be
\n           allotted will not be transferred except to
\n           another Public Trust and with the previous
\n           approval of the Board of Trustees.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                   37<\/span><\/p>\n
                           5.      For any breach of any of the
\n            conditions            specified         above           and        those<\/p>\n
            mentioned        in    the   above      deed        that       will      be
\n            executed, the Nagpur Improvement Trust will
\n            be entitled to re-enter the land, the lease<\/p>\n
            being         only      entitled             to       remove           the
\n            superstructures.\n<\/p>\n
     20.             Perusal of the above clauses show that the<\/p>\n
     plot     allotted ig      shall     be   used        for      construction             of<\/p>\n
     Dharmashala for the use of public in general and for<\/p>\n
     no other purpose. That there shall be no diversion of<\/p>\n
     the purpose and any diversion will entail forfeiture<\/p>\n
     of the lease and resumption of the land. That for any<\/p>\n
     breach of the conditions the N.I.T. will be entitled<\/p>\n
     to re-enter the land, the lessee only being entitled<\/p>\n
     to remove the superstructures. These conditions were<\/p>\n
     accepted by the appellants. These conditions clearly<\/p>\n
     provide that in case of any diversion, there shall be<\/p>\n
     forfeiture of lease and resumption of the land and the<\/p>\n
     N.I.T.        will   be     entitled     to        re-enter        the     land.       By<\/p>\n
     memorandum dated 24.2.1955, the appellants were asked<\/p>\n
     to     take      additional          land      on        lease         admeasuring<\/p>\n
     13,000 sq. ft. again for the purpose of Dharmashala<\/p>\n
     only     but     with      some     premium         which       the      appellants<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                             38<\/span><\/p>\n
     accepted and paid the amounts. On 29.1.1958 another<\/p>\n
     memorandum was issued, wherein it was reiterated that<\/p>\n
     the additional land allotted was reserved for public<\/p>\n
     institution    for     construction          of    kitchen        blocks       and<\/p>\n
     garages for providing more convenience to the people<\/p>\n
     and the additional plot and the earlier plot shall be<\/p>\n
     treated as one unit. By memorandum dated 14.11.1963<\/p>\n
     excess consideration of about 4462 sq. ft. that too<\/p>\n
     under<\/p>\n
               commercial    use      made    by       the     appellants           was<\/p>\n
     regularized    upon     charging        additional          premium         since<\/p>\n
     that was without sanction of N.I.T.. On 23.5.1996 the<\/p>\n
     lease-deed was executed between the parties and was<\/p>\n
     got     registered.        The    following           clauses          of      the<\/p>\n
     lease-deed are relevant.\n<\/p>\n
                            (i-1)      The        lessee       shall        not
\n              disturb, or build over, or otherwise deal<\/p>\n
              or interfere with any of the service lines
\n              referred to in sub-clause (h-1) without the
\n              previous    permission         in        writing       of     the
\n              authority which laid the service line.\n<\/p>\n
                   (j)    The     lessee      shall          not       assign
\n              transfer or part-with the possession of the
\n              demised     premises      so    as        to     cause        any
\n              division therein or otherwise to alter the
\n              nature of this present demise.\n<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                   39<\/span><\/p>\n
                   Provided, however, that the lessor may
\n              subject to such terms and conditions as it<\/p>\n
              may fix, grant permission to the lessee to
\n              assign transfer or to part with possession
\n              of the demised premises so as to cause any<\/p>\n
              sub-division therein or otherwise alter the
\n              nature of this present demise.\n<\/p>\n
                   (k)    The lessee shall not without the\n              previous     permission           in        writing          of     the\n\n\n\n\n                                       \n              lessor,     use      or    allow          to      be     used       the\n                   \n              premises\n              contravention\n                              of\n                                   of\n                                        the\n                                             the\n                                                    demised\n                                                        regulation\n                                                                       land\n                                                                             framed\n                                                                                    in\n\n\n<\/pre>\n
              under section 90 of the Nagpur Improvement<\/p>\n
              Trust    Act,     1936     and        Development            Control
\n              Rules.\n<\/p>\n
                   (l)    The lessee as also the assignee<\/p>\n
              and the mortgagee shall within one month of<\/p>\n
              assignment       mortgage        or        transfer          of     the
\n              demised premises deliver a notice of such
\n              assignment       mortgage        or        transfer          to     the<\/p>\n
              lessor      setting            for         the         names        and
\n              description of the parties to every such
\n              assignments, mortgage of transfer and the
\n              particulars and the effect thereof.\n<\/p>\n
                   (l-a)           The        lessor,          in      case       the\n              notice    referred        to     in       sub-clause          (1)     is\n              delivered       to   it,       shall        intimate         to     the\n              lessee,    assignee        mortgagee             or     transferee\n<\/pre>\n
              about arrears of the Trust dues and its
\n              right of re-entry, re-possession over the<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                 40<\/span><\/p>\n
              demised premises to remedy breach of any or
\n              all clauses of conditions of lease within a<\/p>\n
              period of three months of the date of the
\n              intimation to that effect.\n<\/p>\n
                     (m)   The decision of the lessor or any<\/p>\n
              person it may appoint in this behalf on any
\n              question     which        may   arise        concerning           any
\n              alleged      breach       of    any     of     the      foregoing
\n              clauses shall be final.\n<\/p>\n
                     2)    The      lessor       covenants
\n              lessee paying the rent hereby reserved and
\n                                                                     that       the<\/p>\n
              performing      and       observing          the      conditions<\/p>\n
              herein contained shall peace obley hold and
\n              enjoy the said land during the said term
\n              without       any         lawful         interruption               or<\/p>\n
              disturbance     by     the      lessor        or     any     person<\/p>\n
              lawfully claiming it.<\/p>\n
                     Provided that if the said rent of any<\/p>\n
              part    thereof       shall      at      any       time      be     in
\n              arrears and unpaid for one calendar month
\n              next after the date whereon the same shall
\n              have   become       due    whether        they       shall        have<\/p>\n
              been lawfully demanded or not as also upon
\n              the breach of non-observance by the lessee
\n              of any of the said conditions the lessor
\n              may    not   withstanding          the       waiver        of      any
\n              previous cause or right of re-entry, enter
\n              upon the said land and re-possess it as it<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                41<\/span><\/p>\n
              this demise had not been made, the lessee
\n              in such case being entitled within three<\/p>\n
              calendar      months       from     the        date      of      such
\n              re-entry      to        remove     all         building           and
\n              fixtures      which       at     any     time       during        the<\/p>\n
              currency      of    the    demise         shall       have       been
\n              erected or affixed by him upon the said
\n              land.<\/p>\n
\n\n\n\n\n                                      \n                    Provided further that when any cause\n              of    \n                    right    of       re-entry        arises\n<\/pre>\n
              foregoing proviso, it shall be lawful for
\n                                                                    under       the<\/p>\n
              the lessor, as the consideration for the<\/p>\n
              non-exercise of the power of re-entry to
\n              receive from the lessee a sum of money not
\n              exceeding two years ground rent.\n<\/p>\n
                    Provided also that when any cause or
\n              right of re-entry arises under the first
\n              proviso, upon the breach of non-observance<\/p>\n
              of the condition of sub-clause (d) clause\n<\/p>\n
              (l)   thereof       in    respect         of     errection          or
\n              alteration         it    shall     be      lawful        for      the
\n              lessor to ask the lessee to demolish or<\/p>\n
              alter the unauthorized construction, as it
\n              may deem necessary, within reasonable time,
\n              as a consideration for the non-exercise of
\n              the power of re-entry              instead of receiving
\n              a sum of money as provided above.\n<\/p>\n
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\n      ao26.11.odt                                    42<\/span><\/p>\n
     21.           The aforesaid clauses if carefully read will<\/p>\n
     show that the appellants agreed not to disturb, build<\/p>\n
     over or otherwise deal with the suit property and not<\/p>\n
     to    interfere           with        the     service,            without          prior<\/p>\n
     permission in writing of the authority.\n<\/p>\n
     22.           The appellants agreed with clause (i) not to<\/p>\n
     assign or transfer or part with the possession. It<\/p>\n
     also provides not to alter the nature of the present<\/p>\n
     demised premises. It also provides in clause (k) that<\/p>\n
     without       permission         of     the       N.I.T.       in     writing         the<\/p>\n
     demised premises cannot be used for any other purpose.\n<\/p>\n
     Clause (2) aforesaid then provides that in case of<\/p>\n
     breach of non-observance by the lessee of any of the<\/p>\n
     conditions,         the    lessor           may     exercise          a    right        of<\/p>\n
     re-entry and re-possess it as it the demise had not<\/p>\n
     been made. The appellants have agreed with the said<\/p>\n
     condition      in    clause       (d)       with     open      eyes       and    in     my<\/p>\n
     opinion, they are bound by it. Similar is the position<\/p>\n
     in    third    proviso      of        clause        (2)    providing          for     the<\/p>\n
     N.I.T.        lessor to exercise power of re-entry if then<\/p>\n
     the authorized construction is not demolished etc. but<\/p>\n
     then that is the discretion given to the N.I.T..\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                43<\/span><\/p>\n
     23.           To      sum      up,      the      aforesaid            conditions<\/p>\n
     mentioned       hereinabove          are       the    agreed         terms        and<\/p>\n
     conditions by which the appellants have agreed that<\/p>\n
     the N.I.T. shall re-enter and take possession of the<\/p>\n
     suit property in the aforesaid contingencies.\n<\/p>\n
     24.           It is in the above background now this Court<\/p>\n
     will have to find out whether the evidence placed by<\/p>\n
     both parties on record and the documentary or other<\/p>\n
     evidences which are not in dispute would show that<\/p>\n
     there     are      violations        or    breaches           of     terms        and<\/p>\n
     conditions.          After    hearing      learned        Counsel         for     the<\/p>\n
     rival parties, this Court finds that following are the<\/p>\n
     facts     and      evidences       in     the     form       of      documentary<\/p>\n
     evidence and my reasons which clearly show that there<\/p>\n
     are    serious       violations         made    by    the      appellants           in<\/p>\n
     respect of breach of the terms and conditions of the<\/p>\n
     allotment       order        and   lease-deed         and      for      which       no<\/p>\n
     evidence is required to be led before the civil Court<\/p>\n
     at trial or to find out whether a prima facie case is<\/p>\n
     made    out     by    the     appellants        or    not      for      grant       of<\/p>\n
     temporary injunction. (a) From the Leave and Licence<\/p>\n
     Agreement filed on record by the appellants themselves<\/p>\n
     with a private company running Center Point Hospital<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                44<\/span><\/p>\n
     on the ground floor of the Dharmashala facing the<\/p>\n
     Government          Medical        College      and        Hospital          wholly<\/p>\n
     unconnected with the appellants but being a licensee<\/p>\n
     on payment of Rs.1,00,000\/- per month, it is clear<\/p>\n
     that appellants had exploited the ground floor rooms<\/p>\n
     meant         for    the      passengers        for        reaping         profits<\/p>\n
     @     Rs.1,00,000\/-          per     month.     This       hospital          has      a<\/p>\n
     operation           theatre,         pathology         laboratory,               care<\/p>\n
     diagnostic center, medicine shops and x-ray and other<\/p>\n
     machines. Looking to the photographs it appears that<\/p>\n
     the face lift given to the front area of this building<\/p>\n
     i.e. 32 rooms on the ground floor, huge expenditure<\/p>\n
     appears to have been made and in fact private rooms<\/p>\n
     for the patients at cost seems to have been a source<\/p>\n
     of income for the hospital from each room. (b) Due to<\/p>\n
     the     activity        of    running    private           hospital        in      the<\/p>\n
     Dharmashala on almost entire ground floor, the entire<\/p>\n
     open space surrounding to Dharmashala is being used<\/p>\n
     for parking. (c) Perusal of the photographs of Shankar<\/p>\n
     Ashram        Canteen     and   Shankar       Ashram       Bhojanalaya           show<\/p>\n
     that     they       are      being    utilized        as     regular         hotels<\/p>\n
     providing food and canteen providing snacks food etc..\n<\/p>\n
     (d) The temporary sanction granted by the N.I.T. for<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                45<\/span><\/p>\n
     these structures where these canteen and Bhojanalaya<\/p>\n
     are    located     were      only        for      storing         construction<\/p>\n
     materials at the time of construction of building of<\/p>\n
     Dharmashala and thereafter for providing convenience<\/p>\n
     to the passengers for garages etc.. This fact is not<\/p>\n
     in dispute. (e) There is no evidence to show that<\/p>\n
     Shankar Ashram Canteen and Shankar Ashram Bhojanalaya<\/p>\n
     were permitted to be started in these garages or that<\/p>\n
     these garages meant for public conveniences in the<\/p>\n
     original allotment order could be utilized for running<\/p>\n
     hotel business. This documentary evidence about the<\/p>\n
     temporary      sanction      for    garages         and     absence         of    any<\/p>\n
     document      placed    on      record      by      the      appellants           for<\/p>\n
     allowing      Shankar   Ashram          Canteen      and      Shankar        Ashram<\/p>\n
     Bhojanalaya lead me to show that the whole activities<\/p>\n
     are    unauthorized       and      in    breach       of     the      terms       and<\/p>\n
     conditions. (f) Assuming that the said canteen and<\/p>\n
     Bhojanalaya      are      catering         to       need        of      patients,<\/p>\n
     passengers and their relatives, there is absolutely no<\/p>\n
     evidence placed on record by the appellants as to what<\/p>\n
     is their control on these two establishments and at<\/p>\n
     what rate, these canteen and Bhojanalaya are providing<\/p>\n
     food and other eatables to the visitors.                             It was the<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                              46<\/span><\/p>\n
     duty of the appellants to place on record the evidence<\/p>\n
     in   the      form   of    affidavits     or     documentary           evidence<\/p>\n
     showing that canteen and Bhojanalaya were being run in<\/p>\n
     these    garages      by    providing     food       at     subsidized          and<\/p>\n
     concessional         rates.        No    agreement             between          the<\/p>\n
     appellants and canteen and Ashram Bhojanalaya has been<\/p>\n
     placed on record to show the terms and conditions of<\/p>\n
     subletting nor there is anything on record to show<\/p>\n
     that they were allowed to be operated with written<\/p>\n
     sanction        or    permission         from         the       N.I.T..           No<\/p>\n
     document\/indenture          between      them     has     been      placed        on<\/p>\n
     record to show that the appellants have any control<\/p>\n
     over them at least in the matter of providing food<\/p>\n
     etc.    at     subsidized     or   concessional           rates       to     those<\/p>\n
     visiting        Dharmashala.        In     the        absence           of      any<\/p>\n
     documentary evidence about the occupation of canteen<\/p>\n
     and Shankar Bhojanalaya and the terms and conditions<\/p>\n
     of lease or as the case may be, it is clear that the<\/p>\n
     appellants have allowed the regular hoteliers to do<\/p>\n
     business and earn huge profits from the public at<\/p>\n
     large giving complete go-bye to the very purpose for<\/p>\n
     which such prime land was allotted to the appellants.\n<\/p>\n
     It is not known what income the appellants must have<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                            47<\/span><\/p>\n
     been deriving from the said canteen and Bhojanalaya<\/p>\n
     situated almost on 1\/4th acre of land in the heart of<\/p>\n
     Nagpur City.         It was for the appellants to clear all<\/p>\n
     these points but the appellants did not place any<\/p>\n
     material      on    record   or   affidavit         evidence          to    that<\/p>\n
     effect. It clearly appears that Shankar Ashram Canteen<\/p>\n
     and Shankar Ashram Bhojanalaya have been operating for<\/p>\n
     many years and therefore, the appellants must have<\/p>\n
     reaped monetary benefits but they are not coming clean<\/p>\n
     before the Court.\n<\/p>\n
     25.           It is an admitted fact that the appellants<\/p>\n
     had directly applied to the State Government under<\/p>\n
     Section 37 of the Maharashtra Regional & Town Planning<\/p>\n
     Act, 1966 for changing the use of plot from public<\/p>\n
     purpose to commercial purpose vide application dated<\/p>\n
     15.1.2007. This clearly shows that on the date of this<\/p>\n
     application, the appellants themselves decided that<\/p>\n
     they    must       get   regularised    commercial            exploitation<\/p>\n
     being made by them of the property belonging to N.I.T.\n<\/p>\n
     by getting minor modification done under Section 37 of<\/p>\n
     the Maharashtra Regional & Town Planning Act directly<\/p>\n
     from    the    State      Government.       It     appears         that       the<\/p>\n
     Government referred the matter to N.I.T. which passed<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                           48<\/span><\/p>\n
     a resolution on 17.10.2007 and rejected the proposal<\/p>\n
     made by the appellants and then there was a silence.\n<\/p>\n
     Thus, making of the said representation to change the<\/p>\n
     user from public utility to commercial use by the<\/p>\n
     appellants clearly speaks volumes about the intentions<\/p>\n
     on the part of the appellants to get conversion at the<\/p>\n
     cost     of    public     utility.    Fortunately,               the        State<\/p>\n
     Government and the N.I.T. did not fall pray to the<\/p>\n
     said<\/p>\n
             proposal.       This   conduct      on      the     part       of     the<\/p>\n
     appellants is enough to conclude that there are no<\/p>\n
     bona fides in the appellants for claiming that it<\/p>\n
     would continue to operate Dharmashala and thus satisfy<\/p>\n
     the public purpose for which plots were allotted.\n<\/p>\n
     26.           The   inspection       report         prepared          by      the<\/p>\n
     Divisional      Officer    (South)    dated        8.2.2010         has      been<\/p>\n
     carefully seen by me. This inspection report gives in<\/p>\n
     details as to how major changes have been made to suit<\/p>\n
     the requirements of running a private limited hospital<\/p>\n
     on fully commercial basis. This report further shows<\/p>\n
     that the entire space in the middle of the Dharmashala<\/p>\n
     open to sky has been closed and the structures have<\/p>\n
     been    erected     therein    to    suit      the     requirements             of<\/p>\n
     private       limited     hospital     and         operation           theatre<\/p>\n
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\n      ao26.11.odt                                  49<\/span><\/p>\n
     admeasuring 4576 sq. ft. has been erected there. This<\/p>\n
     report inter alia contains several other things. The<\/p>\n
     submission           made      by       learned            Senior          Advocate<\/p>\n
     Shri Dharmadhikari that this report is liable to be<\/p>\n
     rejected by this Court since the same was prepared<\/p>\n
     behind the back of the appellants would have appealed<\/p>\n
     to this Court. However, it is seen that the appellants<\/p>\n
     themselves       have        prepared    a        big     revised         plan      and<\/p>\n
     submitted to the N.M.C. with a request to regularize<\/p>\n
     several structures and changes and modifications made<\/p>\n
     in the original building of Dharmashala to suit the<\/p>\n
     establishment of private hospital. If this revised map<\/p>\n
     is carefully compared with the said inspection report<\/p>\n
     about which contention has been made that it should be<\/p>\n
     rejected, it is clearly seen that whatever has been<\/p>\n
     stated in the inspection report is fully corroborated<\/p>\n
     by the said revised map prepared by the appellants and<\/p>\n
     submitted by the appellants to the N.M.C., planning<\/p>\n
     authority, for regularization, sanction and so on and<\/p>\n
     so    forth.         Thus,     the    appellants             themselves            have<\/p>\n
     provided       documentary           evidence        before         this       Court,<\/p>\n
     showing       that    they     have    made       several        constructions,<\/p>\n
     modifications and so on and so forth in the building<\/p>\n
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\n      ao26.11.odt                              50<\/span><\/p>\n
     of Dharmashala to suit the need of a full fledged<\/p>\n
     private hospital run by a private limited company for<\/p>\n
     commercial exploitation. Needless to say that all that<\/p>\n
     was    done    without       permission       of   the      N.I.T.        and     in<\/p>\n
     clearcut breach of the aforesaid terms and conditions<\/p>\n
     mentioned by me herein before.\n<\/p>\n
     27.            No    other    evidence        is    required          when      the<\/p>\n
     appellants themselves have produced the said evidence<\/p>\n
     to     infer<\/p>\n
                     that    the    appellants          have      converted          the<\/p>\n
     Dharmashala into a private hospital.\n<\/p>\n
     28.            It is seen that there are several pathology<\/p>\n
     laboratories operating in this Dharmashala building<\/p>\n
     which is clear from the photographs and the inspection<\/p>\n
     report so also x-ray and other modern machines. To<\/p>\n
     repeat, major operation of Dharmashala building has<\/p>\n
     been     in    utilization      for   hospital           and      allied        and<\/p>\n
     connected activities of the hospital.\n<\/p>\n
     29.            The     submission     made         by     learned          Senior<\/p>\n
     Advocate Shri Dharmadhikari that even now 88 rooms are<\/p>\n
     being utilized for giving to the passengers, patients<\/p>\n
     and their relatives in the Dharmashala is based on no<\/p>\n
     prima facie evidence. There is absolutely no evidence<\/p>\n
     placed on record to show that during the last 10-20<\/p>\n
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\n      ao26.11.odt                                      51<\/span><\/p>\n
     years or in the last five years a single room has been<\/p>\n
     given to the patients, their relatives or passengers<\/p>\n
     coming to Government Medical College and Hospital on<\/p>\n
     concessional basis or free of cost. Apart from that no<\/p>\n
     documentary evidence is placed nor there is affidavit<\/p>\n
     of   a    single       person      from      the       appellants          to     show      a<\/p>\n
     single        detail     about          single        passenger,           patient        or<\/p>\n
     relative       staying       in        Dharmashala.          If     the     appellants<\/p>\n
     wanted        to<\/p>\n
                         establish            a   prima           facie         case        that<\/p>\n
     Dharmashala was still being utilized for passengers,<\/p>\n
     patients and their relatives, it was for them to prove<\/p>\n
     the same by documentary proof or evidence by way of<\/p>\n
     affidavit          before        the      trial         Court         to      establish<\/p>\n
     accordingly. To say that he same is a matter of trial<\/p>\n
     is   no    use     since         the    appellants           could       have      easily<\/p>\n
     produced the concerned registers for the last couple<\/p>\n
     of years showing the same. If the rooms were given on<\/p>\n
     concessional rates, where is the evidence in the form<\/p>\n
     of     receipts,       ledgers          audit         reports        for      the     last<\/p>\n
     several       years.        No    audited        reports          required          to    be<\/p>\n
     submitted every year to the Charity Commissioner have<\/p>\n
     been      placed       on    record.         That         would       have       clearly<\/p>\n
     revealed the income from passengers even if meagre and<\/p>\n
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\n      ao26.11.odt                                52<\/span><\/p>\n
     the expenditure over maintenance. When asked, learned<\/p>\n
     Senior Advocate Shri Dharmadhikari fairly stated that<\/p>\n
     nothing of this sort was filed on record. However, I<\/p>\n
     find that this is totally absent which clearly shows<\/p>\n
     that     the    appellants          completely           forgot        that       the<\/p>\n
     property was to be utilized for the poor and needy<\/p>\n
     passengers,         patients     and      their     relatives,           visiting<\/p>\n
     Government Medical College and Hospital.\n<\/p>\n
     30.<\/p>\n
                    The submission that Shri Lalit Purohit was<\/p>\n
     inducted       as    caretaker      in    the     Dharmashala           is      again<\/p>\n
     without any evidence. Nothing prevented the appellants<\/p>\n
     from providing any documentary proof or evidence by<\/p>\n
     way of affidavit about the terms and conditions of<\/p>\n
     employment\/contract            of        Shri     Lalit        Purohit           with<\/p>\n
     Dharmashala. It was for the appellants to prove prima<\/p>\n
     facie    that       Shri    Lalit    Purohit         was     inducted           as    a<\/p>\n
     caretaker       and     the     terms      and       conditions            of     his<\/p>\n
     employment\/contract            ought      to    have      been      brought          on<\/p>\n
     record before the Court.\n<\/p>\n
     31.            The    submission          made      by      learned          Senior<\/p>\n
     Advocate       Shri        Dharmadhikari          that       the       Trust         is<\/p>\n
     achieving the object of providing treatment to the<\/p>\n
     patients by giving 32 rooms on the ground floor to<\/p>\n
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\n      ao26.11.odt                                 53<\/span><\/p>\n
     Center Point Hospital does not appeal to me. In the<\/p>\n
     first     place,         the     appellant\/Trust               is      collecting<\/p>\n
     Rs.1,00,000\/- per month as licence fee from the said<\/p>\n
     private hospital which must have been taking fullest<\/p>\n
     advantage of the location, namely opposite Government<\/p>\n
     Medical College and Hospital, Nagpur and thus earning<\/p>\n
     huge income. There is no record placed before the<\/p>\n
     Court to show that the said Center Point Hospital is<\/p>\n
     under any control of the appellants. It is a private<\/p>\n
     limited       company     doing       its    business           of     running         a<\/p>\n
     hospital and hospitality at cost in the building meant<\/p>\n
     for Dharmashala. There is nothing on the record to<\/p>\n
     show that treatment to the patients is free of cost or<\/p>\n
     on concessional rates. There must not be any record<\/p>\n
     obviously       because        the    appellants         do     not      have      any<\/p>\n
     control       on   the    said       hospital       about       regulation           of<\/p>\n
     charges to be recovered from the patients and at least<\/p>\n
     no material has been placed on record to show that the<\/p>\n
     appellants have reserved any right by any indenture in<\/p>\n
     the     matter     of    charges       to    be      recovered           from      the<\/p>\n
     patients. No evidence in the form of accounts, income<\/p>\n
     and expenditure daily book, audits of the said company<\/p>\n
     showing       that      the    patients      staying          in     Dharmashala<\/p>\n
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\n      ao26.11.odt                           54<\/span><\/p>\n
     instead of being allowed to be treated at Government<\/p>\n
     Medical       College    and     Hospital         were        treated          on<\/p>\n
     concessional rates by this hospital from the date it<\/p>\n
     is     operating    on   Leave      and    Licence         or     that       the<\/p>\n
     appellants have certified accordingly. It is difficult<\/p>\n
     to believe that the private limited company running a<\/p>\n
     hospital for doing its business would do so and that<\/p>\n
     too having spent huge money for changing the face of<\/p>\n
     the Dharmashala. The submission that the appellants<\/p>\n
     have been doing the same activity and it falls under<\/p>\n
     regulation      M   (7) (2) therefore does not impress me<\/p>\n
     at all.\n<\/p>\n
     32.           Submission made by learned Senior Advocate<\/p>\n
     Shri Dharmadhikari that all the allegations made by<\/p>\n
     the N.I.T. in the show-cause-notices are disputed and<\/p>\n
     they    are   required   to    be    tested       upon      adducing         the<\/p>\n
     evidence at the regular trial before the civil Court,<\/p>\n
     therefore, does not impress me since I have clearly<\/p>\n
     pointed out in the earlier paragraphs the undisputed<\/p>\n
     position about the violations and breaches of terms<\/p>\n
     and conditions made by the appellants and that too by<\/p>\n
     documentary evidence mostly provided by the appellants<\/p>\n
     themselves.\n<\/p>\n
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\n      ao26.11.odt                           55<\/span><\/p>\n
     33.           To sum up, on the facts, in my opinion, no<\/p>\n
     prima facie case at all has been made out by the<\/p>\n
     appellants and on the contrary the appellants have<\/p>\n
     deprived the needy and poor patients, their relatives<\/p>\n
     and     passengers       from      taking       advantage            of      the<\/p>\n
     Dharmashala.      That       is   unfortunate         and      shows        that<\/p>\n
     philanthropy is vanishing fast.\n<\/p>\n
     34.           Balance    of    convenience       in    the      above      fact<\/p>\n
     situation where the appellants have clearly committed<\/p>\n
     breach of trust of N.I.T. and public at large and in<\/p>\n
     particular the poor passengers, patients and relatives<\/p>\n
     for many years, cannot lie in favour of the appellants<\/p>\n
     merely because the appellants are in possession of the<\/p>\n
     suit properties. Public interest has to be a paramount<\/p>\n
     consideration even while finding out the balance of<\/p>\n
     convenience.     In     my    opinion,     if   the     appellants           are<\/p>\n
     allowed to enjoy the benefits from the said public<\/p>\n
     property for another decade or so by waiting for final<\/p>\n
     decision of the civil suit\/appeals etc. the public<\/p>\n
     interest would be wholly jeopardized. This Court would<\/p>\n
     never remain a mute spectator.\n<\/p>\n
     35.           As regards the irreparable loss, I find that<\/p>\n
     in case the appellants succeed in the suit, they can<\/p>\n
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\n      ao26.11.odt                             56<\/span><\/p>\n
     definitely      be     compensated      by     way       of    damages         and<\/p>\n
     therefore, there is no such loss which can be said to<\/p>\n
     be irreparable.\n<\/p>\n
     36.           The N.I.T. has filed an undertaking signed<\/p>\n
     by executive officer, N.I.T., Nagpur dated 19.4.2011<\/p>\n
     vide St. No.4026\/2011, stating therein that the N.I.T.\n<\/p>\n
     undertakes to use the suit plots for the same purpose<\/p>\n
     for which they were allotted to the appellants or<\/p>\n
     would allot the same to other institution if needed.\n<\/p>\n
     This    being    the     case,    the     balance         of      convenience<\/p>\n
     certainly remains in favour of the N.I.T. rather than<\/p>\n
     the    appellants.      This     Court,      however,         has    a     strong<\/p>\n
     reservation about the N.I.T. allotting the land to<\/p>\n
     some other institution since in the present scenario<\/p>\n
     it is the N.I.T. which can provide the best to the<\/p>\n
     people at large by running Dharmashala since it has<\/p>\n
     been doing very well in running other activities in<\/p>\n
     the city of Nagpur, keeping in mind the interest of<\/p>\n
     the public at large. To allot the said property to any<\/p>\n
     other Trust\/Institution most of which are run by the<\/p>\n
     influential      people,       their    kith       and      kin      for     huge<\/p>\n
     profits in the city of Nagpur and State of Maharashtra<\/p>\n
     is to fall in another trap. The majority of charitable<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                       57<\/span><\/p>\n
     and other Trusts\/Institutions who have obtained lands<\/p>\n
     from N.I.T. have been doing                             business          rather than<\/p>\n
     philanthropy             in    blatant          violations           of      terms       and<\/p>\n
     conditions.             Shri    Mishra,         the      learned          Counsel        for<\/p>\n
     N.I.T. stated that there are about 250 public utility<\/p>\n
     plots in the city of Nagpur which are misutilised for<\/p>\n
      business .            But     this       Court    granted         stay      of     taking<\/p>\n
     possession as N.I.T. did not allegedly (as stated by<\/p>\n
     the petitioners in those petitions) comply with the<\/p>\n
     principles of natural justice. Nothing can be said<\/p>\n
     here    except          saying            good-luck         to     N.I.T.        and     the<\/p>\n
     common man. Thus, the present scenario in the State of<\/p>\n
     Maharashtra            does     not       permit       handing       over      the      suit<\/p>\n
     property to other institution. The said undertaking<\/p>\n
     marked        x        is accepted with a hope and trust that<\/p>\n
     N.I.T. itself would run the Dharmashala.\n<\/p>\n
     37.               I, thus, find that none of the ingredients<\/p>\n
     for granting temporary injunction pending decision of<\/p>\n
     the    suit            have     at        all     been       satisfied            by     the<\/p>\n
     appellants\/plaintiffs                     and   therefore,            they      are      not<\/p>\n
     entitled          to    grant        of    temporary         injunction           pending<\/p>\n
     decision of the suit.\n<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                         58<\/span><\/p>\n
     38.           As to the right of re-entry and forfeiture<\/p>\n
     of    lease    and   taking   possession,           I    have       already<\/p>\n
     discussed that the appellants have clearly agreed to<\/p>\n
     the     aforesaid    eventuality    of     forfeiture            of     lease<\/p>\n
     re-entry and possession to be delivered to the N.I.T.\n<\/p>\n
     in the event of breach of terms and conditions. I have<\/p>\n
     clearly held that breach of terms and conditions are<\/p>\n
     writ large and duly established from the documents<\/p>\n
     filed by the appellants and N.I.T.. In other words,<\/p>\n
     there are no major debatable issues which should go<\/p>\n
     for trial. In the face of the agreed position by the<\/p>\n
     appellants themselves, I do not think that they can be<\/p>\n
     allowed to back out now. This is all the more so<\/p>\n
     because this Court has recorded a categorical finding<\/p>\n
     about    undisputed    violations    established             on       record.\n<\/p>\n
     However, I find that the notice that was given by the<\/p>\n
     N.I.T. to enter the land in question by 30 days is not<\/p>\n
     correct. Notice ought to have been for a period of<\/p>\n
     three months as provided in clause (l-a).\n<\/p>\n
     39.           To part with, it is unfortunate, that the<\/p>\n
     appellants did not realize that the patients visiting<\/p>\n
     the Government Medical College and Hospital would be<\/p>\n
     diverted to the said Center Point Hospital from the<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>
\n      ao26.11.odt                                  59<\/span><\/p>\n
     Government Medical College and Hospital by brokers and<\/p>\n
     Dalals        at    the      cost    of   poor     people        who      would       be<\/p>\n
     compelled to sell their belongings or the possessions<\/p>\n
     or the property for saving the life of patients which<\/p>\n
     otherwise          they    may      not   have    been      required          to    for<\/p>\n
     treatment          in     the    Government         Medical         College         and<\/p>\n
     Hospital.\n<\/p>\n
     40.            For all the reasons, therefore, I do not<\/p>\n
     find that the appellants have made out any case for<\/p>\n
     interference.           On    the    contrary,       the      public       interest<\/p>\n
     requires       that       the    N.I.T.     must      be    allowed         to     take<\/p>\n
     possession of the suit properties but by giving notice<\/p>\n
     of three months and carry out the activities itself by<\/p>\n
     running Dharmashala and providing other facilities,<\/p>\n
     amenities          to     the       patients,      their        relatives           and<\/p>\n
     passengers visiting the Government Medical College and<\/p>\n
     Hospital.\n<\/p>\n
     41.            To sum up, I do not find any substance in<\/p>\n
     the    present          appeal       against      order.        The      same       is,<\/p>\n
     therefore, dismissed. No order as to costs.\n<\/p>\n
                                               JUDGE
\n     ssw<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:16:11 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Appeal Against Order No.26\/2 vs Unknown on 6 May, 2011 Bench: A. B. Chaudhari 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-208795","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAppeal Against Order No.26\/2 vs Unknown on 6 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/appeal-against-order-no-262-vs-unknown-on-6-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Appeal Against Order No.26\/2 vs Unknown on 6 May, 2011 - 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