Hindustan Petroleum Corporation ... vs Sanjay S/O Madhukar Mahakalkar
2015 Latest Caselaw 242 Bom

                                        1



                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                            
                      NAGPUR BENCH : NAGPUR




                                                    
    Civil Revision Application No. 103 of 2014




                                                   
    Applicant         :     Hindustan Petroleum Corporation Limited,

                            through its Chief Regional Manager, Nagpur




                                        
                            Retail Region, 2nd floor, Oriental Building,
                          
                            S. V. Patel Marg, Nagpur

                            versus
                         
    Respondent        :     Sanjay Madhukar Mahakalkar, aged about

37 years, Occ: Business, 97, Raghuji Nagar,

Nagpur

Mr V. V. Bhangde, Advocate for applicant

Mr S. K. Mishra, Senior Advocate and Mr Deogade, Advocate with him for respondent

Coram : A. P. Bhangale, J

Dated : 27th August 2015

P. C.

1. By this application, the revision applicant questions legality,

propriety and correctness of order passed below Exhibit 28 passed by 6th

Joint Civil Judge, Senior Division, Nagpur in Regular Civil Suit No. 44 of

2013 rejecting application of the applicant under Order VII, rule 11 (a) of

the Code of Civil Procedure.

2. Respondent Sanjay Madhukarrao Mahakalkar filed suit

against applicant (defendant no. 4) and the Union Government, through

Chief Controller of Explosives, Mumbai; the Controller of Explosives,

Nagpur and the Commissioner of Police, Nagpur for declaration and

perpetual injunction.

3. Respondent/plaintiff averred that he is owner of Plots No. 35

and 36 situated in Ward No. 20, Dattatraya Nagar, City Survey Number

874, Khasra No. 48 and 33 under Sakkardara Street Scheme Layout of

Nagpur Improvement Trust. Suit plot no. 35 was leased out to plaintiff by

the Nagpur Improvement Trust on 12th June 1996 for residential purpose.

Plot No. 36 was initially leased out to one Mohan Kariya who sold it to

M/s Shivdarshan Griha Nirman Sahakari Sanstha from whom plaintiff

purchased that plot on 25th March 2003. User of Plot No. 36 was also

meant for residential purpose as per the terms and conditions of lease

deed initially executed in favour of Mohan Kariya by the Nagpur

Improvement Trust. Applicant Hindustan Petroeum Corporation Limited

(HPCL) wanted to open Petrol Pump in the area where plots no. 35 and

36 are located. It appears that offer of plaintiff was accepted which he

had submitted in response to advertisement dated 1.2.2003 published by

applicant-HPCL. Lease Deed was executed by respondent-plaintiff in

favour of applicant-HPCL and he had handed over all documents of title

including lease deeds, sale deed etc. to applicant-HPCL and it was assured

to him by the officers of applicant that they would complete entire process

including that of change in user of the plots. Plaintiff received letter

dated 4.2.2004 from the Nagpur Municipal Corporation, the Development

Authority, returning the building map on the ground that construction was

done without first getting the plan sanctioned; required space was not left

and user of the plots was not changed from residential to commercial use.

Plaintiff pointed out that notice of the Corporation to applicant-HPCL

whose officers assured him that they would set the things right.

However, it is alleged by respondent-plaintiff that present applicant did

not take corrective measures and failed to follow prescribed procedure

and in violation of prescribed norms, hurriedly completed construction of

petrol pump. Not only this, but original defendants no. 1 and 2

(Department of Explosives) in the suit issued explosives licence to

applicant blindly, without insisting upon applicant to adhere to the usual

conditions of obtaining no objection certificates from the Development

Authorities including the Town Planning Department. Respondent-

plaintiff instituted the suit for declaration that explosives licence issued

by original defendant no. 1 to the applicant is illegal and that the

applicant has no right to do business on the plots of plaintiff; for

perpetual injunction restraining defendants no. 1 and 2 from renewing

the explosives licence and for mandatory injunction directing defendant

no. 3 Commissioner of Police to withdraw no objection given to applicant-

HPCL.

4. Applicant-HPCL (defendant no. 4) filed application under

Order 7, rule 11 (a) of the Code of Civil Procedure claiming that even the

averments contained in the plaint that explosives licence has been issued

by the Department of Explosives to the applicant in deviation of some

procedure, matter is between the two Department and the plaintiff has no

locus to question the action of Department of Explosives in the matter of

issuance of such licence. Since there is no cause of action in favour of

plaintiff-respondent, according to the applicant, plaint deserves to be

rejected.

5. Respondent-plaintiff opposed the application by filing reply

(exhibit 29). Learned trial Judge, after hearing the parties, rejected the

application, as aforesaid, by order dated 24th July 2014. This revision is

filed without impleading original defendants no. 1 to 3 as party-

respondent.

6. Heard learned counsel for the parties at length. Perused

plaint, application (exhibit 28), reply (exhibit 29) and other relevant

documents placed on record.

7. Mr Bhangde, learned counsel appearing for applicant-HPCL

strenuously argued that in the entire pleadings, plaintiff has no where

disclosed as to under which provisions of the law, he is entitled to get the

reliefs as prayed for and as to which right of plaintiff would be affected by

virtue of licence issued by the Department of Explosives to it. He contends

that there is no right to sue accruing in favour of plaintiff and in absence

of cause of action, plaint is liable to be rejected. He also contends that suit

is not maintainable in view of the provisions of Section 34 of the Specific

Relief Act. Learned counsel relied upon the following rulings :-

(1) State of Punjab & ors v. Gurdev Singh (1991) 4 SCC 1

(2) Ravi Yashwant Bhoir v. District Collector, raigad & ors (2012) 4 SCC 407.

(3) Ayaaubkhan Noorkhan v. State of Maharashtra & ors (2013) 4 SCC 465.

           (4)    Pearlite Liners v. Manorama Sirsi
                  (2004) 3 SCC 172.

8. As against this, Mr S. K. Mishra, learned Senior Advocate

appearing for respondent contended that plaintiff is landlord and revision

applicant is tenant. Plaintiff wanted to enforce his right to insist upon

revision applicant to make use of the property according to law and by

obtaining requisite permission from various Authorities. Applicant in his

capacity as a tenant over suit property, was bound to use suit plots in

accordance with law. Grievance made by plaintiff in the suit is not only

against the revision applicant, but also against the Government and the

Local Authorities who are deliberately not impleaded to the revision

application though they were party-defendant to the suit. He relied upon

judgment of the Supreme Court in D. Ramchandran v. R. V. Jankiraman

& ors reported in (1993) 3 SCC 367.

9. Settled legal position as can be summed up from various

rulings pressed into service by both learned counsel is that suit must be

instituted when the legal right asserted in the suit is infringed or when

there is a clear and unequivocal threat to infringe that right by the

defendant against whom the suit is instituted. A "legal right" means an

entitlement arising out of legal rules.. It may be defined as an advantage,

or a benefit conferred upon a person by the rule of law. The expression

"person aggrieved" does not include a person who suffers from a

psychological or an imaginary injury; a person aggrieved must, therefore,

necessarily be one whose legal right or interest has been adversely

affected or jeopardised.

10. There is no dispute that plots no. 35 and 36 are leased out

plots by the Nagpur Improvement Trust and respondent is lessee in

respect thereof. Though Plot No. 36 is purchased by plaintiff from some

Society, still conditions of lease are binding on him. Applicant does not

dispute that suit plots were earmarked for residential purpose. The only

contention is, since the matter of issuance of explosives licence is between

the two Departments, plaintiff has no locus and there is no infringement

of his protected legal rights. If applicant-tenant does not bring the suit

plots to commercial use and starts commercial activity on residential plots

in violation of the conditions of lease, it will definitely affect the interest

of respondent-landlord. As a landlord or lessee, it is the plaintiff who will

be answerable to the Nagpur Improvement Trust for his acts or omissions

and may have to face legal consequences for violation of conditions of

lease. If some activity without due process of law is taking place on the

suit plots by his tenant, landlord can definitely question legality of such

activity. A landlord who suffers from legal injury can always challenge

legality or validity of acts or omissions by tenant. Respondent/plaintiff

suing as landlord in this case can be said to be a "person aggrieved" and it

cannot be said that his grievance is groundless or imaginary. He is not a

stranger to the suit plots without legal right whatsoever in and over it.

Revision applicant has not made original defendants no. 1 to 3 as party-

respondent, otherwise, this Court would have advantage of hearing them

and to know from them whether they have issued licence/no objection

certificate etc. lawfully to the applicant and if yes, on which ground.

Letter dated 9.11.2012 issued by the Controller of Explosives to the

lawyer who had issued notice on behalf of plaintiff, is vague. Why the

Department of Explosives and the Commissioner of Police (original

defendants no. 1 to 3 in the suit) have not been impleaded as party-

respondent to his revision is not understood particularly when in its

application under Order VII, rule 11 (a) of the Code of Civil Procedure,

applicant-HPCL specifically claimed that the matter of issuance of licence

is between HPCL and the Department of Explosives. Be that as it may,

impugned order appears well within the jurisdiction of the Court below

and according to law.

11. For the aforesaid reasons, I do not find any illegality or

material irregularity in the impugned order so as to warrant exercise of

revisional jurisdiction. I do not find any merit in the revision application.

Hence, revision application is dismissed. Costs shall be costs in the cause.

A. P. BHANGALE, J

joshi