Bombay High Court
Vikas Kamalakar Walawalkar vs The Dy. Salt Commissioner And 2 Ors on 9 November, 2017
Bench: R.D. Dhanuka
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vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.2481 OF 2016
IN
SUIT NO.1172 OF 2005
1). The Deputy Salt Commissioner )
Exchange Building, 4th Floor, )
Sir Shivsagar Ramgulam Marg, )
Ballard Estate, Mumbai - 400 001. )
)
2). Union of India, )
Ministry of Law & Justice, )
Department of Legal Affairs )
Branch Secretariat, Aayakar Bhavan )
Annexe, Mumbai - 400 02. ) ...Applicants
) Ori.Defts 1 & 2
IN THE MATTER BETWEEN :
Vikas Kamalakar Walawalkar )
"Parajit", Gokhale Road (North) )
Dadar (West), Mumbai - 400 028. ) ...Plaintiff
....Versus....
1). The Deputy Salt Commissioner )
Exchange Building, 4th Floor, )
Sir Shivsagar Ramgulam Marg, )
Ballard Estate, Mumbai - 400 001. )
)
2). Union of India, )
Ministry of Law & Justice, )
Department of Legal Affairs )
Branch Secretariat, Aayakar Bhavan )
Annexe, Mumbai - 400 020. )
)
3). Mumbai Municipal Corporation )
Mahapalika Bhavan, Mahapalila )
1/17
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Marg, Mumbai - 400 001. ) ...Defendants
WITH
CHAMBER SUMMNS NO.1801 OF 2016
IN
SUIT NO.1172 OF 2005
Vikas Kamalakar Walawalkar )
an Indian Inhabitant, having his address at )
"Parajit", Gokhale Road (North) )
Dadar (West), Mumbai - 400 028. ) ...Applicant
IN THE MATTER BETWEEN :
Vikas Kamalakar Walawalkar )
an Indian Inhabitant, having his address at )
"Parajit", Gokhale Road (North) )
Dadar (West), Mumbai - 400 028. ) ...Plaintiff
....Versus....
1). The Deputy Salt Commissioner )
Exchange Building, 4th Floor, )
Sir Shivsagar Ramgulam Marg, )
Ballard Estate, Mumbai - 400 001. )
)
2). Union of India, )
Ministry of Law & Justice, )
Department of Legal Affairs )
Branch Secretariat, Aayakar Bhavan )
Annexe, Mumbai - 400 020. )
)
3). Mumbai Municipal Corporation )
Mahapalika Bhavan, Mahapalila )
Marg, Mumbai - 400 001. ) ...Defendants
Mr.D.D. Madon, Senior Counsel with Mr.Mustafa Doctor, Senior
Counsel, Mr.Aditya Mehta, Mr.Kunal Dwarkadas, Mr.Anirudh Hariani
i/b M/s.Mahimtura & Co. for the Plaintiff / Applicant in the Chamber
Summons.
Mr.Anil Singh, Additional Solicitor General with Mr.S.R. Rajguru,
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Mr.A.R. Varma and Mr.Aditya Thakkar for the Defendant Nos.1 and 2
- Union of India / Applicants in the Notice of Motion.
Mr.S.Y. Sirsikar for MCGM - Defendant No.3.
CORAM : R.D. DHANUKA, J.
DATE : 9TH NOVEMBER, 2017.
ORAL JUDGMENT :-
1. By consent of parties, both the proceedings were heard
together and are being disposed of by a common order.
2. Notice of Motion No.2481 of 2016 is filed by the applicants
(original defendant nos.1 and 2) inter-alia praying for dismissal of Suit
No.1172 of 2005 on the ground that the suit has become infructuous
on expiry of lease on 14th October, 2016 and also prays for recovery
of possession in respect of the property from the defendant no.1 on
expiry of lease on 14th October, 2016.
3. Chamber Summons No.1801 of 2016 is filed by the
applicant (original plaintiff) inter-alia praying for amendment to the
plaint in terms of the schedule of amendment appended to the
chamber summons.
4. Mr.Singh, learned Additional Solicitor General (ASG)
appearing for the applicant in Notice of Motion No.2481 of 2016
invited my attention to the averments made in the plaint and also to
the prayers. He submits that the lease granted in favour of the
predecessor in title of the plaintiff and the Supplemental Deed of
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Lease granted exclusively in favour of the plaintiff are both terminated
on 1st April, 2005. It is submitted that the plaintiff has mainly applied
for a declaration that the termination of lease vide order dated 1 st
April, 2005 is illegal, bad and contrary to law and prays for setting
aside the said order. He submits that even otherwise the period of
lease of the suit property has already expired on 14th October, 2016
during the pendency of the suit. The learned ASG invited my attention
to various clauses of the lease deed dated 22nd December, 1921 and
more particularly clause (VI) (2) of the lease deed and would submit
that it was the discretion of the plaintiff to renew or not the lease
deed and on what conditions and that also on the condition that the
applicant would deem fit.
5. Learned ASG also invited my attention to the provisions of
the Supplemental Deed of Lease dated 27 th July, 1994 to which the
plaintiff was a party and more particularly to a clause at page 82 of
the plaint. He submits that the said clause clearly provides that the
period of lease will be upto 14th October, 2016 when the existing
lease expired. It is submitted that there is no provision for renewal of
the lease period under the Supplemental Deed of Lease to which the
plaintiff was a party. He however, fairly invited my attention to clause
5 of the Supplemental Deed of Lease which provides that the
covenants and conditions contained in three indentures of Lease all
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dated the 22nd December, 1921 recited shall continue to operate,
save as altered or amended by the Supplemental Deed of Lease.
6. It is submitted by the learned ASG that since there is no
renewal clause, the suit has become infructuous and thus the suit is
liable to be dismissed on that ground alone.
7. Insofar as prayer clause (b) of the notice of motion is
concerned, the learned ASG, on instructions, states that prayer
clause (b) inter-alia praying for possession of the suit property from
the plaintiff is not pressed and his clients would file a separate
proceeding praying for seeking possession of the suit property. The
statement is accepted.
8. Learned ASG placed reliance on the judgment of the
Supreme Court in case of Naveen Chand & Anr. vs. Nagarjuna
Travels & Hotels Pvt. Ltd., (2002) AIR SC 2870 and more
particularly paragraph 12 thereof in support of his submission that
since the terms and conditions of the original lease period are
different and it was at the discretion of his clients, the original plaintiff
is not entitled to seek any renewal. He submits that since the renewal
cannot be granted to the plaintiff on expiry of the original lease
period, the suit has become infructuous and thus the suit deserves to
be dismissed at this stage without any further trial in the matter.
Learned ASG also placed reliance on the judgment of the Madhya
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Pradesh High Court in case of Hitkarini Sabha vs. Corporation of
the City of Jabalpur & Anr. AIR 1961 MP 324 and in particular
paragraph 18 in support of his submission that since there was no
clause contemplated in the Supplemental Deed of Lease for renewal
of lease period, the suit deserves to be dismissed on expiry of the
lease period.
9. Mr.Madon, learned senior counsel for the original plaintiff
on the other hand invited my attention to the prayers in the plaint and
more particularly prayer clause (c) and would submit that the plaintiff
has already prayed for declaration that on expiry of the current term
of lease on 14th October, 2016, the plaintiff is entitled to renewal
and/or extension for a period of 99 years on the same terms and
conditions, including the term for further renewal. He invited my
attention to the stand taken by the applicants in the written statement
and in particular paragraph 58 contending that the plaintiff's prayer for
declaration requiring renewal of the lease deed after 2016 is pre-
mature. He submits that the stand taken by the applicants clearly
indicates that the right of renewal of lease period is not disputed by
the applicants in the written statement.
10. It is submitted that in any event in view of clause 5 of the
Supplemental Deed of Lease, the provision of renewal which was
admittedly provided in the original deed of lease was not altered in
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the Supplemental Deed of Lease thus will have to be read with the
Supplemental Deed of Lease. Learned senior counsel invited my
attention to the prima-facie observations made by a learned single
Judge of this Court in the notice of motion filed by the original plaintiff
and more particularly to paragraph 16. He also invited my attention to
the order passed by the Division Bench of this Court in Notice of
No.2441 of 2006 in Appeal No.534 of 2006 on 1 st September, 2006.
He submits that though the appeal filed by the applicants is admitted
by this Court, the Division Bench of this Court has ordered that during
the pendency of the appeal, the plaintiff shall continue to use the
subject land for the purpose for which the lease was granted and no
other purpose nor any third party right shall be created in the subject
matter of the land. He submits that the notice of motion thus filed by
the applicants inter-alia praying for dismissal of the suit at this stage
is in the teeth of the order dated 1 st September, 2006 passed by the
Division Bench of this Court.
11. It is submitted that during the pendency of the suit, the
original period of lease expired. It is submitted that under the renewal
clause, the plaintiff had applied for renewal of the lease for a period of
99 years on the same terms and conditions which is illegally rejected
by the applicants.
12. Learned senior counsel distinguished the judgment of the
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Supreme Court in case of Naveen Chand & Anr. (supra) and also
the judgment of the Madhya Pradesh High Court in case of Hitkarini
Sabha (supra) on the ground that in this case, the renewal clause is
clearly provided in the original lease deed which provision has to be
read with the provisions of the Supplemental Deed of Lease and also
with the stand taken by the applicants in their written statement. He
submits that the judgment of the Supreme Court in case of Naveen
Chand & Anr. (supra) was arising out of the final decree passed by
the Civil court and not during the pendency of the suit.
13. Insofar as the chamber summons is concerned,
Mr.Madon, learned senior counsel for the applicant (original plaintiff)
invited once again my attention to the prayers in the plaint and would
submit that in view of the expiry of the lease period provided in the
original deed of lease and in view of the plaintiff having applied for
renewal of the lease which application is rejected by the applicants in
the notice of motion, the applicant is entitled to seek amendment in
the plaint inter-alia praying for setting aside the decision of the
applicants in the notice of motion and for seeking a renewal of the
lease. He submits that insofar as prayer clause (c) (ii), which is
sought to be inserted in the plaint is concerned, the plaintiff is
challenging the order and notification dated 9th October, 2013 referred
in the letter dated 11th July, 2016 addressed by the Deputy Secretary
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on the ground that the said policy is totally bad and illegal being
contrary to the principles laid down by the Supreme Court in case of
Delhi Development Authority & Anr. vs. Joint Action Committee,
Allottee of SFS Flats & Ors. (2008) 2 SCC 672 and more
particularly paragraphs 64 to 66. In support of this submission that
the nature of amendment sought by the applicant in the chamber
summons would not alter the basic structure of the suit and since the
prayer for renewal would be in furtherance of the prayer challenging
the termination of the lease, the issue of renewal can be considered
by the Court in the same suit. He submits that the trial has not
commenced. Affidavit in lieu of examination in chief though filed by
the witness in Court, has not been taken on record. In support of this
submission, learned senior counsel placed reliance on the judgment
of the Supreme Court in case of Rajesh Kumar Aggarwal & Ors.
vs. K.K. Modi & Ors. (2006) 4 SCC 385 and in particular paragraphs
14 to 17. He submits that the reliefs which are subject matter of the
proposed amendment can be granted by this Court in the same suit
and the plaintiff is not required to file a separate suit.
14. Learned senior counsel invited my attention to the order
dated 18th October, 2011 passed by Shri Justice S.J. Kathawalla
settling the issues and more particularly issue (b) in support of his
submission and submits that this Court has already framed the issue
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as to whether the plaintiff is entitled to renewal / extension of lease for
a like term of 99 years on the same terms and conditions or not as
per the provisions of the Supplemental Deed of Lease read with deed
of lease.
15. Mr.Singh, learned ASG on the other hand would submit
that in the plaint the basic issue arises is whether the plaintiff had
committed any breach of the terms and conditions of the deed of
lease, whereas in the application for amendment, the plaintiff seeks
to pray whether the decision of the applicants in the notice of motion
refusing to grant renewal of the lease is illegal or not. He submits that
if amendment is allowed by this Court, the cause of action in the
original suit will be changed in its entirety and thus the amendment
cannot be granted by this Court.
16. Insofar as the notice of motion filed by the applicants
(original defendant nos.1 and 2) is concerned, a perusal of the
prayers in the plaint clearly indicates that the plaintiff had challenged
the order of termination issued by the applicants in the plaint. It is not
in dispute that the period of lease provided in the Supplemental Deed
of Lease would have expired on 14 th October, 2016. The plaintiff has
not only challenged the order of termination issued by the applicants
in the notice of motion but has also applied for a declaration that on
expiry of the lease period on 14th October, 2016, the plaintiff is
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entitled to renew and/or extension for like term of 99 years, including
on the term for further renewal. It is not in dispute that the applicants
in the notice of motion has taken a stand in the written statement that
the prayer for renewal in terms of clause (c ) is pre-mature. The stand
of the applicants in the notice of motion thus prima-facie indicates
that they have not disputed that there is no clause of renewal in the
Supplemental Deed of Lease.
17. Mr.Singh, learned ASG has not disputed that this Court in
the interim order passed in the notice of motion filed by the plaintiff
has granted an injunction against the applicants in respect of the suit
property. This Court has also made a prima-facie observation that the
plaintiff has been able to make out a strong prima-facie case.
Balance of convenience is in favour of the plaintiff. It is however,
observed that it is an admitted position that the physical possession
of the lands are with the plaintiff. It is however, observed by a learned
single Judge of this Court in the said order that the plaintiff is using
the land for manufacturing of salt and thus is in possession of the
land and deserves to be protected. A perusal of the order dated 1 st
September, 2016 passed by the Division Bench of this Court in the
appeal filed by the applicants in the notice of motion clearly indicates
that a mandatory order is passed by the Division Bench of this Court
that during the pendency of the appeal, the plaintiff shall continue to
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use the subject matter of the lease which was granted and for no
other purpose and shall not create any third party right and/or interest
in the said land during the pendency of the appeal.
18. Insofar as the submission of the learned ASG that there is
no provision for renewal of the lease in the Supplemental Deed of
Lease is concerned, in my prima-facie view the provisions of the deed
of lease and more particularly the provision for renewal of the lease
recorded in the original deed of lease will have to be read with the
provisions of the Supplemental Deed of Lease. Clause 5 of the
Supplemental Deed of Lease clearly records that all the provisions of
the original deed of lease except the provisions which are not altered
in the Supplemental Deed of Lease shall be read as the provision in
the Supplemental Deed of Lease.
19. Be that as it may, whether the plaintiff is entitled to seek
any renewal of the lease or not will have to be considered by this
Court after the evidence is laid by both the parties and after
interpreting the provisions of the original lease deed read with the
Supplemental Deed of Lease. In my view, merely because the
original period of lease has expired during the pendency of the suit,
the suit has not become infructuous.
20. A perusal of the prayers in the plaint indicates that the
plaintiff has not only challenged the termination of the lease deed but
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has also applied for a declaration insofar as the issue of renewal is
concerned.
21. Since the learned ASG has not pressed prayer clause (b)
of the notice of motion, I need not consider the said prayer in this
order.
22. Insofar as the judgment of the Supreme Court in case of
Naveen Chand & Anr. (supra) relied by the learned ASG is
concerned, a perusal of the said judgment clearly indicates that the
said appeal was arising out of the order passed by the High Court,
which was arising out of the final decree passed by the Civil Court,
Hyderabad. In paragraph 8 of the said judgment, the Supreme Court
has clearly held that on careful perusal of evidence adduced by the
plaintiff together with the documents, the trial Court had opined that
the plaintiff was entitled for various reliefs. Paragraph 12 of the said
judgment clearly indicates that the view taken by the Supreme Court
is that since the renewal clause was not clear and specific regarding
terms of renewal, the Court has to ascertain the intention of the
parties from the materials on record. It is not in dispute that oral as
well as documentary evidence in the suit is yet to be laid by the
parties. The judgment of the Supreme Court in case of Naveen
Chand & Anr. (supra) thus would support the case of the plaintiff and
not the case of the applicants in the notice of motion and is clearly
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distinguishable.
23. Insofar as the judgment of the Madhya Pradesh High
Court in case of Hitkarini Sabha (supra) relied upon by the learned
ASG is concerned, there was no clause for renewal in the lease
period in that matter. The said proceedings were under the provisions
of the Land Acquisition act. The facts before the Madhya Pradesh
High Court in that case were totally different and are clearly
distinguishable.
24. Insofar as the chamber summons is concerned, I am
inclined to accept the submission made by Mr.Madon, learned senior
counsel for the original plaintiff that in view of the dispute whether the
original lease deed along with Supplemental Deed of Lease were
illegally terminated by the applicant in the notice of motion or not and
in view of the existing prayer in the plaint that after expiry of the
original lease period on 14th October, 2016, the plaintiff will be entitled
to renewal of the lease for a period of 99 years on the same terms
and conditions with further renewal clause and in view of the
defendant no.1 and 2 stating in the written statement that the said
prayer was premature, the plaintiff is entitled to seek amendment to
the plaint.
25. In my view, even for the purpose of deciding the issue
raised in prayer clause (c) to the plaint whether the plaintiff is entitled
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to the said renewal or not upon getting the declaration from this
Court, the termination of the lease deed is illegal, the plaintiff is also
entitled to bring on record the subsequent events. The application for
renewal of lease is admittedly rejected by the defendant nos.1 and 2.
The prayer for renewal of lease is in furtherance of prayer clause (c)
which has to be read with prayer clauses (a) and (b) of the plaint. In
my view, if this amendment is allowed as prayed, there will be no
change in the basic structure of the plaint.
26. In my view Mr.Madon, learned senior counsel for the
plaintiff is right in placing reliance on the judgment of the Supreme
Court in case of Rajesh Kumar Aggarwal & Ors. (supra). The
Supreme Court has categorically held that if an amendment should
be necessary for the purpose of determining the real question in
controversy between the parties, the amendment has to be permitted
by the Court. It is further held that if cause of action arises during the
pendency of the suit , the proposed amendment ought to have been
granted because the basic structure of the suit has not changed and
there was merely change in the reliefs claimed. The Supreme Court
has held that if the reliefs which are subject matter of the amendment
can be granted in the same suit, such amendment has to be granted.
In my view, the propositions laid down by the Supreme Court in case
of Rajesh Kumar Aggarwal & Ors. (supra) squarely applies to the
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facts of this case. I am respectfully bound by the said judgment.
27. Insofar as reliance placed on the judgment of the Supreme
Court in case of Delhi Development Authority & Anr. (supra) by
Mr.Madon, learned senior counsel for the plaintiff in support of his
submission that prayer clause (c-ii) sought to be inserted in the plaint
thereby challenging the policy framed by the Government is
concerned, this Court need not go into the merits of the case at this
stage whether such policy framed by the Government is illegal or not.
Since the defendant nos.1 and 2 have proposed to take an action
based on such policy, in my view, the plaintiff deserves to be allowed
that amendment also.
28. I therefore, pass the following order :-
a). Prayer clause (a) of the Notice of Motion No.2481 of 2016
is dismissed. Insofar as prayer clause (b) is concerned, since the said
prayer clause (b) is not pressed, this Court need not deal with the
said prayer.
b). Chamber Summons No.1801 of 2016 is allowed in terms
of prayer clause (a). The amendment to be carried out within two
weeks from today. The amended copy of the plaint shall be served
upon the defendants' advocate within one week from carrying out
amendment.
c). Hearing of the suit is expedited.
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d). The defendants are at liberty to file additional written
statement within six weeks from today and a copy thereof shall be
served upon the plaintiff's advocate simultaneously.
29. At this stage, Mr.Rajguru, learned counsel for the
applicants in the notice of motion seeks stay of the order passed
today permitting the amendment in Chamber Summons No.1801 of
2016, which is vehemently opposed by the learned senior counsel for
the plaintiff. The application for stay is rejected. If the appeal of the
applicants in the notice of motion is allowed by the Division Bench of
this Court, the plaintiff can be directed to strike off the amendment.
(R.D. DHANUKA, J.)
