Bombay High Court
Gaurav S/O Sunil Mutha vs The Nagpur Improvement Trust, Through ... on 10 February, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:1387-DB
WP 561 of 2024- Judgment.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.561/2024
PETITIONER : Gaurav S/o Sunil Mutha,
aged 33 years, Occu : Medical Practitioner,
R/o 12, East High Court Road, Ramdaspeth,
Nagpur - 440010.
...VERSUS...
RESPONDENTS : 1. The Nagpur Improvement Trust, Through
its Chairman.
2. The Executive Officer, Nagpur
Improvement Trust.
3. The Divisional Officer (South), Nagpur
Improvement Trust.
4. The Secretary-1, Estate Section,
Nagpur Improvement Trust, Nagpur.
All Having Office at Station Road, Civil
Lines, Nagpur - 440001.
Mr. Sunil Manohar, Senior Advocate a/b Mr. A.S.
Manohar, Advocate for petitioner
Mr. M.K. Pathan, Advocate for respondents
5
CORAM : AVINASH G. GHAROTE
AND
ABHAY J. MANTRI, JJ.
DATE : 10/02/2025
ORAL JUDGMENT : (PER : AVINASH G. GHAROTE, J.)
WP 561 of 2024- Judgment.odt
1. Rule. Rule made returnable forthwith. Heard finally with
the consent of the learned Counsels for the parties.
2. Heard Mr. Manohar, learned Senior Counsel for the
petitioner. It is not disputed that the land bearing Khasra No.62
admeasuring 2.87 Hectares, Mouza Tarodi (Khurd), was granted on 5
lease, to one Abdul Rafiq by indenture of lease dated 19/06/1970
(pg.27) which was for a period from 19/12/1969 to 31/03/2000.
The said lease-deed contained a renewal Clause - 3 under the terms
of which the lessor/respondent covenanted that it will at the end of
the term granted by the lease and so on from time to time thereafter, 10
at the end of successive further term of years as shall be granted at
the request and cost of the lessee, execute to him a renewed lease of
the said land for a term of 30 or 99 years, which was subject to
enhancement of the rent which would not be not more that 50 % of
the rent existing at the time of renewal for the grant of every 15
renewed lease. The said lease also contained Clause - 1 (j) which
enjoined upon the lessee, in the case of transfer or assignment to
deliver a notice of such assignment/transfer to the lessor for which
there was no time-frame.
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3. By way of a deed of transfer of leasehold rights, the
original lessee Abdul Rafiq transferred the aforesaid land to Maniklal
Motilal Mutha, the petitioner is his grandson, which deed is dated
14/10/1970 (pg.33). The transfer/assignment was intimated to
Nagpur Improvement Trust (NIT), by communication dated 5
17/10/1970 in response to which the NIT by communication dated
16/11/1970 (pg.37) accepted the transfer/assignment on the same
terms and conditions as contained in original lease dated
19/06/1970. By a communication dated 12/05/1999, the respondent
No.1/NIT for the purpose of renewal of the lease for a further period 10
of 30 years from 01/04/1999 and onwards, indicated what would be
the ground rent and also indicated that the costs for the registration
of the lease-deed would have to be borne by the lessee and so also
the further renewal of the lease for the next 30 years period would be
in terms of the norms prevailing at that point of time. The said 15
communication also indicated that the renewal would come into
effect from 01/04/1999 for which purpose stamp paper of Rs.100/-
should be submitted. Clause -8 of the said communication indicated
that the registration should be got done within a period of three
months from the date of this communication. The communication 20
WP 561 of 2024- Judgment.odt
dated 18/03/2002 by Maniklal Mutha to NIT (pg.39) which is not
disputed by the learned Counsel for the respondent NIT, indicates a
request for renewal of the lease being made and also refers to the
communications dated 24/04/1998, 30/08/1999, 11/10/1999 and
several others and also the handing over of stamp paper of Rs.100/-. 5
There is also a reminder in this regard of said Maniklal Mutha dated
29/03/2003 to the NIT (pg.40). By the communication dated
09/04/2008 (pg.41) Maniklal Mutha was intimated by the NIT to get
the 7/12 extract of the land in question corrected by showing the NIT
as the owner and the said Maniklal Mutha as a lessee, consequent to 10
which only, the further action of renewal would be taken up. A
similar communication is dated 11/10/2021 addressed to the
petitioner (pg.55). On 17/01/2024 notice for termination of the
licence and for taking possession was issued by the NIT/respondent
No.1 (pg.63), which came to be withdrawn by the communication 15
dated 12/09/2024 (pg.64-A) on the ground that a fresh decision
would be taken after hearing.
4. By the impugned communication dated 27/09/2024
(pg.64-T) the lease in favour of the petitioner has been terminated on
account of breach of Condition No.3 of the lease-deed and the 20
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Divisional Officer (South) is directed to take possession of the land in
question by issuing a month's notice.
5. Condition No.3 in the original lease-deed dated
19/06/1970 reads as under :
"The lease will be initially for 30 years only. The lesser 5
further covenants that it will at the end of the term hereby
granted and so on from time to time thereafter, at the end of
successive further term of years as shall be granted at the request
and cost of the lessee, execute to him a renewed lease of the said
land for the term of thirty or ninety nine years." 10
6. A reading of the above clause, would indicate that all
that is contemplated therein is granting a right to the lessee to get the
lease renewed from time to time at the end of each successive further
term of years at the cost of the lessees. The communications on
record, dated 18/03/2002 and onwards indicate that at no point of 15
time the lessee ever indicated that he was not willing to get the lease
renewed at his cost. In fact, the communication dated 18/03/2002
(pg.39) refers to the communications dated 24/04/1998,
30/08/1999 and 11/10/1999, by which a request for execution of
the renewed lease-deed has been made, for which a stamp paper of 20
Rs.100/- is also claimed to have been handed over to the NIT. It
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would therefore be apparent that Clause-3, can never be the ground
for claiming that there is a breach of the conditions of the lease by
the petitioner or for that matter his predecessor. It is equally
necessary to note that Mr. Pathan, learned Counsel for the NIT does
not deny that Mr. Maniklal Mutha has continuously paid the ground 5
rent, to the NIT for all these years, and there is no default on that
ground.
7. Though Mr. Pathan, learned Counsel for the NIT
contends that there is a breach of Clause -8 of the communication
dated 12/05/1999 (pg.38) on account of the lease not being having 10
got executed within a period of three months from the date of the
aforesaid communication, what we find is that the receipt of the
communications of the years 1999, 2002 and 2004 by Maniklal
Mutha for execution of the renewal of the lease, are not disputed, as
these find place in para 6 of the impugned order dated 27/09/2024 15
(pg.64 -V). This would clearly indicate that the said Maniklal Mutha
was throughout ready to get the lease-deed executed and registered
in his favour.
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8. It is also necessary to note that the original lease dated
19/06/1970 did not cast any such obligation upon the original lessee
and the communication dated 16/11/1970, also accepted the
assignment on the same terms and conditions, as contained in the
original lease dated 19/06/1970. It is also necessary to note, that 5
impugned order dated 27/09//2024 in para 6 (pg.64-V) categorically
records that Mr. Maniklal Mutha had paid the enhanced ground rent
and also the renewal charges, which would indicate, that the
execution of the renewed lease-deed, was now to be done by the NIT,
as all that was required by the lessee was to pay the enhanced 10
ground rent, the lease renewal charges and the deposit of the stamp
paper, which already stood done by Maniklal Mutha. We, therefore,
find that the rejection of the claim of the petitioner for grant of a
renewed lease based upon Clause-8 of the communication dated
12/05/1999 (pg.38 ) is clearly unjustified and unwarranted in law. It 15
would also be necessary to record that the NIT, was itself aware that
there was an incorrect recording of its name in the 7/12 extract, as is
indicated by the communication dated 09/04/2008 (pg.41) and
though it was the responsibility of the NIT to get it corrected by
showing it to be the owner of the property in question, it transferred 20
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the obligation to do so upon the lessee, which indicates the reason
for the delay in the matter which is also reflected from the
communication dated 11/10/2021 (pg.55).
9. We are therefore not willing to agree with the contention
of Mr. Pathan, learned Counsel for the respondents/NIT that the 5
rejection of the claim for execution of a renewed lease on the same
terms and conditions, as contained in the original lease dated
19/06/1970 though on enhanced rent, was justified.
10. Though it is also contended by Mr. Pathan, learned
Counsel for the NIT that a plea of alternate remedy is available, 10
under Section 108 -A (3) of the Nagpur Improvement Trust Act, 1936
to the State Government, we find that the State Government controls
the Nagpur Improvement Trust. Having heard the learned Counsels
fully, we do not deem it appropriate to now relegate them to the
alternate remedy, as that by itself does not prevent the Court from 15
exercising its jurisdiction.
11. We, therefore, quash and set aside the impugned order
dated 27/09/2024 (pg.64-T) and hold that the petitioner is entitled
to renewal of the lease on the same terms and conditions as
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contained in the original lease dated 19/06/1970, however, subject
to enhanced rent, as indicated by Clause- 3 of the original lease-
dated 19/06/1970. The writ petition is, therefore, allowed in the
above terms. Rule is made absolute in the aforesaid terms. No order
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 12/02/2025 16:58:50
