REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8582 OF 2022

Nagpur Metro Rail Corporation Limited …Appellant(s)

Versus

Orbit Motels and Inns Private Limited,

Nagpur & Ors. …Respondent(s)

J U D G M E N T

M.R. SHAH, J.

1.Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court of Judicature at Bombay Bench at

Nagpur in Writ Petition (C) No. 6581 of 2015 by which the High Court

has allowed the said writ petition preferred by the private respondent

herein – original writ petitioner and has directed the appellant – Nagpur

Metro Rail Corporation Limited (hereinafter referred to as “Metro”) to

remove itself from the property in question and hand over the

possession of the same to the original writ petitioner by holding that the

action on the part of the appellant - Metro of forcibly and highhandedly

entering into the premises of the appellant and forcibly securing the

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possession of the same is arbitrary and illegal, the original respondent

No. 1 – Metro has preferred the present appeal.

2.Area admeasuring 9343 square meters, bearing Survey No. 169,

City Survey No. 1864 of Mouza Sitabuldi, District Nagpur was owned by

the Public Works Department of the State of Maharashtra. A lease was

executed in favour of the Maharashtra Tourism Development

Corporation Limited (hereinafter referred to as “Tourism Corporation”)

with respect to the subject land. That the land was sub-leased by the

Tourism Corporation to the respondent No. 1 herein – original writ

petitioner on 17.07.1995 for a period of 30 years. The said lease was

subject to the right of requisition and consequent termination of the lease

by the State of Maharashtra, in case, land in question was required for

public purpose, without any right to the Tourism Corporation as well as

the lessee to challenge such intention of the Government of

Maharashtra.

2.1It appears that in the year 2002, the Tourism Corporation vide letter

dated 27.05.2002 terminated the lease dated 17.07.1995. The

respondent No. 1 – original writ petitioner filed a Special Civil Suit

No. 413 of 2002 against the Tourism Corporation for declaration and

permanent injunction, which is reported to be pending in the Court of

Civil Judge, Senior Division, Nagpur. It is reported that currently the said

suit is at the stage of evidence.

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2.2It appears that the Tourism Corporation also initiated in the year

2004, the proceeding under Sections 5(1) and (2) of the Bombay

Government Premises (Eviction) Act, 1995 against the respondent No. 1

herein – original writ petitioner seeking recovery of dues and peaceful

possession of the land and structure erected thereon. However, it

appears that the said proceedings came to be withdrawn stating

settlement.

2.3It appears that thereafter the Government of India conveyed its

approval for the implementation of the Nagpur Metro Rail Project. The

appellant herein – Nagpur Metro Rail Corporation Limited was to

function as a special purpose vehicle for the implementation of the

project, the legal framework of the project was to be as per the Metro

Railways (Construction of Works) Act, 1978. Thus, the appellant herein -

Metro came into existence. That thereafter, the Government resolution

dated 01.06.2015 came to be issued by the Government of State of

Maharashtra detailing the scope of “advance possession” and describing

its necessity. The advance possession would mean possession that is

delivered to an authority for a project for public purpose without

completing the formality of actual permission. It appears that in order to

implement the project in public interest, the project being the prestigious

project of the city of Nagpur, and as the appellant was in need of the

land, the appellant vide communication dated 27.07.2015 requested the

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State of Maharashtra for the Development of the Metro Rail Project as

there was no land in the vicinity.

2.4The Collector vide order dated 25.08.2015 considering the request

of the appellant allotted the land in question admeasuring 9343 square

meters. The Collector considered the resolution dated 30.01.2014 by

which the State Government gave sanction and the approval dated

21.08.2014 was given by the Central Government to the Nagpur Metro

Rail Project. At this stage, it is required to be noted that the order dated

25.08.2015 categorically mentioned that the allotment is subject to the

outcome of the Civil Suit No. 413 of 2002. In consonance with the order

dated 25.08.2015 passed by the Collector, the possession of the

aforesaid land was handed over by the Senior Regional Manager of the

Tourism Corporation to the representative of the Collector, Nagpur (City)

and accordingly the possession of 7495 sq. mtrs. was, thus, taken over

from the respondent No. 1 and handed over to the appellant on

26.08.2015.

2.5That the respondent No. 1 – original writ petitioner, a lessee,

whose lease was already terminated in the year 2002 filed a Writ Petition

No. 6581 of 2015 against the Metro; District Collector; Tourism

Corporation and the State of Maharashtra before the High Court

challenging the action of the Metro in securing possession of the land in

question. Vide order dated 08.12.2015, the High Court issued a notice

in the writ petition and passed ad-interim order of status quo. The

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Tourism Corporation filed reply to the writ petition and submitted that the

order dated 25.08.2015 passed by the Collector is perfectly legal and in

view of the said order the possession of the land was handed over to the

appellant - Metro. Maintainability of the writ petition was also raised.

2.6The appellant - Metro also filed its reply to the writ petition and

submitted that the Collector has allotted the land in question to the

appellant vide order dated 25.08.2015 and the possession of the said

land was also handed over to the appellant on 26.08.2015. It was

submitted that therefore, it cannot be said that Metro has forcibly entered

the land. It was submitted that the Metro was legally put in possession.

2.7The writ petition was also opposed by the District Collector. A

counter was filed on behalf of the Collector also. It was submitted that

the land in question belonged to the Public Works Department of the

State of Maharashtra and in the year 1992, the land was leased to the

Tourism Corporation and the Tourism Corporation had subsequently

further sub-leased to the respondent No. 1 herein – original writ

petitioner – lessee. It was submitted that thereafter the lease in favour of

the respondent No. 1 – original writ petitioner was terminated, which was

the subject matter of the suit. It was submitted that in order to execute

the Nagpur Metro Rail Project order dated 25.08.2015, the District

Collector transferred the land to the appellant subject to the outcome of

the Civil Suit No. 413 of 2002 filed by the respondent No. 1 – original writ

petitioner. It was submitted that the Tourism Corporation and the Sub-

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Divisional Officer handed over the advance possession to the appellant

on 26.08.2015.

2.8By the impugned judgment and order, the High Court has allowed

the said writ petition and has directed the appellant - Metro to hand over

the possession of the land in question to the respondent No. 1 – original

writ petitioner and the appellant – Metro has been restrained from

dispossessing the respondent No. 1. The impugned judgment and order

passed by the High Court is the subject matter of present appeal.

2.9By the interim order dated 30.09.2016, this Court has stayed the

operation of the impugned judgment and order passed by the High

Court. That thereafter the land in question is being used by the

appellant – Metro for Nagpur Metro Rail Project. That is where the

matter stands.

3.Shri K.V. Viswanathan, learned senior counsel appearing on behalf

of the Metro has made the following submissions in support of his prayer

to quash and set aside the impugned judgment and order passed by the

High Court:-

(i)That the Hon’ble High Court has erred in maintaining the writ

petition under Article 226 of the Constitution of India. It is

submitted that the Hon’ble High Court has misinterpreted the

provision of Section 39 of the Metro Railways (Construction of

Works) Act, 1978 by holding that the jurisdiction of the Civil

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Court is barred and therefore a Civil Suit could not have been

instituted. It is submitted that the bar of Civil Suit will only apply

in cases wherein there is adequate remedy or forum provided

under the Act and not otherwise. In the alternative, it is

submitted that Section 39 uses the words – “no suit or

application for injunction shall lie in any court against the

Central Government or Metro………..…..” The bar is on

injunction and not on filing declaration suit for confirming clear

title over property. It is submitted that injunction is only the

consequential or ancillary relief to declaration. Therefore, only

when the title to land is clear and established beyond doubt by

declaration, and then there is dispossession by the Metro

authorities (in which circumstances suit for injunction would be

filed) the bar under Section 39 would operate. It is submitted

that in the present case, the respondent No. 1’s title was

unclear and the suit was pending at the instance of respondent

No. 1. It is submitted that it is an established principle of law

that when there is a cloud over the title, a suit for mere

injunction is not maintainable and it is imperative to file a suit for

declaration.;

(ii)That there were disputed questions of facts on the issue of

possession and whether it was taken in accordance with law as

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raised in the writ petitioner and therefore this could not have

been adjudicated by the High Court in the writ petition.

(iii)That there was a cloud over the title of the respondent No. 1 –

original writ petitioner - respondent No. 1; the respondent No. 1

was a sub-lessee, whose lease already stood terminated by the

Government; no interim relief was sought for and no interim

order was passed. In fact, the allotment order dated

25.08.2015 clearly stated that the allotment was subject to the

outcome of the Civil Suit No. 413 of 2002 filed by the

respondent No. 1, currently, which is still pending. It is

submitted that unless and until the respondent No. 1 succeeds

in Civil Suit, it had no right to challenge the acquisition and/or

action of the Metro and in fact the Metro is in possession

pursuant to the order passed by the Government dated

25.08.2015.

(iv)It is submitted that even the allotment order dated 25.08.2015

by which the land had been allotted to the appellant had not

been challenged. Therefore, by way of operation of principle of

waiver, the respondent No. 1 is not entitled to question the

handing over of possession to the appellant, which is only

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pursuant to the aforesaid order dated 25.08.2015, which is

virtually a declaratory relief.

(v)It is further submitted that as such the land in question, which

originally was leased to the respondent No. 1, whose lease has

been terminated, for which the Civil Suit is pending, has been

used by the Metro for a public purpose namely Nagpur Metro

Rail Project. That there is no alternate space available for the

appellant to the land in question as on one side there is a

heritage structure – Kasturchand Park and on the other side

there is RBI. Therefore, for building of the station, there is only

the vacant subject land which is needed for the metro station. It

is submitted that without the said land, the Metro Project will

come to halt and will be stranded as the funding for the project

is already tied up and project would be seriously affected if the

work is to be stopped.

4.Present appeal is vehemently opposed by Shri Kapil Sibal, learned

senior counsel appearing on behalf of respondent No. 1.

4.1It is submitted that there was a registered deed of lease dated

17.07.1995 in favour of the respondent No. 1. The respondent No. 3

herein transferred in favour of respondent No. 1 herein by way of lease,

the entire land in question for a period of 30 years for the purpose of

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constructing the hotel complex. It is submitted that since the execution

of the lease deed dated 17.07.1995, the appellant is continuously,

uninterruptedly, and lawfully in actual physical and peaceful use,

occupation and possession of the entire land in question. That the

respondent No. 1 had deposited with respondent No. 3 the annual rent

at the rate of Rs. 96,250/- in accordance with terms of the lease deed.

4.2It is submitted that suddenly on 27.05.2002, the respondent No. 3

herein, issued a notice, terminating the lease, contrary to the terms and

conditions of the lease deed. That by the said notice, the respondent

No. 3 herein threatened to resume the possession of the land together

with structures thereon on 12.06.2002. the respondent No. 1 herein

therefore immediately challenged the said illegal and arbitrary act on the

part of the respondent No. 3 by filing Civil Suit No. 413 of 2002 against

the respondent No. 3 herein for a declaration and permanent injunction,

which is pending adjudication. It is submitted that the actual physical

and lawful possession of the suit property continues to be with the

respondent No. 1 herein. It is submitted that in that view of the matter,

the peaceful possession of the respondent No. 1 herein could not have

been disturbed or interfered with without following the due process of

law.

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4.3It is submitted that the action on the part of respondent No. 2

herein of handing over the advance paper (symbolic / token) possession

of the property to the appellant herein and the action on the part of the

appellant herein now forcibly entering into the suit property by breaking

the eastern side compound wall of the suit property and encroaching

upon about 3000 square feet of land of the property is patently arbitrary,

illegal, improper and high handed and therefore, the Hon’ble High Court

has rightly allowed the writ petition and rightly declared that the action on

the part of the appellant herein – Metro is arbitrary and illegal. It is

submitted that therefore the Hon’ble High Court has rightly passed a

further order directing the appellant – Metro to remove itself from the

property and hand over the possession of the same to the respondent

No. 1 – original writ petitioner. It is submitted that the Hon’ble High Court

has rightly restrained the appellant and others from dispossessing the

original writ petitioner without following the due process of law. It is

submitted that the impugned judgment and order passed by the High

Court is absolutely legal, just and proper, which is not required to be

interfered with by this Court.

5.Heard the leaned senior counsel appearing on behalf of the parties

at length.

6.At the outset, it is required to be noted that pursuant to the

allotment order dated 25.08.2015 by the Collector, the land in question

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has been allotted to the appellant for a public purpose namely, Nagpur

Metro Rail Project. Pursuant to the said allotment order, the appellant

has been in occupation and possession of the land in question, which is

being used by the appellant for railway project. The order of allotment

dated 25.08.2015 has not been challenged at all by the original writ

petitioner – respondent No. 1 herein. Therefore, as such, when the

appellant is allottee of the land in question pursuant to the allotment

order dated 25.08.2015 and is in occupation and possession of the

allotted land, which is being used for a public purpose, i.e., Nagpur

Metro Rail Project, the appellant cannot be said to be in illegal

possession. Therefore, as such, the High Court has materially erred in

observing and holding that the appellant is in illegal possession and

occupation of the land in question.

6.1Even otherwise, the High Court ought not to have entertained the

writ petition preferred by the respondent No. 1 herein considering the

fact that there was a cloud over the title of the respondent No. 1. It is

required to be noted that the respondent No. 1 claimed the right as a

lessee pursuant to the registered Lease Deed dated 17.07.1995.

However, the lease in favour of the respondent No. 1 – original writ

petitioner has been terminated by notice dated 27.05.2002. The

termination of the lease is the subject matter of Civil Suit No. 413 of

2002 filed by the respondent No. 1 against respondent No. 3 herein.

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Neither any interim relief / order had been prayed nor there was an

interim relief in favour of the respondent No. 1 in the pending suit. In the

meantime, considering the public need and in the larger public interest,

the land in question is allotted to the Metro for Nagpur Metro Rail

Project.

At the cost of repetition, it is observed that the allotment dated

25.08.2015 is not under challenge and the same has not been

challenged at all. Therefore, unless and until, the rights of the original

writ petitioner in the land in question are established, which shall be

decided in the Civil Suit which is pending, the writ petition filed by the

original writ petitioner could not have been entertained by the High

Court.

6.2Even otherwise, in view of the disputed question of facts that

whether the actual possession was taken over or not and / or whether

the appellant herein was handed over the possession rightly or not, the

High Court ought not to have passed the impugned judgment and order

and ought not to have issued the impugned directions in exercise of the

powers under Article 226 of the Constitution of India. At this stage, it is

required to be noted that if the respondent No. 1 succeeds in the suit

filed by him, in that case, it may claim the compensation, but unless and

until its rights are crystalised in a pending suit, a public project cannot be

stalled. The allotment order dated 25.08.2015 and the possession

handed over to the appellant pursuant to the said allotment cannot be

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said to be per se illegal. Under the circumstances, the impugned

judgment and order passed by the High Court is unsustainable.

7.In view of the above and for the reasons stated above, the present

appeal succeeds. The impugned judgment and order passed by the

High Court is hereby quashed and set aside. The original writ petition

filed by the respondent No. 1 herein stands dismissed. However, Civil

Suit No. 413 of 2002 pending before the competent Civil Court be

decided and disposed of in accordance with law and on its own merits as

the same is not the subject matter of present litigation.

Present appeal is allowed accordingly. No costs.

Pending application, if any, also stands disposed of.

………………………………….J.

[M.R. SHAH]

NEW DELHI; ………………………………….J.

DECEMBER 06, 2022. [M.M. SUNDRESH]

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