Madhya Pradesh High Court
Mahakoshal Shaheed Smarak Trust vs The State Of M.P. & Ors. on 2 March, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 2 nd OF MARCH, 2023
WRIT PETITION No. 5385 of 1999
BETWEEN:-
MAHAKOSHAL SHAHEED SMARAK TRUST (MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.P. AGRAWAL - SENIOR ADVOCATE WITH SHRI RAHUL GUPTA -
ADVOCATE)
AND
1. THE STATE OF M.P. & ORS. (MADHYA PRADESH)
2. MUNICIPAL CORPORATION THROUGH COMMISSIONER
JABALPUR (MADHYA PRADESH)
3. SHRI RAMESH THETE COMMISSIONER MUNICIPAL
CORPORATION JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ARPAN PAWAR - ADVOCATE)
"Reserved on: 30/01/2023"
"Pronounced on: 02/03/2023"
" T his petition having been heard and reserved for orders, coming on for
pronouncement this day, the Court pronounced the following:
ORDER
The petitioner has filed this petition under Article 226/227 of the Constitution of India while praying for the following reliefs:-
" (i) So called show cause and enquiry contained in Annexure P/16 be quashed and the enquiry proceeding initiated pursuant thereto be quashed.
(1-A) The order dated 07.12.1999/08.12.1999 Annexure P/18 issued by the 2nd respondent be quashed.
Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 2(ii) The show cause notice dated 19.03.2012 contained in Annexure P/17-A be restrained from re-entering into the trust ground and take possession of the same.
(iii) The respondent No.2 be restrained from interfering with the affairs of the trust.
(iv) The Second respondent be also directed to renew lease and refrain from enquiring into the affairs to the trust.
(v) Any other relief deemed fit be also granted."
2. The facts as elaborated in the petition reflect that the petitioner' Trust was created on the strength of a Trust Deed dated 31.10.1947 contained in Annexure P/1 and the said Trust was then registered under the provisions of M.P. Public Trust Act, 1951 vide Annexure P/2. The then Municipal Committee leased out an area of 4,52,580 Sq.ft. of land by Lease-Deed dated 31.10.1947 bearing Diversion Plot No.190 situated in Niwadganj Extension, Wright Town Jabalpur, District-Jabalpur to Trust for a period of 30 years on a nominal rental of Rs.1/- per annum. After execution of the Lease-Deed a building was constructed which is known as 'Shahid Smarak Bhawan'. T h e entire premises consist of Building, Garden, Playground, Meeting Hall, Library, Museum and Fine Art Gallery. The accounts of the trust are regularly audited and the accounts are in turn, referred to Registrar of Public Trust in accordance with the statutory provisions. As the term of lease was to be expired on 31.10.1997, the petitioner's Trust submitted an application on 26.09.1997 for renewal of the lease and the said application has been brought on record as Annexure P/8. Thereafter, the petitioner' Trust, persuaded the Authorities for renewal of lease by lot many communications which have been brought on record as Annexure P/10, however, the lease was not renewed. In terms of Lease- Deed, a swimming pool was also required to be constructed but the income of the trust was not adequate enough to fulfill the need of a swimming pool, therefore, a letter dated 23.07.1991 (Annexure P/11) was submitted to the Secretary of Ministry of Human Resources and Development and financial assistance was sought. Thereafter, few meetings were committed but no concrete decision could be taken. As, the renewal of Lease-Deed was not being carried out by the Municipal Committee, the same resulted in Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 3 withholding of financial assistance for the purposes of swimming pool by the Ministry of Human Resource and Development. In the building, there was a Congress Office upto 1953-1954 but thereafter, the said office was shifted. Few portions of the Trust property were being let out to certain tenants which have been described in paragraph 5.22 of the petition and the factum of letting out was within the knowledge of the Municipal Authorities.
3. The Authorities were well aware about the letting out of the some portion of the property to the offices after due sanctioned and approval by the Collector. Thereafter, in view of a campaign launched with an oblique motive on the basis of a newspaper publication, respondent No.2 issued a notice dated 18/19-11-1999 contained Annexure P/16 to the petitioner's trust. By a notice dated 18/19-11-1999 (Annexure P/16), the petitioner' Trust was called upon to explain as to why the possession of the Trust be not taken over in terms of Clause-10 of the Lease-Deed inasmuch as, there are violation of terms and conditions of the Lease-Deed.
4. The show cause notice contained following allegations:-
(i) The park, swimming pool and playground have not been developed.
(ii) A part of the building was let out to the apartment of the Panchayat and Rural development without there being permission of the Municipal Corporation.
5. The said notice dated 18/19-11-1999 was replied by the Trust and in the reply, the efforts regarding construction of swimming pool were elaborated and it was also informed to the authority that letting out of the part of the premises to department of Panchayat Rules development was within the knowledge of the Municipal Authorities as there was intimation to the Municipal Authorities accordingly, the tax assessment was carried out by the Municipal Corporation. The petitioner' Trust also furnished the details of the tenant and also the tax paid to the Municipal Corporation. The issue regarding construction of swimming pool was also explained in paragraph 4 of the reply.
Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 46. Challenging the show cause notice dated 18/19-11-1999, this petition vide W.P.No.5385/1999 was filed and during pendency of the said petition, another show cause notice was issued to the petitioner's trust dated 19.03.2012 contained in Annexure P/17-A and the same contained allegation of violation of Clause-IX of the lease deed and the petitioner was again called upon to submit reply to the same. The documents were submitted before the Municipal Corporation along with the reply by the petitioner' Trust and the said reply is contained in Annexure P/17-B. The said show cause notice is also challenged in the present petition by way of amendment.
7. The prayer in the present petition is as regards quashing of the show cause notice dated 18/19-11-1999 (Annexure P/16), show cause notice dated 19.03.2012 (Annexure P/17-A) and quashing of the modified notice dated 07/08-12-1999 by which it was clarified by the respondent that in the show cause notice, the Clause-10 was incorrectly mentioned whereas the same should be read as Clause-11. The further prayer which has been made in the petition is for direction to the respondents to renew Lease- Deed and refrain from enquiring into the affairs to the trust.
8. Learned Senior Advocate for the petitioner contends that a perusal of the show cause notice dated 18/19-11-1999 contained in Annexure P/16 and also show cause notice dated 19.03.2012 (Annexure P/17-A) reflect that the respondents had already made up their mind and the show cause notice had in fact colour of an order itself. As the Municipal Corporation decided to proceed against the petitioner, nothing further was to b e adjudicated inasmuch as, the Municipal Corporation came to a conclusion that the petitioner' Trust was guilty of violation of the terms and conditions. It is contended by the Senior counsel that the petitioner should have been called upon to explain if in the opinion of the Municipal Corporation, there was violation of terms and conditions at the behest of the petitioner' Trust. The counsel while taking this Court to the return submitted that the Municipal Corporation by paragraph 3 of the return made it abundantly clear that Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 5 the issuance of show cause notice was merely a formality inasmuch as, the respondent No.2 had already taken a decision to take coercive action against the petitioner and the Municipal Corporation without extending opportunity of hearing to the petitioner' Trust concluded that the petitioner was guilty of violation of the Lease-Deed.
9. Further submission of the Senior Advocate that none of the conditions of Lease-Deed were violated. The facts regarding delay in constructions of swimming pool were well explained to the respondents. The facts regarding letting out the premises to Government Office was also well explained. The entire documents were submitted before the respondents but, respondents again issued a show cause notice dated 19.03.2012 (Annexure 17-A) which was subsequently assailed in the present petition by way of amendment the same reflects that the Municipal Corporation had already made up a mind to exercise the right of re-entry over the leased property. Therefore, counsel submits that the issuance of the show cause notice was an exercise in futility and thus, in view of the law laid down by the Apex Court in K.I. Shephard and others vs. Union of India and others reported in (1987) 4 SCC 431, the impugned notices deserve to be quashed as the notices have been issued in the garb of the orders and thus, there is no question of consideration of the grievance of the petitioner. It is also contended by the Senior Advocate that the Municipal Corporation had already pre-judged the issue and held that the petitioner was guilty of violation of terms and conditions of the lease-deed, therefore, the impugned orders deserve to be quashed in view of the law laid down by the Apex Court in the cases of V.C. Banaras Hindu University vs. Shrikant reported in (2006) 11 SCC 42, Shekhar Ghosh vs. Union of India and Another reported in (2007) 1 SCC 331, Siemens Ltd. vs. State of Maharashtra and others reported in (2006) 12 SCC 33, Oryx Fisheries Private Limited vs. Union of India and Others reported in (2010) 13 SCC 42, Hari Krishna Mandir Trust vs. State of Maharashtra and Others Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 6 reported in (2020) 9 SCC 356 and Lohia Properties (P) Ltd. Tinsukia, Dibrugarh, Assam vs. Atmaram Kumar reported in (1993) 4 SCC 6.
10. It is also contended by the Senior counsel that as the Municipal Corporation had already decided to proceed against the petitioner therefore, if the petitioner is again relegated at the hands of the Municipal Corporation, no useful purpose would be served and accordingly, while placing reliance on the decision of the Apex Court in the case of Hari Krishna Mandir Trust (supra) submits that the impugned notices be quashed. It is further contended by the counsel that as there is failure by the Municipal Corporation, Jabalpur to rebutt the specific assertions made in the body of the petition, averments deserve to be treated as admitted and accordingly, plea of non- traverse contained in Order 8 Rule 5(1) of C.P.C. is applicable in the present case inasmuch as, there is no specific denial of the averments made by the petitioner in the petition as well as rejoinder. The Senior counsel has placed reliance on the decisions of the Apex Court in the cases of Badat and Company Bombay vs. East India Company reported in AIR 1964 SC 538 and Lohia Properties Limited vs. Atmaram Kumar reported in (1993) 4 SCC 6. Learned Senior counsel has also placed reliance upon the decision of the this Court in W.P.No.2492/2019 (Kanta Yogesh Sadarang vs. State of M.P. and Ors.) while submitting that the petition against a show cause notice is maintainable.
11. Per contra, learned counsel on behalf of the Municipal Corporation Shri Pawar submits that the present petition is liable to be dismissed inasmuch as, firstly the petitioner' Trust to whom the property in question was leased out way back on 30/31-10- 1947 for a period of 30 years, did not make any efforts to get the lease deed renewed. It is contended by the counsel that the petitioner was sitting tight over the matter and also letting out the property in flagrant violation of the terms and conditions stipulated in the lease-deed. It is also contended by the counsel that the lease-deed specifically provides Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 7 that the petitioner' Trust would not sub-let or transfer the property and if there are violation of the terms and conditions of the lease-deed, the Municipal Committee shall have a right to re-entry.
12. Counsel further contends that Clause-IV of the lease-deed provides that within a period of 5 years from the execution of lease-deed, the petitioner' Trust was required to construct a swimming pool. The petitioner' Trust then was under an obligation to adhere to the terms and conditions and should have constructed the swimming pool which has not been constructed by the petitioner which is evident from the admission made by the petitioner in the petition. It is further contended by the counsel that the part of the property was let out to the Government Office without there being any intimation to the Municipal Corporation, therefore, in order to exercise the right to re- entry in terms of Clause-xi, the show cause notice was issued to the petitioner. The further contention of the counsel for the respondent is that the present petition is only against a show cause notice and a writ petition against show cause notice is not maintainable inasmuch as, the interference at such a per-mature stage is not warranted.
13. The petitioner is first required to submit its stand before the authority and the authority then shall take into consideration the stand of the petitioner submitted in response to the show cause notice, therefore, at this stage, the present writ petition filed under Article 226 of the Constitution of India is not maintainable. The counsel has placed reliance upon the decision of the Apex Court in the case of Commissioner of Central Excise, Haldia vs. Krishna Wax Private Limited reported in (2020) 12 SCC 572, State of U.P. and Another vs. Anil Kumar Ramesh Chandra Glass Works and Another reported in (2005) 11 SCC 451, Special Director and Another vs. Mohd. Ghulam Ghouse and Another reported in (2004) 3 SCC 440 and Union Bank of India vs. Venkatesh Gopal Mahishi and Another reported in (2006) 12 SCC 20. It is Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 8 also contended by the counsel that there cannot be a principle of waiver against the public interest. Counsel further contends that it lies ill in the mouth of the petitioner to allege that by the conduct, the Municipal Corporation precisely permitted the petitioner' Trust to carry out activities which were prohibited in view of the terms and conditions of the lease-deed. It is also contended by the counsel that waiver is an intentional relinquishment of a known right but the same does not operate against the public interest. Undisputedly perusal of the various clauses of the lease-deed reflect that the public interests are directly involved in the matter, thus, the principle of waiver had no applicability in the case in hand. Accordingly, the counsel for the respondents while placing reliance upon the decision of Supreme Court in the cases of All India Power Engineer Federation and Others vs. Sasan Power Limited and Others reported in (2017) 1 SCC 487 and Krishna Bahadur vs. Purna Theatre and Others reported in (2004) 8 SCC 229 submits that the present petition deserves to be dismissed.
14. Heard the rival submissions of both the parties and perused the record.
15. Undisputed facts in the present petition are to the effect that the petitioner is a Trust duly registered under the statutory provisions. The petitioner' Trust was leased out the property described hereinabove on the strength of a lease-deed dated 31/10/1947. The lease-deed was for a period of 30 years and in terms of the lease-deed, the petitioner' Trust was permitted to construct a building on an area measuring about 1500 sq.ft. and the petitioner was also required to develop park and playground as well. In Clause (iv) of the lease-deed, it was stipulated that the trust would make provisions for swimming pool as well. Clause (v) of the deed provided that the Shaheed Smarak Bhawan shall contain a large meeting hall, library, reading room, museum, fine art gallery and to house the Congress offices but shall not be used for any other purposes. Clause (ix) of the deed provided that the use of the building and any part of the area shall be restricted to public purposes. Clause (x) of the lease-deed further provided that there shall not be any sub-
Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 9lease or transfer whatsoever. Clause (xi) conferred a right to re-entry to Municipal Committee in the event of breach of terms and conditions. Therefore, to deal with the first impugned show cause notice dated 18/19.11.1999 if the terms and conditions are perused, the same would reveal that the petitioner was given a show cause notice on the ground of violation of following conditions:
1. The park, playground and swimming pool were not developed.
2. without obtaining permission from the Municipal Corporation, part of the portion was let-out to department of Panchayat and Social Welfare Development.
16. The said show cause notice was replied by the petitioner and in the reply it was submitted that there was no violation. The property consists of park and playground which is being used by the public and so far as the swimming pool is concerned, the petitioner explained that for the purposes of financial assistance, the matter was referred to Ministry of Human Resources and the same was also ensued in a meeting and also issuance of a Demi official letter dated 01/10/1999 (Annexure P/13) and in the said letter the Ministry stated that for the purposes of development of pool, the renewal of the deed is a condition precedent. So far as the office of Department of Panchayat and Social Development was concerned, it was explained by the present petitioner in paragraph 5 that from 1953-1954 onwards, various office like Survey of India and Mahakoshal Congress Office were in the premises and all the occupants were disclosed in the property tax assessment Register and the Municipal Corporation also recovered the tax on the basis of the rent which was received from the tenants and the said rent was being paid by the petitioner's trust since last 44 years. The Municipal Corporation during period of 44 years, did not raise any objection. The trust also explained that to maintain such huge property, the colossal amount is required and therefore, the amount of rent is utilized to maintain the property and also to meet the ancillary expenses. The petitioner in paragraph 6 of the reply submitted that none of the part of the property in question was Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 10 let-out to the Department of Panchayat and Rural Development whereas some part of the property were let-out to the 5 different departments of the State Government namely Kshetriya Jan Sampark Karyalay, Sanyukt Sanchalak Udyog, Jabalpur, Sambhagiya Karmshala Panchayat and Rural Services, Jila Udyog Kendra, Jabalpur and Soochna evam Prakashan Kendra, Jabalpur. It was contended in paragraph 7 that in terms of Clause 3 (d) of the Trust-deed, the running of the Trust infact is based on the rent and the maintenance of the trust is only possible if the trust has income from the rent. It was also submitted in paragraph 7 that the lease-deed as well as Trust deed were registered simultaneously and at the time of registration, there was no objection by the Municipal Corporation. In paragraph 8 the petitioner trust enclosed the receipts pertaining to the dues paid to the Municipal Corporation from time to time including the rent, Safai Tax, Water Tax, Electricity Tax, Property Tax etc. In the reply, the petitioner also submitted the income and expenditure details before the respondents and it was also submitted in the reply that with an oblique motive, the news-paper publications were made which ensued in issuance of show cause notice. The trust also submitted in the reply that despite submission of renewal application, no decision was taken by the Municipal Corporation to renew the lease-deed. The second impugned show cause notice is dated 19/03/2012. In this show cause notice, altogether different allegations were levelled against the petitioner' Trust. In subsequent show cause notice dated 19/03/2012, there were allegations of setting of Cracker/patakha Market, Woolen Market, Marriage Ceremony and Exhibitions which were permitted by the petitioner' Trust within the premises of the property and therefore there was violation of the terms and condition. The said show cause notice was also replied by the petitioner and the petitioner placed the entire NOC's issued by Municipal Corporation, for each activity like Crackers/Patakha Market, Woolen Market, Marriage, Marriage Ceremony and Exhibitions etc. The petitioner also reminded the Municipal Corporation that the Trust never Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 11 permitted the holding of Marriage Ceremony but the parties concerned in past, approached this Court by way of WP No.1292/2000 and 5385/1999 and the Court permitted the Trust to temporarily allot the land for holding of Marriage Ceremony. Therefore, the petitioner submitted that there was no violation and the activities which were conducted in the premises were well within the notice of the Municipal Corporation and the Municipal Corporation also received rent without any protest. Thus, a comparative evaluation of both the show cause notices (Anneuxre P/16 and Annexure P/17-A) reflects that in both the notices, the allegations were different and were not even remotely connected with each other. At this juncture the subject which is mentioned in the show cause notice Annexure P/16 is important and the same is being reproduced herein:
page 168 P/16 dk;kZy; vk;qDr] uxj fuxe] tcyiqjA dzekad&fu0l0vk0@99@229 tcyiqj fnukad 18-11-99 19-11-99 izfr] v/;{k@esusftax VLVh] ' 'kghn Lekjd Hkou] IykV ua- 190] fuokMZxat ,DlVsU'ku] ia0 Hkokuh izlkn frokjh okMZ] tcyiqjA fo"k;%& IykV ua0&190 fuokMZxat ,DlVsUlu dh yht 'krksZ ds mYya?ku ,oa o"kZ 1997 ls uohuhdj.k u djk, tkus ds laca/k es dkj.k crkvks uksfVlA mijksDr fo"k;karxZr lwfpr gS fd uxj fuxe tcyiqj us E;q0 IykV ua0& 190 fuokMZxat ,DlVsU'ku ia0 Hkokuh izlkn frokjh okMZ ds vUrxZr 4]52]580 oxZQqV 10-34 ,dM+ Hkwfe fcuk izhfe;e ukehuy 1-00 okf"kZd Hkw HkkM+s ij esusftax VzLVh lsB xksfoan nkl th ds uke ls fnukad 31-10-47 ls 30 o"khZ; iV~Vs ij fn;k x;k Fkk ftldh vof/k 30-10-77 es lekIr gks pqdh gSA vkius fnukad 28-09-77 esa uohuhdj.k gsrq vkosnu izLrqr fd;k ftlesa iw.kZ tkudkjh u nsus ds dkj.k uohuhdj.k dh dk;Zokgh lEiUu ugh gks ldhA yht vuqca/k dh 'krksZ ds vuqlkj 'kghn Lekjd Hkou dk fuekZ.k 5 o"kZ ds vanj 15000 oxZQqV es ehfVax gky] iqLrdky;] v/;;u d{k] laxzkgky;] dkbZu vkVZ xSyjh ds mi;ksx djus dh 'krZ ds lkFk lkFk 'ks"k [kqys Hkw[ k.M esa ikdZ] [ksy dk eSnku Lohfeax iwy] dk fuekZ.k vke turk ds mi;ksx gsrq fodflr ugha fd;k x;k gSA Hkou esa dkaxzsl vkfQl lapkfyr ugh gS ,oa uxj fuxe dh cxSj vuqe fr izkIr fd;s fu/kkZfjr yht 'krksZ ds fo:) iapk;r ,oa lekt dY;k.k foHkkx dks Hkou fdjk;s ij ns fn;k gSA bl rjg vkius yht vuqca/k es nh xbZ 'krksZ dk mYy?kau fd;k gS vr% fuxe }kjk ys fy;k tkosaA VzLV }kjk leqfpr larks"ktud i{k 7 fnu ds vanj izLrqr u gksus ij fu;ekuqlkj oS/kkfud dk;Zokgh dh tkosxhA vk;qDr] uxj fuxe] tcyiqjA Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 12
17. A perusal of the subject reflects that the show cause notice was issued on two grounds.
1. There was violation of terms and condition of the lease.
2. non renewal of the lease-deed.
18. Show cause notice dated 18-19/11/1999 (Annexure P/16) is issued in complete ignorance of the petitioner's application for renewal of lease-deed which was submitted on 26/09/1977 (Annexure P/8). The said application was submitted by the petitioner' Trust even before the expiry of 30 years of stipulated period of original lease. Thereafter, there are various letters on record which are contained in Annexure P/10 by which the Municipal Corporation from 1977 till 1999 on number of occasions was approached with a prayer to renew the lease-deed. The Municipal Corporation for a prolong period of 22 years, neither renewed the sale-deed nor levelled any allegations of violation of the terms and conditions of the lease deed. This, prolong period of 22 years, constrains to doubt the conduct of the Municipal Corporation inasmuch as if in the opinion of the corporation there were allegations of violation of terms and conditions of the lease-deed as to why the Municipal Corporation was sleeping over its right which flows from Clause xi of the lease-deed and also did not make any effort to renew the lease-deed. In both the show cause notices Annexure P/16 and Annexure P/17-A, the Municipal Corporation has nowhere expressed that the Municipal Corporation was not aware about the activities which were being carried out in the premises. On the contrary, the enclosures filed with the reply to both the show cause notices reflect that the Municipal Corporation was well aware and was also accepting the statutory dues towards rent and tax etc. without any demur or protest and therefore there was acquiescence as well as waiver at the behest of Municipal Corporation, Jabalpur as regards the activities which were being conducted by the present petitioner. Though learned counsel for the respondent has made an effort to substantiate that in the matter of public interest, the Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 13 doctrine of waiver has no applicability but in the present case, in both the show cause notices or even in the return, this is not the stand of the respondent that the public had any grievance as regards activities which were conducted in the premises or as regards the facilities in terms of the lease-deed were not made available to the public. Undisputedly, all the provisions in terms of lease-deed, were provided by the petitioner' Trust except swimming pool and the circumstances under which the swimming pool could not be developed were also explained by the petitioner in their reply. The parties do not dispute that now there is a swimming pool which is operational.
19. The petitioner' Trust came into existence upon execution of a trust-deed dated 31/10/1947. The Trust-deed was executed on the same day when the lease deed was executed i.e 31/10/1947. The Trust-deed contained a Clause that the requisite sanction of the provincial government for the lease of the land has been accorded and Clause iii (c) of the lease-deed further provided that the affairs of the trust shall be managed on the basis of expenses by letting out its premises on rent as well. The lease- deed was executed between the then officer-in-charge of Municipal Corporation, Jabalpur and managing trustee of the trust. It is also important that the lease-deed also refers to the sanction accorded by the then provincial government of CP and Barar as regards allotment of 4,52,580 sq.ft. or 10.34 acres of land to the petitioner' Trust. Thus, the then Municipal Corporation while entering into the lease-deed was well aware that the petitioner was a trust and was also aware that there was a Trust-deed which consists of Clause iii (c) as well. Though Clause iv provided for development of swimming pool and Clause v and xi provided that the property shall not be used for any other purpose and shall be restricted to public purpose. It was also mentioned in Clause x that there shall not be any sub-lease of transfer. Therefore, despite there being Clause xi which conferred a right upon the Municipal Corporation to exercise the right of re-entry for a period of more than 52 years, no allegations were levelled by the Municipal Corporation nor any Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 14 show cause notice was issued to the petitioner's Trust alleging violation of the terms and condition of the lease-deed. The Municipal Corporation has also not explained in the entire return as to why no steps were taken for a prolonged period of 22 years to not to renew the lease-deed. The Principle of Waiver was dealt with by the Apex Court in the case of P. Dasa Muni Reddy Vs. P. Appa Rao reported in 1974 (2) SCC 725. The Court while dealing with the principle held that the waiver precisely is an intentional relinquishment of advantage or benefit. The Apex Court in paragraph 13 in the case of P. Dasa Muni Reddy (Supra) has held as under:
"13. Abandonment of right is much more than mere waiver, acquiescence or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the respondent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent position to gain advantage through the aid of courts. Waiver some times partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non- existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent."Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 15
20. Thus, by implication a party relinquishes its right or also waives any advantage or benefit which under a contract is accrued to it. Therefore, the waiver has semblance of abandonment and the abandonment of right has wider scope. The aforesaid paragraph in the case of P. Dasa Muni Reddy (Supra) reflects that the Apex Court observed that the abandonment of right is much more than mere waiver, acquiescence or laches. In the present case, the inaction on the part of the respondents for a period of 22 years, reflects that there was unequivocal abandonment of right by the Municipal Corporation and there was voluntary surrender of a right by the Municipal Corporation. So far as the contention of respondent in view of the law laid down by the Apex Court in Sasan Power (Supra) is concerned, that if the controversy involves element of public interest, there is no question of applicability of doctrine of waiver. It appears that the respondents have taken this stand as regards non applicability of principle of waiver on the ground that the swimming pool was to be constructed for public and therefore, the principle of waiver could not have been applied in the present case.
21. If this stand of respondents on the strength of law laid down by the Apex Court in the case of Sasan Power (Supra) and Krishna Bahadur (Supra) is considered, it is necessary to find out what caused prejudice to public interest. Firstly, it is not the stand of the Municipal Corporation that there was any demand of Swimming Pool by the public. Secondly, the other activities like Cracker Market, Exhibition, Tibetan Cloth Market attract foot flow of public at large. It is not the case of respondents that any portion of property was used for any personal or private use. So far as wedding ceremonies is concerned, respondents do not dispute that this Court itself permitted use of the part of the premises for wedding ceremonies. Thus, judgements relied upon by the respondents are of no avail to the respondents in view of the facts and circumstances of the case.
Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 1622. The reasons on account of which the swimming pool could not be developed have been explained by the petitioners in paragraph 4 of their reply and paragraph 4 of the reply also makes it clear that the financial assistance to the petitioner' Trust was not provided for the purposes of development of swimming pool inasmuch as the deed in question was not renewed.
23. Therefore, the Municipal Corporation was first required to explain as to why for a prolong period of 22 years, there were no effort by the Municipal Corporation to renew the sale-deed and the repeated request of the petitioners which have been detailed in Annexure P/10 have also not been dealt with by the respondents in their return. The inaction on the part of the Municipal Corporation for a prolong period of 22 years, makes the Municipal Corporation answerable inasmuch as being a party to a lease-deed, why there was no consideration of an application for renewal of lease-deed, more particularly, when the same was submitted prior to completion of 30 years period as stipulated in the original lease-deed on 30/10/1947. The other judgements pertaining to non applicability of the doctrine of waiver relied upon by the counsel for the respondents in the case of Krishna Bahadur (Supra) makes it clear that the statutory right may be waived by the conduct. The conduct of the Municipal Corporation for years together impliedly permitted the petitioner to run the activities within the premises in order to procure the expenditure for the maintenance of the trust property. The said activities by the Municipal Corporation were in consonance with Clause 3(c) of the Trust-deed dated 31/10/1947. The execution of trust-deed was well within the knowledge of the Municipal Corporation inasmuch as at no point of time it was the objection of the then Municipal Committee or even the present Municipal Corporation that they were not aware about the execution of the Trust-deed. It also goes without saying that the management of such a huge property requires periodical expenditure and in absence of necessary funds, it is virtually impossible to maintain such a public property. Undisputedly, the activities which Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 17 have been conducted in the premises were not permanent and were in temporary in nature like Cracker Market, Woolen Market, Exhibition or permitting marriage ceremony and for each activity, the necessary dues were paid to the Municipal Corporation by the petitioner. The Municipal Corporation by accepting the tax/rent or dues, were impliedly permitted the petitioner's trust to carry out the said activities. The Apex Court in the case of Kalpraj Dharamshi & Anr. Vs. Kotak Investement Advisory Limited and Anr. reported in 2021 (10) SCC 401 while dealing with the definition of waiver has provided in Halsbury law of England Volume 16(2) 4th Addition paragraph 907 held that to consider as to whether the parties have waived its right or not? It will be relevant to consider the conduct of the party, if there is implied or expressed conduct by a party which is inconsistent with the permissible condition, the waiver comes into play. It is also important that a party claiming waiver is not entitled to claim the benefit of waiver unless it has altered its position in reliance on the same. Therefore, in the present case on account of waiver of right to re-entry, the petitioner trust altered its position by providing amenities in the premises which are in-consonance with the terms and condition of the deed and by efflux of time has altered it is position. Here it would be apposite to refer Section 9 of the Indian Contract Act.
"9. Promises, express and implied. "In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied."
24. A perusal of the aforesaid statutory provisions reflects that the proposal or acceptance of a promise if made in words, the same is said to be expressed but it when such proposal or acceptance is made otherwise then in words, the same is said to be implied. Therefore, in terms of Section 9 of the Indian Contract Act, there can be a promise expressed or implied meaning thereby the same can be in words or may be in written form. In the case in hand the lease-deed is in written form, but subsequently the Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 18 implied conduct of the Municipal Corporation, attracts the application of Section 9 of the Contract Act. Therefore, the conduct of the parties, despite being implied has binding effect unless the same is in contravention of statutory provisions or goes against public interest. The implied conduct is not reduced into writing but the conduct of the parties transforms into terms and condition of a contract between the parties. The Municipal Corporation, Jabalpur, i.e respondent No.2 has never objected to the letting out of some part of the premises on rent to the Government Offices and the rent was also subjected to incident of imposition of tax at the instance of the Municipal Corporation. The Municipal Corporation also accepted the dues while recognizing the fact that the part of the property was sub-leased by the Municipal Corporation in terms of Clause 3(C) of the trust-deed. The Black's Law Dictionary which contains definition of "implied waiver", the said definition is reproduced here in:
"A waiver evidenced by a party's decisive unequivocal conduct reasonably inferring the intent to waive."
25. The Apex Court in the case of Motilal Palampat Sugar Mill Co. Ltd. Vs. State of Uttar Pradesh and Ors, reported in (1979) 2 SCC 409 in paragraphs 6 &8 has held as under:
"Waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be Âœan intentional act with knowledge". Per Lord Chelmsford, L.C. in Earl of Darnley v. London, Chatham and Dover Rly. Co. [(1867) LR 3 HL 43, 57 : 16 LT 217] There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it."
"These two decisions might, therefore, seem to suggest that the doctrine of promissory estoppel is limited in its operation to cases where the parties are already contractually bound and one of the parties induces the other to believe that the strict rights under the contract would not be enforced. But we do not think any such limitation can justifiably be introduced to curtail the width and amplitude of this doctrine. We fail to see why it should be necessary to the applicability of Signature Not Verified this doctrine that there should be some contractual relationship between the parties. In fact Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 19 Donaldson, J. pointed in Dunham Fancy Goods Ltd. v. Michael Jackson (Fancy Goods) Ltd. [(1968) 2 All ER 987, 991] :"
"Lord Cairns in his enunciation of the principle assumed a pre-existing contractual relationship between the parties, but this does not seem to me to be essential, provided that there is a pre- existing legal relationship which could in certain circumstances give rise to liabilities and penalties."
26. The Municipal Corporation in both the show cause notices have levelled allegations of violation of terms and condition. The alleged violation is precisely as regards inaction by the petitioner to develop the swimming pool and also as regards the letting out the property for Crackers Marker, Woolen Market, Marriage Ceremony and Exhibition which do not fall within the ambit of public purpose. So far as the swimming pool is concerned, undisputedly, the same has now been constructed and the allegation which pertains to letting out the property for Crackers Market, Woolen Market, Marriage Ceremony and Exhibition are also within the knowledge of the Municipal Corporation, Jabalpur and the Municipal Corporation having accepted the necessary rent/taxes/dues have impliedly permitted the said activities. It is not a case where the setting up of Crackers Market, Woolen Market, Marriage Ceremony and Exhibition is some hidden activity which came to the notice of the Municipal Corporation, suddenly. Undisputedly, to meet with the mammoth task of maintaining a property situated on 4,52,580 Sq.ft of the land in the heart of the city requires colossal expenditure and Clause 3(c) of the Trust-deed, takes care of the management and maintenance of the trust property. Thus, it is not a case where some illegal activities are being conducted by the petitioner or any activity which is in conflict with the object and purpose for which the Trust was created. As discussed above, there is deviation as regards the permitted use of the property but such deviation has been within the knowledge of the Municipal Corporation and the Municipal Corporation by its conduct has accepted the same inasmuch as it is not disputed by the Municipal Corporation that the rent /tax/dues were paid which were Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 20 leviable qua carring out such activity.
27. Undisputedly, the term of the lease of 30 years was expired way back on 1977. The application for renewal submitted by the present petitioner/trust has remained pending for years together and there is no explanation by the Municipal Corporation in the entire return as to why for a prolonged period of 22 years, Municipal Corporation, Jabalpur was sitting tight over the matter and did not take any steps to deal with the application for renewal of lease-deed.
28. Accordingly, as there is implied consent/approval by the Municipal Corporation as regards the letting out of part of the property intermittently for the purposes like Crackers Market, Woolen Market, Marriage Ceremony and Exhibition, the parties while taking into consideration the interest of both the sides insert such activities while considering the renewal of the lease-deed. Insertion of certain condition is also within the scope of statutory contract unless the same goes contrary of the statutory provisions or against the public interest.
29. In view of the aforesaid, as this Court has arrived at a categorical conclusion that the Municipal Corporation, Jabalpur has impliedly permitted the petitioner/trust to carry out the activity like setting up of Crackers Market, Woolen Market, Marriage Ceremony and Exhibition also accepted the rent/tax/dues towards such activities, while quashing the impugned show cause notice dated 18/19.11.1999 (Annexure P/16 & P/17A), and order dared 07.12.1999/08.12.1999 (Annexure P/18) the respondents/Corporation is directed to take decision on the application for renewal of lease-deed and the Municipal Corporation is at liberty to add or insert any additional condition permitting intermittent use of the premises on rent for the purposes of Cracker Martet, Woolen Market, Marriage Ceremony and Exhibition. Such activities can also be specified in the renewed lease-deed.
30. With the aforesaid, the petition is allowed.
Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM 2131. In view of the aforesaid, there is no need to deal with the authorities which have been relied upon by the counsel for respondents pertaining to maintainability of a petition against the show cause notices.
(MANINDER S. BHATTI) JUDGE Astha Signature Not Verified Signed by: ASTHA SEN Signing time: 3/4/2023 1:52:51 PM