Karnataka High Court
M/S Lumbini Gardens Limited vs State Of Karnataka on 4 March, 2020
Equivalent citations: AIR 2020 KARNATAKA 96, 2020 (2) AKR 408, AIRONLINE 2020 KAR 996
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 4TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
M.F.A.No.3/2020(CPC)
BETWEEN:
M/S LUMBINI GARDENS LIMITED,
HEBBAL, K R PURAM RING ROAD,
BENGALURU - 560 045.
REPRESENTED BY ITS DIRECTOR,
SHRI. P. GOPALA KRISHNA RAJU.
...APPELLANT
(BY SRI. K N PHANINDRA, SENIOR COUNSEL A/W
SMT. SHWETHA RAVISHANKAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
ROOM NO.320, 3RD FLOOR,
VIDHANA SOUDHA,
BENGALURU - 560 001.
REPRESENTED BY ITS CHIEF SECRETARY.
2. KARNATAKA TANK CONSERVATION AND
DEVELOPMENT AUTHORITY,
NO.49, 2ND FLOOR,
PARISARA BHAVANA, CHURCH STREET,
BENGALURU - 560 001.
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER.
3. THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS,
ARANYA BHAVAN, 18TH CROSS,
MALLESWARAM, BENGALURU - 560 003.
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4. ASSISTANT CONSERVATOR OF FOREST,
ARANYA BHAVAN, 18TH CROSS,
MALLESWARAM - 560 003.
5. ZONAL FOREST OFFICER,
YELAHANKA REGIONAL ZONE,
YELAHANKA - 560 064.
BENGALURU.
...RESPONDENTS
(BY SRI. R SUBRAMANYA, ADDL. ADVOCATE GENERAL
A/W SMT. T H SAVITHA, HCGP FOR R1, R3 TO 5;
SRI. GURURAJ JOSHI, ADVOCATE FOR R2)
THIS MFA IS FILED U/O 43 RULE 1(r) OF THE
CPC,1908 AGAINST THE ORDER DATED 21.12.2019
PASSED ON IA No.1 IN O.S.No.8520/2019 ON THE FILE OF
THE XVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-16), DISMISSING IA No.1 FILED UNDER
ORDER 39 RULES 1 AND 2 OF CPC, R/W SEC 151 OF CPC.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal is directed against the order passed on I.A.No.1 dated 21.12.2019 in O.S.NO.8520/2019 by the learned XVII Additional City Civil and Sessions Judge, Bengaluru (CCH-16), wherein the application filed under order 39 Rules 1 and 2 of CPC by the plaintiff came to be dismissed. Being aggrieved by the said order, plaintiff has come in appeal. 3
2. The plaintiff is M/s. Lumbini Garden Limited, Hebbal - K.R. Puram Ring Road, Bengaluru represented by its Director Gopala Krishna Raju.
3. The plaintiff filed a suit for permanent injunction to restrain the defendants and persons claiming under them unlawfully dispossessing the plaintiff Company from the schedule property and also for a consequential declaration to the effect that the notice dated 23.11.2019 issued by defendant No.-5 Zonal Forest Officer, Yelahanka Regional Zone, Yelahanka, Bengaluru, is without authority of law.
4. The substance of the plaint is that; the erstwhile 'Lake Development Authority', (hereinafter referred as 'LDA' for brevity) managed by Department of Forest, Ecology and Environment, invited the interested private parties to participate under a 'Public-Private Model' to rejuvenate Nagavara Lake and develop a Recreation, Garden and other facilities for the public purpose under "Lease, Operate and Transfer" during 4 2004. The LDA was constituted under an executive order and was entrusted to regulate certain Tanks which come within the limits of the City Corporation and City Municipal Council limits and as well as rural areas.
5. An agreement came to be entered into between the plaintiff and LDA on 27.11.2004, wherein the contract was awarded in accordance with due process of law. The Chief Executive Officer of LDA entered into a detailed contract with the plaintiff Company. Among the other parts of the contract, the period was agreed at 15 years. The term ended by 26.11.2019.
6. The plaintiff relies Clause 29 of the agreement dated 27.11.2004 which is as under:
"29. The First Party would extended a 'license to Develop, Operate and Transfer" the facility to the second Party for a period of 15 years (Fifteen years) at annual Lease amount as stipulated in schedule-1(b).5
Lake Development Authority at its option may increase the lease period beyond the period specified or renew the lease after specified lease period on fresh terms and conditions including lease amount payable to Lake Development Authority, mutually acceptable, subject to maximum period of 10 (ten) years and subject to the approval of Government, after signing fresh agreement in this regard."
7. The material bone of contention between the parties is that, sub para-2 under the said Clause, provides that LDA at its option may increase the period of lease beyond the period specified or renew the lease after specified lease period on fresh terms and conditions including the lease amount payable to LDA mutually acceptable, subject to maximum period of 10 years and subject to approval of Government, after signing fresh agreement in this regard.
8. Thus, in the back ground of the said clause, plaintiff claims that he was complimented for his 6 services. He is qualified in all angles for extension, incidentally, that did not happen, but has culminated in the present suit.
9. The claim of the plaintiff is strongly denied by the defendants Nos. 1, 3 to 5.
10. In order to avoid confusion and overlapping, the parties are addressed in accordance with their rankings or status as held by them before the trial court.
11. Learned Senior counsel Sri. K.N.Phanindra for Smt. Shwetha Ravishankar for appellant would submit that, the vested right in the agreement are that, the plaintiff held lease for 10 years that started on 27.11.2004 and the very condition or the clause stated above culled out from the said agreement, plaintiff enjoys option to get the lease extended for a period not more than 10 years at one stretch. It is also submitted that the defendant Nos. 4 and 5 do not have any right to recover possession.
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12. The plaintiff has not created any controversies and there are no complaints, rather, its work has been complemented. Thus, he is entitled for the lease being extended as per the said clause.
13. Learned Senior counsel would further submit that even the renewal of the lease is delayed, he is entitled to continue in possession as even a lease which has come to an end by efflux of time does not entitle the lessor to throw out lessee from possession of the schedule property. It is invariably made clear that it is only by due process of law.
14. In support of his case, learned Senior counsel for appellant relied on the following decisions:
(i) Meghmala and others Vs. G. Narasimha Reddy and others reported in (2010) 8 Supreme Court cases 383;
(ii) State of U.P. and others Vs. Maharaja Dharmander Prasad Singh and others and Lucknow Development Authority and others Vs. Maharani Rajlaxmi Kumari Devi and others reported in (1989) 2 Supreme Court Cases 505;8
(iii) M/s. Patil Exhibitors (Pvt.) Ltd. Vs. The Corporation of the City of Bangalore reported in AIR 1986 Karnataka 194;
(iv) M.C.Chokalingam and others Vs. V. Manickavasagam and others reported in AIR 1974 Supreme Court 104;
(v) Balwant Narayan Bhagde Vs. M.D. Bhagwat and others and Balwant Narayan Bhagde Vs. The Punjabrao Krishi Vidyapeeth, Akola and others reported in (1976) 1 Supreme Court Cases 700;
(vi) State of Karnataka vs. Basalingappa reported in ILR 1989 Karnataka 3363;
(vii) R.Sreekanth and another Vs. Divisional Commissioner, Bangalore and others reported in AIR 2002 Karnataka 26;
(viii) Associated Hotels of India Ltd., Vs. N.Kapoor reported in AIR 1959 Supreme Court 1262;
(ix) East India Hotels Ltd., Vs. Syndicate Bank reported in 1992 Supp.(2)Supreme Court Cases 29;
(x) Himangni Enterprises vs. Kamaljeet Singh Ahluwalia (Civil Appeal No.16850/2017 (@ SLP (c) No.27722/ 2017) (D.No.21033/2017)
15. Learned counsel would submit that the term of 10 years has neither any significances nor of 9 consequences. Termination cannot happen as contended by the defendants.
16. The application requesting the lease to be extended for another term of 10 years was rejected on 4.12.2019. It was also submitted that writ petition No.51391/2019 was filed and this court disposed of the writ petition on 20-11-2019 observing as under:
"In the above circumstances this writ petition succeeds in part; the respondents are restrained from interfering with rights of the petitioner arising under the agreement in question till after his subject representation is decided by the jurisdictional respondents or petitioner's application filed under Order XXXIX Rules 1 and 2 of CPC, 1908 is heard and disposed off by the learned trial Judge, whichever is earlier."
17. Thereafter, the plaintiff was compelled to move before the Civil Court for the enforcement of remedy. Moreover, the defendants also had rejected the claim of the plaintiff for extension of lease. Thus, 10 literally plaintiff claims that he was/is entitled to enforce the right of getting renewal of the lease. In this process, he was constrained to file O.S.No..8520/2019.
18. Against the order of issuing emergent notice as plaintiff claim that it was entitled an exparte injunction. However, it was disposed of with a direction to dispose of the application expeditiously.
19. The learned trial Judge thereafter after hearing the parties disposed of the application by dismissing the same as stated above.
20. It was submitted that if the facts are assessed from all practical angle, plaintiff cannot be deprived of the lease or the right of continuing with the assignment what has been granted.
21. Sri. R. Subramanya, learned Additional Advocate General for defendant Nos. 1, 3 to 5 would submit that plaint and suit suffer disqualification at the threshold level as the plaintiff is not entitled for any of the reliefs sought for.
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22. The language of the plaint is against the established provisions of law. Further even on fact- wise an opportunity was given to him under the document dated 27.11.2004 for same purpose. On the other hand that is being canvassed as lease deed and plaintiff is trying to confuse that it is lease and he is entitled for extension.
23. The nature of contract dated 27.11.2004 refers the document as lease. A document may address the parties by various names as Seller, buyer, Lessor, Lessee etc., but it is the rights and duties, intention and function the name matters little in addressing the plaintiff as Lessee. But whenever, we come to the use of the term lease, the mother Act is Transfer of Property Act.
24. The learned Additional Advocate General would submit that at the end of the day, the nature of contract between the parties may fit in as License. 12 Section 52 of the Easement Act defines license as under:
52 "License" defined. -Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.''
25. There are certain terms and qualities which are found both in Lease and Easement.
26. License may have some of the qualities of lease and at the same time vice versa. But consequence is, the rights of persons put to possession are to formulate by respective status, be it Easement Act or Transfer of Property Act or other special statute which is being in force. At present, the subject matter 'Nagavara Lake' is under the management/ Administration of the Forest Department. In the circumstances, the 13 ingredients as stated between the parties are that erstwhile LDA wanted to develop Nagavara Lake to attract the residents and to maintain it in a attractive and hygienic one. In this connection, it appears, it called for applications. Finally, negotiations work out between the plaintiff and the LDA and that culminated in the document dated 27.11.2004. In this connection, subject to payment of earnest Money deposit, the plaintiff was allowed to carryout acts as stated and as found in the lease deed.
27. In this connection, learned Additional Advocate General drew the attention of the court to various paras in the document dated 27.11.2004, viz., para Nos. 5,7,8 and 9, 12 to 17. The said paras are as under:
"5. The Second Party shall carry out only the specified approved activities (as noted in the Schedule-II) in and around the Lake and shall not carry out any unspecified activities in contravention with the lease conditions. If the Second Party indulges in the carrying out any unapproved activities the 14 First Party is at liberty to withdraw the approval by giving 3 months written notice to the Second Party in this regard.
7. The First Party hereby covenants with the Second Party that no rights for non- permitted usage or ownership of the lake would be create, acquired or vested at any time, with the Second Party.
8. The Second Party would not interfere with any traditional or acquired rights of any groups of people or individuals vested legally in them by Government, if any.
9. The First Party hereby covenants with the Second Party that the upkeep/maintenance/ and management of "The Lake" would be continuously monitored and evaluated by the Lake Development Authority and if in its opinion, at any time it is found that the above functions are not being performed satisfactorily by second party either due to willful neglect or for want of budget or due to any other reason, the Lake Development Authority (first party) is free to resume " The Lake" under its fold for proper upkeep/ maintenance/ and management along with such assets as might have been acquired/created by second party during the period of its management control.
12. The Second Party hereby covenants with the First Party that the ownership of the Lake vests with the First Party, which is the competent authority and the First Party has handed over the 15 possession of the Lake to the custody of the Second Party only for a prescribed period, solely for the purpose of development and after expiry of the prescribed period, the Second Party shall hand over the possession of the lake to the custody of the First Party. The Second Party shall not have right of ownership over the lake at any time during the period of lease.
13. The Second Party shall maintain and develop the lake, without causing any alteration/damages to the lake, it's structures surroundings and the environment during the period of lease. The recently concluded developmental works executed in the restoration of the lake including various Civil/Engineering works would also have to be maintained by the Second Party and he covenants with the First Party that no result of any damage would be cause either by it or if a planned activities to such developed structures/constructions. Any modification in this regard can only be carried out after obtaining specific approval from the First Party.
14. That the Second Party shall improve and develop the lake as per the approved specifications of the First Party and in the event if the Second Party committing any violation of the terms and conditions of the approved plan, the First Party is at liberty to terminate this agreement by giving three months notice to the Second Party.16
15. The Second Party hereby covenants with the First Party that during the period of lease any developments/improvements carried out by the Second Party as per approved plan and specifications of the First Party, will be the property of the Government(both the temporary & permanent items & fixtures) and the Second Party hereby assures the First Party that he will not claim the ownership or any compensation in that respect and also will not remove or destroy or damage such developments/improvements.
16. The Second Party hereby covenants with the First Party that during the period of lease, if any untoward incident takes place in the lake on account of the negligence on the part of the Second Party, it is the sole responsibility and liability of the Second Party to such incident and the First Party is in no way connected with the same and the First Party is not liable to pay any damage in that aspect.
17. The Second Party hereby covenants with the First Party that he is not having any right of ownership/control/or enjoyment over the lake during the period of lease except the approved developmental activities. The Second Party hereby covenants with the First Party that he is only having the lease hold right. The Second Party shall not let, underlet or transfer the leasehold rights in favour of any third parties without the written consent of the First Party and the Second Party is barred form creating any charge.17
However the Second Party is permitted to sub-lease any of the permitted activities in the lake."
28. Thus, the substance of the said paras would indicate that the Government or LDA wanted a particular purpose done, may be in the interest of the public and to carry out such activities subject to riders, it invited applications and it is an entrustment of assignment. Nodoubt, the terms are mentioned as lease, lessee and lessor. Without confusion infers in determining the relationship, the only way is the approach of a particular statute which govern the relationship. Here, Section 105 of the Transfer of Property Act, 1982 defines Lease as under:
"105. Lease defined.--A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered 18 periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined.--The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."
29. In common parlance, the consideration of price paid or promised called as rent, lease amount etc., But, the activity will be at the desire of the person who has entrusted with the possession and his avocation responses or activities for which he runs his enterprise not to the contrary in favour of the person who takes up the assignment but lawful.
30. Here it is the development or improvement, for which a person in occupation gets consideration either by the person who entrusted or the public to whom it is meant for. In the present case, it is a vital point that the names have been used as lease 19 intermittently, though it is not lease in strict sense as per Section 105 of the Act.
31. Whatever may be the activities, it is necessary to make out that possession was entrusted to the plaintiff, but subject to riders. Dos and do not's in the schedule property are prescribed by the defendants- Government. Whether in the present case or in general, it is seen whenever lease is entered into, parties would enclose conditions this may arise due to mandatory provision of Stamp Act and Registration Act that makes registration compulsory when the period of lease touches one year or beyond one year or the nature of certain leases.
32. The option provided here is, it is not at the sweet will of one party. The document states LDA may on its option increases the lease period beyond the period specified or renew the lease after the specified lease period on fresh terms and conditions including the 20 lease, amount payable to LDA(now the defendants 1, 3 to 5) subject to maximum period of 10 years.
33. The said clause does not throw mischief in conveying its meaning. Thus, the condition for coming up to next term where lease or other kind of contracts it should be:
(i) at the option of LDA;
(ii) the words used there in is a discretion LDA may extend lease
(iii) consideration or lease amount payable to the LDA and the period of lease is 10 years to the optimum, as such, the plaintiff can except next term of lease nor beyond 10 years provided the LDA now defendant No.2 at his option finds it feasible and viable and in the interest of public.
34. Decision of the defendant No,.2 is not filed. Its ending line concludes that subject to the approval of the Government after signing fresh agreement in this regard, when the matter has to be decided or concluded 21 by the Government, till then either of the parties cannot direct the defendants to extent the lease or any kind of contract in this connection.
35. It is also necessary to mention that the plaintiff cannot direct for extension nor can claim the concept of right of extension of earlier contract for next period as a matter of its right. On the other hand, the first aspect in this connection would be making a request as contemplated in Clause 9. Thereafter, the satisfaction both objective and subjective of the defendants and thereafter, waiting for the approval of the Government. At the end of this, he can ascertain and know what exactly is the decision of the Government. But cannot compel the Government to come to a particular kind of decision. The consideration would be, viability that would be mutually acceptable.
36. The existing amount of payment or changes cannot be the yardstick as market conditions are also have to be looked into.
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37. Meanwhile, the observation in the order dated 21.12.2019 made by the learned trial judge was also brought to my notice, wherein, the observation of the trial judge is that the possession has been handed over to the defendants, which is denied very strongly by the learned counsel for the appellant and equally it is asserted by learned Additional Advocate General.
38. In this connection, it is necessary to place on record that the vacant land or whatever structure, the possession of the property sofar as it is vacant runs with the owner and it is stated that the defendants have locked the Nagavara lake.
39. Defendants have to auction again and in the interest of public subject to approval of Government which may or may not grant the contract to the plaintiff or even others. In which event, the plaintiff can obviously participate provided he fulfills the qualification. In the circumstances, rejecting the request of the plaintiff is part of the process which has to 23 consider various legal aspects and the plaintiff cannot seek it as a non enforceable document.
40. The interim relief claimed by the plaintiff should be in the aid of the main relief.
41. On the other hand, the relief's sought by the plaintiff is temporary injunction to restrain defendants or their officials or anybody acting on behalf of them from interfering with the peaceful and lawful possession of the plaintiff over the schedule property through the notice dated 23.11.2019 without following due process of law, which means by way of abundant precaution, plaintiff wants to consolidate all the relief's.
42. Insofar as prima facie case and balance of convenience are concerned, it is not that one of them to be present in alternative. In order to get an order of temporary injunction, both prima-facie and balance of convenience are to be present rather in concurrence not in alternative.
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43. The temporary injunction if granted, the quantum of hardship or the balance of convenience and its left consequences are more. On the other hand, if it is refused, it neither causes prejudice or injustice to the plaintiff.
44. I find the learned trial Judge has applied his mind, considered the scope of the suit, application and has rightly rejected the application. There are no infirmities, illegalities or perversity in the order. I concur with the same. In the process, the appeal is dismissed.
Sd/-
JUDGE tsn*