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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 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 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:

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 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.

"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 leviable qua carring out such activity.

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.