P. C.
1. By this application, the revision applicant questions legality, propriety and correctness of order passed below Exhibit 28 passed by 6th Joint Civil Judge, Senior Division, Nagpur in Regular Civil Suit No. 44 of 2013 rejecting application of the applicant under Order VII, rule 11 (a) of the Code of Civil Procedure.
2. Respondent Sanjay Madhukarrao Mahakalkar filed suit against applicant (defendant no. 4) and the Union Government, through Chief Controller of Explosives, Mumbai; the Controller of Explosives, Nagpur and the Commissioner of Police, Nagpur for declaration and perpetual injunction.
3. Respondent/plaintiff averred that he is owner of Plots No. 35 and 36 situated in Ward No. 20, Dattatraya Nagar, City Survey Number 874, Khasra No. 48 and 33 under Sakkardara Street Scheme Layout of Nagpur Improvement Trust. Suit plot no. 35 was leased out to plaintiff by the Nagpur Improvement Trust on 12th June 1996 for residential purpose. Plot No. 36 was initially leased out to one Mohan Kariya who sold it to M/s Shivdarshan Griha Nirman Sahakari Sanstha from whom plaintiff purchased that plot on 25th March 2003. User of Plot No. 36 was also meant for residential purpose as per the terms and conditions of lease deed initially executed in favour of Mohan Kariya by the Nagpur Improvement Trust. Applicant Hindustan Petroeum Corporation Limited (HPCL) wanted to open Petrol Pump in the area where plots no. 35 and 36 are located. It appears that offer of plaintiff was accepted which he had submitted in response to advertisement dated 1.2.2003 published by applicant-HPCL. Lease Deed was executed by respondent-plaintiff in favour of applicant-HPCL and he had handed over all documents of title including lease deeds, sale deed etc. to applicant-HPCL and it was assured to him by the officers of applicant that they would complete entire process including that of change in user of the plots. Plaintiff received letter dated 4.2.2004 from the Nagpur Municipal Corporation, the Development Authority, returning the building map on the ground that construction was done without first getting the plan sanctioned; required space was not left and user of the plots was not changed from residential to commercial use. Plaintiff pointed out that notice of the Corporation to applicant-HPCL whose officers assured him that they would set the things right. However, it is alleged by respondent-plaintiff that present applicant did not take corrective measures and failed to follow prescribed procedure and in violation of prescribed norms, hurriedly completed construction of petrol pump. Not only this, but original defendants no. 1 and 2 (Department of Explosives) in the suit issued explosives licence to applicant blindly, without insisting upon applicant to adhere to the usual conditions of obtaining no objection certificates from the Development Authorities including the Town Planning Department. Respondent-plaintiff instituted the suit for declaration that explosives licence issued by original defendant no. 1 to the applicant is illegal and that the applicant has no right to do business on the plots of plaintiff; for perpetual injunction restraining defendants no. 1 and 2 from renewing the explosives licence and for mandatory injunction directing defendant no. 3 Commissioner of Police to withdraw no objection given to applicant-HPCL.
4. Applicant-HPCL (defendant no. 4) filed application under Order 7, rule 11 (a) of the Code of Civil Procedure claiming that even the averments contained in the plaint that explosives licence has been issued by the Department of Explosives to the applicant in deviation of some procedure, matter is between the two Department and the plaintiff has no locus to question the action of Department of Explosives in the matter of issuance of such licence. Since there is no cause of action in favour of plaintiff-respondent, according to the applicant, plaint deserves to be rejected.
5. Respondent-plaintiff opposed the application by filing reply (exhibit 29). Learned trial Judge, after hearing the parties, rejected the application, as aforesaid, by order dated 24th July 2014. This revision is filed without impleading original defendants no. 1 to 3 as party-respondent.
6. Heard learned counsel for the parties at length. Perused plaint, application (exhibit 28), reply (exhibit 29) and other relevant documents placed on record.
7. Mr Bhangde, learned counsel appearing for applicant-HPCL strenuously argued that in the entire pleadings, plaintiff has no where disclosed as to under which provisions of the law, he is entitled to get the reliefs as prayed for and as to which right of plaintiff would be affected by virtue of licence issued by the Department of Explosives to it. He contends that there is no right to sue accruing in favour of plaintiff and in absence of cause of action, plaint is liable to be rejected. He also contends that suit is not maintainable in view of the provisions of Section 34 of the Specific Relief Act. Learned counsel relied upon the following rulings:
(1) State of Punjab and ors v. Gurdev Singh (1991) 4 SCC 1
(2) Ravi Yashwant Bhoir v. District Collector, raigad and ors (2012) 4 SCC 407.
(3) Ayaaubkhan Noorkhan v. State of Maharashtra and ors (2013) 4 SCC 465.
(4) Pearlite Liners v. Manorama Sirsi (2004) 3 SCC 172.
8. As against this, Mr S. K. Mishra, learned Senior Advocate appearing for respondent contended that plaintiff is landlord and revision applicant is tenant. Plaintiff wanted to enforce his right to insist upon revision applicant to make use of the property according to law and by obtaining requisite permission from various Authorities. Applicant in his capacity as a tenant over suit property, was bound to use suit plots in accordance with law. Grievance made by plaintiff in the suit is not only against the revision applicant, but also against the Government and the Local Authorities who are deliberately not impleaded to the revision application though they were party-defendant to the suit. He relied upon judgment of the Supreme Court in D. Ramchandran v. R. V. Jankiraman and ors reported in (1993) 3 SCC 367.
9. Settled legal position as can be summed up from various rulings pressed into service by both learned counsel is that suit must be instituted when the legal right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. A âlegal rightâ? means an entitlement arising out of legal rules.. It may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression âperson aggrievedâ? does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose legal right or interest has been adversely affected or jeopardised.
10. There is no dispute that plots no. 35 and 36 are leased out plots by the Nagpur Improvement Trust and respondent is lessee in respect thereof. Though Plot No. 36 is purchased by plaintiff from some Society, still conditions of lease are binding on him. Applicant does not dispute that suit plots were earmarked for residential purpose. The only contention is, since the matter of issuance of explosives licence is between the two Departments, plaintiff has no locus and there is no infringement of his protected legal rights. If applicant-tenant does not bring the suit plots to commercial use and starts commercial activity on residential plots in violation of the conditions of lease, it will definitely affect the interest of respondent-landlord. As a landlord or lessee, it is the plaintiff who will be answerable to the Nagpur Improvement Trust for his acts or omissions and may have to face legal consequences for violation of conditions of lease. If some activity without due process of law is taking place on the suit plots by his tenant, landlord can definitely question legality of such activity. A landlord who suffers from legal injury can always challenge legality or validity of acts or omissions by tenant. Respondent/plaintiff suing as landlord in this case can be said to be a âperson aggrievedâ? and it cannot be said that his grievance is groundless or imaginary. He is not a stranger to the suit plots without legal right whatsoever in and over it. Revision applicant has not made original defendants no. 1 to 3 as party-respondent, otherwise, this Court would have advantage of hearing them and to know from them whether they have issued licence/no objection certificate etc. lawfully to the applicant and if yes, on which ground. Letter dated 9.11.2012 issued by the Controller of Explosives to the lawyer who had issued notice on behalf of plaintiff, is vague. Why the Department of Explosives and the Commissioner of Police (original defendants no. 1 to 3 in the suit) have not been impleaded as party-respondent to his revision is not understood particularly when in its application under Order VII, rule 11 (a) of the Code of Civil Procedure, applicant-HPCL specifically claimed that the matter of issuance of licence is between HPCL and the Department of Explosives. Be that as it may, impugned order appears well within the jurisdiction of the Court below and according to law.
11. For the aforesaid reasons, I do not find any illegality or material irregularity in the impugned order so as to warrant exercise of revisional jurisdiction. I do not find any merit in the revision application.
Hence, revision application is dismissed. Costs shall be costs in the cause.