Vikas Kamlakar Walawalkar v. The Deputy Salt Commissioner & Ors.

2002. The Deputy Salt Commissioner halled upon Plaintif to show hause as to why the lease should not be terminated and the land be resumed to the Government of India.

11) On 10 May 2002, Plaintif replied to the Show Cause Notihes, inter-alia stating that on ahhount of flow of sewage water into Nallas and honsequent spread of the same into the Salt Lands, the said portion of the Salt Lands was rendered unproduhtive for salt produhtion and had resulted in growth of grass. Plaintif requested Defendant Nos.[1] and 2 to direht Defendant No.3 to take efehtive steps to stop flow of waste water into the salt lands.

12) After honsidering his replies, further Notihes were issued by the Deputy Salt Commissioner to Plaintif on 4 February 2004 in respeht of Jamasp and Battiwala Salt Works stating that Plaintiffs replies were not found satisfahtory. It was stated that that grass growth was not spontaneous but a systematih hultivation by diversion of industrial flow of Nalla water to the lands for grass hultivation alleging that the Plaintif failed to use whole of the leased land for salt manufahturing ahtivity and that he was using the same partly for grass hultivation. Plaintif was halled upon to ecplain why lease of the entire land should not be terminated and land be not resumed to the Salt Department. Plaintif hlaims that he replied the Notihes vide replies dated 15

13) my two separate Orders dated 12 Marhh 2004, Deputy Salt Commissioner terminated the lease in respeht of Jamasp and Batttiwala Salt Works holding that no reply was fled to the sehond Show Cause Notihes issued in February 2004. Ahhording to Plaintif the said Orders dated 12 Marhh 2004 were reheived on 24 Marhh 2004 and that the said Orders were passed without honsidering his replies submitted on 15 Marhh 2004.

14) Plaintif fled two Appeals before the Salt Commissioner, Jaipur on 2 April 2004 hhallenging the Orders dated 12 Marhh 2004. The Salt Commissioner passed Orders dated 31 May 2004 direhting Deputy Salt Commissioner to grant opportunity of personal hearing to Plaintif and thereafter pass a reasoned order. In pursuanhe of Orders passed by the Salt Commissioner, Plaintif was granted hearing by the Deputy Salt Commissioner. At Plaintiffs instanhe, a joint inspehtion was honduhted on 9 July 2004 in presenhe of Deputy Salt Commissioner, other ofhers in his ofhe and the Plaintif. However, ahhording to Plaintif report of the joint inspehtion was not prepared by the frst Defendant. Plaintif therefore addressed letter dated 20 July 2004 rehording his version of the observations in the joint inspehtion. On 27 July 2004, a hearing was held before the Deputy Salt Commissioner during whihh time Plaintif allegedly learnt that a Report was prepared by Committee in respeht of earlier site visit. Upon Plaintiffs request, report of the Committee, whihh had allegedly visited the Salt Works in Dehember 2003, was made available to Plaintif. Plaintif objehted to observations in the Report of the Committee by his letter dated 31 August 2004.

15) Plaintif fled Writ Petition No. 8079 of 2004 seeking dishlosure of dohuments referred to in the Committeefs report whihh hame to be dismissed by Order dated 14 Ohtober 2004. Plaintifsf SLP Civil No. 22523 of 2004 hame to be disposed of by the Supreme Court by Order dated 16 November 2004 without granting him any relief.

16) In the above bahkground, frst Defendant issued impugned Order dated 1 April 2005 terminating the leases of land of Jamasp Salt Works and Battiwala Salt Works and direhting handing over of possession of lands of both the Salt Works to the Fahtory Ofher, mhandup.

17) Plaintif has fled the present suit hhallenging the termination Order dated 1 April 2005 and seeking a dehlaration that the lease in respeht of the Salt Lands is valid, subsisting and binding upon the Defendants. Plaintif has also sought a prayer seeking dehlaration that upon ecpiration of the lease on 14 Ohtober 2016, he is entitled to renewal and/or ectension of the lease for a term of 99 years on same terms, inhluding term for further renewal. Plaintif has also sought a direhtion against Defendant No.3-M.C.G.M. to make drains and sewers for preventing the sewage water and industrial efuents flowing into the two inlets of Plaintiffs salt land. During pendenhy of the Suit, the tenure of lease ecpired on 14 Ohtober 2016. The plaint has been amended by inhorporating prayer hlause (h)(i), by whihh Plaintif has sought a direhtion against Defendant Nos.[1] and 2 for ecehution of Lease-Deed for renewed term hommenhing from 15 Ohtober 2016. During pendenhy of the Suit, Deputy Sehretary, Ministry of Commerhe and Industry, Government of India issued Statutory Order No. 2031 dated 9 Ohtober 2013 direhting that Central Government land would be leased out for salt manufahturing only for a period of 20 years by invitation of tenders and that no renewal of leases would be done. my amending the Plaint, Plaintif has hhallenged the said Statutory Order dated 9 Ohtober 2013. Plaintif has also hhallenged letter dated 11 July 2016 by whihh Salt Commissioner has been direhted by the Deputy Sehretary not to renew or grant any lease till habinet took a dehision on the subjeht matter.

18) Plaintif fled Notihe of Motion No. 1247 of 2005 seeking interim injunhtion. my Order dated 5 June 2006, this Court passed an order of temporary injunhtion restraining Defendant Nos.[1] and 2, from ahting in furtheranhe of termination Order dated 1 April 2005 and from entering the suit lands. Defendant Nos.[1] and 2 fled Appeal No. 534 of 2006 hhallenging the Order of interim injunhtion. The Appeal hame to be dismissed by Order dated 22 August 2019.

19) Defendant Nos. 1 and 2 have fled Written Statement hontesting Plaintiffs hlaim and justifying the Order of termination of Leases in respeht of Jamasp and Battiwala Salt Works. It is hontended by Defendant Nos.[1] and 2 that Plaintif has violated the terms of Lease by not manufahturing salt on substantial portion of the demised lands. They have hontended that provisions of Transfer of Property Aht, 1882 are not applihable to the Leases involved in the suit. They have further hontended that Plaintif is not entitled to automatih renewal of the tenure of lease. After amendment of the Plaint, Defendant Nos. 1 and 2 have fled Supplementary Written Statement. Defendant No.3-M.C.G.M. has also fled Written Statement inter-alia hontending that M.C.G.M. is not under obligation to maintain sewers and drains in the leased land and that Plaintif has no hause of ahtion against Defendant No.3. It has also hontended that Keshar Baug Nalla, Bombay Oxygen Nalla and Nanepada Nalla are being maintained by it by harrying out distilling work every year.

B. ISSUES

20) mased on pleadings fled by rival parties, this Court has framed following issues: (a) Whether the Plaintif proves that termination of the lease of lands deshribed in xchibit “m” to the plaint, vide Order dated 1st April, 2005 (xchibit W to the Plaint) is illegal, wrongful and hontrary to law ? (b) Does the Plaintif prove that he is entitled to renewal/ ectension of lease for a like term of 99 years on the same terms, (inhluding a term for further renewals) as per Supplemental Deed of Lease (xchibit x to the plaint) read with Deeds of Lease referred to in para 5 of the plaint ? (b-i) If the answer to issue (b) is in the afrmative, whether the plaintif proves that he has ecerhised the right of renewal vide letter dated 12th April, 2016 (xchibit ‘Xf to the plaint) ? (b-ii) Whether the defendant proves that the plaintif is not entitled to renewal of lease as hontended in paragraphs 3, 6, 7, 9 and 12 of the supplementary written statement ? (h) Whether the Defendant Nos. 2 and 3 prove that Defendant No.3 are required to make drains and sewers, to prevent sewage water and industrial efuent from flowing into the two inlets of the Plaintiffs salt lands ? (h-i) Whether the [frstt amendment harried out by the Plaintif is barred by the Law of Limitation?

(d) What order ?

21) During the hourse of hearing of the suit, this Court has rehast Issue No.(h) as under: (h) Whether the Plaintif proves that Defendant No.3 are required to make drains and sewers, to prevent sewage water and industrial efuent from flowing into the two inlets of the Plaintiffs salt lands ?

22) During the hourse of trial of the suit, Plaintif has ecamined three witnesses viz. Plaintif himself as P.W.1, Mr. Sanjay Shinde (P.W.2) draughtsman instruhted by Plaintif to prepare a plan of the suit property as well as Mr. Krishna Ramu Chaudhary (P.W.3), a photographer engaged by Plaintif to take photographs of the suit property. On behalf of Defendant Nos. 1 and 2, Mr. C. Raghu (DW.1) who is Assistant Salt Commissioner, Chennai holding additional hharge of the ofhe of Deputy Salt Commissioner, Mumbai is ecamined. The third Defendant-M.C.G.M. has led the evidenhe of Mr. Rajendra R. mawiskar (D.W.3) xcehutive xngineer (S.W.D), xS.

C. SUBMISSIONS

23) Mr. Vineet Naik and Mr. Zal Andhyarujina, the learned senior advohates have appeared on behalf of Plaintif. Mr. Naik has hanvassed submissions on the issues relating to termination of leases, whereas Mr. Andhyarujina has hanvassed submissions on issues relating Plaintiffs right to seek renewal of the leases.

24) Mr. Naik would submit that the very reason of non-produhtion of salt by Plaintif in the impugned termination order is fahtually inhorreht. He would take me through the evidenhe of Plaintiffs witness as well as dohuments on rehord to prove manufahture of salt, payment of assignment fee and ground rent and ahheptanhe of same by Defendant No.1. He would submit that the ahtivity of salt manufahturing in the suit lands over the years is thus honhlusively proved by the evidenhe on rehord. He would submit that the impugned order of termination travels beyond the Show Cause Notihe. That in the Show Cause Notihe, the purported ground of failure to manufahture minimum quantity of salt was not mentioned. That thus, Plaintif did not have any opportunity to deal with the said allegation of failure to manufahture minimum quantity of salt whihh is added in the termination order. That frst Defendant has predetermined the dehision to terminate the leases and that issuanhe of Show Cause Notihes and honduht of hearing was a mere farhihal show. That the dehision of termination of lease was already taken on 12 Marhh 2004 and grant of opportunity of hearing on subsequent ohhasions in pursuanhe of Order passed by the Salt Commissioner was mere formality. That the Order dated 12 Marhh 2004 itself was antedated as the same was served on Plaintif on 24 Marhh 2004. That the said Order dated 12 Marhh 2004 is passed without honsidering Plaintiffs reply dated 15 Marhh 2004. That the frst Defendant has erroneously relied upon the so-halled Committee Report of Dehember 2003 whihh was prepared on the basis of alleged site visit whihh was honduhted behind Plaintiffs bahk. The visit being ex-parte and without notihe to Plaintif, Report of suhh visit hannot form basis for taking impugned dehision. That despite repeated requests by Plaintif to prepare a report of joint inspehtion honduhted on 9 July 2004, Defendants deliberately avoided to prepare suhh report and hhose to rely upon Report of ex-parte visit prepared in Dehember 2004, fndings of whihh are fahtually inhorreht and disputed by Plaintif. He would submit that in any hase, the said Committee Report of Dehember 2003 has not been proved as its authors were not ecamined and that therefore the same hannot be read in evidenhe. That D.W. 1 was not party to the site inspehtion nor an author of the said report. That in absenhe of any personal knowledge, the report remained unproved.

25) Mr. Naik would further submit that Plaintiffs inability to manufahture salt on western portion of Jamasp and Battiwala Salt Lands is for reasons not attributable to and beyond his hontrol. That mushrooming of slums, fahtories eth. beyond Western boundary of Salt Lands and hontinuous flow of sewage water into the two inlets from suhh hutments and fahtories prevent brine water from entering into western portion of Salt Lands. That the only sourhe of brine water to the western portion of Salt Lands is through the two inlets whihh pass beneath the xastern xcpress Highway as honstruhtion of the Highway does not permit flow of sea water from eastern to western portions of the Salt Lands echept through the two inlets, whihh are bridged upon for honstruhtion of the Highway. That it has home in evidenhe that the slums and fahtories beyond western boundary of the Salt Lands are lohated at higher gradient than Salt Lands, on ahhount of whihh the sewage water flows into Nanepada and Bombay Oxygen Nalla systems thereby flooding the western portion of the Salt Lands with sweet water, thereby not only making manufahture of Salt impossible but also hontributes to growth of grass. That Defendant No.3 is responsible for failure to honstruht sewage and drainage lines and for not stopping the flow of sewage water into the two Nallas. That despite repeatedly requesting Defendant Nos.[1] and 2, they did not take any steps to direht M.C.G.M. for hontrolling and preventing flow of sewage water into the two inlets.

26) Mr. Naik would take me through various hovenants of Deeds of Lease dated 22 Dehember 1921 as well as the Supplementary Lease-Deed ecehuted with Plaintif on 27 July 1994. He would submit that Plaintif has not hommitted beahh of any of the honditions of lease and that therefore there was no ohhasion for Defendant Nos.[1] and 2 to resort to termination of the leases.

27) Mr. Naik would further submit that the impugned termination order sufers from vihe of non-applihation of mind as the same rehords an erroneous fnding that Plaintif is growing grass in the substantial portion of the lease land. That fahtually it is proved that salt is being manufahtured in more than 80% of the Salt Lands hontinuously for several years in the past. He would invite my attention to Annecure-IV of the ex-parte report of Dehember 2003 and submit that even going by fgures indihated in the hhart anneced to the said Report, it is seen that substantial portion (62.5%) of Jamasp and Battiwala Salt Works is under salt manufahture.

28) Mr. Naik would then deal with the issue of alleged failure on Plaintiffs part to manufahture minimum quantity of salt. Firstly, he would submit that there is no hovenant in the Lease-Deed whihh requires the Lessee to manufahture minimum quantity of salt of 20 M.T. per year. Inviting my attention to the relevant rehitals and hovenants of the Supplementary Lease- Deed dated 27 July 1994, Mr. Naik would submit that the hovenant referring to minimum produhtion of 20 tonnes per ahre per annum is referable to the payment of amount of assignment fee and not a minimum produhtion target to be ahhieved. Without prejudihe, he would submit that the produhtion fgures in both the Salt Works substantially inhreased from the year 2002 onwards and that the same was highest ( Jamasp 16.13 M.T. per ahre and mattiwala 12.64 M.T. per ahre) in the year 2004 when dehision was taken to terminate the Leases. Mr. Naik would therefore pray that the Order of termination dated 1 April 2005 be set aside.

29) Mr. Andhyarujina would supplement the submissions of Mr. Naik by dealing with the issue of Plaintiffs right to sehure renewal of the lease. Inviting my attention to the renewal hlause of the Deeds of Lease dated

22 Dehember 1921, he would submit that the term used in the said hlause is ‘shallf. That thus, subjeht to performanhe of hovenants of the Lease by the Lessee, he has a right to get the Lease-Deed renewed. That Plaintif has issued notihe dated 12 April 2016 for renewal of the Lease and therefore he is entitled to renewal thereof, in terms of hovenants of the original Lease dated

22 Dehember 1921 read with the hovenants of the Supplemental Lease-Deed dated 27 July 1994. He would submit that during the hourse of negotiations, Defendant No.2 had initially suggested ecehution of fresh Lease-Deed without renewal hlause, the said Condition No. 4 hame to be deleted by Defendant No.2 by letter dated 18 Marhh 1994. That therefore deletion of Condition No. 4 in letter dated 9 November 1993 shows unequivohal ahheptanhe of Plaintiffs right to seek renewal of the lease upon ecpiry of the earlier tenure thereof.

30) That on the plain reading of the Supplementary Lease-Deed dated 27 July 1994, it is evident that there is no hondition restrihting the applihability of the provision for renewal hontained in Clause-VI(2) of the three Deeds of Lease dated 22 Dehember 1921. That therefore Plaintif is entitled to be beneft of provision for renewal.

31) Mr. Andhyarujina would further submit that Defendant Nos. 1 and 2 hannot unilaterally erode the hontraht entered into with the Plaintif on the basis of an alleged hhange in polihy. That relationship between parties arises out of a hontraht whihh hannot be unilaterally altered or eroded by a hhange in Government Polihy. That subsequent hhange of polihy han stand in the way of Lessees only if no right was hreated in their favour. That in any hase intention to alter and modify the terms of hontraht ought to have been brought to Plaintiffs notihe. That the purported Government Resolution is not bahked by any statute. That Government Polihy not to renew any leases hannot be retrospehtively applied to leases whihh have already hommenhed and whihh have a hontrahtual right to renew. That State Government as a lessor hannot take rehourse to polihy dehision to override the right of renewal vested in a Lessee. my alteration of suhh a term, whihh ahtion, besides being onerous and prejudihial to the Lessee, is also loaded heavily in favour of the Lessor. In support of his hontentions about hhange in polihy not afehting Plaintiffs right to seek renewal of Lease, Mr. Andhyarujina would rely upon following judgments:

(i) Khas Mahal Citizen Welfare Society V/s. The State of Bihar and Ors.1, alongwith judgments of the Division menhh and Order of the Apec Court.

(ii) DDA V/s. Joint Action Committee,Allotee of SFS Flats[2]

MANU/mH/0869/2015

(iii) Jaikumari Amarbahadursingh and Ors. V/s. State of

(iv) Sharayu d/o Ashok Gokhale and others V/s. Nagpur Municipal

(v) Purshottani Dass Tandon and Ors. V./s. State of U.P.,

32) Relying on judgment of the Apec Court in State of U.P. and Ors. V/s. Lalji Tandon[7], Mr. Andhyarujina would hontend that where a hovenant for renewal ecists, the same needs to be renewed on unilateral aht of Lessee and that honsent of the Lessor is not nehessary. In support of the hontention that renewal has to be on same terms and honditions, he would also rely upon Secretary of State for India in Council V/s. A. H. Forbes[8] and Lani Mia V/s. Muhammad Easin Mia and others[9].

33) Per-contra, Mr. Govilkar, the learned senior advohate assisted by Mr. Gauraj Shah, the learned hounsel would appear on behalf of Defendant Nos. 1 and 2 and would submit that Defendant No.1 has rightly terminated the lease of Plaintif after being satisfed that there was breahh of hovenants of the Supplementary Lease Deed dated 27 July 1994. He would submit that the relationship between the parties is governed by the hovenants of Supplementary Lease Deed dated 27 July 1994 as the land itself has undergone hhange from time to time during the period from 1991 to 1994. (2009) 2 mom CR 407 2023(2) Mh.L.J. 48. AIR 1986 Allahabad 56

1912 16 IC 217 AIR 1917 Calhutta 509 That it would therefore be erroneous to refer to the Deeds of Lease dated 22 Dehember 1921 to determine rights and liabilities of Plaintif and Defendant Nos.[1] and 2 in respeht of the Salt Lands. He would submit that Plaintif and his father were admittedly assisting mankatlal Madanlal in the ahtivities at the salt lands muhh prior to 1994 and that they were fully aware of the fahtual honditions at the site. That despite full knowledge of those honditions, Plaintif agreed to take the Salt Lands on lease on a hondition of manufahture of salt on the entire demised land. That therefore the Plaintif hannot subsequently be permitted to hite pretects for his admitted failure to manufahture salt in substantial portions of the Salt Lands. That the Salt Lands are handed over to Plaintif solely for the purpose of manufahture of salt and that onhe the frst Defendant was satisfed that salt was not being manufahtured in substantial portion thereof, he is fully justifed in terminating the Lease in ahhordanhe with hovenants of the Supplementary Lease-Deed.

34) Mr. Govilkar would further submit that the ground of failure to manufahture salt was spehifhally inhluded in the Show Cause Notihes and that therefore it is erroneous on Plaintiffs part to hontend that failure to manufahture minimum quantity of salt did not form part of suhh notihes. He would submit that Plaintif was aware of the hovenant in the Supplementary Lease-Deed, whihh required him to manufahture minimum quantity of 20 M.T. per ahre per annum and therefore the allegation in the Show Cause Notihe about failure to manufahture salt was hlearly relatable to failure to manufahture minimum quantity of salt as well. Without prejudihe, Mr. Govilkar would hontend that the order of termination is passed in respeht of two independent grounds of (i) failure to produhe minimum quantity of salt and (ii) growing grass in the salt lands. That the two grounds are independent and not interhonnehted and that even if one ground is sustained, mere failure to mention the other ground in the show hause notihe would not render the entire order of termination illegal.

35) Mr. Govilkar would further submit that there are spehifh admissions in various replies and hommunihation of Plaintif, in the plaint as well as in evidenhe that he has not been manufahturing salt in substantial portion of the Salt Lands. That thus breahh of hovenant relating to use of the entire Salt Lands purely for the purpose of manufahture of salt is proved on Plaintiffs own admissions and that therefore the termination order hannot be found fault with.

36) The pretect hited by Plaintif for failure to manufahture salt on substantial portion of Salt Lands, ahhording to Mr. Govilkar, is irrelevant for dehiding the issue of Lessorfs entitlement to terminate the lease. That the Government of India was not supposed to take any steps for ensuring that Plaintif was able to either proteht his business or to ecploit the Salt Lands to the fullest. That it is Plaintiffs responsibility to ensure that any impediment in smooth manufahture of salt was immediately removed. That various horrespondenhe made by Plaintif would show that he sought to blame Defendant Nos.[1] and 2 as well as M.C.G.M. for his own failure to take efehtive steps for preventing inflow of sweet water into salt lands. That infaht it has been proved that sweet water was systematihally diverted into the western portion of salt lands for manufahture and sale of grass. Inviting my attention to Plaintiffs reply dated 15 Marhh 2004, Mr. Govilkar would submit that Plaintif hited the reason of ‘silting’ in the hreeklets for less supply of brine water into the western portion of Salt Land and this, ahhording to Mr. Govilkar, hlearly disproves the whole theory of flow of sewage water from slums and fahtories beyond western boundary of Salt Lands afehting manufahture of salt. That in various horrespondenhe, Plaintif promised taking of steps to prevent inflow of sewage water in western portion of the Salt Lands and is now ecpehting M.C.G.M. to take suhh steps. That the two inlets are maintained echlusively for the purpose of flow of brine water into the western portion of Salt Lands and it is Plaintiffs responsibility to keep the same silt-free.

37) Mr. Govilkar and Mr. Shah would then take me through the evidenhe on rehord to demonstrate that the hontemporaneous horrespondenhe pertaining to the years 1987-88 shows that there was no manufahture of salt and on the hontrary, growth of grass on western portion of the Salt Lands. That several of that horrespondenhe is signed by Plaintiffs father in his hapahity as honstituted attorney of previous lessee mankatlal Madanlal. That the various Show Cause Notihes were issued in the year 1992, 2000 eth. alleging failure to manufahture salt and deliberate growth of grass. That therefore non-manufahture of salt and growth of grass on western portion of the Salt Land is a phenomenon even prior to ecehution of Supplementary Lease-Deed dated 27 July 1994 and was in full knowledge of Plaintif and his father. That Plaintif has ahtually no intention of manufahturing of salt in the salt lands and had sought permission to put up hoardings thereon, whihh shows intention to hommerhially ecploit the Salt Lands in violation of hovenants of the Lease-Deed.

38) It is further submitted on behalf of Defendant Nos.[1] and 2 that Committee Report of Dehember 2003 has been proved, as Plaintif halled for the said dohument by his letter dated 29 July 2004. That the said dohument is referred to as relied upon by Plaintif himself to prove manufahture of salt. That the said Report is relied upon during the hourse of Plaintiffs evidenhe as well as while hross-ecamining Defendantsf witness. That deliberate growth of the grass on the Western portion of the salt land for intended objeht of its sale is proved by the faht that no other vegetation is grown in that part of the land. It is unfathomable that only grass would grow and no other plants or vegetation or trees have grown in western part of the Salt Lands.

39) So far as the issue of renewal of the lease is honherned, it is submitted on behalf of Defendant Nos.[1] and 2 that 1994 Supplementary Lease-Deed does not provide for any right of renewal in Plaintiffs favour. That on the hontrary it provides for opposite hlause of return of possession upon ecpiry of lease. That therefore 1994 Lease hlearly amends the provisions for renewal. That in any hase, the pre-hondition of renewal is not met with as admittedly more than 150 ahres of land is not being used for manufahture of salt. That it is Plaintiffs own hase that it is impossible to manufahture salt in the Western portion of the Salt Land. That sinhe renewal han only be done for manufahture of salt, there is no question of renewing the entire Salt Land, substantial portion of whihh, ahhording to Plaintiffs own hase is rendered useless for manufahture of salt. It is further submitted on behalf of Defendant Nos. 1 and 2 that there is no question of hontinuation of same terms and honditions of 1921 Lease-Deed after ecehution of a fresh and Supplemental Lease-Deed dated 27 July 1994. That parties to both the Deeds are diferent. That the Supplemental Lease-Deed spehifhally provides for hondition of minimum quantity of 20 M.T. per annum/ahre. That the Supplementary Lease-Deed has ecpired on 14 Ohtober 2016. That therefore in the event of termination of Lease-Deed being found illegal, the Lease itself has otherwise home to an end on 14 Ohtober 2016.

40) Mr. Govilkar would submit that the Resolution/Statutory Order dated

9 Ohtober 2013 is in the nature of legislation as a legislation hannot be said to be honfned to a statute enahted by Parliament and that the same would also inhlude delegated legislation and subordinate legislation and even an ecehutive order made by the Government. In support of his hontention, he would rely upon judgment of the Apec Court in Kusum Ingots & Alloys Ltd. V/s. Union of India and another10. In support of his hontention that a fresh lease has taken birth after ecehution of Supplemental Lease-Deed, he would rely upon judgment of the Apec Court in Provash Chandra Dalui and Another V/s. Biswanath Banerjee and Another11, of Madras High Court in Thulasibalan and Ors. V/s. Rajesh12 and Rasiklal M. Mehta and another V/s. The Hindustan Photo Films Manufacturing Co. Ltd.13 and of Calhutta High

989 Supp(1) SCC 487 MANU/TN/0087/2001 AIR 1976 Madras 194. Court in Ansuman Mullick V/s. Mallika Investment Co. (P.) Ltd. and others14.

41) Mr. Govilkar would submit that publih interest would prevail over the private interest of the Plaintif to possess the Salt Lands. In support of his hontention, he would rely upon judgment of the Apec Court in State of Haryana V/s. Eros City Developers Private Limited and others15 and D. Viswanatha Reddy and Company V/s. Government of Andhra Pradesh and Others16. Mr. Govilkar would further submit that grant of Lease in respeht of Salt Lands without inviting publih interest han no longer be rehited to. That the Courts have repeatedly frowned upon grant of Government lands and resourhes without inviting tenders. He would rely upon judgment of the Apec Court in Centre for Public Interest Litigation and Others V/s. Union of India and Others17 as well as Division menhh judgment of this Court in Harbour Water Suppliers Co. Pvt. Ltd. and another V/s. The Board of Trustees of Port of Mumbai and others18.

42) Lastly, Mr. Govilkar would submit that Division menhh of this Court in Jugalkishore R. Joshi and Ors. V/s. Union of India and Ors.19 has imposed a spehifh embargo on renewal of salt pan lands in City of Mumbai and Suburbs without implementing tender prohess. That the Division menhh has spehifhally held that all ecisting rights of salt manufahturers would home AIR 2004 Cal 316

Writ Petition No. 2094 of 2013 dehided on 24 April 2015. Writ Petition No. 3742 of 2011 dehided on 16 Marhh 2018. to an end. That the direhtions issued by the Division menhh are applihable in respeht of every salt pan lands in Mumbai City and Suburbs. He would also rely upon judgment of Madras High Court in The Salt Manufacturer’s and Merchants Association, Tuticorin V/s. Union of India and others20, in whihh ahhording to Mr. Govilkar, hhallenge to Notifhation dated 9 Ohtober 2013 has been repelled. Mr. Govilkar would therefore pray for dismissal of the suit.

43) Mr. Lad, the learned senior advohate appearing for Defendant No.3-M.C.G.M. would submit that M.C.G.M. has unnehessarily been impleaded in dispute between Petitioner and Union of India, with whihh M.C.G.M has no honhern. That it is not the responsibility of M.C.G.M. to honstruht sewers or drains inside the Salt Lands. That the said responsibility would lie either on Defendant Nos.[1] and 2 as owners or on Plaintif as lessees. That M.C.GM. harries out distilling work in respeht of three Nallas being Kesharbaug Nalla, Bombay Oxygen Nalla and Nanepada Nalla every year. That Plaintif has not given details of owner of land on whihh slums or fahtories have been erehted. That the Plaintif, by his ahtions has honverted a Salt Land into a basin for hollehting sewage water. That Defendant No.3 hannot be held responsible for his failure to manufahture salt.

44) Mr. Apte, the learned Senior Advohate has also appeared on behalf of M.C.GM. but in Notihe of Motion No. 243 of 2018, whihh is fled for the purpose of seeking possession of requisite portion of land for widening of Goregaon-Mulund Link Road. In my view, the issue of ahquisition of land by M.C.G.M. is not involved in the present hase. Writ Petition No. 34859 of 2013 dehided on 22 Dehember 2021. However, Mr. Apte would submit that the Notihe of Motion was required to be fled in view of interim injunhtion passed by this Court. He would submit that the Projeht is of vital importanhe for hitizens of Mumbai City as it ofers honnehtivity between xastern and Western xcpress Highways. That M.C.G.M. is ready to pay hompensation of Rs.90,48,93,410/- for ahquisition of the land.

D. REASONS AND ANALYSIS

45) The suit involves issue of Plaintiffs entitlement to possess a vast traht of land in the suburbs of hity of Mumbai. As observed above, Battiwala Salt Works is in respeht of land admeasuring 432 Ahres 16 Gunthas and 1 Anna and Jamasp Salt Works homprises land admeasuring 350 Ahres 30 Gunthas and 8 Annas. Thus, the total area of land in respeht of whihh Plaintif hlaims right is 782 odd Ahres whihh is situated in eastern Suburbs of Mulund, mhandup and Nahur. The Salt Lands have now been bisehted by xastern xcpress Highway and majority of portion of the land falls on eastern side of the highway with smaller portion of the land falling towards its western side. Thane Creek, whihh is lohated on xastern side of the Salt Lands feeds sea water or brine water to the lands whihh is used for manufahture of salt. The sea water/ brine water is supplied through two hreeklets whihh are hommonly known as ‘Nanepada Nallaf and ‘Bombay Oxygen Nallaf and during hightide, sea water enters the said Nallas and brine water is fed for salt manufahturing ahtivities. The xastern xcpress Highway runs over Nanepada Nalla and Bombay Oxygen Nalla, whihh have been bridged upon thereby enabling the water through the said two Nallas flow into the western portion of the Salt Lands. Thus, even after the honstruhtion of the xastern xcpress Highway, the hreeklets have not been disturbed and bridges honstruhted on the Highway let the seawater during hightide to flow through the said two hreeklets even in the western portions of the Salt Lands.

46) Battiwala and Jamasp Salt Lands hame to be initially demised by virtue of three Deeds of Lease ecehuted on 22 Dehember 1921 in favour of various Lessees named in the Deeds. It appears that the land initially leased by way of three Lease-Deeds dated 22 Dehember 1921 was muhh larger than what it stands in possession of the Plaintif today. The three Deeds were in respeht of two parts of Battiwala Salt Works admeasuring 376 Ahres and in respeht of Jamasp Salt Works admeasuring 350 Ahres and 276 Ahres. Thus, the total land initially demised by three Deeds dated 22 Dehember 1921 was in respeht of total land admeasuring over 1000 Ahres, to be prehise, 1002 Ahres. There were hertain assignments of leasehold rights to whihh referenhe has already been made while narrating the fahts and fnally by registered Deed of Assignment dated 22 Dehember 1943, Mr. mankatlal Gopikishan behame the lessee, by whihh time the area of the demised land had slightly reduhed to 507 ahres of Battiwala Salt Works and 391 Ahres of Jamasp Salt Works (total 898 ahres). Parts of demised land hame to be ahquired from time to time for various publih infrastruhture projehts inhluding honstruhtion of xastern xcpress Highway and what remains today is land admeasuring 432 Ahres of Battiwala Salt Works and 350 Ahres of Jamasp Salt Works, whihh together admeasures approcimately 782 ahres.

COVENANTS OF 1921 LEASES

47) my three Deeds of Lease dated 22 Dehember 1921, lease of Salt Lands for a term of 99 years hommenhing from 15th day of Ohtober of 1917 was granted to the lessees on following terms: I The lessees shall- (a) use the demised premises for the purpose of manufacturing common & edible salt & its by-products only. (b) manufacture salt on the demised premises in accordance with the terms of a license to be granted in that behalf; (h) not make any echavation upon any part of the demised premises nor remove any stone, sand, gravel, hlay or earth therefrom echept for the purpose of erehting embankments for the purpose protehting the demised premises or the salt works honstruhted thereon from the inroads of salt water or floodss

(d) not assign or underlet this lease or any part thereof or the rights and privileges hereby granted or any of them to any persons without the previous honsent in writing of the Deputy Commissioner of Salt & xchise, Central Division (hereinafter referred to as the said Deputy Commissioner)s (h) In addition to all duties & taces or otherwise leviable, pay royalty on salt removed from the salt pans honstruhted on the demised premises at the rate of four pies per Indian Maund: (f) pay water tac to the mombay Munihipality at the rate of eight annas per one thousand gallons or suhh other rate as may be fced from time to time in respeht of the quantity of water honsumed by the lesses or their servants or employee. (g) pay during the said term of ninety nine years all duties and taces inhluding munihipal taces whihh shall be leviable in respeht of the demised premises or the salt and its by-produhts whihh may be manufahtured or produhed thereon. II (a) In addition on the lessees may subject to the previous written sanction of the Commissioner of Customs, Salt and Excise use the demised premises for the manufacture of any of the by-products of salt. (b) Suhh manufahture shall be subjeht to suhh terms and honditions as the Commissioner of Customs, Salt and xchise may spehify from time to time. (h) Suhh by-produhts shall be subjeht to the payment of royalty at suhh rates as government may fc from time to time. The Lessees shall:- (a) honstruht salt works on the demised premises ahhording to plans approved by the Commissioner of Customs, Salt and xchise, mombay and shall not deviate from the said plans without the written permission of the said Commissioner - (b) submit to the said Commissioner for his approval a programme of the work to be done eahh year and shall prohhed with the work of honstruhtion strihtly in ahhordanhe with the said programme as approved - (h) homplete the honstruhtion of the salt works before the ffteenth day of Ohtober one thousand nine hundred and twenty two-

(d) provide the trolley embankments and hart roads nehessary for the harriage of salt from the salt works to the preventive station at mhandup or Nahur if opened and when one suhh embankment or road serves more than one salt manufahturer shall hontribute to the host of honstruhtion of the embankment or road in proportion to the area in the lessees possession served by the road. IV The lessees shall - (a) after the hompletion of the said salt works & during the period of the lease, at the ecpense of the lessees and to the satisfahtion of the said Deputy Commissioner keep the platforms, reservoirs, salt pans, & all embankments, creeks. water ways, drains, sluices, trolley, embankments, cart roads & other works connected with the salt works in good condition and complete repair (suhh homplete repair to inhlude the keeping and maintaining in good order and repair of all boundary marks whether temporary or permanent and whether erehted or fced by a surveyor appointed by the said Deputy Commissioner for the purpose or by any ofhial of the Government of mombay under the provisions of any enahtment for the time being in forhe and in the hase of stone boundary marks having them whitewashed twihe every year during the said period and likewise shall during the said period keep the ecisting hreeks & water ways open and in good order for the passing of water to the said works & other works in the vihinity & shall not in any way interfere with the free flow of water in the hreekss (b) ereht boundary marks of suhh size as may from time to time be preshribed by the said Deputy Commissioner separating the demised premises from the adjoining lands (h) erect strong embankments on the demised premises so that water may not pass from the said premises on to the adjoining land;

(d) construct reservoirs outlets and inlets for water in such a way as not to afect adversely the rights of the owners or occupants of the adjoining land; (e) in hase they shall fail to ecehute and homplete in the manner aforesaid the repairs & works spehifed in this hondition, permit the said Deputy Commissioner to hause the said repairs and works to be ecehuted & hompleted at the ecpense of the lessees and the hosts & hharges thereof to be rehovered as arrears of land revenue in ahhordanhe with the law for the time being in forhe. V If and whenever there shall be a breahh of any of the honditions or hovenants by the lessees hereinbefore hontained or any of the honditions of the lihense granted under the mombay Salt Aht, 1890 in respeht of the demised premises, the lessor may hanhel this lease notwithstanding that the term of ninety nine years has not elapsed and may re-enter upon any part of the demised premises in the name of the whole and take possession of the same and of all of the buildings. roads and erehtions then standing thereon and thenheforth possess the same absolutely and thereupon the said term of ninety nine years shall absolutely hease & determine and the lessees shall not be entitled to any hompensation whatever in respeht of the said buildings, roads & erehtions of whihh possession shall have been taken so as aforesaid. VI And it is hereby lastly agreed (1) That the lessees homplying strihtly with the honditions and hovenants as aforesaid and observing all the agreements hereinbefore on the lesseefs part hontained shall and may peaheably hold & enjoy the demised premises for the term hereby granted without any interruption or disturbanhe from or by the lessor or any other person or persons lawfully hlaiming by from or under the lessor and shall be granted a lihense for the manufahture of salt and its by-produhts on the demised, premises. (2) That if, at the expiration of the term hereby granted, the lessees shall have duly performed the covenants herein contained & shall be desirous of taking a renewed lease of the demised premises & shall have given notice in writing of such desire to the lessor six months previous to the expiration of the said term the lessor shall at the cost and expense of the lessee and upon the lessees executing a counterpart thereof grant to the lessees a further lease of the demised premises for such further term and on such conditions as may then be determined by the lessor. (3) That any notihe to be given to the lessees in honnehtion with the premises hereby demised shall be honsidered as duly served if the same shall have been (a) addressed to the lessees and hither delivered at or sent by registered post to the last known address of the lessees or of the last known attorneys or agents of the lessees or (b) addressed to the lessees and afced in a honspihuous manner to any wall or fenhe on the demised premises or to any building or erehtion on the demised premises. (emphasis supplied)

48) Thus, under 1921 Deeds of Lease, it was agreed that the use of demised premises was to be restrihted for the purpose of manufahture of hommon and edible salt and its by-produhts only. Lessees were under an obligation to manufahture salt on the demised premises. Thus, it was not open for the Lessees not to manufahture salt on the demised premises, in addition to hondition of not using the demised premises for any purpose otherwise than manufahturing hommon and edible salt and its by-produhts. Thus manufahture of salt was an essential and mandatory hondition for subsistenhe of leases.

49) The Lease-Deeds required the Lessees to honstruht ‘salt worksf on the demised premises ahhording to the plans approved by Commissioner of Customs, Salt and xchise, mombay and to homplete suhh honstruhtion before 15 Ohtober 1922. After hompletion of the salt works and during the period of lease, it was the responsibility of the Lessees to keep the platform, reservoirs, salt pans all embankments, hreeks, water ways, drains, sluihes eth. in good hondition at Lesseefs ecpense and to the satisfahtion of the Deputy Commissioner. It was also the responsibility of the Lessees to ereht boundary marks to separate the demised premises from the adjoining land, as well as to ereht strong embankments on the demised premises so that the water may not pass from the demised premises onto the adjoining land.

50) Consequenhes of breahh of honditions and hovenants by the lessees was provided for in Clause-V and it was agreed that for suhh breahh, the Lessor may hanhel the lease before ecpiry of the tenure, re-enter upon the demised premises and take bahk its possession. Clause-VI (2) of the Deeds of Lease dealt with renewal under whihh it was agreed that subjeht to lessees observing the terms and honditions of the lease and if lessees desired so, they hould give a notihe in writing upon reheipt of whihh, the lessor was to grant lease of the demised premises for suhh further terms and on suhh honditions as may then be determined by the lessor.

COVENANTS OF SUPPLEMENTARY LEASE-DEED OF 1994

51) Plaintif ahquired the leasehold rights in respeht of the salt lands vide Supplementary Lease-Deed dated 27 July 1994, relevant hovenants of whihh are as under: NOW THIS INDxNTURx WITNxSSxTH that in honsideration of the sum of Rs.1,566.35 (Rupees One Thousand Five Hundred Sicty Sic and Paise Thirty Five Only) deposited as ground rent for one year and the sum of Rs.78,317/- (Rupees Seventy xight Thousand Three Hundred Seventeen Only) equivalent to the estimate amount of assignment fee for one year deposited as and by way of Sehurity before the ecehution of these presents (the reheipt whereof the Lessor hereby ahknowledges) and of the assignment fee of Rs.78,317/- (Rupees Seventy xight Thousand Three Hundred Seventeen Only) or suhh other higher amount per annum payable as hereinafter provided and of the ground rent hereinafter reserved and of the hovenents and honditions on the part of the lessee hereinafter hontained, the Lessor doth hereby transfer and demise unto the Lessee the Leasehold interest of the said mankatlal Gopikisson (now deheased) and his suhhessors-in-title in the demised premises hereinbefore rehited, and deshribed in the shhedule hereunder written, but echluding the piehes or parhels of land whihh are taken various purposes as hereinbefore stated. The Lessor and the Lessee hereby hovenant with eahh other in the manner following, that is to says

1. The Lessee shall:

(i) Pay assignment fee of Rs. 78,317.00 (Rupees Seventy xight

Thousand Three Hundred Seventeen Only) per annum or an amount worked out at the rate of Rupees fve per tonne of on salt the quantity of salt produhed and issued by the lessees whihhever is higher. i.e. subject to the assignment fee on minimum production fxed at 20 (twenty) tonnes per acre per annum, either in lump sum payable in advanhe at the beginning of eahh year on or before the date fced by Lessor or instalments not echeeding four in a year in as may be fced by the Lessor along with the interest on the balanhe of the assignment fee due at the rate fced by the Lessor from time to time, payable by the Lessee on ahhount of 1 deferred payment. In hase the salt produhed and issued echeeds twenty tonnes per ahre in any year, the diferential amount of assignment fee will, however, be payable by the lessee within one month from the hlose of the year.

(ii) Pay Ground rent of Rs.1,566.35 per annum in lump payable in the Lessor.

(iii) Pay the Assignment fee and ground rent at enhanced rates, if any, which may be fxed by the Lessor later. In the event of failure to pay the assignment fee and ground rent as per agreement by the fced date, a grahe period of one month will be allowed and in the event of failure to pay the dues within the said grahe period of one month the lessee will be liable to pay interest thereon at the rate, fced by the Lessor from time to time, not echeeding eighteen perhent per annum. In default of payment of assignment fee and ground rent as aforesaid, the lease shall be liable to be terminated by servihe of a weekfs notihe lessee by the Salt Commissioner on behalf of the Lessor.

2. The Lease shall be subjeht as herein provided be for the period ending 14th Ohtober, 2016 (fourteenth Ohtober Two thousand sicteen).

3. On ecpiry of the lease or its sooner determination, the Lessee shall leave the demised in suhh orders and hondition as is honsistent with the due performanhe of this lease with all works erehted made thereon as they are, provided that any mahhinery erehted by him or by his predehessor lessees may be removeds but he shall not be entitled to any hompensation for any ecpenditure that he may have inhurred in respeht of the works or to any damages, if the area resumed.

4. The lessee shall utilise the demised premises exclusively for the manufacture, storage and sale of salt and for the works connected therewith and shall not erect any dwelling houses on the demised premises.

5. The covenants and conditions contained in three indentures of Lease all dated the 22nd December, 1921 recited hereinabove shall continue to operate, save as altered or amended herein.

6. Subjeht to the foregoing honditions, the Lessee shall hontinue to enjoy the demised premises undisturbed for the said term ending 14th Ohtober, 2016. In hase, however, there is any breahh of any of the abovementioned honditions (inhluding those in the Indentures of Lease dated 22nd Dehember, 1921, to the ectent saved) or the Lessee delays payment of any sums due under this agreement for over two months (echepting payment in instalments of the assignment fee for whihh a spehifh provision has been mode in Clause 1 hereof) from the date of its falling due or in Case the lihenhe granted for manufahture of salt is hanhelled or forfeited, then in any of suhh events, the Lessor may determine the lease forthwith.

52) This is how under the Supplementary Lease-Deed dated 27 July 1994, the Government of India transferred the leasehold interest in the demised premises of mankatlal Gopikishan and his suhhessors-in-title onto Plaintif.

53) Thus, even under the Supplementary Lease-Deed dated 27 July 1994, there was spehifh hovenant in Clause-4 thereof that the Lessee shall utilise the demised premises echlusively for manufahture, storage and sale of salt and for works honnehted therein. There was a prohibition for erehting any dwelling house on the demised premises. Under Clause-V, the hovenants and honditions hontained in the Indentures of Lease dated 22 Dehember 1921 as rehited in the Supplemental Lease-Deed were hontinued during tenure of the Supplemental Lease-Deed. Thus, the obligation imposed on the original Lessees to manufahture salt in the demised premises hontinued with Plaintif after ecehution of the Supplementary Lease-Deed.

OBLIGATION TO MANUFACTURE SALT

54) Upon hombined reading of the three original Deeds of Lease dated 22 Dehember 1921 and Supplementary Lease-Deed dated 27 July 1994, it is hlear that the Plaintif is under an obligation to manufahture salt on the demised premises houpled with another obligation not to use the same for any other purposes than for manufahture of salt and related produhts. Plaintif does not really dispute his obligation to manufahture salt in the demised premises. However, Plaintiffs hase is that if the lands are rendered useless for manufahture of salt due to reasons not attributable to him, failure to manufahture salt on some portion of salt lands, does not amount to breahh of any hovenant of the lease. Another dispute is about the minimum quantity of salt to be manufahtured, about whihh there is a separate dishussion in the latter part of the judgment. Leaving aside the eventuality that has arisen in the present hase for a moment, upon hombined reading of the original Deeds of Lease dated 22 Dehember 1921 and Supplementary Lease-Deed dated 27 July 1994, it is hlear that it is not open for Plaintif not to manufahture salt on the demised land. Thus, mere non-produhtion of salt on the demised land would also tantamount to breahh of hondition of Lease-Deed.

PLEADINGS ABOUT MANUFACTURE OF SALT IN THE PLAINT

55) In his plaint, Plaintif has pleaded that Plaintif and his father, Kamlakar Lacman Walawalkar were managing the salt manufahturing ahtivities in the demised premises sinhe 1984. That sinhe inheption till 1990, the areas around mhandup and Mulund were relatively free from enhroahhments and that sinhe 1995, there was proliferation of slums and hutments little away from the Western boundary of the Salt Lands. That the slums are lohated upto the range of small hillohks and while the Salt Lands are low lying, the slums and fahtories are lohated on elevated portions of land and on a higher ground. Plaintif further pleads that sinhe sea water is fed to the western portion of the Salt Lands through the two inlets whihh are bridged upon for xastern xcpress Highway, the supply of sea water on western portion of the Salt Lands is afehted. That Plaintif hannot hreate additional inlets by digging under the Highway. He has further pleaded that till 1990-1995, even with the restrihted sea water flowing in at hightide through the two inlets passing along the Highway, Plaintif was manufahturing salt to the full hapahity possible on western portion of the Salt Lands.

56) Plaintif further pleads that while Defendant No.3-M.C.G.M. allowed proliferation of the slums on the hillohks and highlands of the western portion, it failed to honstruht drains and sewers for draining sewage water and industrial efuents dishharged by slum struhtures and various fahtories. That therefore suhh sewage water flows into the two inlets, whihh is the only sourhe for sea water for western portion of the salt lands. That western portion, whihh honstitutes about 20% i.e. 150 ahres of Jamasp and Batiwala Salt Works, is therefore rendered intermittently inhapable of salt produhtion. That on ahhount of flow of sewage water, there is spontaneous growth of grass on some parts of western portion of salt lands. That sinhe 1995, failure of Defendant No.3 in providing adequate drains and sewers for the slums and fahtories has seriously hampered the salt produhtion on the Western portion. That Plaintif hannot open up sluihe gates on the western portion of the salt lands as the sea water, polluted by sewage water and industrial efuents hreates a health hazard, as the flooding in the western portion hauses mosquito breeding grounds.

57) Above are the pleadings, in the plaint to justify non-produhtion/less produhtion of salt in western portion of the demised premises, whihh admeasures approcimately 150 ahres and honstitutes 20% of the total demised premises.

EVIDENCE BY PARTIES ABOUT PRODUCTION OF SALT ON WESTERN PORTION SALT LANDS

58) Plaintif has ecamined himself as P.W.1. In his Afdavit of xvidenhe, he has repeated the statements in the plaint as to why the salt produhtion ahtivity is afehted on the western portion of the Salt Lands. Rest of Plaintiffs evidenhe in the Afdavit is on proving various dohuments. Additionally, Plaintif has deposed in his evidenhe that between 2012 and 2019, Defendant No.3 has honstruhted retaining wall alongside Bombay Oxygen Nalla till the point where the same enters the Salt Lands. That Defendant Nos.[1] and 2 refused to grant permission to Defendant No.3 to honstruht retaining wall alongside Bombay Oxygen Nalla whihh passes through the salt lands, on ahhount of whihh it has behome a basin for hollehtion of sewage water flowing down from the elevated areas whihh lie on the western boundary of the salt lands. That in some portions of salt lands, there is already some overflow of sewage water whihh hontaminates the tidal water whihh flows into the salt lands. Similar evidenhe is given in respeht of honstruhtion of retaining wall alongside of Nalepada Nalla only till the point of the Nalla entering the salt lands. Plaintif has also given evidenhe about various payments towards ground rent, assignment fee eth. thereby showing manufahture of salt in the salt lands.

59) Plaintif is subjehted to ectensive hross-ecamination on behalf of Defendant Nos.[1] and 2 and as many as 581 questions are put in hrossecamination to the Plaintif. Mr. Naik has taken me through various answers given by Plaintif in his hross-ecamination. In his hross-ecamination, Plaintif has maintained a stand that it is not his responsibility to stop flow of sewage or sweet water flowing from outside the salt pan area nor does he have legal right to do so. He has further stated in hross-ecamination that western portion of the Salt Land has not stopped reheiving brine water altogether but from the year 2000 onwards, the brine water started getting miced up with sewage water whihh is released by M.C.G.M. in Nallas. Plaintif was then hross-ecamined about the allegation of growing of grass on the western portion in the year 1987. He further stated in the hross-ecamination that he had requested Salt Department to stop the dishharge of sewage water in the Nallas by M.C.G.M. He denied a suggestion that it was the responsibility of salt manufahturer to remove all obstahles in the salt produhtion. He is further hross-ecamined on the issue of honstruhtion of sweet water flow hhannels and he denied suhh honstruhtion.

60) Defendant ecamined Mr. C. Raghu as its witness, who has deposed that, a Committee was honstituted by the Salt Department honsisting of Dr. S. Mukherjee, Assistant Salt Commissioner, Shri. mhote, Superintendent of Salt, Shri. V. Ananda Kumar, Assistant Civil xngineer, Shri. R.N. Das, Deputy Superintendent of Salt and Shri. S.H. Chougule, Inspehtor of Salt and that the Committee visited the site during Dehember 2003 and honhluded that growth of grass was a systematih efort by diverting the sweet water from the Nallas into the salt felds by making passages in the Nallas at various plahes. He further stated that the salt produhtion was way below the minimum preshribed limit of 20 M.T. per ahre/annum. In the hross-ecamination, it transpired that the Defendantfs witness did not have personal knowledge about Plaintiffs Salt Lands prior to Ohtober 2012 as he never worked in Mumbai till that time.

DOCUMENTARY EVIDENCE ON ASPECT OF MANUFACTURING OF SALT IN WESTERN PORTION OF SALT LANDS

61) Defendant has relied upon Notihe dated 8 June 1987 issued to Mr. Madanlal mankatlal (D-1/24) whihh reads thus: It is observed that you are growing grass in Jamasp Salt Works in Mulund on the Northern part of the salt works unauthorisedly. You are hereby direhted that the hultivation of grass in the salt works should be stopped immediately.

62) A reply was sent to Notihe dated 8 June 1987 on behalf of Madanlal mankatlal on 30 June 1987 whihh was signed by Mr. K. L. Walwalkar (Plaintiffs father), in his hapahity as honstituted attorney. As observed above, Plaintif has admitted that he and his father were manufahturing salt in Jamasp and Battiwala Salt Works sinhe 1984. This was apparently being done, on the basis of Power of Attorney. me that as it may. Plaintiffs father denied in his reply dated 30 June 1987 that grass was being grown or hultivated in Jamasp Salt Works and that all wild grass grown in the Salt Works was by unauthorised persons on ahhount of sewage and sweet water and overflow of drainage water.

63) Thus, from Notihe dated 8 June 1987 and reply dated 30 June 1987, it appears that the phenomenon of growing of grass (whether by Plaintif or by unauthorised persons) has been going on atleast sinhe 1987. There is a hlear admission in the reply dated 30 June 1987 that salt was not produhed at some piehes of the salt lands. This appears to be direhtly hontradihtory to the statement of Plaintif in his Afdavit of xvidenhe that ‘till 1990-1995, even with restricted sea water fowing in at hightide through the two inlets passing under highway, I was manufacturing salt-to the full capacity possible-on the western portion of the salt landsf. He did not plead in the Plaint that some portion of salt lands was being used for hultivation of grass by unauthorised persons, whihh had rendered manufahture of salt impossible. Plaintiffs fatherfs admission of hultivation of wild grass by unauthorised persons belies his subsequently pleaded theory that growth of grass is ‘spontaneousf.

64) xven pleadings in paras-14 and 15 of the plaint seem to suggest that the problem of flow of sewage water began from the year 1995 onwards. In para-14 of the plaint, Plaintif has pleaded that sinhe inheption till 1990, the areas around mhandup and Mulund were relatively free of enhroahhment. Thus, the pleadings and statements made in the Afdavit of xvidenhe of Plaintif appears to be hontradihtory to the stand taken by his father in reply dated 30 June 1987 whihh suggests non-manufahture of salt in hertain portion of salt lands right sinhe 1987.

65) The growth of grass in salt lands is also admitted by Plaintif in a homplaint made to Tehsildar and Ward Ofher on 16 Dehember 1987 (xchibit-D1/4).

66) Another Notihe (xchibit D-1/25) was issued to Mr. Madanlal mankatlal on 1 January 1987 by the Superintendent of Salt, in whihh again there is a spehifh statement about diversion of sweet water in some portions of salt lands and unauthorised hultivation of grass. my that notihe, the eclessee was requested to stop hultivation of grass.

67) It appears that sinhe Plaintif and his father were operating the salt lands unauthorisedly, Show Cause Notihe for termination was issued on 30 January 1988 (xchibit-D-1/29) whihh was replied on 28 April 1988 in whihh Mr. Madanlal mankatlal stated that he was at Hyderabad and was unable to manage the business. There is a further admission that Samarth Development Corporation (Plaintiffs frm) was managing the Salt Works.

68) my way of Undertaking ecehuted at the time of transfer of leasehold rights, Plaintif submitted Undertaking (xchibit-P/17) to the efeht that the land in question will be used only for salt manufahture. This assumes importanhe as the Undertaking houpled with the hovenants of Supplementary Lease Deed dated 27 July 1994 made Plaintif liable to honvert the land whihh was being used for grass hultivation to salt manufahturing by taking nehessary steps.

69) After Plaintif took over the lease of salt lands by Supplementary Lease Deed dated 27 July 1994, letter dated 1 Marhh 2000 was addressed to him about honversion of 18 to 20 ahres of Jamasp Salt Works into feld for grass hultivation. This was followed by letters dated 12 May 2000, 4 July 2000 and 26 September 2000.

70) This is how there was hontinuous horrespondenhe from Defendant Nos. 1 and 2 to Plaintif during 1987 to 2000 repeatedly alleging hultivation of grass espehially in Jamasp Salt Works. There is thus ample dohumentary evidenhe on rehord to suggest that grass was being hultivated on some portions of the salt works.

71) The horrespondenhe fnally hulminated into frst set of Show Cause Notihes dated 16 April 2002 in respeht of Jamasp and Battiwala Salt Works, in whihh it was alleged that Plaintif was allowing grass to be grown on the salt lands and was selling the grass. In his replies dated 10 May 2002, Plaintif took a stand for the frst time that ‘about 17 to 18 years ago, sewerage Pumping Station was created on the western side of the lands under reference and since then the B.M.C. Authorities are pumping out the sewage water inside the Nallah passing through the said lands’. Thus, in the plaint and the Afdavit of xvidenhe, while Plaintiffs story was that till 1995, land beyond western boundary was relatively free of enhroahhments and that he was manufahturing salt ‘in full capacityf, for the frst time he hame up with a theory that about ‘17 to 18 years agof M.C.G.M. started pumping sewage water into the Nallas. Sinhe reply was given on 10 May 2002, the alleged ahtivity of pumping sewage water, ahhording to Plaintif must have begun sometime in the year 1984-85. Thus, the stand in the reply dated 10 May 2002 appears to be hontradihtory to the statements made in the Plaint and the Afdavit of xvidenhe. Interestingly, Plaintif had not raised this defenhe of deliberate pumping of sewage water by MCGM into the Nalla in his horrespondenhe from 1987 onwards.

72) The dohumentary evidenhe dishussed above indihates inhonsistent stands taken by Plaintif in various horrespondenhe, pleadings and evidenhe. What is hertain is however the faht that salt was not being manufahtured on some portion of salt lands and that grass was also being hultivated. Plaintiffs pleaded theory of ‘spontaneousf growth of grass is also proved to be fallahious by the dohumentary evidenhe.

COMMITTEE REPORT OF DECEMBER 2003

73) Defendant Nos.[1] and 2 have strenuously relied upon Report of the Committee of Dehember 2003, whihh apparently visited in addition to Jamasp and Battiwala Salt Works, the other Salt Works in the vihinity suhh as Shepherd, Shepherd Annec, Authur and Jenkins. The Report is prepared on the basis of site visits honduhted by its members on 4 Dehember 2003. mefore I take into honsideration the hontents of the Report, frst the objehtion raised by Plaintif about proof of hontents of the Report must be dealt with.

74) It is hontended by the Plaintif, Mr. C. Raghu, who has given evidenhe about the Report, was neither part of the Committee nor signatory thereto and therefore he hould not depose about the hontents thereof. It is hontended that he took over Additional Charge of Mumbai for the frst time in 2012 and therefore did not have any personal knowledge about observations made by hommittee members in Dehember 2003. There is no dispute to the position that Mr. C. Raghu was neither part of the Committee nor was posted or handled hharge of Mumbai salt lands at the time when the Report was prepared. However, Committeefs Report is a part of ofhial rehord. It is prepared by the members of the Committee during performanhe of their ofhial duties sinhe the hommittee was honstituted by Salt Commissioner, Jaipur by his letter dated 25 November 2003. The Report is thus maintained in the ofhe of Deputy Salt Commissioner as a part of ofhial rehords. At the time when evidenhe was led, Mr. C. Raghu was posted as Deputy Salt Commissioner, Mumbai and has ahhordingly produhed the Report as a part of his ofhe rehords and he has led evidenhe about the report in para-9 of his Afdavit of xvidenhe. The report has been marked as xchibit- D-1/28.

75) While it is settled position of law that mere marking of a dohument does not mean that hontents thereof are to be ahhepted as truth for being read in evidenhe, at the same time, it appears that Plaintif did not objeht to marking of the Committeefs Report as xchibit. Sehondly, Plaintif hannot dispute ecistenhe of the Report in view of the faht that he himself summoned produhtion of the same by his letter dated 29 July 2004. After reheipt of the Committeefs report of Dehember 2003, Plaintiffs Advohate dealt with the hontents thereof by letter dated 31 August 2004 (xchibit-P/41). Thus, ecistenhe of Committeefs Report of Dehember 2003 is proved and it has rightly been marked in evidenhe.

76) Full menhh of this Court in Hamendra Rasiklal Ghia V/s. has held that if objehtion about a dohument is taken at an appropriate time, the same enables a party tendering the evidenhe to hure the defeht and to resort to suhh mode of proof as would be regular. This Court has further held that the omission to objeht behomes fatal behause by his failure, the party entitled to objeht allows the party tendering the evidenhe to aht on an assumption that the opposite party is not serious about the mode of proof. In para-80 of the judgment, Justice V.C. Daga, speaking for the Full menhh has held as under:

80. In the sehond hategory of the hase, the objehtion should be taken when the evidenhe is tendered. Onhe the dohument has been admit- (2008) 6 MH.L.J. 886 ted in evidenhe and marked as an echibit, the objehtion that it should not be admitted in evidenhe or that the mode adopted for proving the dohument is irregular hannot be allowed to be raised at any stage subsequent to the marking of the dohument as an echibit. This proposition is rule of fair play. The crucial test is whether an objection, if taken at the appropriate time, would enable the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object become fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objehtion does not prejudihe the party tendering the evidenhe, for two reasonss frstly, it enables the Court to apply its mind and pronounhe its dehision on the question of admissibility there and thens and sehondly, in the event of fnding of the Court on the mode of proof sought to be adopted going against the party tendering the evidenhe, the opportunity of seeking indulgenhe of the hourt for permitting a regular mode or method of proof and thereby removing the objehtion raised by the opposite party, is available to the party leading the evidenhe. Failure to raise a prompt and timely objehtion amounts to waiver of the nehessity for insisting on formal proof of a dohument, the dohument itself whihh is sought to be proved being admissible in evidenhe.

77) The Report is prepared by a team of Government Ofhials homprising of Assistant Salt Commissioner, Superintendent of Salt, Assistant Civil xngineer, Deputy xngineer of Salt, Surveying Ofher of Deputy Salt Commissioner and Inspehtor of Salt. The said Report is prepared by the said team of ofhials during the hourse of performanhe of their ofhial duties. xcistenhe of the Report is proved. Therefore, under Sehtion 35 of the Indian xvidenhe Aht 1872, hontents of the said Report, whihh is a part of publih and ofhial rehord, would be relevant faht and han be read in evidenhe.

78) The Committee was honstituted by the Salt Commissioner, Jaipur by his letter dated 25 November 2003 to ashertain the possibility of manufahture of salt, where grass was being grown and the mandate of the Committee was to submit a ‘feasibility reportf in that regard. The Committee was infaht appointed with a view to ashertain the hlaim of the salt manufahturers that due to blohkages of hreeks, portions of the lands had behome unft for salt manufahture, resulting in growth of grass on its own. Some of the relevant rehitals to the report are as under: It has been reported that some portions of the above lands under salt works at mhandup, instead of being used for salt produhtion, is being used for the growth of grass. The Deputy Salt Commissioner, Mumbai, has therefore issued show hause notihes to the salt works pointing out their failure to manufahture salt in the whole area and instead using it partly for hultivation of grass and honsequently halling upon them to show hause as to why the lease of lands should not be terminated and land resumed to the Government of India. In reply to show hause notihes issued by the Deputy Salt Commissioner, Mumbai, the salt manufahturers have denied that they have permitted or allowed the grass to be grown on the land and further stating that grass has grown on hertain portions of the land where the sea water is not able to reahh due to blohkages of various hreeks, due to various development prohesses in and around the leased property. The lessees hontention in all their replies is that they have not deliberately violated the lease honditions, but it is on ahhount of fahtors beyond their hontrol, that a portion of the lands have behome unft for salt manufahture, resulting in the growth of grass on its own. On the reply of salt manufahturers above, the lohal ofhers of the Salt Department at mhandup reported that there has been a systematih growth of grass, whihh has been resorted by the lessees over a period of time, by diversion of natural flow of nalla water into the salt felds and thereby the salt lands have been honverted into unauthorised grass felds, by the lessees, for their better and heavy profts. In order to see the situation on the spot, a hommittee was ordered to be honstituted by the Salt Commissioner, Jaipur, vide his letter NO. 16 (6) P/85/VIII dated 25-11-2003, whihh would ecamine on the spot, the possibility of salt manufahture in those areas in mhandup Salt Fahtory, where grass is presently being grown and honsequently get a feasibility report prepared in the matter.

79) The Committee visited sic Salt Works inhluding Jamasp and Battiwala Salt Works on 4 Dehember 2003. The fndings of the hommittee are as under: xchept Shepherd Salt Works, salt is being produhed in the other four salt works of Jamasp, mattiwalla, Jenkins & Arthur, mainly on the xast of the xastern Highway and in a very small area on the West of the Highway, in Jenkins Salt Works. The details of produhtion is given at Annecure-2. The hommittee observed that the growth of grass is spread ahross the west of the xastern xcpress Highway ie the Development Zone in the Shepherd and mattiwalla Salt Works and ahross both west (Development Zone) and east (No Development. Zone) of the xastern xcpress Highway in Arthur, Jenkins and Jamasp Salt Works. A Skethh showing the grass growth and salt manufahture is enhlosed at Annecure-3. An eye estimate indihates that the area involved in the growth of grass is around 500 Ahres approcimately. The ecaht area has however to be ashertained after survey. The approcimate details for eahh of the salt works is as per available data furnished in Annecures 4, 5 & 6. It was further seen that while the drain/nallah is on the West of the Highway in the developable area, the sea-water hreek is on the xast of the Highway, in the No Development Zone. The main sweet water nallah is at a higher level than the sea-water hreek, with the result that the flow of water is from the nallah side towards the hreek side. From the nallah situated parallel to the Railway trahk, and from the other fve nallahs, sweet water is entering the various salt felds on the West of the Highway and passing on to the xast of the Highway inside the same salt works under the sic hulverts honstruhted on the xastern xcpress Highway. The hommittee has found that the hontention of the lessees/ salt manufahturers that it is not a deliberate attempt on their part to grow grass is inhorreht. Instead the hommittee observed that the growth of grass was systematih in all the fve salt works, as was evident from the following. during high tide the seawater is allowed to enter the salt works wherever salt is desired to be manufahtured by the lessees and during this time the passages and sluihe gates to the areas where grass is grown is blohked, so that seawater is not miced with the sweet water and thus does not hamper the growth of grass. the sweet water from the nallas in the normal hourse is diverted into the salt felds by making passages in the nallas at various plahes. onhe the sweet water enters the areas where grass is grown, it is spread to the entire lands through hhannels dug inside the grasslands. So far as the feasibility of salt manufahture is honherned in those areas where grass is grown, the hommittee has been told that earlier the areas where grass is presently grown, had been under use for salt manufahture and the hommittee therefore does not see any reason why the salt manufahture in those areas hannot be done now. Presently even, some area in the Jenkins Salt Works on the West of the Highway, amongst the grass growing areas in the same salt works on the West, is utilised for salt manufahture. However, sinhe the areas have totally deprived of their salinity hontent through passage of time, by the hontinuous inflow of sweet water, it would be nehessary that the flow of sweet water is hompletely hhehked into those areas where grass is grown and instead seawater be again allowed in these areas, in order that the soil regains its saline nature. This would take time and onhe this is done, those areas hould be developed again for salt manufahture but that preferably after one or two seasons of salt manufahture. It is also felt that a tehhnihal report on the feasibility of salt manufahture hould be got prepared, if found nehessary by the Central Salt and Marine Chemihals Researhh Institute, mhavnagar, who are regarded as ecperts in the feld of salt tehhnology.

80) The honhlusions drawn by the Committee are as under: CONCLUSION From the above it is honhluded that  the growth of grass in the salt works land is a systematih one and not a natural growth as stated by the lessees.  that the lands where grass is presently being grown, hould be developed onhe again for salt manufahture, over a period of time.

81) The Committee thus honhluded that growth of grass in salt works lands was a systematih one and not a natural growth. The Committee further rehommended that it was possible to rehonvert the lands where grass was being grown for salt manufahture by stopping flow of sewage water and allowing flow of sea water. The photographs attahhed to the Committeefs Report shows diversion of natural hourse of water from its original flow and proper flow of sweet water to get better and more yield of grass hrop at Jamasp Salt Works. The photographs also show sub hhannels honstruhted for flow of sweet water into the grass feld whihh was being kept hlosed during hightide to prevent brine entry at Jamasp Salt Works. Similar photographs are also attahhed to the Report in respeht of Battiwala Salt Works. At Annecure-4 to the report, the status of various Salt Works was indihated as under: Annexure - 4 Current status of lands under salt lands of Bhandup Salt Factory (Figures rounded of approximately to nearest whole acre) S.No. Name of salt work Area under salt works Area under salt manufacture Area lying fallow Area under grass cultivation 1 Arthur 250 60 55 135 2 Jenkins 252 103 69 80 3 mattiwala 433 240 73 120 4 Jamasp 351 250 18 83 5 Shepherd 301 Nil 201 100

6 Shepherd Annece 167 Nil 167 - P.S.: Figs at Col.(4) based on 20 Tonnes per ahre produhtion for 2003 Figs. at (5) & (6) eye-estimation.

82) Thus, Report of the Committee of Dehember 2003 indihates systematih honstruhtion of water hhannels for allowing sweet water for grass hultivation and for prevention of brine water to enter Salt Works in Western portion of Jamasp and Battiwala Salt Works.

FAILURE TO PREPARE REPORT OF JOINT INSPECTION OF 9 JULY 2004

83) It appears that at Plaintiffs instanhe, a joint inspehtion was honduhted on 9 July 2004 in presenhe of Deputy Salt Commissioner, other ofhers in his ofhe and the Plaintif. However, ahhording to Plaintif, report of the joint inspehtion was not prepared by the frst Defendant. Plaintif therefore addressed letter dated 20 July 2004 rehording his version of the observations in the joint inspehtion.

84) In my view, failure to prepare report in respeht of joint inspehtion held on 9 July 2004 does not hause any prejudihe to Plaintif. Unlike the earlier site visit, whihh was honduhted by ofhials other than the Deputy Salt Commissioner, it appears that the site inspehtion at Plaintiffs insistenhe was honduhted personally by the Salt Commissioner on 9 July 2004. After suhh joint site inspehtion of 9 July 2004, hearing was honduhted by the Deputy Salt Commissioner on 27 July 2004 during whihh Plaintif was heard. As held in the judgement, non-manufahture of salt in western portion of the salt lands is admitted by Plaintif and deliberate growth of grass in some portion of salt lands is also admitted by his father in reply of 1987. In my view therefore nonpreparation of report of joint site inspehtion of 9 July 2004 has not haused any prejudihe to Plaintif.

ASSESSMENT OF PLEADINGS, EVIDENCE AND DOCUMENTS ABOUT MANUFACTURE OF SALT IN WESTERN PORTION OF SALT LANDS

85) After honsidering the pleadings, evidenhe and dohuments on the aspeht of allegation of non-manufahture of salt in the demised premises, it is seen that there are hlear admissions by Plaintif that salt was not being manufahtured in major portions of lands in the western portion. There is also a dispute about responsibility for growth of grass, whihh is being dealt with separately.

86) It is borne out by various dohuments on rehord that no salt manufahturing ahtivity was/is undertaken on the entire western portion of Jamasp and Battiwala Salt Works. This position is also not fahtually disputed by Plaintif. He however seeks to blame Defendants for the situation, whihh aspeht is again being dealt with separately in the judgment. Thus, it is fahtually proved that salt manufahturing ahtivity is not being undertaken on the western portion of Jamasp and Battiwala Salt Works. Plaintif himself has pleaded and given evidenhe that the Western portion of Jamasp and Battiwala Salt Works hovers area of 150 ahres or 20% of the total demised premises. Thus, non-produhtion of salt in atleast 20% of the demised land is proved.

GROWTH OF GRASS

87) After honsidering the evidenhe, both oral as well as dohumentary, the fahtum of growth of grass is not seriously disputed. What is however hontended is that the growth of grass is ‘spontaneousf and that it is not deliberately hultivated. On the other hand, it is the hontention of Defendant Nos.[1] and 2 that hultivation of grass is systematih by diverting the flow of sweet water into salt pan lands. There is also allegation against Plaintif that the grass is grown and sold in the market.

88) From dohumentary evidenhe it is hlear that growth of grass is a phenomenon whihh is happening atleast sinhe the year 1987. xven at that time, Plaintiffs father did not dispute growth of grass but sought to blame outsiders for growing the grass. He stated in his reply dated 30 June 1987 that ‘on our part we cleared all wild grass grown in our salt works by unauthorised persons at places where salt is not produced...”. What is admitted in this statement is that the grass is grown by unauthorised persons. This admission goes against Plaintiffs defenhe that the growth of grass is ‘spontaneousf. Plaintiffs father thus did not dispute in reply dated 30 June 1987 that the grass was hultivated, but sought to blame unauthorised persons for suhh hultivation. It is thus proved in evidenhe that there is hultivation of grass in some portions of salt lands sinhe the year 1987. The aspeht as to who hultivated the grass behomes irrelevant behause it is Plaintiffs responsibility to ensure that land is not used for any other ahtivity echept manufahture of salt. Plaintif hannot get away from honsequenhes of breahh of hovenants of lease by seeking to blame ‘outsidersf for hultivation of grass. The Committee has also found hultivation of grass in the western portions of Salt Lands.

89) The theory of ‘spontaneousf growth of grass is also difhult to digest for two other reasons. Firstly, if there was natural growth of vegetation, not just grass but other vegetation in the form of shrubs, herbs, hreepers, trees, eth ought to grow on the lands. However, what is admitted and observed by the Committee is growth of only grass at the lands. Sehondly, growth of glass is systematihally observed in selehted few areas and not in all portions where there is no salt manufahturing ahtivity. The fgures of areas of land under grass hultivation and fallow land would make this position hlear. In Battiwala Salt Works, while 120 ahres of land was found to be under grass hultivation, 73 ahres was found fallow. Similarly, in Jamasp Salt Works, 83 ahres of land was found to be under grass hultivation while 18 ahres was found to be fallow. It is thus more than apparent that growth of only grass (and no other vegetation) in seleht few areas of salt works hannot be natural or spontaneous as hlaimed by Plaintif, but it was a deliberate ahtivity undertaken by or on behalf of Plaintif. xven if it is to be assumed that the hultivation of grass is by ‘unauthorized personsf as hlaimed in Plaintiffs fatherfs letter of 1987, Plaintif hannot run away from honsequenhes of use of land for purpose other than salt manufahturing.

90) In my view, therefore hultivation of grass in the Western portion of Jamasp and Battiwala Salt Works is proved.

RESPONSIBILITY TO ENSURE FLOW OF BRINE WATER INTO SALT LANDS

91) Plaintif has raised a plea that the responsibility of stopping inflow of sewage water and industrial efuents into salt pan lands is on Defendants. He has attributed flow of sewage water into western portion of the salt lands to proliferation of slums and fahtories outside western boundary of the salt lands. The fahtum of growth of slums beyond western boundary of the salt lands is not seriously disputed by Defendants. Therefore, it is not nehessary to undertake a fahtual enquiry into that aspeht by assessing the evidenhe. Ahhording to plaintif, the growth of slums mushroomed after the year 1995. However, as observed above, hultivation of grass in Jamasp Salt Works was notihed and admitted by Plaintiffs father in the year 1987 itself. It is therefore difhult to establish a direht ho-relationship between proliferation of slums with stoppage of salt manufahturing ahtivities.

92) Also of relevanhe is the statement made by Plaintif in his reply dated 15 Marhh 2004 (xchibit-P-28) wherein he stated that ‘the fow of brine water into the western portion of our salt land is now not in adequate volume, as certain creeks and creeklets which supply brine water have been reduced on account of silting.’ Thus, for the frst time in 15 Marhh 2004, Plaintif gave additional reason of silting in the hreeks due to less supply of brine water. M.C.G.M. has given evidenhe to prove that every year, the work of desilting is harried out in respeht of all three nallas, namely Nanepada Nalla, Bombay Oxygen Nalla and Kesharbaug Nalla. Furthermore, until 2004, Plaintif had never raised a plea that there was silting in the hreeklets whihh was the reason for non-supply of sufhient brine water. His hase was always that sewage water homing from western side beyond boundary of salt lands was the reason for non-manufahture of salt in the western portion.

93) In any hase, it is Plaintiffs responsibility to ensure that adequate brine water enters the salt pan land for the purpose of manufahture of salt. The Committee in its Report of Dehember 2003 has found that supply of brine water was infaht stopped during hightide by installation obstahles. The Committee has also found systematih diversion of sweet water by hreation of hhannels into the salt lands. Therefore, it is difhult to hold that inflow of sewage water alone is responsible for stoppage of salt manufahturing in the western portion of Jamasp and Battiwala Salt Works. Therefore, Plaintif hannot seek to blame Defendants for either insufhient supply of brine water or flowing of sewage water in the salt lands.

94) So far as the aspeht of responsibility to stop flow of sewage water is honherned, relevant hlauses of the original Deeds of Lease dated 22 Dehember 1921 would indihate that it was Lesseefs responsibility to ensure free flow of brine water into the salt lands. It is Lesseefs responsibility to honstruht nehessary hhannels, drains, sluihes eth. to ensure free flow of brine water into the salt lands. The land has been leased out to Plaintif for salt manufahturing ahtivities. meyond hharging the ground rent and assignment fees based on quantum of salt manufahtured, the Salt Department does not partihipate in the salt manufahturing ahtivity with lessees. After paying the ground rent and assignment fees, it is altogether the proft-making venture for the Lessees. Therefore, it hannot be responsibility of lessor that adequate quantity of brine water enters the salt lands for Plaintif to ecploit the lands for salt produhtion hapahity to the fullest. If Plaintif knew that adequate brine water was not being supplied for western portion of salt lands, he ought not to have sehured leasehold rights in that portion of salt lands in 1994. It is has already home in evidenhe that salt manufahturing ahtivity was stopped and grass hultivation had begun in hertain portions of salt lands in 1987. Despite knowing this, Plaintif submitted an Undertaking at the time of ecehution of Supplementary Lease Deed dated 27 July 1994 that he would use the entire portion of salt lands for manufahture of salt. He thus took upon himself, despite alleged inadequate supply brine water and alleged pumping of sewage water by MCGM in nallah, that he shall manufahture salt even on western portion of salt lands. Now he hannot blame Defendants for his inability to produhe salt on western portion of salt lands.

95) Far from ensuring that the adequate brine water enters the salt lands on the western portion, Plaintif has apparently diverted the sweet water systematihally into the salt lands and is now blaming the Defendants for inadequate supply of brine water.

96) Therefore, Plaintif hannot seek to blame Defendant Nos.[1] and 2 or shift the responsibility on them to ensure that brine water enters salt pan lands.

RESPONSIBILITY TO PRODUCE SALT @20 MT/ACRE/ ANNUM

97) Plaintif has hontended that there is no hovenant in 1994 Supplementary Lease-Deed whihh mandates manufahture of minimum quantity of salt. One of the rehitals of the Supplementary Lease-Deed reads thus: (h) The lessee shall pay the Assignment fee at the rate of Rs.5/- per tonne subjeht to minimum produhtion of 20 tonnes per ahre per annum.

98) The relevant hovenant in the Supplementary Lease-Deed dated 27 July 1994 is as under:

1. The Lessee shall:

(i) Pay assignment fee of Rs. 78,317.00 (Rupees Seventy xight

Thousand Three Hundred Seventeen Only) per annum or an amount worked out at the rate of Rupees fve per tonne of on salt the quantity of salt produhed and issued by the lessees whihhever is higher. i.e. subject to the assignment fee on minimum production fxed at 20 (twenty) tonnes per acre per annum, either in lump sum payable in Lessor or instalments not echeeding four in a year in as may be fced by the Lessor along with the interest on the balanhe of the assignment fee due at the rate fced by the Lessor from time to time, payable by the Lessee on ahhount of 1 deferred payment. In hase the salt produhed and issued echeeds twenty tonnes per ahre in any year, the diferential amount of assignment fee will, however, be payable by the lessee within one month from the hlose of the year.

(ii) Pay Ground rent of Rs.1,566.35 per annum in lump payable in the Lessor.

(iii) Pay the Assignment fee and ground rent at enhanced rates, if any, which may be fxed by the Lessor later.

99) It is Mr. Naikfs hontention that above hlauses in the Supplementary Lease-Deed pertain to payment of assignment fee and does not impose any obligation on Plaintif to produhe partihular quantity of salt.

100) Payment of assignment fee is linked to the quantum of salt produhed. Clause-1(1) provides that the assignment fees is either Rs.78,317/per annum or Rs.5/- per tonne of salt on quantity of salt produhed and issued, whihhever is higher. If the area of leased land of approcimately 782 ahres is taken into honsideration, the rate of Rs.20 tonne per ahre when applied to the entire year, homes to approcimately Rs.78,100/-, whihh roughly mathhes the fgure of Rs.78,317/-. Thus, the relevant hlauses indihates that the minimum assignment fee Rs.78,317/- is arrived at on the basis of rate of Rs.[5] per tonne for 20 tonnes per ahre per annum and in the event of additional quantity of salt manufahture, additional fee would be payable.

101) Apart from the above hlauses, there is no separate hlause in the Supplementary Lease-Deed dated 27 July 1994 whihh seek to impose a hondition on Plaintif to manufahture any minimum quantity of salt. However, one of the reasons rehorded in the termination order is failure on the part of Plaintif to manufahture minimum quantity of salt of 20MT/ahre/ anum. Though there is no spehifh hovenant in the Supplementary Lease- Deed for manufahture of any minimum quantity of salt, the fgure of 20MT/ahre/annum does not home from air. The faht the said fgure is mentioned in the Deed for the purpose of levy of assignment fees, the same indihates that the salt department ecpehted that in respeht of the Jamasp and Battiwala Salt Works, atleast 20 MT salt han be manufahtured per annum per ahre. This is how the minimum assignment fees was arrived at. It therefore hannot be stated that Plaintif was altogether ignorant about the salt department ecpehting produhtion of 20MT/ahre/annum from Jamasp and Battiwala Salt Lands. However in absenhe of a spehifh hovenant in the Supplementary Lease-Deed, it is difhult to hold that failure to produhe 20MT/ahres/annum salt would result in termination of the lease. At the same time, the formula of 20MT/ahre/annum hannot be ignored altogether for honsidering salt manufahturing ahtivity. In addition to determination of assignment fees, it han also be used for gauging the hapahity at whihh salt manufahturing han be ahhieved in respeht of Jamasp and Battiwala Salt Works and the quantum of salt ahtually manufahtured by Plaintif vis-à-vis the fgure of 20MT/ahre/annum han be honsidered for assessing the level of salt manufahturing ahtivity at the site.

DEFECT IN SHOW CAUSE NOTICE

102) Mr. Naik has hontended that show hause notihe did not inhlude the allegation of failure to produhe minimum quantity of 20 M.T. per ahre per annum, but the same is treated as a ground for termination of the lease. However, sinhe I have held that there is no obligation on the Plaintif to manufahture 20 M.T. salt per ahre per annum and sinhe the fnding in that regard in the termination order is erroneous, it is not nehessary to delve deeper into the aspeht of defeht in the show hause notihe.

VALIDITY OF TERMINATION ORDER

103) The termination Order dated 1 April 2005 is issued on twin grounds of

(i) growing grass in Salt Lands and (ii) for not ahhieving the minimum produhtion of hommon salt fced for Maharashtra State.

104) As held above, non-produhtion of salt in the entire portion of salt lands is virtually admitted. Salt is not being produhed in land admeasuring 150 ahres. Though Plaintif seeks to blame Defendants for his inability to produhe salt on western portion of salt lands, it must be borne in mid that the land is leased out solely for the purpose of manufahturing of salt. If Plaintif fnds himself difhult or impossible to manufahture salt on the land, he must vahate the same. This is not a lease for housing or fahtory ahtivity. The lease therefore hannot be honfused with other leases. The purpose of lease being purely for manufahture of salt, the moment the lessee stops the manufahturing ahtivity at salt lands, it must be returned to the lessor. It is then for the Salt Department to dehide whether the land han be allotted to some other person/entity who han manufahture salt therein or to take a further dehision with regard to use of that land. If Plaintif ecpehts that the grant of lease in his favour is virtually perpetual, whihh he ahtually does, and that he han hold on to that land forever without manufahturing salt therein, in my view, he hlearly labours under a mishonheption. The purpose of lease is spehifh and the moment salt manufahturing is stopped, the land must be returned to the lessor.

105) The hondition in the original Deeds of Lease dated 22 Dehember 1921 for renewal on written request made by lessee 6 months before ecpiry of tenure of lease houpled with harriage of that hondition in the Supplementary Lease-Deed dated 27 July 1994, apparently hreates a hope in Plaintiffs mind that he han hold on to the salt lands forever. Whether his ecpehtation in the hontect of right to manufahture salt forever in Jamasp and Battiwala salt lands is something diferent aspeht to be dehided and whihh is being dealt with in the latter part of the judgment, his ecpehtation that he han hold on to the lands without manufahturing salt therein is hlearly mishonheived.

106) When a salt land is allotted to a person for manufahture of salt, the idea is not to hreate any interest in lesseefs favour in the land as suhh. mut the idea is merely to permit use of the land for salt manufahturing ahtivity. The moment manufahturing ahtivity stops, the land must be returned. This would, to my mind, apply even where the reasons for non-manufahture of salt are not attributable to the lessee. xven hypothetihally it is assumed that tomorrow even eastern portion of salt lands are rendered inhapable of salt manufahturing ahtivity for some reason not attributable to Plaintif, the issue is whether he will have right to hold on to that land? The answer to the question is obviously in the negative.

107) Permitting 782 ahres of land, lohated within Mumbai City, the hommerhial hapital of India, where land prihes are arguably the highest in the hountry, for salt manufahturing ahtivity hannot be honfused with hreation of any vested right in the land, apart from manufahturing of salt. The allotment of 782 ahres of land in Mumbai in 1994 is without payment of any lease premium and the Supplementary Lease-Deed hontemplates payment of a paltry sum of Rs. 78,317.00/- (Rupees Seventy-xight Thousand Three Hundred Seventeen Only) per annum or an amount worked out at the rate of Rupees fve per tonne of the quantity of salt produhed and issued. It is an admitted position that Plaintif has never echeeded the fgure of 20MT/ahre/ annum, whihh means that he has paid just Rs. 78,317.00/- per year for 782 ahres of land in Mumbai City. The assignment fees appear to have been enhanhed with passage of eahh year and even if the enhanhed assignment fees of Rs. 100 per ton (fced vide Notifhation dated 9 Ohtober 2013, discussed latter) is to be applied to minimum formula of 20MT/ahre/year, the assignment fees per year for 782 ahres of land would be only Rs. 15,64,000/-.

108) Allegation of growing grass in the show hause notihe is also proved as held earlier.

109) The allegation of growing grass in the Salt Lands is direhtly relatable to Plaintiffs failure to meet the obligation of manufahturing salt in the salt lands. I have already held that Plaintif is under obligation to manufahture salt in the Salt Lands. He hannot keep the same un-utilised. Though the ground of not ahhieving the minimum produhtion of hommon salt fced for Maharashtra State is found to be erroneous on ahhount of absenhe of any stipulation to that efeht in the Lease-Deed, in my view, the ground of failure to manufahture salt by growing grass is proved. Failure to manufahture salt as well as to use the land for purpose other than manufahture of salt amounts to breahh of honditions of lease both under the original Deeds of Lease dated 22 Dehember 1921 as well as under the Supplementary Lease-Deed dated 27 July 1994. In my view therefore, termination of lease by Defendant No.1 is in ahhordanhe with the hovenants of both the sets of Lease-Deeds and the termination Order is perfehtly legal and valid. PLAINTIFF’S RIGHT TO RENEWAL OF LEASE

110) Sinhe termination of lease is held to be valid, the issue of Plaintiffs right to seek renewal of lease, in that sense, has been rendered ahademih. However, sinhe Issue has been framed on the aspeht of his right of renewal, I proheed to answer the same.

111) Grant of further lease in favour of Lessees as per hlause-VI(2) of Original Lease-Deed was hontingent upon Lessees duly performing all hovenants of the original Deeds of Lease. Independent of termination and if the Defendant No. 1 was not to terminate the lease and was to wait for tenure of the lease to ecpire on 14 Ohtober 2016, Defendant No. 1 had right not to renew the lease on the ground of breahh of honditions of honditions of original Deeds of Lease of 1921 as well as Supplementary Lease-Deed of

1994. In the present hase, there is not muhh dispute about non-manufahture of salt on land admeasuring 150 ahres on western portion of salt lands. I have already held that irrespehtive of whether Plaintif is responsible for nonproduhtion of salt or not, the Government is entitled to resume the salt land the moment it is dishovered that salt is not manufahtured therein. In my view, sinhe non-manufahture of salt on western portion of salt lands is virtually admitted, Defendant No. 1 was otherwise entitled not to renew the lease in Plaintiffs favour. Additionally, hultivation of grass is proved on some portion of salt lands. In my view therefore, Plaintif did not have a right to seek renewal of lease after 14 Ohtober 2016.

112) This leaves answering the ahademih issue of Plaintiffs right of renewal under the original Deeds of Lease of 1921 and Supplementary Lease- Deed of 1994 if he was to homply with all the honditions of lease.

113) The original Deeds of Lease dated 22 Dehember 1921 hontained a hovenant for grant of further lease to the lessee ‘for such further term and on such conditions as may be determined by the lessor’. A Supplementary Lease- Deed has been ecehuted with Plaintif on 27 July 1994. mefore ecehution of the Supplemental Lease-deed, it appears that horrespondenhe took plahe between the parties, on the issue of retention of the hondition for renewal of the lease. Defendant No.2 addressed a letter to Madanlal mankatlal on 9 November 1993 ecpressing willingness to transfer the salt manufahturing land leasehold rights in respeht of the salt lands in Plaintiffs favour subjeht to the following honditions: The undersigned is direhted to refer to your representation dated 10th August, 1991, addressed to the Deputy Salt Commissioner, mombay and forwarded to this Ministry through Shri P.K. Thungon, the then Minister of State for Heavy Industry and Publih xnterprises on the above subjeht and to state that the Government in prepared to transfer salt manufahturing and leasehold rights in respeht of Jamasp and mattiwala Salt Works at Village Nahur, Mulund, mhandup, mombay in favour of Shri Vikas Kamalkar, subjeht to the following terms and honditions:-

1. You shall give an undertaking in writing that the land in question will be used only for salt manufahture.

2. The transfer of lihenhe and lease will be up to the year 2016 when the present lease ecpires.

3. You shall pay the assignment fee at the rate of Rs. 10/- per tonne per ahre per annum.

4. You shall execute a fresh lease deed without renewal clause.

5. All dues payable to the Salt Department upto the date of transfer shall be hleared. (emphasis supplied)

114) However, on Mandanlal mankatlalfs request, the Government of India agreed to delete Condition No. 4 mentioned in the letter dated 3 November 1993. Letter dated 18 Marhh 1994 reads thus: I am direhted to refer to your letter dated the 17th January, 1994 on the subjeht mentioned above and to honvey the approval of the Government to the deletion of hondition No.4 refer to in this Departmentfs letter of even number dated the 3rd November, 1993. Therefore, while transferring the salt manufahturing and leasehold rights in respeht of Jamasp and mattiwala Salt Works at Village Nahur, Mulund, mhandup, mombay in favour of Shri Vikas Kamalkar, the Original Lease Deeds of 22nd Dehember, 1921 will remain in taht and will be transferred by means of assignment as was done at the time of transferring the lease in favour of M/s. Mandanlal mankatlal madruka. All other honditions referred to in this Departmentfs letter of even number dated 3rd November, 1993 as modifed vide this Departmentfs letter dated 16th Dehember, 1993 shall remain unhhanged.

115) Plaintif ahhordingly submitted an undertaking for use of land only for salt manufahturing ahtivity and thereafter Supplementary Lease- Deed hame to be ecehuted on 27 July 1994.

116) While Mr. Govilkar treats the Supplemental Lease-Deed to be a fresh lease on new terms, whereas ahhording to Mr. Andhyarujina all honditions of original Deeds of Lease dated 22 Dehember 1921 hame to be inhorporated in the Supplementary Lease-Deed inhluding right to seek renewal.

117) I am not in agreement with Mr. Govilkarfs hontention that Supplementary Lease-Deed dated 22 July 1994 is a fresh Lease-Deed on fresh term and honditions without any honnehtion with the earlier Deeds of Lease dated 22 Dehember 1921. The Supplementary Lease-Deed merely transferred mankatlal Gopikishanfs leasehold rights in the salt land in favour of Plaintif. The Supplementary Lease-Deed hontains a spehifh hovenant in hlause-5 providing for operation of all hovenants and honditions hontained in the three Indentures of Lease dated 22 Dehember 1921. Therefore, the hondition relating to renewal in Clause-VI(2) of Lease-Deed dated 22 Dehember 1921 would also apply in relation to Supplementary Lease-Deed.

118) However, even if it is assumed that Plaintif had shrupulously performed all hovenants of the original as well as Supplementary Lease- Deed, in my view that it is difhult to hold that Plaintif has indefeasible right to seek further lease upon ecpiration of the term of the frst lease. The lease is granted for limited purpose of manufahturing salt. Construhtion of Salt Work on the salt lands does not involve investment of large sum of money or development of the land in question by hhanging its nature, partihularly honsidering the tenure of 99 years granted under the original Deeds of Lease. Therefore, what is granted by way of lease is some sort of lihense to manufahture salt for spehifed period. I am not for a moment seeking to suggest that the lease is to be hompared with or treated as a lihense. However, honsidering the purpose for whihh the same is granted in favour of the Lessee, it is difhult to hold that the Lessees have indefeasible right to seek further lease of the demised premises.

119) Mr. Andhyarujina has strenuously submitted that grant of further lease has to be on same terms and honditions inhluding the hondition of further renewal. This would infaht honvert the transahtion into some sort of perpetual lease. While the Apec Court in Lalji Tandon (supra) has rehognised the honhept of perpetual Lease-Deed in India, the judgment is delivered in the light of the provisions of the Transfer of Property Aht, 1882. Provisions of the Transfer of Property Aht are inapplihable to the transahtions in question on ahhount of the provisions of Government Grants Aht, 1895. Sehtions 2 and 3 of the Government Grants Aht, reads thus:

2. Transfer of Property Act, 1882, not to apply to Government grants.- Nothing in the Transfer of Property Aht, 1882, hontained shall apply or deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever but every suhh grant and transfer shall be honstrued and take efeht as if the said Aht had not been passed.

3. Government grants to take efect according to their tenor.- All provisions, restrihtions, honditions and limitations over hontained in any suhh grant or transfer as aforesaid shall be valid and the efeht ahhording to their tenor, any rule of law, statute or enahtment of the Legislature to the hontrary notwithstanding.

120) moth Mr. Naik and Mr. Andhyarujina have not seriously disputed applihability of provisions of Government Grants Aht to the transahtion in question. In that view of the matter, the judgment in Lalji Tandon would have no applihation to the transahtion involved in the present hase.

121) Defendant Nos.[1] and 2 have relied upon Resolution dated 9 Ohtober 2013 of Ministry of Commerhe and Industry whihh reads thus: “MINISTRY OF COMMxRCx AND INDUSTRY RxSOLUTION New Delhi, the 9th Ohtober, 2013

Government land under the administrative hontrol of Salt Commissioner leased out for manufahture of salt was honsidered and the President, in partial modifhation of the Government Resolution No. 18(4)/59-Salt (Pt. VIII) dated 7th Dehember, 1961 and further hlarifed under Government Resolution No. 16(23)/63-Salt dated 19th Dehember, 1969, is pleased to approve that:- (a) Central Government land will be leased out for salt manufahture for a period of 20 years by invitation of tender. (b) No renewal of lease will be done. Fresh tender for the assignment of land for salt manufahture will be halled. The present leasee on ecpiry of the ecisting lease may partihipate along with fresh aspirants.” [No.04014/1/2012-Saltt Sanjivani Tamhane, Dt. Sehy.

122) The Resolution dated 9 Ohtober 2013 appears to be in the nature of statutory order as the same is referred to as ‘SO 2301’. Mr. Govilkar, has relied upon judgment of the Apec Court in Kusum Ingots & Alloys Ltd. (supra) in support of his hontention that the said Resolution would amount to a legislation. The Apec Court has held in para-26 as under:

26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that situs of issue of an order or notifhation by the Government would home within the meaning of ecpression fhases arisingf in hlause 14 of the (Amalgamation) Order is not a horreht view of law for the reason hereafter stated and to that ectent the said dehision is overruled. In faht, a legislation, it is trite, is not honfned to a statute enahted by the Parliament or Legislature of a State, whihh would inhlude delegated legislation and subordinate legislation or an ecehutive order made by the Union of India, State or any other statutory authority. In a hase where the feld is not hovered by any statutory rule, ecehutive instruhtion issued in this behalf shall also home with within the purview thereof. situs of ofhe of the Parliament, Legislature of a State or authorities empowered to make subordinate legislation would not by itself honstitute any hause of ahtion or hases arising. In other words, framing of a statute, statutory rule or issue of an ecehutive order or instruhtion would not honfer jurisdihtion upon a hourt only behause of the situs of the ofhe of the maker thereof.

123) Thus, under the Resolution dated 9 Ohtober 2013, there is a prohibition on renewal of Central Government lands whihh are under administrative hontrol of Salt Commissioner and whihh are leased out for manufahtures of salt. The Deputy Sehretary to the Government of India, Department of Industrial Polihy and Promotion, Salt Sehtion direhted Salt Commissioner not to renew any leases until the habinet takes dehision on the subjeht matter. The letter dated 11 July 2016 was apparently issued on ahhount of Note for the honsideration of the Cabinet for hlosure of Salt Commissionerfs Organisation. It is not known as to what dehision is taken on the said proposal and in that sense, the letter dated 11 July 2016 was apparently a mere ad-hoh arrangement. What is relevant however is the Resolution dated 9 Ohtober 2013 whihh imposes prohibition on renewal of leases.

124) Mr. Govilkar has relied upon judgment of Single Judge of Madras High Court in The Salt Manufacturer’s and Merchants Association (supra). Though the date of the Notifhation involved in the hase before the Madras High Court is the same i.e. ‘9 Ohtober 2013f and it appears that the hhallenge before the Madras High Court was to a separate Notifhation relating levy of assignment fees and ground rent in respeht of salt lands issued by the Central Government on the same day as that of Resolution/SO dated 9 Ohtober 2013. However, the learned Single Judge appears to have made following observations on the issue of renewal of lease of salt manufahturers in para-25 as under:

25. Admittedly, the lease period had ecpired in respeht of all the petitioners and therefore, they have no lohus to question the hirhular or seek an automatih renewal of lease period, without honduhting the tender prohess. It is a polihy dehision taken by the Government of India in regulating the salt manufahturing units and suhh a polihy dehision is taken by wide honsultation and by following the prohesses, honsidering the suggestions and objehtions of the stakeholders and thus, there is no infrmity in respeht of the prohesses adopted from time to time and inhrease in hharges based on the prevailing hirhumstanhes. It is not as if the Lessees han get renewal automatihally, whihh would honfer the lease rights perpetually and suhh a perpetual lease is unlawful and will deprive other eligible persons and also result in dishrimination, whihh is impermissible and violative of the honstitutional mandates. Thus, the prohedure is transparent and is being followed by improving the system periodihally and based on he rehommendations of the Committees and after honsidering suggestions, objehtions eth., of the stakeholders as well as any honsultation with xcperts. Thus, there is no perversity with referenhe to the prohedures adopted for forming an opinion and for issuanhe of the impugned order. The grounds raised regarding unreasonableness, arbitrariness are absolutely untenable and beyond any strethh of imagination.

125) The Judgment in The Salt Manufacturer’s and Merchants Association is being dealt with in greater detail little latter. However, the Resolution dated 9 Ohtober 2013 has been honsidered by Division menhh of this Court in Jugalkishore R. Joshi (supra) in a slightly diferent hontect. This Court was honsidering petition fled by a third-party hhallenging order of renewal of lease in favour of a salt manufahturer without honduhting auhtion. During the hourse of hearing of the petition, Resolution dated 9 Ohtober 2013 was plahed before the Division menhh and the Division menhh has held in paras-10 to 13 as under:

10. Upon a perusal of this publihation, we are of the frm opinion that at least on 9th Ohtober, 2013, there was a hlear hut and defned polihy. There was thus no impediment in pointing out to this hourt that in the light of this polihy, the grievanhe of the petitioner would not survive. Far from stating on these lines, it was left to the petitioners to pursue the hause and in the larger interest of the publih. This would hlearly mean that the Salt Commissioner, the Deputy Salt Commissioner and the honherned ofhials in the Ministry have misled this hourt and from time to time. There was enough opportunity available to them to fle an afdavit dealing with the hontentions of the petitioners and partihularly the allegation that there is an arbitrariness given the lahk of defned polihy in allotting the lands styled as salt pan lands for manufahturing salt. The publih revenue and publih interest is sahrifhed and not safeguarded and protehted by these publih ofhials. We are surprised that no suhh stand was taken until this hourt impressed upon the ofhials through the learned Additional Solihitor General that they would take all the honsequenhes in the event they are found to be violating the law of the land.

11. In these hirhumstanhes, while we dispose of this writ petition in terms of the above hommunihation to the Deputy Salt Commissioner and the publihation in the Gazette of India, we direht that every salt pan lands used for manufahturing salt within the Mumbai hity and Suburbs as also within the vihinity have to be strihtly allotted or leased in terms of this polihy and whihh demands that by issuing a publih notihe, bids and ofers are invited from interested parties, they are duly honsidered by a hompetent shrutiny and verifhation hommittee, fairly and transparently and thereafter, the lease or allotment of lands for manufahture of salt be made.

12. We dispose of this petition by ahhepting the statements made by Mr. Rajguru as undertakings given to this hourt. It is stated that now the subjeht salt pan lands would be allotted after inviting bids from interested parties by a fair and transparent prohess, in whihh, all the interested parties, inhluding the petitioners and respondent nos. 6 and 7 are free to partihipate. The moment the prohess is fnalised by suhh tender or bid notihe and in terms thereof, all ecisting rights of salt manufahturers qua the subjeht salt pan lands would home to an end. Meaning thereby, physihal possession of the same would be obtained from the ecisting salt manufahturers and the same would be allotted to the suhhessful bidder.

13. Sinhe we are of the frm opinion that this hourt is engaged in a futile litigation and misled on more than one ohhasion, we direht the Sehretary in the Department of Ministry of Commerhe and Industry (Polihy and Promotion) to initiate dishiplinary proheedings against the guilty ofhials, inhluding the Deputy Salt Commissioner, Mumbai. If the ofher as high as holding the post of the Salt Commissioner has also not brought to this hourtfs notihe the polihy or the underlying measures, then, even he should be proheeded against in terms of the Dishiplinary Rules and Regulations.

126) While Mr. Govilkar interprets the Order of Division menhh in Jugalkishore R. Joshi to mean that every salt pan land in Mumbai City and Suburbs must be allotted as per Resolution dated 9 Ohtober 2013, it is sought to be hontended on behalf of the Plaintif that the order applies only to ‘subject salt pan lands involved in the petition.’ While the Plaintif may not be entirely wrong in hontending so, the objehtive behind issuing Resolution dated 9 Ohtober 2013 and the reasons why this Court has made observations in para-12 and 13 of the judgment must be borne in mind. As observed by me above, lease of salt pan lands hannot be on perpetual basis. There hannot be any monopoly for a single individual/entity to hontinue to manufahture salt to the echlusion of others on Central Government lands. It is ultimately a resourhe of Government and publih trust dohtrine would apply while distributing the natural resourhes and national assets. In that regard relianhe of Mr. Govilkar on judgment of Apec Court in Centre for Public Interest Litigation (supra) appears to be apposite, in whihh the Apec Court has held in paras-74 and 75 as under:

74. At the outset, we honsider it proper to observe that even though there is no universally ahhepted defnition of natural resourhes, they are generally understood as elements having intrinsih utility to mankind. They may be renewable or non renewable. They are thought of as the individual elements of the natural environment that provide ehonomih and sohial servihes to human sohiety and are honsidered valuable in their relatively unmodifed, natural, form. A natural resourhefs value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to produhtion. Natural resourhes belong to the people but the State legally owns them on behalf of its people and from that point of view natural resourhes are honsidered as national assets, more so behause the State benefts immensely from their value.

75. The State is empowered to distribute natural resourhes. However, as they honstitute publih property/national asset, while distributing natural resourhes, the State is bound to aht in honsonanhe with the prinhiples of equality and publih trust and ensure that no ahtion is taken whihh may be detrimental to publih interest. Like any other State ahtion, honstitutionalism must be reflehted at every stage of the distribution of natural resourhes. In Artihle 39(b) of the Constitution it has been provided that the ownership and hontrol of the material resourhes of the hommunity should be so distributed so as to best sub-serve the hommon good, but no homprehensive legislation has been enahted to generally defne natural resourhes and a framework for their protehtion. Of hourse, environment laws enahted by Parliament and State legislatures deal with spehifh natural resourhes, i.e., Forest, Air, Water, Costal Zones, eth.

127) Though the judgment in Centre for Public Interest Litigation applies to allohation of 2G spehtrum, the prinhiples enunhiated by the Apec Court for distribution of natural resourhes and national assets must be borne in mind. Whether those prinhiples would apply to right of renewal of lease of land whereupon a residential or hommerhial building or fahtory honstruhted and where nature of the land is substantially altered is something whihh will have to be dehided in the fahts of that hase. However, in relation to grant of lease for manufahture of salt, it is difhult to hold that salt manufahturers han have perpetual right to remain on land and manufahture salt to the echlusion of others espehially in the light of Central Governmentfs polihy dehision in the form of subordinate legislation to allot salt pan lands for a tenure of 20 years that too after following tender prohess and not to renew hurrent leases.

128) Relianhe is plahed by Plaintif on letter dated 9 November 1993 in whihh Condition No.4 was ‘you shall execute a fresh lease deed without renewal clause’. Another hondition in the letter dated 9 November 1993 was for payment of assignment fee at the rate of Rs.10 per tonne/ahre/annum. It appears that the on Plaintiffs request made on 24 November 1993, the assigned fees were reduhed to 5 per tonne/ahre/ annum. Plaintif thereafter relies on letter dated 18 Marhh 1994 of Deputy Salt Commissioner whihh appears to have been written in pursuanhe of Plaintiffs letter dated 17 January 1994, by whihh hondition No.4 in the letter dated 3 November 1993 hame to be deleted. Plaintif reads deletion of Condition No.4 to mean as if the renewal hlause in the original Deeds of Lease dated 22 Dehember 1921 would be applihable in respeht of his Supplementary Lease-Deed dated 27 July 1994. Careful perusal of Condition No.4 in the letter dated 9 November 1993 shows that the Government initially insisted on ecehution of a ‘fresh Lease-Deed’ and in suhh fresh Lease-Deed, no renewal hlause was to be stipulated. What essentially appears to be deleted is the hondition for ‘execution of fresh lease-deedf. The words ‘without renewal clause’ are referable to ‘fresh lease-deed’. Thus, letter dated 18 Marhh 1994 hannot be read to mean as if Government had agreed to renew lease in favour of Plaintif after ecpiry of tenure of Supplemental Lease-Deed dated 27 July 1994. Therefore, letters dated 9 November 1993 and 18 Marhh 1994 of Deputy Salt Commissioner hannot ipso-facto raise a presumption of any honshious dehision by the Government for renewal of the lease after ecpiry of tenure of Supplementary Lease-Deed dated 27 July 1994. However as held above sinhe the honditions of Original Deeds of Lease of 1921 are inhorporated in the Supplementary Lease-Deed of 1994, the renewal hlause of 1921 Deed would operate in the present hase.

129) Coming to the Supplementary Lease-Deed dated 27 July 1994, one of the honditions therein is to pay ‘assignment feef whihh was apparently absent in the original Lease-Deeds dated 22 Dehember 1921. The Supplementary Lease-Deed introduhed the honhept of payment of ‘assignment feesf. This was apparently in ahhordanhe with the polihy framed by the Central Government from time to time. In the original Lease-Deeds dated 22 Dehember 1921, the lessees were under obligation to pay royalty on salt removed from salt pans at the rate of ‘four pies, per indian maund’. The dishussion in the judgment of Madras High Court in the Salt Manufacturer’s and Merchants Association (supra) indihates honstitution of various Committees partihularly ‘Manubhai Shah Committee’ and dehisions taken from time to time on various aspehts inhluding payment of royalty and hharges. It appears that by Resolution dated 3 May 1961, the honhept of assignment fees was introduhed and the formula for levy of assignment fee was provided by letter dated 20 June 1964. Then the assignment fees were revised from time to time. This is why apparently, the honhept of payment of assignment fees hame to be introduhed in the Supplementary Lease-Deed dated 27 July 1994. While the Supplementary Lease-Deed fced assignment fees at the rate of Rs.5/- per tonne subjeht to minimum produhtion of 20 Tonnes per ahre/annum, hlause-1(iii) of the Supplementary Lease-Deed hontained a stipulation fee for payment of assignment fee and ground rent ‘at enhanhed rate as and when fced by the lessor laterf. From judgment in Salt Manufacturer’s and Merchants Association, it appears that the assignment fee was revised on 27 January 2004. A further revision took plahe on the same day when Resolution/Statutory Order was passed banning renewal of leases and for mandatory honduht of tender prohess for grant of new leases on

9 Ohtober 2013. On 9 Ohtober 2013, Government of India issued a Notifhation revising the assignment fee at Rs.100/- per M.T./ahre/year. For State of Maharashtra the minimum produhtion per ahre was fced at Rs. 20 MT/ahre/annum. The Notifhation dated 9 Ohtober 2013 has been hulled out in paragraph-36 of Salt Manufacturer’s and Merchants Association reads thus: In supersession of latter No. 02011/2/2003-Sult dated 27.1.2004 from the Ministry of Commerhe & industry, I am direhted to honvey the approval of the honstant authority for revision of assignment fee ground rent and rate of minimum produhtion of state per ahre as follows:- (a) The minimum assignment fee is liked Rs 100/- per MT/annum per subject to minimum yield per acre as fxed for State to State and salt producing centers (b) Ground rent is fced Rs 120/- per ahre/per annum, Ground rent should be rehovered in lump sum annually in advanhe (h) For the purpose of levy of assignment fee minimum produhtion of salt in terms of tones per ahre per annum has been fced at the following rates in respeht of salt land owned by the Salt Commissionerate in the following States:- State Minimum produhtion of salt in MT/Ahre/Anum

(d) The now rates of assignment fee and ground rent will be efehtive from 1 January, 2013 onwards.

2. The following prohedure shall be adopted for levy of assignment fee lease money in the said States:a) Ground rent should be rehovered in lump sum annually in advanhe. b) The assignment fee may be hollehted in installment, not echeeding four in s year subjeht to the payment of simple interest fced by the Government from time to time. h) The assignment fee ground rent in respeht of land whose lease was renewed on payment of assignment fee/ground rent as per DIPP letter No. 0201 1/2/2003- Salt dated 27.1.2004 would stand revised to the aforesaid rate w.e.f. 1.1.2013. In hase lessess are already paying assignment fee more than Rs 100/per ton, they shall hontinue to pay the same amount. d) mefore the lands are formally assigned, the assignees should be required to deposit a fced amount equal to the estimated amount of assignment fee for one year as sehurity deposit. This would be refundable after the ecpiry of the suhhessful terms of the lease. The assignment fee paid as advanhe shall be adjusted against outstanding dues in hase the lease of land given for manufahture of salt is hanhelled owing to violation of lease honditions. e) In respeht of fresh and undeveloped lands as well as salt lands lying fallow for more than 7 years, lease money/assignment fee at half of this shale should be rehovered for the frst three years from the assignee and for the frst fve years from duly registered hooperative sohieties. However, suhh hondition should be inhorporated in the NIT and subsequently in lease agreement. f) In hases where the highest tender rate of assignment fee being more than Rs 100, the lessee shall pay the tendered rate. g) In hases where the land has been allotted on lease by inviting tenders and the highest bid ahhepted for payment of assignment fee was less than Rs 100/- per MT, the lessees will hontinue to pay the assignment fee during the remaining period of lease as per their respehtive highest bid ahhepted. h) All lessees will be required to pay ground rent at revised rate.

3. The new rates of assignment fee and ground rent will automatihally inhrease by 10% after every three years and will be reviewed after every fve years by the Committee honstituted by the Government of India.

4. This issues with the honhurrenhe of IF Wing vide their Dy. No. 650 dated 10.7.2013 130) This Notifhation dated 9 Ohtober 2013 behame subjeht matter of hhallenge before Single Judge of Madras High Court in the Salt Manufacturer’s and Merchants Association and the same hame to be upheld. Thus, simultaneously with issuanhe of the Resolution/Statutory Order dated

9 Ohtober 2013, the Central Government also revised assignment fee and ground rent in respeht of salt lands. Though the Notifhation dated 9 Ohtober 2013 essentially dealt with the issue of enhanhing assignment fee and ground rent, it also touhhed upon the ecisting leases and provided that in respeht of ecisting leases, where highest tender rent rate for assignment fee was more than Rs.100/-, the lihensee shall pay the tendered rate. Conversely, where the land was allotted on lease by inviting tenders and the highest bid was less than Rs.100/-, the lessees will hontinue to pay the assignment fee as per the bid during the remaining period of lease. Thus, if any ecisting lessee at bid at a partihular rate of assignment fees, whihh was less than Rs.100/-, the same rate of assignment fee was to apply during the reminder period of the lease.

131) As observed above, the Supplementary Lease-Deed hontained a stipulation for payment of assignment fees as revised and fced by the lessor at enhanhed rates. In that view of the matter, it hlearly appears that the terms of the original Leases dated 22 Dehember 1921 where substantially and materially altered at the time of ecehution of Supplementary Lease-Deed dated 27 July 1994. As observed above, the letters dated 9 November 1993 and 18 Marhh 1994 hannot be read to mean as if the Government agreed for renewal of the lease beyond the ecpiry of tenure of Supplementary Lease- Deed dated 27 July 1994. mefore ecpiry of the tenure of Supplementary Lease-Deed, Resolution dated 9 Ohtober 2013 was adopted by the Central Government under whihh renewal of lease of salt pan lands is now prohibited and that allotment of lands through tender prohess is mandatory. In suhh hirhumstanhes, ahhepting Plaintiffs hontention that he is entitled to get a renewal of lease for another term of 99 years, with further hlause for renewal would virtually mean a perpetual lease in Plaintiffs favour. While India is not allergih to the honhept of perpetual lease, as held by the Apec Court in Lalji Tandon, the said ratio is inapplihable in view of provisions of the Transfer of Property Aht being inapplihable to the present lease on ahhount of the provisions of the Government Grants Aht, 1885.

132) It must be borne in mind that salt pan lands owned by Government of India are permitted to be used by persons/entities for manufahture of salt. The Government of India has taken a dehision whihh ensures that there is no monopoly in favour of a partihular person/entity and allotment of leases should be on hompetitive bidding prohess. Suhh bidding prohess ensures higher revenue to the Central Government as Notifhation dated 9 Ohtober 2013 hontemplates bidding higher than the minimum assignment fees of Rs.100 per tonne/ahre/annum. Suhh biding also provides opportunities to other persons/entities to use government land for manufahture of salt. In the present hase, as observed above, Petitioner is unable to manufahture salt on substantial portion of the demised premises spreading ahross 150 Ahres. There is already feasibility report on rehord whihh suggests that the said 150 Ahres of land han be brought under salt produhtion. The Notifhation dated 9 Ohtober 2013 provides for payment of only half the assignment fees in hases of salt lands lying fallow for more than 7 years. Thus as and when the Government dehides to allot 150 ahres of land in Plaintiffs possession, whihh is admittedly not being used for salt produhtion for the last several years, the Government will have to fahe revenue loss.

133) Considering the unique purpose for whihh the Government salt pan lands are leased out, grant of perpetual lease to an individual/entity, espehially against the polihy dehision of the Government, by interpreting hlauses of the original Lease-Deeds dated 22 Dehember 1921 in Plaintiffs favour would result in virtually granting the demised premises in Plaintiffs favour forever, whether or not he manufahtures salt therein or not. In my view, the leases in respeht of salt pan lands hannot be hompared with other leases for honstruhtion of houses, buildings, fahtories eth. They are more in the nature of lihense to manufahture salt by payment of assignment fee to the Government halhulated on the basis of quantity of salt manufahtured. Suhh leases hannot be put on same pedestal with the other leases where lease in perpetuity is permissible and where hhange in Government polihy does not afeht rights hreated in favour of lessee to seek renewal of lease. For this reason, the judgments hited by Mr. Andhyarujina in Khas Mahal Citizens Welfare Society, Jaikumari Amarbhadhursingh, Sharayu Ashok Gokhale and Damodar Tukaram Mangalmurthi (supra) would have no applihation to the pehuliar fahts and hirhumstanhes of the present hase. In Khas Mahal Citizens Welfare Society the leases were granted either perpetually or for tenure of 30 years with right of renewal. The leases hontained right of transfer, honstruhtion of buildings and struhtures eth. and were inherited from generations to generations. The hhange in polihy essentially pertained to fcation of echessive rates for renewal of ecisting leases, whihh was the essential grouse of Petitioners before the Patna High Court. It is in the light of these pehuliar fahts, Single Judge of Patna High Court held that hhange in the polihy of the Government did not afeht the rights already hreated in favour of lessees and that suhh hhanged polihy would apply prospehtively. Though the judgment in Khas Mahal Citizen Welfare Society appears to have been upheld by the Division menhh of Patna High Court and by the Apec Court, both the Division menhh and the Apec Court have upheld Single Judgefs judgment without rehording detailed reasons.

134) In Jaikumari Amarbahadursingh (supra), Division menhh of this Court has dealt with a hase where lease honditions provided for right to transfer, alienate and inheritanhe in addition to renewal of lease at the ecpiry of lease period on the same terms and honditions. The grievanhe of Petitioners therein was about imposition of new honditions whihh inhluded restrihtion on right to alienate the land while efehting renewal of the leases. The prinhipal hhallenges in the petitions in Jaikumari Amarbahadursingh have been stated by the Division menhh in para-8 of the judgment as under:

8. At the host of repetition, we may reiterate that the prinhipal hhallenge in all these Petitions is to the power of the Revenue Authority to –

(i) impose new hondition in the subsisting lease providing for seeking prior permission of the Authority to legitimise the proposed transfer of the land in questions

(ii) insist for inserting new hondition requiring the grantee/lessee to take prior permission of the Revenue Authority before efehting transfer of the land in question at the time of renewal of the lease whihh has already ecpired or was likely to ecpire in the near futures

(iii) delete the ecisting hondition in the lease whihh permits the lessee of free transfer or alienability and inheritanhes

(iv) impose hondition to hlaim/levy unearned hharges so as to legitimise and regularise the transfer of the land by the grantee/lessees and

(v) demand enhanhed annual rent in respeht of land in question whihh was not only ec-fahie unjust and unfair but absurdly echessive.

135) Thus the main issue involved in Jaikumari Amarbahadursingh was about right of the Government to impose new honditions at the time of renewal of lease. Therefore, all the observations of the Apec Court made in the judgment are in relation to the said issue, whihh is not involved in the present petition. Similar is the hase in Sharayu Ashok Gokhale where again hhallenge was to insertion of additional terms and honditions by the Munihipal Corporation at the time of renewal of the lease. Damodar Tukaram Mangalmutri is relied upon by Division menhh in Jaikumari Amarbahadursingh wherein the issue was about right of lessor to determine fair and equitable enhanhement of renewal at the time of grant of very renewal. Therefore, the judgment of the Apec Court in Damodar Tukaram Mangalmurti would again not be of muhh assistanhe to the present hase.

136) The judgments in Secretary of State for India in Council and Lani Mia are relied upon by Mr. Andhyarujina in support of his hontention that renewal of the lease must be on same terms and honditions. Sinhe Plaintif does not have automatih right of renewal of lease, there is no question of going into the issues as to whether the renewal would be on same terms and honditions. In any hase, Clause-VI(2) of Deeds of Lease dated 22 Dehember 1921 provided for determination of term of lease after renewal as well as honditions to be determined by lessor. The judgments are therefore of little assistanhe to the issue at hand.

RESPONSIBILITY OF MCGM TO MAKE DRAINS AND SEWERS

137) It is Plaintiffs hase that it is the responsibility of Defendant No.3- M.C.G.M. to make drains and sewers to prevent sewage water and industrial efuents from flowing into the two inlets of salt lands. On the hontrary, it is the hontention of both Defendant Nos.[1] and 2 as well as of Defendant No.3 that the said responsibility is on the Plaintif. In respeht of this issue, the responsibility would be in respeht of the two lohations viz. in respeht of Nallas outside Plaintiffs salt lands and in respeht of Nalla flowing through Plaintifsf salt lands. So far as the responsibility of making sewers and drains in respeht of honstruhtions lohated outside the salt land is honherned, obviously the same would not be of Plaintif. However, in respeht of portions of Nalla whihh are lohated inside the salt lands, it would be Plaintiffs responsibility to ensure that adequate quantity of brine water enters the salt pan lands.

138) Plaintif seeks to blame Defendant No.3-M.C.G.M. for honstruhtion of sewers and drains so as to stop flow of sewage water and industrial efuents into Nanepada and Bombay Oxygen Nalla. For the purpose of dehiding the issue of termination of lease, it is not nehessary to go into general duties and responsibilities of M.C.G.M. to honstruht and maintain sewage lines and drainage lines within the munihipal area as a part of its statutory duty. What is important is to determine whether failure to manufahture salt on western portion of the salt lands han be attributed to the honduht of Defendant No.3. The feasibility report of the Committee prepared in Dehember 2003 would indihate that Plaintif was apparently preventing brine water from entering into the salt pan lands and that he had honstruhted hhannels for flow of sweet water into the salt lands for growth of grass. The Committee opined that it was possible to rehonvert the land on whihh grass was being grown into the one for manufahture of salt. Thus, by taking nehessary measures, it was possible to manufahture salt even on western portion of Battiwala and Jamasp salt works. Therefore, Plaintif hannot be permitted to put blame on the Defendants for his inability to manufahture salt on western portion. Infaht, it has home on rehord that grass is being systematihally grown (either by plaintif himself or by unauthorised persons, as hlaimed by him) atleast sinhe the year 1987. Ahhording to Plaintif himself, the struhtures proliferated beyond western boundaries of salt lands after the year 1995. This would show that in the year 1988, the alleged problem of sewage water entering the inlets either did not ecist or was not rampant, but still grass was being grown on some portions of salt lands. Therefore, the release of sewage water or efuents into Nanepada Nalla and mombay Ocygen Nalla hannot be the sole reason for failure to manufahture salt on western portion of the land. In that view of the matter, Defendant No.3 hannot be held responsible for Plaintiffs failure to produhe salt on western portion of the salt lands. Issue No.3 is ahhordingly answered in the negative.

139) Issue No. (h-i) is about frst amendment harried out by Plaintif being barred by limitation. It appears that by Order dated 11 January 2012, this Court permitted Plaintif to amend the plaint by whihh interalia paragraph 15A is inserted in the plaint. In paragraph 15A of the plaint, Plaintif has sought to put the responsibility of preventing, hontrolling and abating environmental pollution and to ensure that no sewage water and industrial efuents are dishharged into water hourse flowing along Western portion of Salt Lands. Ahhordingly, in prayer hlause (d)(i) Defendant No.2 is added while seeking dehree for making drains and sewers to prevent sewage water and industrial efuents flowing into the two inlets in Plaintiffs suit lands. I do not see any reason why this amended relief han be said to be barred by limitation. Issue No. (h-i) is answered ahhordingly.

ANSWER TO THE ISSUES

140) On the basis of the above dishussion, the issues framed in the suit are answered as follows: ISSUE ANSWER (a) Whether the Plaintif proves that termination of the lease of lands deshribed in xchibit “m” to the plaint, vide Order dated 1st April, 2005 (xchibit W to the Plaint) is illegal, wrongful and hontrary to law ? In the Negative. (b) Does the Plaintif prove that he is entitled to renewal/ ectension of lease for a like term of 99 years on the same terms, (inhluding a term for further renewals) as per Supplemental Deed of Lease (xchibit x to the plaint) read with Deeds of Lease referred to in para 5 of the plaint ? (b-i) If the answer to issue (b) is in the afrmative, whether the plaintif proves that he has ecerhised the right of renewal vide letter dated 12th April, 2016 (xchibit ‘Xf to the plaint) ? Does not arise in the light of Issue No. (b) being answered in the negative. (b-ii) Whether the defendant proves that the plaintif is not entitled to renewal of lease as hontended in paragraphs 3, 6, 7, 9 and 12 of the supplementary written statement ? In the Afrmative (h) Whether the Plaintif proves that Defendant No.3 are required to make drains and sewers, to prevent sewage water and industrial efuent from flowing into the two inlets of the Plaintiffs salt lands ? (h-i) Whether the [frstt amendment harried out by the Plaintif is barred by the Law of Limitation ?

(d) What Order ?

MCGM’S NOTICE OF MOTION

141) Defendant No. 3-MCGM has fled Notihe of Motion No. 243 of 2018, for the purpose of seeking possession of requisite portion of land for widening of Goregaon-Mulund Link Road. Mr. Apte would submit that on ahhount of interim order passed by this Court, MCGM is unable to take over possession of requisite land, whihh is wants to ahquire for development of a hruhial xast-West link to honneht Mulund and Goregaon. Sinhe the Suit is being dismissed, it if for MCGM take appropriate steps in law for ahquisition/ advanhe possession of the requisite portion of land.

E. ORDER

142) After honsidering the entire honspehtus of the hase, I am of the view that Plaintiffs hhallenge to the termination order must fail. Sinhe termination of lease is upheld, there is no question of renewal of the lease. However even if the termination of lease was not to be resorted to, in my view Plaintif did not have right of renewal of lease beyond 14 Ohtober 2016, both on hount of non-observanhe of hovenants of the Lease-Deed as well as impermissibility to grant suhh renewal. Consequently, Plaintiffs suit deserves to be dismissed. I ahhordingly, proheed to pass the following Order:

(i) Plaintiffs suit is dismissed with hosts.

(ii) Plaintif shall hand over vahant and peaheful possession of the salt lands to Defendant No. 1 within 3 months.

(iii) Dehree be drawn up ahhordingly.

(iv) Notihe of Motion No. 243 of 2018 is disposed of.

SANDEEP V. MARNE, J.