The main legal point established in the judgment is that the exercise of equity jurisdiction under Article 226 of the Constitution of India depends on the circumstances of the case and the availability of alternate remedies.

JUDGMENT

S.M.MODAK, J. - Heard learned Senior Counsel Shri Talekar for the Petitioner, learned AGP for the Respondent-State and learned Advocate General for Respondent No.2.

2. By two orders/notices dtd. 7/9/2020 and 19/10/2020 issued by the Lands and Estate Manager and Deputy Metropolitan Commissioner of MMRDA, the Petitioner was asked to pay arrears of rent and they were informed of resumption order in case of non compliance.

3. These orders are challenged by the petitioners. Whereas during pendency of this petition, Metropolitan Commissioner of MMRDA as per the order dtd. 7/9/2020 refused to review the earlier orders of resumption. So also the bank guarantee was encashed. Hence by way of amendment to this petition, the petitioner has also challenged those actions.

4. The Respondents have appeared and they have taken objection to maintainability of this Writ Petition apart from denial of the allegations. According to them, remedy of filing Writ Petition as resorted is not permissible by law. The Respondents have justified all actions taken by them.

5. Before going into the issue of maintainability objection and other merits, it will be useful to consider few facts which are relevant. They are as follows:-

(a) The MMRDA has invited e-tender for Food Court and allied usages of the premises situated in Urban Plaza building at Bandra-Kurla Complex. The Bandra-Kurla Complex is developed as finance and business district centre and there was need of starting restaurant and eating places. The tender of the Petitioner was accepted and lease deed dtd. 6/1/2016 was executed in between the parties. The essential terms of that lease deed are as follows:-

(i) The duration of sale deed was for ten years.

(ii) The area of leased premises was 2510.379 sq. mtrs. + 111.512 sq. mtrs. (basement)

(iii) Monthly rent was Rs.13, 51, 786.00 with 5% increase every year.

(iv) The Respondents have paid Rs.1.00 crore towards premium and also furnished bank guarantee to the tune of Rs.1, 25, 82, 383.00.

(v) There is provision for re-entering the premises by the Respondents in case of rent being not paid within 30 days or in case of other contingencies referred in clause No.(6).

6. On perusal of the pleadings by both sides, it reveals that there was dispute in between the parties on account of various reasons including not paying rent in time, non-registration of lease deed, not obtaining fire license, carrying out alteration in leased premises, not carrying out repairs to the lift from an agency and so on. Both the parties have relied upon various correspondence depicting allegations and counter allegations. The record further reveals that the Deputy Metropolitan Commissioner of MMRDA has passed an order dtd. 28/11/2018 thereby asking the lessee/Petitioner to vacate demised premises within seven days from the date of the order. This order was passed in exercise of power under clause 6 of the lease deed.

7. The correctness of said order was subject matter of challenge in earlier Writ Petition (L) No.4127 of 2018. Learned Single Judge granted liberty to the Petitioner to withdraw that Petition and adopt appropriate proceedings in law (relevant orders are on page 66 to 68). The thrust of arguments of learned Advocate General is not resorting appropriate remedy as per the said liberty and instead filed this Writ Petition. That is why he strongly opposed maintainability of present Writ Petition. Furthermore, according to learned Advocate General considering the nature of present dispute based on contract he has also challenged exercise of equity jurisdiction under Article 226 of the Constitution of India. According to him there is serious disputed questions of fact involved and which cannot be gone into by writ Court. Hence he also requested this Court not to exercise the equity jurisdiction.

8. Whereas according to Mr.Talekar, learned Senior Counsel, the two notices challenged in this Petition dtd. 7/9/2020 and 19/10/2020 were based on considerations, differen