Guru Nanak Vidya Bhandar Trust vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 425 Del

JUDGMENT

Sanjay Kishan Kaul, J.

IA No. 2417/2005 (Order VI, R-17 CPC by Def. No. 3/NDMC)

1. The plaintiff has filed a suit for possession against the defendants. Defendant No. 3 is in possession of the land in question, which is stated to have been taken over for road widening. The suit was filed as far back as in the year 1979. The amendment application has been filed by the applicant / defendant No. 3 in the year 2005 after 26 years of filing of the suit. The amendment seeks to incorporate in the written statement what is claimed by the applicant / defendant No. 3 to be a legal preliminary objection to the effect that the suit is not maintainable in view of the provisions of Section 192 of the Punjab Municipal Act, 1911 ( hereinafter to be referred to as, 'the Municipal Act' ).

2. The submission of learned senior counsel for defendant No. 3 / applicant is that this being a legal objection can be taken at any stage of time.

3. Learned counsel for the plaintiff, on the other hand, has drawn the attention of this Court to the amended provisions of Order VI Rule 17 of the Code of Civil Procedure, 1908 ( hereinafter to be referred to as, 'the Code'). The provision reads as under:

ORDER VI PLEADINGS GENERALLY

Rule17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

4. It is not in dispute that trial had already commenced prior to the amendment being sought. In view of the proviso, the amendment cannot be allowed unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The question sought to be raised is in view of the provisions of the Municipal Act and, thus, it cannot be said that despite due diligence, the same could not be raised.

5. Learned counsel for the plaintiff points out that it is not merely a legal objection which is sought to be taken, but has certain factual ramifications. In order to appreciate it, the Section itself would have to be referred to and is as under:

192. Building scheme.-(1) The committee may, and if so required by the Deputy Commissioner shall, within six months of the date of such requisition, draw up a building scheme for built areas,a nd a town planning scheme for unbuilt areas, which may among other things provide for the following matters, namely:-

(a) the restriction of the erection or re-erection of buildings or any class of buildings in the whole or any part of the municipality, and of the use to which they may be put;

(b) the prescription of a building line on either side or both sides of any street existing or proposed; and

(c) the amount of land in such unbuilt area which shall be transferred to the committee for public purposes including use as public streets by owners of land either on payment of compensation or otherwise, provided that the total amount so transferred shall not exceed thirty five per cent and the amount transferred without payment shall not exceed twenty five per cent, of any one owner's land within such unbuilt area.

(2) When a scheme has been drawn up under the provisions of sub-section (1) the committee shall give public notice of such scheme and shall at the same time intimate a date not less than thirty days from the date of such notice by which any person may submit to the committee in writing any objection or suggestion with regard to such scheme which he may wish to make.

(3) The committee shall consider every objection or suggestion with regard to the scheme which may be received by the date intimated under the provisions of sub-sections (2) and may modify the scheme in consequence of any such objection or suggestion and shall then forward such scheme as originally drawn up or as modified to the Deputy Commissioner, who may, if he thinks fit, return it to the committee for reconsideration and resubmission by a specified date; and the Deputy Commissioner shall submit the plans as forwarded, or as resubmitted, as the case may be, with his opinion to the State Government, who may sanction such scheme or may refuse to sanction it, or may return it to the committee for reconsideration and resubmission by a specified date.

(4) If a committee fails to submit a scheme within six months or being required to do so under sub-section (1) or fails to resubmit a scheme by a specified date, when required to do so under sub-section (3) or resubmits a scheme which is not approved by the State Government, the Deputy Commissioner may draw up a scheme of which public notice shall be given by notification and by publication within the municipality together with an intimation of the date by which any person may submit in writing to the Deputy Commissioner any objection or suggestion which he may wish to make, and the Deputy Commissioner shall forward with his opinion any such objection or suggestion to the State Government and the State Government may sanction such scheme as originally notified or modified in consequence of any such objection or suggestion, as the State Government may think fit; and the cost of such scheme or such portion of the cost as the State Government may deem fit shall be defrayed from the municipal fund.

(5) When sanctioning a scheme the State Government may impose conditions for the submission of periodical reports on the progress of the scheme to the Deputy Commissioner or to the State Government, and for the inspection and supervision of the scheme by the State Government.

6. Learned counsel for the plaintiff also points out that the aforesaid provision refers to a building scheme. This scheme envisages the Committee to draw up the building scheme and in terms of clause (c) of sub-section (1) of Section 192 of the Municipal Act, the amount of land has to be transferred to the Committee for public purpose including as public streets. This is the provision sought to be relied upon by learned senior counsel for defendant No. 3 / applicant. The plea of learned senior counsel is that such transfer of land for public streets can be either on payment of compensation or otherwise. It is this provision, which is sought to be relied upon to contend that the applicant was within its rights to take over the land for the purpose of public street without payment of any compensation to the plaintiff. However, sub-section (2) of Section 192 of the Municipal Act provides for the Committee to give a public notice of such scheme and the procedure prescribed therein has to be followed. The submission of learned counsel for the plaintiff is that all those aspects would also have to be proved and, thus, the attempt of the applicant is only to delay the proceedings.

7. There is force in the contention of learned counsel for the plaintiff. It is not as if for a requirement of a public street, the land can straightaway be taken away under Section 192 of the Municipal Act, but the procedure prescribed therein has to be followed. If the stand of the applicant was that the land was so taken away and the procedure was so followed, then the necessary pleadings in that behalf had to be made and evidence led. It can hardly be said that despite due diligence, the applicant was not in a position to take such a plea in the written statement.

8. There is also another aspect to the matter, which, in my considered view, makes the whole exercise of seeking the amendment futile. Clause (c) of sub-section (1) of Section 192 of the Municipal Act requires that the total quantum of the land to be transferred should not exceed 20% and in case it is transferred without payment, it should not exceed 10%. The total land owned by the plaintiff is 2.18 acres and what has been taken possession of is 0.836 acre. There is no dispute over these figures. The percentage of land, thus, taken over is 38.3%. Thus, ex facie, the provision would have no application in view of the maximum percentage prescribed for the application of clause (c) of sub-section (1) of Section 192 of the Municipal Act as in the present case it undisputedly exceeds that percentage.

9. No doubt, while considering an application for amendment, the merits of the controversy are not to be gone into in depth, but where an amendment sought for is a futile exercise and that too after 26 years, the Court cannot be a silent spectator to the attempts on the part of the applicant to further delay a decision in the suit.

10. The application is misconceived and without any merit and is, thus, dismissed with costs of Rs. 5,000/-.

IA No. 7982/2004 (Order XII, R-6 CPC by the Plaintiff)

11. The plaintiff has filed the suit for possession in respect of the land taken possession of by defendant No. 3 / NDMC by construction of the road joining Tolstoy Marg from Janpath to Parliament Street, New Delhi. An alternative relief has also been claimed that the defendants be directed to issue the requisite notification under the Land Acquisition Act, 1894 ( hereinafter to be referred to as, 'the Land Acquisition Act' ) and compensation be granted to the plaintiff at the prevalent rate. As a further alternative, the plaintiff has prayed for a decree for Rs. 2.42 crores with interest from 25.03.1976 to 14.03.1979 calculated @ 24% p.a. apart from pendente lite and future interest @ 18% p.a. from the date of filing of the suit till realisation of the decretal amount.

12. The plaintiff is a registered society under the Societies Registration Act. It is stated to be a charitable educational body run totally on philanthropic principles for promotion of education. The plaintiff Trust is stated to have been founded in the year 1924 when Sardar Bahadur Dharam Singh donated the land out of his personal properties to the Trust with the specific stipulation that income from the properties should be utilised for the promotion of educational activities of the plaintiff Trust. The plaintiff Trust is stated to be supporting a large number of schools in Delhi, Uttar Pradesh and Punjab. In Delhi, the plaintiff Trust is stated to be running Sardarni Sada Kaur Khalsa Girls Higher Secondary School, Darya Ganj, New Delhi where almost 1000 girl-students are stated to be studying and the admission is based on a criterion without any distinction of caste or creed.

13. In order to augment the income of the plaintiff, the plaintiff purchased the building with the land underneath known as plot No. 1, Block No. 124 subsequently known as plot No. 9, Jantar Mantar Road, New Delhi from one Sardar Ram Singh Kabli on 15.08.1932 as per the Sale Deed which was duly registered on 17.08.1932. The property was mutated in the name of the plaintiff in terms of the letter of the L&DO, New Delhi dated 11.04.1933. The plaintiff continued to be the owner of the said plot. The plaintiff apparently wanted to sell the plot to augment the financial resources of the plaintiff in and around 1975. At the time when negotiations were pending, emergency was declared by the Government of India on 25.06.1975.

14. It is stated in the plaint that on or about 15/16.03.1976 on account of high-handedness on the part of the defendants, the plot in question was bulldozed without issuing any notice or warning to the plaintiff and a sizable portion of the property including the quarters built on the plot were demolished by the defendants. The chowkidar residing in the quarters was not even allowed to inform the owner and it was only on information of some passer-by that the plaintiff came to know about the illegal demolition. The trustees of the plaintiff Trust reached the spot but the defendants started constructing a wall to act as a boundary to separate the area illegally taken over by the defendants for construction of the road for extension of Tolstoy Marg from Janpath to Parliament Street, New Delhi.

15. The Trustees of the plaintiff Trust on enquiry at the spot were informed that the Chief Engineer of defendant No. 3 / NDMC had given instructions to construct the road by bulldozing the portion of the building and the walls existing and despite the request of the trustees that in case the land was required for public purpose, the same should be acquired through due process of law, no heed was paid to the request of the plaintiff. On the other hand, it is stated in the plaint that the President of defendant No. 3 and the Chief Engineer, NDMC rushed to the site and threatened the trustees of the plaintiff Trust with dire consequences if they interrupted the construction of the work of Link Road including the threat of detention under MISA.

16. The first written information, the plaintiff is stated to have received, was by the letter dated 15.04.1976 informing that the extension of road had to take place and by that time, the entire work is stated to have finished. The letter made the reference to the work of extension and the fact that a compound wall had been constructed to demarcate the right of way of the road "as discussed at the meeting held with you in this connection". This was so stated despite the fact that no meeting had been held. The letter further recorded, "Land and Development Officer, Ministry of Works and Housing is being requested to arrange the payment of compensation, etc.".

17. The result of the aforesaid was that the plaintiff was deprived illegally and forcibly of the land area, which is undisputedly accepted by both the counsel for the parties as per the record to be 0.836 acre out of the total plot size of 2.18 acres. The plaintiff was aggrieved by the deprivation of the "Right to Property" under the Constitution of India ( hereinafter to be referred to as, "the Constitution" ) and the plaint states that even if the land was required for a public purpose, the dispossession could have taken place only under authority of law. The plaintiff has, thus, sought restoration of the possession.

18. The plaintiff made a representation to defendant No. 3 / NDMC and also to the Lieutenant Governor of Delhi without any result. In view of the representations of the plaintiff, a letter dated 03.01.1977 was issued by defendant No. 2 / Land & Development Officer to defendant No. 3 / NDMC to the following effect:

To,

The Municipal Engineer (R&D), N.D.M.C., New Delhi.

Sub:- Extension of Tolstoy Marg from Janpath to Parliament Street.

Sir,

I am to refer to this office letter of even number dated 3.9.1976, on the above subject, and to request you to furnish a copy of Plan showing the exact area taken over by N.D.M.C. for road widening from the lessees of 9, Jantar Mantar Road, New Delhi, without further delay.

It may please be noticed that the N.D.M.C. has taken over the land from the lessees without any authority from this office and if you failed to furnish the required information, the lessees will be informed to take direct action for unauthorised occupation of this land by N.D.M.C.

19. The letter issued by defendant No. 2 also did not evoke any response from defendant No. 3 / NDMC and the plaintiff was, thus, left with no option but to file the suit for possession. It may be noticed that the suit originally as framed had sought the alternative relief for recovery of a sum of Rs. 62,92,000/-, but the plaint was subsequently amended in April, 1996 increasing the amount of the alternative relief. Since then another ten (10) years have passed.

20. The suit has been resisted by defendant No. 3 / NDMC and in order to consider the present application, some of the pleadings made in the written statement have to be reproduced:

PRELIMINARY OBJECTIONS:

...

7. That the land in question was acquired by Land & Development Officer on the approval of Town and Planning Organisation and was placed at the disposal of the N.D.M.C. for implementation of the road widening scheme. The plaintiff therefore has no locus standi to claim the relief the compensation from the replying Defendant.

8. That this Hon'ble Court has no jurisdiction to grant the relief prayed to the plaintiff for the simple reason that the land in question was acquired by the Government and the compensation is to be computed first by the Collector appointed under Land Acquisition Act and thereafter the party can file an appeal with the District Judge under Land Acquisition Act. The Civil Court has no jurisdiction to compute or award compensation in respect of the land acquired and the jurisdiction of the Civil Court is barred under that Act.

...

BRIEF FACTS:

The land of various private properties which also included the piece of land measuring about 0.836 acres from 9, Jantar Mantar Road was falling in the proposed extension of Tolstoy Marg from Parliament Street to Janpath as per drawing prepared by Town and Planning Organisation as per provisions in the Master Plan on roads of Delhi under Delhi Development Act and approved by D.D.A. The Delhi Development Officer acquired the land from the parties concerned and which was done by the Land & Development Officer and thereafter the same was placed at the disposal of the Replying Defendant (NDMC) for implementation of the Road Widening Scheme by Land & Development Authority and D.D.A.

REPLY TO THE PARAS ON MERITS:

...

8. Para 8 of the plaint and each and every one or the averments made therein are wrong and are, therefore, denied. The true facts have already been stated in the foregoing paras. It is, however, not denied that the compound wall separating the area of the premises of plot No. 9, Jantar Mantar Road from the proposed widening of the road was constructed by the answering defendant but it is vehemently denied that the land was illegally taken over as alleged. In fact the land was handed over to the answering defendant in consultation with the plaintiffs and now it does not lie in their month to come out with the false allegations as made in the para under reply. The plaintiff has also been notified about taking over of the land and construction of wall vide answering defendants letter dated 19.02.1976.

9. Para 9 as stated is wrong and denied. It is denied that any instructions were issued by Shri V.P. Chetal, Chief Engineer (Civil) as alleged. It is also denied that any of the Trustee ever requested the said Engineer at the site to stop further construction of the road as alleged. It is also denied that any officials of the Defendant Committee much less so the President, N.D.M.C. or Chief Engineer of the N.D.M.C. ever threatened the Trustees of the plaintiff with dire consequences of threatened them for detention under MISA as alleged. In fact there was neither any occasion nor were they competent to make any such threats as mentioned in the para under reply. This story of threats has been cooked up with ulterior motives. The road widening was a public purpose which was carried out with the full knowledge and consent of the plaintiffs. In fact the plaintiff caused interference to the lawful action of the concerned authorities who acquired the land for public purpose, i.e., widening of the road. As stated earlier no part of the trust property was illegally utilised for the widening of the road. In fact the wall has been built to demarcate the plot of the plaintiff which facility the plaintiffs have got at the cost of the replying defendants.

...

11. Para 11 is wrong and denied. It is wrong that the replying defendants acquired any land much less so 1.0 acre of land as wrongly alleged by the plaintiffs in the para. It is wrong that the replying defendant was required to serve any notice to the plaintiff. As stated above the land, if any, which was acquired was acquired by the other Government authorities mentioned above and not by the replying defendants. The replying defendants in fact was writing to the authorities to examine the case of the plaintiff and pay reasonable and proper compensation to the plaintiff if the plaintiff is entitled to any from the other authorities.

12. Para 12 as stated is wrong and denied. It is not denied that the Plaintiff has been approaching the defendant Committee for payment of compensation but as already stated the Committee had always been bringing home to the plaintiff that his land had not been acquired and if there is any land which is acquired their land then they should approach the concerned authorities. The replying defendants were co-operative with the plaintiff only as a public body. The receipt of certain letters from the L&DO or from the plaintiff in this respect as referred to in this para are not denied. As stated earlier, L&DO acquired the land and gave to N.D.M.C. for widening of the road which is a public purpose. Later on when Land & Development Authority tried to wriggle out on technical ground the replying defendant then approached Delhi Administration for payment of compensation if any to the plaintiff.

...

14. Para 14 is wrong and denied. The widening of the road was done by the Committee as a public purpose and for the public utility, service and no benefit has been achieved by the defendant Committee in its individual capacity. In fact the utility of the road widening is to the entire public including the plaintiff and the plaintiff as it claims to be a charitable and religious trust should have been satisfied for the utility of their land (if any) for the public purpose which is in consonance to the objective of the trust as mentioned in the para 2 of the plaint.

21. A reading of all the aforesaid paragraphs and written statement as a whole leaves no manner of doubt that the stand of defendant No. 3 / NDMC is that it had taken over possession of the land for road widening albeit with the consent of the plaintiff and such taking over of possession was in pursuance of the acquisition proceedings by the Perpetual Lesser, L&DO. The plaintiff can, thus, be compensated for take over of the land in question.

22. Defendant No. 2 / L&DO has also filed the written statement and once again some of the paragraphs of the written statement of the L&DO are required to be reproduced:

ON MERITS:

12. Para 12 of the plaint is denied, except for the fact that letter dated 18.03.1977 was received from the plaintiffs. It is submitted that the plaintiffs were asked to take up the matter regarding the payment of compensation with the New Delhi Municipal Committee as defendants No. 1 and 2 never authorised the New Delhi Municipal Committee to take over the land. Defendants No. 1 and 2 had nothing to do with the take over of the land by the N.D.M.C. and the plaintiffs cannot make defendants No. 1 and 2 liable for anything.

...

14. In reply to para 14 it is submitted that there was no question of involvement of any officers or any other staff of defendants No. 1 and 2 as the land was never taken over by the answering defendants.

...

16. Para 16 is wrong and denied. No possession of any land has been taken by respondents No. 1 and 2. The plaintiffs are not entitled to recover any amount from defendants No. 1 and 2. In any case the rate of the land as claimed by the plaintiff is absolutely incorrect. The plaintiffs are merely lessees of the land.

...

18. Para 18 is admitted only to the extent that a notice under Section 80 was received by defendant No. 1. The defendants No. 1 and 2 are not liable to make any payment of any compensation because neither the land was taken over by defendant No. 1 nor the defendants No. 1 and 2 ever authorised New Delhi Municipal Committee to take over the land. The validity of the notice is, however, denied. Even otherwise there was no cause for the plaintiffs to serve any notice on defendants No. 1 and 2.

23. Defendant No. 2 / L&DO, thus, took a categorical stand that the L&DO had never authorized NDMC / defendant No. 3 to take over the land nor have any acquisition proceedings been ever initiated in respect of the land in question.

24. The parties had filed the documents and most of the documents are undisputed. The perpetual lease dated 07.06.1921 is Exhibit P-1, while the Sale Deed dated 15.08.1932 is Exhibit P-8 being the English translation. The letter dated 15.04.1976 referred to aforesaid issued by NDMC is Exhibit P-12. The letter dated 03.01.1997 issued by the Government of India, Ministry of Works and Housing, L&DO reproduced above is Exhibit P-2.

25. The plaintiff had taken up the matter with defendant No. 2 / L&DO and a communication dated 06.06.1978 was issued by defendant No. 2 / L&DO, which is Exhibit P-3 and reads as under:

Government of India Ministry of Works and Housing Land and Development Office Nirman Bhvan, New Delhi

No. LII-16(450)/76

Dated 6.6.78

To,

The Secretary, Guru Nanak Vidhya Bhandar Trust, Khalsa School Building, Darya Ganj, DELHI.

Sub:- Payment of compensation in the possession taken for the road out of 9 Jantar Mantar Road, New Delhi for extension of Tolstoy Marg.

Dear Sir,

With reference to your letter No. 51/77 dated 13.3.77 on the above subject, you are requested to take up the matter direct with the NDMC regarding payment of compensation for the area taken over by them for the extension of road as this office never authorised NDMC to take over the land.

Yours faithfully,

sd/-

( A.P. JAIN ) Engineer Officer

26. Defendant No. 3 / NDMC ultimately admitted that defendant No. 2 / L&DO had not handed over the land as per the letter dated 10.02.1977, which is Exhibit P-14 and reads as under:

NEW DELHI MUNICIPAL COMMITTEE (ENGINEERING DEPARTMENT) VIDYUT BHAWAN: NEW DELHI

No. ME(R&D)/142A/HC/D-588-89

Dt. 10.2.77

The Engineer Officer, Land and Development Officer, M/O Works & Housing, Nirman Bhawan, New Delhi.

Sub:- Extension of Tolstoy Marg from Janpath to Parliament Street, New Delhi.

Sir,

Please refer to your letter No. L-II.A.16(450)/76 dt. 3.1.77 regarding the position of land / plan showing the exact area taken over by NDMC for implementing the above said scheme from 9-Jantar Mantar Road and S.T.C. Building at the junction of Janpath. Please also refer this letter No. 2-A/5099 dt. 29.12.76 in respect related to STC.

The total area of land measuring 0.836 acres and 0.012 acres from 9, Jantar Mantar Road and STC Building respectively have been acquired as per sketches attached for construction of public road.

You are, therefore, requested to kindly make the necessary orders to allot this land to NDMC at the earliest.

Yours faithfully,

sd/-

Er. S.C. Basuroy Municipal Engineer (R&D) Encl.: Two sketches.

Copy to:- A.E. IV(R&D) - for information and n. action.

27. It is only in February, 1977 that the assistance of L&DO was sought by NDMC for necessary orders to allot the land in question to NDMC.

28. The aforesaid letter was followed up by another letter by NDMC to Delhi Administration dated 23.03.1979, which is Exhibit P-15 and reads as under:

No. ME(R&D)/D/1402

March 23, 1979

Shri S.C. Vaish, Secretary (LSG), Delhi Administration, Vikas Bhawan, New Delhi.

Sub:- Extension of Tolstoy Marg from Janpath to Parliament Street, New Delhi.

S.H.:- Payment of compensation for land.

Sir,

The construction of Tolstoy Marg from Janpath to Parliament Street was taken up in February, 1976 on the basis of Drawing No. C/A-381 prepared by T&C.P.O. and approved by the D.D.A. In the alignment prepared by T&C.P.O. certain parts of private properties as mentioned below were coming:-

  1. Imperial Hotel                         :    0.930 Acres
2. Free Church                            :    0.060 Acres
3. State Bank of India                    :    0.011 Acres
4. Guru Nanak Vidhya Bhandar
    Trust (9, Jantar Mantar Road)         :    0.836 Acres
5. The Masonic Fraternity of India        :    0.580 Acres
6. State Trading Corporation of India     :    0.012 Acres
                                               ------------
                        Total             :    2.429 Acres
                                               ============

 

In the sanctioned preliminary estimate, a provision of Rs. 11.2 lacs for payment of compensation towards the cost of the land estimated at the rate of Rs. 5.00 lacs per acre for 2.24 acres has been made. The matter was taken up with the L&DO vide letter dated 16.4.75 for resuming the land from various parties and placing at the disposal of the NDMC. It was discussed in several meetings but no decision about the resumption of this could be taken. The construction work was started on 12.03.1976 on the basis of approved alignment after constructing the boundary walls. The cost of the land included in the road portion, however, could not be reimbursed to the different parties so far.

It may be mentioned here that the land for road construction is normally made available by L&DO free of cost to NDMC. In this case, however, L&DO has informed that there was no clause in the Lease Deed of these properties which would authorise the Government to resume land from them.

It is, therefore, requested that the matter may kindly be got examined and the quantum to be paid as compensation to the above property-holders may please be worked out and intimated so that the Committee can take suitable action in the matter. The total compensation would work out roughly to Rs. 1.17 cores if we were to go by the basis of cost of land claimed by the State Trading Corporation of India @ Rs. 1,000/- per sq.yd. It may also be mentioned that even after completion of the road ownership of these portions of land still rests with the different property owners. It will, therefore, be necessary also to decide the method for transferring this land to NDMC and funding the payment of compensation.

An early reply in the matter is requested as private property owners are pressing for early payment of compensation and some of them have gone to Court also.

Yours faithfully,

sd/-

Shrichand Chhabra

29. The aforesaid letter shows that some provision was made for payment of compensation towards the cost of land and the matter was also taken up with L&DO for resuming the land from various parties, but no decision could be taken. This primarily occurred on account of the fact that the L&DO could not take over the land since there was no provision in the Lease Deed as set out in the said letter. The NDMC admits as much as it is stated in the said letter "L&DO had informed that there was no clause in the Lease Deed of these properties which could authorize the Government to resume land from them". It is in view thereof that a request was made to get the issue of compensation to be paid examined, especially since "Even after completion of the road, ownership of these portions of land still rests with the different property owners. It will, therefore, be necessary also to decide the method for transferring this land to NDMC and funding the payment of compensation".

30. The aforesaid documents and the pleadings, thus, leave no manner of doubt that NDMC went to the site, demolished the structure and took over the land without there being any authorization in its favor of vesting the land in it or there being any acquisition proceedings for taking over of the land from the owners. It is much later that post-facto the actions of defendant No. 3 / NDMC were sought to be legalized in terms of the letter dated 23.03.1979. The cart was put before the horse.

31. The documents filed by NDMC itself, thus, belied the stand taken in the written statement that the take over of the land was in pursuance of any acquisition proceedings. The plea that the L&DO had handed over the land is not sustainable for two reasons - firstly, L&DO has washed its hands of the issue saying that it did nothing and never handed over the land to NDMC; and secondly, NDMC itself admits this position subsequently, but only seeks to legalize its illegality.

32. The Constitution guarantees a person the "Right to Property" under Article 300A of the Constitution, which reads as under:

RIGHT TO PROPERTY

300A. Persons not to be deprived of property save by authority of law.- No person shall be deprived of his property save by authority of law.

and in view of the Forty Fourth Amendment, such right ceases to be a "Fundamental Right", but is still a "Constitutional Right" as held by the Supreme Court in Bishamber Dayal Chandra Mohan etc. etc. v. State of U.P. and Ors. in the following terms:

41. There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. Article 300A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. such power can be exercised only by authority of law and not by a mere executive flat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300A. The word 'law' in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order, having the force of law, that is positive or State-made law....

33. A deprivation of property can take place, but only in accordance with the authority of law. The question is Was the plaintiff deprived of its property by such authority of law? The answer to this question is an emphatic "NO". NDMC one fine morning decided that in view of its scheme to widen the road, it will demolish the property of the plaintiff; it did so; it did not ask the L&DO for handing over the land to it; it did not ask the appropriate authority to issue any notification under the Land Acquisition Act; and it became a law unto on its own-self. This can hardly be countenanced. There was gross violation of the rule of law. The difference between a "dictatorship" and / or "anarchy" as compared to a "democracy" is fundamentally that a democracy is governed by the rule of law and it is this rule of law, which has been violated.

34. The present application has been filed under the provisions of Order XII Rule 6 of the Code. The said provision reads as under:

ORDER XII ADMISSIONS

Rule 6. Judgment on admissions. -(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.

35. It is not in doubt that part evidence of the plaintiff has been recorded. However, the question to be considered is whether the aforesaid provision can be invoked in such a situation. A bare reading of the provision would show that the requirement is that an admission can be made either in pleadings or "otherwise". The same may be orally or in writing. Such admissions may come at any stage of the suit. The powers are, thus, quite wide. The object is that where there are clear and unambiguous admissions, no purpose would be served by going through the motion of trial as a formality. Thus, what has to be seen is whether the case of the plaintiff has been unambiguously admitted in the pleadings and the documents on record.

36. Before proceeding with examining the material on record further, a Division Bench judgment of the Madhya Pradesh High Court in Shikharchand and Ors. v. Mst. Bari Bai and Ors. may be taken note of only to support the aforesaid conclusion that the documents on record can be taken note of de hors the pleadings for considering such an application under Order XII Rule 6 of the Code and the expression "otherwise" includes such documents. It was observed as under:

9. The next contention of the learned counsel for the appellants is that the plaintiff cannot succeed on a case not pleaded by him and that the admissions for basing a judgment under Order 12, Rule 6 must relate to facts stated in the plaint itself. As defined in Section 17 of the Evidence Act an admission is a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact. From the language of Order 12, Rule 6 of the Code of Civil Procedure it is clear that it is open to the Court to base a judgment on admission on the pleadings or otherwise. The word "otherwise" in the said provision clearly indicates that it is open to the Court to base the judgment on statements made by a party not only in the pleadings but also de hors the pleadings. Such admissions may be made either expressly or constructively.

10. In the instant case, it is the case of the defendants-appellants that under an agreement between the parties the plaintiffs had agreed to grant a lease for a further term of 10 years. We have already discussed above that this term has, according to the admissions made by the defendant himself, expired and, therefore, the defendant is no longer entitled to continue in possession.

11. The learned counsel for the appellants however urged that if the plaintiffs have to seek a decree on the basis of a cause of action arising out of the case as set up by the defendants it would be necessary for the plaintiffs to amend the plaint to seek the relief of eviction alternatively on the cause of action based on the defendants' pleadings and in that event it would be open to the defendant to set up a defense of his choice and unless this is done the Court cannot proceed to judgment under Order 12, Rule 6 of the Code of Civil Procedure. It is no doubt true that ordinarily the plaintiff is entitled to a relief only on the basis of the cause of action stated in the plaint but it is open to the Court in suitable cases to afford a relief on the basis of the case as set up by the defendant. In such a case there is no prejudice to the defendant because the relief legitimately springs from the case as set up by him.

12. In Mandli Prasad v. Ramcharan Lal AIR 1948 Nag 1 it was observed in paragraph 51 that the following two principles are well recognized (1) A suit must be tried in all its stages on the cause of action as it existed at the date of its commencement, (2) The Court may, however, in suitable cases take notice of events which have happened since the institution of the suit and afford relief to party on the basis of the altered conditions. This doctrine, it was pointed out, was of an exceptional character and it applied where it was necessary to base the decision of the Court on altered circumstances in order to shorten the litigation or to do complete justice between the parties. This doctrine was recently approved by this Court in Jagannath v. Smt. Sarjubai 1971 MPLJ (SN) 79.

13. In order to provide relief to the plaintiff on the basis of subsequent events the normal course for the plaintiff is to seek an amendment of the plaint in order to put the new facts in issue so as to give the other party an opportunity to meet them. But if the plaintiff is entitled to the whole or portion of the relief asked for in the plaint on the basis of certain new facts stated by the defendant in the pleadings or otherwise. It is open to the Court to base a judgment on such admission of the defendant even though the plaintiff has not expressly founded his cause of action on such facts by suitably amending his plaint because the defendant cannot be said to have been taken by surprise or prejudiced by giving the plaintiff a relief on the basis of his own case (Defendant's case). The object of procedural law is to promote justice and this must be kept in view while applying and interpreting rules of procedure.

...

15. We would like to point out that while trying the suit or other actions at law the Court is not to function helplessly in the routine manner. The primary object of a Court must be to do justice between the parties according to law and where at any stage of the suit, it appears that the plaintiff is entitled to the relief asked for by him on the basis of defendant's own admissions there would be no point in delaying the judgment unnecessarily with a view to decide all controversial points in the routine manner. We must say that the learned Judge of the lower Court rightly exercised his discretion in granting a decree to the plaintiff in this case and there is no justification for interference with it.

37. The aforesaid observations were made by M.N. Raina, J. and while concurring with the view, G.P. Singh, J. relied upon the observations of Sargant, J. in Ellis v. Allen (1914) Ch 904 to the effect that "The rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed". G.P. Singh, J. further observed as under:

18. ....

Rule 6 of Order 12, in my opinion, must bear the same construction as was put upon the corresponding English rule by Sargant, J. The words "either on the pleadings or otherwise" in rule 6 enable us not only to see the admissions made in pleadings or under Rules 1 to 4 of the same order but also admissions made elsewhere during the trial. We are, therefore, entitled to see the appellants' reply dated 10th March 1959 to the application for appointment of receiver as also their reply dated 29th June 1970 to the plaintiffs' application for judgment on admission. The written statement read in the light of the admissions in these documents leaves no manner of doubt that the fresh lease of 10 years pleaded by the appellants commenced from expiry of the original lease in January 1959 and expired in January 1969, and the appellants have thereafter no right whatsoever to remain in possession of the suit property. As regards the argument that no relief should be granted to the plaintiffs unless the plaint is amended. I have only to refer to the judgment of the Supreme Court in Firm Srinivas Ram Kumar v. Mahabir Prasad . In that case in a suit for specific performance the plaintiff alleged to have paid Rs. 30,000/- to the defendant as part of the price. The defendant denied the contract for sale and pleaded that Rs. 30,000/- were received by him on loan. The contract for sale was held to be not proved, but the Supreme Court decreed the suit for recovery of the loan of Rs. 30,000/- on the basis of admission made in the written statement, although the case of loan was not pleaded in the plaint. In that connection, the Court observed:

The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regard with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit.

38. The aforesaid provisions have been referred to only to set the controversy in this behalf at rest, though learned senior counsel for defendant No. 3 / NDMC did not seriously dispute that documents can be read while invoking the provisions of Order XII Rule 6 of the Code to advance the plea that it is only pleadings of the defendant against whom decree is being sought and the undisputed documents of the said defendant which can be referred to for invoking such a provision.

39. Learned senior counsel for defendant No. 3 / NDMC did not dispute that in view of the documents on record and the admitted case of defendant No. 3 / NDMC now emerging, the said defendant did not take over possession of the land in pursuance to any acquisition proceedings. In fact, no acquisition proceedings have taken place nor the L&DO handed over the land. However, what was sought to be emphasized was that the averments made in paras 8 and 9 of the written statement to the effect that defendant No. 3 / NDMC did not forcibly take possession of the land, but the same was voluntarily given by the plaintiff.

40. The submission appears to be based on a premise that the plaintiff had an altruistic motive in giving away the land to defendant No. 3 / NDMC! Be that as it may, a query was posed to the learned senior counsel even if this plea was to be accepted, how would it make a difference in the present case? Learned senior counsel contended that in such a situation there must be a notice for defendant No. 3 / NDMC to leave the land. I am unable to accept this plea. If the contention of defendant No. 3 / NDMC is that it occupied the land as a licensee without consideration and on account of some altruistic motive of the plaintiff, once the notices were issued by the plaintiff asking the defendant to restore the land or in the alternative to give compensation and the plaintiff further filed the suit, it can hardly be expected that defendant No. 3 / NDMC has a right to occupy the said land.

41. Learned counsel for defendant No. 3 / NDMC laid great emphasis on the fact that trial in the suit had begun and, thus, the stage for invoking the provisions of Order XII Rule 6 of the Code had passed. The submission, thus, advanced was that the full course of trial should be permitted to run and only thereafter the matter should be decided on merits. In this behalf, learned counsel relied upon the judgment in Punjab National Bank v. Kartar Singh 1997 Rajdhani Law Reporter (Note) 14. The said judgment is also reported with its full text as Punjab National Bank and Anr. v. S. Kartar Singh , but mistakenly has been referred to as the judgment of learned Single Judge of this Court instead of the Division Bench. This fact has also been verified from the Registry that the judgment is of the Division Bench. The said judgment is really an order of two paragraphs and reads as under:

We find that the judgment and decree which has been passed by the Court below is not justifiable in the facts and circumstances of the case inasmuch as issues in the matter have been framed and the plaintiff had completed the evidence which was to be led. It is at this stage that an application was filed under Order XII Rule 6 CPC, for decreeing the suit on the basis of the alleged admissions in the written statement.

2. Where evidence has started after parties are at issue and issues framed by the Court, it is necessary to go through the entire trial before pronouncing the judgment. The judgment and decree of the Court below is set aside and the matter is remanded for purposes of trial to the Court below. The trial shall commence from the stage where the matter was at the time of passing of impugned judgment and decree on the basis of an application under Order XII Rule 6 CPC.

42. Learned senior counsel for defendant No. 3 / NDMC emphasized that this laid down a proposition that in all cases where issues had been framed and evidence is started, the provisions of Order XII Rule 6 of the Code should not be invoked. I am unable to accept this plea of learned senior counsel as it is apparent from a bare reading of the Order that the same applies to the given facts of the case and it is not pronouncement on the principle of law.

43. The plea of learned senior counsel would, in fact, run contrary to the plain language of the Section. This view is fortified by a later Division Bench judgment of this Court in Parivar Seva Sansthan v. Dr. (Mrs.) Veena Kalra and Ors. which has considered the judgment in S. Kartar Singh"s case (supra). A similar plea was sought to be advanced by counsel for the appellant therein that as issues had already been framed, it was not permissible for the Court to have proceeded with the application under Order XII Rule 6 of the Code and dispose of the suit without adjudication on the issues. Reliance was placed on the judgment in S. Kartar Singh"s case (supra) and it was observed as under:

9. Bare perusal of the above rule shows that it confers very wide powers on the Court, to pronounce very wide powers on the Court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The Court can act on such admission, either on an application of any party or on its motion without determining the other questions. This provision is discretionary, which has to be exercised on well established principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be made the basis. Any plea raised against the contents of the documents only for delaying the trial being barred by the Sections 91 and 92 of the Evidence Act or other statutory provisions, can be ignored. These principles are well settled by catena of decisions. Reference in this regard be made to the decisions in Dudh Nath Pandey (dead by L.R.'s) v. Suresh Chandra Bhattasali (dead by L.R.'s) ; Atma Ram Properties Pvt. Ltd. v. Air India (1997) 65 DLT 533; Surjit Sachdev v. Kazakhstan Investment Services Pvt. Ltd. 1997 (2) AD (Delhi) 518; Abdul Hamid v. Charanjit Lal 1998 (2) DLT 476 and Lakshmikant Shreekant v. M.N. Dastur & Co. 1998 (71) DLT 564.

10. The use of the expression "any stage" in the said rule itself shows that the legislature's intent is to give it widest possible meaning. Thus merely because issues are framed cannot by itself deter the Court to pass the judgment on admission under Order, Rule 6 CPC. The case of PNB v. Kartar Singh (supra) runs into only two paragraphs without any discussion. Observations made in the case, referred to by the learned counsel, in support of his argument do not reflect any proposition of law. The order must have been passed on the facts of that case.

44. Learned counsel for the plaintiff to advance the submissions in support of the exercise of power under Order XII Rule 6 of the Code referred to judgment of the Apex Court in Uttam Singh Dugal and Co. Ltd. v. Union Bank of India and Ors. . In the said judgment, the Apex Court has taken the view that the said Rule applies also where there is a clear admission of facts in the face of which it is impossible for a party making such admission to succeed. It was observed in para 12 as under:

12. As to the object of the Order XII, Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that "where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." We should not unduly narrow down the meaning of this Rule as the objects is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.

45. The Apex Court has, thus, succinctly set out the object behind Order XII Rule 6 of the Code, which is to obtain speedy judgment to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. The object of any rule cannot be to unnecessarily prolong the legal proceedings.

46. If the aforesaid parameters are applied to the present case, I have no doubt that there is clear and unequivocal admissions of defendant No. 3 / NDMC arising from the written statement and the documents issued by the said defendant itself. In the written statement, a plea was sought to be taken that the land was required for a larger public purpose. There can be no dispute over this plea. However, the land must be acquired by due process of law. The written statement sought to set out a case as if L&DO had taken possession and given it to NDMC and that the same was in pursuance of any acquisition proceedings. It is now admitted that no acquisition proceedings have taken place till date and there is difference in perceptions between NDMC and L&DO as to who is liable and what action has to be taken. The documents on record show that as per the letter dated 10.02.1977 of NDMC (Exhibit P-14), the L&DO was being requested to make the necessary orders to allot the land in question to NDMC. Thus, even without allotment, NDMC had taken possession of the land. The letter dated 23.03.1979 (Exhibit P-15) of NDMC puts the complete controversy at rest. Defendant No. 3 / NDMC was seeking to determine by itself the compensation which would be payable for the land. The matter had been taken up with L&DO apparently even prior to taking over of the land, but it was found that the land could not be made available free as there was no such clause in the Lease Deed. Defendant No. 3 / NDMC has categorically admitted in the said letter that even after completion of the road, the ownership of the portion of land still vested with different property owners and that steps should be taken for transferring the land to NDMC. Though the complete letter has been extracted above to emphasise the aspect of this admission, it would be appropriate to refer to the specific admission which is as under:

... It may also be mentioned that even after completion of the road ownership of these portions of land still rests with the different property owners. It will, therefore, be necessary also to decide the method for transferring this land to NDMC and funding the payment of compensation.

47. I fail to appreciate as to what defense or plea of defendant No. 3 / NDMC survives in the face of such unequivocal admission.

48. I am, thus, of the considered view that in view of the pleadings and the documents on record, there can be no doubt that possession of the land of the plaintiff has been taken over by defendant No. 3 / NDMC without due process of law and without paying any compensation to the plaintiff. The proceedings under the Land Acquisition Act or under any other provision of any Act have not been initiated to either take over the land or to determine the compensation thereof.

49. The last aspect, which has to be considered, is the plea of public interest sought to be advanced by learned senior counsel for defendant No. 3 / NDMC. It is this plea, in fact, which weighed with the Court when the matter was being heard on 24.11.2005. The factum of the land being taken over from the plaintiff without due process of law was noted and since the consequence of decreeing the suit of the plaintiff would be the restoration of the possession of land to the plaintiff, the personal appearance of the Chairperson, NDMC was directed as it was felt that the public authority cannot be permitted to function in this fashion to deprive a citizen of his valuable land without following the due process of law. The Chairperson had assured that necessary decision would be taken and further two dates were given so that the meeting of NDMC could be held and an appropriate decision could be taken. It was, thus, naturally expected that either the said defendant would be able to settle the quantum of compensation with the plaintiff or would at least now take recourse to the proceedings of the Land Acquisition Act to acquire the land and pay market compensation to the plaintiff. The Chairperson appeared on 02.03.2006 and informed that NDMC was not willing to do anything and only wanted the matter to be heard and decided on merits. Thus, the hope of the Court that taking into consideration the element of larger public interest, a reasonable and legal solution would be found by defendant No. 3 / NDMC was belied.

50. The question of the alternative relief prayed for by the plaintiff is also to be considered, but learned counsel for the plaintiff submitted that the same can hardly meet the needs of today since even the amendment increasing the claim was made in the year 1996. Not only that, the direction sought was for the land to be acquired as per the provisions of the Land Acquisition Act, which defendant No. 3 / NDMC is not willing to accept. Learned senior counsel for defendant No. 3 / NDMC also took the stand that no compensation can be determined or awarded in the present proceedings as there has been no determination thereof.

51. The result of the aforesaid is that the application would have to be allowed. No doubt, the consequence would be the restoration of the land in question to the plaintiff being used as a road. However, the direction has become necessary as a consequence of the obdurate stand of defendant No. 3 / NDMC to invoke the provisions of law to legally acquire the land. Defendant No. 3 / NDMC has not only taken over the land of the plaintiff without due process of law, but also is not even willing to consider the larger public interest in the given situation to acquire the land. It is with great sense of pain and anguish that this Court has to note this attitude of the public authority like NDMC. The stand of defendant No. 3 / NDMC is that: We have committed an illegality; we will perpetuate the illegality; and we will take no action to redeem the position and clothe the action with legality.

52. Before parting with the matter, it may also be noticed that the plaintiff Trust has been battling the illegality of defendant No. 3 / NDMC for over three (3) decades and the suit itself is 27 years" old. A philanthropic organization has been made to run from pillar to post by a public authority like defendant No. 3 / NDMC which has violated all principles and cannone of law. Thus, the conduct of defendant No. 3 / NDMC must be deprecated in the strongest of terms.

53. The application is accordingly allowed.

CS (OS) No. 390/1979

54. The application of the plaintiff under Order XII Rule 6 of the Code having been allowed, a decree for possession is passed in favor of the plaintiff and against the defendants and more particularly defendant No. 3 / NDMC in respect of 0.836 acre of land originally forming part of plot No. 1, Block No. 124 subsequently known as plot No. 9, Jantar Mantar Road, New Delhi, the possession of which was taken over by defendant No. 3 / NDMC. The plaintiff shall also be entitled to costs.

55. Decree-sheet be drawn up accordingly.