Dcm Limited vs Dda
2009 Latest Caselaw 2322 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      RFA (OS) No. 17/1995


                                                Reserved on: March 5, 2009
                                             Date of Decision: May 29, 2009


DCM LIMITED                                           .......Appellant
                            Through : Mr. Sanjeev Anand and Ms. Kajal
                                      Chandra, Advocate for the appellant

                                    Versus

DDA                                                     .......Respondent
                            Through :   Ms. Shobhna Takiar, Advocate for
                                        the respondent



CORAM :

       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.     Whether Reporters of local papers may be allowed to see the
       judgment? Yes

2.     To be referred to the Reporter or not? Yes

3.     Whether the judgment should be reported in the Digest? Yes


SUDERSHAN KUMAR MISRA, J.

1. The appellant, DCM Limited, has instituted this Regular

First Appeal against a decision of a Single Judge of this Court whereby

an application filed by the respondent/defendant, Delhi Development

Authority (DDA), under Order 7 Rule 11 of the Code of Civil Procedure,

was allowed and consequently, the plaint in suit No. 1085 of 1991 filed

by the appellant stood rejected.

2. The appellant had instituted Suit No. 1085 of 1991 against

the DDA praying for a declaration and injunction in respect of land

situated in Baghraoji, Delhi. In that suit, the appellant contended that

some other land owned by it was taken over by the Delhi

Improvement Trust since it was required for re-alignment of a drain

known as daryai nala, and the appellant was allotted the suit land in

exchange. Actual physical possession of that land was also stated to

have been handed over to the appellant on two dates in 1942 and

1943. It was contended that consequently, ever since 1943, the

appellant has been in continuous, exclusive and uninterrupted

possession and enjoyment of the suit land, as its owner. The appellant

further alleged that despite this, ever since Ist September, 1955, the

appellant‟s possession was sought to be disturbed, first by the Delhi

Improvement Trust and thereafter by its successor, the DDA on the

specious ground that the appellant was in unauthorized possession of

the suit land and, therefore, it was liable to eviction and damages. In

its suit, the appellant impugned the validity of the proceedings

initiated by the DDA against it under the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 (Public Premises Act) on the

allegation that the said proceedings are without jurisdiction since it is

in occupation of the suit premises as the owner thereof, and that in

the alternative, it has become the owner of the suit property by

adverse possession.

3. The aforesaid suit of the appellant contained no averment

of due service of notice under Section 53-B of the Delhi Development

Act, 1957. In its written statement filed in response to the plaint, the

DDA raised no defence, nor did it take any objection to the

maintainability of the plaint in the absence of the requisite notice

under Section 53-B of the Delhi Development Act.

4. Along with its suit, the appellant had also moved an

interim application praying for stay of eviction proceedings pending

before the Estate Officer under the Public Premises Act. Stay of

dispossession was also sought. On 24th July, 1991, the Single Judge

directed that possession of the petitioner shall not be disturbed until

further orders. This interim order was made absolute on 23rd March,

1992. It was only thereafter that the respondent filed its written

statement.

5. After filing its written statement, the DDA moved I.A. No.

11206 of 1992 under Order 7 Rule 11 read with Section 151 of the

Code of Civil Procedure praying that the plaint be rejected, inter alia,

on the ground that the appellant had failed to give the requisite notice

under Section 53-B of the Delhi Development Act to the DDA before

instituting the suit.

6. In reply to this application the appellant stated, inter alia,

that since no plea in bar had been raised by the DDA in its written

statement on the ground of non-service of requisite notice under

Section 53-B of the DDA Act, it must be presumed that the DDA had

waived the requirement of notice under Section 53-B of the Delhi

Development Act. In addition, it was also averred that the reply filed

by the appellant on 8th February, 1990 in the ongoing proceedings

under the Public Premises Act had spelt out its entire claim in suit and,

therefore, the DDA was fully aware of its claim ever since.

Consequently, in view of its prior knowledge of the appellant‟s claim,

the DDA was not put to any disadvantage by the lack of notice under

Section 53-B of the Delhi Development Act. It was contended that

under the circumstances, no useful purpose would have been served

by issuing the said notice to the DDA.

7. About six months after the aforesaid application under

Order 7 Rule 11 read with Section 151 CPC was filed by the DDA, and

while it was pending disposal, the appellant moved the Court for leave

to amend the plaint. The only amendment sought related to the

description of the suit property. This was allowed and an appropriately

amended plaint was filed. It appears that in response to the amended

plaint, whereby the description of the suit property was suitably

amended, the DDA was in turn permitted to amend its own pleading to

enable it to respond to the appellant‟s aforesaid amendment, by filing

an amended written statement. However, in the amended written

statement, instead of confining itself to traversing that portion of the

plaint which was amended, the DDA also included in it a preliminary

objection with regard to the non-service of the notice under Section

53-B of the Delhi Development Act by the appellant.

8. Ultimately, the aforesaid application of the DDA under

Order 7 Rule 11 CPC was allowed by the impugned order on 8th

August, 1995 by the Single Judge on the ground that notice

contemplated under Section 53-B of the Delhi Development Act had

not been given by the appellant to the respondent.

9. By the impugned order, the learned Single Judge held that

the notice contemplated in Section 53-B of the Delhi Development Act

is similar to the notice mandated under Section 80 of the Code of Civil

Procedure in the case of suits filed against a Government or public

authorities, and therefore, a suit that does not comply with, "such like"

provisions, cannot be entertained by any court and deserves rejection

under Order 7 Rule 11 CPC. Although, there is no discussion on the

point, it was also held that, " mere failure to raise objection in the

written statement cannot per se be regarded as a waiver." The

impugned judgment also noticed that the objection regarding this

aspect of the matter has been raised by the DDA in its application

under Order 7 Rule 11 CPC; and that since the DDA had also raised

the objection with regard to the non-compliance of Section 53-B of the

Delhi Development Act in its amended written statement filed in

response to the amended plaint, therefore, it cannot be said that this

objection has in fact not been raised.

10. The appellant has based its appeal on three grounds. The

first is that the provisions of Section 53-B of the Delhi Development

Act are not applicable to the instant case and, therefore, the question

of any prior notice in terms of the said provision does not arise.

According to the appellant, the subject matter of the suit is a

declaration of the appellant‟s existing rights in the suit property as the

owner in rightful possession of the same in view of the initiation of

proceedings for eviction of the appellant by the DDA under the Public

Premises Act.

11. The second ground, which is taken as an alternative to the

first, is that even it is assumed that prior notice was required to be

given under Section 53-B of the Delhi Development Act by the

appellant to the DDA; in the facts and circumstances of this case, no

such notice was necessary because its claim to the suit property had

been spelt out in its reply of 8th February, 1990 to the notice received

by it from the Estate Officer under proceedings commenced at the

instance of the DDA itself under the Public Premises Act.

Consequently, the DDA was fully aware of the appellant‟s grievance.

In this behalf, it is further contended that the object of issuing notice

under Section 53-B of the Delhi Development Act is akin to that of

Section 80 CPC, which is merely to make the concerned Authority

aware of nature of the dispute and also to give it an opportunity to

avoid litigation by examining the matter in advance. It is submitted

that therefore the reply filed by the appellant on 8 th February, 1990

before the Estate Officer, putting forth the claim of the appellant to the

suit land whilst praying that the notice dated 23 rd January, 1990 issued

to the appellant under Section 4 of the Public Premises Act, be

withdrawn, and the proceedings be dropped, constituted sufficient

notice and amounted to adequate compliance of Section 53-B of the

Delhi Development Act.

12. Finally, it is contended that since the DDA had failed to

raise any objection while contesting the prayer for interim orders, or

even in its written statement, with regard to non-compliance of

Section 53-B of the Delhi Development Act by the appellant prior to

institution of the suit, the DDA has in effect waived the requirement of

notice contemplated under Section 53-B of the Delhi Development Act.

In this context, it was also contended that the amended written

statement was filed by the DDA only in response to the amendment in

the suit carried out by the appellant, which was limited to an

amendment in the description of the suit property and nothing more.

It was contended that, therefore, the DDA could only file its traverse,

if any, to that amendment in the suit and it was not open to the DDA

to re-file the entire written statement afresh after reconsidering its

defence or to raise any fresh plea, unconnected with the amendment

in the plaint, such as the plea in bar of Section 53-B of Delhi

Development Act, at that belated stage.

13. On the other hand, the DDA contends that the cause of

action for the institution of the suit by the appellant was in fact the

denial of title of the appellants to the suit property in question by the

DDA, and the consequent initiation of proceedings by the DDA for

eviction of the appellant under the Public Premises Act, was merely the

procedure adopted by the DDA in recovering what it considered was its

own land under the wrongful occupation of the appellants who,

according to it, are unauthorized occupants. It is contended that in

the light of these facts, the impugned action of the DDA are acts done

or purporting to have been done in pursuance of the Delhi

Development Act. Therefore the provisions of Section 53-B of the

Delhi Development Act would be attracted in this case also. It is also

contended that since Section 53-B(3) relaxes the rigour of Section 53-

B(1) in those cases where, "the only relief claimed is an injunction of

which the object would be defeated by the giving of the notice or the

postponement of the institution of the suit", it must be presumed that

in all other suits, including the one filed by the appellant in the instant

case, pre-suit notice contemplated under Section 53-B is a must, and

that Section 53-B of the Delhi Development Act admits to no exception

or waiver.

14. Turning to the first ground urged by the appellants to the

effect that under the facts and circumstances, Section 53-B of the

Delhi Development Act is not applicable to the instant case because,

according to the appellants, the subject matter of the suit is not with

respect to any act done or purported to have been done in pursuance

of the DDA Act or any rule or regulation made thereunder. The

relevant portion of Section 53B(1) of the DDA Act which operates as a

bar to any suit that is filed before the expiration of two months after

notice in writing has been given to the Authority, is limited to a suit

which is, "in respect of any Act done or purporting to have been done

in pursuance of this Act or any rule or regulation made thereunder

......." . It follows that for the provisions of the Section to apply, the

impugned actions could have been such that they are stated to have

been done or purported to be done, "in pursuance of", the DDA Act.

In this context, it is important to note that, under Section 3 of that

Act, the Central Government has been empowered to constitute the

DDA for carrying out the purposes of the Act; and under Section 6

thereof, the objects of the Authority are stated thus:

"6. Objects of the Authority - The objects of the Authority shall be to promote and secure the development of Delhi according to plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for

purposes of such development and for purposes incidental thereto;

Provided that save as provided in this Act, nothing contained in this Act shall be constructed as authorizing the disregard by the Authority of any law for the time being in force."

It is, therefore, clear that the DDA has been set up with the object of

promoting and securing the development of Delhi. With this end in

view, the Authority is empowered not only to, "acquire hold or

manage" but also to take all steps that are either necessary or

expedient for promoting and securing the development of Delhi as well

as for purposes incidental thereto. At the same time, whilst carrying

out these purposes, the Authority is not permitted to disregard any law

for the time being in force. From this it follows that once the Authority

is of the view that the land in suit is government land that was

originally placed under the control and management of the Delhi

Improvement Trust and thereafter with the DDA and it finds that the

appellant is currently in possession of the said land, it is clearly

empowered under the Delhi Development Act, 1957 to take all steps,

not only to preserve its possession, but also to recover the same from

anyone who, in its opinion, happens to be in unauthorized possession

of the same. It is with this end in view that the DDA had resorted to

the Public Premises Act.

15. The Public Premises Act shows that the same was enacted,

"to provide for the eviction of unauthorized occupants from public

premises and for certain incidental matters." In this context, Section

2(3)(ii) defines „public premises‟ to also include any premises

belonging to the DDA. It follows, therefore, that all premises which

the DDA claims it owns shall fall within the definition of „public

premises‟ in respect of which it can seek eviction under that Act after

satisfying the Estate Officer in this behalf. A perusal of the Delhi

Development Act shows that there are no provisions contained in the

said Act empowering the Authority to evict encroachers or other

unauthorized occupants from its premises. On the other hand, the

Public Premises Act specifically defines properties belonging to the

DDA as public premises and provides for a procedure for eviction of

unauthorized occupants from such premises. The Public Premises Act,

is therefore law for the time being in force that lays down a procedure

for eviction of unauthorized occupants from any premises belonging to

the DDA.

16. Looking to the objects of the Authority as set down in

Section 6 of the DDA Act, 1957, it is obvious that the Authority is

empowered generally to do all acts which are necessary not only for

the purposes of securing the development of Delhi, but for all

purposes, "incidental thereto". To our mind, since all lands are vested

in the DDA for the planned development of Delhi and the DDA is

obliged, inter alia, to hold and manage such property for that purpose;

it goes without saying that the power to secure the eviction of

unauthorized occupants or encroachers from such lands would

certainly be a purpose which is incidental to its primary purpose of

promoting and securing the development of Delhi according to plan.

At the same time, it is also noteworthy that, as provided by Section 6,

nothing in the Act can be construed as authorizing the Authority to

disregard any law for the time being in force. Public Premises Act, is

one such law. We, therefore, have no hesitation in holding that the

act of the DDA in instituting the proceedings under the Public Premises

Act to secure the eviction of the appellants from the suit lands is an

act which has been done in pursuance of the Delhi Development Act

itself with a view to meeting the objectives for which the DDA was set

up, and which have been specified under Section 6 of the Delhi

Development Act. Consequently, it cannot be said that the suit

instituted by the appellant against the DDA is not in respect of any act

done or purported to be done by the DDA in pursuance of this Act.

Looked at from this stand point alone, the requirements of Section 53-

B(1) of the Delhi Development Act, were attracted to this case and

requisite notice contemplated under that Section should have been

given by the appellant to the respondent.

17. In support of his case that Section 53-B (1) had no

application, counsel for the appellant has placed reliance on the

decision of Supreme Court in the case of Devi Singh vs. Municipal

Corporation, Hyderabad AIR 1972 Supreme Court 2510. That case

turned upon the construction of Section 56 and 59 of the Hyderabad

Municipal Corporation Act, 1950 to decide whether or not prior notice

of any suit praying for an injunction against the Hyderabad

Municipality, restraining it from interfering with the plaintiff‟s peaceful

enjoyment and possession of the suit property, was necessary.

Section 59 of the Hyderabad Municipal Corporation Act

empowered the Corporation, "to make provision for public parks,

gardens, play-grounds and recreation grounds". Section 56 of the Act

empowered the Corporation, "to remove obstructions upon public

premises". In that case, Devi Singh averred that the property was his

ancestral property which was owned and possessed by him and that

the Corporation had been obstructing his possession for some time

before the institution of the suit and that the Corporation intended to

take over possession of that property. There, on facts, the Supreme

Court had found that, "it was never the case of the plaintiff that the

defendant corporation was acting or purporting to act under the

provisions of the Act". Here, in the instant case, the suit brought by

the appellant recognizes the fact that the DDA is seeking its eviction

under the Public Premises Act. Since we have held in the preceding

paragraphs that the action of the DDA in instituting proceedings under

the Public Premises Act amounts to an act done in pursuance of the

Delhi Development Act, therefore, it cannot be said that there is no

averment, or that it is not the case of the appellant/plaintiff, that the

suit has been brought in respect of acts done or purporting to have

been done in pursuance of the Delhi Development Act, 1957. The

factual position being quite different, not only with regard to the

relevant provisions of the Delhi Development Act when compared with

those of the Hyderabad Municipal Corporation Act, but also with regard

to the scope of the averments made in the instant suit, we do not

think that this authority is of much avail to the appellant.

18. The next case relied upon by the appellant is the decision

of the Single Judge of the Orissa High Court in B.Baliarsing and

another vs. Bamdev Misra and others AIR 1971 Orissa 291. This

authority also is not of much use to the appellants since that case was

concerned with a suit brought consequent upon an act of trespass by

the Corporation and that Court had come to the conclusion in

paragraph 9 thereof that, "an act of trespass cannot be construed as

an act done or purported to have been done in execution or intended

execution of the provisions of the Act, Rules or Regulations etc. as

those provisions do not envisage or authorize acts of trespass." We

need not go into the correctness or otherwise of this authority since

we are of the view that the same does not have any application to the

instant case where the cause of action in favour of the appellant to file

the instant suit is not a trespass by DDA. It is the denial of title by

DDA predicated on the claim that the suit property belongs to DDA and

the consequent institution of proceedings by the DDA under the Public

Premises Act to recover possession of the same. This authority,

therefore, has no application to the instant suit.

19. Counsel for the appellant then relied on the decision of a

Single Judge of this Court in, Rattan Singh and others vs. Delhi

Municipal Corporation 1973, Municipalities and Corporation

Cases 321. In this case, the plaintiff had sought an injunction on the

threat of the Delhi Municipal Corporation to recover certain taxes

which, according to the plaintiff, were not recoverable. Under the

circumstances, the Court held that no notice under Section 478 of the

Delhi Municipal Corporation Act was required before filing the suit for

the reason that notice under that Section is mandatory only in cases

where something has in fact been done or is purported to have been

done in pursuance of the Act, whereas on the facts, the impugned

action was merely a threat of doing an act which was sought to be

injuncted and, therefore, it could not be said that there was any act

that had been done or purported to be done in terms of Section 478(i)

of the Delhi Municipal Corporation Act. Here, in this suit, the facts are

quite different. Consequently, this authority is also of not much help

to the appellants. Similarly, the other authorities also relied upon by

learned counsel for the appellant are distinguishable and, in our

opinion, are not relevant to this case with regard to the proposition

that the provisions of Section 53-B of the Delhi Development Act are

not attracted to the instant case. We therefore hold that the provisions

of Section 53-B of that Act are applicable to the instant case also.

20. The next contention of the appellant‟s counsel is that even

if it is assumed that Section 53-B was applicable, nevertheless, no

notice under Section 53-B of the Delhi Development Act was necessary

under the circumstances because the DDA had complete knowledge of

the appellant‟s claim in respect of the suit premises and, therefore, no

useful purpose would have been served by issuing the requisite notice

under Section 53-B. In support, he has referred to a decision of this

Court in Nehru Place Hotels vs. DDA etc. 1991 Rajdhani Law

Reporter 389. There, it was held by a Single Judge of this Court that

in a case where notice is issued to the DDA on a writ petition filed by a

party, and that writ petition is thereafter withdrawn with permission to

institute a suit against the DDA instead, the DDA cannot oppose the

suit for lack of statutory notice as required by Section 53-B because all

the requirements of the notice are contained in the earlier writ petition

instituted by the party, and on service of notice in that writ petition,

the defendant DDA was fully aware of the plaintiff‟s claim. In arriving

at its conclusion, the Court relied upon a decision of the Madras High

Court in N.Parameswara vs. State AIR 1986 Madras 126 where

that Court had held that after the dismissal of a writ petition with

permission to the petitioner to seek his remedy by way of a suit, the

plaintiff was not required to serve a notice under Section 80 of the

Civil Procedure Code before filing that suit since the notice served in

the writ petition amounted to sufficient compliance of Section 80 CPC.

In this context, the Court also held, inter alia, in para 23 as follows:

"After all the purpose of giving notice under Section 80 of the CPC or under Section 53-B of the Act is to enable the authorities to examine the claim of the person giving the notice so that the authorities could settle the said claim without the said person being made to institute legal proceedings. In the State Bank of Patiala vs. M/s Geeta Iron & Brass Works Ltd., AIR 1978 SC 1608, it was held that a statutory notice of the proposed action under Section 80 of the CPC is intended to alert a State to negotiate a just settlement or at least for the courtesy to tell the potential suitor as to why the claim is being resisted. In Ghanshyam Dass vs. Dominion of India AIR 1984 SC 1004, it was observed by the Supreme Court that the point to be considered is whether a notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation."

21. Similarly, in the case of Yashod Kumari & Anr. Vs. MCD

& Ors. 111(2004) Delhi Law Times 33, a Division Bench of this

Court has held that the object of a notice under Section 53-B of the

Delhi Development Act, 1957 is the same as that of Section 80 of CPC;

which is to bring the plaintiff‟s claim to the notice of the Authority so

that it may make up its mind whether to concede the claim or to

contest it. In that matter, the provisions of both Sections 80 CPC as

well as Section 53-B of the Delhi Development Act, 1957 came up for

consideration. The plaintiffs contended that since no objection had

been taken to the non-issuance of the requisite notice under Section

80 CPC by the defendants, and since the suit had proceeded and an ad

interim injunction had also been granted, therefore, the requirement of

notice under Section 80 CPC be deemed to be waived. It was also

prayed that under the circumstances, leave may be granted under

Section 80(2) of the CPC to institute the suit without service of

requisite notice. The Court held that the object of a notice under

Section 80 is to afford the government an opportunity to examine the

nature of the claim and if it thinks fit to settle the claim and to avoid

unnecessary litigation. On the facts, the court held that the plaintiffs‟

application under Section 80(2) CPC praying for leave to institute the

suit without issuing notice under Section 80 CPC ought to have been

disposed of by the trial court. At the same time, the court also held

that in view of the fact that the suit had already been registered, and

an ex-parte interim order was passed in the suit, it can be presumed

that the court had impliedly granted leave to institute that suit or that

the notice stood waived on the facts and circumstances of the case.

As regards, the non-issuance of notice under Section 53-B of the Delhi

Development Act, the Court held that although it is true that Section

53-B of the Delhi Development Act does not have any provision

analogous to Section 80(2) of CPC, however, since the Court had

registered the suit and granted stay, and the respondents had

contested it all through, notice under Section 53-B should be deemed

to be waived for the reason that the purpose of notice both under

Section 53-B of the Delhi Development Act as well as under Section 80

of CPC is the same, which is, to bring the claim to the notice of the

Authority concerned so that it may either contest it or concede the

same. It felt that once the authority concerned had contested the

matter on merits even at a preliminary stage, it could not complain of

non-service of notice under Section 53-B thereafter.

22. This decision has also been noticed by another Division

Bench of this Court in Smt. Prinda Punchi and Anr. Vs. Municipal

Corporation of Delhi and Ors. (2005) 4 Apex Decisions (Delhi)

639 cited by learned counsel for the respondent for the proposition

that since there is no provision under the Delhi Development Act akin

to Section 80(2) of the CPC for leave of the Court to bring a suit

without prior notice, therefore, the appellant could not have filed the

instant suit against the DDA without giving the notice required under

Section 53-B of the Delhi Development Act. In paragraph 26 of the

said decision, the Division Bench has sought to distinguish the

aforesaid decision in Yashod Kumari's case (supra), inter alia, on

the ground that in Smt. Prinda Punchi's case, the defendants had

raised a specific objection with regard to the want of statutory notice

and a preliminary issue to that effect was also framed by the trial

court, consequently, there could be no plea of waiver of notice. It,

therefore, held that,

"In the facts of the present case it cannot be said that there could be waiver of any such notice as provided for under section 53-B of the Delhi Development Act. Objection was taken and issue was framed thereon."

23. In the instant case, on the facts we find that the

respondent defendant had duly filed its written statement in the suit

without raising any objection to the maintainability of the plaint due to

the absence of the requisite notice contemplated under Section 53-B of

the Delhi Development Act. Furthermore, this written statement only

came to be filed after 23rd March, 1992 when the interim orders

staying dispossession were made absolute. Thereafter, the respondent

moved an application under Order 7 Rule 11 of the Code of Civil

Procedure praying that the plaint be rejected on the ground of non-

compliance of Section 53-B. In reply, the appellant took the stand

that since no such plea had been raised by the respondent in its

written statement, it should be presumed that the respondent had

waived the requirement of notice under Section 53-B.

24. It appears that thereafter respondent got an opportunity to

file an amended written statement in response to the amended plaint

that was permitted to be filed by the court. The amendment sought

by the plaintiff was only to the extent of description of the property in

suit and, therefore, the respondent could have filed its amended

written statement only with regard to that fact. (See, Gurdial Singh

& Ors. Vs. Raj Kumar Aneja & Ors., AIR 2002 SC 1003).

However, the respondent appears to have treated this as a fortuitous

circumstance enabling it to amend its entire written statement. At the

bar, nothing has been averred by the counsel for the respondent in

respect of the action of the respondent in taking further defences in its

amended written statement, unconnected to the scope and nature of

the amendments carried out by the plaintiff in its suit after obtaining

permission from the court. In this regard, we feel that the learned

Single Judge was in error in countenancing the objection to non-

compliance of Section 53-B of the Delhi Development Act raised for the

first time by the respondent in its amended written statement. In fact,

to our mind, the respondent could not have amended its written

statement to that effect without permission of the court. Since no

such permission was sought, that defence cannot be looked at.

Consequently, the position remains that no defence was taken by the

respondent with regard to Section 53-B and the impugned decision of

the learned Single Judge to the extent that it concludes that there is a

specific objection taken by the respondent with regard to Section 53-B

of the Delhi Development Act in its written statement, must be set

aside. No authority has been cited before us to justify the action of

the respondent/defendant in taking additional grounds of defence in its

amended written statement that are wholly unconnected with the

amendment in the plaint even though it was filed by the respondent in

response to a specific amendment carried out, with permission, by the

plaintiff in his suit.

25. Under the circumstances, we agree with the contention of

the appellant that the objection under Section 53-B of the Act, even if

available, must be deemed to have been waived by it since no such

defence was raised in the written statement and the proceedings,

including the confirmation of interim orders, was allowed to continue

without any such objection being raised with regard to the

maintainability of the suit by the defendant.

26. In addition, we also feel that in view of the fact that

proceedings under the Public Premises Act initiated by the

respondent/defendant itself were going on, and plaintiff/appellant had

stated its entire case before the Estate Officer in response to those

proceedings, therefore, on a parity of reasoning adopted by this Court

in Nehru Place Hotels case (supra) as also the decision of Yashod

Kumari‟s case (supra), it could not be said that the DDA was unaware

of the appellant‟s case. We might also notice the decision in

Karamvir Singh vs. DDA 148 (2008) Delhi Law Times 498, where

also, a similar view has been expressed. In that case, the writ petition

filed by the plaintiff was dismissed with liberty to the petitioner to

approach the civil court since the writ court felt that disputed

questions of fact were involved which could not be decided except by

adducing evidence. The petitioner then instituted a Civil Suit. The

defendant/DDA objected to the maintainability of that suit in its

written statement on the ground that mandatory notice under Section

53-B of the Delhi Development Act had not been issued. In that case

also, reliance is placed on the decision in Nehru Place Hotel's case

(supra) to hold that no previous notice was required since, "it is not as

if the DDA or the other defendants were unaware of the plaintiff‟s

grievance; they were parties to the writ petition which was disposed of

on 4th August, 2002 permitting the present plaintiff to file a suit."

Thus, in that case, under the aforesaid circumstances, notice under

Section 53-B was held to be unnecessary and even a specific objection

raised by the defendant in its written statement in this behalf was

ignored. We feel that the principles upon which the aforesaid decisions

have been rendered by this Court are equally applicable to a situation

where the entire case of the plaintiff as regards his claim to the suit

property has been specifically and clearly spelt out in ongoing

proceedings under the Public Premises Act initiated by the defendant

itself for the reason that, under these circumstances, one can safely

assume that the DDA had full knowledge of all the relevant particulars

of the plaintiff‟s claim to the land in question and, therefore, the object

and purpose of prior notice of the plaintiff‟s claim as envisaged under

Section 53-B of the Delhi Development Act stood satisfied.

27. Under the circumstances, the appeal is allowed. The

impugned order dated 8th August, 1995 passed in I.A. No. 11206 of

1992 in suit No. 1085 of 1991 is set aside and the suit is restored to

its original number and status.

28. The suit be listed for directions before the learned Single

Judge on 15.7.2009 for further proceedings.

Sudershan Kumar Misra, J.

Sanjay Kishan Kaul, J.

May 29, 2009 sl