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PETITIONER: MUNICIPAL CORPORATION OF THE  CITY OF JABALPUR

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 16/04/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1966 AIR  837            1963 SCR  (2) 135

ACT: Pleading--Strict  adherence  necessary--Amendment  must   be formally   made--Petitioner  pleading  transfer   by   State Government--Counsel  for  respondent conceding  transfer  by Central Government--Duty of Court.

HEADNOTE: Acting  under s. 38 (1) (f) of the C. P. Municipalities  Act 1922,  the Provincial Government, with the sanction  of  the Government of India, transferred certain Nazul Lands to  the Municipal Committee to be used for the purposes of a garden. The 1922 Act was repealed by the City of Jabalpur  Corporat- ion Act, 1948, which replaced the Municipal Committee by the Jabalpur  Corporation.  Under s. 81 of the  Corporation  Act the State Government issued a notification notifying that  a portion  of  this  land  needed for  making  a  road stood divested from the Corporation.  The Corporation filed a writ petition before the High Court challenging the notification. On  a concession made by the counsel for the State that  the transfer of the land had been made by the Central Government the  High  Court  held that the notification  could  not  be sustained under s. 81 which was applicable only to transfers made  by the State Government But the High  Court  sustained the  notification  under  s. 38 of the  repealed  1922  Act, relying upon the saving in s. 3 (1) of the Corporation Act. Held, that the transfer of the land in fact had been made by the  State (Provincial) Government and the notification  was fully   justified  by  the  provisions  of  s.  81  of   the Corporation Act.  There was no basis on which the High Court could have based its assumption that the transfer was by the Central  Government.  The allegations in the  writ  petition proceeded  on the basis that the transfer was by  the  State Government.   On  the pleadings the appellant ought  not  to have  been  permitted to put forward a case that  the  State Government  was  not  the transferor of  the  property.   To confine a party to his pleadings particularly in respect  of facts,  is dictated not merely by the need  for  orderliness but  for  avoiding  surprise to the other  party.   Save  in exceptional cases, parties should be held strictly to  their

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pleadings,  and  if there is need to amend them,  the  Court should insist on formal amendments being affected. 136 in the present case, on the terms of the order  transferring the  land  it was clear that the transfer was  made  by  the Provincial Government.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 212 of 1962. Appeal  by special leave from the judgment and  order  dated February 3, 1961, of the Madhya Pradesh High Court in M.  P. No. 139 of 1960. N.   C. Chatterjee and D. N. Mukherjee, for appellants. B.   Sen and 1. N. Shroff, for respondent No. 1. B.   P. Maheshwari, for respondent No. 2. 1962.  April 16.  The Judgment of the Court was delivered by AYYANGAR,  J.-By a communication dated April 5,  1930,  from the  Secretary  to the Government of the  Central  Provinces addressed  to  the Commissioner Jabalpur  Division,  certain Nazul land was made available to the Municipal Committee  of Jabalpur.  In this letter the Secretary Stated               "I am directed by the Governor in Council with               the  previous  sanction of the  Government  of               India  to communicate the following orders  of               the Government of the Central Provinces :-               Under   Section   38(1)(f)  of   the   Central               Provinces Municipalities Act, 1922, Government               is  pleased  to  transfer  to  the   Municipal               Committee,  Jubbiilpore, free of  premium  and               ground         rent         nazul         land               measuring...............  of  the   Jabbulpore               town.   The land shall vest in  the  Municipal               Committee subject to the following  conditions               :               (1)   The  land  shall be used  only  for  the               purpose of a garden and no part of it               137               shall  be used for any other  purpose  without               the previous sanction of the Local Government.               (2)   If condition 1 is broken the land  shall               be  liable to be divested under section  38(2)               and resumed by Government .and no compensation               whatsoever  shall be payable to the  Municipal               Committee upon such resumption.               (3)   If  the land. is resumed  by  Government               for  any Government purpose the provisions  of               Section 38(3) will apply."               Sub-sections  (2)&  (3) of s. 38  referred  to               ran:               "38.(2)   The   State   Government   may,   by               notification,  direct that any property  which               has vested in the committee shall cease to  be               so  vested, and thereupon the property  speci-               fied in the notification shall cease to be  so               vested and the State Government may pass  such               orders as it thinks fit regarding the disposal               and management of such property.               (3)   Where   any   immovable   property    is               transferred,  otherwise than by sales, by  the               State  Government to a committee,  for  public               purpose, it shall be deemed to be a  condition               of such transfer, unless specially provided to               the contrary, that, should the property be  at

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             any  time  resumed  by  the  Government,   the               compensation  payable therefor shall  notwith-               standing any thing to the contrary in the Land               Acquisition Act, 1894 (1 of 1894), in no  case               exceed the amount, if any, paid to the Govern-               ment for the transfer, together with the  cost               or the present value, whichever shall be less,               of  any  buildings  created  or  other   works               executed on the land by the committee." 138 The  land  thus  obtained was being used  by  the  Municipal Committee  in accordance with the condition of the  transfer as a public garden. The  Central Provinces & Berar Municipalities Act, 1922  was repealed  by the City of Jabalpur Corporation Act, 1948  (M. P.  III of 1950).  Under this later enactment the  Municipal Committee  was substituted by the Jabalpur Corporation,  the appellant   before   us  and  all   properties-movable   and immovable-which  were  previously vested  in  the  Municipal Committee were transferred to and vested in the  Corporation (vide s. 71 of the Jabalpur Corporation Act), and by  reason of  the  vesting,  the appellant was  in  enjoyment  of  the transferred property. A  hostel  or  boarding house of  a  public  institution-the Hitkarni  Mahavidyalaya  had  been  located  in  a  building constructed to the north of the Public Garden maintained  by the  Corporation.   A public road ran to the  south  of  the Public  Garden and as there was not a proper and  convenient access  from  the  Boarding-house to the  public  road,  the authorities  of  the  Mahavidyalaya  approached  the   State Government  to obtain for them a narrow strip of land  about 20  ft. wide at the eastern extremity of the  Public  Garden for the purpose of laying a public road which would  provide this   access.   The  Government  considered  this   request reasonable and forwarded this request of the  Mahavidyalaya, with a covering letter of their own dated April 28, 1959, to the  Corporation  for  being  complied  with.-  The  request however  was not acceded to and thereafter on  February  11, 1960, the Government of Madhya Pradesh issued a notification under  s. 81 of the Jabalpur Corporation Act notifying  that the strip of land needed for making a road measuring 3,  940 sq. ft.  "stood divested" from the Corporation., .Section 81 runs in these terms 139               "81.  The Provincial Government may resume any               immovable   property,   transferred   to   the               Corporation   by  itself  or  by   any   local               authority, where such property is required for               a  public  purpose,  without  payment  of  any               compensation other than the amount paid by the               Corporation  for such transfer and the  market               value  at  the  date  of  resumption  of   any               buildings  or  works subsequently  reacted  or               executed  thereon by the Corporation with  the               intention that such buildings or works  should               be permanent :               Provided  that compensation need not  be  paid               for buildings or works constructed or  erected               in   contravention   of  the  terms   of   the               transfer."               (The  expression ’Provincial  Government’  was               amended  so as to read ’State  Government’  by               the Adaptation of Laws Order). Complaining  that this notification was illegal  and  beyond the  jurisdiction  of  the  State  Government  the  Jabalpur

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Corporation  moved  the  High Court of  Madhya  Pradesh  for relief  under Art-. 826 of the Constitution praying for  the issue  of the writ of mandamus quashing the notification  of the  government as without jurisdiction and  forbidding  the enforcement  of  that order.  This was opposed both  by  the State  of Madhya Pradesh as well as the Hitkarini Sabha  and the learned Judges dismissed this petition.  An  application for a certificate of fitness for appeal to this Court  filed by  the  Corporation was also dismissed  and  therefore  the present  appeal  has been filed by  special  leave  obtained under Art. 136 of the Constitution. The  submission  of Mr. Chatterji-learned  Counsel  for  the appellant-was   naturally  directed  to  showing  that   the reasoning  adopted by the learned judges of the  High  Court was erroneous.  The 140 reasoning  was  briefly  as  follows:  The  learned   Judges assumed,  accepting  a  submission made  on  behalf  of  the appellant-Corporation  during  the  arguments  on  the  writ petition, that the authority which effected the transfer  of the  property to the Municipal Committee of Jabalpur by  the order which we have set out as the opening of this judgment was not the Government of Central Provinces & Berar but  the Central  Government.   Starting  from  this  premise,   they concluded that the notification could not be sustained under the  terms of s. 81.  Section 81, it will be seen,  empowers the   State   Government  to   resume   immovable   property transferred to the Corporation by itself when such  property is  required  for  a public purpose.   If  the  property  in question had been transferred by the Central Government, the argument  ran  that s. 81 was inapplicable.   It  should  be added  that  both in the basic assumption that  it  was  the Central and not the Local Government the predecessor of  the State Government that had effected the transfer, as well  as in  the further consequence that the exercise of  the  power under  s.  81 of the Corporation Act  was  ineffective,  the learned  Judges  were  aided by  concessions  accepting  the correctness of this position which appear to have been  made by  the  Deputy Advocate General who represented  the  State before them., We shall have occasion to refer to this aspect later.   Meanwhile  to  proceed with the  reasoning  of  the learned  Judges, s. 81 being assumed not to be available  to sustain  the impugned notification, the learned Counsel  for the State appears to have relied on the provisions of s.  38 of  the  Act  of 1922 as enabling the  State  Government  to resume  the  land,  and this  notwithstanding  that  by  the Jabalpur Corporation Act III of 1950 the entirety of the  C. P.  & Berar Municipalities Act of 1922 including s.  38  bad been expressly repealed.  The learned Judges considered that this was possible by                             141 reason  of  a saving contained in s. 3 (1) of  the  Jabalpur Corporation Act which reads-               "3.  (1) All debts and  obligations  incurred,               all  contracts  entered  into  with  and   all               matters  and things engaged to be done  by  or               for,  the Municipality of  Jubbulpore,  before               this  Act comes into force shall be deemed  to               have  been  incurred,  entered  into  with  or               engaged to be done by, or for, the Corporation               as constituted under this Act." Mr. Chatterji-learned Counsel for the appellant  Corporation submitted  to us that the learned Judges of the  High  Court bad  wrongly  applied the saving in s. 3 (1) of Act  III  of 1940  to sustain the resumption of land under  the  impugned

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notification.   He  consider, however, that in view  of  our conclusion  that  the  impugned  notification  fell  clearly within  the power vested in State Government under s. 81  of the  Jabalpur  Corporation  Act,  it  is  not  necessary  to pronounce upon the correctness of the submissions made to us on the construction of s. I (1) of that Act, There  could not be any dispute that if the  authority  that had  transferred  the  property  covered  by  the   impugned notification, to the Municipal Committee of Jabalpur was the Government  of Central Provinces & Berar, the right  of  the suceessor-Government  viz.’ the State Government  of  Madhya Pradesh  to take over the land from the Corporation for  the purpose of forming a public road would manifestly be  within their  power under a. 81. That the Corporation  of  Jabalpur was  the  successor-in-title to the Municipal  Committee  of Jabalpur  and.’ that the property which- was vested  in  the Municipal  Committee  of  Jabalpur was  transferred  to  and became  vested in the appellant Corporation under s.  71  of the  Jabalpur  Corporation Act, were never  in  dispute  and indeed formed the 142 very  basis of the appellant’s petition to the  High  Court. If  any  particular  property had vested  in  the  Municipal Committee  subject  to  its  being  divested  in  particular contingencies,  that  the  property  in  the  hands  of  the Corporation would be held subject to the same obligations or disabilities could also not be in controversy.  Nor could it be  contested that the making of a public road is "a  public purpose" for which land may be resumed by the State under s. 81.   What  we desire to point out is that if the  State  of Madhya  Pradesh  was  or must be deemed  to  have  been  the transferee  of  the property under the  communication  dated April 5, 1930, the validity of the notification under s.  81 could not be challenged. As   we  have  pointed  out  earlier,  the  learned   Judges proceeded,  however  on the assumption that it was  not  the Government of C. P. & Berar but the Central Government  that was  the transferrer of the land in question.   There’  was, however,  no basis upon which the learned Judges could  have rested  this  assumption.  In the first place, in  the  writ petition  by which the appellant-Corporation challenged  the validity  of the notification it did not deny the fact  that it was the Government of C. P. & Berar that had effected the transfer,  and,  in fact, the allegations  in  the  petition proceeded on the basis that it was the State Government that had  done so but the contention raised was that on a  proper construction  of  is. 81 it applied only to  transfers  made after the Jubbulpore Corporation Act, 1948 came into  force- an untenable contention which has not been persisted in. The question as to who a transferor is obviously a  question of fact or at best a mixed question of law and fact and when a party in a writ petition does not allege any such fact, it stands to reason that he ought not to be permitted to travel beyond the facts stated,                             143 at  the  stage of the arguments, To confine a party  to  his pleadings, particularly to his allegations as regards  facts is dictated not merely by the need for orderliness in  these proceedings but for avoiding surprise to the other party and consequent   injustice   resulting   therefrom.    Save   in exceptional cases, parties should be held strictly to  their pleadings  and  if  owing  to discovery  of  new  matter  or grounds,  there  is  need  to  add  to  or  to  modify   the allegations  either  in  the petition  or  in  the  counter- affidavit,  the  Court should insist  on  formal  amendments

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being  effected, for this would enable each party  to  state its case with precision and definiteness and the other  side would  have a proper opportunity to know this case and  meet it  with appropriate defences.  This salutary rule  was  not adhered  to  in  this  case,  and  the  departure  from  the pleadings which the appellant was permitted to adopt  during the course of its arguments before the High Court has led to injustice because thereby the Counsel for the State who  was apparently  not prepared, to meet an argument not raised  in the  petition,  made submissions at the spur of  the  moment which  were not justified by the true state of affairs.   In our opinion, on the allegations made in the petition by  the appellant Corporation it ought not to have been permitted to put  forward  a case that the State Government was  not  the transferor  of  the property and the learned Judges  of  the High  Court  should  have  proceeded on  the  basis  of  the pleadings in the case. Apart from this question of pleading, we consider that there is  no  merit  in the contention even  otherwise.   We  have already set out the terms by which the transfer of the  land was  communicated to the Municipal Committee.  The  preamble recites that is what being communicated is the order of  the Government of the Central Provinces.  The words 144 of conveyance are in the second paragraph and they read:               "Under   section  38(1)(f)  of   the   Central               Provinces Municipalities Act, 1922  Government               is  pleased  to transfer   to  the  Municipal               Committee................ ".               The expression "Government" here obviously, in               the  context,  means  the  Government  of  the               Central   Provinces.    Paragraph   2               which  specifies  what should  happen  if  the               condition  on which the land has been  granted               should be broken, states:               "The  land  shall be liable  to  be.  divested               under s. 38 (2) and resumed by Government ". "Government"  here again obviously is the Government of  the Central Provinces a construction reinforced if one looked at the  sub-section referred to. Further, in Condition 3  which speaks  of  what was to happen if the land  was  resumed  by Government  for  any  Government purpose  the  reference  to "Government"  again  is to the "State Government".   On  the terms of the document therefore it was the Government of the Central Provinces that made the grant-the predecessor of the State  Government.   We  find therefore  that  there  is  no factual  foundation for the submission which was  apparently made before the High Court that the transfer in the  present case   was  by  the  Central  Government.   No  doubt,   the communication refers to the fact that previous to making the grant  the  Government  of C. P. & Berar  had  obtained  the approval  of the Central Government, but that was  merely  a matter of administrative arrangement between the Central and Local   Governments   which  is   totally   irrelevant   for determining  the identity of the Government which  made  the grant.   Besides, the corporation having accepted the  grant from  the  State  Government  was  obviously  estopped  from contending that                             145 the  land  of which it continued in  possession  under  that grant was not one by the State Government or that the  State Government had not the authority to make the grant.  If such contention  is  both  not open to the  Corporation  and  not tenable  on the merits., it would follow that  the  impugned notification was fully justified by the, provisions under s.

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81 of the Jabalpur Corporation Act. We therefore hold that the impugned notification was  valid, though  for reasons very different from those on  which  its validity  was  sustained by the learned Judges of  the  High Court.  The appeal fails and is dismissed.  In view  however of  the  concession made by the respondent before  the  High Court which misled the learned Judges we consider it  proper to direct that each party should bear its costs throughout. Appeal dismissed.