MUNICIPAL CORPORATION OF THE CITY OF ,JABALPUR versus STATE OF MADHYA PRADESH

2 S.C.R. SUPREME COURT REPORTS

135

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MDNICIPAL CORPORATION OF THE CITY OF ,JABALPUR v. STATE OF MADHYA PRADESH (B. P. SINHA, c. J., P. B.' GAJENDRAGADKAR, K. N. WANOHoo, N. RAJAGOPMA AYYANGAR and T. L VENKATARAMA AIYAR, JJ.)

AJ'f'il 16.

Pleariing-Strict ariherence necessary-A men<lment must tram/er by StaJe transfer by

be formally marie-Petitioner pleading Government --Counsel Central Government-Duty of Court.

for responrient conceriing

Acting under s. 38 (l) (f) of the C. P. Municipalities Act 1922, the P1ovincial Government, with the sanction of the Government of India, transferred <ertain Nazul Lands to the Municipal Commit tee to be used for the purposes of a garden • The l 922 Act was repealed by the City of Jabalpur Corporat ion Act, 1948, which replaced the Municipiil'Committee by the Jabalpur Corporation.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, 31 which was applicable only to transfers made by the State Government But the High Court sustained the notification under s, 33 of the repealed 1922 Act, relying upon the saving ins. 3 ( 1) of the Corporation Act.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 provisiom 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. 1'he 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 per mitted to put forward a case that the State Government was not the transferor of the property. To confine a party to his pleadings particulaily in respect of facts, is dictated not merely by the need for orderliness but for avoiding surprise to the othn party. Save in exccptional_cases, parties shauld be hdd ~ strictly to 11th plrad·'.ngs, and if there is need to amend them, the Court shoulcl insist c,11 fo1mal amu.clments being affected.

136

SUPREME COURT REPORTS [1963]

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.

C!YU. APPELLATE JumsDICTION: Civil Appeal

No. 212 of 1962.

Appeal by special-leave from

judgment and order dated February 3, 1961, of the Madhya Pradesh High Court in M. P. No. 139 of 1960.

the

N. C. Chatt,erjee and D. N. Mukherjee, for

appellanta.

B. Ben and J. N. Shroff, for respondent No. I. B. P. Maheshwari, for respondent No. 2. 1962. April 16. The Judgment of the Court

was delivered by

AYYANGAR, J.-By a communication dated Afril 5, 1930, from the Secrotary to the Government o the Central Provinces addressed to the Commis sioner Jabalpur Division, certain Nazul land was made available to tb.e Municipal Committee of Jabalpur.

In this letter the Secretary stated :

"! am directed by the Governor in Coun ..:il with the previous sanction of tile Govern ment of India to oommunicate the following orders of the Government of tho Central Provinoes :-

Under Seotion 38( I )(f) of the Central Provinoes Municipalities Act, 1~22, Govern· ment is pleased to transfer to the Munioipal Committee, Jubbulpore, 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 pur pose of a gardfD and no part of it

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2 s.o.R. SUPREME COURT REPORTS

13-7

111111

Municipal Corporolien of Jabalpur v. Stille of Modljyo Prad11h

4;qangarJ,

shall be used for a.ny other purpose with out the previous sanction of the Local Government.

(2) If condition I is broken the land shall be liable to be divested under sec tion 38(2) and resumed by Government a.nd no compensation whatsoever shall be payable to the Municipal Committee upon such resumption.

(3) If the land is resumed by Go vernment for ·--any Government purpose the provisions of Section 38(3) will apply."

Sub-sections (2) & (3) of s. 38 referred t·J ran :

"38.(2) The State Government may, by notification, direct that any property which ha.s .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 dis pose.I 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 any ·time resumed by the Government, the compensation payable therefor shall notwith standing any thing to the contrary in the Land Acquisition Act, 1894 (I of 1894), in no case exceed the amount, if any, paid to the Govern the ment for the cost or the present va.lue, whichever shall be less, of any buildings oreated or other works !'xeouted on the land by the committee!'

together with

transfer,

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r

1oe:

Mu11ici'jJ11l CorpMatiors of Jobalp1T

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• :

St>11 of .Mad!iyri Pr.Jdl!sh-,----

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138

SUPREME COURT REPORTS [1963] .·•

The land thus obtained was being used by the l\Iunicipal·Committee in accordance with the condi-' tion of the., transfer as a public garden. ·

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The Central Provinqes & ·Berar Municipalities Act, 1922. was repealed by the City of Jabalpur Corporation Act, 1948 (l\I. P. III of 1950). Under this later enactment the Municipal ·.Committee was · substituted by .the Jabalpur Corporation, the appel lant before us and all properties-movable and immovable-which were previously vested in the Municipal Committee. were transferred to and ves- . ted in the Corporation (vide s. 71 of the Jabalpur · Corporation Act), and by reason of tho vesting, the appellant was in. enjoyment of the transferred · property.·

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A hostel or boarding.house of a public institu

tion-the Hitkarni l\Iahavidyalaya 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 Boardirig·house to the public road, the authori· ties,of the l\Iahavidyalaya 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 l\Iahavidyalaya, with a covering letter of their own dated April 28, 1959, to the Corporat~on 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, - ~ec~ion 81 runs in these tenns ; .

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Municipal Corporation of Jabalpur v. State cf 11.adhya Pradesh

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2 S.C.R.

SUPREME COURT REPOR'rs

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 eracted 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 Adaptat_ion of Law.a Order).

Complaining that this notification was illegal and beyond .tho jurisdiction of the State Govemment the ,J abalpur 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 govern ment 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 oertificate of fitness foc appeal to this Court filed by the Corpo ration was also dismissed and therafter the present appeal has been filed by special , leave obtained under Art. 136 of the Constitution.

·

The

submission of Mr. Chatterji-learned CounRel for the appellant-was naturally directed to showing that the reasoning adopted by the learned Judges of the High Court was erroneous. The

1962

Mt111ic;pal Ct#j>oTalion of J"balpur v. State nJ ModAµ P1adt$h

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140 SUPREME COURT REPORTS (1963]

reasoning was briefly as follows: The learned Judges aBSumed, accepting a submission made on behalf of the appellant--.:orporation during the argument~ on thA 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 openin1r of this judgment was not the Government of Central Provinces & Berar hut "thP Central Government. Starting from this premise, they concluded that the notification could not be sustained under the terms of 8. 81. St'ction 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 propcrt.y in question had been transferred by the Cent.ral GovP.rnment, th!! argument ran that s. 81 was inapplicable. It should bo added that both in the basic a8sumption that it was the Central and not the Luca I Government the · predecessor of the State GnvPrnment that had effected the transfer, as well as in the further consequence that the exerciJ!e of th!' power under s. 8.1 of the Corporation Act was ineffective, learnt.>d Judges were aided by conceS6ions accepting the correctness of this position which appear to havo been made by the Deputy Advocate-General who represented the State before \Ve shall have occasion to refer to this them. to proceed with the later. Meanwhile aspect reasoning of the learned Judges, s. 81 being assumed not to be available to sustain the impugned notifi cation, 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, anrl this notwithstanding that by the Jabalpur Corporation Act III of 1950 the entirety of the C. P. & Berar 111unicipalities Act of 1922 including s. 38 had been expressly repealed. The learned Judges considered that this was possible by

the

2 S.C.R.

SUPREME COURT REPORTS

141

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reason of a saving contained in s. 3 (1) of the Jabalpur Corporation Act which reads:

for,

"3. (1) All debts and obligations incurred, all contracts entered into with and all matters and things engaged to be done by, the Municipality of Jubbulpore, or this Act comes into force shall be before entered deemed to have been into with or engaged to be done by, or the Corporation as, constituted under for, this Act."

incurred,

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1961

M,,.iclpoJ CorporaNn of J•baljur· v. s1.i. •f M c.dhyo P"zUah

AJyangar J;

Mr. Chatterji-learned Counsel for the appellant Corporation submitted to us that the learned Judges of the High Court had wrongly applied the saving in s. 3 (1) of Act III of 1940 to sustain the res.umption of land under the impugned notification. He consider, however, that in view of our conclusion that the impugned notification fell clearly within the power ve3ted in State Government under s. 81 of the Jabalpur Corporation Act, it is not necessary to pronounce upon the correctness of the sub missions made to us on the construction of s. :l ( 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 right of the Central Provinces & Berar, the suoecssor-Government viz., the State Government of Madhya Pr11-desh to take over the land from the Corporation for the purpose of forming a public road would manifestly be within their power under s:Sl. That the Corporation of Jabalpur was the succe~sor-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 Aot, were never in dispute and indeed formed the

l9Bt

JlunUipal

c..,., ..... " J<UO/,.,. •• Slate of M•dl!.'° Pratluh

A.,_.,111 J.

142

SUPREME COURT REPORTS [1963)

very basis of the appellant's petition to the High Court. If any particular property ha.d vested in the Munfoipal Committee subject to its being divested in particular contingencies, that the property in the hands of t.he Ccrporntion wou 11'1 hr, held subject to the ea.me obligations or di6abilities could a.lso not be in controversy. Nor could it be conteRted that the ma.king of a. public road is "a public purpose" the State for which land may be resumed by 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 tra.nsferer of the property under the communication dated April 5, 1930, the validity of tho notification under s. 81 could not be challenged.

by which

A1 wo have pointed out earlier, the learned Judges proceeded, howeYor ·on the assumption that it was not the Government of C. P. & Berar but the Central Government that was the tra.nsforer of the land in question. There was, however, no baais upon which the learned Judges could have rested In the first place, in the writ this assumption. petition the appellant.Corporation challenged the validity of the notification it did not the Government deny of C. P. & Bara.r tha.t had effected the transfer, and, in faot, the allegations in the petition proceeded on the basis that it was the Sta.ti' Government that raised wa.11 had done so but that on a. proper oonstruotion of s. 81 it applied only transfers ma.de after the Juhbulpore Corporation Act, 1948 came in to force-an unten- able contention which bas not been persisted in.

the ·contention

it was

that

fact

the

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to who

The question a.s

is obviously a. question of fa.ct or at best a. mixed question of law a.nd fact a.nd when a. party in a. writ petition does not a.liege a.ny such fa.ct, it stands to reason that he ought not to travel be;yond the fa.ota permitted

tra.nsferer

to be ~ 1ta.ted,

a.

1961

M<Un eipal Co,po"alion 01 Jabal:pur v. s1a1, o/ M adh,Ya Pradesh

Ayyangor J,

j

2 S.C.R.

SUPREME COURT REPORTS

143

facts

regards

the arguments. To confine a at the stage of to his particularly party to his pleadings, is dictated not allegations as merely by the need for orderliness in these procee dings 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 matt~r 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 being effected, for this would enable ea.ch party to state its case with precision and definiteness and the other side would ha.ve 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 11rgurnents 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 mome~t which were not just-ified 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 oase that the State Government was not the trans feror 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 con the contention sider that there is no merit in 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

•

1911

Jlunici,,.Z

c.,,,.,.,ion of

J•b•lp111 Y. Stott of JI adhyo p,r,d,,Ji

144

SUPREME OOURT REPORTS [1963]

of conveyanoe are in the second paragraph and they read:

"Under seotion 38(l)(f) of the Central Provinces Municipalities Act, 1922 Government is p/,ea.sed the Munioipal transfer Committee ......••....... ".

to

lo

The expreSBion "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:

1 ..

"The land shall be liable to be divested under s. 38 (2) and resumed by Government"

"Government" here again obviously is the Govern· ment of the Central Provinces a construotion 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 Govern ment for any Government purpose the referenoe 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 the· submission whioh was apparently ma.de for before tho High Court th&.t the transfer in the present oase was by the Centr:il Government. No doubt, the communication refers to the fact that previous to ma.king the grant the G'lvernment of C. P. & Berar had obtained tbs approval of the Central Government, but that was merely a matter of administr11tive arrangement between the Centre.I and Looe.l Governments which is totally irrelevant for determining the identity of the Government whioh made the grant. Besides, the corporation having e.coopted the grant from the State Govern- ment wu obTioualy estopped from contending that

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2 S.C.R. SUPREME OOURT REPORTS

145

19~1

Munisipal Corpo,.ati1n •f ,; 1Ibalp-rr v. Stal• oJ Madhya Pradc•h

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 ie both not open to the C01;poration and not tenable on the merits, it would impugned notification was fully justified by the provisions under s. 81 of the Jabalpur Corporation Act.

follow

that

the

We therefore hold that the impugned notifi· cation was valid, though for reasons very different from those on which its validity was sus.tained ·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 ([Jourt which misled the learned Judges we consider it proper to direct that each party ·should bear its costs throughout.

Appeal dismissed.

THE CHIEF COMMISSIONER, AJMER .·

v.

BRTJ NIWAS .OAS (B. P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N. WANCHOO, N. RA.JAGOPALA AYYANGAR . and T. L. VENKATARAMA AIYAR, JJ.)

Oinemalograp\ Films-Indigenous films-Cultural films Ezhibilion .<>f-Condit-ion of license-f."!'otification-T'ires of Cintma1ograph .-let, 1.952 (Act. 37 of 1952), s. 12(4).

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The rrspondent was an exhibitor of films in a public cinema theatre. u •. der the powers conferred by s. 12(4) . of the Cinematograph Act a notification was issued which among other things provided that a certain percentage Of ~ 11approvcd film" should be sho\.\·n at every performance an<l that film• produced in Indi• and certifie<l hy the Central

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