Municipal Corporation of the City of
Jabalpur Vs. State of Madhya Pradesh  INSC 144 (16 April 1962)
16/04/1962 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ)
CITATION: 1966 AIR 837 1963 SCR (2) 135
necessary--Amendment must be formally made--Petitioner pleading transfer by
State Government--Counsel for respondent conceding transfer by Central
Government--Duty of Court.
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The 1922 Act was repealed by the City of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 Corporation 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Court sustained the notification under s. 38 of the repealed 1922 Act, relying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 pleadings, and if
there is need to amend them, the Court should insist on formal amendments being
136 in the present case, on the terms of the
order transferring the land it was clear that the transfer was made by the
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
N. C. Chatterjee and D. N. Mukherjee, for
B. Sen and 1. N. Shroff, for respondent No.
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
(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 specified 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 any
time resumed by the Government, the compensation payable there for shall
notwithstanding anything to the contrary in the Land Acquisition Act, 1894 (1
of 1894), in no case exceed the amount, if any, paid to the Government 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
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
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 transferred 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 there from. 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 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. 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.