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

J.-By a communication dated Afril 5, 1930, from the Secrotary to the Government o the Central Provinces addressed to the Commissioner Jabalpur Division, certain Nazul land was made available to tb.e Municipal Committee of Jabalpur. In this letter the Secretary stated :

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

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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 :

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(1) The land shall be used only for the pur pose of a gardfD and no part of shall be used for a.ny other purpose without the previous sanction of the Local Government.

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

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

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

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"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 specified in the notification shall cease to be so vested and the State Government may pass such orders as it thinks fit regarding the dispose.I and management of such property.

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(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 notwithstanding 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 Government for the transfer, together with 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!'

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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 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 tho vesting, the appellant was in. enjoyment of the transferred property.· ·

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A hostel or boarding.house of a public institution-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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"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 :

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Provided that compensation need not be paid for buildings or works constructed or erected in, contravention of the terms of the transfer."

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(The expression 'Provincial Government' was amended so as to read 'State Government' by the Adaptat_ion of Law.a Order).

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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 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 oertificate of fitness foc appeal to this Court filed by the Corporation was also dismissed and therafter the present appeal has been filed by special , leave obtained under Art. 136 of the Constitution. ·

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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 reasoning was briefly as follows: The learned Judges aBSumed, accepting a submission made behalf of the appellant--.:orporation during argument~ on thA writ petition, that the authority which effected the transfer of the property to Municipal Committee of Jabalpur by the order which we have set out as the openin1r of judgment was not the Government of Central Provinces & Berar hut "thP Central Government. Starting from this premise, they concluded that notification could not be sustained under the terms of 81. St'ction 81, it will be seen, empowers State Government to resume immovable property transferred to the Corporation by itself when such property is required for a public purpose. If propcrt.y in question had been transferred by Cent.ral GovP.rnment, th!! argument ran that s. was inapplicable. It should bo added that both the basic a8sumption that it was the Central not the Luca I Government the · predecessor of State GnvPrnment that had effected the transfer, as well as in the further consequence that the exerciJ!e of th!' power under s. of the Corporation Act was ineffective, the learnt.>d Judges were aided conceS6ions accepting the correctness of this position which appear to havo been made by the Deputy Advocate-General who represented the State before them. \Ve shall have occasion to refer to aspect later. Meanwhile to proceed with 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 have relied on the provisions of s. 38 of the of 1922 as enabling the State Government to resume the land, anrl this notwithstanding that by Jabalpur Corporation Act III of 1950 the entirety of the C. P. & Berar 111unicipalities Act of including s. 38 had been expressly repealed. learned Judges considered that this was possible reason of a saving contained in s. 3 (1) of the Jabalpur Corporation Act which reads:

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"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

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this Act." 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 submissions made to us on the construction of s. :l ( 1) of that Act.

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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 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

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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 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 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" 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 tra.nsferer of the property under the communication dated April 5, 1930, the validity of tho notification under s. 81 could not be challenged.

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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 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. & 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 had done so but the ·contention raised wa.11 that on a. proper oonstruotion of s. 81 it applied only to transfers ma.de after the Juhbulpore Corporation Act, 1948 came in to force-an untenable contention which bas not been persisted in.

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The question a.s to who a. tra.nsferer 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 be permitted to travel be;yond the fa.ota 1ta.ted, 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 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 transferor of the property and the learned Judges of the High Court should have proceeded on the basis of the pleadings in the case.

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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 of conveyanoe are in the second paragraph and they read:

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

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Committee ......••....... ". 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:

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"The land shall be liable to be divested

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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 Government 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 for the· submission whioh was apparently ma.de 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 Government wu obTioualy estopped from contending that 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 follow that the impugned notification was fully justified by the provisions under s. 81 of the Jabalpur Corporation Act.

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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.

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Appeal dismissed. THE CHIEF COMMISSIONER, AJMER

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v.

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BRTJ NIWAS .OAS (B. P. SINHA, c. J., P. B. GAJENDRAGADKAR, K. N. WANCHOO, N. RA.JAGOPALA AYYANGAR .

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and T. L. VENKATARAMA AIYAR, JJ.)

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Oinemalograp\ Films-Indigenous films-Cultural films- Ezhibilion .<>f-Condit-ion of license-f."!'otification-T'ires of- Cintma1ograph of The an of

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at that Indi•

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