VERUAREDDI RAMARAGHA VA REDDY AND. ORS.

' '. v.

KONDURU SESHU REDDY AND 2 ORS,,;,;< .. '' ·-· .. ... ''• .. April 26, 1966.

•.T[K.' SUBBA RAo AND V> RAMASWAMJ;.JJ.J: " r.: ~''"'''

·:~ '.,' • •' I~ -

;, •/~-'••I Specific Relief Act (1 of.1877); s, 42-Suit by worshipper for dc• laration that compromise decree is not binding on temple-Suit, if, barred. · ' · • "

Madras Hindu ReligiOOS Endciw;,; ents Act (2 o( 1927), s:· 84(2)- c} Petition for declaration that properties belonged to .petitionerand not to temple-If maintainable.

- / • . - _. . . ''. • '..

- ! ·:; ·- - ·- • l .,./The appellants filed an original petition in the , District Court under s. 84(2) of the Madras Hindu Religious Endowments Act; 1927,.' for setting aside an order of the Endowments Board that a temple was a public temple and for a declaration that it was a private, temp!e. The Commissioner of the Endowments Board nd a worshioper were the contesting respondents to the petition. Pending its dispo-

D . sal the 1927. Act. was repealed by the Hindu Religious and Charitable Endowments Act of 1951. After the passing of the new Act the netition was amended by the addition of a prayer for a further declaration that the properties in dispute were the personal property of the appellants' family. Thereafter, a compromise decree between the appellants and the Commissioner was passed. by which it was declared that the temple was a public temple, that the properties were the personal properties of the aonellants but that the aoP"l- E lants v.'E!re liatle to make annual payments in cash and kind to the temple for its maintenance. The worshipper, who was not a party to the compromise decree, filed the oresent suit for a declaration that the compromise decree vias not binding on the temple.

On the questions whether: (i) the suit was not barred by the provisions of s. 42 of the Specific Rellef Act, 1877, and (ii) the compromise decree was invalid.

HELD: (i) Section 42 of the Specific Relief Act i~·not exhaus- F tive of the cases in which a declaratory decree may be made and courts have power to grant such a decree independently of the requirements of the section. The relief sought for in the present case was for a declaration that the compromise decree was null and void.; Such a declaration is in itself a substantial relief and has imme- te coercive effect and the deity would be restored to its rights in the trust properties. The suit fell outside the purview of s. 42 G , and would be governed by the general provisions of the Civil Procedure Code and was therefore maintainable even though the worshipper was not suing as a perolon entitled to any legal character or to a?y right as to anv pmoerty as required by s. 42 of the Specific Relief Act. [276 E; 277 F-G] ·

Case law referred to.

(ii) The compromiSe decree was not valid and binding on the B

tempi~, because, the deity was not a P.~Y to.it.throush ;; ny repreccntative. · · -

- .. ; ·•

. . '

P.AMARAGHAVA v. SilER!lU (Ramaswami, J.) 271

Though under s. 20 of the 1927 Act the Commissioner was vested with the power of superintendence and control over the temple, it does not mean that he has authority to represent the deity in proceedings before the District> Judge under s. 84(2) of the Act.

Further, the compromise decree was beyond the scope of the proceedings, because, a declaration that the properties in dispute were the personal properties of the appellants' family and not of t1'e temple, was outside the purview of s. 84(2). [278 A-B, F, HJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 265 of 1964.

Appeal from the judgment and order dated August 7, 1962 of the Andhra Pradesh High Court in Appeal Suit No. 312 of 57.

F. Babula Reddy, K. Ra; endra Chaudhuri and K. R.

Chaudhuri, for the appellants.

P. Rama Reddy and A. V. V. Nair, for respondent No. 1.

T. V. R. Tatachari, for respondent No. 2.

The Judgment of the Court was delivered by

Ramaswami, J. This appeal is brought by certificate on behalf of the defendants against the judgment of the High Court of Andhra Pradesh dated August 7, 1962 in Appeal Suit No. 312 bf 1957.

In the village of Varagali, in the district of Nellore, there is a temple in which is enshrined the idol of Sri Kodandaramaswami.

The temple was built in the middle of the last century by one Burla E Rangareddi who managed the affairs of the temple and its properties during his life-time: After his death, his son, Venkata Subbareddy was in management. By a deed dated August 19, 1898 Venkata Subbareddi relinquished his interest in the properties in favour of one Vemareddi Rangareddi whose family members are defendants I to 5. The plaintiff filed a petition before the Assistant Commissioner for Hindu Religious Endowments, Nellore, alleging F mismanagement of the temple and its properties by the first defendant. Notice was issued to the !st defendant to show cause why the -temple properties should not be leased out in public auction and the first defendant contested the application alleging that the properties were not the properties of the temple but they belonged to his family. _After enquiry, the Assistant Commissioner submitted a report to the Hindu Religious Endowments Board, Madras, re- G commending that a scheme. of management may be. framed for the administration .of the temple and its properties. The Board thereafter commenced proceedings for settling a scheme and issued notice to the !st defendant .to state his objections. The 1st defendant refferated his plea _that the temple was not a public temple.

The Board hdd an enquiry and by its order dated October 5, 1949 B held that the tempie was a public one. On January 18, 1950 the . !st defendant filed O:P.- nu. 3 of 1950 011 the file of the District

Judge; Nellore (!}for seftiiig aside the order of the Board dated

272 BuPREHE COURT REPORTS

(J 966) BUPP. 8.0.R,

October 5, 1949 declaring the temple of Sri Kodandaramaswarni- .& vari as a temple defined in s. 6, cl. 17 of the Act, (2) for a declaration that the temple was J private temple and (3) for a declaration that the properties set out in the schedule annexed to the petition were the personal properties of his family and they did not constitute the tern pie properties. Originally, the Commissioner. Hindu Religioos Endowment Board, Madras was impleaded as the sole JI respondent in the petition. The present plaintiff later on got himself impleaded as the 2nd respondent therein. Both the respondents contested the petition on the ground that the temple was a public temple and that the properties mentioned in the schedule were the properties of the temple and not the persona.! properties of the !st defendant For reasons which are not apparent on the record the C petition was not disposed of for a number of years. In the meantime Madras Act II of 1927 was repealed and the Hindu Religious and Charitable Endowments Act of 1951 was enacted. Then came the formation of the State of Andhra Pradesh. By reason of these changes the Commissioner of Hindu Religious Endowments in the State of Andhra Pradesh was impleaded as the !st respondent to the petition. Thereafter, there was a compromise between the D petitioners I to 5 on the one hand and the Commissioner, the 1st respondent on the other. The District Judge, Nellore recorded the compromise and passed a decree in terms thereof by his order dated October 28, 1954.

The material clauses of the compromise decree, Ex. B-11 are as follows:

"I. That Sri Kcdandarama>wami temple, Varagali, be and hereby is declared as a temple as defined in section 6. clause 17 of the Hindu Religious ar.d Charitable Endowments Act;

2. That petitioners I to 4 be and hereby are, declared as the present hereditary trlllitees of the said temple.

3. That the properties set out in schedule A filed herewith be and hereby are, declared as the personal properties of the family of the petitioners subject to a charge as noted below;

4. That petitioners I to 4 their heirs. successors administrators and assignees do pay to the said temple for its maintenance 12! putties of good Mologolukulu paddy and Rs. 600 !- every year by the 31st of March;

5. That the said I 2! putties of good Mologolukulu paddy and Rs. 600 !- due every year be a charge on the lands mentioned in Schedule A given hereunder;

. . 6. That the petitioners l to 4 and their successors, heirs.and assign~ be liable to pay 12! puttiee of Molo-

( ~-

HHIARAGHAVA v. SF, SJlU (Ramaswami, J,)

golukulu paddy and Rs. 600 every year whether the lands yield any income or not.

10. That the H. R. & C. E. Commissioner be entitled to associate non hereditary trustees not exceeding two, whenever they consider that such appointment is necessary and in the interests of the management.

11. That the Managing trustee shall be one of the four hereditary trustees or their successdrs in title only and not the non hereditary trustees;

IS. That the right of the 2nd respondent to agitate the matter by separate proceedings will be unaffected by the terms of this compromise to which he is not a party."

It is apparent from the terms of the compromise decree that the temple was declared to be a public temple as defined in s. 6, cl. 17 of the Hindu Religious and Charitable Endowments Act and D that the properties set out in Sch. A annexed to the compromise petition were declared to be the personal properties of defendants 1 to 5. The decree created a liability on their part to deliver to the temple for its maintenance 12! putties of paddy and pay Rs. 600/- cash every year. The present suit was instituted on October 31. 1955 for a declaration that the provision in the compromise decree that the lands mentioned in tqe schedule were the personal proper- E tics of defend.ants 1 to 5 and not the absolute properties of the temple, was not valid and binding on the temple. Defendants 1 to 5 objected to the suit on the ground that it was not open to the plaintiff to seek a declara.tion that a part of the decree was not binding but the plaintiff should have directed his attack against the entirety of the decree. The trial court dismissed the suit on the ground that ihe suit was defective and that s. 93 of the Hindu J Religious and Chariiable Endowments Act of 1951 was a bar to the institution of the suit. Against the decree of the trial court the plaintiff preferred an appeal-A S. 312 of 1957 to the High Court of Andhra Pradesh. The plaintiff also filed C.M.P. no. 6422 of 1962 praying for amendment of the plaint the effect that the compromise decree in 0. P. no. 3 of 1950 was not valid and binding on the temple. After hearing defendants I to 5 the High Court allowed the 11 amendment sought for by the plaintiff and held that the amendment cured :the defect with regard to the prayer for a declaration to have the. compromise decree set aside 11artially. The High Court further held that s .. 93 of the Hindu Religious and Charitable Endowments Act. was not a bar. to the suit. and s: 42of the Specific Relief Act wa's not exhaustive and the suit was therefore maintain- B able. In the resuit, the High court allowed the appeal and remanded the. SUitt.O: the trial., cO\ll for dispoSiI'lg the s; ime On the .remai!l• jng fssueq .. " ,. ·,- - · · • :... · .. , · ·· ·- · ·~

274 Bl'l'BKMB COURT REPORTS

(1966) SUPP. B.C, l\,

It was contended, in the first place, on behalf of the appcl- A !ants that declaratory suits are governed exclusively by s. 42 of the Specific Relief Act and if the requirements of that section are not fulfilled no relief can be granted in a suit for a mere declaration.

It was submitted that the plaintiff must satisfy the court, in such a suit, that he is entitled either to any legal character or to any right in any property. It was argued for the appellants that the plaintiff B has brought the suit as a mere worshipper of the temple and that he has no legal or e4uitable right to the properties of the temple which constitute the subject-matter of the suit. It was pointed out that the plaintiff has not asked for a declaration of his legal character as a worshipper of the temple but he has asked for the setting aside of the compromise decree in 0. P. no. 3 of 1950 with regard to the nature of the temple pruperties. It was contended that in a 0 suit of this description the conditions of s. 42 of the Specific Relief Act are not satisfied and the suit is, therefore, not maintainable.

The first question to be considered in this appeal is whether the suit is barred by the provisions of s. 42 of the Specific Relief Act which states:

"42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying. or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation-A trustee of property is a 'perscn interested to deny' a title adverse to the title of some one who is not in existence. and for whom, if in existence, he would be a trustee."

The legal development of the declaratory action is important. 1 Formerly it was the practice in the Court of Chancery not to make declaratory orders unaccompanied by any other relief. But in exceptional cases the Court of Chancery allowed the subject to sue the Crown through the Attorney-General and gave declaratory judgments in favour of the subject even in cases where it could not give full effect to its declaration. In 1852 the Court of Chancery Procedure Act was enacted and it was provided by s. 50 of that Cl Act that no suit should be open to ohjection on the ground that a merelv declaratory decree or order was sought thereby, and it would be lawful for the court to make binding declarations of right without )!ranting consequential relief. Bys. 19 of Act VI of 1854, s. 50 of the Chancery Procedure Act was transplanted to India and made applicable to the Supreme Courts. With regard to courts JI other than the courts established by Charters the procedure was cOdified in India for the first time by the Civil Procedure Code.

) ~-

I ~

RAMAMGlfAVA ,,_ SESJITJ (Ramaswami, J.) 275

A 1859, where the form of remedy under s. 19 of Act VI of 1854 was incorporated as s. 15 of that Act which stood as follows:

"No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the civil Courts to make binding declarations of right without granting consequential relief."

In 1862 the provisions of the Civil Procedure Code of 1859 were extended to the courts established by Charters when the Supreme Courts were abolished and the present High Courts were established. In 1877 the Civil Procedure Code, 1859 was repealed and the Civil Procedure Code of 1877 was enacted. The provision regarding declaratory relief was transferred to s. 42 of the Specific Relief Act which was passed in the same year. This section which is said to be a reproduction of the Scottish action of declarator, has altered and to some extent widened the provisions of s. 15 of the old Code of 1859.

It was argued on behalf of the appellants that, in the present case. the plaintiff was suing as a worshipper of the temple and that he was not suing as a person entitled to any legal character, or to any right as to any property and so the suit was barred by the provisions of s. 42 of the Specific Relief Act.

Upon this argument we think that there is both principle and authoTity for holding that the present suit is not governed by s. 42 of the Specific Relief Act. In Fischer v. Secretary of State for India in Council, (') Lord Macnaghten said of this section:

"Now, in the first place it is at least open to doubt whether the present suit is within the purview of s. 42 of the Specific Relief Act. There can be no doubt as to the origin and purpose of that section. It was intended to introduce the provisions of s. 50 of the Chancery Procedure Act of 1852 (15 & 16 Viet. c. 86) as interpreted by judicial decision. Before the Act of 1852 it was not the practice of the Court in ordinary suits to make a declaration of right except as introductory to relief which it proceeded to administer. But the present suit is one to which no objection could have been taken before the Act of 1852.

It is in substance a suit to have the true ccmstruction of a statute declared and to have an act done in contravention of the statute rightly understood pronounced void and of no effect. That is not the sort of declaratory decree which the framers of the Act had in their mind."

In Pratab Singh v. Bhabuti Singh,(') the appellants sued for a declaration tha.t a compromise of certain pre-emption suits and decrees passed thereunder made on their behalf when they were

(') 26 I.A. 16.

(') 40 I.A. 182.

SUPREME OOURT REPORTS

[1966) SUPP. S.C.R,

minors were not binding on them. having been obtained by fraud A and in proceedings in which they were practically unrepresented.

The Subordinate Judge having decreed the suit on appeal the members of the Court of the Judicial Commissioner d<llered upon the question whether the declaration sought should be refused as a matter of discretion under s. 42 of the Specific Relief Act. Before the Judicial Committee it was contended for the respondent that B . the suit having been liled for the purpose of obtaining a declaratory ---.( decree only was bad in form inasmuch as it did not pray that the decree should be set aside; but that, assuming that it was rightly framed in asking only for a declaratory dec.ee, the Court had a discretion as to the granting or refusing such a declaration. The Judicial Committee observed that s. 42 of the Specific Relief Act did not apply to the case and that it was not a question of excrcis- C ing a discretion under that section; and they gave to the appellant a decree setting aside the decree complained of and declaring that the agreement of compromise and the decree complained of were not binding upon the appellants or either of them and that they were entitled to such rights as they had before the suit was dismissed on December 15, 1899.

It appears to us that a decree of the character which has been sought by the plaintiff in this case is not one as to which the additional powers conferred by the Act of 1852 were required by the Court of Chancery. The injury complained of was that the Court has, by recording the compromise in 0.P. no. 3 of 1950, deprived

the deity of its present title to certain trust properties. The relief which the plaintiff seeks is for a declaration that the compromise E decree was null and void and if such a declaration is granted the deity will be restored to its present right' in the trust properties. A declaration of this character, namely, that the compromise decree is not binding upon the deity is in itself a substantial relief and has immediate coercive effect. A declaration of this kind was the subject matter of appeal in Fischer v. Secretary of State for India in co1111• cil(') and falls outside the purview of s. 42 of the Specific Relief Act F and will be governed by the general provisions of the Civil Procedure Code likes. 9 or 0. 7. r. 7.

On behalf of the respondents reliance was placed on the decision of the Judicial Committee in Sheoparsa11 Singh v.

Ramnandan Prasad Singh('). In that case. the plaintiffs had prayed

for a declaration that a will, probate of which had been granted, <r, was not genuine and the Judicial Committee pointed out that under j.... s. 42 a plaintiff has to be entitled to a legal character or to a right as to property and that the plaintiffs could not predicate this of themselves as they described themselves in the plaint as entitled to the estate in case of an intestacy, whereas, as things stood, there was no intestacy, since the will had been affirmed by a Court exercising It'. ---·-----·--------·------·-. ------------·-

(') 26 I.A. 16. (') I.t .. U. 43 Cod. 694 (P.C.)

• F

HAM4EAGHAVA v. SESHU (Rama•wanii, .J.) 277

appropriate jurisdiction. The suit was, indeed, nothing more than an attempt to evade or annul the adjudication in the testamentary suit. The suit was held to fail at the very outset because the plaintiffs were not clothed with a legal character or title whii:n would authorise them to ask for the declaratory decree sought by their plaint. There is no reference in this case to the previous decision of the Judicial Committee in Fischer v. Secretary of State for India in Council('). In our opinion, the decision of the Judicial Committee in Sheoparsan Singh v. Ramnandan Pnasad Singh(') should be explained on the ground that the will which was sought to be avoided had been affirmed by a Court exercising appropriate jurisdiction and as the propriety of that decision could not be impeacfied in subsequent proceedings, the plaintiffs could net sue, not being reversioners.

The legal position is also well-established that the worshipper of a Hindu temple is entitled, in certain circumstances, to bring a suit for declaration that the alienation of the temple prcperties by the de ju re Sheba it is invalid and not binding upon the temple. If a Shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity but no decree for recovery of possession can be made in such a suit unless the plaintiff in the suit has the present right to the possession. Worshippers of temples are in the position of cestuui que trustent or beneficiaries in a spiritual sense (See Vidhyapurna Thirthaswami v. Vidhyanidhi ThirthaswamO ("). Since the worshippers do not exercise the deity's power of suing to protect its own interests, they are not entitled to recover possession of the property improperly alienated by the Shebait, but they can be granted a declaratory decree that the al; enation is not binding on the deity (See for example, Kalyana Venkataramana Ayyangar v.

Kasturiranga Ayyangar(') and Chidambaranatha Thambiran v. Nal/asiva Mudaliar)('). It has also been decided by the Judicial Committee in Abdur Rahim v. Mahomed Barkat Ali(') that a suit for a declaration that property belongs to a wakf can be maintained by Mahomedans interested in the wakf without the sanction of the Advocate-General, and a declaration can be given in such a suit that the plaintifl' is not bound by the compromise decree relating to wakf properties.

In our opinion, s. 42 of the Specific Relief Act is not exhaustive of the cases in which a declaratm-y decree may be made and the courts have power to grant such a decree independently of the requirements of the section. It follows, therefore, in the present case that the suit of the plaintiff for a declaration that the compromise decree is not binding on the deity is maintainable as falling outside the purview of s. 42 of the Specific Relief Act.

(') 28 I.A. le. {a) I.L.R. 27 Mad. 435, 451. (') I.L.R. 41 Mad. 124.

(') I.I,.R. 43 Cal. 694 (P.O.)

(') I.L.R. 40 Mad. 212.

(') 55 I.A. 96.

278 SOPREJlE OOURT REPORTS

(1966) BUPP. B.C.R.

The next question presented for determination in this case A is whether the compromise decree is invalid for the reason that the Commissioner did not represent the deity. The High Court has taken the view that the Commissioner could not represent the deity because s. 20 of the Hindu Religious & Charitable Endowments Act provided only that the administration of all the endowmets B shall be under the superintendence and control of the Commissioner. Mr. Babula Reddy took us through all the provisions of the Act but he was not able to atisy us that. the Commissioner ha.d authority to represent the delly m the 1ud1cial proceedings. It 1s true that under s. 20 of the Act the Commissioner is vested with the power of superintendence and control over the temple but that does not mean that he has authority to represent the deity in proceedings before the District Judge under s. 84(2) of the Act. As a C matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a juridical person capable of holding property. it is only in an ideal sense that property is so held. The possession and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait. but where, however, the Shebait is negligent or where the Shebait himself is the D guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open, in such a case, to the deity to file a suit through some person as next friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is a worshipper of the deity or as a prospective Shebait is legally in E terested in the endowment. In a case where the Shebait has denied the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next friend, nominated by the court. The principle is clearly stated in Pramath Nath v. Pradymna Kumar.(') That was a suit between contending shebaits about the location of the deity, and the Judicial Committee held that the will of the idol on that question must be F respected, and inasmuch as the idol was not represented otherwise than by shcbaits. it ought to appear through a disinterested next friend appointed by the Court. In the present case no such action was taken by the District Court in 0. P. no. 3 of 1950 and as there was .no representation of th~ deity in that judicial proceeding it is

mmfest that the compromise decree cannot be binding upon the deity. It was also contended by !\fr. P. Rama Reddy on behalf of G respondent no .. 1 that the compromise decree was beyond the scope of the proceedmgs m O.P. no. 3 of 1950 and was therefore invalid. In our opinion. this argument is well-founded' and must 'prevail. The proceeding was brought under s. 84(2) of the old Act <Act II of 1927) for setting aside the order of the Board dated October 5~.:49 declaring the temple of Sri Kodandaramaswami as a temple H

(1) J.J •. R. 52 C&I. 809. (P. C.)

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P.AMARft.OliAVA v. SESHU (Rama5wami, J.) 279

defined in s. 6, cl. 17 of the Act and for a declaration that the temple was a private temple. After the passing of the new Act, namely Madras Act 19 of 1951, there was an amendment of the original petition and the amended petition included a prayer for a further declaration that the properties in dispute are the personal properties of the petitioner's family and not the properties of the temple.

Such a declaration was outside the purview of s. 84(2) of Madras Act II of 1927 and could not have been granted. We are, therefore, of the opinion that the contention of respondent no. 1 is correct and that he is entitled to a declaratory decree that the compromise decree in O.P. no. 3 of 1950 was not valid and was not binding upon Sri Kodandaramaswami temple.

We have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in CIUr remanding the matter to the trial court on this question and the matter will be unduly protracted.

For the reasons expressed, we hold that the decree passed by the trial court should be set aside and the plaintiff-respondent no. 1 should be granted a declaratory decree that the compromise decree in O.P. no. 3 of 1950 on the file of the District Court Nellore is not valid and binJing on Sri Kodandaramaswami temple. Subject to this modification, we dismiss this appeal. The parties will bear their own costs throughout.

'Appeal dismissed.

L/85801-20

VERUAREDDI RAMARAGHA VA REDDY AND. ORS

KONDURU SESHU REDDY AND 2 ORS

K.' SUBBA RAo

Specific Relief Act

s. 84(2)

Religious Endowments Act

Charitable Endowments Act

s. 42

Specific Rellef Act, 1877

Section 42

Specific Relief Act

s. 42

s. 42

Specific Relief Act

s. 20

s. 84(2)

s. 84(2)

s. 6

cl. 17

Madras Act II of 1927

Charitable Endowments Act

section 6

clause 17

Charitable Endowments Act

s. 6

cl. 17

Charitable Endowments Act

s. 93

S. 312

Charitable Endowments Act

Specific Relief Act

s. 42

Specific Relief Act

s. 42

Specific Relief Act

s. 42

Specific Relief Act

s. 50

s. 50

s. 19

s. 15

Civil Procedure Code, 1859

s. 42

Specific Relief Act

s. 15

s. 42

Specific Relief Act

s. 42

Specific Relief Act

s. 42

Specific Relief Act

s. 50

s. 42

Specific Relief Act

s. 42

Specific Relief Act

s. 42

Specific Relief Act

s. 42

s. 42

Specific Relief Act

s. 42

Specific Relief Act

s. 20

Charitable Endowments Act

s. 20

s. 84(2)

s. 84(2)

s. 6

cl. 17

s. 84(2)

Madras Act II of 1927


\..l

DALCHAND & ORS.

DELffi IMPROVEMENT TRUST (NOWI DELHI DEVELOPMENT

AUTHOIUTY)• NEW DELHI

March 24, 1966

(K. N. WANCHOO, M. H!DAYATULLAH AND J.C. SHAH, JJ.] United Provinces Town Improvement Act (8 of 1908), ss. 23(a), 24 (h} and 32-Scheme of Town expansion by Improvement Trust- Supplementary scheme to fulfil requireme.nts of company unde! . he Original Scheme-Validity-If Act authorised compulsory acquisition of land-Procedure under Part VII Land Acquisition Act, 1894 if had to be followed.

The Delhi Improvement Trust (set up under the U.P. Town Improvement Act (8 of 1908) extended to the territory of Delhi) prepared and notified under the Act an industrial development scheme intended to secure the growth of an industrial area so as to induce a flow of population away from the crowded parts of Delhi. Land in the area was to be developed by the Trust and a part of the land was to be allotted to industrial concerns fot construction of industrial building and the rest for construction of residential and other buildings, Under the scheme one particular company was to be allotted a certain acreage of land but the land covered by the scheme was found inadequate for this purpose. A supplementary scheme was therefore notified modifying the original scheme and providing for the acquisition of an additional area of land, to be sold to the company, Under the terms of sale this additional area wa• to be developed by the Company, The appellants, whose lands were sought to be compulsorily acquired under the supplementary scheme, sued the Trust challenging the legality of the scheme and the award made in the acquisition proceedings. The Subordinate Judge decreed the suit but on appeal the High Court reversed this decision.

In the appeal to this Court three questions fell for determination: (i) whether acquisition of land of the appellants under the supplementary scheme was for the purposes of the Act; (ii) whether for executing the supplementary scheme the Trust had power to compulsorily acquire land; and (hli) whether land of the appellants could be acquired only in the manner provided by Part VII of the Land AcquiSition Act, 1894.

HELD: The High Court was right in refusing to decree the suit.

(i) The .original and supplementary schemes had to be regarded as one composite scheme conceived in the interests of industrial development. The original scheme was primarily a town expansion scheme within the meaning of the Act; and the supplementary scheme was framed for the further progress of and to effectuate the purpose of the original scheme Acquisition of land for industrial development and making provision for the residence of employees in the industries would clearly fall within the terms of s.24(h), read with s.32.

The provisions of the Act would not justify acquisition of land with a view to handing it over to an industrial concern for private gain. But this was not the position in the present case, as a scheme

8Ul'RF.llE COURT REPORTS [1966] 8Ul'P. 8.C.Jl.

which contemplated acquisition of land for affectuating the object of the original scheme was not a device to acquire land for the private gain of an industrialist. The general supervision and control over the execution of the supplementary scheme, as over the original scheme, was retained by the Trust and the Compnay was to develop the' land subject to control under the Town Planning Scheme. [35 C, F, G, H]

(ii) Power to acqufre land compulsorily was conferred by s.23

(a) which in terms authorised acquisition by purchase, exchange or otherwise of any property necessary or affected by the execution of the scheme, and this provision could be incorporated in any of the

improvement schemes of the type mentfoned in s.:l<t. The power could also be exercised under ss.32, 55 and 5G.

Under the provisions relating to other classes of schemes express provision with regard to acquisition of land was made and such express provision was absent in s.32 dealing with town expansion schemes. But that would C not justify the inference that the provisions of s.23(a) relating to acquisition of land necessary for or afTected by the execution of the scheme were not available in sanctioning a town expansion scheme. Were it otherwise, s.23(a) would not have application to any scheme at all [36 B-E]

(iii) The provisions of Part VII of the Land Acquisition Act, 1894, did not have to be followed, for, in this case, land was not to D be acquired for the company: it was to be acquired for carrying out an industrial development scheme. Mere inclusion of a provision tor sale of land comprised in the scheme did not vitiate the scheme.

If the Act was valid and could be resorted to for compulsorily acquiring land, the awards made under the Act were not open to challenge on the ground that if another scheme of acquisition had been resorted to, more compensation could have been paid to the appellants. [36 F. G: 37 Bl

GYIL APPELLATE JURISDICTION: Civil Appeal No. 1107 of 1963.

Appeal from the judgment and order dated September 8, 1959 of the Punjab High Court (Circuit Bench) at Delhi, in Civil Regular Appeal No. 17-D of 1954.

B. D. Jain, for the appellants.

N. S. Bindra and B. R. G. K. Achar. for the respondent.

The Judgment of the Court was delivered by

Shah, J. By a notification issued on March 2, 1937 under

s. 7 of the Delhi Laws Act, 13 of 1912, the Government of India G extended, subject to certain modifications. the United Provinces Town Improvement Act. 8 of 1919. to the territory Clf Delhi, and thereafter set up an Improvement Trust under the Act for that territory. The Trust prepared an industrial development scheme with the object of relieving congestion by inducing a flow of population from the crowded parts of the town of Delhi to certain other B areas. Under the scheme land in those areas was to be developed and after construction of roads, storm water drains, street-Iightin11.

__..... -

....

A refuse and sewage disposal works, schools, parks, playgrounds, dispensaries, weMare centres and police-station a part of the land was to be allotted to industrial concerns for construction of industrial buildings and the rest for construction of residential and other buildings.

B The scheme was sanctioned under s. 42 of the Act by the Government of India, and was duly promulgated. Thereafter the Trust reso2ved in June 1942 to make a supplementary scheme as the land covered by the original scheme was inadequate. It appeared that the Trust had agreed to provide under the original scheme a block of land oomprising 268 acres of land to the Delhi Cloth & General Mills Co. Ltd.-hereinafter called 'the Company' C --on certain terms and conditions embodied in a resolution dated January 9, 1942, but the Trust was able to offer to the Company under the lay-out of the original scheme only 17 4.84 acres. It was therefore proposed by the Trust to modify the scheme as sanctioned and to provide for acquisition of an additional area of 103.16 acres under a supplementary scheme.

D On July 18, 1942 notice under s. 36 of the Act was published in respect of the supplementary scheme for development of the industrial area, specifying the boundaries of the land in which the scheme was to be worked and inviting objections to the scheme. within one month from the date of publication. No objections were, it appears raised to the proposed supplementary scheme, and it was finally approved by resolution dated July 31, 1944, and was E notified under s. 42 of the Act on June 28, 1946. Land acquisition proceedings were then commenced under s. 58 of the Act and awards were made assessing compensation to be paid to the owners of the land for compulsory acquisition. In the scheme so notified was included an area of 13 bighas of land belonging to the appellants and that land was acquired.

On May 3, 1949 the appellants sued the Delhi Improvement Trust for a declaration that the awards were "wrong and illegal and did not result in acquisition of the suit property" and for an order restraining the Trust from taking possession of their lands under the awards and from interfering in any way with their enjoyment of the lands. The appellants in support of their claim contended that the notification extending the United Provinces Town Improvement Act, 8 of 1919, was invalid, that the Improve ment Trust was not lawfully constituted, that the industrial development schemes were invalid, that the Trust had no power to acquire lands for the purposes mentioned in the scheme, and that the resolutions and proceedings of the Trust being procedurally defective, the scheme "was illegal". The appellants also contended that the scheme was framed at the instance of and solely for the benefit of ~e. Company, since the land was intended to be given after acqms1t10n to that Company or to other industrialists for

SUPREME COURT REPORTS

(1966] 8'C1'P. 8.C.R.

development by them for their own benefit. The Subordinate Judge, A Delhi, held that the Act was properly extended to the Delhi territory, that the scheme was valid and the Trust had power to acquire the land, but in the view of the Subordinate Judge there was "nothing on the record to show that the area in suit" was "necessary for or" was "affected by the execution of this scheme," and that

"the Act does not authorise compulsory acquisition for purposes B of recoupment or for allotment to some company". The Subordinate Judge accordingly decreed the suit as claimed by the appellants.

In appeal to the Senior Subordinate Judge with appellate powers the decree passed by the Trial Court was affirmed. In second appeal to the High Court of Punjab, Falshaw, J., reversed C the decree passed by the First Appellate Court. In the view of the learned Judge, since the original industrial area scheme framed in

1940. was a valid scheme, acquisition of an additional area of land for. meeting the requirements of that scheme was a legitimate extension thereof and merely because the Trust had resolved to acquire land for sale to the Company after development. the scheme was not open to challenge. He also held that the acquisition not D being for the Company, Part VII of the Land Acquisition Act had no application and that the supplementary scheme was not invalid merely because the plan for development was to be worked out not by the Trust directly but by the Company under the general supervision and control of the Trust, and in accordance with the town planning scheme framed under s. 192 of the Punjab Municipal Act. The decree passed by Falshaw, J., was confirmed by a Division Bench of the High Court. With certificate granted by the E High Court, this appeal has been preferred.

The arguments in this case have ranged over a wide field, but in the main three que, tions of law fall to be decided: (() Whether acquisition of land of the appellants under the supplementary scheme was for the purposes of the Act; (2) whether for executing the supplementary scheme the Trust had power to compulsorily p acquire land; and (3l whether land of the appellants could be acquired only in the manner provided by the Part VII of the Land Acquisition Act, 1894.

The Act as the preamble discloses was enacted with a view to make provision for the improvement and expansion of towns.

Chapter II of the Act deals with the constitution of Improvement G Trusts for carrying out the provisions of the Act. Chapter III deals with the proceedings of the Trust and Committees thereof. Chapter IV deals with different forms of improvement schemes. Section 23 describes in els. (a) to (p) matters which may be provided for in an improvement scheme. Clauses (a) & (g) thereof read as follows:

"(a) The acquisition by purchase, exchange, or otherwise of H any property necessary for or affected by the execution of the scheme."

....

"(g) The sale, Jetting, or exchange of any property comprised in the scheme." By s. 24 it is provided that an improvement scheme shall be one of the following types, or may combine any two or more of such types, or of any special features of, that is to say,-

(a) a general improvement scheme;

(b) a re-building scheme;

(c) a re-housing scheme;

(d) a street scheme;

(e) a deferred street scheme;

(f) a development scheme;

(g) a housing accommodation scheme; and

(h) a town expansion scheme.

Sections 25 to 32 set out the conditions in which the different classes of schemes may be framed and provisions which may be made in those schemes. Provisions relating to development schemes in s. 30 and town expansion schemes in s. 32 alone are material.

By s. 30 els. (I) & (2) it is provided:

"(I) In regard to any area to which this Act is extended, the Trust may, from time to time, prepare a scheme of proposed public streets with plans showing the direction of such streets, the streets alignment and building line on each side of them, their intended width and such other details as may appear desirable.

(2) When any such scheme has been notified under section 42 the street to which it refers shall be deemed to be projected public street." Restrictions are then placed upon the right of occupants of the buildings to erect, re-erect, add to or alter any building or wall, and provision is made for other related matters. Section 32 reads:

"(I) Whenever the Trust is of opinion that it is expedient and for the public advantage to control and provide for the future expansion of a municipality in any area to which this Act is extended, the Trust may frame a scheme (to be called a "town expansion scheme").

(2) Such scheme shall show the method in whioh it is proposed to lay out the area to be developed and the purposes for which particular areas are to be utilized.

(3) For the purposes of a town expansion scheme the provisions of clause (a) of sub-section (2) of section 40 shall not be applicable, but the Trust shall be required to supply such details as the State Government may consider necessary.

(4) When any such scheme has been notified under section 42, if any person desires to erect, re-erect, add to or alter any building or wall within the area comprised in the said scheme, he shall apply to the Trust for permission to do so.

82 Rl'PREME COURT REPORTS

(1966] SUPP. S.C.R.

(5) If the Trust refuses to grant permission to any person A to er7ct, re-erect, add to or alter any building or wall on his land m the aea. aforesaid, and if it does not proceed to acquire such land within one year from the date of such refusal, it shall pay reasonable compensation to such person for any damage sustained by him in consequence of such refusal."

ection 33 deals with the procedure to be followed in framing B improvement schemes. Section 36, i111er a/ia, deals with the prepa ration, publication and transmission of notices about the improve ment schemes. Section 38 deals with notice of proposed acquisition of land. Section 40 authorises the abandonment of and submission of the schemes for sanction to the State Government with such modifications as the Trust may consider necessary after consider C ing the objections or representations which may be received. Section 41 authorises the State Government to sanction with or without modification, or refuse to sanction, or return for reconsideration, any improvement scheme submitted to it under s. 40. Section 42 provides:

"(!) Whenever the State Government sanctions an improve ment scheme it shall announce the fact by notification, and D except in the case of a deferred street scheme, development scheme. or town expansion scheme. the Trust shall forthwith proceed to execute the same.

(2) The publication of a notification under sub-section (!) in respect of any scheme shall be conclusive evidence that the scheme has been duly framed and sanctioned."

Section 43 provides for alteration in an improvement scheme before it had been carried into execution, subject to certain condi tions specified therein. Chapter V deals with the powers and duties

of the Trust in respect of a scheme which has been sanctioned.

Section 55 authorises the Trust to enter into an agreement with any person for the purchase. lease or exchange by the Trust of any land which the Trust is authorised to acquire or any interest in such r land. Section 56 provides that the Trust may, with the previous sanction of the State Government, acquire land under the provi sions of the Land Acquisition Act, 1894, as modified by the provi sions of the Act for carrying out any of the purposes of the Act.

Section 58 provides that for the purpose of a(Xjuiring land under the Land Acquisition Act for the Trust, the Tribunal constituted

under s. 57 shall be deemed to be the Court, and the President of G I the Tribunal shall be deemed to be the Judge under the said Act subject to further modifications indicated in the Schedule, and that the award of the Tribunal shall be deemed to be the award of a Court under the Land Acquisition Act, 1894, and shall be final. At this stage, the material provisions of the Schedule referred to in ' 58 may be referred to. The Schedule amends the Land Acquisi B tion Act in certain respects. The expression "local authority" in s. 3(ee) of the Land Acquisition Act includes a Trust constituted

, A

' F

under the United Provinces Town Improvement Act, 1919. By

cl. 2(1) the first publication of the notice of an improvement scheme under s. 36 of the Act is substituted for and has the same effect as publication in the Official Gazette and in the locality, of a notification under sub-section (!) of s. 4 of the Act, except where a declaration under s. 4 or s. 6 of the Act had previously been made and was still in force. By sub-cl. (2) of cl. 2, inter alia, publication of a notification under s. 42 is substituted for and has the same effect as a declaration by the State Government under s. 6 of the Act, unless a declaration under the last mentioned section had previously been made and was still in force. By cl. 6, s. 17-A is incorporated in the Land Acquisition Act, and it reads:

"In every case referred to in section 16 or section 17, the Collector shall, upon payment of the cost of acquisition, make over charge of the land to the Trust; and the land shall thereupon vest in the Trust, subject to the liability of the Trust to pay any further costs which may be incurred on account of its acquisition." Section 65 of the Act deals with disposal of l®d. It provides:

"Subject to any rules made by the State Government under section 72 of this Act, the Trust may retain, or may let on hire, lease, sell, exchange or otherwise dispose of, any land vested in or acquired by it under this Act." Broadly stated the scheme of the Act is that with a view to make improvements in towns the Trust may make certain order after framing an appropriate scheme of a type or containing special features of different types of schemes mentioned in s. 24. The scheme so framed m<1y make provisions for matters which are prescribed by s. 23 and such other matters as are provided for speciallY, in the appropriate sections dealing with the different classes of schemes.

The relevant resolutions adopted by the Trust for framing the original! and supplementary schemes may be briefly noticed. On June 30, 1942 it was resolved by the Trust to acquire an additional area of 103.16 acres to be sold to the Company. The resolution reads as follows:

"A reference is invited to Board's resolution No. 78 of the 29th March, 1940 relating to the Trust's Industrial Area Scheme. The scheme as approved by the Board and sanctioned by the Chief Commissioner covers an area of about 479.81 acres and provides for the acquisition and development of 271.21 acres of land . at a cost not exceeding Rs. 6.84 lakhs, and the acquisition and development of the remaining 208.6 acres provided any one or more reputable industrialists deposit with or guarantee to the Trust the cost of acquiring and developing this additional area. As decided by the Board in their Resolution Nos. 108 amd 109

eL"PREME C-OURT REPORTS (1966] SUPP. e.o.n.

of the 16th May, 1941 the scheme as regards block 'I' in sub A scheme 'A' has been held in abeyance and land in block II has been acquired and is under development for factory sites.

The B?ard have now agreed to sell 268 acres of land in the Industrial Area to the Delhi Cloth and General Mills Co.

Ltd., on the terms and conditions embodied in Resolution No B 19 of the 9th of January, 1942 as amended by Resolution No: 50 of the 27th March, 1942.

"The Trust can . . . . offer only 174.84 acres out of the land falling within the boundaries of the sanctioned scheme to the Company for the present. . . . . .

It 1s therefore proposed to alter under section 43 of the Trust C Law, the scheme as sanctioned so as to provide for the acquisition of this additional area of 103.16 acres to be sold to the Company.

As under the terms of the sale this additional area is to be developed by the Company, the Trust will have to incur initially expenditure only on acquisition of this land. " Pursuant to this resolution notices were issued under s. 36 of the D Act in respect of the acquisition of the area. Thereafter a resolution was passed on July 31, 1944 and it was stated in the introductory part of the resolution:

"The present site of the industrial area was seleoted as being suitably located vis-a-vis the city and the newly developed Trust area. There was no other site available where such E facilities for roads and railway lines existed. The sizes of the plots were fi xcd on the basis of the demand of different industrialists."

The scheme was then sanctioned under s. 42 of the Act.

The resolution Of the Trust dated March 29,

1940. clearly indicates that the original scheme was intended to secure growth r of an industrial area and thereby to relieve congestion in the over-crowded localities in the town of Delhi. Such a scheme was primarily a town expansion scheme within the meaning of s. 24(b) read with s. J2. In framing such a scheme the ; Jrovisions of a development scheme were incidentally incorporated, and that the Trust, by express enaetment in s. 24 was competent to do.

It appears that neither before Falshaw, J., nor before the High G Court the validity of the original scheme of 1940 was challenged.

Counsel for the appellants contended that no reliance was ever placed by the Trust before the Trial Court or the First Appellate Court upon the original scheme and the appellants bad no opportunity for challenging the validity of that scheme, but we are unable to accept that contention. The appellants by their plaint challenged H the application of the U.P. Town Improvement Act, the constitution of the Trust and the various steps taken by the Trust resulting

a ...

' '•

DALCBAND V. IMPROVEMENT TRUST (Shah, J.) 35

in the acquisition of their land. The original schee was tendered in evidence before the Court of First Instance. It 1s true that arguments in the Trial Court and the First Appellate Court were primarily directed to canvassing the validity of the supplementary scheme in enforcement of which the property of the appellants was acquired. But it cannot be said that the original scheme was not before the Court or that its validity was not challenged. In any event counsel for the appellants has not been able to suggest any ground on which that scheme is open to challenge. The supplementary scheme, as the resolution dated June 30, 1942 clearly indicates, was framed for the further progress of the original scheme.

The scheme was one for town expansion, and acquisition of land

for town expansion, i.e. providing for industrial development and making provision for the residence of employees in the industries and of others, would clearly fall within the terms of s. 24(h) read with s. 32. It is true that in the resolution dated June 30, 1942 it is recited that the scheme was to provide for the acquisition of "an additional area of 103.16 acres to be sold to the Company". But from a perusal of the primary scheme it is clear that the Company had expressed its requirement for a large area of land under the development scheme and the resolution dated March 29, 1940 had approved of that requirement. It was recited in the resolution that the Company was employing a large number of labourers and removal of the factory to the outskirts of Delhi would contribute in a substantial measure to relief of congestion and also because esta:blishment of a big concern in the industrial area would afford great stimulus to the development of the area. It was found after Part 'A' of the original scheme was carried out that the area provided for the Company was inadequate for its requirements and the Company requested that a larger area may be provided, and accordingly the supplementary scheme was framed.

Resort to the provisions of the Act for a:cquiring land with a view to hand it over to an industrial concern for private gain may not fall within the terms of the Act. But in the circumstances already set out a scheme framed which contemplates acquisition of land for effectuating the object of the original scheme is not open to challenge on the ground that it is a device to acquire land to be disposed of for private gain of an industrialist. The original and the supplementary schemes must be regarded as one composite scheme conceived in the interests of industriaJI development and relief of congestion by inducing a flow of population from the congested areas. The object of the supplementary scheme was to effectuate the purpose of the original scheme and failure to frame that scheme may seriously have affected the utility of the original scheme.

There is no warrant for the contention raised by the appellants H that the land was not to be developed by the Trust, but was to be acquired and handed over to the Company. It is clear from the scheme that the general supervision and control over the execution

81JPREME COCRT REPORTS [1966]

SUPP.

S.C.R.

of the supplementary scheme as over the original scheme was ro- A tained by the Trust and the Company was to develop the land subject to control under the Town Planning Scheme.

The argument that in a town expansion scheme under s. 32 read with s. 24(h) of the Act, there is no power to acquire land compulsorily is futile. Section 23(a) in terms authorises acquisition by purohase. exchange, or otherwise of any property necessary for B or affected by the execution of the scheme. That provision may be incorporated in any of the improvement schemes of the types men tioned in s. 24. Again Section 32 clearly implies that in a town ex pansion scheme such a power would be reserved, for the Trust is statutorily declared liable to pay compensation when permission to alter any building or wall on the land in the area is denied, if the Trust docs not proceed to acquire such land within one year from C the dato of such reful. By s. 55 a general power to purchase or lease by agreement of any land which the Trust is authorised to acquire is granted and by s. 56 power to acquire land under the Land Acquisition Act, 1894, is expressly conferred. It is true that under the provisions relating to other classes Of schemes, for instance, s. 26(2)(0, s. 28(2)(a), s. 29(3) an express provision with regard to acquisition of land is made, and there is no such express D provision in s. 32. But that by itself is not sufficient to justify an inference that the provisions of s. 23(a) relating to acquisition of land necessary for or affected by the execution of the scheme may not be conferred in sanctioning a town expansion scheme. If the view contended for be correct, s. 23(a) will not have application to any scheme. We are unable to see any reason why s. 56 which authorises the Trust to acquire land is to be restricted only to those E cases in which in the case of a specific scheme an express provision conferring power of acquisition apart from s. 23(a) is conferred.

Nor is there any substance in the contention that the provi sions of Part VII of the Land Acquisition Act had to be resorted to by the Trust for acquiring land which was to be allotted to a Company after development. If the land is to be notified for acqui- F sition under the Land Acquisition Act for a Company, the require ments of Part VII of the Land Acquisition Act must undoubtedly be complied with, and failure to do so would render the acquisition invalid. In this case land was not to be acquired for the Company: it was to be acquired for carrying out the industrial development and town expansion scheme of the Trust, and then it was to be allotted for carrying out the scheme to the Company for develop- G ment. Power to include provision for sale of land comprised in the scheme may competently be conferred under s. 23(gl of the Act and may be exercised under s. 65. Mere inclusion of a power of sale of land acquired under a scheme does not therefore vitiate a scheme.

The argument that in passing the resolution for bringing into H force the supplementary scheme one of the Directors of the Com

pany had participated need not detain us. This argument was

\ ..

' .

I '

DALOHAND v. IMPROVEMENT TRUST (Shah, J.) 37

apparently not raised before the High Court, and having regard to the terms of ss. 42 & 100 of the Act has no force.

It is true that if the land of the appellants had been acquired under the Land Acquisition Act, the appellants may have become entitled to the statutory solatium in addition to the market value.

But if the Act is valid, and could be resorted to for oompulsorily acquiring land of the appellants, the awards made under the Act are not open to challenge on the ground that if another scheme of acquisition had been resorted to, the appellants may possibly have obtained more compensation.

The appeal must therefore fail. Having regard however to the circumstances of the case, we think that in this case there should be no order as to costs throughout.

Appeal dismissed.

l

DALCHAND & ORS

DELHI IMPROVEMENT TRUST (NOW DELHI DEVELOPMENT AUTHORITY), NEW DELHI

K. N. WANCHOO

C. SHAH, JJ.

United Provinces Town Improvement Act

ss. 23(a), 24

Town Improvement Act

ss.32, 55 and 5G

s. 7

Improvement Trust under the Act

s. 42

s. 36

s. 42

s. 58

Part VII of the Land Acquisition Act

s. 192

Section 23

s. 24

Sections 25 to 32

s. 30

s. 32

s. 30

section 42

Section 32

section 40

section 42

Section 36

Section 38

Section 40

Section 41

s. 40

Section 42

Section 43

Section 55

Section 56

Land Acquisition Act, 1894

Section 58

s. 57

s. 3(ee)

cl. 2(1)

s. 36

s. 4

s. 4

s. 6

cl. 2

s. 42

s. 6

cl. 6

s. 17

section 16

section 17

Section 65

section 72

s. 24

s. 23

section 43

s. 36

s. 42

s. 24(b)

s. 24

Town Improvement Act

s. 24(h)

s. 32

s. 32

s. 24(h)

Section 23(a)

s. 24

Section 32

s. 55

s. 56

Land Acquisition Act, 1894

s. 26(2)(0, s. 28(2)(a)

s. 29(3)

s. 32

s. 23(a)

s. 23(a)

s. 56

s. 23(a)

Part VII of the Land Acquisition Act

ss. 42 & 100


JAHURI SAH & ORS.

DW ARKA PRASAD JHUNJHUNW ALA & ORS.

April 27. 1966

[M. HIDAYATVLLAll, J. R. MuDHOLKAR, R. S. BACHA WAT AND J.M.

SHELAT, JJ.J

Bihar Buildings (Lease, Rent and Eviction) Control Act 1947 (Bihar Act 3 of 1947)-Co-owner of house agreeing to pay compensation to other c<>-owner for occupation of house-Relationship of tenant and landlord whether arises-Act whether applicable-Agreement to pau compensation whether enforceable.

Adoption-Existence of deed of adoption admitted-Oral evidence wheter barred.

Two Hindu undivided families one of them being represented by the appellants and the other by the respondents were co-owners of a house which was purchased by them jointly. The appellants occupied a major portion of the house on an agreed compensation being payable by them to the respondents in respect of the latter's hare occupied by them. On the compensation not being paid as agreed, the respondents filed a suit for its recovery, as well as for partition. In the plaint one S was mentioned as having been adopted out of the plaintiff family and for that reason he was not impleaded. The appellants resisted the suit on the grounds that: (il S had not been impleaded alt.hough a co-owner, (; i) th" S'Uit was barred by the Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947), and (iii) the contract fCJr payment of compensation was not enforceable as there was no ouster of the plaintiffs by the respondents. The trial court decided in favour of the appellants but the High Court held against them. They came to this Court by special leave.

HELD: (i) The suit was not incompetent because S was not made a party thereto. The fact of adoption was stated in the plaint and had not been specifically denied by the appellants in their written statements. No specific issue on the question of adoption \Vas raised and it could not be therefore argued that S's adoption had not

lJeen established. [284 A-B. Fl

Oral evidence of the fact of adoption did not become inadmissible merP.ly brcause the existence of a deed of adoption \Vas admitted. A deed of adoption merely records the fact that an adoption had taken place and noth!ng more. Such a deed cannot be likened to a document \vhich by its sheer force brings a transaction into existence

[284 D-E] .

(ii) The me:• fact that the defendants agreed to pay compensation to the plaml1fTs for their occupation of the plaintifT's share

would. not brmg mto existence a relationship of landlord and tenant.

B~ this agreement the part 1es never intendP.d to constitute a relation- H ship of Ia.ndlord and tenant lJetween the defendants and their coowners. B1har Act 3 of 1947 was therefore inapPlicable and the suit could not be said to be barred under its provisions. [285 CJ

JAHURT SAii i. JJIUNJllUNWAl.A (Mudlwlkar, .l.) 281

(iii) Co-owners are legally competent to come to any kind of agreement for the enjoyment of their undivided property and are free to lay down any terms covering the enjoyment of the property.

Ouster of a coowner is not a sine qua non for enabling him to claim compensation from the co-owner who is in occupation and enjoyment of common property. [285 E-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 193 of 1964.

Appeal from the judgment and decree dated May 13, 1960 of the Patna High Court in Appeal from Original Decree No. 132 of 1955 and order dated February 15, 1962 in M. J. C. No. 265 of 1961. c Sar; oo Prasad, S. C. Sinha and B. P. Jha, for the appellants.

S. T. Desai and R. C. Prasad. for the respondents.

The Judgment of the Court was delivered by '"* Mudholkar, J. This is an appeal by certificate from a judg-

' '

I ~

ment of the Patna High Court reversing that of the trial court D dismiss; ng the plaintiffs' suit for partition and separate possession of t:1eir half share in a house and for payment of compensation from May 2, 1947 to September 11, 1951 at the rate of Rs. 200/- p.m. with interest and for payment of compensation at the same rate from the date of suit till the recovery of possession of theii; share in the house.

The facts which are not disputed before us are these: The property in dispute which is situate within the limits of the municipality of Bhagalpur was purchased jointly by five persons, Juri Mal, Gajanand, Ramasahai Sah, Jahuri Sah and Ramgali Sah. The first two of these are father and son (and were members of a joint Hindu family).· Both of them are dead.

Plaintiffs 1 to 4 are the sons and plaintiff 6 is the widow of Gajanand and plaintiff No. 5 is the widow of Jurimal. Jurimal, Gajanand (constituted a joint Hindu family) and plaintiffs 1 to 4 constituted a joint Hindu family. Ramsahai, Jahauri Sah and Ramgali were brothers and were members of a joint Hindu family. Jahuri Sah is defendant No. 1 and Ramgali Sah is defendant No. 2. They, along with the remaining defendants, are members of a joint Hindu family of which J ahauri Sah is the kart a.

The property in question was purchased by the two joint families, each family having ha.Jf interest therein. The date of the transaction was June 26, 1942. At the time of the purchase of the property it was in the possession of Mohanlal Marwari as a tenant. He was evicted therefrom by a decree of the court and H thereafter it was let out to Government, the compensation having been settled at Rs. I 00 /- per mensem. The Government vacated the house after some time whereafter the defendants occ11pied the L/S5SCI-20(a)

282 BUPREllE OOUJIT REPORTS

(1966] SUPP. 8.C.R,

house excepting a portion thereof which was in the occupation A of Isri Sah and Shib Charan Sah as tenants paying a monthly rent of Rs. 30/-. Half of this rent was being realised by each family.

According to the plaintiffs when the defendants entered into possession of the property they agreed to pay Rs. 200/- per mensem as compensation to the plaintiffs' family with respect to their half share in the property. They, however, did not pay any compensation to the plaintiffs despite 1he agreement.

On these allegations the plaintiffs instituted their suit. In the plaint they stated that Gajanand had another son named Shankarlal but he was given in adoption to Sreclal, P. W. 6 and he was, therefore, not joined as party to the suit.

The defendants denied the claim and stated that the sui~ was barred by the provisions of the Bihar Buildings <Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) (hereafter referred to as the Act) as well as by the rule of cstoppel. They also raised the plea that under the contract entered into between the two families Rs. 50/- p.m. was payable as compensation and not Rs. 200 /- p.m. as alleged by the plaintiffs. According to them the suit was barred by the rule of estoppel. They contended that the claim for compensation for a period prior to the expiry of 3 years from the date of suit was barred by time. They also raised some other contentions in the written statement but it is unnecessary to refer to them inasmuch as we must confine ourselves to the points urged before us by Mr. Sarjoo Prasad on their behalf. The points arc: (I) that the suit for partition and separate possession was not maintainable; and (2) that the contract under which the plaintiffs claimed compensation is not enforceable.

The suit is said to be not maintainable because

(a) one of the co-owners of the property was not joined as a party to the suit and (b) also because it was barred by the Act. The contract for payment of compensation was said to be not enforceable as there was no ouster of the plaintiffs by the defendants.

The trial court held that the provisions of the Act applied and by virtue of those provisions the plaintiffs were not entitled to a decree for eviction of the defendants nor were they entitled to a decree for compensation and that the adoption of Shankarlal not having been proved the suit as constituted was not maintainable.

On this point the High Court arrived at different conclusions. The view taken by the High Court was that the provisions

of the Act did not apply to this case. that the defendants not having specifically denied the fact of adoption and no issues thereon having been raised the trial court erred in holding that H the adoption was not proved and that non-joinder of Shankarlal was not an impediment to the institution of the suit. Further

jAlfURI SAll v. JllUJljHTJNWAM (!vlwlholkar, J.) 283

according to the High Court the contract to pay compensation at the rate of Rs. 200 /- p.m. was duly established and that as it was competent to a civil court to enforce the contract the suit for recovery of arrears of compensation was maintainable. The High Court accepted the defendants' contention that the claim for arrears must be limited to a period of three years prior to ths institution of the suit. It allowed interest on the arrears at 6 % p.a. and decreed the claim of the plaintiffs for partition and for arrears of compensation. The plaintiffs then moved the High Court under s. 151 read with O.XX, r. 18, Code of Civil Procedure for granting them appropriate relief with respect to their claim for compensation, for use and occupation of the house from the date of suit till delivery of possession of their share after passing the final decree. The High Court allowed this application and directed that the plaintiffs shall also be entitled to compensation from the date of institution of the suit until recovery of physical possession of their share after partition or until the expiry of three years from the date of its decree, whichever event first occurs. It also made an appropriate order regarding costs.

Aggrieved by this decree of the High Court as amended by its subsequent order upon the plaintiffs' application under s. 151 read with O.XX, r. 18, C.P.C. the defendants have come up to this Court.

In our opinion the High Court was right in holding that the Act is inapplicable to this case. The plaintiffs and defendants were admittedly co-owners of the property. As the property had not been partitioned it was open to either or both the parties to occupy it. The defendants occupied the property except a small portion which was in possession of the tenants. The plaintiffs acquiesced in it because of an agreement between the parties that the defendants would pay Rs. 200 /- p.m. as compensation to them. The defendants did not dispute that there was an agreement about payment of compensation between the parties but their plea was that the amount agreed to was Rs. 50 /- p.m. and not Rs. 200 /- p.m. Their contention in this behalf was rejected by the High Court which accepted the plaintiffs' contention that the amount was Rs. 200 /- p.m. This part of the High Court's judgment is not challenged before us by Mr. Sarjoo Prasad. He, however. challenged the finding of the High Court that the claim to compensation was enforceable. But before we deal with this matter it would be appropriate to deal with the reasons given by him in support of the contention that the suit was not maintainable. He reiterated the argument urged before the trial court based upon the non-joinder of Shankarlal as a party to the suit.

According to him. as Shankarlal's adoption has not been established by the plaintiffs he was also a co-owner of the property

SUPREME COURT REPORTS

(1966] SUPP. S.C.R.

and his non-joindcr as a party to the suit rendered the suit incompetent. The High Court has pointed out that the plaintiffs have clearly stated in para 1 of the plaint that Shankarlal had been given in adoption to Srcelal.

In neither of the two written statements liled on behalf of the defendants has this assertion of fact by the plaintiffs been specifically denied. Instead, what is stated in both these written statements is that the defendants have no knowledge of the allegations made in para I of the plaint. Bearing in mind that O.VllI, r. 5, C.P.C. provides that every allegation of fact in the plaint, if not denied specifically or by necessary implie<1tion or stated to be not admitted in the pleading of the defendant shall be t,1ken to be admitted, to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact, not even an implied denial. No specific issue on the question of adoption was. therefore, raised. In the circumstances the High Court was right in saying that there was no occasion for the parties to lead any cnvdence on th.e point. However. Srcclal who was examined as a witness on behalf of the plaintiffs has spoken about the fact of adoption and his statement can at least be regarded as prima facie evidence of adoption. It is true that he admits the existence of a deed of adoption and of its non-production in the court. This admission. however, would not render oral evidence inadmissible because it is not by virtue of a deed of adoption that a change of status of a person can be effected. A deed of adoption merely records the fact that an adoption had taken place and nothing more. Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence. It is no more than a piece of evidence and the failure of a party to produce such a document in a suit does not render oral evidence 111 proof of adoption inadmissihle. We. therefore. agree with the High Court that the plaintiffs' suit for partition of their half share in the property was not incompetent because Shankarlal was not made a party thereto.

We will now deal with the other ground urged by Mr. Sarjoo Prasad in support of hi, contention that the suit is not maintainable. Under sub-s. (21 of s. 11 of the Act as it stood on the date of the suit a claim for eviction of a tenant or a claim for recovery of possession of a building and claim for rent thereof

had to be made before the Rent Controller alone and consequ- G ently the jurisdiction of the civil court for the enforcement of such claims was ousted. But, for the provisions of this section to apply.

the relationship between the plaintiff and the defendant should be that of a landlord and tenant.

If they arc co-owners of the property and the property is held by them as tenants-in-common no question of relationship of landlord and tenant comes into H being as between them. The common case of the parties is that they are in fact co-owners of the property and the respective

, I

A •

, IAHU!U SAH v. JHIJNJHUNWALA (Mudholkai", J.) 285

shares of the two families have not been demarcated. They, therefore, continue to be tenants in common. It is true that the entire property (save a small portion which was in possession of tenants) is in the actual occupation of the defendants which means that they are in occupation not only of their share in the property but also of the plaintiffs' share. That fact, however, would not make them tenants of the plaintiffs. Under the law each tenantin-common is entitled to the possession of the entire property, that is, to every part of it though its right to possession is limited to the extent of the share in the property. The mere fact that the defendants agreed to pay cgmpensation to the plaintiffs for their occupation of the entire property (ignoring the portion in possession of the tenants) would not bring into existence a relationship of landlord and tenant. By this agreement, the parties never intended to constitute a relationship of landlord and tenant between the defendants and their co-owners. The provisions of the Act are, therefore, inapplicable. The second ground urged by Mr.

Sarjoo Prasad, therefore, fails.

What we have to consider then is whether the contract for payment of compensation is not enforceable. It is no dbubt true that under the law every co-owner of undivided property is entitled to enjoy the whole of the property and is not liable to pay compensation to the other co-owners who have not chosen to enjoy the property. It is also true that liability to pay compensation arises against a co-owner who deliberately excludes the other co-owners from the enjoyment of the property. It does not, however, follow that the liability to pay compensation arises only in such a case and no other. Co-owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment of the property. There is no principle of law which would exclude them from providing in the agreement that those of them as arc in actual occupation and enjoyment of the property shall pay to the other co-owners compensation. No authority was cited by learned counsel in support of his contention that ouster of a co-owner is a sine qua non for enabling him to claim compensation from the co-owner who is in occupation and enjoyment of common property. We, therefore, reject the contention.

In the circumstances, therefore, we dismiss the appeal with costs.

Appeal dismissed.

JAHURI SAH & ORS

DW ARKA PRASAD JHUNJHUNW ALA & ORS

R. MuDHOLKAR

SHELAT, JJ

Control Act 1947

Control Act, 1947

Control Act, 1947

s. 151

Code of Civil Procedure

s. 151

C.P.C

C.P.C

s. 11