Delhi High Court
Dcm Limited vs Dda on 29 May, 2009
Author: Sudershan Kumar Misra
Bench: Sanjay Kishan Kaul, Sudershan Kumar Misra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA (OS) No. 17/1995
Reserved on: March 5, 2009
Date of Decision: May 29, 2009
DCM LIMITED .......Appellant
Through : Mr. Sanjeev Anand and Ms. Kajal
Chandra, Advocate for the appellant
Versus
DDA .......Respondent
Through : Ms. Shobhna Takiar, Advocate for
the respondent
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether Reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
SUDERSHAN KUMAR MISRA, J.
1. The appellant, DCM Limited, has instituted this Regular First Appeal against a decision of a Single Judge of this Court whereby an application filed by the respondent/defendant, Delhi Development Authority (DDA), under Order 7 Rule 11 of the Code of Civil Procedure, was allowed and consequently, the plaint in suit No. 1085 of 1991 filed by the appellant stood rejected.
RFA (OS) No. 17/1995 Page 1 of 21
2. The appellant had instituted Suit No. 1085 of 1991 against the DDA praying for a declaration and injunction in respect of land situated in Baghraoji, Delhi. In that suit, the appellant contended that some other land owned by it was taken over by the Delhi Improvement Trust since it was required for re-alignment of a drain known as daryai nala, and the appellant was allotted the suit land in exchange. Actual physical possession of that land was also stated to have been handed over to the appellant on two dates in 1942 and 1943. It was contended that consequently, ever since 1943, the appellant has been in continuous, exclusive and uninterrupted possession and enjoyment of the suit land, as its owner. The appellant further alleged that despite this, ever since Ist September, 1955, the appellant‟s possession was sought to be disturbed, first by the Delhi Improvement Trust and thereafter by its successor, the DDA on the specious ground that the appellant was in unauthorized possession of the suit land and, therefore, it was liable to eviction and damages. In its suit, the appellant impugned the validity of the proceedings initiated by the DDA against it under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (Public Premises Act) on the allegation that the said proceedings are without jurisdiction since it is in occupation of the suit premises as the owner thereof, and that in the alternative, it has become the owner of the suit property by adverse possession.
3. The aforesaid suit of the appellant contained no averment of due service of notice under Section 53-B of the Delhi Development Act, 1957. In its written statement filed in response to the plaint, the RFA (OS) No. 17/1995 Page 2 of 21 DDA raised no defence, nor did it take any objection to the maintainability of the plaint in the absence of the requisite notice under Section 53-B of the Delhi Development Act.
4. Along with its suit, the appellant had also moved an interim application praying for stay of eviction proceedings pending before the Estate Officer under the Public Premises Act. Stay of dispossession was also sought. On 24th July, 1991, the Single Judge directed that possession of the petitioner shall not be disturbed until further orders. This interim order was made absolute on 23rd March, 1992. It was only thereafter that the respondent filed its written statement.
5. After filing its written statement, the DDA moved I.A. No. 11206 of 1992 under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure praying that the plaint be rejected, inter alia, on the ground that the appellant had failed to give the requisite notice under Section 53-B of the Delhi Development Act to the DDA before instituting the suit.
6. In reply to this application the appellant stated, inter alia, that since no plea in bar had been raised by the DDA in its written statement on the ground of non-service of requisite notice under Section 53-B of the DDA Act, it must be presumed that the DDA had waived the requirement of notice under Section 53-B of the Delhi Development Act. In addition, it was also averred that the reply filed by the appellant on 8th February, 1990 in the ongoing proceedings under the Public Premises Act had spelt out its entire claim in suit and, therefore, the DDA was fully aware of its claim ever since. RFA (OS) No. 17/1995 Page 3 of 21 Consequently, in view of its prior knowledge of the appellant‟s claim, the DDA was not put to any disadvantage by the lack of notice under Section 53-B of the Delhi Development Act. It was contended that under the circumstances, no useful purpose would have been served by issuing the said notice to the DDA.
7. About six months after the aforesaid application under Order 7 Rule 11 read with Section 151 CPC was filed by the DDA, and while it was pending disposal, the appellant moved the Court for leave to amend the plaint. The only amendment sought related to the description of the suit property. This was allowed and an appropriately amended plaint was filed. It appears that in response to the amended plaint, whereby the description of the suit property was suitably amended, the DDA was in turn permitted to amend its own pleading to enable it to respond to the appellant‟s aforesaid amendment, by filing an amended written statement. However, in the amended written statement, instead of confining itself to traversing that portion of the plaint which was amended, the DDA also included in it a preliminary objection with regard to the non-service of the notice under Section 53-B of the Delhi Development Act by the appellant.
8. Ultimately, the aforesaid application of the DDA under Order 7 Rule 11 CPC was allowed by the impugned order on 8th August, 1995 by the Single Judge on the ground that notice contemplated under Section 53-B of the Delhi Development Act had not been given by the appellant to the respondent.
9. By the impugned order, the learned Single Judge held that the notice contemplated in Section 53-B of the Delhi Development Act RFA (OS) No. 17/1995 Page 4 of 21 is similar to the notice mandated under Section 80 of the Code of Civil Procedure in the case of suits filed against a Government or public authorities, and therefore, a suit that does not comply with, "such like"
provisions, cannot be entertained by any court and deserves rejection under Order 7 Rule 11 CPC. Although, there is no discussion on the point, it was also held that, " mere failure to raise objection in the written statement cannot per se be regarded as a waiver." The impugned judgment also noticed that the objection regarding this aspect of the matter has been raised by the DDA in its application under Order 7 Rule 11 CPC; and that since the DDA had also raised the objection with regard to the non-compliance of Section 53-B of the Delhi Development Act in its amended written statement filed in response to the amended plaint, therefore, it cannot be said that this objection has in fact not been raised.
10. The appellant has based its appeal on three grounds. The first is that the provisions of Section 53-B of the Delhi Development Act are not applicable to the instant case and, therefore, the question of any prior notice in terms of the said provision does not arise. According to the appellant, the subject matter of the suit is a declaration of the appellant‟s existing rights in the suit property as the owner in rightful possession of the same in view of the initiation of proceedings for eviction of the appellant by the DDA under the Public Premises Act.
11. The second ground, which is taken as an alternative to the first, is that even it is assumed that prior notice was required to be given under Section 53-B of the Delhi Development Act by the RFA (OS) No. 17/1995 Page 5 of 21 appellant to the DDA; in the facts and circumstances of this case, no such notice was necessary because its claim to the suit property had been spelt out in its reply of 8th February, 1990 to the notice received by it from the Estate Officer under proceedings commenced at the instance of the DDA itself under the Public Premises Act. Consequently, the DDA was fully aware of the appellant‟s grievance. In this behalf, it is further contended that the object of issuing notice under Section 53-B of the Delhi Development Act is akin to that of Section 80 CPC, which is merely to make the concerned Authority aware of nature of the dispute and also to give it an opportunity to avoid litigation by examining the matter in advance. It is submitted that therefore the reply filed by the appellant on 8 th February, 1990 before the Estate Officer, putting forth the claim of the appellant to the suit land whilst praying that the notice dated 23 rd January, 1990 issued to the appellant under Section 4 of the Public Premises Act, be withdrawn, and the proceedings be dropped, constituted sufficient notice and amounted to adequate compliance of Section 53-B of the Delhi Development Act.
12. Finally, it is contended that since the DDA had failed to raise any objection while contesting the prayer for interim orders, or even in its written statement, with regard to non-compliance of Section 53-B of the Delhi Development Act by the appellant prior to institution of the suit, the DDA has in effect waived the requirement of notice contemplated under Section 53-B of the Delhi Development Act. In this context, it was also contended that the amended written statement was filed by the DDA only in response to the amendment in RFA (OS) No. 17/1995 Page 6 of 21 the suit carried out by the appellant, which was limited to an amendment in the description of the suit property and nothing more. It was contended that, therefore, the DDA could only file its traverse, if any, to that amendment in the suit and it was not open to the DDA to re-file the entire written statement afresh after reconsidering its defence or to raise any fresh plea, unconnected with the amendment in the plaint, such as the plea in bar of Section 53-B of Delhi Development Act, at that belated stage.
13. On the other hand, the DDA contends that the cause of action for the institution of the suit by the appellant was in fact the denial of title of the appellants to the suit property in question by the DDA, and the consequent initiation of proceedings by the DDA for eviction of the appellant under the Public Premises Act, was merely the procedure adopted by the DDA in recovering what it considered was its own land under the wrongful occupation of the appellants who, according to it, are unauthorized occupants. It is contended that in the light of these facts, the impugned action of the DDA are acts done or purporting to have been done in pursuance of the Delhi Development Act. Therefore the provisions of Section 53-B of the Delhi Development Act would be attracted in this case also. It is also contended that since Section 53-B(3) relaxes the rigour of Section 53- B(1) in those cases where, "the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit", it must be presumed that in all other suits, including the one filed by the appellant in the instant case, pre-suit notice contemplated under Section 53-B is a must, and RFA (OS) No. 17/1995 Page 7 of 21 that Section 53-B of the Delhi Development Act admits to no exception or waiver.
14. Turning to the first ground urged by the appellants to the effect that under the facts and circumstances, Section 53-B of the Delhi Development Act is not applicable to the instant case because, according to the appellants, the subject matter of the suit is not with respect to any act done or purported to have been done in pursuance of the DDA Act or any rule or regulation made thereunder. The relevant portion of Section 53B(1) of the DDA Act which operates as a bar to any suit that is filed before the expiration of two months after notice in writing has been given to the Authority, is limited to a suit which is, "in respect of any Act done or purporting to have been done in pursuance of this Act or any rule or regulation made thereunder ......." . It follows that for the provisions of the Section to apply, the impugned actions could have been such that they are stated to have been done or purported to be done, "in pursuance of", the DDA Act. In this context, it is important to note that, under Section 3 of that Act, the Central Government has been empowered to constitute the DDA for carrying out the purposes of the Act; and under Section 6 thereof, the objects of the Authority are stated thus:
"6. Objects of the Authority - The objects of the Authority shall be to promote and secure the development of Delhi according to plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with supply of water and electricity, disposal of sewage and other services and amenities and generally to do anything necessary or expedient for RFA (OS) No. 17/1995 Page 8 of 21 purposes of such development and for purposes incidental thereto;
Provided that save as provided in this Act, nothing contained in this Act shall be constructed as authorizing the disregard by the Authority of any law for the time being in force."
It is, therefore, clear that the DDA has been set up with the object of promoting and securing the development of Delhi. With this end in view, the Authority is empowered not only to, "acquire hold or manage" but also to take all steps that are either necessary or expedient for promoting and securing the development of Delhi as well as for purposes incidental thereto. At the same time, whilst carrying out these purposes, the Authority is not permitted to disregard any law for the time being in force. From this it follows that once the Authority is of the view that the land in suit is government land that was originally placed under the control and management of the Delhi Improvement Trust and thereafter with the DDA and it finds that the appellant is currently in possession of the said land, it is clearly empowered under the Delhi Development Act, 1957 to take all steps, not only to preserve its possession, but also to recover the same from anyone who, in its opinion, happens to be in unauthorized possession of the same. It is with this end in view that the DDA had resorted to the Public Premises Act.
15. The Public Premises Act shows that the same was enacted, "to provide for the eviction of unauthorized occupants from public premises and for certain incidental matters." In this context, Section 2(3)(ii) defines „public premises‟ to also include any premises belonging to the DDA. It follows, therefore, that all premises which RFA (OS) No. 17/1995 Page 9 of 21 the DDA claims it owns shall fall within the definition of „public premises‟ in respect of which it can seek eviction under that Act after satisfying the Estate Officer in this behalf. A perusal of the Delhi Development Act shows that there are no provisions contained in the said Act empowering the Authority to evict encroachers or other unauthorized occupants from its premises. On the other hand, the Public Premises Act specifically defines properties belonging to the DDA as public premises and provides for a procedure for eviction of unauthorized occupants from such premises. The Public Premises Act, is therefore law for the time being in force that lays down a procedure for eviction of unauthorized occupants from any premises belonging to the DDA.
16. Looking to the objects of the Authority as set down in Section 6 of the DDA Act, 1957, it is obvious that the Authority is empowered generally to do all acts which are necessary not only for the purposes of securing the development of Delhi, but for all purposes, "incidental thereto". To our mind, since all lands are vested in the DDA for the planned development of Delhi and the DDA is obliged, inter alia, to hold and manage such property for that purpose; it goes without saying that the power to secure the eviction of unauthorized occupants or encroachers from such lands would certainly be a purpose which is incidental to its primary purpose of promoting and securing the development of Delhi according to plan. At the same time, it is also noteworthy that, as provided by Section 6, nothing in the Act can be construed as authorizing the Authority to disregard any law for the time being in force. Public Premises Act, is RFA (OS) No. 17/1995 Page 10 of 21 one such law. We, therefore, have no hesitation in holding that the act of the DDA in instituting the proceedings under the Public Premises Act to secure the eviction of the appellants from the suit lands is an act which has been done in pursuance of the Delhi Development Act itself with a view to meeting the objectives for which the DDA was set up, and which have been specified under Section 6 of the Delhi Development Act. Consequently, it cannot be said that the suit instituted by the appellant against the DDA is not in respect of any act done or purported to be done by the DDA in pursuance of this Act. Looked at from this stand point alone, the requirements of Section 53- B(1) of the Delhi Development Act, were attracted to this case and requisite notice contemplated under that Section should have been given by the appellant to the respondent.
17. In support of his case that Section 53-B (1) had no application, counsel for the appellant has placed reliance on the decision of Supreme Court in the case of Devi Singh vs. Municipal Corporation, Hyderabad AIR 1972 Supreme Court 2510. That case turned upon the construction of Section 56 and 59 of the Hyderabad Municipal Corporation Act, 1950 to decide whether or not prior notice of any suit praying for an injunction against the Hyderabad Municipality, restraining it from interfering with the plaintiff‟s peaceful enjoyment and possession of the suit property, was necessary.
Section 59 of the Hyderabad Municipal Corporation Act empowered the Corporation, "to make provision for public parks, gardens, play-grounds and recreation grounds". Section 56 of the Act empowered the Corporation, "to remove obstructions upon public RFA (OS) No. 17/1995 Page 11 of 21 premises". In that case, Devi Singh averred that the property was his ancestral property which was owned and possessed by him and that the Corporation had been obstructing his possession for some time before the institution of the suit and that the Corporation intended to take over possession of that property. There, on facts, the Supreme Court had found that, "it was never the case of the plaintiff that the defendant corporation was acting or purporting to act under the provisions of the Act". Here, in the instant case, the suit brought by the appellant recognizes the fact that the DDA is seeking its eviction under the Public Premises Act. Since we have held in the preceding paragraphs that the action of the DDA in instituting proceedings under the Public Premises Act amounts to an act done in pursuance of the Delhi Development Act, therefore, it cannot be said that there is no averment, or that it is not the case of the appellant/plaintiff, that the suit has been brought in respect of acts done or purporting to have been done in pursuance of the Delhi Development Act, 1957. The factual position being quite different, not only with regard to the relevant provisions of the Delhi Development Act when compared with those of the Hyderabad Municipal Corporation Act, but also with regard to the scope of the averments made in the instant suit, we do not think that this authority is of much avail to the appellant.
18. The next case relied upon by the appellant is the decision of the Single Judge of the Orissa High Court in B.Baliarsing and another vs. Bamdev Misra and others AIR 1971 Orissa 291. This authority also is not of much use to the appellants since that case was concerned with a suit brought consequent upon an act of trespass by RFA (OS) No. 17/1995 Page 12 of 21 the Corporation and that Court had come to the conclusion in paragraph 9 thereof that, "an act of trespass cannot be construed as an act done or purported to have been done in execution or intended execution of the provisions of the Act, Rules or Regulations etc. as those provisions do not envisage or authorize acts of trespass." We need not go into the correctness or otherwise of this authority since we are of the view that the same does not have any application to the instant case where the cause of action in favour of the appellant to file the instant suit is not a trespass by DDA. It is the denial of title by DDA predicated on the claim that the suit property belongs to DDA and the consequent institution of proceedings by the DDA under the Public Premises Act to recover possession of the same. This authority, therefore, has no application to the instant suit.
19. Counsel for the appellant then relied on the decision of a Single Judge of this Court in, Rattan Singh and others vs. Delhi Municipal Corporation 1973, Municipalities and Corporation Cases 321. In this case, the plaintiff had sought an injunction on the threat of the Delhi Municipal Corporation to recover certain taxes which, according to the plaintiff, were not recoverable. Under the circumstances, the Court held that no notice under Section 478 of the Delhi Municipal Corporation Act was required before filing the suit for the reason that notice under that Section is mandatory only in cases where something has in fact been done or is purported to have been done in pursuance of the Act, whereas on the facts, the impugned action was merely a threat of doing an act which was sought to be injuncted and, therefore, it could not be said that there was any act RFA (OS) No. 17/1995 Page 13 of 21 that had been done or purported to be done in terms of Section 478(i) of the Delhi Municipal Corporation Act. Here, in this suit, the facts are quite different. Consequently, this authority is also of not much help to the appellants. Similarly, the other authorities also relied upon by learned counsel for the appellant are distinguishable and, in our opinion, are not relevant to this case with regard to the proposition that the provisions of Section 53-B of the Delhi Development Act are not attracted to the instant case. We therefore hold that the provisions of Section 53-B of that Act are applicable to the instant case also.
20. The next contention of the appellant‟s counsel is that even if it is assumed that Section 53-B was applicable, nevertheless, no notice under Section 53-B of the Delhi Development Act was necessary under the circumstances because the DDA had complete knowledge of the appellant‟s claim in respect of the suit premises and, therefore, no useful purpose would have been served by issuing the requisite notice under Section 53-B. In support, he has referred to a decision of this Court in Nehru Place Hotels vs. DDA etc. 1991 Rajdhani Law Reporter 389. There, it was held by a Single Judge of this Court that in a case where notice is issued to the DDA on a writ petition filed by a party, and that writ petition is thereafter withdrawn with permission to institute a suit against the DDA instead, the DDA cannot oppose the suit for lack of statutory notice as required by Section 53-B because all the requirements of the notice are contained in the earlier writ petition instituted by the party, and on service of notice in that writ petition, the defendant DDA was fully aware of the plaintiff‟s claim. In arriving at its conclusion, the Court relied upon a decision of the Madras High RFA (OS) No. 17/1995 Page 14 of 21 Court in N.Parameswara vs. State AIR 1986 Madras 126 where that Court had held that after the dismissal of a writ petition with permission to the petitioner to seek his remedy by way of a suit, the plaintiff was not required to serve a notice under Section 80 of the Civil Procedure Code before filing that suit since the notice served in the writ petition amounted to sufficient compliance of Section 80 CPC. In this context, the Court also held, inter alia, in para 23 as follows:
"After all the purpose of giving notice under Section 80 of the CPC or under Section 53-B of the Act is to enable the authorities to examine the claim of the person giving the notice so that the authorities could settle the said claim without the said person being made to institute legal proceedings. In the State Bank of Patiala vs. M/s Geeta Iron & Brass Works Ltd., AIR 1978 SC 1608, it was held that a statutory notice of the proposed action under Section 80 of the CPC is intended to alert a State to negotiate a just settlement or at least for the courtesy to tell the potential suitor as to why the claim is being resisted. In Ghanshyam Dass vs. Dominion of India AIR 1984 SC 1004, it was observed by the Supreme Court that the point to be considered is whether a notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation."
21. Similarly, in the case of Yashod Kumari & Anr. Vs. MCD & Ors. 111(2004) Delhi Law Times 33, a Division Bench of this Court has held that the object of a notice under Section 53-B of the Delhi Development Act, 1957 is the same as that of Section 80 of CPC; which is to bring the plaintiff‟s claim to the notice of the Authority so that it may make up its mind whether to concede the claim or to contest it. In that matter, the provisions of both Sections 80 CPC as well as Section 53-B of the Delhi Development Act, 1957 came up for consideration. The plaintiffs contended that since no objection had RFA (OS) No. 17/1995 Page 15 of 21 been taken to the non-issuance of the requisite notice under Section 80 CPC by the defendants, and since the suit had proceeded and an ad interim injunction had also been granted, therefore, the requirement of notice under Section 80 CPC be deemed to be waived. It was also prayed that under the circumstances, leave may be granted under Section 80(2) of the CPC to institute the suit without service of requisite notice. The Court held that the object of a notice under Section 80 is to afford the government an opportunity to examine the nature of the claim and if it thinks fit to settle the claim and to avoid unnecessary litigation. On the facts, the court held that the plaintiffs‟ application under Section 80(2) CPC praying for leave to institute the suit without issuing notice under Section 80 CPC ought to have been disposed of by the trial court. At the same time, the court also held that in view of the fact that the suit had already been registered, and an ex-parte interim order was passed in the suit, it can be presumed that the court had impliedly granted leave to institute that suit or that the notice stood waived on the facts and circumstances of the case. As regards, the non-issuance of notice under Section 53-B of the Delhi Development Act, the Court held that although it is true that Section 53-B of the Delhi Development Act does not have any provision analogous to Section 80(2) of CPC, however, since the Court had registered the suit and granted stay, and the respondents had contested it all through, notice under Section 53-B should be deemed to be waived for the reason that the purpose of notice both under Section 53-B of the Delhi Development Act as well as under Section 80 of CPC is the same, which is, to bring the claim to the notice of the RFA (OS) No. 17/1995 Page 16 of 21 Authority concerned so that it may either contest it or concede the same. It felt that once the authority concerned had contested the matter on merits even at a preliminary stage, it could not complain of non-service of notice under Section 53-B thereafter.
22. This decision has also been noticed by another Division Bench of this Court in Smt. Prinda Punchi and Anr. Vs. Municipal Corporation of Delhi and Ors. (2005) 4 Apex Decisions (Delhi) 639 cited by learned counsel for the respondent for the proposition that since there is no provision under the Delhi Development Act akin to Section 80(2) of the CPC for leave of the Court to bring a suit without prior notice, therefore, the appellant could not have filed the instant suit against the DDA without giving the notice required under Section 53-B of the Delhi Development Act. In paragraph 26 of the said decision, the Division Bench has sought to distinguish the aforesaid decision in Yashod Kumari's case (supra), inter alia, on the ground that in Smt. Prinda Punchi's case, the defendants had raised a specific objection with regard to the want of statutory notice and a preliminary issue to that effect was also framed by the trial court, consequently, there could be no plea of waiver of notice. It, therefore, held that, "In the facts of the present case it cannot be said that there could be waiver of any such notice as provided for under section 53-B of the Delhi Development Act. Objection was taken and issue was framed thereon."
23. In the instant case, on the facts we find that the respondent defendant had duly filed its written statement in the suit without raising any objection to the maintainability of the plaint due to RFA (OS) No. 17/1995 Page 17 of 21 the absence of the requisite notice contemplated under Section 53-B of the Delhi Development Act. Furthermore, this written statement only came to be filed after 23rd March, 1992 when the interim orders staying dispossession were made absolute. Thereafter, the respondent moved an application under Order 7 Rule 11 of the Code of Civil Procedure praying that the plaint be rejected on the ground of non- compliance of Section 53-B. In reply, the appellant took the stand that since no such plea had been raised by the respondent in its written statement, it should be presumed that the respondent had waived the requirement of notice under Section 53-B.
24. It appears that thereafter respondent got an opportunity to file an amended written statement in response to the amended plaint that was permitted to be filed by the court. The amendment sought by the plaintiff was only to the extent of description of the property in suit and, therefore, the respondent could have filed its amended written statement only with regard to that fact. (See, Gurdial Singh & Ors. Vs. Raj Kumar Aneja & Ors., AIR 2002 SC 1003).
However, the respondent appears to have treated this as a fortuitous circumstance enabling it to amend its entire written statement. At the bar, nothing has been averred by the counsel for the respondent in respect of the action of the respondent in taking further defences in its amended written statement, unconnected to the scope and nature of the amendments carried out by the plaintiff in its suit after obtaining permission from the court. In this regard, we feel that the learned Single Judge was in error in countenancing the objection to non- compliance of Section 53-B of the Delhi Development Act raised for the RFA (OS) No. 17/1995 Page 18 of 21 first time by the respondent in its amended written statement. In fact, to our mind, the respondent could not have amended its written statement to that effect without permission of the court. Since no such permission was sought, that defence cannot be looked at. Consequently, the position remains that no defence was taken by the respondent with regard to Section 53-B and the impugned decision of the learned Single Judge to the extent that it concludes that there is a specific objection taken by the respondent with regard to Section 53-B of the Delhi Development Act in its written statement, must be set aside. No authority has been cited before us to justify the action of the respondent/defendant in taking additional grounds of defence in its amended written statement that are wholly unconnected with the amendment in the plaint even though it was filed by the respondent in response to a specific amendment carried out, with permission, by the plaintiff in his suit.
25. Under the circumstances, we agree with the contention of the appellant that the objection under Section 53-B of the Act, even if available, must be deemed to have been waived by it since no such defence was raised in the written statement and the proceedings, including the confirmation of interim orders, was allowed to continue without any such objection being raised with regard to the maintainability of the suit by the defendant.
26. In addition, we also feel that in view of the fact that proceedings under the Public Premises Act initiated by the respondent/defendant itself were going on, and plaintiff/appellant had stated its entire case before the Estate Officer in response to those RFA (OS) No. 17/1995 Page 19 of 21 proceedings, therefore, on a parity of reasoning adopted by this Court in Nehru Place Hotels case (supra) as also the decision of Yashod Kumari‟s case (supra), it could not be said that the DDA was unaware of the appellant‟s case. We might also notice the decision in Karamvir Singh vs. DDA 148 (2008) Delhi Law Times 498, where also, a similar view has been expressed. In that case, the writ petition filed by the plaintiff was dismissed with liberty to the petitioner to approach the civil court since the writ court felt that disputed questions of fact were involved which could not be decided except by adducing evidence. The petitioner then instituted a Civil Suit. The defendant/DDA objected to the maintainability of that suit in its written statement on the ground that mandatory notice under Section 53-B of the Delhi Development Act had not been issued. In that case also, reliance is placed on the decision in Nehru Place Hotel's case (supra) to hold that no previous notice was required since, "it is not as if the DDA or the other defendants were unaware of the plaintiff‟s grievance; they were parties to the writ petition which was disposed of on 4th August, 2002 permitting the present plaintiff to file a suit." Thus, in that case, under the aforesaid circumstances, notice under Section 53-B was held to be unnecessary and even a specific objection raised by the defendant in its written statement in this behalf was ignored. We feel that the principles upon which the aforesaid decisions have been rendered by this Court are equally applicable to a situation where the entire case of the plaintiff as regards his claim to the suit property has been specifically and clearly spelt out in ongoing proceedings under the Public Premises Act initiated by the defendant RFA (OS) No. 17/1995 Page 20 of 21 itself for the reason that, under these circumstances, one can safely assume that the DDA had full knowledge of all the relevant particulars of the plaintiff‟s claim to the land in question and, therefore, the object and purpose of prior notice of the plaintiff‟s claim as envisaged under Section 53-B of the Delhi Development Act stood satisfied.
27. Under the circumstances, the appeal is allowed. The impugned order dated 8th August, 1995 passed in I.A. No. 11206 of 1992 in suit No. 1085 of 1991 is set aside and the suit is restored to its original number and status.
28. The suit be listed for directions before the learned Single Judge on 15.7.2009 for further proceedings.
Sudershan Kumar Misra, J.
Sanjay Kishan Kaul, J.
May 29, 2009 sl RFA (OS) No. 17/1995 Page 21 of 21