Delhi District Court
M/S Delhi Msw Solutions Limited vs North Delhi Municipal Corporation on 16 March, 2023
IN THE COURT OF SH. VIMAL KUMAR YADAV
PRINCIPAL DISTRICT & SESSIONS JUDGE
NORTH DISTRICT, DISTRICT COURT ROHINI, DELHI
PPA No. 01/2021
CNR No. DLNT01-004464-2022
M/s Delhi MSW Solutions Limited
13th Floor, Ramky Grandiose
Ramky Towers Gachibowli
Hyderabad, Telangana-500032
Through its authorized signatory Mr. Abhay Ranjan
.........Appellant
Vs.
1. North Delhi Municipal Corporation
7th Floor, SPM, Civic Centre
Minto Road, New Delhi.
2. Estate Officer
North Delhi Municipal Corporation
7th Floor, SPM, Civic Centre
Minto Road, New Delhi.
..........Respondents
Date of institution :- 13.09.2021
Arguments heard on :- 08.02.2023
Date of Judgment :- 16.03.2023
JUDGMENT
1. Almost all the big metropolitan cities in the world over are facing numerous problems on account of huge population and its repercussions are manifold and far reaching. The management of human generated waste is one such area of concern where the civic authorities are on the tenterhooks. As the cities grow, the population goes up and so goes up the generation of waste and if no appropriate disposal system is put in place, the same results into insanitary conditions, unhealthy environment, polluted air, ground water and surface, which, in-turn, give rise to other PPA No. 01/2021 Page 1 of 25 numerous problems. The Ministry of Environment and Forests, Government of India thus formulated the Municipal Solid Waste (Management & Handling) Rules 2000, under which it was mandatory for Civic/Municipal Authorities to implement a solid waste management system so as to ensure that Solid Waste is appropriately processed and disposed. The residual/non biodegradable solid waste was to be disposed off in an engineered sanitary landfill.
2. In the city of Delhi, the Municipal Corporation of Delhi (MCD herein after) is the authority concerned for providing municipal and civic services, which includes the collection, transportation and disposal of the solid waste generated in the city within the municipal limits. It is being done by the MCD, but the measures taken were inadequate to the ever increasing quantity of solid waste in ever expanding city of Delhi. The city limits have stretched beyond the municipal limits as well, which in-turn has increased the responsibility and pressure manifold.
3. Under the aforesaid Municipal Solid Waste (Management & Handling) Rules, competitive proposals were invited from eligible bidders to implement the project of Municipal Solid Waste Processing and Engineering Sanitary Landfill Facility on Build Operate and Transfer (BOT) basis for 20 years. The appellant herein was successful bidder to the aforesaid project and pursuant to that, a Concession Agreement was finalized and entered in to on 17.07.2009, under which the appellant was to take care of the Municipal Solid Waste in Civil Lines Zone, Rohini Zone, Vasant Kunj and Dwarka-Pappan Kalan area and PPA No. 01/2021 Page 2 of 25 that included :
(i) Doorstep collection (segregated, Municipal Solid Waste) from the designated areas;
(ii) Lifting and transportation of sweeping silt from the concession area;
(iii) Transportation of the collected waste in segregated form, to Processing Facilities;
(iv) Construction, operation and maintenance of Waste Transfer Station/vehicle parking site(s);
(v) Setting up on appropriate integrated processing facility in consonance with the characteristics of the waste and compliance of MSW (M&H) Rules 2000;
(vi) Setting up of an engineered sanitary landfill (SLF) site and its operation & maintenance in compliance to MSW (M&H) Rules 2000;
(vii) Providing top soil cover on the closed portions of landfill and developing green cover and would follow CPCB guidelines for setting up of an Engineered SLF for the purpose.
4. As per the above referred concession agreement, the appellant was to be allocated about 100 acres of land at Narela/Bawana site in order to facilitate the setting up of processing facilities and engineered landfill site to process about 700 to 1000 TPD-MSW. The land so identified was alloted and handed over to the appellant on 31.12.2009 on which the appellant commenced its work as per the agreement. The work continued as per the concession agreement without any problem, smoothly and satisfactorily. Waste to power generation was also an integrated aspect but in separate setup.
5. Against the backdrop of these facts and circumstances, the order dated 23.08.2021 (impugned order) passed by by respondent no. 2 i.e. the Estate Officer u/s 5 r/w 7 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, (hereinafter referred to as 'Act') directing the appellant to vacate a PPA No. 01/2021 Page 3 of 25 piece of 5.668 acres of the so-called excess land, which was encroached by the appellant while it was handed over only 100 acres of land, that too within a fortnight. Apart from that, the appellant was further directed to pay a sum of Rs. 2,86,48,87,451/- as damages to the respondent that too within a fortnight, failing which the appellant was to pay an interest @ 15% till the amount is realized, apart from rendering the appellant herein liable for action U/s 14 of the Act, in case of non-payment of the amount within the stipulated period.
6. Aggrieved by the aforesaid order dated 23.08.2021, the present appeal has been preferred wherein the emphasis of the appellant is on the fact that appellant has not encroached upon any land rather the company was diligently complying with all the requirements while doing its work of Solid Waste Management. The land, as was allotted and handed over to the appellant, was taken over by the appellant company which in fact is a barren land having drains and High Tension wires above crisscrossing the said land. It is contended that there was no complaint or report from any quarter, but still the Estate Officer, it seems, has taken cognizance of the fact of the so called encroachment on its own and initiated the proceedings that too without providing any document except the notice. At the outset, it is asserted on behalf of the appellant that the respondent has initiated these proceedings as a counter-blast in view of an Arbitral Award against the MCD and in favour of the respondent, whereby the MCD has to pay a claim of more than 200 crores to the appellant herein.
PPA No. 01/2021 Page 4 of 257. The appellant has further raised the issue of imposition of penalty which according to the appellant should not have been there in the first place as there is no cogent reason or basis for that. And even if it is treated to be a case where penalty can be imposed, still there is no justification of the rates at which the said penalty has been calculated and imposed. It is submitted that the land in question is a barren waste land having drains and High Tension wires. It was given to the appellant @ Re. 1/- per acre per year for a specified period for the specific purpose of solid waste management etc. It is not that the appellant has been given the ownership right over the said land or the same was given on lease for a period of 99 years or perpetually. It is asserted that there is complete non-application of mind rather the action smacks of vengeance as there is no rational or logical reason to either claim or award the amount as damages. There is no justification as to why penalty is being imposed that too at the rates which have been used by the Estate Officer. What made the Estate Officer to impose penalty at the rate at which it has been imposed especially when as per the claim of the respondent itself the appellant has, in the worst scenario, encroached only upon 5.668 acres of land adjacent to 100 acres of land allotted to him.
8. It is, however, asserted categorically that no encroachment was done by the appellant. It has maintained the stand that the land was taken "as was given" by the respondent/MCD and markers and measurements were all put by the respondent/MCD without involving and associating the appellant. The site plan which was handed over along with the possession of the land, contains the boundaries etc. and on the ground, the same PPA No. 01/2021 Page 5 of 25 situation exists even today. It is asserted that the appellant is, verily, using only 65 Acres of land. So when not even 100 Acres is used then why would there be any encroachment. If any excess land was there, which was marked and handed over to the appellant it was by the respondent/MCD itself. Therefore, the appellant cannot be held liable either for encroachment or any kind of misuse of the land allotted to it. Therefore, imposition of penalty is also against the law, without there being any basis or rational and same goes qua the calculation or application of the rates of penalty.
9. It is further contended that there was no complaint of any nature from any quarter, then what prompted the respondent/MCD to go for survey of the land, in question, and if it was decided for one or the other reason then there should have been a joint survey. The respondent/MCD is unable to show any reason as to why the appellant was not joined in the survey. It is further pointed out that at the time of handing over the site, no survey was seemingly carried out and certainly no joint survey or joint measurement exercise was there. The appellant took over the land as was given to it and has maintained its stands fairly before each and every forum.
10. It is further contended that the contention of the respondent/MCD that there is a clear admission on behalf of the appellant in the proceedings before the Hon'ble High Court of Delhi should not be viewed against the appellant rather it shows the bonafide of the appellant. In fact, there is no admission in the sense in which the MCD is treating it, akin to Order XII Rule PPA No. 01/2021 Page 6 of 25 6 CPC. With these contentions, it is sought that the impugned order may be set aside. Additionally it is also submitted that proceedings u/s 4 and 7 of the Act can't be initiated and taken up together, as a finding has to be there first u/s 4 of the Act then only section 7 of the Act comes in to play .
11. The respondent/MCDs, on the other hand, has contended that the possession of 100 acres of land was taken over by the appellant on 31.12.2009 as per the site plan issued by the respondent/MCD i.e. handing over/taking over map. The respondent/MCD came to know about the illegal use and occupation of about 5.668 acres of land through the letter dated 15.10.2020 from Delhi State Industrial and Infrastructure Development Corporation Ltd. (hereinafter referred to as DSIIDC Ltd.) wherein four primary facts were notable, the same reads as under :
(i) informed that DSIIDC was in the process of establishing treatment, storage and disposal facility ("TSDF") for hazardous waste on a piece of land ad-measuring 14 acres adjacent to the municipal Land allotted to DMSW;
(ii) there was no approach road to the TSDF despite there being a provision of a 60 metre road in the DDA Zonal plan;
(iii) construction of a road would take substantial time and
(iv) in view of the above, MCD was requested to allot to DSIIDC a portion of the municipal Land ad-measuring 9 acres which is free from HTT Lines.
12. Pursuant to the same M/s Balaji Consultants Architects & Engineers was engaged for survey and measurement whose report dated 01.12.2020 was received wherein this fact of PPA No. 01/2021 Page 7 of 25 use/occupation of excess land over and above the allotted 100 acres of land came to the notice of the respondent/MCD for the first time. Since the appellant was in unauthorized occupation of excess land, accordingly Estate Officer issued notice dated 11.12.2020 u/s 4 and 7 of the Act.
13. It is further contended on behelf of the respondent/MCD that a writ petition was filed by the appellant before the Hon'ble High Court of Delhi challenging the aforesaid notice. Learned Counsel for the respondent/MCD has categorically stated that during the proceedings before the Hon'ble High Court of Delhi, an admission was made on behalf of the appellant about the excess land and in view of that clear cut admission, the appellant is not in a position to challenge the order of the Estate Officer especially when the order dated 24.12.2020 of Hon'ble High Court of Delhi was never assailed and has attained finality now. As such, it cannot be said that the respondent/MCD has not complied with the requirements of notice etc. and the proceedings initiated u/s 4 & 7 of the Act are not in accordance with law. The appellant was given an opportunity to contest the claim and the impugned order has been passed following the due process of law as well as the principles of natural justice, equity and fair play.
14. It is emphasized that in view of the admission made by the appellant before the Hon'ble High Court of Delhi, the appellant cannot run away from the fact that excess land is there with the appellant and that the land was encroached by appellant. Therefore, the learned Estate Officer cannot be faulted.
PPA No. 01/2021 Page 8 of 25Simultaneous adjudication of the proceedings u/s 4 and 7 of the Act and Rules cannot be termed as bad in law in view of the Judgments in cases of "Shangrila Food Products Ltd. & Anr. vs. LIC & Anr., (1996) 5 SCC 54" and "Dunlop India Ltd. vs. Bank of Baroda & Anr., 2009 (108) DRJ 32", as such the proceedings u/s 4 & 7 of the Act can go hand in hand, as was also observed in "New India Assurance Compnay Ltd. Vs. Nusli Neville Wadia & Anr. (2008)3 SCC 279".
15. It is further contended that the penalty imposed by the Estate Officer is based upon the circle rates notified by the competent authority of the Government and, therefore, the Estate Officer cannot be faulted in his approach. The appellant cannot be permitted to encroach upon the land of the respondent/MCD even if it is a barren land inasmuch as the potential of the land cannot be taken away or diminished in any manner. The Estate Officer has assessed the damages in terms of Rule 8 of the Public Premises (Eviction of Unauthorized Occupants) Rules, 1971, (Rules hereinafter) and in view of the ratio of the Judgment in "Delhi Jal Board vs. Ram Singh, 2018 SCC online DL 10086", the Order of Estate Officer fixing the damages can only be interfered with if the computation of the same is in non- compliance of the Rules. Judicial notice of the prevalent rates in the city of Delhi and its surrounding areas i.e. in NCR can very well be assessed and it can, therefore, be easily assessed that the calculation of damages as per the prevailing circle rates is in consonance with the ground realities , the Rules on the subject, and the facts of the case.
PPA No. 01/2021 Page 9 of 2516. Finally, it is contended that there is no connection with the Arbitral Award dated 31.08.2019 ,and in no manner, the proceedings initiated by the respondent/MCD through Estate Officer can be treated as a counter blast. Two separate issues are there and both have been dealt with separately having no connection with each other leave alone any element of vengeance or counter blast. The appellant was in unauthorized occupation and use of excess land since the year 2009 enjoying it and reaping the benefits out of same, therefore, the damages/penalty imposed upon the appellant can also not be faulted with.
17. I have considered the submissions made by the rival sides and have perused the records as well.
18. The appellant has questioned the impugned order primarily on the fact that there was no reason or complaint with the Estate Officer to issue notice that any land in excess of what was allotted and handed over to the appellant has been encroached upon or being used by the appellant. No construction has been carried out contrary to the Rules or beyond the scope of the agreement. There was no misuse of any nature on the land allotted to the appellant. In addition to the fact that no proper notice was served upon the appellant but , the appellant was also not joined in the survey and for that matter, no joint survey ever took place. The land was taken by the appellant as it was given by the respondent/MCD. Before taking or initiating any action, the respondent/MCD should have carried out a joint survey/joint measurement of the site. And this exercise should have been ideally carried out at the time of handing over of the site to the PPA No. 01/2021 Page 10 of 25 appellant. Finally, the penalty imposed is without any rationale as the circle rates have been used to calculate the penalty whereas the circle rates are relevant for the sale and purchase of the land. The land in question was allotted to the appellant for a limited period, thus, in these circumstances, how come there be a penalty based upon the circle rates as nothing of the sort of purchase is there. The appellant would not be getting any ownership right of the land and is still expected to pay according to the circle rates.
19. It is not a disputed fact that the land in question which was allotted to the appellant is, even at present, a barren and useless land having drains and high tension wires. No use either residential or commercial was planned and for that matter nothing of that sort was pointed out during the arguments of the case that the land, which according to the learned Counsel for the respondent/MCD has immense potential. But then what made the respondent/MCD to allot the land @ Re. 1/- per acre if it had such a potential which could have yielded crores of rupees to the respondent/MCD. As per the contention of the learned Counsel for the respondent/MCD the circle rates have been used to calculate the penalty, but then apparently, it does not appeal to the reason or logic as to why circle rates have been used. The circle rates are meant for sale and purchase of the property that too to check the stamp duty evasion ,whereas the appellant, in any case, is not given any ownership right either now or for that matter when the initial concession agreement was entered in to.
20. The circle rates are primarily for the stamp duty purpose under the Indian Stamp Act, that too in order to ensure that PPA No. 01/2021 Page 11 of 25 Government revenue in stamp duty is not avoided. A bare reading of the Notification relied upon by the MCD clearly reflects so. Relevant portion Notification dated 18.07.2007 issued by Govt. of NCT of Delhi, is reproduced herein below :
"NOTIFICATION No. F.2(12)/Fin.(E.I.)/Part File/Vol.1(ii)/ - In exercise of the powers conferred by Section 27 and Section 47A of the Indian Stamp Act, 1899 (2 of 1899) as in force in Delhi and in pursuance of the provisions of the Delhi Stamp (Prevention of Undervaluation of Instruments) Rules, 2007, read with the Government of India, States Ministry's Notification No. 104-J dated the 24th August, 1950, and Ministry of Home Notification SO 1726 (No. F.215/61-Judl-II) dated the 22nd July, 1961, the Lt. Governor of the National Capital Territory of Delhi, hereby notifies, with immediate effect the minimum rates (circle-rates) for valuation of lands and immovable properties in Delhi for the purpose and intent of the said Act and the rules made thereunder, as specified in Annexure I to this notifications".
21. The emphasis in the Notification of circle rates is on the "purpose and intent of the said Act". The purpose and object of the Stamp Act is revenue generation for Government and keep record of transaction of immovable properties. Certainly not to provide rates for calculation of damages.
22. Therefore, in the absence of any rational leave alone any cogent reason or rational, imposition of penalty of such a huge amount does not seem to be in consonance with any justification and fails to satisfy the test of rationality and reason.
23. There is no answer with the respondent/MCD that the appellant is actually using about 65 acres of land and rest of the land is lying useless. The rate at which the land was allotted to PPA No. 01/2021 Page 12 of 25 the appellant in itself indicates that the land has no substantial value even in the eyes of respondent/MCD and that is why, this particular site was allotted to the appellant to establish a solid waste management plan at Re. 1/- per Acre per year, which was to be transferred back by the appellant to the respondent/MCD on the expiry of the period of 20 years provided in the concession agreement. So the only benefit to MCD was nothing else but a waste management plant coming to the possession of MCD.
24. Section 7 of the Act and Rule 8 of the Rules are the relevant provisions governing the damages, which are reproduced here in below for ready reference :
Power to require payment of rent or damages in respect of public premises.--
Section 7 - (1) Where any person is in arrears of rent payable in respect of any public premises, the estate officer may, by order, require that person to pay the same within such time and in such instalments as may be specified in the order. (2) Where any person is, or has at any time been, in unauthorised occupation of any public premises, the estate officer may, having regard to such principles of assessment of damages as may be prescribed, assess the damages on account of the use and occupation of such premises and may, by order, require that person to pay the damages within such time and in such instalments as may be specified in the order.
26 [(2A) While making an order under sub-section (1) or sub-section (2), the estate officer may direct that the arrears of rent or, as the case may be, damages shall be payable together with simple interest at such rate as may be prescribed, not being a rate exceeding the current rate of interest within the meaning of the Interest Act, 1978 (14 of 1978).] (3) No order under sub-section (1) or sub-section (2) shall be made against any person until after the issue of a notice in writing to the person calling upon him to show cause within such time as may be specified in the notice, why such order should not be made, and until his objections, if any, and any evidence he may produce in support of the same, have been PPA No. 01/2021 Page 13 of 25 considered by the estate officer.
Rule 8 - Assessment of damages. - In assessing damages for unauthorized use and occupation of any public premises the estate officer shall taken into consideration the following matters, namely:-
(a) the purpose and the period for which the public premises were in unauthorized occupation;
(b) the nature, size and standard of the accommodation available in such premises;
(c) the rent that would have been realized if the premises had been let on rent for the period of unauthorized occupation to a private person;
(d) any damage done to the premises during the period of unauthorized occupation;
(e) any other matter relevant for the purpose of assessing the damages.
25. It can be seen that the person should either be in 'arrears' of rent payable or is or has been in unauthorized occupation of public premises which, in terms of Section 2(c) & (e) of the Act, includes any land or any building.
26. Circle rates would have been employed by the Estate Officer if some kind of transfer of title in the property was involved. In the absence of any such situation, imposition of penalty at the rate at which it has been imposed seems to be unjustified.
27. When the aforesaid two aspects in the preceding two paragraphs are juxtaposed to the fact that the land in question was a barren and waste land having no significant value and it was given at a nominal rate of Re. 1 per acre per year, which practically means free then the contention of respondent's claim PPA No. 01/2021 Page 14 of 25 about the potential value of land stands demolished and the damages become questionable. And that no joint measurement or joint survey was carried out when the land was handed over to the appellant by the respondent/MCD and the land was accepted by the appellant as was handed over to appellant then the impugned order comes under cloud. Since no counter argument has been put forth on behalf of the respondent/MCD that the piece of land was jointly measured at the time of handing over the same or that certain measurements were shown and were accepted by the appellant there at the spot and according to the same, the land was handed over to the appellant. Then again why would the appellant encroach upon a piece of only 5.668 acres of land when it was already having 100 acres of land in its possession albeit is actually using only 65 acres, as asserted by the appellant. The rest of the land is lying waste or is useless. There is no counter argument qua this assertion either. It is not the case of the respondent/MCD that the said 5.668 acres of land is being used by the appellant for any special purpose other than what for the said land was made available to the appellant under the concession agreement. It is also not the case of the respondent/MCD that any commercial activity is being carried out on the said piece of land which is allegedly encroached upon or for that matter, how the said encroached land was/is being used and for what purpose which is in contravention of any accepted use.
28. The land in question was allotted in the year 2009 and the respondent/MCD never ever felt the need to carry out any joint measurement/survey or for that matter any unilateral survey or PPA No. 01/2021 Page 15 of 25 measurement till the year 2020. The officials of the respondent/MCD were there at the land, in question, or in its vicinity and would have noticed any kind of encroachment on the land if it was there and would have reported as well. No such report was ever laid before the respondent/MCD or before any competent official. The whole issue erupted when the DSIIDC Ltd. needed some passage or a road but even that does not justify the unilateral survey of the land. At the most, if it was carried out unilaterally by M/s Balaji Consultants and it was found that the land in occupation is in excess than what was allotted to the appellant, then the appellant should have been given an opportunity to explain, which it seems has not been given and straightaway a notice was issued sans the documents including the most important one i.e. the report of the survey carried out by M/s Balaji Consultants.
29. Thus, apparently, the impugned order fails on the count of proper notice, in addition to use of irrational and inappropriate rates for imposing penalty. There appears no justification in using the circle rates. No malafide can be attributed to the appellant. Had it been the case, the appellant would not have admitted before the Hon'ble High Court of Delhi that some excess land is there, which the respondent herein treats an admission worth securing a favourable outcome. The same cannot be used or treated as an admission for the reason that the admission was not unequivocal rather qualified by the averment that the appellant took over the land "as was given by the respondent/MCD with no alteration in the boundaries and the marks fixed by the MCD shown in the site plan".
PPA No. 01/2021 Page 16 of 2530. Two fold argument from the respondent or say the case of the respondent/finding of the Estate Officer is based upon the TSM survey report of M/s Balaji Consultants Architects & Engineers and the so called admission of the appellant before the Hon'ble High Cout of Delhi about the excess land in occupation of the appellant.
31. The second aspect that is of damages/penalty has simply been based on the circle rates and the total period since allotment/handing over has been taken in to account to work out the damages/penalty. The rational and justification of the same has not been given in the impugned order. Reasons are mandatory and integral part of an order not only in a judicial, quasi judicial authority's order but administrative orders too. Reference in this context may be made to the Judgment in "Mekaster Trading Corporation vs Union Of India (UOI) and Ors., 106 (2003) DLT 573".
32. The findings of the Estate Officer are not based on sound footing on both the aspects. The admission before the Hon'ble High Court of Delhi is not an unequivocal and unqualified admission, thus, does not strictly fits in to the definition of admission which is potent enough to base a judgment/finding. And for that matter law of admission itself provides that the Court may ask for more or further evidence apart from admission, which in instant case is not even a clear cut admission (reference "Razia Begum vs. Sahebzadi Anwar Begum, 1958 AIR 886"). Then again the admission can't be taken in piecemeal PPA No. 01/2021 Page 17 of 25 as the respondent seems to take in the instant case. Appellant's stand has been that the land was taken as was provided to it, be it 100 Acres, more, or less. The Estate Officer can't take only a part of admission and ignore the rest, it should be considered comprehensively and in totality.
33. It is appropriate to look in to the provisions under Order XII Rule 6 CPC which reads as under :
6. Judgment on admission.(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application on any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under subrule (1), a decree drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
34. A bare perusal of Order 12 Rule 6 CPC clearly shows that it confers very wide power on the court to pronounce judgment on admission at any stage of the proceeding. The admission may have been made either in the pleading or otherwise oral or in writing. The power under Order 12 Rule 6 has to be exercised judicially on the fact and circumstances of each case. The admission on the basis of which, the court wishes to pass decree, has to be unambiguous, clear and unconditional.
35. The law on admission is well settled by the Court in various decisions, some of them are as under :
(a) Umang Puri vs. Lt. Col. Pramode Chandra Puri 165 (2009) DLT 245, wherein it was held that the PPA No. 01/2021 Page 18 of 25 admissions need not be made expressly in the pleadings and even on constructive admission, the Court can proceed to pass a decree in favour of the plaintiff Under Order XII Rule 6 CPC.
(b) National Textile Corporation Ltd. & Anr. vs. Ashval Vaderaa, 167(2010)DLT 602 wherein it was held that the admissions can be found even in the statement of parties recorded in the Court and admissions may also be gleaned from vague and unspecific denials.
In Zulfiquar Ali Khan (dead) through LRs & Ors. vs. Straw Products Limited & Ors, 2000 (56) DRJ 590, in para 10, it is observed as under :
"10 This is notorious fact that to drag the case, a person so interested often taken all sorts of false or legally untenable pleas. Legal process should not be allowed to be misused by such persons. Only such defense as give rise to clear and bonafide dispute or triable issues should be put to trial and not illusory or unnecessary or mala fide based on false or un- tenable pleas to delay the suit. The issues will be framed in a suit only when pleadings raise material proposition of law and/or fact which need investigation and so could be decided after trial giving parties opportunities to adduce such relevant evidence as they may think necessary and proper. Material proposition of law or fact would mean such issues which are relevant and necessarily arise for deciding the controversy involved. If a plea is not valid and tenable in law or is not relevant or necessary for deciding the controversy involved, the Court would not be bound and justified in framing issue on such unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable court time".
36. The admission on the basis of which a Judgment can be based should be clear, categorical and unequivocal leaving no doubt about any of the issues or facts involved. If such a clear cut admission is there then Order XII Rule 6 CPC empowers the PPA No. 01/2021 Page 19 of 25 Court to pass a decree without waiting for trial.
37. Thus, it is clear that a decree/decision can be there but then if there are reasons which makes it not prudent to pass a decree, the Court may require evidence to be led. A reference can also be made to the Judgment in " S.M. Asif v. Virendar Kumar Bajaj - (2015) 9 SCC 287".
38. The words in Order XII Rule 6 CPC 'may' and "may such order..." show that the power under Order XII Rule 6 CPC is discretionary and cannot be claimed as a matter of right. Judgment on admission is not a matter of right, rather it is a matter of discretion of the Court. Where the defendants have raised objections which go to the root of the case, it would not be appropriate to exercise the discretion under Order XII Rule 6 CPC. The said rule is an enabling provision which confers discretion on the court in delivering a quick Judgment on admission and to the extent of the claim admitted by one of the parties of his opponent's claim.
39. The provisions under Order XII Rule 6 CPC came to be interpreted in "Jeevan Diesels and Electricals Ltd. v. Jasbir Singh Chadha [(2010) 6 SCC 601", where all the relevant Judgments on the subject including the old decisions of the Court of appeal were taken in to consideration where it was emphasized once again that the admission has to be a clear and unequivocal admission, there should not be any ambiguity and reiterated the principle as was observed in "Uttam Singh Duggal & Co. Ltd. v. United Bank of India [(2000) 7 SCC 120" that : "wherever there is a clear PPA No. 01/2021 Page 20 of 25 admission of facts in the face of which it is impossible for the party making such admission to succeed". In that eventuality, the principle under Order XII Rule 6 CPC would be attracted and applicable.
40. In this context, reference can also be made to the Judgment in "Himani Alloys Ltd. vs. Tata Steel Ltd. (2011) 15 SCC 273. 10 (2011) 15 SCC 273", wherein it is held as under :
"It is true that a judgment can be given on an "admission" contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear "admission" which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [2000 (7) SCC 120], Karam Kapahi vs. Lal Chand Public Charitable Trust [2010 (4) SCC 753] and Jeevan Diesels and Electricals Ltd. vs. Jasbir Singh Chadha [2010 (6) SCC 601]. There is no such admission in this case.
41. The Hon'ble High Court of Delhi, in case titled as "Krishna Kumari vs. Sunil K. Goel & Anr., 2015 CCC 445 (DEL)", has held as under:
"16. It is a settled law that a judgment on admission PPA No. 01/2021 Page 21 of 25 by the defendant under Order XII Rule 6 CPC is not a matter of right and rather is a matter of discretion of the Court. If a case involves questions which cannot be conveniently disposed of or a motion under this rule, the Court is free to refuse exercising discretion in favour of the party invoking it".
42. As such, when it couldn't be shown, nor it seems is the plea of the respondent that land in question was measured/surveyed jointly by both respondent and appellant then there is practically nothing on record qua the measurement of the land except the admission, which is not sufficient to base a finding.
43. The Total Station Method (TSM) survey is a kind of specialized mechanism to measure all kinds of land. There is nothing on record to show as to whether the measurement was taken with any specialized mechanism before it was handed over to the appellant. In these circumstances, the element of mix up can't be ruled out especially when the appellant was not included in any such process, either before, or at the time of, or after handing over the piece of land in question. More so TSM survey requires a highly skilled personnel to avoid any mistake. The literature available on Total Station Method, on the one hand, appreciates this method for various advantages like accuracy, ease of setting up the instrument quickly on a tripod using laser plate, has a built in data base, facility that data can be saved and transferred to a Personal Computer, quick saves times etc. But on the other hand some disadvantages are there too. Apart from its being expensive, examining and checking the work while surveying can be a problem for a surveyor especially when hard PPA No. 01/2021 Page 22 of 25 copies are not provided. Verification of survey work comprehensively requires to come back again to the work place and put together an image using the proper software. Checking errors during operation is impossible and that's why a highly skilled surveyor with AutoCAD knowledge and professional training can assure accuracy. Whether the same type of methodology was used while preparing the site plan when the site was given to the appellant, if not, then can variation be ruled out from two maps, one given at the time of handing over the site and the one prepared by M/s Balaji Consultants Architects & Engineers, which are being relied upon for the purpose of the conclusions drawn by MCD. The land in question was and to some extent still a land with physical obstacles like drains, may be uneven surface etc., therefore, handling sensitive instruments becomes tricky and skill of the surveyor is tested. Given the fact that TSM survey too has different types of machines/instruments, that is Manual Total Station survey, Semi Automatic Total Station survey and Automatic Total Station survey, which out of these were used by MCD and M/s Balaji Consultants Architects & Engineers, whether same type of machines were used and if not then can the use of different machines/instruments may have some variation in measurement and accuracy. It may seem a bit hypothetical and conjectural but then the variation in the measurement of land is about 6 Acres in respect of a total of 100 Acres given. Thus, it needs to be ruled out that no error was there. No such effect was there.
44. As regards damages the circle rates taken to work out the amount of damages is not based on any sound, logical and PPA No. 01/2021 Page 23 of 25 rational basis, as discussed hereinbefore. How the period of so called unauthorized occupation has been calculated? Estate Officer seems to have ignored or say simply relied upon the qualified admission of appellant that the land, as was given to it, is with appellant since day one. However, the submission of the respondent is that the factum of illegal use/occupation came to the knowledge of the MCD in December 2020. In these circumstances how the damages can be calculated for a period prior to December 2020. And if the admission is the ground, then the entire admission should be considered which leaves a lot to be done before arriving at any conclusion.
45. In these circumstances, the impugned order dated 23.08.2021 passed by the Estate Officer, Public Premises Department, North DMC, cannot be sustained and accordingly the same is set aside. The case is remanded back to the Estate Officer with the direction to give proper opportunity to the appellant i.e. M/s Delhi MSW Solutions Ltd. to put forth its case before Estate Officer and rationalize the penalty if the Estate Officer comes to the conclusion that the appellant has consciously and deliberately encroached upon the land as alleged against the appellant and not that it simply took over the land which was allotted to it and as was given. There should be a proper finding on this aspect.
46. Requirement of fresh notice would not be there as these proceedings shall be taken as notice before the learned Estate Officer. As the appellant is, apparently, fully aware of the facts now, therefore, no fresh document etc. is required to be furnished PPA No. 01/2021 Page 24 of 25 unless, of course, the appellant demands. Nevertheless learned Estate Officer may serve a notice if he so desires on appearance of the appellant. The appellant may also be provided relevant documents if not already supplied during the proceedings so far before the Estate Officer or the Courts.
47. Parties shall appear before the learned Estate Officer, on 27.03.2023.
48. The present appeal accordingly stands disposed of. Record of the Estate Office be sent back along with copy of this Judgment. File be consigned to the Record Room.
Announced in the open Court VIMAL Digitally signed
by VIMAL
today i.e. 16th March 2023 KUMAR KUMAR YADAV
Date: 2023.03.17
YADAV 15:25:13 +0530
(Vimal Kumar Yadav)
Principal District & Sessions Judge (North) Rohini Courts, Delhi PPA No. 01/2021 Page 25 of 25