Al Haj Amir Hasan Properties Pvt. Ltd. and anr. Vs. the Land Acquisition Collector, Calcutta and ors. - Court Judgment

Excerpt:

[k. bhakthavatsala, j.] this misc. cvl. is filed under order 39 rule 1 & 2 & sec. 151 of cpc praying to grant ad interim order of injunction, restraining die respondent from altering the nature of the property, for the reasons stated therein.....present appeal. on perusal of the judgments referred to, it appears that those judgments have no applicability in the instant case in view of the factual matrix as being considered by us while considering the appeal. there is no doubt on the legal principle that parties are bound to advance case on the basis of the pleadings and no point outside of the pleadings could be considered. but so far as the point of law which could be thrashed from the admitted facts is concerned, position is different, which could be canvassed even at the appeal stage. here pendency of the proceeding under section 6 of the land acquisition act is an admitted position and respondents by filing affidavits have contended to that effect about the pendency of the same, on the ground of pendency of the appeal before this court though there is no such order of stay on continuation of said proceeding under section 6 of the said act. having regard to such factual matrix, which is an admitted fact, the additional ground has got a support for being urged on the basis of admitted pleading. order xli rule 2 of civil procedure code also permits the appellant to urge any ground of objection not set forth in the.....

Judgment:

Objections filed on behalf of the respondent nos.1 to 3 and respondent no.4 filed in Court today be kept on record. Heard the learned Advocates appearing for the parties. This is an application for consideration of additional ground on the reflection of the subsequent events happened during pendency of the appeal.

The additional ground as sought for in paragraph 7 of the application reads such: 7. Your petitioners state and submit that in any event in view of non-issue of declaration under Section 6 of Land Acquisition Act, 1894 within one year from 4th February, 2009, the acquisition proceedings in the present case have lapsed as provided under Section 6(ii) of the Land Acquisition Act, 1894 and this point of law be taken as additional ground of appeal as follows:

ADDITIONAL GROUND FOR THAT in any event in view of non-issue of declaration under Section 6 of Land Acquisition Act, 1894 within one year from 4th February, 2009, the acquisition proceedings in the present case have lapsed as provided under Section 6(ii) of the said Act.

Mr. Behani, learned Advocate appearing for the acquiring authority, respondent no.4 herein, relying upon two judgments of the Supreme Court in the case of Municipal Corporation of the City of Jabalpur vs. State of Madhya Pradesh & Anr. Reported in AIR 1966 SC 837 and in the case of J. Jermons vs. Aliammal & Ors. reported in (1999) 7 SCC 382 submitted that such additional ground could not be taken into account in disposing of the present appeal.

On perusal of the judgments referred to, it appears that those judgments have no applicability in the instant case in view of the factual matrix as being considered by us while considering the appeal. There is no doubt on the legal principle that parties are bound to advance case on the basis of the pleadings and no point outside of the pleadings could be considered.

But so far as the point of law which could be thrashed from the admitted facts is concerned, position is different, which could be canvassed even at the appeal stage. Here pendency of the proceeding under Section 6 of the Land Acquisition Act is an admitted position and respondents by filing affidavits have contended to that effect about the pendency of the same, on the ground of pendency of the appeal before this Court though there is no such order of stay on continuation of said proceeding under Section 6 of the said Act. Having regard to such factual matrix, which is an admitted fact, the additional ground has got a support for being urged on the basis of admitted pleading.

Order XLI Rule 2 of Civil Procedure Code also permits the appellant to urge any ground of objection not set forth in the memorandum of appeal with leave of the Court. It further provides that the Appellate Court in deciding the appeal may not travel within the ground of objection set forth in the memorandum of appeal but it can decide any other ground subject to providing opportunity of hearing to contest the said point to the respondent or to the party who will be affected.

Order XLI Rule 2 of Civil Procedure Code reads such: 2. Grounds which may be taken in appeal.-

The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule: Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.

Having regard to the provision as aforesaid, which is applicable in the writ proceeding in view of incorporation of the Civil Procedure Code by framing the rules under Article 226 of the Constitution of India, we are of the view that this application should be allowed. Accordingly, the application is allowed.

As the additional ground is now known to the respondents, they are at liberty to argue on that point when this point will be canvassed by the appellant at the time of hearing Let the appeal be posted on 8th September, 2010 at 10.30 A.M. for hearing.

Matter is made heard in part.

Urgent certified photocopy of this order be made available to the parties, if applied for, upon compliance of all requisite formalities.