JUDGMENT
Mahinder Narain, J.
(1) This is second appeal filed by the Municipal Corporation of Delhi against the judgment of the Senior Sub Judge in R.C.A.No. 65 of 1975.
(2) The facts giving rise to this second appeal are that one Kheman Ram, son of Shib Sahaey served a registered A.D. notice under Section 478 of the Delhi Municipal Corporation Act, 1957, dated 2.1.1963, through his Counsel Mr. Raghbir Singh and Mr. C.L. Verma, Advocates, on the appellant,asserting that Kheman Ram was holding whole of khasra No. 2, situated in the revenue estate of Sadhora Kalan, Delhi Tehsil, as “Amiedar Sardarakhati” having purchased the said right by means of a registered sale-deed for consideration. It was asserted that 15 bighas 30 biswas out of the said khasra number are a garden, arid 4 bighas 12 biswas are used as a private rasta by Kheman Ram for the said garden/grove in khasra No. 2, as well as for his other gardens. It was asserted that the rights of Kheman Ram were recognised by the Custodian of Evacuee Property after full enquiry. It was asserted that the said 4 bighas 12 biswas out of Khasra No. 2 was a private road, and not a public road. It was further asserted that the employees of the Municipal Corporation have started storing stones on the said 4 bighas 12 biswas, with an intention to deprive Kheman Ram of his substantial rights, and that this has been done without any notice or other legal action under applicable law.It was also asserted that his rights have been encroached upon, and that the cause of action has arisen against the Municipal Corporation of Delhi. It was also notified that if the grievances of Kheman Ram were not redressed, he would file a suit for compensation etc. amounting to Rs. 10.000.00 per bigha,or Rs. 46,000.00in all, together with costs of the suit and damages.
(3) In response to the said notice by letter dated 13-2-1963, Ex.P.W. 2/1some details were sought by the Municipal Corporation. The details were provided to.the Municipal Corporation vide Ex. Public Witness 3/4 on behalf of Kheman Ram. Thereafter by letter Ex. Public Witness 2/3, dated 1-5-1963, Kheman Ram was intimated by the appellant as follows :With reference to your notice dated 2-1-1963 and your letter dated2-1-1963 on the above subject, I am to inform you that as the proposal for the construction of road has been dropped, there is, therefore, no question of taking possession of any land.
(4) By letter Ex. Public Witness 3/5, the Counsel for Kheman Ram informed the Municipal Corporation that, “The road has, in fact, been constructed at thesite. The proceedings for acquisition be, therefore, taken up in order to legalise the illegal occupation of the land of our client, so that there may not be any need of taking the matter to the Competent Court”.
(5) Thereafter nothing seems to have been done to legalise the new road which had been built by the appellant on part of khasra No. 2 aforesaid.
(6) Kheman Ram having died, his legal representatives, the plaintiffs who filed the suit against the appellant herein, i.e. Prem Singh and Kesar Devi sent another notice dated 10-9-1970, calling upon the Corporation to vacate the illegal possession, or to legalise the same by way of acquisition, failing which suit for recovery of possession from the Corporation shall be filed. This document was proved as Ex. Public Witness 3/7. Another notice was sent by the plaintiffs on 23-6-1971, being Ex.P.W. 3/10, saying that as no action had been taken to legalise the possession of the appellant, the plaintiffs intended to institute theuit,
(7) Suit No. 431 of 1973 was instituted by the plaintiffs, which was finally decided by Shri V.B. Gupta, Sub-Judge 1st Class, Delhi.
(8) Written statement was filed by the defendant Municipal Corporation (appellant herein). Inter alia, the defendant/appellant questioned the locus standi to institute the suit, it was asserted that the land in question was a public street. On the pleadings of the parties, the following issues were framed : 1. Whether the plaintiff has no locus standi to file the present suit ?OPD.2. Whether the suit is maintainable in the absence of any notice under Section 478 of D.M.C. Act, 1957 ? OPP.3. Whether the suit is bad for non-joinder of necessary party ?OPD.4. Relief.
(9) Issue No. 4 was added later on.
(10) On issue No. 1 .learned Trial Court came to the conclusion that the plaintiffs have no locus standi, and decided the issue against the plaintiffs.Asregards issue No. 2, learned Trial Court came to the conclusion that notice under Section 478 of the Delhi Municipal Corporation Act has been served on the defendant, and as such the suit was maintainable. As regards issue No. 3learned Trial Court came to the conclusion that the defendant had failed to show how the suit -was bad for non-joinder of necessary party, holding that Union of India is not a necessary party. Issue No. 3 was decided against the defendant Municipal Corporation. In conclusion, learned Trial Court held that as issue of, locus standi was decided against the plaintiffs the suit was dismissed with costs on 24.3.1975.
(11) Aggrieved by the said judgment, the plaintiffs filed an appeal,being appeal No. R.C.A. 65 of 1975, which appeal was dealt with by the then Additional Senior Sub-Judge, Delhi. By his judgment dated 24-3-1976, the learned Additional Senior Sub-Judge allowed the appeal with costs, and set aside the judgment of the Trial Court. The learned lower appellate Court decreed the suit of the plaintiffs for possession for khasra No. 2/2 measuring3 bighas 2 biswas, situated in the revenue estate of Sadhora Kalan, Delhi, and gave one month’s time to deliver possession of the same to the appellants. It was ordered that upon failure to deliver possession, the same will be delivered through Court.
(12) It has been candidly and fairly admitted before me that the appellant has not taken the proceedings and steps which were required to betaken for the purpose of acquisition of land for making it a new public street.It is clear from the exhibited documents, mentioned above, including variousnotices, and the response of the Municipal Corporation, that the Municipal Corporation had intimated Kheman Ram that the proposal for building the road had been dropped. The said document is sufficient to indicate that at the time the initial notice was served under Section 478 of the Delhi Municipal Corporation Act, the Municipal Corporation .had the intention to build the road, and to effectuate that intention, had stored road building material including stones, on the land which was claimed by Kheman Ram. It appears that respite addressing communication to Kheman Rani the proposal for building the road had been dropped, the road was constructed, as intimated by Counsel for Kheman Ram in Ex. Public Witness 3/5. As nothing was done to legalise the acquisition, another notice was given by the legal representatives of Kheman Ram, and as no action was taken even thereafter, the suit for possession wasfiled.
(13) For the purpose of making new public streets. Section 301 of the Delhi Municipal Corporation Act, 1957 comes into operation, which reads as under: .
301.Power to make new public streets.The Commissioner may at any time with the previous sanction of theCorporation:(a) lay out and make new public streets;(b) construct bridges and sub-ways;(c) turn or divert any existing public streets; and(d) law down and determine the position and directions of a street or streets in any part of Delhi notwithstanding that no proposal for the election of any building in the vicinity has been received.
(14) Section 302 relates to minimum width of new public street, and reads as under:
302.Minimum width of new public streets.TheCommissionershall,fromtimetotime,withthe sanction of the Standing Committee, specify the minimum width of different classes of new public streets according to the nature of the traffic likely to be carried thereon, and the streets with which they join atone or both ends, the localities in which they are situated the heights up to which buildings abutting thereon may be erected and other similar considerations.
(15) Section 303 relates to power to prohibit use of public streets for certain kind of traffic and, therefore, is not relevant to the instant appeal
(16) Section 304 relates to power to acquire lands and buildings for public streets and for public parking places. The said section reads as under : 304.Power to acquire lands and buildings for public streets and for public parking places.Subject to the provisions contained in Chapter X, the Commissioner may:.(a) acquire and land required for the purpose of opening widening extending or otherwise improving any public street or ‘of making any new public street, and any building standing upon such land:(b) acquire in relation to any such land or building, all such land with buildings, if any, thereon as the Corporation may think expedient to acquire outside of the regular line, or of the intended regular line of such street;(c) acquire any land for the purpose of laying out or making a public parking place,
(17) From a perusal of the above Section 304 of the Delhi Municipal Corporation Act, 1957, it is clear that land can be acquired by the Commissioner for making new public streets in accordance with the provisions of Chapter X. The same provisions apply equally to widening, extending or otherwise improving any public street also.
(18) The relevant provisions of Chapter X relating to acquisition of land for making new public streets are Sections 197, 198 and 199 of the Delhi Municipal Corporation Act, 1957. The said provisions read as under : 197.Acquisition of property.The Corporation shall, for the purpose of this Act, have power to acquire and hold movable and immovable property, or any interest therein.198. .Acquisition of immovable property by agreement.Whenever the Corporation decides to acquire any immovable property for the purpose of this Act, the Commissioner shall acquire such property on behalf of the Corporation by agreement on such terms and at such price as may be approved by the Standing Committee.199. Procedure when immovable property cannot acquired byagreement.Whenever the Commissioner is unable to acquire any immovable property under Section 198 by agreement, the Central Government may at the request of the Commissioner procure the acquisition there of under the provisions of the Land Acquisition Act, 1894 (I of1894) and on payment by the Corporation of the compensation awarded under the Act and of the charges incurred by the Government in ..connection with the proceedings, the shall vest in theCorporation.
(19) A perusal of the said provisions make it clear that the Corporation can acquire lands for making new public streets by agreement on such terms and at such price, as may be approved by the Standing Committee. By virtue of Section 199, if there is no agreement between the Corporation and the person who owns the land, the Commissioner has to request the Central Government to acquire the land. On request of the Commissioner, the Central Government is required to acquire the land under the Land Acquisition Act, 1894. Section 199 makes it clear that it is on payment by the Corporation of compensation awarded under the Act, and of the charges incurred by the Government in connection with the proceedings, the acquired land shall vest in the Corporation.
(20) It is stated before me that the procedure prescribed by Sections 197, 198 and 199 of the Delhi Municipal Corporation Act, 1957, has not been followed in the instant case. It is asserted that this was not done, as the land was Government land. The assertion regarding the land being GovernmentLand, is made on the basis of the documents produced by the plaintiffs. It is on the basis of Ex. P. 4, which is the revenue record, it is asserted by Mr.Verma that the owner of the land was the Government, and that being the case the road could have been built on the land. It is the case made out in .Ex.p.W. 3/1 that Kheman Ram, the predecessor-in -interest of the plaintiff’s was the “Amiedar Sardarakhati” of the land in question. In the plaint it is asserted that Kheman Ram was “Amiedar Sardarakhati”/ Non-Occupancy tenant under the Government, of the said land. It is not disputed that Kheman Ram was the “Amiedar Sardarakhati”/Non-Occupancy tenant, before me, and as such the ownership of the land as that of Government, is not material. The rights of Kheman. Ram and his heirs on the suit land, of Non-Occupancy tenants, had to be procured in terms of the Delhi Municipal Corporation Act, 1957 by the Municipal Corporation, before it built the road upon khasra No. 2/2, Sadhora Kalan. This admittedly, has not been done.
(21) The case made out by the Corporation, that there was a public thorough fare in khasra No. 2/2, in my view, has been rightly disbelieved by the first appellate Court. The revenue record also bears but the contention of the plaintiff that the passage was private way, and not a public thoroughfare.
(22) I agree with the lower appellate Court that even the map Ex. P. 5indicates that the land in suit led to the grove of the appellants (respondentsherein), and it .was not a thoroughfare. The land abuts on a railway line,which runs across it. For this reason also, there could be no thoroughfare. It did not go anywhere else, except to the land of Kheman Ram.
(23) It is contended by Mr. Verma that the matter should be remanded to the Court below, inasmuch as there is no issue which has been framed regarding the existence of thoroughfare. In view of the documents which are proved on record, particularly the map Ex. P. 5, I do not think that the contention can be raised that it was a public thoroughfare.
(24) In this view of the matter, in my view there is no question of law which needs to be reappraised and decided in favor of the appellant.
(25) The appeal of the Corporation is, therefore, dismissed, and the suit has to be decreed with costs, as ordered by the lower appellate Court.