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2015 DIGILAW 434 (UTT)

P. K. DARBARI v. STATE OF UTTARAKHAND

2015-09-08

U.C.DHYANI

body2015
JUDGMENT U.C. Dhyani, J. (Oral) 1. By means of present civil revision, the plaintiff/ revisionist seeks to set aside the order dated 15.08.2015 passed by learned Civil Judge, Senior Division Rishikesh District- Dehradun in O.S. No. 13 of 2012, whereby the application paper no. 120 Ga filed by the respondent no. 4/ intervener under Order 1 Rule 10 CPC has been allowed and the learned Civil Judge has directed the plaintiff/ revisionist to implead respondent no. 4 as a defendant in the suit. 2. Heard learned counsel for the parties and perused the order under challenge. 3. An application under order 1 rule 10 CPC was moved by respondent no. 4 in the court of Civil Judge (SD), Rishikesh, with the prayer that the respondent no. 4 be arrayed as defendant in O.S. No. 13 of 2012, titled as P.K. Darbari vs State of Uttarakhand and Others. Objections were filed by the revisionist against the same. After considering the rival submissions, learned Civil Judge (SD), Rishikesh, vide order dated 05.08.2015, allowed the application of respondent no. 4 and directed the revisionist to implead Nagar Palika Parishad, Rishikesh as defendant no. 4. Aggrieved against the same, present civil revision has been preferred by the plaintiff/ revisionist. 4. According to the revisionist, the disputed property falls in Khasra no. 279/1. According to the respondent-State, the disputed property falls in Khasra no. 279/12. Whereas Khasra no. 279/1 is recorded in the name of revisionist, Khasra no. 279/12 is recorded in the name of State. In no case, the same is recorded in the name of Nagar Palika Parishad, Rishikesh. 5. The contention of learned counsel for the respondent no. 4 is that the disputed property is being used for public purposes by respondent no. 4. According to the learned counsel for the respondent no. 4, respondent no. 4 is in possession of the disputed property by virtue of Section 118 of the U.P. Municipalities Act, 1916. Section 118 of the Act of 1916 says: “118. Power of [Municipality] to manage and control property entrusted to its management.— Subject to the provisions of the next section and to any condition imposed by the owner of the property, the municipality may manage and control any property entrusted to its management and control”. 6. The owner of the property is, undoubtedly, the State, presuming that the disputed property falls in Khasra No. 279/12. 6. The owner of the property is, undoubtedly, the State, presuming that the disputed property falls in Khasra No. 279/12. No document was filed, either by the State (owner of the property), or respondent no. 4, before the trial court, to establish that the State has directed the respondent no. 4 to ‘manage and control’ the property in question. 7. Section 116 of the U.P. Municipalities Act, 1916 is also being reproduced hereinbelow for convenience: “116. Property vested in [Municipality]—Subject to any special reservation made by the [State Government], all property of the nature hereinafter in this section specified and situated within the [municipal area] shall vest in and belong to the [Municipality], and shall, with all other property which may become vested in the [Municipality], be under its direction, management and control, that is to say,— (a) all public town walls, gates, markets, slaughter-houses, manure and nightsoil depots and public buildings of every description which have been constructed or are maintained out of the municipal fund; (b) all public streams, lakes, springs, tanks, wells and works for the supply, storages and distribution of water from public purposes and all bridges, buildings, engines, materials and things connected therewith or appertaining thereto, and also any adjacent land not being private property appertaining to any public tank or well; (c) all public sewers, drains, culverts and water-courses, and all works, materials and things appertaining thereto; (d) all dust, dung, [nightsoil], ashes, refuse, animal matter or filth or rubbish of any kind, or dead bodies of animals collected by the [Municipality] from the streets, houses, privies, sewers, cesspools or elsewhere or deposited in places appointed by the [Municipality] under Section 273; (e) all public lamps, lamp posts and apparatus connected therewith or appertaining thereto; (f) all land or other property transferred to the [Municipality] by the Government or by gift, purchase or otherwise for local public purposes; (g) all public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements and things existing on or appertaining to such streets.” [Emphasis supplied] 8. The question is, what is the nature of the disputed property? Does it fall under any of the descriptions mentioned in Clause (a) to (g) of Section 116 of the Act of 1916 or not? Learned counsel for the respondents relied upon Clause (f) of Section 116 of the Act of 1916. The question is, what is the nature of the disputed property? Does it fall under any of the descriptions mentioned in Clause (a) to (g) of Section 116 of the Act of 1916 or not? Learned counsel for the respondents relied upon Clause (f) of Section 116 of the Act of 1916. It is also the submission of learned counsel for the respondent no. 4 that no document is required to be shown to the Court in this respect, inasmuch as the disputed property has been transferred to the Municipality by virtue of Section 116 of the Act of 1916. 9. This Court is not inclined to accept such submission of learned counsel for the respondent no. 4, inasmuch as, in order to prima facie establish Clause (f), it will have to be specifically shown that the land in question has been transferred to the Municipality by the Government or by gift, purchase or otherwise for local public purposes. Even ‘otherwise’ is not prima facie shown before the trial Court. Merely because the land in question is within the boundary of municipal limits, it cannot be said that the same is given to the Municipality by the State Government. 7. Further, the written statement filed on behalf of the State nowhere says that the property in question was transferred to respondent no. 4 or is under the ‘management and control’ of respondent no. 4. 8. Learned Court below has therefore committed a mistake in holding that respondent no. 4 is a necessary party. The decisions which have been mentioned in the impugned order have not been correctly applied to the facts of the present case. 9. Civil revision, therefore, succeeds and is allowed. Impugned order is set aside. 10. According to a decision of Hon’ble Apex Court rendered in Savitri Devi v. District Judge, AIR 1999 SC 976 : (1999) 2 SCC 577 , Order 1 Rule 10 CPC empowers the Court to add any person as party at any stage of the proceedings if the person whose presence before the Court is necessary in order to enable the Court to effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision in the Code and there is no requirement of law that such an application must be made at any particular stage of trial, therefore it is made clear that this Court has decided present civil revision keeping in view the facts, as have been narrated to this Court, by learned counsel for the parties, as also by the judgment of learned trial Court, leaving it open to the trial court to exercise such discretion, if and when the respondent no. 4 is able to show that the land in questions is under its ‘management and control’ or that the same has been transferred to it (to respondent no. 4) by the State Government.