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SUSHIL KUKREJA, J. –

The applicant/petitioner (hereinafter referred to as “the petitioner”) has filed the instant application under Order 6, Rule 17 read with Section 151 CPC for amendment of his writ petition, i.e., CWP No. 8945 of 2011.

2(a). The facts giving rise to the instant application are that the petitioner approached this Court by filing the aforesaid writ petition seeking the following substantive reliefs:

“1. That a writ in the nature of mandamus may kindly be issued and a direction may kindly be issued for having a thorough independent inquiry from some independent agency other than the agency of the State and preferably by the Central Bureau of Investigation into the entire episode so that the violations as made are detected.

2. That further a writ in the nature of mandamus may kindly be issued and respondent No. 8 may kindly be directed to conduct an inquiry into the violations of Forest Conservation Act and then to proceed against the culprits in accordance with law.

3. That further a writ in the nature of mandamus may kindly be issued and the sanctioned of plan for construction of housing project as well as permission under Section 118 of HP Tenancy and Land Reforms Act granted in favour of respondent No. 6 may kindly be quashed and set aside and further a heavy penalty may kindly be ordered to be imposed against respondents No. 6 & 7 for violation of forest laws.”

2(b). On 11.10.2023 this Court passed the following order in CWP No. 8756 of 2022, titled DLF Home Developers Ltd. vs. Amit Mittal & others:

“Heard. Record reveals that the construction being raised by the petitioner herein is already the subject-matter of CWP No. 8945 of 2011 and also CWP No. 4325 of 2020. Therefore, it would be in the fitness of things that this petition is also heard alongwith the aforesaid petitions. Ordered accordingly. Let this Case be listed alongwith CWP No. 8945 of 2011 and CWP No. 4325 of 2020.”

2(c). Now, the petitioner, by means of application Under Order 6, Rule 17 read with Section 151 CPC, is seeking amendment to his writ petition. As per the petitioner a sham company, in the name of Bemloi Construction and Infrastructure Company Ltd. was established and its office is shown at one of the Departmental Store of Shimla. It is further averred that various permissions were granted to the aforesaid company for construction of Housing Project within the Municipal limits in Khasras No. 12 to 20, Khatauni No. 198/225, situated at Upmohal Bemloe, Shimla. For granting such permissions, proper procedure was not followed. The petitioner further averred that there was forgery and misrepresentation, as some people presented the application in the name of 22 persons, out of which, 04 had expired, thus signatures of dead persons are on the representation. In addition to the above averments, the petitioner made some more averments in the application, which are also made in the writ petition.

2(d). As per the petitioner, during the pendency of the instant writ petition, some startling facts came into his notice and the same were not in his knowledge at the time of filing of the petition. Therefore, the petitioner prayed that the instant application be allowed and following paras be inserted in his writ petition after para 19, which are as follows:

“19(a). That as a matter of fact, respondent No. 6 is a sham company/ only a paper company and is working at the behest of respondent No. 7 for proposed Housing Project to be build on the land Khasra No. 12, 13, 14, 15, 16, 17, 18, 19 and 20 Khatauni No. 198/225, situated at Upmohal Bemloe, Shimla. As noticed now from the Jamabandi that the said land belonged to three co sharers i.e. Khasra No. 12 to 20 as per Jamabandi for the year 2005-06, which was in the name of Lajpat Rai and similarly Khasra No. 21 to 26 was in the name of Smt. Laxhmi Devi and Sh. Harbaksh Singh. However, while granting permission under Section 118 of the HP Tenancy and Land reforms Act, the revenue department has obtained the report from the Deputy Commissioner and the revenue officials granted the permission simply on the basis of an affidavit filed by Sh. Ashok Sood S/o Sh. Lajpat Rai. It is submitted that such act on the part of revenue department is purely illegal and which has been deliberately committed by flouting the settled norms. It somehow wanted to grant permission in favour of respondent No. 6. It is stated that such permission without the affidavits and agreement to sell on behalf of owners/co- owners could not have been granted. Therefore, such permission being illegally granted, cannot sustain in the eyes of law, thus, the same is liable to be quashed and set aside and which actually goes to the roots of the entire project.

19(b). That firstly the illegality was committed by the revenue department and that too at the highest pedestal i.e. at the level of Secretary, Revenue and their entire staff. Thereafter on the basis of said permission, two sale deeds were registered through GPA holder Sh. Mohit Sood, who happens to be one of the signatory with respect to construction of the road. It is submitted that one sale deed was got executed by him being the GPA of Sh. Ashok Sood S/o Lajpat Rai, which is with respect to Khasra No.12 to 20 and the second sale deed he has got executed being the GPA of Smt. Laxhmi Devi, which pertains to Khasra No. 21 to 26. It is relevant to mention that as far as Khasra Nos.21 to 26 are concerned, which are measuring 2877.09 sq. Meters, the same were owned by two persons i.e. Laxhmi Devi and Harbaksh Singh. It is submitted that in this view of the matter, though permission granted under Section 118 of the HP Tenancy and Land Reforms Act itself was illegal, yet and next illegality was committed by the Sub Registrar (Urban) by registering the sale deeds and thereafter the mutations were also attested. Thus, in these circumstances, the sale deeds as well as mutations are illegal and cannot sustain in the eyes of law.

19(c). That the facts and circumstances clearly go to show that ex-facie the present is a case of Benami transaction as the entire money on the project has been spent by respondent no.7 but all the permissions and the project have been granted/built in the name of respondent No.6. It is submitted that let the entire audited balance sheet of respondent No.6 be called for in order to demonstrate that what were the source of funds out of which this Housing Project and that too in the midst of the DPF has been built up. It is also submitted that otherwise also, it is apparently clear that the project is being dealt by respondent No.7, and is dealing with it. The present being a case of clear violation of Section 118 of HP Tenancy and Land Reforms Act (though permission granted itself was illegal) and in these circumstances, the entire construction raised is liable to vest in the State of HP and can be used for any welfare purpose. It is submitted that such action is required so that rich and mighty do not flout the law at their whims and fancies, which is apparently clear from the facts and circumstances of the present case."

2(e). The petitioner also sought permission of this Court for amending the prayer clause inserting the following clauses after clause (iii), which is reproduced as under:

“(iii)(a). That an appropriate writ order or direction may be issued and the respondent State may kindly be directed to register an FIR against the persons responsible who moved an application to the office of Hon'ble Chief Minister, Annexure P-5and on which got appended the signatures of the persons who had already died thereby have committed and offence of cheating, forgery and impersonation with further directions to take the said FIR to a logical end so that the said persons are appropriately punished in the interest of law and justice.

(iii)(b) That an appropriate writ order or direction may be issued and the entire housing project which has been built up on the spot on the basis of an illegal permission granted under Section 118 of the HP Tenancy on the basis of illegal sale deeds and mutations apart from the same has been constructed in furtherance of a Benami transaction, the said built up structure may be ordered to be vested in the State of HP so that it can be used for some welfare purposes, in the interest of law and justice."

3. Respondent No. 4, by filing reply to the aforesaid application, contested the same. As per respondent No. 4, on 22.04.2009 respondent No. 6 (Bemloi Development and Infrastructure Company Pvt. Ltd.) submitted an application seeking No Objection Certificate (NOC) to set up housing project at Upmohal Bemloi on Khasras No. 12 to 26 and in sequel thereto NOC was issued on 22.04.2009, subject to the condition that building plans/drawings etc. be duly approved by the competent authority. On 10.02.2010 an application for the proposed aforesaid housing project was received from respondent No. 6, through Shri Kanwardeep Singh and vide order No. 118(AP) dated 12.04.2010, permission was granted, subject to the condition/direction “not to commence construction activities in the proposed residential colony without obtaining the requisite building license under HP Apartment and Property Regulation Act from the competent authorities. The replying respondent further averred that on 23.03.2011 Shri Kanwardeep Singh was directed to stop the construction activities at the site till the license of registration under the HP Apartment Act was obtained and till site inspection by MC Officials. The site was inspected on the same day by the MC Officials and in the report, it was mentioned that respondent No. 6 had violated sanction dated 12.04.2010. Resultantly, proceedings under Section 253 of HPMC Act, 1994, were initiated against the violator and the same are pending adjudication in the Court of Commissioner MC. It is also averred that record in original, i.e., all the documents, including note sheets pertaining to the approval of the plans of Bemloi Development and Infrastructure Company Pvt. Ltd., on being sought, was handed over to Additional Superintendent of Police SV & ACB, on 05.03.2013. On 23.04.2019 House Completion Plan Committee (HCPC) visited the site and recommended the case for consideration of House Plan Approval Committee (HPAC) and ultimately sanction was accorded to respondent No. 6 on 30.08.2019, subject to the condition that NOC of electricity and water connections to the project shall be issued after the clarification regarding renewal of license was received from the Director, Town & Country Planning Department. Thereafter, the case was forwarded to Director, Town & Country Planning Department, H.P. on 31.08.2019 for necessary action. As per the replying respondent, respondent No. 6 had managed to beg sanctioning of completion plan of the project in question by misrepresentation and concealment of facts, which are in violation of orders passed by this Hon’ble Court on 17.10.2011, in CWP No. 8945 of 2011. On 26.08.2020, the replying respondent withdrew the completion certificate and sanction granted, vide order dated 30.08.2019 to respondent No. 6, when the aforesaid fact came into its knowledge and notice under Section 248 of HPMC Act, 1994, was also issued to the Director of respondent No. 6. In sequel to order dated 26.08.2020, Directorate of Town and Country Planning also confirmed, vide its letter dated 10.09.2020, the withdrawal of renewal of license No. HIMUDA-51/10, dated 10.06.2010 (granted on 01.10.2019), completion certificate issued, vide letter dated 30.02.2020, and occupation certificate issued vide letter dated 17.07.2020 for 17 number of villas in favour of respondent No. 6. However, the operation of above order dated 26.08.2020 has been stayed by this Hon’ble Court, vide its order dated 03.11.2020. Lastly, it is prayed that the instant application is without any merits, therefore, the same be dismissed with exemplary costs.

4. Respondent No. 5, by filing reply to the application, also contested and resisted the same. As per respondent No. 5, the application is not maintainable and the application for amendment also does not disclose any cause of action and the same is not necessary for adjudication of the writ petition. It is averred that the permission under 118 of the HP Tenancy & Land Reforms Act, 1972 was accorded to respondent No. 6 by the Government in accordance with Rules and Regulations. It is denied that the instant writ petition is in larger public interest and on the contrary, the writ petition has been filed to harass the general public. The replying respondent denied any benami transaction and averred that there is no illegality in granting permission by the Government and in registering the documents etc.. Lastly, is prayed that the instant application, being devoid of any merits, be dismissed.

5. Respondent No.6 filed its reply to the application, wherein it is averred that the instant application is not maintainable and the same is misconceived, untenable and not in conformity with law and the same is liable to be dismissed. It is further averred that the application is not in conformity with the substituted provision of Order 6, Rule 17 CPC. As per the replying respondent, neither there is any ground to justify filing of the application, nor there is any assertion that “due diligence” has been exercised by the petitioner. It is averred that the application is suffered from delay and latches, as the same has been filed at the fag end of the proceedings with intention to fill in the lacunae. The application has been filed with malafide intention, to drag the matter and there is no justifiable reason for seeking the proposed amendment(s). It is also averred that the petitioner intends to enlarge the scope of the matter, change its nature and character, therefore, the proposed amendments are neither bonafide nor relevant and necessary. In para-wise reply to the application, the replying respondent, denied the averments of the petitioner. Lastly, it is prayed that the instant application may be dismissed.

6. Respondent No. 7 contested the application by filing reply, wherein it is contended that the instant application is not maintainable and the same is liable to be dismissed with exemplary costs. As per respondent No. 7, the amendments, which are sought to be incorporated by the petitioner are neither relevant nor important. It is averred that the sought for amendments will protract and complicate the dispute between the parties, as there are no reasonable and plausible grounds which show as to why the amendments are required at the fag end of the trial. It is further averred that the petitioner has failed to plead any due diligence as to why same could not be pleaded earlier. As per the replying respondent, the amendments, which are sought to be incorporated by way of the present application, are being sought at highly belated stage, therefore, the same cannot be allowed. It is also averred that the instant application is the abuse of law, procedure and the same has been filed with a motive to cause delay and scuttle the proceedings. The application is marred by delay and latches, as the same has been filed after a lapse of 12 years from the date of filing of the writ petition. As per the replying respondent, there is an interim order dated 17.10.2011, which is in operation against the replying respondent, whereby the Municipal Corporation, Shimla, has been ordered not to issue any completion certificate/further permission to occupy the constructed houses. It is averred that the petitioner is estopped from filing the instant application due to his own acts, deeds and conduct, as the petitioner has miserably failed to explain as to why the amendments could not be incorporated earlier in spite of due diligence. Lastly, it is prayed that the instant application may kindly be dismissed with exemplary costs.

7. We have heard the learned Senior Counsel for the applicant/petitioner, learned Advocate General for the non-applicants/respondents No. 1 to 3 & 5/State, learned counsel for respondent No. 4, learned Senior Counsel for respondent No. 6, learned Senior Counsel for respondent No. 7, learned Deputy Solicitor General of India for respondent No. 8 and carefully examined the entire record.

8. It is by now well settled that even though the provisions of Code of Civil Procedure are not applicable in the writ jurisdiction by virtue of the provision of Section 141 CPC, but the principle enshrined therein are applicable. In Bharat Amratlal Kothari & another vs. Dosukhan Samadkhan Sindhi & others, (2010) 1 Supreme Court Cases 234, the Hon’ble Supreme Court has held that though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. The relevant portion of the aforesaid judgment reads as under:

“30. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the Court. Normally, the court will grant only those reliefs specifically prayed for the by the petitioner. Though the Court has every wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant of relief not even prayed for by the petitioner.”

9. Order 6, Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which reads as under:-

'Order VI Rule 17.

Rule 17. Amendment of Pleadings :

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.'

10. In order to find out whether the application filed by the petitioner seeking amendment of written statement satisfies the requirement of provision of Order VI Rule 17 CPC, legal position is well settled that the power of the Court to grant amendment is with limitation contained in provision added to Rule 17 of Order VI CPC.

11. In the present case the amendment is being sought for almost 12 years after the date of the institution of the petition. The proposed amendments to the writ petition pertain to facts which were not only pre-existing but also well within the knowledge of the present petitioner. It would be pertinent to mention here that on the very first day i.e. on 15.10.2011, when the matter came up before the Court, the Conservator of Forests, DFO, Shimla (Urban) (DFO, MC, Shimla),Executive Engineer, HPPWD, Assistant Commissioner, Municipal Corporation, Sub Divisional Magistrate (Urban), Shimla, were directed to produce the record. The relevant portion of the order is reproduced hereunder:

“There will be a direction to the Conservator of Forests, DFO, Shimla (Urban) (DFO, MC, Shimla), Executive Engineer, HP PWD, Assistant Commissioner, Municipal Corporation, Sub Divisional Magistrate (Urban), Shimla to be present before this Court with the records pertaining to the maintenance/construction/widening of the road which passes through Compartment No. 31(a) Shimla. It shall be clarified as to what is the amount spent for the construction of the road, whether such construction was with the previous permission from the Government of India, Ministry of Environment and Forests, what is the extent of land in which the construction activities are undertaken, how many plans for the construction of houses have been sanctioned for the area and whether there is sanction for constriction from the competent authority since it is submitted that the area falls within the Demarcated Protected Forest. The Sub Divisional Magistrate shall also clarify as to whether there was any permission under Section 118 of the H.P. Tenancy and Land Reforms Act and files in that regard shall also be produced. The officers, as above, with the entire records shall be present before this Court at 2:00 p.m. on 17th October, 2011.”

12. On 17th October, 2011 the record, as directed was made available by the officers present in the court. Therefore, it cannot be said that the facts, on the basis of which the proposed amendments are being sought, were not within the knowledge of the petitioner till December, 2023, when the application was filed. On perusal of the application, it is seen that in the whole application, there is no reference of any due diligence. It is not the case of the petitioner that facts now sought to be pleaded by way of amendment could not be pleaded despite due diligence. No plausible grounds have been mentioned in the application as to why the amendments, which are being sought to be incorporated by way of the present application, at this highly belated stage and why these facts could not be pleaded earlier, especially when there have been no subsequent developments. The amendment cannot be said to be bonafide for the reason that the application has been filed after 12 years of filing of the writ petition when the matter had come up for final hearing. Therefore, on the ground of delay itself, the instant application is required to be dismissed.

12. In view of what has been discussed hereinabove, the instant application, which sans merits, deserves dismissal and is accordingly dismissed.

Order accordingly.

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