Sec.2 , 3 of Grants Act - Cantonment board - resumption of land - wrongly claimed that the grant is free from holds - mere entry in GLR survey never confirm title - suits for recovery of resumed property - Apex court held that The plaintiffs-respondents have only right with regard to the structure built on the suit premises. The Union of India-appellants have a right for resumption of the suit premises, as evident from evidence on record as discussed above. This issue was not properly appreciated by the Trial Court, the Appellate Court and the High Court which also failed to notice the appellants’ right under Section 2 and 3 of the Government Grants
Act, 1895.- we set aside the impugned judgment dated 25th November, 2009 passed by the High Court of Judicature at Bombay in Civil Revision Application No.272 of 2009, the judgment dated 15th January, 2009 passed by the First Appellate Court and judgment and decree dated 9th June, 2005 passed by the Trial Court. Civil Suit No.695/1999 on the file of Small Causes Court, Pune is dismissed.=
The dispute relates to the piece of property bearing GLR Survey
No. 258, admeasuring 0.90 acres which comprise of superstructure consisting
of main bungalow, servant quarter and garage situated at Elphinstone Road,
Pune Cantonment, Pune (hereinafter referred as the “suit premises”).=
According to appellants, as per terms of old grant, the
appellants decided to resume the said property and, therefore, issued
notice from its Ministry of Defence being Notice No.
701/27/L/L&C/71/3606/D(Lands) dated 11th June, 1971 to plaintiffs-
respondents intimating the intention to resume the suit premises and also
informed that the appellants are ready to pay a compensation of
Rs.31,537/- as the value of the authorized erection made on the said land.
The plaintiffs-respondents were informed that in case the amount of
compensation offered is not acceptable to them, the committee of
Arbitration will be convened to assess the value of the authorized erection
on the land. The cheque for the said amount was attached with the
aforesaid notice. The symbolic possession of the bungalow in question was
taken on 12th July, 1971.=
B.S. CHAUHAN, SUDHANSU JYOTI MUKHOPADHAYA, KURIAN JOSEPH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6194 OF 2013
(arising out of SLP (C) No.2933 of 2010)
UNION OF INDIA & ANR. … APPELLANTS
VERSUS
DINSHAW SHAPOORJI ANKLESARI & ORS. … RESPONDENTS
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against the judgment dated 25th November,
2009 passed by the High Court of Judicature at Bombay in Civil Revision
Application No.272 of 2009. By the impugned judgment the High Court
dismissed the Revision Application and affirmed the judgment and decree
passed by the Appellate Court and the Trial Court.
2. The dispute relates to the piece of property bearing GLR Survey
No. 258, admeasuring 0.90 acres which comprise of superstructure consisting
of main bungalow, servant quarter and garage situated at Elphinstone Road,
Pune Cantonment, Pune (hereinafter referred as the “suit premises”).
3. The case of the appellants is that the suit premises as aforesaid
belongs to the appellants – “Pune Cantonment Board”. The Governor-General
by its order No.14(G.G.O.-14) dated 6th January, 1827 intimated that
officers not provided with public quarters may receive permission to erect
houses within fortress or military cantonment conferring on them right of
property whatever in the ground allotted to them for that purpose, which
will continue to be the property of the State, and resumable at the
pleasure of the Government. The plot admeasuring 0.90 acres (suit
premises) in question was initially granted to one Nusserwanji Sorabji
Anklesaria who erected superstructure, including the Bungalow in question.
In the year 1891 he bequeathed the suit bungalow no.1A, Elphinstone Road
to his son Maneckhji Nusserwanji Anklesaria. The name of Maneckhji
Nusserwanji was registered in General Land Register. Therein it was
mentioned that the bungalow in question is held under old grant under
conditions of GGO 14 dated 6th January, 1827.
4. An agreement for occupation by Government of the property in a
cantonment not requisitioned under the Cantonment (House Accommodation) Act
known as “Repairing Lease” was entered between Maneckji Nasserwanji
Anklesaria in one part (First Part) and the Governor General in Council on
the other (Second Part) on 29th August, 1941, whereunder property
described in Schedule I thereto i.e. Bungalow No. 1-A with servant quarter,
garage, etc. was given in possession to the second part (i.e. Governor
General in Council) for a consideration of monthly payment of Rs.196/-
payable on the first of every month, the first of such payment being made
on the first day of August, 1941. As per the said agreement, the
appellants were required to maintain the premises i.e. Bungalow No. 1-A
with servant quarter, garage etc.. It was agreed upon that if by reason
of fire or tempest or other cause not occurred by the willful act or
default of the party on the second part, the premises or any part or parts
thereof or was in the opinion of the party on the second part is rendered
uninhabitable at any time, the said agreement in force, then until the
premises or such part and parts thereof as are affected shall be restored
or rendered fit for reoccupation to the satisfaction of the party on the
second part.
5. Subsequently, by an Indenture of Sale dated 12th November, 1968
between Manekji Nassurwanji Anklesaria and two others and plaintiffs-
respondents, Dinshaw Shapurji Anklesaria and two others it was agreed to
sell and purchase the lease-hold rights being perpetual grant under the old
grant of the Pune Cantonment Board over the suit premises including the
bungalow, servant quarters’ garage, etc. with full rights of ownership of
the building for total consideration of Rs. 60,000/-. In the said
“Indenture of Sale” it was narrated that necessary permission on that
behalf had been received from the authorities concerned by letter no.
201125/Q(PP) dated 14th June, 1968, signed by the General Officer
Commanding in Chief, Head Quarter, Southern Command.
6. The admission certificate with regard to suit premises was issued
by the plaintiffs-respondents on 19th April, 1971 in favour of the
Military Cantonment Estate Officer, Poona Circle, Pune.
7. According to appellants, as per terms of old grant, the
appellants decided to resume the said property and, therefore, issued
notice from its Ministry of Defence being Notice No.
701/27/L/L&C/71/3606/D(Lands) dated 11th June, 1971 to plaintiffs-
respondents intimating the intention to resume the suit premises and also
informed that the appellants are ready to pay a compensation of
Rs.31,537/- as the value of the authorized erection made on the said land.
The plaintiffs-respondents were informed that in case the amount of
compensation offered is not acceptable to them, the committee of
Arbitration will be convened to assess the value of the authorized erection
on the land. The cheque for the said amount was attached with the
aforesaid notice. The symbolic possession of the bungalow in question was
taken on 12th July, 1971.
8. After about two years, the respondent filed Special Civil
Application No. 1536/1973 challenging the resumption notice dated 11th
June, 1971. Some other individuals who erected bungalows on similarly
situated lands which were also resumed, also filed similar special civil
applications including Special Civil Application No. 1286 of 1972, etc..
9. By judgment and order dated 5th February, 1979, the Bombay High
Court allowed the Special Civil Application No.1286/1972 being Phiroze
Temulji Anklesaria Vs. H.C. Vashistha & Others, AIR 1980 Bom 9 and set
aside the notice of resumption. The High Court held that there is no
evidence whatsoever of the Government’s right to resume the land in
possession and the terms under which right of such resumption, if any,
could be exercised. It further held that most importantly there is no
evidence of the right or power of Government to acquire the structure
standing on the land in question by arbitrarily or unilaterally determining
compensation.
10. Relying on the aforesaid judgment, writ petition preferred by the
plaintiffs-respondents in Special Civil Application No.1536/1973 was also
allowed by judgment dated 27th February, 1979.
11. Being aggrieved by judgments passed in various special civil
applications whereby the High Court set aside the resumption notices, the
Union of India filed SLP(C) Nos.498-511/1980 before this Court. Against
the judgment dated 27th February, 1979 passed in the case of plaintiffs-
respondents in SCA No. 1536/1973 the defendants-appellants filed SLP(C)
No.503/1980 .
12. By order dated 19th March, 1980 leave was granted in SLP(C)
Nos.498-511/1980 and they were renumbered as Civil Appeal Nos.608-621/1980.
SLP(C) No.503/1980 filed by the appellants against the judgment
dated 27th February, 1979 passed in the case of the plaintiffs-respondents
was renumbered as Civil Appeal No.613/1980 after admission.
13. Phiroze Temulji Anklesaria-petitioner in Special Civil
Applications Nos. 1286/1972, 1487/1972, 1486/1972 and 1484/1972 had filed
civil suits for rent and possession against the Government of India before
CJSD, Pune. Same were numbered as Civil Suit No.477/1980, 476/1980,
488/1980 and 475/1980.
The said suits were decreed by the CJSD, Pune relying upon the
decision of the Bombay High Court in Phiroze Temulji Anklesaria (supra).
14. Against the aforesaid judgment, the appellants filed appeal
Nos.1159/1984, 1160/1984 and 1161/1984. Cross Appeal No.1/1985, Cross
Appeal No.2/1985, Cross Appeal No.3/1985 were also filed in those appeals.
Second Appeal Nos.15 and 16 of 1989 were subsequently filed before the
Bombay High Court.
When Civil Appeal Nos. 608-621/1980 preferred by the appellants
against the original judgment in Phiroze Temulji Anklesaria (supra) reached
for final hearing before this Court, the abovementioned appeals preferred
before the Bombay High Court were called for by this Court on the ground
that they were interconnected.
As a result appeals covered by SCA No.1286/72, SCA No.1486/72, SCA
No.1487/72, SCA No.1484/72, SCA No.1485/72 got transferred to this Court
and numbered as Transferred Case Nos.67 to 72 of 1985 and 11 & 12 of 1987.
15. Transferred Case Nos. 67 to 72 of 1985 and 11&12 of 1987 titled
Union of India & Others v. P.T. Ankleshwar (dead) by LRs. & Ors. on
hearing were remitted back to the High Court for disposal by this Court on
20th July, 1988, with the following directions:
“1. While considering the merit of the case, the High Court shall
not place any reliance upon the Division Bench judgment of the High
Court consisting of D.H. Rege and R.A. Jahangir, JJ. rendered in
Special Civil Application No. 1286/72 decided on 6/6 February, 1979
against which appeals are pending in this Court.
2. While considering the case, if the High Court finds that the trial
court or the first appellate court has placed reliance or made any
reference to the aforesaid judgment of the Division Bench, it shall
ignore that judgment, to that extent, and the High Court shall decide
the matter afresh in accordance with law without taking into
consideration or being influenced by the aforesaid judgment of the
Division Bench.
3. The parties will be at liberty to adduce additional evidence before
the High Court within the period fixed by the High Court.”
16. Civil Appeal Nos. 608-621 of 1980 titled Union of India & Others
v. P.T. Ankleshwar (dead) by LRs. & Ors. were subsequently taken up by
this Court and in the light of observation made on 20th July, 1988 in
Transferred Case Nos.67 to 72 of 1985 and 11&12 of 1987, as quoted above,
by order dated 25th March, 1992, this Court declared the appeals to be
infructuous without prejudice to whatsoever rights to which the appellants
are entitled in law.
17. The respondents, thereafter, filed Civil Application No.3382 of
1992 in Special Civil Application No.1536 of 1973 before the Bombay High
Court for possession of the suit premises. The Bombay High Court by its
order dated 11th September, 1992 directed the appellants to handover
symbolic possession of the suit premises bearing survey no.258, Bungalow
No.1-A situated at Elphinstone Road, Pune Cantonment, Pune to the
respondents.
18. The appellants filed a review application before this Court for
review of order dated 25th March, 1992 passed in Civil Appeal Nos.608-621
of 1980 on the ground that only the civil appeals connected with
transferred cases in which the issue of ownership of land and building were
interlinked with validity of resumption notices had become infructuous.
In other Civil Appeal Nos.620, 610, 613 (the appeal preferred against the
judgment in the case of plaintiffs-respondents), 614, 618, 609 and 621 of
1980, the issue of ownership of land and building was not interlinked with
validity of resumption notices and hence the same had not become
infructuous.
19. By the order dated 13th November, 1995, this Court allowed the
review application thereby modifying the order dated 25th March, 1992
passed in Civil Appeal Nos.608-621 of 1980 by setting aside the order of
dismissal of the aforesaid civil appeals as infructuous as there were no
eviction decrees obtained by any of the bungalow owners.
20. The aforesaid civil appeals including Civil Appeal No.613 of 1980
filed by the Union of India against the plaintiffs-respondents were taken
up for hearing on 4th August, 1998 when the following order was passed:
“Learned Solicitor General states that the Union of India would seek
dispossession of the respondent – occupants from the properties
involved in accordance with law and if need be, through a Civil
Court by filing suits. In case such steps are taken, any
observations made by the High Court which would stand to defeat the
remedies sought would not stand in its way. On such stance of the
Union of India, Civil Appeals as also the special leave petitions
stand disposed of accordingly.”
21. The plaintiffs-respondents thereafter filed suit for possession,
arrears of rent and damages against the defendants-appellants in the Small
Causes Court at Pune numbered as Civil Suit No. 695 of 1999. It was
contended therein that the defendants-appellants served resumption notice
upon the plaintiffs-respondents which was challenged by the plaintiffs-
respondents before the Bombay High Court in SCA No.1536 of 1973 which was
allowed and the resumption notice was declared void, inoperative and
without legal effect. The said order of the High Court was affirmed in
Civil Appeal No.613 of 1980. The appellants filed review application and
the same was disposed of recording the statement of learned Solicitor
General. An Order which was passed by the High Court with respect to
resumption notice was not set aside. Therefore, the occupation of
defendants-appellants in the said property is that of lessee. The
plaintiffs-respondents are, therefore, entitled to ask for possession of
the property from the defendants-appellants as the defendants are trying to
set up adverse title.
22. The defendants-appellants contested the suit by filing detailed
written statement. It was brought to the notice of the Court that the
property was held on old grant terms, therefore the Government of India has
every right to resume the property. It was also contended that the
Government has resumed the property and the plaintiffs-respondents have no
right to ask for possession. It was also contended that the Military
Authorities have made a plan to demolish the present structure and
construct a new building for accommodation of its officers and therefore,
repair for the suit premises was not under taken.
23. In the said suit the Trial Court framed the following issues:
|1) Do plaintiffs prove that they are landlords and the |
|defendants are tenants of the suit premises? |
|2) Do they prove that the defendants have committed breach |
|of agreement of lease by not maintaining the property and by|
|causing damage to it? |
|3) Do they prove that the defendants have disowned the |
|title of the plaintiff and thereby committed breach of the |
|agreement of lease? |
|4) Do they prove that the defendants have caused damage to|
|the extent of Rs.4 lac to the suit property? |
|5) Do they prove that the defendants are in arrears of |
|rent since 1.7.1971 to 30.6.1999 at the rate of Rs.196/- per|
|month? |
|6) Whether this Court has jurisdiction to entertain, try |
|and decide this suit? |
|7) What is due to the plaintiffs? |
|8) What relief, order and decree? |
24. By judgment and decree dated 9th June, 2005, the Trial Court
partially decreed the suit on the ground of breach of terms and conditions
of tenancy i.e. non-repair of the suit premises.
The Trial Court directed the defendants-appellants to handover the
vacant and peaceful possession of the suit premises together with structure
consisting of main bungalow, servant quarter, garage and any other
structure thereon to the plaintiffs-respondents.
24.1 With reference to issue nos.1 and 6, it was held that in view of
sale deed dated 12th November, 1968 in favour of the Maneckji Ankesaria,
the consent letter dated 19th December, 1967 and the lease agreement dated
29th August, 1941 the plaintiffs were only holders of occupancy rights in
respect of the land and were owners of the superstructure. The defendants
were tenants and hence the suit was between the landlord and the tenant and
the Small Causes Court has jurisdiction to entertain, try and decide the
same.
24.2 The issue no.3 was answered in negative with observation that the
defendants have legal right of resumption. Mere exercise of such right
does not mean that the defendants have denied the lease hold right over the
land and ownership of the superstructure of the plaintiff.
24.3 Issue no.5 regarding the defendants being in arrears of rent since
17th July, 1979 to 30th June, 1999 @ Rs.196/- per month was answered in
negative with the observation that there was no willful default on part of
the defendants and the defendants have deposited arrears of rent along with
interest there on @ Rs.9% per annum before the date of hearing of the suit.
Thus, defendants are entitled to protections of eviction as per the
provisions of sub section 3 of Section 12 of the Bombay Rent Act. The
defendants were not in arrears of the rent on the date of hearing of the
suit.
24.4 The issue no.2 regarding the breach and terms of the agreement by
not maintaining the property and by causing damage to it was answered in
affirmative.
24.5 The issue no.4 regarding the plaintiffs’ entitlement to damages of
Rs.4 lakhs was answered in negative for want of evidence.
24.6 The issue no.7 regarding the amount due to the plaintiff was
answered in negative.
25. Being aggrieved by the judgment and decree dated 9th June, 2005
passed in Civil Suit No.695 of 99, the appellants preferred Civil Appeal
No.26 of 2006 in the District Court, Pune.
26. In Civil Appeal No.26 of 2006, the First Appellate Court by
judgment and decree dated 15th January, 2009 while dismissed the appeal and
modified the judgment and decree passed by the Trial Court holding that the
plaintiffs-respondents are entitled to recover the amount of Rs.20,972/-
along with cantonment taxes @ 6 per cent per annum from February, 2000
till the date of actual realization.
27. Being aggrieved by the aforesaid judgment dated 15th January, 2009
the appellants preferred Civil Revision Application No.272 of 2009 before
the Bombay High Court. The Bombay High Court dismissed the same giving
rise to the present appeal.
28. Mr. Mohan Parasaran, learned Solicitor General of India appearing
on behalf of the appellants-Union of India made the following submissions:-
(i) As per Section 2 of the Government Grants Act, 1895, Transfer of
Property Act, 1882 is not applicable to such Government grant lands
and the Government Grant is taken effect as if the said Act had not
been passed.
(ii) Not only the Transfer of Property Act is made
inapplicable to the Government but Section 3 of the Government Grants
Act,1895 makes it clear that the Government grants is to take effect
according to their tenor, notwithstanding any rule of law, Statute or
enactment of the Legislature to the contrary to the same.
(iii) (Crown)- Union of India has unfettered discretion to
impose any condition, limitation or restriction in its grants and
rights, privileges and obligations of the grantee would be regulated
only in accordance with the terms of the grant itself though they
are inconsistent with the provisions of any Statute or Common Law.
(iv) The possession of the house was taken by the appellant-
Union of India from the plaintiffs-respondents in due course of law
and that the plaintiffs-respondents was not entitled to any remedy
against the Government either by way of a writ petition or a suit or
under Section 6 of the Specific Relief Act.
(v) Clause 4 of the Repairing Lease Deed dated 29.08.1941 even
protects the Government’s right of resumption and therefore, the
plaintiffs-respondents cannot derive advantage of the Repairing Lease
Deed for claiming right or title over the suit premises.
(vi) In view of the Section 3 of the Government Grants act,
1895, the Bombay Rent Control Act will not be applicable in absence of
landlord-tenant relationship, the land being in the nature of a
Government grant over which the super-structure was constructed.
(vii) No right has been vested or granted in the repair lease to
the occupant to evict the owner of the land who in this case
incidentally proceeded to become the occupant of the super-structure
put up by the plaintiffs-respondents. That will not create any legal
landlord-tenant relationship as in other cases as the property in
question falls in the cantonment area and is governed by
Government grants.
29. On the other hand, learned counsel for the plaintiffs-respondents
raised following grounds to dismiss the appeal:
(i) The High Court’s judgment dated 27.2.1979 passed in the Writ
Petition preferred by plaintiffs-respondents in SCA No. 1536/1973
setting aside the notice of resumption dated 11th June, 1971 has
reached finality. The legality and propriety of aforesaid decision
cannot be raised at this stage.
(ii) In absence of jurisdictional error committed by Court’s
below, the High Court was right in refusing to interfere with
concurrent findings of fact. The scope of Revisional Jurisdiction
under Section 115 CPC is limited and the same cannot be exercised to
interfere with the finding of fact.
(iii) Since the High Court’s approach and analysis is correct,
this Court should not exercise its power under Article 136 of the
Constitution to set aside the impugned order.
30. The case of the appellants is that the suit premises (land)
belongs to Union of India- “Pune Cantonment Board”. It was allotted by way
of grant to one Nusserwanji Sorabji Anklesaria who erected super structure
including bungalow, garage and servant quarter. In 1891, the suit bungalow
no.1A, Elphinstone Road was bequeathed to Maneckhji Nusserwanji Anklesaria
by his father Nusserwanji Sorabji Anklesaria. The name of Maneckhji
Nusserwanji was registered in the General Land Register. Therein it was
mentioned that the bungalow in question is held under old grant under
conditions of GGO 14 dated 6th January, 1827.
The aforesaid fact is also clear from the agreement and repairing
lease dated 29th August, 1941 reached between Maneckhji Nusserwanji and the
Governor General in Council wherein at clause iii (4) it is mentioned as
follows;
“(4) Nothing herein shall prejudice the right of the party of the
second part to resume under the terms of the Cantonment tenure above
referred to; and
(5) In the event of any dispute arising between the party of the
first part and the party of the second part as regards the
interpretation of any terms or condition herein contained, the same
shall be referred to C.R.E. Poona Area whose decision will be final.”
31. The consent letter dated 19th December, 1967 written by Maneckji
Nassurwanji Anklesaria to the Military Estates Officer, Poona Cantonment,
Poona shows that permission for sale of property bearing No.1A, Elphinstone
Road, Poona Cantonment, Poona was sought for by Maneckji Nassurwanji
Anklesaria and two others as they wanted to sell of their right, title and
interest in the property to Dinshaw Shapurji Anklesaria and two others as a
part of settlement of the family dispute. Permission was also sought for
to complete the said transaction with clear assurance that Dinshaw Shapurji
Anklesaria and two others in whose favour the rights are sought to be sold
are ready to execute such document in favour of the State as may be
required under the existing rules.
32. The Military Estates Officer, Poona Circle in reference to above
letter dated 19th December, 1967 informed Maneckji Nassurwanji Anklesaria
that sanction was accorded to the transfer by sale of the above bungalow to
Dinshaw Shapurji Anklesaria and others and ask them to comply with certain
instructions, as evident from the said letter, is quoted below:
“No. H/517
Office of the Mily. Esates Officer,
Poone Circle, Poona-1, 25 June, 1968.
To,
Maneckji Nassurwanji Anklesaria,
94, Mahatma Gandhi Road,
Poona-1.
Subject: Transfer of B.No.1-B Elphinestone Road,
Poona Cantonment.
Dear Sir,
Reference your letter dated 19.12.1967.
2. With the previous concurrence of the GOC-in-C, Southern Command,
Poona sanction is hereby accorded to the transfer by sale of the above
bungalow to Shri. Dinshaw S. Anklesaria and others of 94-A Mahatma
Gandhi Road, Poona-1 for a sum of Rs.60,000/- subject to the condition
that the intending purchasers executed and registers the admission
certificate of their own expense as per their undertaking dated 3.1.68.
3. Please comply with the following instructions:-
i) It should be mentioned in the sale deed to be executed that the
land is held on old Tenure and is not being sold.
ii) The date of execution of the sale and the number and date on
which it was accepted for registration should be intimated to
this office.
iii) The sale deed duly registered should be forwarded to this
office through CPO, Poona for necessary mutation entries being
made in the GLR. The document will be returned when no longer
required.
Yours faithfully,
Sd/-
Military Estate Officer,
Poona Circle,
(Y.P. Kapoor)
Copy to:-
Shri. Dinshaw S. Anklesaria and others,
94-A, Mahatma Gandhi Road,
Poona-1. – With reference his undertaking dated 3.1.68
please forward a non-judicial stamp paper to the value of
Rs.3.00 together with site plan (one on tracing cloth)
…….drawn to a scale 40’ to an inch in respect of the above
bungalow showing the existing authorized buildings to
enable this office to take further necessary action in the
matter.
The C.R.O, - For information.
Poona-1.”
33. Indenture of sale made and executed on 12th November, 1968 by
Maneckji Nassurwanji Anklesaria and two others (vendors) in favour of the
Dinshaw Shapurji Anklesaria and two others (vendee) reads as follows:-
“Whereas the vendors are fully seized and possessed of and
otherwise well and sufficiently entitled to all the lease – hold rights
in all that piece and parcel of land being perpetual grant under the
old grant of the Poona Cantonment and of the full right of ownership of
all the building and structure standing on the property known as No.1-
A, Elphinestone Road, Poona Cantonment, Poona 1 and which property is
more described in the Schedule “A” hereunder written……………………………..the
vendors agreed to sell and the purchaser agreed to purchase all the
leasehold rights being perpetual grant under the old grant of the Poona
Cantonment Board in all that piece and parcel of the land situated
within the Registration District of Poona and Registration Sub-District
of Taluka Haveli and situated within the limits of the Poona Cantonment
Board and within the Revenue limits of Taluka Poona City and bearing
Poona Cantonment No.1-A, Elphinestone Road, Poona Cantonment, Poona-1
and bearing G.L.R. and Survey No. 258 and bearing Military Estate House
No.517 along with the full rights of ownership of all buildings out –
houses, structures, appurtenances and benefits of all amenities
belonging to or available to the said property and which property is
more fully described in the Schedule ‘A’ hereunder written, free from
all encumbrances, charges, burdens……..”
34. Thereafter, Dinshaw Shapurji Anklesaria purchaser of the bungalow
no.1A, Elphinstone Road, Poona Cantonment signed admission certificate
dated 19th April, 1971 with following conditions:
“Admission Certificate
We, the undersigned, Shri Dinashaw S. Anklesaria residing at 94-A
Mahatma Gandhi Road, Poona Cantonment, the purchaser of Bungalow No.1A,
Elphinstone Road General Land Register Survey No.258 of Poona
Cantonment, Sub District and Taluka Haveli, District Poona, do hereby
subscribe to the conditions (reproduced below) of the original grant
pertaining to the site thereof and this agreement shall be binding on me
as well as my heirs, successors and assigns as the case may be whoever
shall be in possession of the said property.
Conditions
1. Permission to occupy ground in a Military Cantonment confers no
proprietary right; it continuous the property of the Estate and
presumable at the pleasure of Government, but in all practicable case
one month’s notice of resumption will be given and the value of all
buildings which may have been authorized to be erected thereon, as shown
in the accompanying plan, as estimated by the Committee contemplated in
General Order-Separate of 1856, will be paid to the owner.
2. That no buildings are to be erected on the ground other than those now
existing and shown on the attached plan no additions or alternations are
to be made thereto without the permission of the Officer Commanding the
Station.
3. The ground, being the property of Government cannot be sold by the
grantee. The buildings may be sold by house owners of the previous
permission of the Officer Commanding the Station.
4. That the Military Authorities have the power to cancel the grant if the
ground is used for any purpose other than for which it was originally
granted.
5. We also agree to abide by any orders and rules that may be passed
regarding tenure of land in cantonments.
Place: Poona
Dated: April 1971
Signature of the purchaser of
Bungalow No.1-A, Elphinstone Road
Sy. No.258 Poona Cantonment.
The above conditions have been explained by me to the purchaser of
Bungalow No.1-A Elphinstone Road, Poona Cantonment, and have been
subscribed to by him in my presence.
Place: Poona
Dated: 19th April, 1971
Military Estates Officer
Poona Circle
(K.C. Agarwal)”
35. From the aforesaid records, it is clear that the land measuring
0.90 acres bearing General Land Register Survey No.258 situated at
Elphinstone Road, Poona Cantonment, Poona belongs to the appellant. The
said land was leased by way of grant originally to Nusserwanji Sorabji
Anklesaria under conditions of GGO 14 dated 6th January, 1827. The super
structure including bungalow, garage and servant quarter on the plot was
constructed by him. In the year 1891, the super structure bequeathed to
his son-Maneckhji Nusserwanji. Maneckhji Nusserwanji Anklesaria and two
others sold their right, title and interest over the super structure i.e.
bungalow no.1A in favour of Dinshaw Shapurji Anklesaria and two others
(nephews of Maneckhji Nusserwanji Anklesaria). Thereby file of the super
structure was transferred in favour of Dinshaw Shapurji Anklesaria and two
others but the title of the land remained with the appellant.
36. This is also evident from General Land Register- Cantonment 8-A(1)
dated 7th March, 2007 and relevant portion of which is as follows:
|“Extract Form General Land Register- |
|Cantonment 8-A(1) |
|Survey No.258 S No.122 |VOL. No.II |PAGE |
|Details and date of mutation |1 | |
|Subsidiary Sy. No. |2 | |
|Volume & Page No. of Register|3 | |
|Area in Acres/Sq.Ft. |4 |0.90 acre |
|Description |5 |Bungalow No.1A, |
| | |Elphinstone Road |
|Class |6 |B-3 |
|By whom managed |7 |D.E.O |
|Landlord |8 |Central Government |
|Holder of occupancy rights |9 |Maneckhji Nusserwanji |
|Nature of Holder’s right |10 |Old Grant conditions |
|under GGO | |of 14 of 6.1.1827 |
|Rent payable: Central Govt. |11 | |
|Per annum Cantt. Board | | |
|Date of expiry of lease |12 | |
|Remarks |13 | |
|Station: Pune-1 | |Sd/- |
|Dated: 07, March, 2007 | |Defence Estates |
| | |Officer |
| | |Pune Circle |
| | |(SR. Nayyar)” |
37. The Government of India from Ministry of Defence by notice dated
11th June, 1971 intimated Dinshaw Shapurji Anklesaria and two others that
the land belongs to the President of India i.e. the Government and is held
on Old Grant terms under which the Government is entitled to resume the
same. It was informed that the Government has resumed the said property
under the terms of the aforesaid Old Grant for its use and therefore, in
exercise of power conferred under the provisions of the Act agreed to offer
a sum of Rs.31,537/- as the value of the authorized erection standing on
the said land. It was further intimated that in case if the amount of
compensation offered was not acceptable to the respondent, a committee of
arbitration will be convened to assess the value of the erection on the
land. A cheque for the amount was also attached along with the said
notice.
38. The Government Grants Act, 1895 as would be evident from the
preamble and Section 2 therein, seeks to clarify the doubts with regard to
the extended operation of the Transfer of Property Act. Section 2 of the
Act reads as follows:
“2. Transfer of Property Act, 1882, not to apply to Government
grants.-Nothing in the Transfer of Property Act, 1882, contained shall
apply or be deemed ever to have applied to any grant or other transfer
of land or of any interest therein heretofore made or hereafter to be
made by or on behalf of the Government to, or in favour of, any person
whosoever; but every such grant and transfer shall be construed and
take effect as if the said Act had not been passed.”
39. Not only the Transfer of Property Act is made inapplicable to the
Government grants but Section 3 of the Government Grants Act, 1895 further
makes it clear that the Government grants is to take effect according to
their tenor, notwithstanding any rule of law, statute or enactment of the
Legislature to the contrary. Section 3 lays down as follows:-
“3. Government grants to take effect according to their tenor.- All
provisions, restrictions, conditions and limitations over contained in
any such grant or transfer as aforesaid shall be valid and the effect
according to their tenor, any rule of law, statute or enactment of the
Legislature to the contrary notwithstanding.”
40. This Court in Azim Ahmad Kazmi and Others. v. State of Uttar
Pradesh and Another, (2012) 7 SCC 278, has held that the Government grant
of lease of land is governed entirely by the terms of the grant. The Court
took note of Section 3 of the Government Grants Act, 1895 which is to take
effect according to its tenor notwithstanding any other law to the
contrary.
41. In Chief Executive Officer v. Surendra Kumar Vakil and Others,
(1999) 3 SCC 555, this Court has held that the grantee under the old grant
terms is a mere occupier/licensee having no title over the land so as to
entitle him to transfer the land or to another person without prior consent
of the authorities concerned. The Court further held that the regulations
as well as the General Land Register which are old documents maintained in
the regular course and coming from proper custody clearly indicate that the
land was held on old grant basis and this was sufficient for the Government
to resume the land in accordance with law.
42. In Union of India and others v. Kamla Verma, (2010) 13 SCC 511,
this Court has held that it is always open to the Union of India to resume
the land held on old grant terms and that the Union of India cannot be
prevented from resuming the said land.
43. Therefore, it is clear that the Government has unfettered
discretion and under Section 3 impose any condition, limitation or
restriction in its grants and the rights, privileges and obligations of the
grantee would be regulated only according to the terms of the grant itself
though they may be inconsistent with the provisions of any Statute or
Common Law.
44. The grants of lands situated in cantonment area under Old Grants
form a self contained provision prescribing the procedure as to the grant
and resumption of the land and hence recourse to the Civil Procedure Code
or the Specific Relief Act will not be applicable.
45. From the permission for sale of property letter dated 19th
December, 1967, Indenture of Sale dated 12th November, 1968 and
admission certificate dated 19th April, 1971 signed by the respondent it is
clear that the Military Authorities have the power to cancel the grant if
the land is used for any purpose other than for it was originally granted.
46. In the suit the plaintiffs-respondents falsely claimed that the
suit premises described in para 1 of the plaint is owned by the plaintiffs
as freehold property. This would be evident from the pleadings made by the
plaintiffs-respondents, as discussed below.
47. The description of the property has been shown at paragraph 1 of
the plaint as under:
“1. Description of the Property:
All that piece and parcel of property bearing GLR Survey No.258
and corresponding an area of 0.90 acres together with structure
consisting of main Bungalow, Servant Quarter Garage and Servant
Quarter, and bounded as under:
On or towards the East: Elphinstone Road
On or towards the South: Bungalow No.2, Elphinstone Road
On or towards the West: Bungalow No.13, Moldina Road
On or towards the North: Bungalow No.13, Moledina Road”
Paragraphs 2, 3 and 4 of the plaint read as under:
“2. That the property described in Para 1 above is owned by
plaintiffs as freehold property.
3. That the said property originally belonged to Nusserwanjee
Sorabji Anklesaria. Plaintiffs have purchased the property as per
conveyance deed dated 12.11.1968 from Shri Maneckaji Nusserwanjee
Ankelsaria. That name of plaintiffs was also recorded in GLR Record
and which was subsequently removed by the defendant no.2 illegally.
The plaintiff has challenged the aforesaid act of defendant no.2
deleting the name of the plaintiffs in Civil Court.
4. That lease deed dated 29.8.1941 was executed by the then
owners of the suit property and Union of India. That as per the
aforesaid lease deed the said property was leased out to defendants
under repairing lease for a period of 5 years. After the expiry of
the said period the defendants continued to be in use and occupation
of the said property as at tenant holding over on the same terms and
conditions as a monthly tenant. Thus the defendants are occupying
the said property as a statutory tenant only.”
48. The plaintiffs-respondents also misled the Court by stating that
the resumption notice dated 11th June, 1971 was set aside by the Bombay
High Court and the said order has attained finality.
49. In fact the judgment aforesaid on challenge before this Court in
Civil Appeal No.613 of 1980, heard along with other appeals, this Court by
order dated 4th August, 1998 made the following observation:
“Order
Learned Solicitor General states that the Union of India would seek
dispossession of the respondent-occupants from the properties involved
in accordance with law and if need be, through a Civil Court by filing
suits. In case such steps are taken, any observations made by the High
Court which would stand to defeat the remedies sought would not stand
in its way. On such stance of the Union of India, Civil Appeals as
also the special leave petitions stand disposed of accordingly.”
50. The liberty given to the Union of India to dispossess the
plaintiffs-respondents from the suit property clearly indicates that the
decision of the Bombay High Court that the suit premises do not belong to
the Union of India was not acceptable to this Court.
51. The aforesaid misleading pleading made by the plaintiffs-
respondents is without any evidence and the same influenced the Court in
coming to a wrong conclusion that the plaintiffs-respondents are the
landlords and defendants-appellants are the tenants of the suit premises.
52. The Appellate Court also failed to appreciate the evidence and
erred in affirming the Trial Court’s view that the plaintiffs-respondents
are the landlords and defendants-appellants are the tenants.
53. The land of the suit premises belong to the Union of India-
appellants herein. Therefore, they cannot be held to be tenants of the
suit premises comprising of an area of 0.90 acres together with structure
consisting of main Bungalow, Servant Quarter and Garage.
54. The plaintiffs-respondents have only right with regard to the
structure built on the suit premises. The Union of India-appellants have a
right for resumption of the suit premises, as evident from evidence on
record as discussed above. This issue was not properly appreciated by the
Trial Court, the Appellate Court and the High Court which also failed to
notice the appellants’ right under Section 2 and 3 of the Government Grants
Act, 1895.
55. For the reasons aforesaid, we set aside the impugned judgment
dated 25th November, 2009 passed by the High Court of Judicature at Bombay
in Civil Revision Application No.272 of 2009, the judgment dated 15th
January, 2009 passed by the First Appellate Court and judgment and decree
dated 9th June, 2005 passed by the Trial Court. Civil Suit No.695/1999 on
the file of Small Causes Court, Pune is dismissed.
56. The appeal is allowed. No order as to costs.
………………………………………………….J.
(DR. B.S. CHAUHAN)
………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
……………………………………………….J.
(KURIAN JOSEPH)
NEW DELHI,
MAY 06, 2014.
Act, 1895.- we set aside the impugned judgment dated 25th November, 2009 passed by the High Court of Judicature at Bombay in Civil Revision Application No.272 of 2009, the judgment dated 15th January, 2009 passed by the First Appellate Court and judgment and decree dated 9th June, 2005 passed by the Trial Court. Civil Suit No.695/1999 on the file of Small Causes Court, Pune is dismissed.=
The dispute relates to the piece of property bearing GLR Survey
No. 258, admeasuring 0.90 acres which comprise of superstructure consisting
of main bungalow, servant quarter and garage situated at Elphinstone Road,
Pune Cantonment, Pune (hereinafter referred as the “suit premises”).=
According to appellants, as per terms of old grant, the
appellants decided to resume the said property and, therefore, issued
notice from its Ministry of Defence being Notice No.
701/27/L/L&C/71/3606/D(Lands) dated 11th June, 1971 to plaintiffs-
respondents intimating the intention to resume the suit premises and also
informed that the appellants are ready to pay a compensation of
Rs.31,537/- as the value of the authorized erection made on the said land.
The plaintiffs-respondents were informed that in case the amount of
compensation offered is not acceptable to them, the committee of
Arbitration will be convened to assess the value of the authorized erection
on the land. The cheque for the said amount was attached with the
aforesaid notice. The symbolic possession of the bungalow in question was
taken on 12th July, 1971.=
Thereafter, Dinshaw Shapurji Anklesaria purchaser of the bungalow
no.1A, Elphinstone Road, Poona Cantonment signed admission certificate
dated 19th April, 1971 with following conditions:
“Admission Certificate
We, the undersigned, Shri Dinashaw S. Anklesaria residing at 94-A
Mahatma Gandhi Road, Poona Cantonment, the purchaser of Bungalow No.1A,
Elphinstone Road General Land Register Survey No.258 of Poona
Cantonment, Sub District and Taluka Haveli, District Poona, do hereby
subscribe to the conditions (reproduced below) of the original grant
pertaining to the site thereof and this agreement shall be binding on me
as well as my heirs, successors and assigns as the case may be whoever
shall be in possession of the said property.
Conditions
1. Permission to occupy ground in a Military Cantonment confers no
proprietary right; it continuous the property of the Estate and
presumable at the pleasure of Government, but in all practicable case
one month’s notice of resumption will be given and the value of all
buildings which may have been authorized to be erected thereon, as shown
in the accompanying plan, as estimated by the Committee contemplated in
General Order-Separate of 1856, will be paid to the owner.
2. That no buildings are to be erected on the ground other than those now
existing and shown on the attached plan no additions or alternations are
to be made thereto without the permission of the Officer Commanding the
Station.
3. The ground, being the property of Government cannot be sold by the
grantee. The buildings may be sold by house owners of the previous
permission of the Officer Commanding the Station.
4. That the Military Authorities have the power to cancel the grant if the
ground is used for any purpose other than for which it was originally
granted.
5. We also agree to abide by any orders and rules that may be passed
regarding tenure of land in cantonments.
Place: Poona
Dated: April 1971
Signature of the purchaser of
Bungalow No.1-A, Elphinstone Road
Sy. No.258 Poona Cantonment.
The above conditions have been explained by me to the purchaser of
Bungalow No.1-A Elphinstone Road, Poona Cantonment, and have been
subscribed to by him in my presence.
Place: Poona
Dated: 19th April, 1971
Military Estates Officer
Poona Circle
(K.C. Agarwal)”
35. From the aforesaid records, it is clear that the land measuring
0.90 acres bearing General Land Register Survey No.258 situated at
Elphinstone Road, Poona Cantonment, Poona belongs to the appellant. The
said land was leased by way of grant originally to Nusserwanji Sorabji
Anklesaria under conditions of GGO 14 dated 6th January, 1827. The super
structure including bungalow, garage and servant quarter on the plot was
constructed by him. In the year 1891, the super structure bequeathed to
his son-Maneckhji Nusserwanji. Maneckhji Nusserwanji Anklesaria and two
others sold their right, title and interest over the super structure i.e.
bungalow no.1A in favour of Dinshaw Shapurji Anklesaria and two others
(nephews of Maneckhji Nusserwanji Anklesaria). Thereby file of the super
structure was transferred in favour of Dinshaw Shapurji Anklesaria and two
others but the title of the land remained with the appellant.
36. This is also evident from General Land Register- Cantonment 8-A(1)
dated 7th March, 2007 =
The plaintiffs-respondents also misled the Court by stating that
the resumption notice dated 11th June, 1971 was set aside by the Bombay
High Court and the said order has attained finality.
49. In fact the judgment aforesaid on challenge before this Court in
Civil Appeal No.613 of 1980, heard along with other appeals, this Court by
order dated 4th August, 1998 made the following observation:
“Order
Learned Solicitor General states that the Union of India would seek
dispossession of the respondent-occupants from the properties involved
in accordance with law and if need be, through a Civil Court by filing
suits. In case such steps are taken, any observations made by the High
Court which would stand to defeat the remedies sought would not stand
in its way. On such stance of the Union of India, Civil Appeals as
also the special leave petitions stand disposed of accordingly.”
50. The liberty given to the Union of India to dispossess the
plaintiffs-respondents from the suit property clearly indicates that the
decision of the Bombay High Court that the suit premises do not belong to
the Union of India was not acceptable to this Court.
51. The aforesaid misleading pleading made by the plaintiffs-
respondents is without any evidence and the same influenced the Court in
coming to a wrong conclusion that the plaintiffs-respondents are the
landlords and defendants-appellants are the tenants of the suit premises.
52. The Appellate Court also failed to appreciate the evidence and
erred in affirming the Trial Court’s view that the plaintiffs-respondents
are the landlords and defendants-appellants are the tenants.
53. The land of the suit premises belong to the Union of India-
appellants herein. Therefore, they cannot be held to be tenants of the
suit premises comprising of an area of 0.90 acres together with structure
consisting of main Bungalow, Servant Quarter and Garage.
54. The plaintiffs-respondents have only right with regard to the
structure built on the suit premises. The Union of India-appellants have a
right for resumption of the suit premises, as evident from evidence on
record as discussed above. This issue was not properly appreciated by the
Trial Court, the Appellate Court and the High Court which also failed to
notice the appellants’ right under Section 2 and 3 of the Government Grants
Act, 1895.
55. For the reasons aforesaid, we set aside the impugned judgment
dated 25th November, 2009 passed by the High Court of Judicature at Bombay
in Civil Revision Application No.272 of 2009, the judgment dated 15th
January, 2009 passed by the First Appellate Court and judgment and decree
dated 9th June, 2005 passed by the Trial Court. Civil Suit No.695/1999 on
the file of Small Causes Court, Pune is dismissed.
56. The appeal is allowed. No order as to costs.
2014 (May.Part) http://judis.nic.in/supremecourt/filename=41515no.1A, Elphinstone Road, Poona Cantonment signed admission certificate
dated 19th April, 1971 with following conditions:
“Admission Certificate
We, the undersigned, Shri Dinashaw S. Anklesaria residing at 94-A
Mahatma Gandhi Road, Poona Cantonment, the purchaser of Bungalow No.1A,
Elphinstone Road General Land Register Survey No.258 of Poona
Cantonment, Sub District and Taluka Haveli, District Poona, do hereby
subscribe to the conditions (reproduced below) of the original grant
pertaining to the site thereof and this agreement shall be binding on me
as well as my heirs, successors and assigns as the case may be whoever
shall be in possession of the said property.
Conditions
1. Permission to occupy ground in a Military Cantonment confers no
proprietary right; it continuous the property of the Estate and
presumable at the pleasure of Government, but in all practicable case
one month’s notice of resumption will be given and the value of all
buildings which may have been authorized to be erected thereon, as shown
in the accompanying plan, as estimated by the Committee contemplated in
General Order-Separate of 1856, will be paid to the owner.
2. That no buildings are to be erected on the ground other than those now
existing and shown on the attached plan no additions or alternations are
to be made thereto without the permission of the Officer Commanding the
Station.
3. The ground, being the property of Government cannot be sold by the
grantee. The buildings may be sold by house owners of the previous
permission of the Officer Commanding the Station.
4. That the Military Authorities have the power to cancel the grant if the
ground is used for any purpose other than for which it was originally
granted.
5. We also agree to abide by any orders and rules that may be passed
regarding tenure of land in cantonments.
Place: Poona
Dated: April 1971
Signature of the purchaser of
Bungalow No.1-A, Elphinstone Road
Sy. No.258 Poona Cantonment.
The above conditions have been explained by me to the purchaser of
Bungalow No.1-A Elphinstone Road, Poona Cantonment, and have been
subscribed to by him in my presence.
Place: Poona
Dated: 19th April, 1971
Military Estates Officer
Poona Circle
(K.C. Agarwal)”
35. From the aforesaid records, it is clear that the land measuring
0.90 acres bearing General Land Register Survey No.258 situated at
Elphinstone Road, Poona Cantonment, Poona belongs to the appellant. The
said land was leased by way of grant originally to Nusserwanji Sorabji
Anklesaria under conditions of GGO 14 dated 6th January, 1827. The super
structure including bungalow, garage and servant quarter on the plot was
constructed by him. In the year 1891, the super structure bequeathed to
his son-Maneckhji Nusserwanji. Maneckhji Nusserwanji Anklesaria and two
others sold their right, title and interest over the super structure i.e.
bungalow no.1A in favour of Dinshaw Shapurji Anklesaria and two others
(nephews of Maneckhji Nusserwanji Anklesaria). Thereby file of the super
structure was transferred in favour of Dinshaw Shapurji Anklesaria and two
others but the title of the land remained with the appellant.
36. This is also evident from General Land Register- Cantonment 8-A(1)
dated 7th March, 2007 =
The plaintiffs-respondents also misled the Court by stating that
the resumption notice dated 11th June, 1971 was set aside by the Bombay
High Court and the said order has attained finality.
49. In fact the judgment aforesaid on challenge before this Court in
Civil Appeal No.613 of 1980, heard along with other appeals, this Court by
order dated 4th August, 1998 made the following observation:
“Order
Learned Solicitor General states that the Union of India would seek
dispossession of the respondent-occupants from the properties involved
in accordance with law and if need be, through a Civil Court by filing
suits. In case such steps are taken, any observations made by the High
Court which would stand to defeat the remedies sought would not stand
in its way. On such stance of the Union of India, Civil Appeals as
also the special leave petitions stand disposed of accordingly.”
50. The liberty given to the Union of India to dispossess the
plaintiffs-respondents from the suit property clearly indicates that the
decision of the Bombay High Court that the suit premises do not belong to
the Union of India was not acceptable to this Court.
51. The aforesaid misleading pleading made by the plaintiffs-
respondents is without any evidence and the same influenced the Court in
coming to a wrong conclusion that the plaintiffs-respondents are the
landlords and defendants-appellants are the tenants of the suit premises.
52. The Appellate Court also failed to appreciate the evidence and
erred in affirming the Trial Court’s view that the plaintiffs-respondents
are the landlords and defendants-appellants are the tenants.
53. The land of the suit premises belong to the Union of India-
appellants herein. Therefore, they cannot be held to be tenants of the
suit premises comprising of an area of 0.90 acres together with structure
consisting of main Bungalow, Servant Quarter and Garage.
54. The plaintiffs-respondents have only right with regard to the
structure built on the suit premises. The Union of India-appellants have a
right for resumption of the suit premises, as evident from evidence on
record as discussed above. This issue was not properly appreciated by the
Trial Court, the Appellate Court and the High Court which also failed to
notice the appellants’ right under Section 2 and 3 of the Government Grants
Act, 1895.
55. For the reasons aforesaid, we set aside the impugned judgment
dated 25th November, 2009 passed by the High Court of Judicature at Bombay
in Civil Revision Application No.272 of 2009, the judgment dated 15th
January, 2009 passed by the First Appellate Court and judgment and decree
dated 9th June, 2005 passed by the Trial Court. Civil Suit No.695/1999 on
the file of Small Causes Court, Pune is dismissed.
56. The appeal is allowed. No order as to costs.
B.S. CHAUHAN, SUDHANSU JYOTI MUKHOPADHAYA, KURIAN JOSEPH
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6194 OF 2013
(arising out of SLP (C) No.2933 of 2010)
UNION OF INDIA & ANR. … APPELLANTS
VERSUS
DINSHAW SHAPOORJI ANKLESARI & ORS. … RESPONDENTS
J U D G M E N T
Sudhansu Jyoti Mukhopadhaya, J.
This appeal is directed against the judgment dated 25th November,
2009 passed by the High Court of Judicature at Bombay in Civil Revision
Application No.272 of 2009. By the impugned judgment the High Court
dismissed the Revision Application and affirmed the judgment and decree
passed by the Appellate Court and the Trial Court.
2. The dispute relates to the piece of property bearing GLR Survey
No. 258, admeasuring 0.90 acres which comprise of superstructure consisting
of main bungalow, servant quarter and garage situated at Elphinstone Road,
Pune Cantonment, Pune (hereinafter referred as the “suit premises”).
3. The case of the appellants is that the suit premises as aforesaid
belongs to the appellants – “Pune Cantonment Board”. The Governor-General
by its order No.14(G.G.O.-14) dated 6th January, 1827 intimated that
officers not provided with public quarters may receive permission to erect
houses within fortress or military cantonment conferring on them right of
property whatever in the ground allotted to them for that purpose, which
will continue to be the property of the State, and resumable at the
pleasure of the Government. The plot admeasuring 0.90 acres (suit
premises) in question was initially granted to one Nusserwanji Sorabji
Anklesaria who erected superstructure, including the Bungalow in question.
In the year 1891 he bequeathed the suit bungalow no.1A, Elphinstone Road
to his son Maneckhji Nusserwanji Anklesaria. The name of Maneckhji
Nusserwanji was registered in General Land Register. Therein it was
mentioned that the bungalow in question is held under old grant under
conditions of GGO 14 dated 6th January, 1827.
4. An agreement for occupation by Government of the property in a
cantonment not requisitioned under the Cantonment (House Accommodation) Act
known as “Repairing Lease” was entered between Maneckji Nasserwanji
Anklesaria in one part (First Part) and the Governor General in Council on
the other (Second Part) on 29th August, 1941, whereunder property
described in Schedule I thereto i.e. Bungalow No. 1-A with servant quarter,
garage, etc. was given in possession to the second part (i.e. Governor
General in Council) for a consideration of monthly payment of Rs.196/-
payable on the first of every month, the first of such payment being made
on the first day of August, 1941. As per the said agreement, the
appellants were required to maintain the premises i.e. Bungalow No. 1-A
with servant quarter, garage etc.. It was agreed upon that if by reason
of fire or tempest or other cause not occurred by the willful act or
default of the party on the second part, the premises or any part or parts
thereof or was in the opinion of the party on the second part is rendered
uninhabitable at any time, the said agreement in force, then until the
premises or such part and parts thereof as are affected shall be restored
or rendered fit for reoccupation to the satisfaction of the party on the
second part.
5. Subsequently, by an Indenture of Sale dated 12th November, 1968
between Manekji Nassurwanji Anklesaria and two others and plaintiffs-
respondents, Dinshaw Shapurji Anklesaria and two others it was agreed to
sell and purchase the lease-hold rights being perpetual grant under the old
grant of the Pune Cantonment Board over the suit premises including the
bungalow, servant quarters’ garage, etc. with full rights of ownership of
the building for total consideration of Rs. 60,000/-. In the said
“Indenture of Sale” it was narrated that necessary permission on that
behalf had been received from the authorities concerned by letter no.
201125/Q(PP) dated 14th June, 1968, signed by the General Officer
Commanding in Chief, Head Quarter, Southern Command.
6. The admission certificate with regard to suit premises was issued
by the plaintiffs-respondents on 19th April, 1971 in favour of the
Military Cantonment Estate Officer, Poona Circle, Pune.
7. According to appellants, as per terms of old grant, the
appellants decided to resume the said property and, therefore, issued
notice from its Ministry of Defence being Notice No.
701/27/L/L&C/71/3606/D(Lands) dated 11th June, 1971 to plaintiffs-
respondents intimating the intention to resume the suit premises and also
informed that the appellants are ready to pay a compensation of
Rs.31,537/- as the value of the authorized erection made on the said land.
The plaintiffs-respondents were informed that in case the amount of
compensation offered is not acceptable to them, the committee of
Arbitration will be convened to assess the value of the authorized erection
on the land. The cheque for the said amount was attached with the
aforesaid notice. The symbolic possession of the bungalow in question was
taken on 12th July, 1971.
8. After about two years, the respondent filed Special Civil
Application No. 1536/1973 challenging the resumption notice dated 11th
June, 1971. Some other individuals who erected bungalows on similarly
situated lands which were also resumed, also filed similar special civil
applications including Special Civil Application No. 1286 of 1972, etc..
9. By judgment and order dated 5th February, 1979, the Bombay High
Court allowed the Special Civil Application No.1286/1972 being Phiroze
Temulji Anklesaria Vs. H.C. Vashistha & Others, AIR 1980 Bom 9 and set
aside the notice of resumption. The High Court held that there is no
evidence whatsoever of the Government’s right to resume the land in
possession and the terms under which right of such resumption, if any,
could be exercised. It further held that most importantly there is no
evidence of the right or power of Government to acquire the structure
standing on the land in question by arbitrarily or unilaterally determining
compensation.
10. Relying on the aforesaid judgment, writ petition preferred by the
plaintiffs-respondents in Special Civil Application No.1536/1973 was also
allowed by judgment dated 27th February, 1979.
11. Being aggrieved by judgments passed in various special civil
applications whereby the High Court set aside the resumption notices, the
Union of India filed SLP(C) Nos.498-511/1980 before this Court. Against
the judgment dated 27th February, 1979 passed in the case of plaintiffs-
respondents in SCA No. 1536/1973 the defendants-appellants filed SLP(C)
No.503/1980 .
12. By order dated 19th March, 1980 leave was granted in SLP(C)
Nos.498-511/1980 and they were renumbered as Civil Appeal Nos.608-621/1980.
SLP(C) No.503/1980 filed by the appellants against the judgment
dated 27th February, 1979 passed in the case of the plaintiffs-respondents
was renumbered as Civil Appeal No.613/1980 after admission.
13. Phiroze Temulji Anklesaria-petitioner in Special Civil
Applications Nos. 1286/1972, 1487/1972, 1486/1972 and 1484/1972 had filed
civil suits for rent and possession against the Government of India before
CJSD, Pune. Same were numbered as Civil Suit No.477/1980, 476/1980,
488/1980 and 475/1980.
The said suits were decreed by the CJSD, Pune relying upon the
decision of the Bombay High Court in Phiroze Temulji Anklesaria (supra).
14. Against the aforesaid judgment, the appellants filed appeal
Nos.1159/1984, 1160/1984 and 1161/1984. Cross Appeal No.1/1985, Cross
Appeal No.2/1985, Cross Appeal No.3/1985 were also filed in those appeals.
Second Appeal Nos.15 and 16 of 1989 were subsequently filed before the
Bombay High Court.
When Civil Appeal Nos. 608-621/1980 preferred by the appellants
against the original judgment in Phiroze Temulji Anklesaria (supra) reached
for final hearing before this Court, the abovementioned appeals preferred
before the Bombay High Court were called for by this Court on the ground
that they were interconnected.
As a result appeals covered by SCA No.1286/72, SCA No.1486/72, SCA
No.1487/72, SCA No.1484/72, SCA No.1485/72 got transferred to this Court
and numbered as Transferred Case Nos.67 to 72 of 1985 and 11 & 12 of 1987.
15. Transferred Case Nos. 67 to 72 of 1985 and 11&12 of 1987 titled
Union of India & Others v. P.T. Ankleshwar (dead) by LRs. & Ors. on
hearing were remitted back to the High Court for disposal by this Court on
20th July, 1988, with the following directions:
“1. While considering the merit of the case, the High Court shall
not place any reliance upon the Division Bench judgment of the High
Court consisting of D.H. Rege and R.A. Jahangir, JJ. rendered in
Special Civil Application No. 1286/72 decided on 6/6 February, 1979
against which appeals are pending in this Court.
2. While considering the case, if the High Court finds that the trial
court or the first appellate court has placed reliance or made any
reference to the aforesaid judgment of the Division Bench, it shall
ignore that judgment, to that extent, and the High Court shall decide
the matter afresh in accordance with law without taking into
consideration or being influenced by the aforesaid judgment of the
Division Bench.
3. The parties will be at liberty to adduce additional evidence before
the High Court within the period fixed by the High Court.”
16. Civil Appeal Nos. 608-621 of 1980 titled Union of India & Others
v. P.T. Ankleshwar (dead) by LRs. & Ors. were subsequently taken up by
this Court and in the light of observation made on 20th July, 1988 in
Transferred Case Nos.67 to 72 of 1985 and 11&12 of 1987, as quoted above,
by order dated 25th March, 1992, this Court declared the appeals to be
infructuous without prejudice to whatsoever rights to which the appellants
are entitled in law.
17. The respondents, thereafter, filed Civil Application No.3382 of
1992 in Special Civil Application No.1536 of 1973 before the Bombay High
Court for possession of the suit premises. The Bombay High Court by its
order dated 11th September, 1992 directed the appellants to handover
symbolic possession of the suit premises bearing survey no.258, Bungalow
No.1-A situated at Elphinstone Road, Pune Cantonment, Pune to the
respondents.
18. The appellants filed a review application before this Court for
review of order dated 25th March, 1992 passed in Civil Appeal Nos.608-621
of 1980 on the ground that only the civil appeals connected with
transferred cases in which the issue of ownership of land and building were
interlinked with validity of resumption notices had become infructuous.
In other Civil Appeal Nos.620, 610, 613 (the appeal preferred against the
judgment in the case of plaintiffs-respondents), 614, 618, 609 and 621 of
1980, the issue of ownership of land and building was not interlinked with
validity of resumption notices and hence the same had not become
infructuous.
19. By the order dated 13th November, 1995, this Court allowed the
review application thereby modifying the order dated 25th March, 1992
passed in Civil Appeal Nos.608-621 of 1980 by setting aside the order of
dismissal of the aforesaid civil appeals as infructuous as there were no
eviction decrees obtained by any of the bungalow owners.
20. The aforesaid civil appeals including Civil Appeal No.613 of 1980
filed by the Union of India against the plaintiffs-respondents were taken
up for hearing on 4th August, 1998 when the following order was passed:
“Learned Solicitor General states that the Union of India would seek
dispossession of the respondent – occupants from the properties
involved in accordance with law and if need be, through a Civil
Court by filing suits. In case such steps are taken, any
observations made by the High Court which would stand to defeat the
remedies sought would not stand in its way. On such stance of the
Union of India, Civil Appeals as also the special leave petitions
stand disposed of accordingly.”
21. The plaintiffs-respondents thereafter filed suit for possession,
arrears of rent and damages against the defendants-appellants in the Small
Causes Court at Pune numbered as Civil Suit No. 695 of 1999. It was
contended therein that the defendants-appellants served resumption notice
upon the plaintiffs-respondents which was challenged by the plaintiffs-
respondents before the Bombay High Court in SCA No.1536 of 1973 which was
allowed and the resumption notice was declared void, inoperative and
without legal effect. The said order of the High Court was affirmed in
Civil Appeal No.613 of 1980. The appellants filed review application and
the same was disposed of recording the statement of learned Solicitor
General. An Order which was passed by the High Court with respect to
resumption notice was not set aside. Therefore, the occupation of
defendants-appellants in the said property is that of lessee. The
plaintiffs-respondents are, therefore, entitled to ask for possession of
the property from the defendants-appellants as the defendants are trying to
set up adverse title.
22. The defendants-appellants contested the suit by filing detailed
written statement. It was brought to the notice of the Court that the
property was held on old grant terms, therefore the Government of India has
every right to resume the property. It was also contended that the
Government has resumed the property and the plaintiffs-respondents have no
right to ask for possession. It was also contended that the Military
Authorities have made a plan to demolish the present structure and
construct a new building for accommodation of its officers and therefore,
repair for the suit premises was not under taken.
23. In the said suit the Trial Court framed the following issues:
|1) Do plaintiffs prove that they are landlords and the |
|defendants are tenants of the suit premises? |
|2) Do they prove that the defendants have committed breach |
|of agreement of lease by not maintaining the property and by|
|causing damage to it? |
|3) Do they prove that the defendants have disowned the |
|title of the plaintiff and thereby committed breach of the |
|agreement of lease? |
|4) Do they prove that the defendants have caused damage to|
|the extent of Rs.4 lac to the suit property? |
|5) Do they prove that the defendants are in arrears of |
|rent since 1.7.1971 to 30.6.1999 at the rate of Rs.196/- per|
|month? |
|6) Whether this Court has jurisdiction to entertain, try |
|and decide this suit? |
|7) What is due to the plaintiffs? |
|8) What relief, order and decree? |
24. By judgment and decree dated 9th June, 2005, the Trial Court
partially decreed the suit on the ground of breach of terms and conditions
of tenancy i.e. non-repair of the suit premises.
The Trial Court directed the defendants-appellants to handover the
vacant and peaceful possession of the suit premises together with structure
consisting of main bungalow, servant quarter, garage and any other
structure thereon to the plaintiffs-respondents.
24.1 With reference to issue nos.1 and 6, it was held that in view of
sale deed dated 12th November, 1968 in favour of the Maneckji Ankesaria,
the consent letter dated 19th December, 1967 and the lease agreement dated
29th August, 1941 the plaintiffs were only holders of occupancy rights in
respect of the land and were owners of the superstructure. The defendants
were tenants and hence the suit was between the landlord and the tenant and
the Small Causes Court has jurisdiction to entertain, try and decide the
same.
24.2 The issue no.3 was answered in negative with observation that the
defendants have legal right of resumption. Mere exercise of such right
does not mean that the defendants have denied the lease hold right over the
land and ownership of the superstructure of the plaintiff.
24.3 Issue no.5 regarding the defendants being in arrears of rent since
17th July, 1979 to 30th June, 1999 @ Rs.196/- per month was answered in
negative with the observation that there was no willful default on part of
the defendants and the defendants have deposited arrears of rent along with
interest there on @ Rs.9% per annum before the date of hearing of the suit.
Thus, defendants are entitled to protections of eviction as per the
provisions of sub section 3 of Section 12 of the Bombay Rent Act. The
defendants were not in arrears of the rent on the date of hearing of the
suit.
24.4 The issue no.2 regarding the breach and terms of the agreement by
not maintaining the property and by causing damage to it was answered in
affirmative.
24.5 The issue no.4 regarding the plaintiffs’ entitlement to damages of
Rs.4 lakhs was answered in negative for want of evidence.
24.6 The issue no.7 regarding the amount due to the plaintiff was
answered in negative.
25. Being aggrieved by the judgment and decree dated 9th June, 2005
passed in Civil Suit No.695 of 99, the appellants preferred Civil Appeal
No.26 of 2006 in the District Court, Pune.
26. In Civil Appeal No.26 of 2006, the First Appellate Court by
judgment and decree dated 15th January, 2009 while dismissed the appeal and
modified the judgment and decree passed by the Trial Court holding that the
plaintiffs-respondents are entitled to recover the amount of Rs.20,972/-
along with cantonment taxes @ 6 per cent per annum from February, 2000
till the date of actual realization.
27. Being aggrieved by the aforesaid judgment dated 15th January, 2009
the appellants preferred Civil Revision Application No.272 of 2009 before
the Bombay High Court. The Bombay High Court dismissed the same giving
rise to the present appeal.
28. Mr. Mohan Parasaran, learned Solicitor General of India appearing
on behalf of the appellants-Union of India made the following submissions:-
(i) As per Section 2 of the Government Grants Act, 1895, Transfer of
Property Act, 1882 is not applicable to such Government grant lands
and the Government Grant is taken effect as if the said Act had not
been passed.
(ii) Not only the Transfer of Property Act is made
inapplicable to the Government but Section 3 of the Government Grants
Act,1895 makes it clear that the Government grants is to take effect
according to their tenor, notwithstanding any rule of law, Statute or
enactment of the Legislature to the contrary to the same.
(iii) (Crown)- Union of India has unfettered discretion to
impose any condition, limitation or restriction in its grants and
rights, privileges and obligations of the grantee would be regulated
only in accordance with the terms of the grant itself though they
are inconsistent with the provisions of any Statute or Common Law.
(iv) The possession of the house was taken by the appellant-
Union of India from the plaintiffs-respondents in due course of law
and that the plaintiffs-respondents was not entitled to any remedy
against the Government either by way of a writ petition or a suit or
under Section 6 of the Specific Relief Act.
(v) Clause 4 of the Repairing Lease Deed dated 29.08.1941 even
protects the Government’s right of resumption and therefore, the
plaintiffs-respondents cannot derive advantage of the Repairing Lease
Deed for claiming right or title over the suit premises.
(vi) In view of the Section 3 of the Government Grants act,
1895, the Bombay Rent Control Act will not be applicable in absence of
landlord-tenant relationship, the land being in the nature of a
Government grant over which the super-structure was constructed.
(vii) No right has been vested or granted in the repair lease to
the occupant to evict the owner of the land who in this case
incidentally proceeded to become the occupant of the super-structure
put up by the plaintiffs-respondents. That will not create any legal
landlord-tenant relationship as in other cases as the property in
question falls in the cantonment area and is governed by
Government grants.
29. On the other hand, learned counsel for the plaintiffs-respondents
raised following grounds to dismiss the appeal:
(i) The High Court’s judgment dated 27.2.1979 passed in the Writ
Petition preferred by plaintiffs-respondents in SCA No. 1536/1973
setting aside the notice of resumption dated 11th June, 1971 has
reached finality. The legality and propriety of aforesaid decision
cannot be raised at this stage.
(ii) In absence of jurisdictional error committed by Court’s
below, the High Court was right in refusing to interfere with
concurrent findings of fact. The scope of Revisional Jurisdiction
under Section 115 CPC is limited and the same cannot be exercised to
interfere with the finding of fact.
(iii) Since the High Court’s approach and analysis is correct,
this Court should not exercise its power under Article 136 of the
Constitution to set aside the impugned order.
30. The case of the appellants is that the suit premises (land)
belongs to Union of India- “Pune Cantonment Board”. It was allotted by way
of grant to one Nusserwanji Sorabji Anklesaria who erected super structure
including bungalow, garage and servant quarter. In 1891, the suit bungalow
no.1A, Elphinstone Road was bequeathed to Maneckhji Nusserwanji Anklesaria
by his father Nusserwanji Sorabji Anklesaria. The name of Maneckhji
Nusserwanji was registered in the General Land Register. Therein it was
mentioned that the bungalow in question is held under old grant under
conditions of GGO 14 dated 6th January, 1827.
The aforesaid fact is also clear from the agreement and repairing
lease dated 29th August, 1941 reached between Maneckhji Nusserwanji and the
Governor General in Council wherein at clause iii (4) it is mentioned as
follows;
“(4) Nothing herein shall prejudice the right of the party of the
second part to resume under the terms of the Cantonment tenure above
referred to; and
(5) In the event of any dispute arising between the party of the
first part and the party of the second part as regards the
interpretation of any terms or condition herein contained, the same
shall be referred to C.R.E. Poona Area whose decision will be final.”
31. The consent letter dated 19th December, 1967 written by Maneckji
Nassurwanji Anklesaria to the Military Estates Officer, Poona Cantonment,
Poona shows that permission for sale of property bearing No.1A, Elphinstone
Road, Poona Cantonment, Poona was sought for by Maneckji Nassurwanji
Anklesaria and two others as they wanted to sell of their right, title and
interest in the property to Dinshaw Shapurji Anklesaria and two others as a
part of settlement of the family dispute. Permission was also sought for
to complete the said transaction with clear assurance that Dinshaw Shapurji
Anklesaria and two others in whose favour the rights are sought to be sold
are ready to execute such document in favour of the State as may be
required under the existing rules.
32. The Military Estates Officer, Poona Circle in reference to above
letter dated 19th December, 1967 informed Maneckji Nassurwanji Anklesaria
that sanction was accorded to the transfer by sale of the above bungalow to
Dinshaw Shapurji Anklesaria and others and ask them to comply with certain
instructions, as evident from the said letter, is quoted below:
“No. H/517
Office of the Mily. Esates Officer,
Poone Circle, Poona-1, 25 June, 1968.
To,
Maneckji Nassurwanji Anklesaria,
94, Mahatma Gandhi Road,
Poona-1.
Subject: Transfer of B.No.1-B Elphinestone Road,
Poona Cantonment.
Dear Sir,
Reference your letter dated 19.12.1967.
2. With the previous concurrence of the GOC-in-C, Southern Command,
Poona sanction is hereby accorded to the transfer by sale of the above
bungalow to Shri. Dinshaw S. Anklesaria and others of 94-A Mahatma
Gandhi Road, Poona-1 for a sum of Rs.60,000/- subject to the condition
that the intending purchasers executed and registers the admission
certificate of their own expense as per their undertaking dated 3.1.68.
3. Please comply with the following instructions:-
i) It should be mentioned in the sale deed to be executed that the
land is held on old Tenure and is not being sold.
ii) The date of execution of the sale and the number and date on
which it was accepted for registration should be intimated to
this office.
iii) The sale deed duly registered should be forwarded to this
office through CPO, Poona for necessary mutation entries being
made in the GLR. The document will be returned when no longer
required.
Yours faithfully,
Sd/-
Military Estate Officer,
Poona Circle,
(Y.P. Kapoor)
Copy to:-
Shri. Dinshaw S. Anklesaria and others,
94-A, Mahatma Gandhi Road,
Poona-1. – With reference his undertaking dated 3.1.68
please forward a non-judicial stamp paper to the value of
Rs.3.00 together with site plan (one on tracing cloth)
…….drawn to a scale 40’ to an inch in respect of the above
bungalow showing the existing authorized buildings to
enable this office to take further necessary action in the
matter.
The C.R.O, - For information.
Poona-1.”
33. Indenture of sale made and executed on 12th November, 1968 by
Maneckji Nassurwanji Anklesaria and two others (vendors) in favour of the
Dinshaw Shapurji Anklesaria and two others (vendee) reads as follows:-
“Whereas the vendors are fully seized and possessed of and
otherwise well and sufficiently entitled to all the lease – hold rights
in all that piece and parcel of land being perpetual grant under the
old grant of the Poona Cantonment and of the full right of ownership of
all the building and structure standing on the property known as No.1-
A, Elphinestone Road, Poona Cantonment, Poona 1 and which property is
more described in the Schedule “A” hereunder written……………………………..the
vendors agreed to sell and the purchaser agreed to purchase all the
leasehold rights being perpetual grant under the old grant of the Poona
Cantonment Board in all that piece and parcel of the land situated
within the Registration District of Poona and Registration Sub-District
of Taluka Haveli and situated within the limits of the Poona Cantonment
Board and within the Revenue limits of Taluka Poona City and bearing
Poona Cantonment No.1-A, Elphinestone Road, Poona Cantonment, Poona-1
and bearing G.L.R. and Survey No. 258 and bearing Military Estate House
No.517 along with the full rights of ownership of all buildings out –
houses, structures, appurtenances and benefits of all amenities
belonging to or available to the said property and which property is
more fully described in the Schedule ‘A’ hereunder written, free from
all encumbrances, charges, burdens……..”
34. Thereafter, Dinshaw Shapurji Anklesaria purchaser of the bungalow
no.1A, Elphinstone Road, Poona Cantonment signed admission certificate
dated 19th April, 1971 with following conditions:
“Admission Certificate
We, the undersigned, Shri Dinashaw S. Anklesaria residing at 94-A
Mahatma Gandhi Road, Poona Cantonment, the purchaser of Bungalow No.1A,
Elphinstone Road General Land Register Survey No.258 of Poona
Cantonment, Sub District and Taluka Haveli, District Poona, do hereby
subscribe to the conditions (reproduced below) of the original grant
pertaining to the site thereof and this agreement shall be binding on me
as well as my heirs, successors and assigns as the case may be whoever
shall be in possession of the said property.
Conditions
1. Permission to occupy ground in a Military Cantonment confers no
proprietary right; it continuous the property of the Estate and
presumable at the pleasure of Government, but in all practicable case
one month’s notice of resumption will be given and the value of all
buildings which may have been authorized to be erected thereon, as shown
in the accompanying plan, as estimated by the Committee contemplated in
General Order-Separate of 1856, will be paid to the owner.
2. That no buildings are to be erected on the ground other than those now
existing and shown on the attached plan no additions or alternations are
to be made thereto without the permission of the Officer Commanding the
Station.
3. The ground, being the property of Government cannot be sold by the
grantee. The buildings may be sold by house owners of the previous
permission of the Officer Commanding the Station.
4. That the Military Authorities have the power to cancel the grant if the
ground is used for any purpose other than for which it was originally
granted.
5. We also agree to abide by any orders and rules that may be passed
regarding tenure of land in cantonments.
Place: Poona
Dated: April 1971
Signature of the purchaser of
Bungalow No.1-A, Elphinstone Road
Sy. No.258 Poona Cantonment.
The above conditions have been explained by me to the purchaser of
Bungalow No.1-A Elphinstone Road, Poona Cantonment, and have been
subscribed to by him in my presence.
Place: Poona
Dated: 19th April, 1971
Military Estates Officer
Poona Circle
(K.C. Agarwal)”
35. From the aforesaid records, it is clear that the land measuring
0.90 acres bearing General Land Register Survey No.258 situated at
Elphinstone Road, Poona Cantonment, Poona belongs to the appellant. The
said land was leased by way of grant originally to Nusserwanji Sorabji
Anklesaria under conditions of GGO 14 dated 6th January, 1827. The super
structure including bungalow, garage and servant quarter on the plot was
constructed by him. In the year 1891, the super structure bequeathed to
his son-Maneckhji Nusserwanji. Maneckhji Nusserwanji Anklesaria and two
others sold their right, title and interest over the super structure i.e.
bungalow no.1A in favour of Dinshaw Shapurji Anklesaria and two others
(nephews of Maneckhji Nusserwanji Anklesaria). Thereby file of the super
structure was transferred in favour of Dinshaw Shapurji Anklesaria and two
others but the title of the land remained with the appellant.
36. This is also evident from General Land Register- Cantonment 8-A(1)
dated 7th March, 2007 and relevant portion of which is as follows:
|“Extract Form General Land Register- |
|Cantonment 8-A(1) |
|Survey No.258 S No.122 |VOL. No.II |PAGE |
|Details and date of mutation |1 | |
|Subsidiary Sy. No. |2 | |
|Volume & Page No. of Register|3 | |
|Area in Acres/Sq.Ft. |4 |0.90 acre |
|Description |5 |Bungalow No.1A, |
| | |Elphinstone Road |
|Class |6 |B-3 |
|By whom managed |7 |D.E.O |
|Landlord |8 |Central Government |
|Holder of occupancy rights |9 |Maneckhji Nusserwanji |
|Nature of Holder’s right |10 |Old Grant conditions |
|under GGO | |of 14 of 6.1.1827 |
|Rent payable: Central Govt. |11 | |
|Per annum Cantt. Board | | |
|Date of expiry of lease |12 | |
|Remarks |13 | |
|Station: Pune-1 | |Sd/- |
|Dated: 07, March, 2007 | |Defence Estates |
| | |Officer |
| | |Pune Circle |
| | |(SR. Nayyar)” |
37. The Government of India from Ministry of Defence by notice dated
11th June, 1971 intimated Dinshaw Shapurji Anklesaria and two others that
the land belongs to the President of India i.e. the Government and is held
on Old Grant terms under which the Government is entitled to resume the
same. It was informed that the Government has resumed the said property
under the terms of the aforesaid Old Grant for its use and therefore, in
exercise of power conferred under the provisions of the Act agreed to offer
a sum of Rs.31,537/- as the value of the authorized erection standing on
the said land. It was further intimated that in case if the amount of
compensation offered was not acceptable to the respondent, a committee of
arbitration will be convened to assess the value of the erection on the
land. A cheque for the amount was also attached along with the said
notice.
38. The Government Grants Act, 1895 as would be evident from the
preamble and Section 2 therein, seeks to clarify the doubts with regard to
the extended operation of the Transfer of Property Act. Section 2 of the
Act reads as follows:
“2. Transfer of Property Act, 1882, not to apply to Government
grants.-Nothing in the Transfer of Property Act, 1882, contained shall
apply or be deemed ever to have applied to any grant or other transfer
of land or of any interest therein heretofore made or hereafter to be
made by or on behalf of the Government to, or in favour of, any person
whosoever; but every such grant and transfer shall be construed and
take effect as if the said Act had not been passed.”
39. Not only the Transfer of Property Act is made inapplicable to the
Government grants but Section 3 of the Government Grants Act, 1895 further
makes it clear that the Government grants is to take effect according to
their tenor, notwithstanding any rule of law, statute or enactment of the
Legislature to the contrary. Section 3 lays down as follows:-
“3. Government grants to take effect according to their tenor.- All
provisions, restrictions, conditions and limitations over contained in
any such grant or transfer as aforesaid shall be valid and the effect
according to their tenor, any rule of law, statute or enactment of the
Legislature to the contrary notwithstanding.”
40. This Court in Azim Ahmad Kazmi and Others. v. State of Uttar
Pradesh and Another, (2012) 7 SCC 278, has held that the Government grant
of lease of land is governed entirely by the terms of the grant. The Court
took note of Section 3 of the Government Grants Act, 1895 which is to take
effect according to its tenor notwithstanding any other law to the
contrary.
41. In Chief Executive Officer v. Surendra Kumar Vakil and Others,
(1999) 3 SCC 555, this Court has held that the grantee under the old grant
terms is a mere occupier/licensee having no title over the land so as to
entitle him to transfer the land or to another person without prior consent
of the authorities concerned. The Court further held that the regulations
as well as the General Land Register which are old documents maintained in
the regular course and coming from proper custody clearly indicate that the
land was held on old grant basis and this was sufficient for the Government
to resume the land in accordance with law.
42. In Union of India and others v. Kamla Verma, (2010) 13 SCC 511,
this Court has held that it is always open to the Union of India to resume
the land held on old grant terms and that the Union of India cannot be
prevented from resuming the said land.
43. Therefore, it is clear that the Government has unfettered
discretion and under Section 3 impose any condition, limitation or
restriction in its grants and the rights, privileges and obligations of the
grantee would be regulated only according to the terms of the grant itself
though they may be inconsistent with the provisions of any Statute or
Common Law.
44. The grants of lands situated in cantonment area under Old Grants
form a self contained provision prescribing the procedure as to the grant
and resumption of the land and hence recourse to the Civil Procedure Code
or the Specific Relief Act will not be applicable.
45. From the permission for sale of property letter dated 19th
December, 1967, Indenture of Sale dated 12th November, 1968 and
admission certificate dated 19th April, 1971 signed by the respondent it is
clear that the Military Authorities have the power to cancel the grant if
the land is used for any purpose other than for it was originally granted.
46. In the suit the plaintiffs-respondents falsely claimed that the
suit premises described in para 1 of the plaint is owned by the plaintiffs
as freehold property. This would be evident from the pleadings made by the
plaintiffs-respondents, as discussed below.
47. The description of the property has been shown at paragraph 1 of
the plaint as under:
“1. Description of the Property:
All that piece and parcel of property bearing GLR Survey No.258
and corresponding an area of 0.90 acres together with structure
consisting of main Bungalow, Servant Quarter Garage and Servant
Quarter, and bounded as under:
On or towards the East: Elphinstone Road
On or towards the South: Bungalow No.2, Elphinstone Road
On or towards the West: Bungalow No.13, Moldina Road
On or towards the North: Bungalow No.13, Moledina Road”
Paragraphs 2, 3 and 4 of the plaint read as under:
“2. That the property described in Para 1 above is owned by
plaintiffs as freehold property.
3. That the said property originally belonged to Nusserwanjee
Sorabji Anklesaria. Plaintiffs have purchased the property as per
conveyance deed dated 12.11.1968 from Shri Maneckaji Nusserwanjee
Ankelsaria. That name of plaintiffs was also recorded in GLR Record
and which was subsequently removed by the defendant no.2 illegally.
The plaintiff has challenged the aforesaid act of defendant no.2
deleting the name of the plaintiffs in Civil Court.
4. That lease deed dated 29.8.1941 was executed by the then
owners of the suit property and Union of India. That as per the
aforesaid lease deed the said property was leased out to defendants
under repairing lease for a period of 5 years. After the expiry of
the said period the defendants continued to be in use and occupation
of the said property as at tenant holding over on the same terms and
conditions as a monthly tenant. Thus the defendants are occupying
the said property as a statutory tenant only.”
48. The plaintiffs-respondents also misled the Court by stating that
the resumption notice dated 11th June, 1971 was set aside by the Bombay
High Court and the said order has attained finality.
49. In fact the judgment aforesaid on challenge before this Court in
Civil Appeal No.613 of 1980, heard along with other appeals, this Court by
order dated 4th August, 1998 made the following observation:
“Order
Learned Solicitor General states that the Union of India would seek
dispossession of the respondent-occupants from the properties involved
in accordance with law and if need be, through a Civil Court by filing
suits. In case such steps are taken, any observations made by the High
Court which would stand to defeat the remedies sought would not stand
in its way. On such stance of the Union of India, Civil Appeals as
also the special leave petitions stand disposed of accordingly.”
50. The liberty given to the Union of India to dispossess the
plaintiffs-respondents from the suit property clearly indicates that the
decision of the Bombay High Court that the suit premises do not belong to
the Union of India was not acceptable to this Court.
51. The aforesaid misleading pleading made by the plaintiffs-
respondents is without any evidence and the same influenced the Court in
coming to a wrong conclusion that the plaintiffs-respondents are the
landlords and defendants-appellants are the tenants of the suit premises.
52. The Appellate Court also failed to appreciate the evidence and
erred in affirming the Trial Court’s view that the plaintiffs-respondents
are the landlords and defendants-appellants are the tenants.
53. The land of the suit premises belong to the Union of India-
appellants herein. Therefore, they cannot be held to be tenants of the
suit premises comprising of an area of 0.90 acres together with structure
consisting of main Bungalow, Servant Quarter and Garage.
54. The plaintiffs-respondents have only right with regard to the
structure built on the suit premises. The Union of India-appellants have a
right for resumption of the suit premises, as evident from evidence on
record as discussed above. This issue was not properly appreciated by the
Trial Court, the Appellate Court and the High Court which also failed to
notice the appellants’ right under Section 2 and 3 of the Government Grants
Act, 1895.
55. For the reasons aforesaid, we set aside the impugned judgment
dated 25th November, 2009 passed by the High Court of Judicature at Bombay
in Civil Revision Application No.272 of 2009, the judgment dated 15th
January, 2009 passed by the First Appellate Court and judgment and decree
dated 9th June, 2005 passed by the Trial Court. Civil Suit No.695/1999 on
the file of Small Causes Court, Pune is dismissed.
56. The appeal is allowed. No order as to costs.
………………………………………………….J.
(DR. B.S. CHAUHAN)
………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
……………………………………………….J.
(KURIAN JOSEPH)
NEW DELHI,
MAY 06, 2014.
