Meghalaya High Court
Mr Robert Zomawia Street vs The Union Of India on 18 November, 2015
Author: T Nandakumar Singh
Bench: T Nandakumar Singh
THE HIGH COURT OF MEGHALAYA
W.P. (C) No.292/2015
Mr. Robert Zomawia Street,
S/o Ralte Thanzami Principal,
St. John's School, Whitehall,
Shillong-14, Meghalaya. :::: Petitioner
-Vs-
1. Union of India represented by Secretary to the
Government of India, Ministry of Defence, New Delhi.
2. Defence Estate Officer,
Guwahati Circle, PO: Silpukhuri,
Guwahati-3.
3. Station Commander,
Eastern Headquarter, Shillong.
4. The Committee of Officers,
Resumption of Bungalow No.Cantt-18,
Shillong Cantonment, Station Headquarters,
Shillong represented by its Station Commander. :::: Respondents
BEFORE
THE HON'BLE MR. JUSTICE T NANDAKUMAR SINGH
For the petitioner : Mr. VK Jindal, Sr. Adv
Mr. S Dey, Adv
For the respondents : Mr. R Deb Nath, CGC
Date of hearing : 18.11.2015
Date of Judgment : 18.11.2015
JUDGMENT AND ORDER (ORAL)
Heard Mr. VK Jindal, learned senior counsel assisted by Mr. S Dey, learned counsel for the petitioner and Mr. R Deb Nath, learned CGC appearing for the respondents.
2. The only prayer sought for in the present writ petition is for a direction to the respondents to consider the request of the petitioner for the Page 1 of 11 allotment of alternative site or place of residence as per the assurance made by the respondents under the resumption notice dated 23.03.1993. The impugned eviction notice dated 21.09.2015 was issued in pursuance of the resumption notice dated 23.03.1993, which had been upheld by the Supreme Court vide judgment and order dated 27.03.2014 passed in Civil Appeal No.4041/2014. The concise fact of the case leading to the filing of the present writ petition, which would be sufficient for deciding the matter in issue, is briefly noted.
3. Bungalow No.18 situated in a plot of land measuring 4.261 acres (suit land) within Shillong Military Cantonment Area was granted free of rent to Mr. G.H. James in the year 1880 as "old grants". Mr. James transferred the suit land to Mr. L.H. Musgrave in 1932, who further transferred it by way of a Will to Mrs. G.M. De La Nonger in 1939. The suit land was transferred to St. John Perry vide Will dated 29.05.1980. The petitioner came to occupy the suit land pursuant to a Will executed by late St. John Perry bequeathing the suit land to the present petitioner. The Govt.
had taken the decision to resume the suit land and the Committee of Officers, Resumption of Bungalow No.Cantt-18, Shillong Cantt issued the resumption notice dated 23.03.1993 for resumption of the Bungalow No. 18 to the petitioner. Since the present writ petition is filed only on the sole ground that the conditions mentioned in the resumption notice dated 23.03.1993 had not been complied with in issuing the impugned eviction notice dated 21.09.2015, it would be more profitable to quote the resumption notice dated 23.03.1993 as hereunder:-
"Tele Military: 24300/3517 REGISTERED BY POST Station Headquarters Shillong Page 2 of 11 540/31/Q/18 23 March '93 Mr. RZ Street C/o Bungalow No.Cantt-18 Shillong Cantt Shillong-1 COMMITTEE OF OFFICERS : RESUMPTION OF BUNGALOW NO. CANTT-18 SHILLONG CANTT Sir,
1. A Committee of officers composed as under has been convened to examine the relevant records in respect of Cantt- 18 and determine the amount of compensation payable on account of its resumption:-
Presiding Officer - Brigadier Keshwa Nand, Station Commander, Shillong.
Members 1. - Lt. Col Gurdev Singh, SSO Station HQ Shillong.
2. - Shri. MK Gupta, GE Shillong.
3. - Rep of DEO Guwahati.
4. - Rep of CDA Basistha.
2. The Committee has perused the records held regarding the resumption of Bungalow No.Cantt-18. The perusal reveals that the case of compensation for resuming the Cantt-18 was worked out during Jan 86 for Rs.1,72,094 (Rupees one lakh seventy two thousand ninety four only) towards authorized structures standing there of. The committee of officers has re-
examined the cost of compensation for authorized structures standing on the land and the findings are as under:-
(a) Cost of Materials. No doubt the cost of materials has gone up since the last compensation was worked out.
(b) Cost of Depreciations. As for the cost of materials, the cost of depreciations has also increased in the same proportions.
(c) Net Results. The Committee of officers fells that in view of the increase of cost of materials as well as the cost of depreciations, it is recommends that there should be no change in the cost of compensation amounting to Rs.1,72,094/- (Rupees one lakh seventy two thousand ninety four only).
3. The Committee of officers will consider for recommendations to the Central Govt. to offer you an alternative sight (site), should you not own any property in Shillong.
Page 3 of 114. You are therefore, requested to confirm in person or through your legal adviser to the undersigned your willingness for the acceptance of compensation or otherwise. In case nothing is heard from you by 19 April 93, it will be presumed that you have no objection in resumption of Bungalow No.Cantt-18.
Yours faithfully, Sd/-
(Keshwa Nand) Brigadier Station Commander"
4. Mr. VK Jindal, learned senior counsel appearing for the petitioner by referring to Para No.3 of the resumption notice dated 23.03.1993 contended that the Committee of Officers had already made an assurance that they (Committee of Officers) will consider for recommendation to the Central Govt. to offer the petitioner an alternative site and the petitioner should not own any property (immovable property) in Shillong. The petitioner had earlier questioned the authority of the respondents to issue the said resumption notice dated 23.03.1993 by filing a Title Suit being T.S. No.5 (H) 1993 in the court of the learned Assistant District Judge, Shillong. The learned Assistant District Judge, Shillong vide judgment and decree dated 22.12.2009 dismissed the said Title Suit i.e. T.S. No.5 (H) 1993. Being aggrieved by the said judgment and decree of the trial court dated 22.12.2009 passed in T.S. No.5 (H) 1993, the petitioner preferred an appeal being RFA No.1 (H) 2010 in the court of the learned District Judge, Shillong. The learned District Judge, Shillong vide judgment and decree dated 03.08.2010 dismissed the appeal. The petitioner again filed Second Appeal (SH) No.1/2010 in the High Court against the judgment and decree dated 03.08.2010 passed by the learned District Judge, Shillong in RFA No.1 (H) 2010 affirming the judgment and decree dated 22.12.2009 passed by the Assistant District, Judge, Shillong in T.S. No.5 (H) 1993. The High Court vide Page 4 of 11 judgment and order dated 16.12.2011 allowed the Second Appeal (SH) No.1/2010. The operative portion of the judgment and order of the High Court dated 16.12.2011 passed in Second Appeal (SH) No.1/2010 reads as follows:-
"20. Since the suit land is found to be private land under the ownership of the appellant, the Notice of Resumption in respect of the suit land is contrary to the provisions of Section 10 of the Cantonment (House Accommodation) Act, 1923. As for the remaining substantial question of law raised by the appellant as to whether the probate dated 26-6-1987 of the Will has attained finality, this need not detain us long inasmuch as Section 387 of the India Succession Act, 1925 clearly provides that any decision in respect of the right granted in succession proceedings, which are summary in nature, does not preclude the parties to litigate in a regular suit: merely because issues are raised and/or evidence was led, it does not mean that the findings given thereunder are final and operate as res judicata.
- see Joginder Pal v. Indian Red Cross Society & Ors, (2000) 8 SCC 143. Therefore, the contention of Mr. VK Jindal on this count is noted only to be summarily rejected.
21. For the reasons stated in the foregoing, this second appeal is allowed. The impugned judgments and decrees of the Courts below are hereby set aside. Title Suit No.5 (H) of 1993 is decreed accordingly. Resultantly, it is hereby declared that the memo No.546/31/Q/18 dated 23-9-93 is illegal. Let a perpetual injunction issue restraining the respondents, their agents, employees, servants etc. from proceeding with the resumption proceedings against the appellant in respect of the suit land or otherwise from interfering with the possession and title of the appellant over the suit land. A decree shall be prepared accordingly. The respondents shall pay the costs throughout.
Transmit the L.C. record forthwith."
5. The present respondents also filed an appeal before the Supreme Court being Civil Appeal No.4041/2014 against the judgment and order of the High Court dated 16.12.2011 passed in Second Appeal (SH) No.1/2010. The Apex Court had allowed the Civil Appeal No.4041/2014 vide judgment and order dated 27.03.2014 wherein and where-under, the Apex Court held that the respondents were competent to issue resumption notice dated 23.03.1993. In other words, the Apex Court upheld the resumption notice dated 23.03.1993 vide judgment and order dated 27.03.2014 passed Page 5 of 11 in Civil Appeal No.4041/2014. The operative portion of the judgment and order of the Apex Court dated 27.03.2014 passed in Civil Appeal No.4041/2014 reads as follows:-
"The entries made in the GLR show that it is an old grant and that it is managed by the plaintiff as B3 land. Class B3 is such land which is held by any private person subject to the conditions that the Central Government has proprietary rights over it. True it is that the plaintiff held the land but the word "held" does not necessarily mean to own with legal title. It is not a word of art and its meaning has to be understood in the context it has been used. In a given context the word "held"
may connote both ownership as also possession, but it will not carry the same meaning in all context and circumstances. In the case in hand, the plaintiff held the land but being an old grant the Central Government has the right of its resumption and, therefore, it cannot be said that the plaintiff possesses the land as owner. In view of what we have observed above, the meaning of the word "held" in various dictionaries and explanation of said word in the several decisions of this Court referred to above in no way advance the case of the plaintiff.
The tenures under which permission is given to civilians to occupy Government land in the cantonment for construction of bungalows on the condition of a right of resumption, if required, is known as old grant tenures. It is governed by regulation contained in Order No. 179 of 1836 which is self contained and provides for the manner of grant and resumption of land in cantonment area. In respect of old grant tenure, the Government retains the right of resumption. The GLR in unequivocal terms describes the nature of holder's right as "old grant". Thus, the plaintiff has not been able to establish his title over the suit land in question and, therefore, the plaintiff deserves to be non-suited on this ground alone. However, in deference to Mr. Venugopal, we must answer an ancillary submission projected before us. He points out that, according to the defendants themselves, the land was given as old grant to the predecessor-in-interest of the plaintiff but the said grant has not been produced and in the absence of any explanation by the defendants for its non-production, adverse inference has to be drawn. According to him, once such inference is drawn, the plaintiff's suit deserves to be decreed and was, therefore, rightly decreed by the High Court. This submission of Mr. Venugopal does not appeal to us. It is not possible to accept the contention that since actual grant was not produced, the case pleaded by the defendants that the plaintiff held the land as old grant was not proved. The GLR maintained under the Cantonment Land Administration Rules supports the defendant's contention that the plaintiff held the land on old grant basis. The plaintiff, on the other hand, has not produced any document to show the title of his predecessor-in-interest. Nemo dat quid non habet is the maxim which means no one gives what he does not possess, aptly applies in the case. It Page 6 of 11 needs no emphasis that the successor will not have better title than what his predecessor had. Hence, we reject this submission of Mr. Venugopal.
The High Court while decreeing the suit has observed that plaintiff has created a high degree of probability that he is the owner of the land and in such circumstances, the onus to prove that he is not the owner shifted on the defendants. It went on to observe that apart from relying on the admission made by the plaintiff's predecessor-in-interest, defendants have not been able to show any entry in the GLR to indicate that suit land is under the old grant. In our opinion, the whole approach of the High Court in this regard is absolutely erroneous. Besides relying on the admission, the defendants have produced the GLR, which clearly shows that the land in dispute is covered under old grant. The classification of the land as B3 land also points towards the same conclusion. Thus, the High Court committed grave error in decreeing the plaintiff's suit.
To put the record straight, the learned Solicitor General has raised various other points to assail the impugned judgment and decree, but as this appeal is to succeed in the light of the view, which we have taken above, we are not inclined to either incorporate or answer the same in this judgment.
In the result, we allow this appeal, set aside the judgment and decree of the High Court and dismiss the plaintiff's suit but without any order as to cost in present appeal."
6. After the Apex Court held that the respondents were competent to issue resumption notice dated 23.03.1993, the Defence Estate Officer, Guwahati Circle, Guwahati issued the eviction notice dated 21.09.2015, which reads as follows:-
"NOTICE TO R.Z. STREET
1. That Bungalow No.18 under Survey No.65, is situated over Class B3 land of the Shillong Cantonment and the Government of India is landlord of the said land which is under OLD GRANT terms.
2. The land in question is governed by the general order of the Governor General in Council bearing No.179 of the year 1836, known as the Bengal Regulations of 1836. Under Regulation 6 of these Regulations, conditions of occupancy of lands in cantonments are laid down. Thereafter, no ground will Page 7 of 11 be granted except on the condition set out therein which are to be subscribed to by every grantee as well as by those to whom his grant may be subsequently transferred. The first condition relates to resumption of land viz. that "the Government retains the power of resumption at any time on giving one month's notice and paying the value of such buildings as may have been authorized to be erected." The rights of your predecessor Lt. John Perry and presently yourself over the property is bound by such terms and conditions.
3. That by issuance of notice dated 12.12.1986 bearing Memo No.701/429/R&D/DE/80/D(Lands) Land communicated the decision of the Government of India to resume the property of Bungalow No.18 under Survey No.65 and to deliver possession of the same within one month.
4. That vide Memo No.540/31/Q/18 dated 23.03.1993, the Government of India communicated and offered the assessed cost of Rs.1,72,094/- as the value for buildings which were authorized to be erected over the land.
5. That you had challenged the legality and validity of the action of the Government of India to resume the land by payment of resumption cost for the authorized structures standing thereon vide T.S. N.5(H)/1993 before the Court of the Assistant District Judge, Shillong. However, the suit was dismissed vide judgment and order dated 22.12.2009.
6. That thereafter you filed appeal against the judgment and order dated 22.12.2009 vide R.F.A. No.1(H)/2010 before the Court of the District Judge, Shillong. However, the said appeal was also dismissed vide judgment and order dated 03.08.2010.
7. That against the judgment and order dated 03.08.2010 you came in Second Appeal before the Guwahati High Court, Shillong Bench vide Second Appeal (SH) No.1/2010. By the judgment and order dated 16.12.2011, the Hon'ble High Court reversed the judgments of the two trial courts below and granted permanent injunction against resumption of the suit land.
8. That aggrieved by the judgment in the Second Appeal, the Union of India filed SLP No.31721/2012 before the Hon'ble Supreme Court of India. Vide judgment dated 27.03.2014, the Apex Court had set aside the judgment dated 16.12.2011 of the Guwahati High Court in Second Appeal (SH) No.1/2010 and dismissed the original suit filed by you. While elaborately dealing with the matter, the Apex Court has upheld the right of the Government to resume the land in question.
9. That the judicial pronouncement of the Apex Court is final and binding on all. As a result of the verdict of the Apex Court and the dismissal of the suit filed by you, the challenge made by you to the Memo No.540/31/Q/18 dated 23.03.1993 has failed. Once the Government has decided to resume the land, you have no legal right to occupy the land. As per the said Page 8 of 11 Memo dated 23.03.1993, you are therefore to vacate the property of under Bungalow No.18, Survey No.65 measuring 4.261 acres in the Shillong Cantonment within a period of one month of the issuance of this notice. The cost of resumption as assessed @ Rs.1,72,094/- will be paid to you. It may also be noted that as your challenge to the Notice dated 23.03.1993 which included the cost of resumption had failed before the Highest Court of the Nation, you are now precluded from raising any objection to the quantum of the cost assessed. Moreover, any further improvement made by you after 23.03.1993 over the properties in Bungalow No.18, Survey No.65 are illegal and unauthorized and was done at your own peril and you are not entitled to any compensation for the same.
This is without prejudice.
Station: Guwahati Sd/-
Date: 21 September, 2015 (K.Lhouvum, IDES)
Defence Estate Officer,
Guwahati Circle, Guwahati"
7. On bare perusal of the impugned eviction notice dated 21.09.2015, it is crystal clear that the eviction notice dated 21.09.2015 was issued in pursuance of the resumption notice dated 23.03.1993, which had not been interfered with by the Apex Court in the judgment and order dated 27.03.2014 passed in Civil Appeal No.4041/2014 wherein and where-under the Apex Court held that the authority had the legality and validity issued the resumption notice dated 23.03.1993. As stated above, the only point raised in the present writ petition is that since the resumption notice dated 23.03.1993 had been upheld by the Apex Court in toto vide judgment and order dated 27.03.2014 passed in Civil Appeal No.4041/2014, the authority before issuing the impugned eviction notice dated 21.09.2015 are bound to comply with the conditions mentioned in the resumption notice dated 23.03.1993 more particularly Para No.3 i.e. "The Committee of officers will consider for recommendations to the Central Govt. to offer you an alternative site, should you not own any property in Shillong." The present petitioner is not questioning the authority of the respondents to issue resumption notice Page 9 of 11 dated 23.03.1993 which had already been upheld by the Apex Court vide judgment and order dated 27.03.2014 passed in Civil Appeal No.4041/2014.
What the petitioner is saying is that the condition in Para No.3 mentioned in the resumption notice dated 23.03.1993 shall also be followed before issuing the impugned eviction notice dated 21.09.2015. But the fact remains that the petitioner is to be evicted from Bungalow No.18 in pursuance of the resumption notice dated 23.03.1993. This Court is of the view that the petitioner is to be evicted from Bungalow No.18 in pursuance of the resumption notice dated 23.03.1993, but the respondents had to comply with the condition mentioned in Para No.3 of the resumption notice dated 23.03.1993 before issuing the impugned eviction notice dated 21.09.2015. In other words, the Committee of Officers will consider for recommendation to the Central Govt. to offer the petitioner an alternative site if the petitioner has not possessed any property (immovable property) in Shillong. It is up to the Committee of Officers to take appropriate decision in terms of the Para No.3 of the resumption notice dated 23.03.1993.
8. In the above factual backdrop, this writ petition is disposed of by directing the respondents to consider for recommendation to the Central Govt. to offer an alternative site to the petitioner as per Para No.3 of the resumption notice dated 23.03.1993. In other words, it is made clear that the petitioner is to be evicted from Bungalow No.18 in pursuance of the resumption notice dated 23.03.1993 which had already been upheld by the Apex Court, but the petitioner should be evicted only after consideration for recommendation to the Central Govt. to offer the petitioner an alternative site as per Para No.3 of the resumption notice dated 23.03.1993. It is also further made clear that the respondents have to take decision according to their wisdom as per Para No.3 of the resumption notice dated 23.03.1993. In the interest of justice, till the respondents have taken the final decision as per Page 10 of 11 Para No.3 of the resumption notice dated 23.03.1993 and also final disposal of the representation of the petitioner dated 27.10.2015 (Annexure-F to the writ petition) status quo of Bungalow No.18 which is now under the occupation of the petitioner as on today shall be maintained.
9. Writ petition is disposed of with the above directions.
10. Mr. R Deb Nath, learned CGC appearing for the respondents is directed to inform the gist of this judgment and order or the operative portion of this judgment and order by today itself by WT Message or through telephone to the respondent authorities. The Registry is directed to furnish a copy of this judgment and order to the learned counsel appearing for the parties within 48 hours.
JUDGE Lam Page 11 of 11