Madhya Pradesh High Court
Association Of Residents Of Mhow vs Union Of India on 16 September, 2009
Equivalent citations: AIR 2010 MADHYA PRADESH 40, (2010) 3 MPHT 493 (2010) 1 MPLJ 486, (2010) 1 MPLJ 486
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
WRIT PETITION No. 3826/2008(PIL)
Association of the Residents of Mhow
Vs.
Union of India and others
PRESENT :
Hon'ble Shri Justice A.K. Patnaik, Chief Justice.
Hon'ble Shri Justice K.K. Lahoti, Judge.
Mr. A.M. Mathur, Senior Advocate, with Mr. Sanjay
Agrawal, Advocate, and Mr. Abhinav P. Dhanodkar,
Advocate, for the Petitioner.
Mr. B.L. Pavecha, Senior Advocate with Mr. Vinay
Zelawat, Assistant Solicitor General and Mr. Ashutosh
Nimgaonkar, Advocate, for the respondents No.1, 3 & 4.
Mr. Siddharth Patel, Advocate, for the Interveners - Kannu
Bhai Shah and 40 others.
JUDGMENT
( 16 /9/2009) PER : A.K. PATNAIK, CHIEF JUSTICE :
The petitioner is an Association of the residents of Mhow, a cantonment near Indore in Madhya Pradesh, and is registered as a Society under the Madhya Pradesh Society Registrikaran Adhiniyam, 1973 and has filed this writ petition under Article 226 of the Constitution for appropriate reliefs.
2. The facts relevant for deciding this writ petition briefly are that Mhow originally was part of the Indian State of Maharaja of Holkar. In 1818, Maharaja of Holkar entered into the Treaty of Mandsaur and under Article VII of the Treaty of Mansaur, the Britishers bound themselves to support a field force to maintain the internal tranquillity of the territories of Maharaja Holkar, and to defend the territories from foreign enemies and Maharaja Holkar agreed to provide some place of security where the British forces would be stationed and the stores would be deposited. Pursuant to the Article VII of the Treaty of Mandsaur, Mhow came to be occupied by the British forces and WRIT PETITION No. 3826/2008(PIL 2 the stores. In 1836, by Order No.179 the Governor General of India in Council made regulations regarding houses and premises located in the military cantonment including the cantonment of Mhow. Thereafter, in exercise of the powers under the proviso to Section 2(1) of the Government of India Act, 1935, His Majesty made the Indian (Foreign Jurisdiction) Order in Council, 1937 and provided in clause 2 thereof that from the commencement of the Government of India Act, 1935, the powers so far as they are connected with the exercise of the functions of the Crown in its relations with Indian States, will be powers of His Majesty's representative for the exercise of those functions of the Crown, and he may delegate those powers to such extent and in such manner as he thinks fit. The Crown's representative in exercise of such powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1937, then made the Central India Administered Areas (Application of Laws) Order, 1937, and included the cantonment of Mhow in the "administered areas" and applied the Cantonments Act, 1924, to the Cantonment of Mhow. On the eve of Independence, however, a notification dated 9th August, 1947, was issued by the Crown Representative stating that with effect from 14.8.1947 the jurisdiction over the areas known as "Mhow Cantonment" be restored to the Maharaja Holkar of Indore and cancelled all notifications issued under the Indian (Foreign Jurisdiction) Order in Council, 1937. Simultaneously, a notification dated 14.8.1947 was issued by the Government of the Maharaja Holkar, Foreign Department, saying that the Crown Representative has been pleased to retrocede to the Maharaja Holkar with effect from 14.8.1947, the jurisdiction exercised by him in the area then comprising the Cantonment of Mhow. In 1947, the Maharaja of Holkar signed the instrument of accession acceding to the Dominion of India and in1948 the Rulers of Gwalior, Indore and certain other States in Central India signed a covenant for the formation of Madhya Bharat. Thereafter, the Constitution of India was adopted on 26.1.1950 and under Article 1(1) read with Schedule I of the Constitution, Madhya Bharat was included in India as a Union of States.
4. In the meanwhile, in the Mhow Cantonment area, several bungalows alongwith the adjoining lands were given by the authorities of Mhow cantonment to different civilians for occupation and the civilians occupied the bungalows and the adjoining lands. In 1970 and thereafter, 63 notices were issued by the Defence Estate Officer, Mhow, to different civilians who were in occupation of bungalows and the land for resumption and the resumption WRIT PETITION No. 3826/2008(PIL 3 notices were challenged in different proceedings in Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and in civil suits. Appeals were also filed against the orders passed by the authorities under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. Respondents No.1 and 3 have taken possession of 45 bungalows. Cases in respect of 19 bungalows are pending at various stages in different Courts including the High Court in Revisions and Second Appeals. In the background of these facts, the petitioner has filed this writ petition on behalf of the civilian residents of Mhow as a Public Interest Litigation for declarations that the lands in Mhow Cantonment do not belong to the Central Government and that the Cantonment Land Administration Rules, 1937 do not apply to Mhow Cantonment. The petitioner has further prayed that a direction to the respondents No.1 and 3 to exclude the civilian occupied areas from Mhow Cantonment and to direct the Union of India to excise the civilian areas from Mhow Cantonment in favour of the State of Madhya Pradesh. The petitioner has also prayed for a direction to the respondents to recognise the title deeds and the settled possession of civilian residents of Mhow Cantonment and for a declaration that order No.179 of the Governor General of India in Council is void.
PRELIMINARY ISSUES RAISED BY THE RESPONDENTS.
5. Mr.B.L.Pavecha, learned Senior Counsel, appearing for respondent Nos.1, 3 and 4, raised some preliminary issues with regard to maintainability of the writ petition. He submitted that the writ petitions can not be entertained as a Public Interest Litigation (PIL) as the petitioner has filed this writ petition to further the interest of its office bearers and members. He submitted that in paragraph 1 of the writ petition, Dr. Behram M. Masani is described as the President of the petitioner Association and Dr. Behram M. Masani has interest in Bungalow No.102 situated at Simrole Road, Mhow because he was a member of the Bandharan Committee of the Parsi Zorastrian Anjuman of Mhow which had purchased the bungalow on 1.1.1958 by a registered sale-deed. He submitted that in Paragraph 1 of the writ petition, Mr. Zal Cowasji has been described as the Secretary of the petitioner Association and Mr. Zal Cowasji was the occupier of Bungalow No.53, Mall Road, Mhow and he is also the trustee of the trust which occupied Bungalow Nos.41, 42, 53, 57, 75 and 91 and possession of these bungalows has already been taken by the respondent No.1 and compensation has been paid to Mr. Zal Cowasji. He further submitted that Ms. Aruna Rodrigues has been described WRIT PETITION No. 3826/2008(PIL 4 in Paragraph 1 of the writ petition as Member of the petitioner Association and Ms. Aruna Rodrigues was the occupier of Bungalow No.55, Simrole Road, Mhow alongwith her sister Mrs. Ann Chandiramani and she has filed a suit challenging the resumption proceedings initiated by the respondent No.1 in Civil Suit No.91/04 in the Court of Civil Judge Class II, Mhow. He submitted that Ms. Rodrigues is also the occupier of Bungalow No.69, R.N. Bhaya Road, Mhow alongwith her sister and the respondents initiated proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 in respect of the Bungalow No.69 and she filed a writ petition W.P. NO.846/1995 but the writ petition was dismissed by the Court on 10.4.1997. He also submitted that Paragraph 1 of the writ petition describes Mrs. Shirin Seth as the Treasurer of the petitioner Association and Mrs. Shirin Seth is the occupier of Bungalow No.93, Cunningham Road, Mhow which had been put on auction sale by the M.P. State Financial Corporation Ltd. for recovery of loan advanced to her husband Mr. C.B.J. Seth but the respondent No.1 has objected to the proposed sale on the ground that the M.P. State Financial Corporation has no authority to auction the property belonging to the respondent No.1 and the auction sale has been stayed. He vehemently submitted that all these facts would show that the present writ petition is an attempt to serve the self interest of the aforesaid four persons under the guise and cloak of public interest and such an attempt should be nipped in the bud by a summary dismissal with exemplary costs.
6. Mr. Pavecha cited Subhash Kumar vs State of Bihar and others, (1991) 1 SCC 598, in which the Supreme Court has held that personal interest, grudge or enmity cannot be enforced through the process of the Court under Article 32 in the garb of public interest litigation. He also relied on Dattaraj Nathuji Thaware vs State of Maharashtra and others, (2005) 1 SCC 590, in which the Supreme Court has observed that Public Interest Litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest, ugly private malice, vested interest and publicity seeking is not lurking and it is to be used as an effective weapon in the armoury of law for delivering social justice. He also cited R & M Trust vs. Koramangala Residents Vigilance Group and others, (2005) 3 SCC 91, in which the Supreme Court has held that the jurisdiction of the court to entertain PIL is meant for the purpose of coming to the rescue of the downtrodden and not for the purpose of serving private ends. He cited WRIT PETITION No. 3826/2008(PIL 5 Printers (Mysore) Ltd. vs M.A. Rasheed and others, (2004) 4 SCC 460, for the proposition that when a plea is raised that a PIL should not be entertained, the court should determine the issue and submitted that since the respondents have raised a plea that the writ petition has been filed not in the public interest but to enforce the interest of some members and office bearers of the petitioner Association, the court should decide this question.
7. Mr. A.M. Mathur, learned Senior Counsel, appearing for the petitioner, on the other hand, submitted that the writ petition has been filed by the petitioner Association consisting of members who are the civilian residents of Mhow and the reliefs claimed in the writ petition if granted will protect the property rights of the members of the public residing in Mhow and therefore the writ petition has been rightly filed as a PIL. He relied on The Janta Dal vs H.S. Chowdhary and others, AIR 1993 SC 892, in which the Supreme Court has observed in para 56 at page 908 of the AIR that the seeds of the concept of PIL were initially sown in India in Mumbai Kamgar Sabha, Bombay vs Abdulbhai Faizullabhai and others, AIR 1976 SC 1455, in which Krishna Iyer, J. observed that Article 226, viewed on a wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights. He submitted that in Guruvayoor Devaswom Managing Committee and another vs C.K. Rajan and others, 2003 (7) SCC 546, S.B. Sinha, J. writing the judgment for V.N. Khare, C.J., G.P. Mathur, J. and himself has summarised in para 50 at pages 568 and 569 of the SCC the principles evolved by the Supreme Court on different types of public interest litigations and His Lordship has mentioned that in an appropriate case, although the petitioner might have moved this Court in his private interest and for redressal of personal grievances, the Court in furtherance of public interest may think it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice and has referred to the decision of the Supreme Court in Shivajirao Nilangekar Patil vs Dr. Mahesh Madhav Gosavi, (1987) 1 SCC 227 as an illustration of this kind of public interest litigation. He submitted that S.B. Sinha, J. speaking for N. Santosh Hegde and himself has reiterated this position in Ashok Lanka and another vs Rishi Dixit and others, (2005) 5 SCC 598 in para 42 at page 618 of the SCC.
8. We are of the considered opinion that the writ petition filed by the petitioner Association is really a representative action on behalf of the civilian WRIT PETITION No. 3826/2008(PIL 6 residents of Mhow. From the pleadings of the writ petition, it appears that the civilian residents of Mhow are aggrieved by the notices issued on behalf of the Union of India for resumption of land and bungalows in Mhow under their occupation and they have collectively filed the writ petition contending that the lands and bungalows under their occupation are not the property of the Union of India but the property of the State of Madhya Pradesh and have prayed for a declaration that the lands in the Mhow Cantonment do not belong to the Central Government and for a direction to the Union of India to excise the civilian occupied areas from Mhow Cantonment in favour of the State of Madhya Pradesh. Such collective or representative action is recognised as one kind of public interest litigation.
9. We may now cite authorities for this view. In Mumbai Kamgar Sabha, Bombay vs Abdulbhai Faizullabhai and others (supra), Krishna Ayer, J. observed :
"Test litigations, representative actions, pro bono publico and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who wish to by-pass the real issues on the merits by suspect reliance on peripheral procedural shortcomings. Even Art. 226, viewed on wider perspective, may be amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights, although the traditional view, backed by precedents has opted for the narrower alternative. Public interest is promoted by a spacious construction of locus standi in our socio-economic circumstances and conceptual latitudinarianism permits taking liberties with individualisation of the right to invoke the higher Courts where the remedy is shared by a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law."
In this case, Mumbai Kamgar Sabha, a union of workers, assailed the findings of the Industrial Disputes Tribunal and the respondents before the Supreme Court raised a preliminary objection that the Union not being party to the dispute which was between the workers on the one hand and the establishment of the other had no locus standi and the real disputants were the workers, but the Supreme Court rejected this preliminary objection.
10. This view taken by the Supreme Court in Mumbai Kamgar Sabha, Bombay vs Abdulbhai Faizullabhai and others (supra) in the context of industrial dispute, also applies to disputes relating to right to property which is WRIT PETITION No. 3826/2008(PIL 7 a civil dispute. A civil dispute is governed by the Civil Procedure Code, 1908 (for short 'the CPC'). Order 1 Rule 8 of the CPC itself provides that where there are numerous persons having the same interest in one suit, one or more persons may sue on behalf of or for the benefit of all persons so interested with the permission of the Court. Hence, representative action on behalf of numerous persons having the same interest in one suit is also permissible in civil dispute including a property dispute. In Chairman, Tamil Nadu Housing Board, Madras vs T.N. Ganapathy, AIR 1990 SC 642, T.N. Ganpathy on behalf of himself and on behalf of number of allotees of residential plots filed a suit against the Chairman, Tamil Nadu Housing Board and one of the contentions raised before the Supreme Court was that the provisions of Order 1 Rule 8 of the CPC were not applicable in the case and the representative suit was not maintainable. The Supreme Court rejected the contention of the Chairman, Tamil Nadu Housing Board saying that the provisions of Order 1 Rule 8 of the CPC have been made in the public interest so as to avoid multiplicity of litigation. In the language of the Supreme Court :
"The provisions of O. 1 R. 8 have been included in the Code in the public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which they seek to get redressed."
11. If a suit can be instituted as a representative action on behalf of numerous persons having the same interest with a view to avoid multiplicity of litigation, a writ petition can also be filed as a representative action on behalf of numerous persons having the same interest against the State and public authorities and such a writ petition would be categorised as a public interest litigation on behalf of all such numerous persons who have the same interest. In para 5 in Dattaraj Nathuji Thaware vs State of Maharashtra and others (supra) cited by Mr. Pavecha, the Supreme Court while explaining the meaning of "public interest litigation" has extracted from Stroud's Judicial Dictionary, Vol. 4 (4th Edn.), the following definition of public interest :
"Public interest-(1) A matter of public or general interest 'does not mean that which is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of WRIT PETITION No. 3826/2008(PIL 8 the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected'..."
Thus, the meaning of "public interest" in Public Interest Litigation covers not only general interest of the public at large but also the same interest of a class of the community provided such class of the community has the same interest in the litigation. This will be also clear from para 53 of the judgment of the Supreme Court in Janta Dal vs H.S. Chowdhary and others (supra), which is quoted hereinbelow:
"The expression 'litigation' means a legal action including all proceedings therein, initiated in a court of law with the purpose of enforcing a right or seeking a remedy. Therefore, lexically the expression 'PIL' means a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or a class of the community have, pecuniary interest or some interest, by which their legal rights or liabilities are affected."
12. We find from the facts of this case that several notices issued by the respondent No.3 for resumption of land in Mhow under the occupation of civilian residents of Mhow who are members of the petitioner Association and such resumption notices have triggered a number of litigations in different courts. The members of the petitioner Association possibly have an apprehension that such notices for resumption of land may also be issued by the respondent No.3 in the near future affecting the common interest of many other civilian residents of Mhow who are members of the petitioner Association. To avoid multiplicity of litigations one writ petition has been filed on behalf of all such civilian residents of Mhow by the petitioner Association as a PIL contending that it is the State of Madhya Pradesh and not the Union of India which was the owner of the land under the occupation of the civilian residents in Mhow. The High Court should not dismiss the writ petition as not maintainable, particularly when substantial questions of law relating to interpretation of Article 295 of the Constitution and the provisions of the Cantonment Act, 1924 have been raised which need to be decided by the High Court. The office bearers and some members of the Petitioner Association may be pursuing their own litigations against the respondents No.1 and 3 in respect of the land and bungalows under their occupation, but other members of the petitioner Association have also their similar common grievances which are sought to be redressed through this writ petition. This is therefore not a case where individuals have filed the writ petition to enforce WRIT PETITION No. 3826/2008(PIL 9 their own personal interest only but a writ petition filed by a class of the community residing in Mhow Cantonment through their Association for redressal of their common grievances. The writ petition is a kind of public interest litigation and cannot be dismissed in limine.
13. Mr. Pavecha next submitted that the conduct of the petitioner is such that this Court should throw out the writ petition at the threshold and should not decide the writ petition on merits. He submitted that the petitioner had earlier filed W.P. No.2023/2007 before the Indore Bench of the High Court seeking various reliefs which it has claimed in the present writ petition and when the matter came up before the Division Bench at Indore on 18.5.2007, the learned senior counsel appearing for the petitioner sought permission of the Court to delete by way of amendment clause (a) of paragraph 3 of the writ petition in which the petitioner had stated that the petitioner has challenged the Cantonments Act, 2006 as having been enacted in derogation of the fundamental right to equality before the law guaranteed under Article 14 of the Constitution and the right to respectable life guaranteed under Article 21 of the Constitution. He submitted that thereafter the petitioner filed an application for amendment on 10.3.2008 but did not pray for deletion of clause (a) of para 3 of the writ petition and only sought for amendment of para 7(e) and added para 7(e) to the effect that the Cantonment Land Administration Rules, 1937 are beyond the rule-making power under Section 280 (2) (a) of the Act, 1924 and therefore be declared ultra vires. He submitted that the petitioner also did not disclose in the writ petition the interests of Dr. Behram M. Masani, President of the petitioner Association, Mr. Zal Cowasji, Secretary of the petitioner Association, Ms. Aruna Rodrigues, Member of the petitioner Association and Mrs. Shirin Seth, Treasurer of the petitioner Association in various lands and bungalows in Mhow and did not also state that resumption proceedings had been initiated and that cases are pending in or have been disposed of by various Courts. He vehemently argued that the petitioner has therefore suppressed material facts and the writ petition is liable to be dismissed in limine on this ground alone.
14. We find that in paragraph 5(P) at pages 10 and 11 of the writ petition, the petitioner has stated :
WRIT PETITION No. 3826/2008(PIL 1 "Properties have been "resumed" since 1971 without compensation for the land and petty compensation as value of authorised structure. Tenants in outhouses of such properties have fared even worse; they have been ignored and the thousands staying in them have been summarily evicted. The civilian population has been consistently denied permission to repair, improve, rebuild, etc., to accommodate additional generations of family and tenants, or to mutate their properties, unless 'Admission Deeds' are signed, which forces them to accept that the Central Government is the acknowledged owner of the property. Many have signed at some point in the past without a true understanding of its implications and then stopped after "resumption" notices began to be served from around the 1960s onwards. The strictures put on the civilian residents are not just impossible to keep, but are perverse, because permission to renovate or repair or mutate property is habitually denied without an 'Admission Deed'. Thus, properties are now registered in the names of dead people. This is untenable. It is also a serious denial of civil rights and liberties not to be able to freely sell, or inherit or Will property to beneficiaries and next of kin, because they are not reflected in the official records, unlike the rest of Indian citizenry. The DEO/Army Authorities are on record as stating that any deviation from their rules will be acted upon by either Resumption or 'notices' under the Public Premises (Eviction of Unauthorised Persons) Act, 1971, hereinafter referred to as the PP Act. This is a terrible travesty of justice and a dangerous fraud on the civilian residents of Mhow."
Hence, the petitioner has stated in the writ petition that properties have been resumed since 1971 without compensation for the land and payment of petty compensation as value of authorised structure has been made and that action has also been taken by the authorities for eviction under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971. The names of the members or office bearers of the petitioner Association against whom such resumption proceedings or eviction proceedings have been taken by the authorities of the respondent No.1 have, however, not been disclosed in the writ petition. In paragraphs 5B2, 5B3, 5B4 and 5B5 at pages 17, 18 and 19 of the writ petition, the petitioner has also stated that W.P. No.2023/2007 was filed as a PIL before the Indore Bench of the High Court and that orders were passed by the Indore Bench from time to time on the applications filed by the petitioner and the respondents in the said writ petition before the Indore Bench. There may be however some omissions or mistakes in the presentation of facts in the writ petition with regard to the proceedings in W.P. No.2023/2007 before the Indore Bench. On these facts, we cannot hold that the petitioner has intentionally suppressed material facts to mislead the High WRIT PETITION No. 3826/2008(PIL 1 Court and that the conduct of the petitioner is such that the writ petition should be dismissed by the High Court at the threshold.
15. Mr. Pavecha next submitted that the High Court does not entertain a writ petition to decide title to property and for establishing title to property, a party must resort to a private law remedy such as a civil suit. He submitted that the reliefs claimed in the present writ petition is also a declaratory relief and a declaratory relief is not normally granted by the High Court under Article 226 of the Constitution. He cited Parvatibai Subhanrao Nalawade vs Anwarali Hasanali Makani and others, (1992) 1 SCC 414 in which the Supreme Court has held that the High Court was not justified either entertaining the writ petition or deciding the merits of the dispute between the tenant and the landlord. He also relied upon the observations of the Supreme Court in Dwarka Prasad Agarwal and another vs B.D. Agarwal and others, (2003) 6 SCC 230 that the remedy under Article 226 cannot be invoked for resolution of a private law dispute as distinct from a dispute involving public law character and that a writ remedy is not available for resolution of a property or a title dispute. Mr. Mathur, in reply, submitted that reliefs claimed in this writ petition can be granted by the Court on the basis of interpretation of Article 295 of the Constitution, the Cantonment Act, 1924 and the Cantonment Land Administration Rules, 1937 and the High Court need not go into any factual disputes to grant the reliefs. He submitted that these matters are within the field of public law and the High Court in exercise of its powers under Article 226 of the Constitution can grant the reliefs.
16 In Gulam Abbas and others vs State of U.P. and others, AIR 1981 SC 2198, Gulam Abbas and others filed a writ petition under Article 32 of the Constitution on behalf of the Shia community of the Mohalla Doshipura in Varanasi contending that the Shia community had been performing religious rites, practices and observances on certain plots and properties situated in the Mohalla Doshipura in the city of Varanasi but the respondent, the State of U.P., was interfering with the performance of those religious rites, practices and observances on the plots and properties and sought a declaration that 9 plots of land and the building structures thereon belong to Shia Waqf of Mohalla Doshipura and also a declaration that the members of Shia community of that Mohalla have a right to perform their religious functions and practices on these plots and in the structures standing thereon. The Supreme Court held that ordinarily adjudication of questions of title and WRIT PETITION No. 3826/2008(PIL 1 granting declaratory relief consequent upon such adjudication are not undertaken in a writ petition under Article 32 of the Constitution, but as the title and ownership of the plots of land and the structures thereon are distinct from the customary rights of the Shia community to perform their religious ceremonies and functions on the plots and in the structures thereon, the relief sought by the Shia community for enforcement of their customary rights has to be considered on merits and whatever relief they may be found legally and properly entitled to may have to be granted to them.
17. In the present case, the claim of the civil residents of Mhow is that their constitutional right to property under Article 300-A of the Constitution is in jeopardy and they have filed this writ petition through their Association seeking a declaration that the lands and bungalows in Mhow under the occupation of the civilian residents do not belong to Union of India, but to the State of M.P. and the High Court can decide whether the declaration can be granted or not on an interpretation of Article 295 of the Constitution and the provisions of the Cantonments Act, 1924 and on the facts which are not disputed in exercise of its powers under Article 226 of the Constitution. Rather, the High Court should decide the disputes raised in the writ petition to avoid multiplicity of litigations and conflicting opinions of different courts on the interpretation of very important provisions of the Constitution relating to the properties of the Union of India and the States constituting the Union and the provisions of the Cantonments Act, 1924 vis-à-vis the right to property of the residents of the Mhow Cantonment.
18. Mr. Pavecha next submitted that the main dispute raised in this writ petition is whether the land and bungalows occupied by the civilian residents of Mhow belong to the Union of India or the State of Madhya Pradesh and this dispute can only be decided by the Supreme Court because under Article 131 of the Constitution, the Supreme Court has the exclusive original jurisdiction to decide a dispute between the Government of India and a State. Mr. Mathur, in reply, submitted that Article 131 of the Constitution will not apply where one of the parties to the dispute is a private party and the Government of India and the State are other parties. In support of his submission, he relied upon State of Bihar vs Union of India and another, AIR 1970 SC 1446 and Tashi Delek Gaming Solutions Ltd. and another vs State of Karnataka and others, (2006) 1 SCC 442.
WRIT PETITION No. 3826/2008(PIL 1
19. We find that in State of Bihar vs Union of India and another (supra), the Supreme Court has held that the most important feature of Article 131 is that it makes no mention of any party other than the Government of India or any one or more of the States who can be arrayed as a disputant and there is no scope for suggesting that a private citizen, a firm or a corporation can be arrayed as a party on one side and one or more States including the Government of India or the other nor is there anything in the Article which suggests a claim being made by a private party jointly or in the alternative with a State or the Government of India. In Tashi Delek Gaming Solutions Ltd. and another vs State of Karnataka and others (supra), the Supreme Court has observed that it is now well settled by various decisions that Article 131 will not be applicable where citizens or private bodies are parties either jointly or in the alternative with the State or the Government of India. Thus, the contention of Mr. Pavecha that the present dispute filed by the petitioner Association is within the exclusive original jurisdiction of the Constitution is misconceived.
20. Mr. Pavecha submitted that Article 363 of the Constitution creates a constitutional bar to interference by courts in disputes arising out of certain treaties, agreements, etc. with Rulers of Indian States. He submitted that since the present dispute arises out of the Treaty of Mandsaur,1818, entered into by Maharaja Holkar, a Ruler of Indian State, and by the predecessor of the Government of the Dominion of India, the jurisdiction of the High Court was barred under Article 363 of the Constitution. In support of this contention, he relied upon State of Seraikella and others vs Union of India and another, AIR 1951 SC 253. Mr. Mathur, on the other hand, submitted that the Treaty of Mandsaur entered into by Maharaja Holkar is only the origin of how British Forces came to occupy Mhow but the dispute raised by the petitioner Association in this case does not arise out of the Treaty of Mandsaur and Article 363 of the Constitution therefore was not attracted to the facts of the present case. In support of this submission, he cited the decisions of the Supreme Court in Jagannath Behera and others vs Raja Harihar Singh Maharaj Bhramarbara Roy, AIR 1958 SC 239 and Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and others vs Union of India and another, 1971 (1) SCC 85 = AIR 1970 (1) SC 530.
21. Article 363 of the Constitution is quoted hereinbelow :
WRIT PETITION No. 3826/2008(PIL 1 "363. Bar to interference by courts in disputes arising out of certain treaties, agreements, etc. -
(1) Notwithstanding anything in this Constitution but subject to the provisions of Article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument.
(2) In this article ---
(a) "Indian State" means any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State; and
(b) "Ruler" includes the Prince, Chief or other person recognised before such commencement by His Majesty or the Government of the Dominion of India as the Ruler of any Indian State."
A plain reading of Article 363 of the Constitution would show that the first limb of this article will apply where the treaty, agreement, covenant, engagement, sanad or other similar instrument in question has or has been continued in operation after the commencement of the Constitution. This is the view of the Supreme Court in State of Seraikella and others vs Union of India and another (supra) as will be clear from the following passage of the judgment in the case :
"If therefore the dispute arises in respect of a document of that description and if such document had been executed before the Constitution by a Ruler and which was or had continued in operation after such commencement, this Court has no jurisdiction to determine such issue. It was argued that as the agreement had to be in operation after the commencement of the Constitution, no dispute can arise in respect of such document before the commencement of the Constitution and therefore as the dispute in the present case had arisen before the commencement of the Constitution, Article 363 had no operation. In my opinion, this is not a correct reading of Article 363(1). The time factor is related only to the document in question and not the dispute. It is WRIT PETITION No. 3826/2008(PIL 1 provided that such document should have been executed before the Constitution came into force and has to be in operation after the Constitution, but the dispute, which is the subject matter of the litigation, may arise before or after."
In the present case, nothing has been shown to us by the respondents to establish that the Treaty of Mandsaur entered into in 1818 by Maharaja Holkar has or has been continued in operation after the commencement of the Constitution. Hence the first limb of Article 363 of the Constitution is not applicable to the facts of the present case.
22. The second limb of Article 363 of the Constitution has been explained with precision and accuracy in the majority judgment delivered by Justice J.C. Shah in Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and others vs Union of India and another (supra) in the following words:
"Jurisdiction to try a proceeding is barred under the first limb of Article 363 if the dispute arises out of the provision of a covenant: it is barred under the second limb of Article 363 if the Court holds that the dispute is with respect to a right arising out of a provision of the Constitution relating to a covenant. A dispute that an order of an executive body is unauthorised, or a legislative measure is ultra vires, is not one arising out of any covenant under the first limb of Article 363, merely because the order of the measure violates the rights of the citizen which, but for the act or measure, were not in question. The dispute in such a case relates to the validity of the act or the vires of the measure. Exclusion of the Court's jurisdiction by the terms of the relevant words lies in a narrow field. If the constitutional provision relating to a covenant is the source of the right claimed to accrue, or liability claimed to arise, then clearly under the second limb the jurisdiction of the Court to entertain a dispute arising with respect to the right or obligation is barred."
Thus, the second limb of Article 363 therefore will apply if a constitutional provision relating to covenant is the source of the right claimed to have accrued, or liability claimed to have arisen. In the present case, the source of the right claimed by the petitioner Association and the respondent No.1 is Article 295 of the Constitution but this Article of the Constitution does not relate to a covenant. Article 295 is a general provision regarding succession to property, assets, rights, liabilities and obligations of a Part B Indian State and provides what property, assets, rights, liabilities and obligations of such Part B Indian State will accrue to the Union of India and what property, assets, rights, liabilities and obligations of such Part B Indian State will accrue to the States and is not related specifically to the Treaty of Mandsaur, 1881, WRIT PETITION No. 3826/2008(PIL 1 entered into or executed by the Ruler of the Holkar State. Hence, the second limb of Article 363 of the Constitution also does not create a bar for this Court to decide the present dispute arising out of Article 295 of the Constitution.
23. Mr. Pavecha next submitted that three advocates of Mhow had earlier filed Writ Petition No.454/2000 raising the issues which have been raised in the present writ petition, but by order 4.5.2000 a Division Bench of this Court dismissed the Writ Petition No.454/2000. He submitted that the present writ petition raising the very same issues is barred by res judicata. He cited Makhija Construction & Engineering Pvt. Ltd. vs. Indore Development Authority and others, (2005) 6 SCC 304, in which a cryptic order passed by the Division Bench in an appeal has been held to create the bar of res judicata. He also relied on State of Karnataka and others vs. All India Manufacturers Organisation and others, (2006) 4 SCC 683, for the proposition that the principle of res judicata is equally applicable to public interest litigations. Mr. Mathur submitted that there was no decision on the merits by the Division Bench in Writ Petition No.454/2000 and hence there was no res judicata.
24. The principle of res judicata is incorporated in Section 11 of the Code of Civil Procedure, which is quoted herein below :
"Res judicata.-- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
A reading of Section 11 of the Code of Civil Procedure would show that only when a issue has been heard and finally decided by the Court, the Court cannot try the subsequent suit or the issue in the subsequent suit. The order dated 4.5.2000 passed by the Division Bench in Writ Petition No.454/2000 is quoted hereinbelow :
" Petitioners are absent. None is present for them. Shri Ashutosh Nimgoankar, counsel for the Resp.1.
WRIT PETITION No. 3826/2008(PIL 1 After perusing the annexures this court does not find any propriety of entertaining hearing and deciding this W.P. Thus, it stands dismissed."
On a reading of the order dated 4.5.2000 passed by the Division Bench in Writ Petition No.454/2000 quoted above, we find that no issue has been heard and finally decided by the High Court and the writ petition was dismissed in limine by the High Court.
25. In Makhija Construction & Engineering Pvt. Ltd. vs. Indore Development Authority and others (supra), cited by Mr. Pavecha, the facts were that the Indore Development Authority invited tenders from registered institutions who manage educational activities for 10,340 sq.m. of land reserved for educational purposes under the scheme of the Indore Development Authority and Makhija Construction & Engineering Pvt. Ltd. (for short 'Makhija'), Jagriti Bal Mandir Society (for short 'Jagriti') and Crescent Public School (for short 'Crescent') submitted their bids and the Indore Development Authority allotted the land in equal half to Jagriti and Crescent. Makhija and Jagriti filed writ petitions in the Gujarat High Court and both the writ petitions were disposed of by an order dated 4.3.1998 directing the Indore Development authority to consider the representations of Makhija and Jagriti. The matter was reconsidered but a letter of allotment was issued to Jagriti and Crescent. Makhija and Jagriti filed writ petitions and the learned Single Judge of the Gujarat High Court allowed the writ petitions by a common order dated 29.2.2000 after taking a view that the requirement in the tender that the tender should be accepted only from registered institutions which are engaged in educational activities, had an alternative that the institutions constituted for that purpose could also participate but this was ignored by the Indore Development Authority. Three appeals were preferred against the order of the learned Single Judge before the Division Bench, one by Jagriti and two by Crescent, and Jagriti's appeal was dismissed in default and one of Crescent's appeals was dismissed on the ground that the learned Single Judge had done substantial justice. The order passed by the Division Bench in Crescent's appeal is quoted hereinbelow :
"Heard.
Dismissed as the order of the Hon'ble Single Judge has done substantial justice, it also says that IDA would decide the matter WRIT PETITION No. 3826/2008(PIL 1 by all considerations. This order is passed after hearing the L/C for the parties for about an hour."
On these facts, the Supreme Court held that the dismissal of Crescent's Appeal was binding on the parties to the proceedings for no other reason, but that there should be an end to litigation. Thus, the Division Bench hearing the Crescent's appeal, had affirmed the decision of the learned Single Judge, who had heard and decided the issues raised in the writ petition and the Division Bench after hearing the appeal took the view that the learned Single Judge has decided the issues doing substantial justice. As we have seen, the Division Bench of this Court hearing the earlier Writ Petition No.454/2000 has not entertained the writ petition and has not decided any issue and therefore the bar of res judicata will not apply.
26. In State of Karnataka & others vs. All India Manufacturers Organisation and others (supra), cited by Mr. Pavecha, the Supreme Court has held in paragraph 35 that in a public interest litigation, the petitioner is not agitating his individual rights but represents the public at large and as long as the public interest litigation is bona fide, a judgment in a previous public interest litigation would be a judgment in rem and will bind the public at large and bar any member of the public from coming forward before the Court and raising any connected issue or an issue which had been raised or which should have been raised on an earlier occasion by way of a public interest litigation. In the aforesaid case, the Supreme Court has found that the High Court in the earlier writ petitions had examined an issue and recorded the finding that out of 20,193 acres of land, some land would be acquired for Express Highway and some other land would be acquired for development of township and because of such finding on an issue by the High Court, the Supreme Court held that explanation IV to Section 11 of the Civil Procedure Code clearly applies and rejected the contention of the appellant that the judgment of the previous case of Somashekar Reddy did not operate as res judicata for the questions raised in the subsequent writ petition. In the present case, on the other hand, the Division Bench which dismissed the Writ Petition No.454/2000 by an order dated 4.5.2000, has not entertained the writ petition nor recorded any finding on any issue but has dismissed the writ petition in limine. The objection of Mr. Pavecha to the maintainability of the writ petition on the ground of res judicata is, therefore, not well founded.
WRIT PETITION No. 3826/2008(PIL 1
27. Mr. Pavecha next submitted that Section 22 of the Madhya Pradesh Society Registrikaran Adhiniyam, 1973, (for short 'the Adhiniyam 1973'), provides that every society may sue or be used in the name of the President or Chairman or Principal Secretary or the trustees, as shall be determined by the regulations of the society and in default of such determination, in the name of such person as shall be appointed by the governing body of the society. He submitted that though the petitioner No.1 Association is said to be registered under the Adhiniyam, 1973, the name of the President or Chairman or Principal Secretary or the trustees of the petitioner Association empowered under the regulations of the society or appointed by the governing body for suing on behalf of the petitioner Association, has not been disclosed in the writ petition or in the rejoinder and hence, the writ petition is liable to be dismissed on this ground. We find on a reading of Section 22 of the Adhiniyam 1973 that there is nothing in the section to suggest that unless the name of the President or Chairman or Principal Secretary or the trustees of a society registered under the Adhiniyam 1973 is disclosed to the Court, the Court will dismiss the suit. We are, therefore, not inclined to dismiss the writ petition only on this objection raised by Mr. Pavecha.
ON MERITS OF THE WRIT PETITION
28. We now move on to the contentions of the learned counsel for the parties on the merits of the writ petition. Article 295 of the Constitution on which contentions of the learned counsel for the parties are based, is extracted herein below :
"Article 295. Succession to property, assets, rights, liabilities and obligations in other cases.--
(1) As from the commencement of this Constitution -
(a) all property and assets which immediately before
such commencement were vested in any Indian State
corresponding to a State specified in Part B of the First Schedule shall vest in the Union, if the purposes for which such property and assets were held immediately before such commencement will thereafter be purposes of the Union relating to any of the matters enumerated in the Union List, and
(b) All rights, liabilities and obligations of the Government of any Indian State corresponding to a State specified in Part B of the First Schedule, whether arising out of any contract or otherwise, shall be the rights, WRIT PETITION No. 3826/2008(PIL 2 liabilities and obligations of the Government of India, if the purpose for which shall rights were acquired or liabilities or obligations were incurred before such commencement will thereafter be purposes of the Government of India relating to any of the matters enumerated in the Union List, subject to any agreement entered into in that behalf by the Government of India with the Government of that State.
(2) Subject as aforesaid, the Government of each State specified in Part B of the First Schedule shall, as from the commencement of this Constitution, be the successor of the Government of the corresponding Indian State as regards all property and assets and all rights, liabilities and obligations, whether arising out of any contract or otherwise, other than those referred to in clause (1)."
29. Mr. Mathur, learned Senior Counsel appearing for the petitioner, submitted that clause (2) of Article 295 of the Constitution clearly states that the Government of each State specified in Part B of the First Schedule shall, as from the commencement of the Constitution, be the successor of the Government of the corresponding Indian State as regards all property and assets of the Part B Indian State. He submitted that Mhow has never been a part of British India and all through has been part of the Indian State of Holkar and at the time of commencement of Constitution was part of Madhya Bharat, which was a Part B Indian State and by virtue of clause (2) of Article 295 of the Constitution read with the States Reorganization Act, 1956, the Government of Madhya Pradesh is the successor to property and assets in Mhow. He further submitted that clause (2) of Article 295 of the Constitution is, of course, subject to clause (1) which states that as from the commencement of the Constitution, all property and assets which immediately before such commencement were vested in any Indian State corresponding to a State specified in Part B of the First Schedule shall vest in the Union, if the purposes for which such property and assets were held immediately before such commencement will thereafter be purposes of the Union relating to any of the matters enumerated in the Union List. According to Mr. Mathur, by virtue of clause (1) of Article 295 of the Constitution, all property and assets, which are "used" for the purposes of Union relating to any of the matters listed in the Union List, shall vest in the Union. He argued that since the areas under the physical or actual occupation of the civilian population of the Mhow Cantonment were not 'used' at the time of commencement of the Constitution for the purposes of the Union relating to any of the matters enlisted in the Union List, the areas under the occupation WRIT PETITION No. 3826/2008(PIL 2 of civilians population of Mhow Cantonment cannot be property of the Union under clause (1) of Article 295 of the Constitution and will only be the property of the Government of Madhya Pradesh under Clause (2) of Article 295 of the Constitution. He submitted that contrary to the aforesaid provisions of Article 295 of the Constitution, the respondents have erroneously taken the view that the entire Mhow Cantonment is part of the property of the Union because the Cantonments Act, 1924 applied to the Mhow Cantonment. He vehemently argued that a reading of the provisions of the Cantonments Act 1924 would show that there is no provision therein to indicate that the property in Mhow Cantonment belonged to the Union of India. He cited the decision of the Calcutta High Court in Secretary Cantonment Committee, Barrrackpore vs. Satish Chand Sen ( AIR 1927 Cal. 786) and the decision of the Division Bench of this Court in Tara Malik vs. State of M.P. & others (1979 MPLJ
555), in which it has been held that the mere fact that certain lands are declared by the Government to be within a cantonment area does not vest their ownership on the Government unless it shows that the lands were acquired by the Government for that purpose.
30. Mr. Pavecha submitted relying on the reply of the respondent No.1 that the contention of the petitioner that Mhow Cantonment was never part of British India, is factually false and historically wrong and on the contrary, right since 1818 the entire land falling in Mhow Cantonment has remained the property of Government of India or its predecessors and neither the State Government of Madhya Pradesh nor its predecessors including the erstwhile Hokar State have ever laid any claim thereto. He further submitted that from 1818 to 1947, for long 129 years, the then Government of India occupied, managed and controlled Mhow Cantonment just like any other Union Territory in India and various authorities like the Cantonment Committees, the President of Cantonment Board and the Cantonment Magistrate were the authorities appointed by the Government of India to administer Mhow Cantonment during these 129 years and the Government through Defence Department and Governor General-In-Council made grants of land to the Civilians, executed leases and controlled the local administration. He submitted that there are number of records available with the Cantonment Board, Mhow and the Defence Estate Officer, Mhow Circle which prove all these facts and there are hundreds of such documents like Cantonment Committee/Board resolutions since 1864 till date to show that the Government provided some leases which prove that the Government WRIT PETITION No. 3826/2008(PIL 2 ownership of land in Mhow Cantonment was never questioned or disputed by anyone. He submitted that civilian occupants of land and Bungalows in Mhow having entered into possession under grants/leases/licences given by the Government of India are estopped from challenging the title of the Government of India on any ground as provided in Section 116 of the Evidence Act. He further submitted that the cause of action for this writ petition, if any, arose on 18.2.1952 when the Government of India, Ministry of Defence, issued a letter dated 18.2.1952 to the Director, Military Lands and Cantonments, saying that with the merger of Holkar Darbar of which Mhow Cantonment formed part in Madhya Bharat and subsequent accession of the Madhya Bharat to the Indian Union, all lands in the Cantonment vest in the Central Government. Finally, he submitted that the ownership of the Government of India over the cantonment area land was confirmed, declared and reaffirmed by the express language of Article 295(1) of the Constitution.
31. The letter dated 18.2.1952 of the Government of India, Ministry of Defence to the Director of Lands and Military Cantonments, which is annexed to the writ petition as Annexure P/11, is extracted hereinbelow :
Copy of Government of India, Ministry of Defence, letter No.198-A/L&C/52/215/LC/D(AC), dated 18.2.1952, to the Director, Military Lands & Cantonments.
---
"MHOW CANTONMENT - MANAGEMENT OF LAND IN THE
---
Sir, With reference to Headquarters, Western Comman Memorandum No.33717/ LC, dated the 13th October, 1950, on the above subject, I am directed to say that with the merger of Holkar Darbar, of which Mhow Cantonment forms part, in Madhya Bharat, and subsequent accession of the latter to the Indian Union, all lands in the said Cantonment vest in the Central Government, and the provisions of the Cantonments Act, 1924 (II of 1924) and the rules made thereunder, including the Cantonment Land Administration Rules, 1937, have been extended to all part 'B' States vide Section 4 of the Cantonment Law (Extension and Amendment) Act, 1950. The Central Government have, therefore, decided in super-session of the orders contained in the late Defence Department letter No. 4145-LC/D.4, dated the 22nd November, 1939, to withdraw from the management of the Cantonment Board Mhow, all class "B-3" and "B-4" lands outside the bazaar area in that cantonment and to place the same under the management of Military Estates Officer, Mhow, vide rule 9(5) of the Cantonment Land Administration Rules, 1937, with immediate effect.
WRIT PETITION No. 3826/2008(PIL 2 Consequent on this decision the receipts from the said land will be credited to the Central Government.
2. To enable the Military Estates Officer, Mhow to manage the lands referred to in para 2 above, as required under the Cantonment Land Administration Rules, 1937, the sanction of the Government of India is here accorded to the employment of the following establishment for a period of one year with effect from the 1st January, 1952:-
Lower Division Clerks 2) on the rates of pay
Surveyor/Draftsman 1) Prescribed in Ministry
Daftry 1) of Defence Notification
Chairman-cum-Peon 1) No.354, dated the
4th March, 1950.
Yours faithfully,
Sd/- P.C. Bose
Under Secretary to the Government of India."
Thus, the stand of the Government of India, Ministry of Defence, in the letter dated 18.2.1952 is that with the merger of Holkar Darbar in Madhya Bharat and subsequent accession of Madhya Bharat to the Indian Union, all lands in Mhow Cantonment vested in the Central Government. Though in the letter dated 18.2.1952 there is no mention that the claim of the Central Government to Mhow is based on Article 295 of the Constitution, it now appears from the reply of the respondent No.1 that this claim of the Central Government is based on Article 295 of the Constitution.
32. Madhya Bharat was a Part B State as per the First Schedule of the Constitution at the time of commencement of the Constitution. Clause (1)(a) of Article 295 of the Constitution clearly provides that all property and assets which immediately before commencement of the Constitution, vested in any Indian State specified in Part B of the First Schedule of the Constitution, shall vest in the Union, if the purposes for which such property and assets were held immediately before such commencement will after the commencement of the Constitution be purposes of the Union relating to any of the matters enumerated in the Union List. Clause (2) of Article 295 of the Constitution however provides that subject to clause (1) of Article 295, the Government of each State specified in Part B of the First Schedule shall, as from the commencement of the Constitution, be the successor of the Government of the corresponding Indian State as regards all property and assets. Thus, the scheme of Article 295 of the Constitution is that the property and assets of any Indian State corresponding to a State specified in Part B of the First Schedule "held" for the purposes relating to any of the matters enumerated in WRIT PETITION No. 3826/2008(PIL 2 the Union List, such property and assets will, as from the commencement of the Constitution, be the property and assets of the Union and the remaining property and assets will belong to the Government of the State specified in Part B of the First Schedule. Since Mhow was before the commencement of the Constitution the property of the Madhya Bharat specified in Part B of the First Schedule and was "held" before the commencement of the Constitution for defence of India and Military Forces of the Union enumerated in items 1 and 2 of the Union List in the 7th Schedule of the Constitution, Mhow has become the property of the Union by virtue of Clause (1) of Article 295 of the Constitution.
33. The word 'held' has not been defined in Article 295 or Article 366 of the Constitution and hence, we have to adopt the meaning given to the word 'held' in the dictionary. According to Webster's New Twentieth Century Dictionary, the word 'held' is technically understood to mean "to possess by legal title". In Black's Law Dictionary Eighth Edition at page 749, the word 'hold' has been defined to mean "to possess by a lawful title". In Bhudan Singh and another vs. Nabi Bux and another (1969) 2 SCC 481, the word 'held' used in section 9 of the U.P. Zamindari Abolition and Land Reforms Act, 1950, arose for interpretation and the Supreme Court, after considering the scheme of the Act and the language used in Section 9, took the view that the word 'held' in Section 9 means "lawfully held". In Kailash Rai vs. Jai Jai Ram and others (1973) 1 SCC 527, the Supreme Court relying on its earlier decision in Bhudan Singh and another vs. Nabi Bux and another, reiterated that the expression 'held' in Section 18 (1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, can only be taken to connote the existence of a right or title in a person. In State of Andhra Pradesh vs. Mohd. Ashrafuddin AIR 1982 SC 913, the Supreme Court was called upon to decide the meaning of word 'held' in the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, and the Supreme Court observed in paragraph 8 at page 915 of the AIR :
" The word 'held' is not defined in the Act. We have, therefore, to go by the dictionary meaning of the terms.
According to Oxford Dictionary 'held' means : to possess; to be the owner or holder or tenant of; keep possession of; occupy. Thus, 'held' connotes both ownership as well as possession. And in the context of the definition it is not possible to interpret the term 'held' only in the sense of possession."
WRIT PETITION No. 3826/2008(PIL 2
34. Thus, the word 'held' in clause (1)(a) of Article 295 of the Constitution would not mean 'actually held' but 'lawfully held'. Further, since clause (1)(a) of Article 295 of the Constitution itself vests the ownership in the Union on all property and assets of Part B Indian State which were held before the commencement of the Constitution for the purposes of matters enumerated in the Union List of the Constitution, the word 'held' would not mean 'held as a owner'. In other words, the Union of India has become the owner of the property and assets of Part B Indian State which were occupied or possessed lawfully for the purposes of Defence or Military Forces, by virtue of Clause (1)
(a) of Article 295 of the Constitution even if such property and assets were being actually used by the civilians. Admittedly, the ex-Ruler of Holkar who was originally the owner of the Mhow delivered possession of Mhow for occupation of British Forces and thereafter such possession came to the Defence and Military Forces of the Union of India and therefore Mhow was lawfully occupied or 'held' for the purposes of Defence and Military Forces enumerated as item No. 1 and 2 of the Union List and the Union of India became the owner of Mhow on the commencement of the Constitution by virtue of Article 295(1)(a) of the Constitution even in respect of the lands and buildings which were in physical or actual possession of the civilians population.
35. We also find on a reading of sub-section (1) of Section 3 of the Cantonments Act, 1924 (for short 'the 1924 Act') that the Central Government may, by notification, declare any place or places in which any part of the Forces is quartered or which, being in the vicinity of any place or places, is or are required for the service of such forces to be a cantonment for the purposes of the Act and of all other enactments for the time being in force. Under sub-section (2) of Section 3, the Central Government may, by a like notification, define the limits of any cantonment for the aforesaid purposes. Sub-section (3) of Section 3 of the 1924 Act further provides that when any place is declared a cantonment for the first time, the Central Government may, until a Board is constituted in accordance with the provisions of this Act, by order make any provision which appears necessary to it either for the administration of the cantonment or for the constitution of the Board. Sub- section (4) of Section 3 of the 1924 Act states that the Central Government may, by notification, direct that in any place declared as a cantonment under sub-section (1), the provisions of any enactment relating to local self- Government other than the Act, shall have effect only to such extent or WRIT PETITION No. 3826/2008(PIL 2 subject to such modifications or that any such authority constituted under any such enactment shall exercise authority only to such extent, as may be specified in the notification. These provisions of the 1924 Act clearly show that a place or a local area is included within the cantonment area for the purpose of administration by the Cantonment Board to the exclusion, partly or wholly of the local self-Government, such as the Municipality or the Municipal Corporation. Therefore, the fact that a particular place or local area is declared as a cantonment or included in the cantonment will not make the land located in the place or local area as the property of the Central Government. This is also the view taken by the Calcutta High Court in Secretary, Cantonment Committee Barrackpore (supra) and by the Division Bench of this Court in Tara Malik (supra). Hence, the claim of the Union of India that Mhow is the property of the Central Government cannot be based on the mere fact that Mhow is a cantonment governed by the provisions of the 1924 Act. In other words, there may or may not be land within the limits of Mhow Cantonment which do not belong to the Central Government and this is a question of fact which has to be decided in each individual case on the basis of pleadings and evidence adduced before the Court relating to notifications issued under the 1924 Act defining the limits of the Mhow Cantonment title deeds and other relevant facts. (See Union of India vs. Purushottam Dass Tandon and another, 1986 (Supp.) SCC 720).
36. We may now deal with the contention of Mr. Pavecha that if a suit had been filed for the reliefs claimed in the writ petition, it would have been barred by limitation. It is settled law that the Limitation Act does not apply to a writ petition under Article 226 of the Constitution but a writ petition can be dismissed on the ground of delay on the part of the petitioner in approaching the Court under Article 226 of the Constitution. In the instant case, the actual cause of action for the petitioner Association to file this writ petition is that some members of the petitioner Association have been served with resumption notices or notices under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, by the respondents No.1 and 3 and in the reply filed on behalf of the respondent No.1, it is not disputed that such resumption notices or notices of eviction have been issued from time to time. It is also stated in the reply of the respondent No.1 that due to growing requirement of the armed forces, Respondents No.1 and 3 have been initiating resumption proceedings and have also taken possession of some of the land and buildings. There is, therefore, a continuous threat to the civil WRIT PETITION No. 3826/2008(PIL 2 residents of Mhow who are members of the petitioner Association of being deprived of possession of land and buildings by the respondents No.1 and 3, and as the petitioner has approached this Court for appropriate reliefs against such threat to the members of the petitioner Association, we are not inclined to dismiss the writ petition on the ground of delay but we are not inclined to consider the prayer of the petitioner at this belated stage to declare GGO 179 of 1836 as void.
37. Regarding the plea of estoppel raised by Mr. Pavecha, Section 116 of the Indian Evidence Act provides that no tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny the title to the property that the landlord had at the beginning of the tenancy and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given. This plea of estoppel against the tenant or licensee under Section 116 of the Indian Evidence Act, in our considered opinion, can only be raised and decided in any suit or proceeding by or against the tenant or the licensee of a property and not in a public interest litigation. Moreover, the agreement or contract between the parties in respect of immovable property has to be looked into by the Court for deciding whether or not the agreement amounts to a tenancy or a licence. The issue regarding estoppel against the tenant or licensee based on Section 116 of the Indian Evidence Act can be raised by the respondents No.1 and 3 in the suits or proceedings taken against the civilians and can also be decided by the Court in such suits or proceedings but cannot be decided in the present PIL filed by the petitioner Association for redressal of the common grievances of the civil residents of Mhow.
38. Mr. Mathur next submitted that the Cantonment Land Administration Rules, 1937, (for short 'the 1937 Rules') do not apply to the private land but only apply to the Government land. He referred to Section 280(2)(a) of the 1924 Act which confers power on the Central Government to make rules providing for the manner in which, and the authority to which, application for permission to occupy land belonging to the Government in a cantonment is to be made. He submitted that the expression "belonged to the Government" in Section 280(2)(a) of the 1924 Act makes it clear that the Central Government has the power only to make Rules in respect of the Government land and not WRIT PETITION No. 3826/2008(PIL 2 in respect of private land located in a cantonment. He submitted that the 1937 Rules have to be read accordingly and wherever the expression "land" occurs in the 1937 Rules, it has to be understood as Government land and not as private land. He also referred to the provision of Rule 4 of the 1937 Rules to show that it deals with classification of lands which is vested in the Government and not with the private land. He submitted that contrary to the provisions of the 1937 Rules, the respondent No.3 has not only included Government land but also private land in the General Land Register. Mr. Pavecha, on the other hand, submitted that the 1937 Rules apply to private land as well and this will be clear from Rule 3 thereof which states that a General Land Register of 'all lands' in the cantonment has to be prepared by the Military Estates Officer in the form prescribed in Schedule I.
39. We are unable to accept the submission of Mr. Mathur that the 1937 Rules apply to land which is vested in the Government and will not apply to private land. Section 280(2)(a) of the 1924 Act, it is true, provides that the Central Government may, by rules, provide for the manner in which, and the authority to which, application for permission to occupy land belonging to the Government in the cantonment is to be made, but the power of the Central Government under Section 280(2)(a) of the 1924 Act is without prejudice to the generality of its powers under Section 280(1) to make rules to carry out the purposes and objects of the 1924 Act. Section 60 of the 1924 Act confers power on the Cantonment Board to impose in the cantonment any tax, which under any enactment for the time being in force, may be imposed in any municipality in the State wherein such cantonment is situated and such tax may include tax on land and buildings. Section 64(b) of the 1924 Act gives the meaning of 'annual value' of different properties including land and building for the purposes of imposition of tax. Section 65(1) of the 1924 Act states that every tax assessed on the annual value of buildings or lands or of both shall be leviable primarily upon the actual occupier of the property upon which the tax is assessed. Sections 179, 180 and 181 of the 1924 Act deal with erection or re-erection of any building in a cantonment after prior valid notice or sanction. Such taxing and regulatory power of the Board cannot be effectively exercised in respect of the lands and buildings located in the cantonment unless records relating to the ownership, occupation or possession of such lands and buildings in the cantonment are prepared and maintained. Hence, for carrying out these objects of the 1924 Act, the Central Government has made rules under Section 280(1) of the 1924 Act WRIT PETITION No. 3826/2008(PIL 2 and provided in Rule 3(1) of the 1937 Rules that the Military Estates Officer shall prepare in the form prescribed in Schedule I, a General Land Register of all lands in the cantonment - (a) inside bazaars; and (b) outside bazaars. A reading of Schedule I which prescribes the form of General Land Register will also show that it includes columns relating to 'holder of occupancy rights', 'nature of holders rights etc'. The Central Government has provided in Rule 10 that the Military Estates Officer shall maintain the General Land Register prepared under Rule 3 in respect of all lands other than the land in bazaars the management of which has been entrusted to or vests in, the Board, and that the Military Estates Officer shall register all mutations in column 1 of the Schedule and shall enter therein every transfer of right or interest in the cantonment registered under Sections 54, 59, 107, 123 of the Transfer of Property Act, 1882, of which information has been sent to him under sub- section (2) of Section 287 of the 1924 Act or by the Board, when such transfer necessitates an alteration of entries, in any of the columns of the register. Section 287(1) of the 1924 Act provides that paragraphs 2 and 3 of section 54 and sections 59, 107 and 123 of the Transfer of Property Act, 1882, with respect to the transfer of property by registered instrument, shall, on and from the commencement of the Act, extend to every cantonment. Section 287(2) of the 1924 Act provides that the Registrar or Sub-Registrar of the district or sub-district formed for the purposes of the Registration Act, 1908, in which any cantonment is situated, shall, when any document relating to immovable property within the cantonment is registered, send information of the registration forthwith to the Executive Officer and the Defence Estates Officer and/or such other authority as the Central Government may prescribe in this behalf. Sections 54, 59, 107 and 123 of the Transfer of Property Act, 1882, relate to sale, mortgage, leases and gift of immovable property and obviously will include transactions relating to private immovable property. Hence, the contention of Mr. Mathur that the 1937 Rules can only apply to the Government property and not to private property is misconceived.
40. In the result, we hold that :
(i) lands and buildings in Mhow Cantonment which at the time of commencement of the Constitution, were property of Madhya Bharat and prior to formation of Madhya Bharat were property of Holkar State, but were in the lawful occupation for the purposes of Defence and Military Forces including the lands and buildings which were given by WRIT PETITION No. 3826/2008(PIL 3 the authorities to the civilians for occupation and use are owned by the Central Government.
(ii) If there are lands in Mhow Cantonment other than the lands described in (i) above, such lands are not owned by the Central Government unless separately acquired for or by the Central Government.
(iii) The Cantonment Land Administration Rules, 1937 apply to Mhow Cantonment and some provisions of these Rules apply to private land, if any, in the Mhow Cantonment.
(iv) The relief that the title deeds and settled possession of civil residents of Mhow Cantonment be recognised, cannot be granted in this PIL.
(v) The prayer to declare GGO 179 of 1836 as void cannot be considered by the High Court at this belated stage.
The writ petition is disposed of. The interim orders are vacated. The parties shall bear their own costs.
(A.K. Patnaik) (K.K. Lahoti)
Chief Justice. Judge.
16.9.2009. 16.9.2009.
KP/*