Allahabad High Court
Meena Pandey vs Union Of India And 2 Others on 30 January, 2023
Bench: Manoj Kumar Gupta, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 21 Case :- WRIT - C No. - 25066 of 2022 Petitioner :- Meena Pandey Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Tarun Agrawal,Sr. Advocate Counsel for Respondent :- A.S.G.I.,Sanjay Kumar Om Connected with Case :- WRIT - C No. - 25115 of 2022 Petitioner :- Hari Om Pandey Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Tarun Agrawal,Sr. Advocate Counsel for Respondent :- A.S.G.I.,Sanjay Kumar Om Hon'ble Manoj Kumar Gupta,J.
Hon'ble Rajendra Kumar-IV,J.
(Per Manoj Kumar Gupta, J.)
1. These petitions call in question the resumption notices dated 1.7.2022, issued by the Director General, Defence Estate, Ministry of Defence, Government of India, New Delhi (respondent no. 1) acting on behalf of the President of India. Thereby, the possession of the land held by the petitioners on Old Grant terms was sought to be resumed upon expiry of one month from the date of notice, along with the structures built over it. As the petitions involve similar issues of facts and law, therefore both the petitions were heard together and are being decided by this common judgment.
Writ - C No. 25066 of 2022 :
2. Ganga Prasad, the predecessor-in-interest of the petitioner, enjoyed a grant in pursuance of an Agreement dated 27.10.1892 under the Old Grant terms, contained in Governor General-in-Council Order No. 179 dated 12.09.1836 (for short, referred to as ''GGO No. 179'). He raised pukka constructions over the said land. It bears Bungalow No. 8, Ponappa Road, General Land Register (GLR) Survey No. 122, New Cantt., Allahabad (Prayagraj) and is situated within the limits of the Military Cantonment. It is alleged that Ganga Prasad executed a will dated 12.11.1953 in favour of his wife Rajwanti Devi, bequeathing a limited interest. On her death on 18.5.1994, her interest in the property devolved on her nephew Krishna Dwivedi. The petitioner is daughter-in-law of Krishna Dwivedi. Krishna Dwivedi, during his lifetime, inducted Defence Estate Officer as a tenant in the property in question. It is alleged that SCC Suit No. 34 of 2004 is pending at the behest of the petitioner against respondent no. 3 for eviction and recovery of arrears of rent. It is also alleged that getting annoyed thereby, respondent no. 2 served the impugned resumption notice upon the petitioner, seeking to resume the land in question and the constructions existing over it, in exercise of power under GGO No. 179 dated 12.9.1836.
Writ - C No. 25115 of 2022 :
3. The property in dispute in the instant case is Bungalow No. 1, Ashoka Road, General Land Register (GLR) Survey No. 122, New Cantt., Allahabad (Prayagraj). It was also settled with Ganga Prasad under the Old Grant terms contained in Governor General-in-Council order No. 179 dated 12.09.1836 (GGO No. 179). It devolved upon Krishna Dwivedi in the same manner. In the said property, Krishna Dwivedi inducted Accounts Officer, Allahabad Circle, Ministry of Defence, as tenant. SCC Suit No. 79 of 2004 was filed by the petitioner, who is son of Krishna Dwivedi for recovery of arrears of rent and eviction. It was decreed on 1.8.2009 and thereafter a revision filed against the said judgment and decree of JSCC was also dismissed. The matter is pending in Writ - C No. 46076 of 2011, under Article 227 of the Constitution, before this court and an interim order is in operation in favour of the respondents. During pendency of the said writ petition, the impugned resumption notice dated 1.7.2022 was served upon the petitioner.
Submissions
4. Sri Ravi Kant, learned Senior Counsel, appearing for the petitioners in both the cases, submitted that: -
(a) The status of the grantees, i.e. the petitioners, is that of licensee and not tenant. The predecessor-in-interest of the petitioners have executed work of permanent character and incurred expenses in its execution and therefore, the license had become irrevocable under Section 60 of the Indian Easements Act, 1882 (for short ''the Act'). The notice seeking to resume the land in dispute is therefore void in the eyes of law. In support of his submission, he has placed reliance on the judgment of Supreme Court in Usha Kapoor and Others v. Government of India and Others1 and that of this Court in Ganga Sahai v. Badrul Islam2.
(b) Under Clause 6 of GGO No. 179, the power of resumption can be exercised upon payment of the value of building, as may have been erected. The compensation amount has to be offered along with the notice of resumption, while in the instant case, it has not been done. Only an assurance was given that as and when the Committee, specified in the notice, determines the amount of compensation, it will be paid. Consequently, the notice is invalid. In support of his contention, he has placed reliance on the judgment of the Supreme Court in Senior Superintendent, R.M.S. Cochin and Another vs. K.V. Gopinath, Sorter3.
(c) A large number of other similarly situated lands in close proximity of the land in dispute, have not been resumed and further some of the properties resumed in the past had not been utilized for the purpose for which resumption was made and this clearly reveals that the resumption of the land in dispute was a result of arbitrary exercise of power, violative of Articles 13, 14 and 21 of the Constitution of India.
Per contra, Sri Sanjay Kumar Om, learned counsel appearing for the respondents, submitted that: -
(a) Under GGO No. 179 dated 12.9.1836, only limited rights were conferred in favour of the predecessor-in-interest of the petitioner. It was specifically provided that the power of resumption of the land in dispute would remain with the grantor and therefore, Section 60 of the Indian Easement Act. 1882 will have no application. In support of his submission, he has placed reliance on the judgments of this Court in Chotey Lal vs. Mt. Durga Bai4 and Ganga Sahai vs. Badrul Islam (supra).
(b) The determination of compensation of the value of building erected on the land in question and its payment is permissible after the notice of resumption is given, being ministerial acts, as held by the Supreme Court in Union of India vs. Harish Chand Anand5.
(c) The possession of the land in dispute was taken on 31.8.2022 and is being presently used by the Union of India for running of its offices. The allegation that there has been discrimination, is not correct, as resumption of any particular land is based on several factors, taking into account public purpose and there is no violation of any constitutional or statutory provision while resuming the land. The allegation that some other land, resumed in the past, have not been utilized for any public purpose, is incorrect and further, it will not have any effect on the validity of the resumption notices, impugned herein.
(d) The payment of compensation will be made as soon as the amount is determined by the Committee, after hearing the petitioners.
ANALYSIS Old Grant - Nature of Rights
5. We first proceed to examine the nature of rights conferred to the grantee under the grant. Admittedly, the grant was ''old grant' regulated by Order No. 179 issued by the Governor General-in-Council dated 12.9.1836. In Union of India vs. Tek Chand6, the Supreme Court had approved the view taken by the Delhi High Court in Raj Singh vs. Union of India7, wherein GGO No. 179 was held to be a statutory exercise made under Section 43 of the Government of India Act, 1833. The relevant part of GGO No. 179 dated 12.9.1836 is extracted below: -
6. Conditions of occupancy : No ground will be granted except on the following conditions, which are to be subscribed by every grantee as well as by those to whom his grant may subsequently be transferred:-
1. Resumption of land. The Government to retain the power of resumption at any time on giving one months' notice and paying the value of such buildings as may have been authorised to be erected.
2. Land belongs to Government. Land cannot be sold by grantee.
Transfer of houses between military officers.
The ground, being in every case the property of Government, cannot be sold by the grantee; but houses or other property thereon situated may be transferred by one military or Medical Officer to another without restriction except in the case of reliefs, when, if required, the terms of sale or transfer are to be adjusted by a Committee of Arbitration.
3. Arbitration in case of transfer on relief. Transfer of houses to civilian. If the ground has been built upon, the buildings are not to be disposed of to any person, of whatever description, who does not belong to the army, until the consent of the Officer Commanding the Station shall have been previously obtained under his hand.
4. Transfer to native. When it is proposed, with the consent of the General Officer, to transfer possession to a native, should the value of the house, buildings or property to be so transferred exceed Rs. 5000, the sale must not be effected until the sanction of Government shall have been obtained through His Excellency the Commander-in-Chief.
7. Houses claimable for purchase or hire at option of owner. Committee of Arbitration. All houses in a military cantonment being the property of persons not belonging to the army, which may be deemed by the Commanding Officer of the station suitable, from their locality, for the accommodation of Officers, shall be claimable for purchase or for hire at the option of the owner, in the former case at a valuation, and in the latter at a rent, to be fixed, in case of the parties disagreeing by a Committee of Arbitration constituted as follows:
Note :- In this clause the following words were substituted by G.. by the President of the council of India in Council No. 700 dated 3rd July 1855 for the words "being the property of persons not belonging to the army".
"not being occupied by a person belonging to the army on duty, at the station, or whose residence therein may be authorised by Government".
"7. Power to require owner to let house to Military Officer. The owner of any house in a military cantonment not occupied by person belonging of his agent shall not be resident within the cantonment or in its vicinity, shall be taken to mean an official notification dated 14 day before the day on which the committee is to assemble, it will be duty of the commanding officer to nominate a member of the committee shall thereupon proceed to arbitration".
Note - "One month" was substituted for "14 days in paragraph 2 above, by G.O. By the G..-in-c., No. 174, dated 5th August, 1840."
6. The nature of rights which were conferred to a grantee under GGO No. 179 was considered by the Supreme Court in Chief Executive Officer vs. Surendra Kumar Vakil & Others8. It has been held that thereunder, the ownership remains with the Government and the land cannot be sold by a grantee. The original grantee is given right to build permanent structure over the land and which only can be transferred by him. Where the transfer is to a military personnel, there was no restriction, but in case of a transfer to a civilian, a prior permission was required from the Officer Commanding the Station. The Supreme Court also referred to the book Cantonment Laws by J.P. Mittal, dealing with the subject. It has been noted that the ''Old Grant', was a species of land tenure. The primary object of the grant was to meet the need of residential accommodation of the military officers near their place of duty. In due course of time, the civilians were also encouraged to build bungalows over government lands, subject to restriction that they will not have any right in the land and it would be subject to resumption anytime.
7. In Usha Kapoor and others (supra), the Supreme Court had held that the grantee of rights under GGO No. 179 enjoys only possessory or occupancy rights in respect of the structure built by him. The terms of the grant is statutory in nature. The title in the land continues to vest in the Union of India and therefore, it continues to enjoy the power of resumption. The observations are as follows: -
"13. The decision of this Court in Chief Executive Officer vs. Surendra Kumar Vakil also considered the legal effect of the entries in the G.L.R. which Register is required to be maintained by the Military Estates Officer of the Cantonment under the provisions of the Cantonment Land Administrative Rules framed in exercise of power under Section 280 of the Cantonment Act, 1924. The General Land Register maintained by the Cantonment Board under the Cantonment Act and the Rules framed thereunder is a public document and the entries therein are conclusive evidence of title. This is the view expressed by this Court in two other decisions, namely, Union of India vs. Ibrahim Uddin & Anr. and Union of India & Ors. vs. Kamla Verma, apart from the decision in Chief Executive Officer v. Surendra Kumar Vakil. The reference to the nature of the holding i.e. old grant and the nature of rights of the holder i.e. occupancy rights, in the G.L.R. extracted above, in our considered view, is conclusive of the fact that the land is covered by an old grant and the rights enjoyed by the appellants were mere possessory or occupancy rights in respect of the structures thereon. The terms of such grants being statutory and the same having vested title of the land in the UOI with the power of resumption, the impugned notices dated 14th December, 2001 and 5th February, 2002 must be acknowledged to be legal and valid."
8. The consistent opinion of the Supreme Court while interpreting GGO No. 179 is that title in the land continues to vest in Union of India. The grantee only enjoys the occupancy rights under the license. He is permitted to raise permanent structure, which alone can be transferred by him and not the land. The Union of India retains unfettered right of resumption any time by giving one month notice.
Effect of Section 60 of the Easement Act
9. We now proceed to examine the second aspect, i.e. what would be the effect of the petitioner having raised permanent structure over land in respect of which license was granted. Indisputably the structure built was a permanent structure. Section 60 of the Easement Act reads as follows: -
"60. License when revocable.-- A license may be revoked by the grantor, unless--
(a) it is coupled with a transfer of property and such transfer is in force;
(b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution."
10. We have already adverted to the relevant Clause of GGO No. 179 and we have noted that the grantor while granting right to the grantee to raise permanent structure, had retained with itself the right of resumption. The grantee had specifically agreed to the aforesaid term of the Grant while accepting the grant. It had brought into existence a binding contract between the parties, apart from the statutory force that inheres in the GGO No. 179. In Mirza Mohammad Hasan vs. Buddhu9, it was held that there is no bar under any law which precludes a party from surrendering land, although there may be a structure standing thereon. This principle has been relied upon by this Court in Ganga Sahai (supra). In that case, the defendant had executed a kirayanama under which he was entitled to raise constructions. He had, however, specifically agreed that whenever the landlord would require the land, he would vacate it. The question relating to extension of benefit of Section 60 of the Act to the defendant was decided by holding that he having agreed to a term contrary to the provisions of Section 60 of the Easement Act cannot claim benefit of the same. While taking the said view, the learned Judge has placed reliance on two previous decisions of this Court in Mirza Mohammad Hasan (supra) and Nabi Mahomed vs. Bhagwat Prasad Shukul10.The relevant paragraph from the judgment is extracted below: -
"Section 60, Easements Act, was pleaded by the defendant throughout, and I may concede for the defendant that the construction which has been built upon the premises is a work of a permanent character within the meaning of that expression in Section 60, Easement Act. I agree, however, with Mohammad Ismail, J. in what he said in AIR 1938 All. 32 at page 34:
"Again, I have not been referred to any provision of law which precludes a party from binding itself to surrender land, although there may be a construction of a permanent character standing thereon."
In 1931 A.L.J. 649 a Bench of this Court, of which I was a member said :
"In the absence of any express term to the contrary, the case would come under Section 60, Easements Act, under which a license cannot be revoked when the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution."
It was clearly recognized in this case that a contract to the contrary would disentitle the licensee from deriving advantage conferred by section 60, Easements Act, and in the present case, the defendant has, in terms expressed in unambiguous language, given out that the landlord would have the right to get the site vacated whenever he so chose."
11. Again, in Chotey Lal vs. Mt. Durga Bai11, wherein somewhat similar situation arose, it was held by this Court that the benefit of Section 60 of the Easement Act would not be available to a grantee who has entered the grant knowing well that after her death her heirs would not be left with any right. In the said case, one Mussamat Kallo was the maid servant of the plaintiff. She was permitted to construct a house on the disputed site on the condition that the right of possession was for her lifetime only and upon her death the plaintiff would be entitled to the possession of the site. After the death of Mussamat Kallo, her heirs resisted handing over of possession to the plaintiff, compelling him to file a suit for ejectment. In the aforesaid backdrop, the law as noted above was laid down. The decree of eviction passed by the trial court was upheld. It has been held that the grantee would be bound by the undertaking given by him at the time of accepting the license and her heirs would be precluded from claiming benefit of Section 60 of the Easement Act.
12. We have already noted the terms of the grant in favour of the predecessor in title of the petitioner. Clause 6 thereof specifically provided that the Government would retain the power of resumption and the said power could be exercised any time on giving one month notice. The power of resumption would not get diluted in any manner by the fact that the grantee was given right to raise permanent structure. The petitioner therefore is bound by the stipulations contained in this behalf in GGO No. 179 and cannot derive any advantage out of Section 60 of the Easement Act. The argument is devoid of substance and hence rejected.
Whether payment of compensation alongwith notice necessary
13. Coming to the issue as to whether the resumption notice would be rendered illegal as the respondents have not offered compensation along with the impugned notice, the reliance placed by learned counsel for the petitioner on the judgment in case of Senior Superintendent, R.M.S. Cochin (supra), would be of no help. In the said case, the Supreme Court was interpreting a statutory provision relating to termination of service of a government servant. Thereunder, the Government was given power to terminate service at any time by giving one month notice. In case the Government decides to terminate the service forthwith it had to pay a sum equivalent to one month pay plus allowances in lieu of the notice. While interpreting the said clause, it was held that payment of one month pay plus allowances, was a condition for termination of service forthwith and the said requirement could not be dispensed with. In the said judgment itself, another statutory provision, although covering a similar situation but differently worded, was also considered. It was held that having regard to the language of the said statutory provision, payment in lieu of notice was not a condition precedent for valid termination of the service although the government servant would be entitled to the same in due course.
14. In fact, we may not have to take assistance of the precedents rendered by the Supreme Court on service jurisprudence, as the issue in hand is directly covered by judgment of Supreme Court in Union of India vs. Harish Chand Anand (supra) wherein the Supreme Court had decided exactly the same issue in context of GGO No. 179 dated 12.9.1836. It has been held that the determination of the amount or value of building is a ministerial act and payment thereof is the resultant consequence. It is not a condition precedent for serving a valid notice of resumption. The law laid down in this regard in paragraph 6 of the Law Report is extracted below: -
"6. It would appear that detailed instructions in that behalf were made in the Standing Order No.241 which was produced before the Division Bench of the High Court of Allahabad in which Military Engineer was instructed to evaluate the value of the building which was resumed by the Government for payment of the amount to the erstwhile licensee. We are not concerned in this appeal as to the method of valuation. Suffice it to state that the Order No.241 though does not contemplate of issuing prior notice to erstwhile licensee whose licence has been determined under Clause I of the Grant, before determination of the actual amount, the erstwhile grantee is entitled to a notice, so that the grantee would be at liberty to place before the competent authority all relevant material for determining the value of the building and for payment of the amount thereof. It is seen that it is not a condition precedent to determine, at the first instance, the compensation after giving an opportunity; make payment thereof and then to resume the property. What is a condition precedent is issuance of one month's notice and on expiry thereof the Government is entitled to resume the land. The amount is to be determined as required under the relevant provisions after giving opportunity and which could be done thereafter. After all, the property would be resumed for public use and determination of value of the building erected is a ministerial act and payment thereof is the resultant consequence. This process would take some time and if the reasoning of the High Court of Allahabad is given effect to, it would defeat the public purpose. The view of the Delhi High Court is consistent with the scheme and appears to be pragmatic and realistic. The High Court, therefore, was not right in its conclusion that it is a condition precedent to determine the amount of the value of the building in the first instance and payment thereof before resumption of the property."
(emphasis supplied by us)
15. It is thus clear that the determination of value of the construction and its payment was not a condition precedent for resuming the land and consequently the resumption notices cannot be said to be invalid on the aforesaid ground.
Plea of misuse of power of resumption
16. It was urged that the respondents had, in like manner, got vacated several lands, but which are still lying unutilized. However, we find no force in the contention. So far as the disputed lands are concerned, it is an admitted fact that Government offices are already being run therefrom. It is also not disputed that the respondents had taken possession of the lands in pursuance of impugned notices of resumption and that they continue to run their offices.
Conclusion
17. GGO No.179 was a statutory exercise and an existing law. The rights conferred thereunder to a grantee was a species of land tenure where the grantee was only conferred with possessory rights over the land. He was entitled to build permanent structure, which he could also transfer subject to certain restrictions, but title in the land continued to vest in the Union of India, with unfettered right to resume any time for public purpose by serving a month's notice. The payment of compensation was not a condition precedent for valid resumption of land. It was a ministerial act and payment, a resultant consequence.
18. As a result of the aforesaid discussion, there is no merit in the petitions. The same are accordingly dismissed, but without any order as to costs.
(Rajendra Kumar-IV, J.) (Manoj Kumar Gupta, J.) Order Date :- 30.01.2023 Jaideep/-