JUDGMENT B.S. Chauhan, J.
1. This petition has been filed for quashing the notices dated 14.12.2001 and 05.02.2001 and the Order No. 179 dated 12.09.1836 of Governor General-in-Council.
2. The notice dated 14th December, 2001 has been issued by the Under Secretary to the Government of India for and on behalf of the President of India and mentions that the land comprising site of Bungalow No.l, Elgin Road, bearing General Land Register (hereinafter called 'G.L.R.') Survey No. 214, New Cantonment, Allahabad measuring 3.20 acres (hereinafter called the 'premises in dispute') belongs to the President of India and is held by the petitioners on Old Grant terms as set out in the Governor General-in-Council's Order No. 179 dated 12.09.1836 under which the Government is entitled to resume the land and that the Government has decided to resume the said government land and obtain possession of the structures -standing thereon upon payment of compensation for the authorised structures as per the terms of the Grant. The petitioners have been asked to deliver possession of the aforesaid land together with structures, standing thereon failing which the Government would resume the possession. The notice dated 5th February, 2002 has been issued by the Defence Estates Officer to the occupiers of the outhouse of the said premises and a copy of the aforesaid notice dated 14th December, 2001 has also been enclosed and they have also been asked to handover the aforesaid land together with structures.
3. The petitioners have placed on record the Deed dated 1st September, 1943 executed between Kirk Session of the Church of Scotland at Allahabad and Smt. Mohini Devi Kapoor. A perusal of the said Deed indicates that on or about 22nd day of March, 1873, a piece of land situate in New Cantonment at Allahabad was granted to the Reverend J. Williamson Chaplain of the Church of Scotland as a separate estate for the purpose of erecting thereon a "Manse", The members of the Church in the year 1874 erected and built on the said piece of land, a lower roomed messuage tenement/dwelling house known as "Manse" together with outhouses, stables and coach houses. By a Deed of Transfer dated 07.11.1901, Mr. Henry Charles King and Wilkie Adolphus Mc Reddie, Elders of St. Andrews Church of the Scotland at Allahabad transferred to the Kirk Session at Allahabad all that lower roomed messuage tenement/dwelling house known as "Manse" and the Hall known as "Saint Andrews Hall" situate in the Church Compound and the organ and accessories in Saint Andrews Church at Allahabad and all the furniture in or about the premises. Thereafter, the Kirk Session agreed to sell, transfer and convey to the purchaser (Smt. Mohini Devi Kapoor), the said lowered roomed messuage tenement known as "Manse" but not Saint Andrews Haul nor the organ or furniture or accessories referred to in the deed dated 7th November, 1901. The Governor General-in-Council through the Commander-in-Chief sanctioned the sale and transfer to the purchaser as communicated by letter dated 30th June, 1943 from the Military Estate Officer, Allahabad Circle, Allahabad. The deed further recites that in pursuance of the aforesaid agreement and in consideration for a sum of Rs. 22,000/-, the Vendor (Kirk Session) conveyed, sold, assigned to the purchaser (Smt. Mohini Devi Kapoor) all that lower roomed messuage tenement or dwelling house shown as "The Masne" standing erected and built on the said site free from all encumbrances subject to the Laws, Rules and Regulations of the Military Cantonment and the conditions contained in the application to Government for transfer.
4. Shri B.D. Mandhyan, learned Senior Counsel appearing for the petitioners has submitted that under the Deed dated 1st September, 1943, "The Manse" with all appurtenances had been transferred to the petitioners free from all encumbrances, charges or liens and, therefore, in such circumstances, the notice dated 14th December, 2001 which has been issued to the petitioners is bad in law and under no circumstances, can it be said that the premises in dispute is held by the petitioners as an Old Grant as set out in the Governor General-in-Council's Order No. 179 dated 12th September, 1836, under which the Government could resume the said land. It has further been submitted by Shri Mandhyan that the onus to prove that it was on Old Grant, lies upon the, respondents by producing the records relating to the period prior to 1901 Sale Deed and that mere admission on the part of the petitioners or their predecessor's-in-interest that it had been an Old Grant under the provisions of the Governor General-in-Council's order dated 12th September, 1836 is not enough to hold that it was a case of Old Grant, thus, filing of the application for seeking permission to transfer by Smt. Mohini Devi Kapoor, in whose favour the Sale Deed dated 1st September, 1943 had been executed, in which it was admitted that it was an Old Grant and was governed by the Governor General-in-Council's Order dated 12th September, 1836, therefore, remains inconsequential. It has further been submitted by Shri Mandhyan that whatever may be the entries in the records of the Cantonment Board, that cannot be taken note of even though they were in the knowledge of the petitioners/their predecessors-in-interest and the said entries had been admitted to be true in the application dated 16.06.1959 seeking permission for transfer. He, therefore, submitted that the notice for resumption which has been impugned in the present petition is liable to be quashed.
5. On the contrary, Shri Mohd. Isha Khan, learned Counsel appearing for the respondents has opposed the petition contending that the entries in the record of the Cantonment Board have been made in exercise of the official duty and the same are admissible under the provisions of Section 35 of the Evidence Act. He further submitted that the said entries were in the knowledge of the petitioners/their predecessors-in-interest but they never made any protest but rather admitted them throughout and, therefore, it is not open to the petitioners to now allege that it was not a case of Old Grant or the case was not covered by the Governor General-in-Council's Order dated 12th September, 1836. The land had never been transferred to the predecessors-in-interest of the petitioners and only the superstructures were transferred. So, in view of the provisions of Clause (6) in the Order dated 12th September, 1836, the resumption could be made any time after giving one month's notice to the occupier thereof. The nature of right of the petitioners/their predecessors-in-interest had been merely of possessory nature without conferring any right or title in the land. The Sale Deed dated 1st September, 1943 makes it crystal clear that what had been transferred to the transferee was only the superstructures and nothing beyond it and, therefore, the petition is devoid of any merit and should be dismissed.
6. We have considered the rival submissions made by learned Counsel for the parties and perused the record.
7. Relevant part of Order No. 179 of the Governor General-in-Council dated 12th September, 1836 reads as under:-
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 ;
(i) Resumption of Land - The Government to retain the power of resumption, at any time of giving one month's notice and paying the value of such buildings as may have been authorised to be erected;
(2)...;
(3)...; and (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, building or property to be so transferred exceed Rs. 5,000/-, the sale must not be effected until the sanction of Government shall have been obtained through His Excellency, the Commander-in-Chief.
8. The Sale Deed dated 1st September, 1943 had been executed after taking sanction from the Governor General-in-Council, as required under Clause 6 (4) of Order No. 179 dated 12.09.1936. Therefore, it is evident from the conduct of the predecessors-in-interest of the petitioners that the order dated 12th September, 1836 was very much applicable to the land in dispute. Immediately, after the Sale Deed was executed on 01.09.1943, the mutation took place on 23rd September, 1943 (Annexure CA-3) wherein, in order to give effect to the Sale Deed dated 01.09.1943, amendments were made in the General Land Register (G.L.R.) and the extract of the said entries read as under:-
9. It may also be pertinent to mention that the predecessors-in-interest of the petitioners Smt. Mohini Devi Kapoor had sought sanction for transfer of the land in dispute in favour of Ms. Shakuntala Nair on 16.06.1959. The particulars given by the applicant clearly reveal that the land had been given as an Old Grant and particulars of the land as given in the G.L.R. and its plan were admitted to be correct.
10. Not only that, on demise of Holder of Occupancy Right, Smt. Mohini Devi Kapoor, the amendments were further made in the G.L.R., on the basis of the Will dated 22.07.1982 executed by her. Relevant part of the G.L.R. reads as under:-
13. In Nagubai Ammal and Ors. v. B. Shama Rao and Ors. , the Apex Court had taken the same view holding that the statements admitting the factual position must be given full effect and while deciding the same, the Hon'ble Supreme Court placed reliance on the decision in Slatterie v. Pooley (1840) 6 M & W 664, wherein the Court had observed that "what a party must admit to be true, may reasonably presumed to be so."
14. In Chitra Kumari v. Union of India and Ors. , the Apex Court while dealing with the case of resumption under the same law, held as under:-
It would be travesty of justice and would amount to permitting parties to misuse laws' delays if at this stage they are permitted to change their stand and take contention which are contrary to what has been admitted position all- these years.
15. Therefore, admission is a relevant evidence if not explained away.
16. Therefore, in view of the above, we are of the considered opinion that the case is required to be considered on the admitted facts.
17. The onus lies on the petitioners to prove that it was not an Old Grant. In order to render a document admissible under Section 35 of the Evidence Act, three conditions must be satisfied; firstly, entry that is relied on must be one in a public or official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law (Vide Mohd. Ikram Hussain v. State of U.P. and Ors. ; Birad Mal Singhvi v. Anand Purohit AIR 1988 SC 7 1796; and Updesh Kumar and Ors. v. Prithvi Singh and Ors. ).
18. In the instant case, the entries made in the G.L.R. are very old and had always been in the knowledge of the petitioners/their predecessors-in-interest. The said entries definitely had been made in the official record of the Allahabad Cantonment Board and have been recorded by the person concerned in performance of his official duty. In such a fact situation, it is difficult for us to persuade ourselves to accept the submissions advanced on behalf of the petitioners that the said entries made in G.L.R. are of no consequence and, thus, cannot be relied upon. The Court can presume the fact that entries in the G.L.R. have been made in accordance with law as required under Section 114 III.(e) of the Evidence Act. Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamount to proof. This presumption is based on legal maxim "Omnia praesumuntur rite esse acta" i.e. all acts are presumed to have rightly and regularly done (Vide Narayan Govind Govate v. State of Maharastra and Ors. ; Karewwa and Ors. v. Hussensab Khansaheb Wajantri and Ors. ; and Engineering Kamgar Union v. Electro Steels Castings Ltd. and Anr. ).
19. We do not find any force in the submission made by Shri Mandhyan that the respondent-authorities had to produce the relevant record to prove that it had been a case of old grant. To fortify the submission, reliance has been placed upon a judgment of the Hon'ble Supreme Court in Union of India v. Purushotam Dass Tandon and Anr. 1986 (Supp) SCC 720, where such an observation had been made by the Apex Court. The facts of the said case are quite distinguishable as that case had originated from the proceeding of the civil suit and there was an opportunity to lead evidence before the Court. More so, there had been no entries of the GLR as existed in the instant case. The Hon'ble Supreme Court in Chief Executive Officer and Ors. v. Surendra Kumar Vakil and Ors. repelled a similar contention by making a distinction as under:-
The regulations as well as the General Land Registers, on the other hand, which are old documents maintained in the regular course, and coming from proper custody, clearly indicate that the land is held on old grant basis. That is, therefore, not a case where the appellants had not produced any evidence in support of their contention that the land in the Cantonment area was held on old grant basis by occupier.
20. Therefore, entries made in the official record ante litem mortem have to be given due weight age.
21. The issue involved herein is no more res integra. A Division Bench of Delhi High Court in Raj Singh v. Union of India and Ors. , considered a similar case, wherein the Court held that the said Governor General-in-Council's Order dated 12th September, 1836 was having the statutory force and was still in force in spite of several changes in law made from time to time. By Sale Deed in respect of such a land, transferee merely gets the possessory rights and he can be evicted merely by giving one month's notice. The Court, placing reliance upon the decision of the Privy Council in Secretary of State v. Sri Narain Khanna AIR 1942 PC 35, further held that once the resumption takes place, the person having the possessory rights ceased to have any right to keep the buildings on the land. The grantee has a right only to remove the building before resumption as he is merely an occupier without any right or interest in the land and right of resumption can be exercised by the authorities at their pleasure. The grantee could not prevent the Government from resuming the land for the reason that the right of resumption had been reserved by the Government while making the Grant itself.
22. A Full Bench of this Court in Mohan Agarwal v. Union of India and Ors. AIR 1979 All 170, considered the issue and status of the Order dated 12.09.1836 taking into account the subsequent changes in law including the Government of India Acts promulgated from time to time. The Court held that the said Order has statutory force and it remains applicable in spite of various changes in the Government of India Acts made from time to time. The Full Bench approved the judgment of the Delhi High Court in Raj Singh (supra) and followed the same.
23. In Shital Prasad Jain v. Union of India and Ors., while deciding Writ Petition No. 388 of 1971, vide judgment and order dated 5th March, 1991, a Division Bench of Delhi High Court came to the conclusion that the Governor General-in-Council's Order No. 179 dated 12th September, 1836 has statutory force and remained an existing law/law in force.
24. In Union of India and Ors. v. Harish Chand Anand, 1995 (Supp. 4) SCC 113, the Hon'ble Apex Court rejected the contention that making payment of compensation was the condition precedent for resumption. The Court held as under:-
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.
25. Subsequently, an application to recall/review of the said judgment was filed and the matter was reheard and decided by judgment dated 17.01.2002. The Hon'ble Apex Court considered the various terms of the said Order dated 12.09.1836 including as to whether the land can be resumed prior to making payment of compensation and held that there was no bar for determining the amount of compensation at a stage subsequent to resumption. The process of resumption would not stand vitiated merely because the compensation had not been paid prior to resumption. While deciding the said case, the Hon'ble Apex Court placed reliance upon its earlier judgment in Smt. Chitra Kumari (supra).
26. In Chief Executive Officer v. Surendra Kumar Vakeel and Ors., (Supra), the Hon'ble Supreme Court again approved the judgment of the Delhi High Court in Raj Singh (supra) and held that in such a situation, the occupier of the land under the said Order dated 12.09.1836 remains like a licensee under the Grant and under the law, it was revocable at the pleasure of the Licensor. The Hon'ble Apex Court further explained the meaning of 'grant' of land in Cantonment area' under the said Order dated 12.09.1836 placing reliance on Books on the issue, observing as under:-
With the lapse of time civilians were also encouraged to build bungalows on the Govt. land in the cantonment on the same condition of resumption of the ground as given about and with a further condition that they may be required to rent or sell the same to any military officer in case of disagreement about the rent or the sale price the same was to be fixed by a committee of arbitration. These tenures under which permission was granted to occupy Govt. land in the cantonments for construction of bungalow came to be known as 'old grant'. Such permission was given mostly on payment of no rent. This is how a large number of bungalows in the cantonment all over India came in the hands of civilians.
Under Section 280 of the Cantonments Act, 1924, power was given to the Governor General in Council to make rules for the purpose of carrying out the objects of the Cantonments Act, 1924. In particular, these rules could provide for : (a) 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 : (b) The authority by which such permission may be granted and the conditions to be annexed to the grant of any such permission. In the exercise of this, power, the Cantonment Land Administration Rules, 1925 have been framed. These Rules as amended upto 21.12.1935 are produced before us. Under Rule 3 of these Cantonment Land Administration Rules the Military Estate Officer of the Cantonment shall prepare and maintain a general land register of all land in the Cantonment in the form prescribed in schedule I and no addition or alteration thereto shall be made except as provided therein. Under Rule 4 of the Rules in force in 1936, the Military Estate Officer was required to maintain a Register of Mutation in which every transfer of right or interest in land in the Cantonment which necessitated an alteration of the entries in any of the columns of the general land register, was entered. Under Rule 5 as then in force, every fifth year the general land register shall be rewritten so as to include all changes in the rights or interest in land and fresh register of mutation shall be opened simultaneously. Under Rule 6, for the purpose of the general land register, land in the Cantonment is divided into class A land class B land and class C land. Rules 7 and 8 deal with these different categories of land....
Such tenures were given in accordance with the terms of the Order No. 179 issued by the Governor General in Council in the year 1936. These require that the ownership of land shall remain with the Government and the land cannot be sold by the grantee. Only the house or other property thereon may be transferred. Such transfers would require consent of the officer commanding the station when the transfer is to a person not belonging to the army. In respect of old grant tenure, therefore, the Government retains the right of resumption of land.
27. Review petition against the aforesaid judgment and order was dismissed (Vide Surendra Kumar Vakeel v. Chief Executive Officer and Ors. AIR 2004 SC 3088).
28. In Civil Appeal No. 3525 of 1983, Union of India v. Tek Chand, decided on 05.01.1999, the Hon'ble Apex Court again approved the judgment of Delhi High Court in Raj Singh (supra) and disapproved the law laid down by the Himachal Pradesh High Court in Durga Dass Sud v. Union of India AIR 1972 HP 26, wherein a contrary view had been taken.
29. In Civil Appeal No. 180-183 of 2002, Union of India v. Suman Rajvadi, decided on 12.11.2002, the Hon'ble Apex Court reiterated the law laid down in Harish Chand Anand, Tek Chand and Smt. Chitra Kumari (supra) and held that predetermination of payment of compensation is not a condition precedent for exercise of power of resumption, as compensation can always be paid subsequently after resumption of the land under the Old Grant.
30. Shri Mandhyan, learned Senior Counsel appearing for the petitioners has drawn our attention to two supplementary affidavits filed recently, showing certain correspondence between the petitioners and the Defence Authorities and suggested that impugned notices be quashed in view thereof.
31. We have already answered the principal issue of resumption against the petitioners and have upheld the power of resumption and exercise thereof which is supported by the decisions referred to hreinabove. In view of this, it is not necessary to delineate on the factual issues any further.
32. In view of the above, law can be summarised that the Order of Governor General-in-Council dated 12.09.1936 has statutory force and is still valid in spite of several changes in law and the provisions of the said Order governed the present case as is evident from the Transfer Deed dated 01.09.1943, subsequent changes made in the G.L.Rs from time to time and the admission by the petitioners/predecessors-in-interest. Transfer Deed dated 01.09.1943 had been extecuted after sanction of the Government through the Commander-in-Chief as required in Clause 6(4) of the Order dated 12.09.1836. The nature of the right of the petitioners cannot be held to be superior than that of a licensee and the petitioners can claim only the superstructures erected on the premises in dispute and not the land itself. Resumption of the premises is at the pleasure of the respondent authorities. The instant case is squarely covered by the aforesaid referred judgments of the Hon'ble Apex Court and Full Bench of this Court.
33. Thus, no fault can be found with the impugned notices nor the order dated 12.09.1836 is liable to be quashed. The petition lacks merit and is accordingly dismissed. However, respondents are directed to make the payment of compensation in accordance with law expeditiously.