1. Heard Sri Prahalad Khare, learned counsel for petitioner, Sri M.I. Khan, learned counsel for respondents and perused the record.
2. Aggrieved by order dated 30th July, 2001, passed by Estate Officer, Meerut Cantt in purported exercise of power under Section 5-B(1) of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as 'Act, 1971'), and order dated 01.02.2003, passed by Appellate Authority/Additional District Judge, Court No. 13, Meerut, dismissing appeal, the petitioner has come to this Court by means of present writ petition filed under Article 226 of the Constitution of India, seeking, writ of Certiorari for quashing aforesaid two orders and also has sought a mandamus, commanding respondents not to interfere in her possession over the property in dispute.
3. Dispute relates to House No. 254/256, Dayanand Bazar, Naya Bazar, Sadar, Meerut Cantt, Meerut. It is said that aforesaid house was transferred by sale, by one Hazi Ashiq Ilahi to Smt. Basanti Devi, (mother-in-law of petitioner), vide sale deed dated 15.07.1940, duly registered under the Registration Act, 1908. Therein Sri Ilahi claimed aforesaid house, to be a free hold property, and mentioned this fact in the sale deed. Smt. Basanti Devi executed a will dated 30th June, 1997 in favour of petitioner. Hence, after her (Smt. Basanti Devi) death, petitioner succeeded the aforesaid house and got her name mutated in the record of local body.
4. Petitioner submitted a plan for demolition of old construction and re-construction of new one with certain extensions. It was sanctioned by Cantonment Board and communicated to petitioner vide letter dated 17th June, 1999. After construction was completed, petitioner received two separate notices, under Sections 5-A and 5-B of Act, 1971, dated 6th July, 2000, alleging that constructions raised by petitioner are unauthorized and without prior permission of competent authority, inasmuch as the land being, a B-3 land, under the Old Grant Terms, held by the Government of India, petitioner had only occupancy rights and constructions thereon could have been made only with prior permission of competent authority. Petitioner submitted her reply stating that she had all rights over the property in dispute; Government of India has no title; Act, 1971 has no application; and notices are illegal since, construction was raised after the plan was sanctioned by Cantonment Board. Thereafter, Estate Officer passed order dated 03.03.2001, directing demolition of constructions raised by petitioner over the land in dispute, whereagatinst, petitioner preferred an appeal under Section 9 of Act 1971, but the same has also been dismissed by appellate Court.
5. Before this Court, Counsel for petitioner argued, basically, the question of applicability of Act, 1971. In the present case, it is contended that respondents have proceeded under the Act 1971 by observing that land in dispute is under Old Grant Terms and is owned by the Government of India, governed by the provisions of Cantonment Act, 1924 (hereinafter referred to as 'Act, 1924') and that being so, proceedings under Act, 1971 are not only illegal but without jurisdiction, inasmuch as, Act, 1924, contains separate set of provisions in respect of property under jurisdiction of Cantonment Board and therefore, proceedings under Act 1971 are wholly without jurisdiction.
6. It is contended that land in dispute actually belongs to petitioner and is not owned by Government of India. The premises, as per the respondents, that it is part of land owned by Government of India, is patently false and incorrect. No evidence is led before the Courts by the authorities below to show that the land is vested in Government of India. It is true that it lies in Cantonment area, therefore, for the purposes of its development i.e. raising constructions etc. regulatory measures under the provisions of Act, 1924 may apply, but, the land in dispute do not satisfy the definition of "Public Premises" under the Act, 1971, and therefore, proceedings under the Act, 1971, are wholly without jurisdiction.
7. Substantial question therefore needs to be considered by this Court, is whether Act 1971 has rightly and validly been invoked by respondents or not?
8. Respondents no. 2 and 3 have contested the matter by filing counter affidavit, sworn by one Chaudhary Mahendra Singh, Grade Clerk, Cantonment Board, Meerut. It is pleaded that Governor General in Council issued an order no. 179, dated 30th September, 1836 regarding Bengal Presidency, so as to take care about accommodation for military officers near place of duty. Thereafter, Cantonment Act, 1924 was enacted and in exercise of powers therein, Cantonment Land Administration Rules, 1925 (it was replaced by new set of Rules namely Cantonment Land Administratin Rules, 1947) were also enacted by Governor General in Council. Under Rule 3 thereof, the Meerut Estate Officer was supposed to prepare and maintain General Land Register of all land in Cantonment in the form prescribed in SC-I. Under Rule 4 thereof, Cantonment land is classified in three categories namely, Class A, B and C. There is some further inter-se classification like Class A-1 and Class A-2. Similarly Class B-1, B-2, B-3 and B-4 and then Class ''C'. Land in dispute is situated inside the notified civil area and in the General Land Register, vide Survey no. 357/252, it is registered as Class B-3 land, on which the Government of India is shown as landlord and owner of the land in question. Name of petitioner has been recorded as holder of occupancy rights in column 9 thereof. Under rule 6 of Rule 1925, Class B-3 land has been defined as under :-
"Class B-3 land which is held by any private person under the provisions of these Rules, over which is held or may be presumed to be held under the provisions of the Cantonment Code of 1899 or 1912 or under any Executive Orders previously in force subject to conditions under which the Central Government reserve or have reserved to themselves proprietary right in the soil."
9. By notification dated 21st July, 1978, published in Gazette of India on 5th August, 1978, issued under Section 3 of Act, 1971, Government of India has appointed "Cantonment Executive Officer" as "Estate Officer" for the purpose of Act, 1971, who can exercise and perform all the powers under the said Act, within the local limits of its respective jurisdiction, in respect of public premises.
10. Petitioner submitted building plan for re-erection of house no. 254/256 for residential purposes which was sanctioned but after demolition, she made constructions, different to that, what was sanctioned in plan. New constructions made by constructing shops etc., is for commercial purposes, and not for residential purpose. It is in these circumstances, notices under Sections 5-A and 5-B were issued to petitioner and thereafter impugned orders were passed.
11. It was submitted on behalf of respondents that there is no bar in taking action under Section 5-B of Act, 1971, and proceedings initiated by the respondents are perfectly valid and in accordance with law.
12. The term "Public Premises" has been defined under Section 2(e) of the Act, 1971. Under Section 2(e)(2)(vii), any premises belong, or taken on lease, or requisitioned,by or on behalf of Cantonment Board, is included therein. It is worthy to mention that Section 2(e) was amended by substitution of Act No. 61 of 1980 and Clause VIII was inserted by Act No. 61 of 1980 with effect from 20.12.1980. Section 2(e) which defines term "Public Premises", reads as under :-
"2(e) "public premises means-
(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1980), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of,-
(i) any company as defined in section 3 of the Companies Act, 1956 (1 of 1956), in which not less than fifty-one per cent. of the paid up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first-mentioned company;
(ii) any corporation (not being a company as defined in section 3 of the Companies Act, 1956 (1 of 1956) or a local authority established by or under a Central Act and owned or controlled by the Central Government;
(iii) any University established or incorporated by any Central Act.
(iv) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961);
13. In order to attract provisions of Act, 1971, the premises in question must by a "Public Premises", else the provisions of Act, 1971 would not apply. Whenever, there is serious dispute about claim set up by the competent authority, under Act, 1971, that the premises is a "Public Premises", but is disputed by occupant, first of all, this question has to be decided whether the land satisfies definition of "Public Premises" under Section 2(e) or not, since this is a jurisdictional issue. There is no presumption that any land which falls within the territorial jurisdiction of Cantonment Board, would necessarily be a land vested in Government of India or is taken on lease or requisitioned by it so as to satisfy the definition of "Public Premises" under the Act, 1971. If the occupant raises serious dispute and claims the land to be private property, onus lies upon Government of India or the Body claiming the land that belongs to it to prove that land is a "Public Premises" as defined under Section 2(e) of Act, 1971. Unless the land is a 'Public Premises, no proceedings, can be initiated under Sections 5-A and 5-B of Act, 1971.
14. Now it would also be appropriate to have a perusal of Sections 5-A and 5-B, as they are on the statute book and read as under :-
"5-A. Power to remove unauthorised constructions, etc.-(1) No person shall-
(a) erect or place or raise any building or [any movable or immovable structure or fixture].
(b) display or spread any goods,
(c) bring or keep any cattle or other animal, on or, against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises.
(2) Where any building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of the provisions of sub-section (1), the Estate Officer may serve upon the person erecting such building or other structure or fixture, a notice requiring him either to remove, or to show cause, why he shall not remove such building or other structure or fixture from the public premises within such period, not being less than seven days, as he may specify in the notice; and on the omission or refusal of such person either to show cause, or to remove such building or other structure or fixture from the public premises, or where the cause shown is not, in the opinion of the Estate Officer, sufficient, the Estate Officer may, by order, remove or cause to be removed the building or other structure or fixture from the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue.
(3) Where any movable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept on any public premises, in contravention of the provisions of sub-section (1) by any person, the Estate Officer may, by order remove or cause to be removed without notice, such structure, fixture, goods, cattle or other animal, as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue].
5-B. Order of demolition of unauthorised construction.- (1) Where the erection of any building or execution of any work has been commenced, or is being carried on or has been completed, on any public premises by any person in occupation of such public premises under an authority (whether by way of grant or any other mode of transfer), and such erection of building or execution of work is in contravention of, or not authorised by, such authority, then, the Estate Officer may, in addition to any other action that may be taken under this Act or in accordance with the terms of the authority aforesaid, make an order, for reasons to be recorded therein, directing that such erection or work shall be demolished by the person at whose instance the erection or work has been commenced or is being carried on, or has been completed, within such period, as may be specified in the order.
Provided that, no order under this sub-section shall be made unless the person concerned has been given, by means of a notice [of not less than seven days] served in the prescribed manner, a reasonable opportunity of showing cause, why such order should not be made.
(2) Where the erection or work has not been completed, the Estate Officer may, by the same order or by a separate order, whether made at the time of the issue of the notice under the proviso to sub-section (1) or at any other time, direct the person at whose instance the erection or work has been commenced, or is being carried on, to stop the erection or work until the expiry of the period within which an appeal against the order of demolition, if made, may be preferred under Section 9.
(3) The Estate Officer shall cause every order made under sub-section (1), or, as the case may be, under sub-section (2), to be affixed on the outer door, or some other conspicuous part, of the public premises.
(4) Where no appeal has been preferred against the order of demolition made by the Estate Officer under that sub-section has been confirmed on appeal, whether with or without variation, the person against whom the order has been made shall comply with the order within the period specified therein, or, as the case may be, within the period, if any, fixed by the appellate officer on appeal, and, on the failure of the person to comply with the order within such period, the Estate Officer in this behalf, may cause the erection or work to which the order relates to be demolished.
(5) Where an erection or work has been demolished, the Estate Officer may, by order, require the person concerned to pay the expenses of such demolition within such time, and in such number of instalments, as may be specified in the order. " (emphasis added)
15. It is also worthy to note that there are some amendments in Sections 5-A and 5-B made by Act No. 35 of 1984. However, the fact remains, if the aforesaid Act, 1971 is applicable to the property in dispute, the entire Sections 5-A and 5-B, as they are, will apply. For this purpose, the premises must be a 'Public Premises' under Section 2(e) of Act, 1971.
16. Before considering the question, whether proceedings under Sections 5-A and 5-B are applicable in the case in hand, it has to be first seen whether the property in dispute comes within definition of 'Public Premises' or not. Petitioner is claiming that property in question was purchased by her mother-in-law in 1940 from one Ilahi as free hold property. No material has been shown by respondents to show that the land in question is a 'Public Premises'. It cannot be presumed to be a land either belong to Government of India or leased or requisitioned by it. The mere fact that land is within notified civil area of Cantonment, will not make it a land belonging to Government of India, inasmuch as, there exist certain private land also within the Cantonment area. Onus lies upon Government of India first to prove that land in question belongs to it, so as to attract provisions of Act, 1971. In the present case, despite the fact that no Cantonment grant was placed before the authorities below, no other clinching evidence was placed by respondents, yet it has been presumed that land belongs to Government of India and thereafter, authorities have proceeded. The question, whether the land belongs to Government of India or not, is a jurisdictional issue. Summary proceedings under Act, 1971 are initiated only in respect to "Public Premises" and not otherwise. Therefore, whenever any proceeding is proposed under Act, 1971, treating the land or building to be "Public Premises", but if the occupant seriously opposes, it would be the foremost question of importance to be seen by the authority concerned, whether it has jurisdiction to proceed with the matter or not.
17. In the context of Act, 1924, similar view has been taken by Apex Court in Chief Executive Officer Vs. Surendra Kumar [AIR 1999 SC 2294], wherein Court has held that in absence of any material placed by the occupant(s) to show its title, while Cantonment authorities placing old record of General Land Register containing entry with regard to title in favour of Government of India, the evidence adduced by Cantonment authorities can be relied to hold title in favour of Government, when nothing otherwise is placed by the occupant(s). In the present case, the stand taken by petitioner is fortified by certain title deeds placed on record. On the contrary, respondent Cantonment authorities have not been able to place on record any Old Grant Contract Terms in respect to land in question and instead have relied only on the entry made in General Land Register and that too made in 1998. Prima-facie I am of the view that respondents have not discharged onus lay upon them to prove their title, credibly and effectively. However, I am not expressing any final opinion on question of title at this stage. In my view, issue of title has to be decided in the appropriate proceedings by the forum concerned and not in the summary proceedings and moreso in writ jurisdiction, by this Court. Suffice it to mention that petitioner, in respect of her claim has placed on record evidence in the form of sale deed executed long back in 1940 by the erstwhile owner claiming that property in dispute was free hold. On the contrary, respondents produced copy of General Land Register wherein entry was made in 1998, mentioning name of petitioner as having occupancy rights only and land belonged to Government of India. Nothing has been placed on record to show that in 1940 and prior thereto also the land in question was recorded in General Land Register as land belonging to Government of India and Sri Ilahi had only occupancy rights under Rules of Old Grant. No Old Grant Contract Terms has been placed on record. Therefore, respondents have not discharged their burden to show that the land belongs to Government of India or is a Public Premises within the definition of Section 2(e) of Act, 1971.
18. The question, whether the land belongs to Government of India or not, in my view, has not been examined carefully, after considering the appropriate evidence in this regard. I find that Government of India made no effort to establish its title.
19. In Union of India Vs. Purushuttam Das Tandon [1986 (Supp) SCC 720] the Court held, when such a dispute is raised, Government of India must produce Old Grant to show terms and conditions. The Court had noticed that there are certain private land, also included in the Cantonment area. Therefore, whenever a land is claimed as Government of India's land, under the Old Grant Terms, under the Government Order of 1836, the same must be adduced before the appropriate authority to prove title.
20. In this case, while taking question, whether Act, 1971 would apply or not, it had to be examined, first, whether land belongs to Government of India or not. Since this very issue has not been examined by the authorities below, appropriately, the impugned orders cannot be sustained.
21. Having said so, I find that there is another aspect which is directly attracted and goes to the root of the matter. Whether substantive rights of parties, with respect to title, ownership etc., to a property claimed to be a 'public premises', can be determined by Prescribed Authority under the special enactment like Act, 1971, providing a summary procedure for eviction of an unauthorised occupant from public premises or removal of unauthorised constructions.
22. A pari materia provision came to be considered in Government of Andhra Pradesh Vs. Thummala Krishna Rao and another [MANU/SC/0519/1982 : 1982 SC 1081]. Section 6 and 7 of Andhra Pradesh Land Encroachment Act, 1905 (in short "Act 1905") was up for consideration before the Court. It held that summary remedy for eviction can be resorted to by the Government only against persons who are unauthorised occupant of any land, which is property of the Government. In respect to such property, obviously, there should be no doubt, difficulty or dispute about title of Government. In such a case, Government would be free to take recourse to summary remedy of eviction under Section 6 of Act, 1905. Having said so, the Court further held:
"If there is a bona fide dispute regarding the title of the Government to any property, the Government cannot take a unilateral decision in its own favour that the property belong to it and on the basis of such decision take recourse to the summary remedy provided by Section 6 for evicting the person who is in possession of the property under a bona fide claim or title in the instant case, there "unquestionably a genuine dispute between the State Government and the respondents as to whether the three plots of land were the subject-matter of acquisition proceedings taken by the then Government of Hyderabad and whether the Osmania University, for whose benefit the plots are alleged to have been acquired, had lost title to the property by operation of the law of limitation. The suit filed by University was dismissed on the ground of limitation, inter alia, since Nawab Habibuddin was found to have encroached on the property more than twelve years Sore the date of the suit and the University was not in possession of the property at any any time within that period. Having failed in the suit, the University activated the Government to evict the Nawab and his transferees summarily, which seems to us impermissible. The respondents have a bona fide claim to litigate and they cannot be evicted save by the due process of law. The summary remedy prescribed by Section 6 is not the kind of legal process which is suited to an adjudication of complicated question of title. That procedure is, therefore, not the due process of law for evicting the respondents."
23. The Court, in paras 9 and 10 of the judgment, further clarified the above issue as under:
"9....What is relevant for the decision of that question is more the nature of the property on which the encroachment is alleged to have been committed and the consideration whether the claim of the occupant is bona fide. Facts which raise a bona fide dispute of title between the Government and the occupant must be adjudicated upon by the ordinary Courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily on the basis of such decision. But duration of occupation is relevant in he sense that a person who is in occupation of a property openly for an appreciable length of time can be taken, prima facie, to have a bona fide claim to the property requiring an impartial adjudication according to the established procedure of law."
10......The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be, that the Government may succeed in establishing its title to the property but, until that is done, the respondents cannot be evicted summarily."
24. In Express Newspapers Pvt. Ltd. Vs. Union of India [MANU/SC/0273/1985: AIR 1986 SC 872], a question arose whether a breach of contract of the lease or any statute can be properly adjudicated and decided by an authority exercising summary jurisdiction. Hon'ble R.B. Misra, J. while concurring with Hon'ble A.P. Sen, J. opined that, question whether there was a breach of contract of lease or of any statute, can be properly decided by taking detailed evidence involving examination and cross examination of witness(es). Such import cannot be properly decided in a summary manner.
25. Besides, there are some authorities of various High Courts also taking similar view. A Division Bench of Patna High Court in Bhartiya Hotel and others Vs. Union of India and another [MANU/BH/0128/1968 : AIR 1968 Pat 476], in para 15 of the judgment, said that Estate Officer misdirected himself by saying that he can decide the question of title to the land also and this observation of Estate Officer is a patent error of law.
26. Delhi High Court (Hon'ble Vikramajit Sen, J.) (as His Lordship then was) in Sudhir Goel Vs. Municipal Corporation Delhi [AIR 2005 Del 7], has observed :
"...it will not be legally proper for the authorities and/or the Estate Officer to adopt a summary hearing even in those cases where facts and submissions are so very convoluted, complex and complicated...."
27. Very recently this Court has followed Apex Court's decision in Government of Andhra Pradesh Vs. Thummala Krishna Rao and another (supra), in Writ Petition No. 65058 of 2011 (Nand Lal Vs. Union of India and others) decided on 3.4.2012 and has taken a view that a dispute of title when seriously raised, cannot be decided in summary proceedings by Prescribed Authority under Act, 1971.
28. This Court, following above authorities in State of U.P. Vs. Ist Additional District Judge and Others [2013 (5) ADJ 203 = 2013 (6) ALJ 316], has also said;
"In the present case, by means of the impugned judgment, Prescribed Authority as well as Appellate Court have virtually declared title of respondent No. 3 on the property in dispute. Such a serious issue, based on the plea of adverse possession, in my view, could not have been decided in such summary manner and, that too, in absence of proper pleadings, evidence etc."
29. In the present case also since there is serious dispute of title involved, in my view, summary proceedings under Act, 1971, under Sections 5-A and 5-B of Act, 1971, were not maintainable. The respondent authorities should have resorted to have declaration of their rights, in common law proceedings i.e. by filing a suit.
30. In view of above discussion, both the impugned orders, are held unsustainable in law being without jurisdiction.
31. In the result, writ petition is allowed. Impugned orders dated 30th July, 2001 and 01st February, 2003 passed by Estate Officer, Meerut Cantt and Appellate Authority/Additional District Judge (Court No. 13), Meerut, respectively, are hereby set aside.
32. Cost made easy.
Order Date :- 07.10.2014 A. Verma