TaxTMI 
TaxTMI 
2019 (3) TMI 1961
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.... parties. 3. The Appellants herein are the writ Petitioners and the Respondents herein are the Respondents in the writ petition out of which this appeal arises. 4. The dispute relates to a property, which is situated at Survey No. 417, Bungalow No. 17, Dr. Coyaji Road (formerly known as "Elphinstone Road") Pune-411001. The property consisted of a main bungalow, a cottage, outhouses, garages, and an open plot of land (garden) admeasuring around 1.52 acres (hereinafter referred to as "the suit property"). 5. One Burjorji Goostadji and Cooverbai Homi Karani were the owners of the suit property. They sold the suit property to one Mr. Mohammad Hajjibhoy by indenture of conveyance dated 01.03.1920 pursuant to the order of the District Judge made on a Misc. Application No. 5 of 1919 granting sanction for the sale in favour of Mr. Mohammad Hajjibhoy. 6. Mr. Mohammad Hajjibhoy then sold the suit property to one Mr. Kaihosrou Sorabji Framji by indenture of conveyance dated 28.11.1923. Mr. Kaihosrou Sorabji Framji then in turn leased out the suit property on 10.10.1929 to the Government of India for a period of five years on a rent of Rs. 110/- per month. 7. Even after the leas....
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....land. A cheque of Rs. 4765/- was sent to Mr. Kavasiji K Framji by letter dated 23.01.1971 who, in turn, declined to accept the said amount and sent his reply on 27.01.1971 objecting therein to the notice and its contents. 12. Felt aggrieved by the notice and the letter, Mr. Kavasji K Framji filed Writ Petition No. 364/1971 in the Bombay High Court challenging both the notice and the letter. The writ petition was filed on the allegations inter alia that the subject land was a free hold tenure and was never held by Mr. Kavasji K Framji under any Grant or Licence from the Union of India or from any department of the Union of India and hence it is not resumable at the instance of the Central Government. 13. Besides Mr. Kavasji K Framji, several other persons including one person namely Mr. PT Anklesaria also got similar notices from the Union of India in relation to their land. Mr. PT Anklesaria, Mr. Kavasji K Framji and others felt aggrieved and they filed writ petitions (SCA No. 1286/1972) in the Bombay High Court questioning the legality and validity of the notices sent to them by the Union of India. 14. By the judgment/order dated 05.02.1979 in Phiroze Temulji Anklesaria v....
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.... of the Petitioner's land and bunglow were without any authority of law and therefore the impugned notice was invalid. On the very same reasoning in this case also we negative all the contentions of the Respondents and uphold the contentions of the Petitioners inter alia that the resumption of the Petitioner's land by the Government was without any authority of law and therefore the impugned notice was invalid. 16. In all, 14 special leave petitions were filed by the Union of India in this Court against the judgment/order of the High Court. 17. It may here be mentioned that in the meantime, Mr. PT Ankelesaria had also filed civil suits in the Court of District Judge, Poona in the light of observations made by the Bombay High Court in (AIR 1980 Bombay page 9) and prayed for grant of relief of possession of the subject land. The District Judge, Poona decreed these suits in Plaintiff's favour. The Union of India felt aggrieved and filed First Appeals in the Bombay High Court whereas the Plaintiff filed cross-objections in these appeals (608-621/1980). These appeals were later transferred to this Court at the instance of the Union of India for their disposal and were ....
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....e petitions stand disposed of accordingly. 23. It is with these background facts which began from 01.03.1920 and ended with the order of this Court passed on 01.08.1998, Respondent No. 2-Estate Officer issued a notice on 31.07.2001 Under Sub-(1) and Clause (b) (ii) of Sub-section 2 of Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short "the PP Act") to the Appellants. The present appeal is concerned with the legality and correctness of this notice. 24. The notice in question was founded on the allegations inter alia that the Appellants are in unauthorized occupation of the public premises mentioned in the Schedule in the notice i.e. the suit property and therefore the Appellants should vacate the suit property. The contents of the notice read as under: Whereas the nature of Holder's rights on the land is limited only to its occupancy, therefore, being the property of the Govt. the land is liable to be resumed, in terms of conditions obtaining under the old grant terms. Accordingly the Govt. of India, Ministry of Defence resumed the land and building after giving one month's notice vide Order No. 701/71/L/L & C/70/12030/D....
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.... under the PP Act. 32. His third submission was that from the facts narrated above, it is clear that there does exist a "bona fide dispute" between the Appellants and the Union of India (Respondent No. 1) in relation to the suit property as to who is its real owner-the Appellants or the Union of India. 33. According to the learned Counsel, in a situation where there arises a bona fide dispute between the two rival claimants over a property about their ownership such as the one which has arisen in the case at hand, the remedy of the parties lies in filing a civil suit in the civil court and seek a declaration of their ownership over the property in accordance with law but not to take recourse to any summary remedy to evict a person, such as the one done by the Respondents under the PP Act against the Appellants only because one of the rival claimants, i.e., Respondent No. 1 happens to be the Union of India. 34. His fourth submission was that, Respondent No. 1 through their counsel (Solicitor General) having made a statement in this Court on 04.08.1998, that Respondent No. 1 (Union of India) would take steps in filing civil suit in the Civil Court against the Appellants for ....
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....ourt quashed the resumption notice dated 21.01.1971 by order dated 05.02.1979 (AIR 1980 Bombay 9), this order still continues to hold good because none of the finding recorded therein are either set aside or modified by this Court by its order dated 04.08.1998. 40. Learned Counsel while elaborating his aforementioned submissions placed reliance on the decisions in Express Newspapers v. U.O.I., (1986) 1 SCC 133, State of Orissa v. Ram Chandra Dev AIR 1964 SC 685, Western Coalfields Ltd. and Anr. v. Ballapur Collieries Co. and Ors. (judgment dated 11.12.2018 in C.A. Nos. 4487-4488/2009), M/s. Ballapur Collieries Co. and Ors. v. Estate Officer and Ors. (Judgment dated 22.01.2007 of the Bombay High Court (Nagpur Bench) in Civil Revision Application No. 801 of 2002 and Civil Revision Application No. 803 of 2003, State of U.P. and Anr. v. Zia Khan, (1998) 8 SCC 483, State of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134 and State of Rajasthan v. Padmavatidevi, 1995 Suppl (2) SCC 872. 41. In reply, learned Additional Solicitor, Mr. Aman Lekhi while supporting the reasoning and the conclusion of the High Court in the impugned order contended that none of the submissions urged by the....
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....It is this issue, which was extensively dealt in the context of civil law as also the special laws, which provides for taking recourse to the summary remedy by the State to take possession of the State land from its occupants. The learned Judge A.P. Sen J. speaking for the Bench in his inimitable style of writing answered the question in paras 86/87 as under: 86. The Express Buildings constructed by Express Newspapers Pvt. Ltd. with the sanction of the lessor i.e. the Union of India, Ministry of Works and Housing on plots Nos. 9 and 10, Bahadurshah Zafar Marg demised on perpetual lease by registered lease-deed dated March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Government Under Section 2(e). That being so, there is no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. Under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction Under Sub-section (2) thereof by summary process. Due process of law in a case like the present necessarily implies the filing of suit by the lessor i.e.....
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....ir costs. R.B. Misra, J.- I have perused the judgment prepared by brother Justice A.P. Sen as also the judgment of brother Justice E.S. Venkataramiah. While I agree that the impugned notices threatening re-entry and demolition of the construction are invalid and have no legal value and must be quashed for reasons detailed in the two judgments, which I do not propose to repeat over again. I am of the view that the other questions involved in the case are based upon contractual obligations between the parties. These questions can be satisfactorily and effectively dealt with in a properly instituted proceeding or suit and not by a writ petition on the basis of affidavits which are so discrepant and contradictory in this case. 208. I accordingly allow the writ petitions with costs against the Union Government and the Lt. Governor of Delhi and quash the impugned notices. 50. At this stage, it is necessary to deal with one objection raised by learned Additional Solicitor General on the aforementioned statement of law laid down in Express Newspaper case (supra). 51. The objection of learned Counsel for the Respondent was that the view expressed by A.P. Sen J. in Pa....
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....d with or not, and he must have agreed with it. Lord FitzGerald in terms, says, "I have read the judgment of Lord Watson, and I agree with it;" that is, he agrees not only with the result but with the mode in which the result is arrived at. Lord Macnaghten had read Lord Watson's judgment, and he does not attempt to express the smallest difference of opinion about it; he adopts the reasoning of Lord Watson and agrees with it, but he adds another reason of his own. What is import to-day is what is the view taken by the House of Lords of the interpretation of the third part of the 35th section. It is plain that Lord Watson has taken a distinct and clear view, and has stated it clearly, of what is the effect, to a certain extent at all events, of the third clause.............................................................. I am clear that they decided the point which is before us: that Lord Watson's judgment deals with it most specifically, that the judgment is really agreed with by the Lord Chancellor and by Lord FitzGerals, and by Lord Macnaghten, but that Lord Macnaghten has also given another reason for coming to the same conclusion. 55. The other two ....
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....provisions contained in Section 6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Govt. of A.P. v. Thummala Krishna Rao 1 has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available Under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law. 62. This view was reiterated in the case reported in State of U.P. v. Zia Khan [1998 (8) SCC 483]. 63. At this stage we consid....
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....dy of summary procedure under the PP Act, which is otherwise not available to them. 69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to Respondent No. 1 (Union of India) to file civil suit against the Appellants, if they are so advised. It was, however, not resorted to. 70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the Respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that Respondent No. 1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the Appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction. 71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act. 72. This takes us to examine another question raised by the Respondents as to whether judgment rendered by the Bombay High Court dated 06.02.1979 stood merged i....