Union of India & Ors Vs. Harish Chand
Anand [1995] INSC 339 (26 July 1995)
Ramaswamy,
K. Ramaswamy, K. Paripoornan, K.S.(J)
CITATION:
1996 AIR 203 1995 SCC Supl. (4) 113 JT 1995 (6) 144 1995 SCALE (4)586
ACT:
HEAD NOTE:
O R D
E R
This
is an appeal by Certificate granted by the High Court by order dated December 14, 1978 with a question as under :
"Whether
the only right of the grantee is to claim compensation and whether the
Government can take possession at any time after expiry of one month in view of
Governor General's Order No.179 dated 12th September, 1836?" In view of the Certificate
granted by the High Court under Art.133(1) of the Constitution, the question
arises whether the State is entitled to resume land granted under s.3 of
Government Grant Act, 1895 without prior determination of the amount for the
structure. Though the respondent has been served, he has not appeared, either
in person or through counsel. We have taken the assistance of counsel for the
appellant and we have perused the judgment of the Delhi High Court reported in Sh.
Raj Singh v. Union of India, (AIR 1973 Delhi 169) and the Division Bench
judgment of the High Court of Allahabad reported in Bhagwati Devi v. President
of India, (1974 (72) Allahabad Law Journal, 43) which was relied on and
followed by the Division Bench in this case to hold that it is a condition
precedent that the State should give notice to the respondent, determine the
compensation and then resume the property granted to the respondent. The
question, therefore, is whether it is a condition precedent for the Government
to resume the land only after determination of the compensation and payment
thereof or on the issuance of the notice as required under the Grant and on
expiry thereof. To appreciate the contention, it is necessary to look to the
provisions of the Grant itself. Under s.3 of the Act, the Governor General in
Council exercised the power and granted licence to the respondent to erect the
structure on the Government land. The conditions of the Grant are :
"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:- 1st : The Government to retain the power of
resumption at any time on giving one month's notice and payment of the value of
such buildings as may have been authorised to be erected." The other
clauses are not relevant for the purpose of this case. Hence they are omitted.
In the
Order No.179 of 1836, the Governor General in Council had issued the regulation
empowering the Governor General to rescind authorised orders in force till then
and to substitute for them by regulations. The regulations in order No. 179 of
1836 are statutory regulations made by the Governor General in Council in
exercise of his statutory power. The covenants for the Grant clearly empower
the Government retaining its power of resumption at any time.
The
conditions precedent are : to issue one month's notice and payment of the value
of such building as may have been authorised to be erected.
The
Division Bench of the Delhi High Court has left open the question of mode of
determination of the value of the building to be determined in accordance with
the relevant provisions of the law. The Division Bench of the Allahabad High
Court in Bhagwati Devi's case, (supra) in paragraph 7, had held that though the
Government is entitled to resume the land, the grantee is entitled to a prior
opportunity to represent his case before the competent authority in determination
of the value of the building and for payment of the value of such building
resumed by the State.
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 licencee. 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 licencee 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 errected 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.
The
appeal is accordingly allowed, but since the respondent is not present, without
costs.
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