Executive Officer Vs. Surendra Kumar Vakil & Ors  INSC 91 (23 March
V.Manohar, R.C. Lahoti Mrs. Sujata V. Manohar, J.
appeals pertain to a property admeasuring 11.37 acres comprising Survey No.392
and known as Bungalow No.39, Sagar Cantonment. As per the General Land Register
maintained under the Cantonment Land Administration Rules of 1925, the said
property is shown as held on `old grant' terms and stands in the name of Shri S.N.Mukherjee.
The site is described as B-3 land and is placed under the management of Defence
Estate Officer, Jabalpur
to the respondents, by a sale deed dated 27th of September, 1927, S.N.Mukherjee
and his wife, Sarjubala Devi, purchased the said property together with the adjoining
Bungalow No.40 from one Pandit Murlidhar Dubey. The terms of the sale deed,
however, do not disclose the nature of the rights possessed by Dubey over the
land comprising Bungalow Nos.39 and 40.
who was the occupancy holder as recorded in the General Land Register died in
the year 1972 leaving behind 11 legal heirs. Bungalow No.39 which is the
subject matter of the present appeals, however, was not mutated in the names of
the legal heirs since they did not apply for mutation. By four registered sale
deeds dated 26.2.1983, the heirs of S.N.Mukherjee sold the entire property
consisting Bungalow No.39 in favour of 24 persons who are the respondents. One Gopal
Das Soni obtained power of attorney from both the vendors as well as the
vendees for dealing with the said property and taking all proceedings in
connection with it.
said sale deeds the property was described as leasehold land of the Cantonment
Board and it was stated that the purchasers will have to abide by the terms and
conditions on which this land was held in the name of the ancestors of the
sellers. It was further provided that the purchasers will have the same rights
which the sellers were having on the place sold to them. Thereafter by four amendment
(admission) deeds dated 4/5.8.1983, the power of attorney holder on behalf of
the Vendors stated that in the said sale deeds, due to a typographical error,
the land was shown as leasehold type whereas it should have been described as
'old grant' type. Therefore, by the amendment deeds the said description was
being changed to 'old grant' type.
letter dated 26.8.1983 addressed to the Military Estate Officer, Jabalpur
Cantonment, the power-of-attorney holder informed the Military Estate Officer
that Bungalow No.39, Survey No. 392, Sagar Cantonment, was held in the name of
S.N. Mukherjee. He had died on 13.7.1972 leaving behind 11 legal heirs as set
out therein and that the said legal heirs had sold the said property in favour
of 24 respondents (whose names were set out in the letter) by virtue of 4 sale
deeds of 26th of February, 1983. By the said letter he requested that the above
named Bungalow No.39 may be transferred in the records of the Military Estate
Officer, in the names of the purchasers. Thereafter correspondence ensued
between the parties. The Military Estate Officer on 3.10.1983 issued a notice
to the Vendors as well as the Vendees stating therein that the said area is
held on 'old grant' terms in the name of S.N. Mukherjee in the records
maintained in his office.
further stated that the Vendors divided the entire land into four portions
without obtaining the prior sanction of the competent authority in
contravention of the terms of the grant on which the site was held and that the
sale in favour of the purchasers was also without obtaining the prior sanction
of the competent authority and in contravention of the terms of the grant,
which would attract action for resumption of the site. The notice asked the
purchasers as well as the sellers to show cause why action for resumption of
the site be not taken against them. In his reply dated 15.10.1983 the
power-of-attorney holder stated that as per the terms of the 'old grant' the
sellers were having occupancy rights in respect of Bungalow No.39 and,
therefore, the sellers have transferred those rights to the purchasers. The
sellers were not aware that prior permission of the Military Estate Officer was
required before such sale; otherwise they would not have sold the bungalow
without obtaining prior permission. He asked for pardon for this unintentional
lapse and stated, inter alia, the reason for executing four sale deeds instead
cancellation deed dated 30.10.1984 the parties cancelled the
amendment/admission deeds of 4/5.8.1983.
deeds of 18.6.1985 were also thereafter executed setting out that the
purchasers would have the same rights as S.N. Mukherjee had over the said
Cantonment Estate Officer, Sagar, by his letter dated 28.12.1984 advised the
power-of-attorney holder -Soni to submit building plans and obtain permission
for construction work on the said property. However, according to the
appellants, Soni started construction work without waiting for permission. The
building application/plans which were submitted by Soni, were sent by the
Cantonment Executive Officer to the Defence Estate Officer, Jabalpur.
the same were returned duly rejected on 6.3.1985.
rejection, according to the appellants, Soni continued the construction work.
Ultimately, a notice was issued by the appellants on 15.4.1985 to Soni advising
him to desist from raising any unauthorised construction in the said premises.
An appeal filed by Soni and others under Section 274 of the Cantonment Act,
1954 before the appellate authority was dismissed by the appellate authority on
the purchasers filed the present civil suit in the court of the Additional
District Judge, Sagar, praying that they be allowed to enjoy the property
peacefully without any interruption from the appellants and their agents. The
prayer was subsequently amended and a declaration of title over the said land
was asked for by the purchasers. The suit has been decreed by the trial court
and the first appeal has been dismissed by the High Court of Madhya Pradesh.
question is whether the land was held by S.N. Mukherjee on old grant basis or
not. The land is in the Cantonment area of Sagar. Grant of land in cantonment
areas was, at all material times, governed by the general order of the Governor
General in Council bearing No.179 of the year 1836, known as the Bengal
Regulations of 1836.
Regulation 6 of these Regulations, conditions of occupancy of lands in
cantonments are laid down.
no ground will be granted except on the conditions set out therein which are to
be subscribed to by every grantee as well as by those to whom his grant may be
subsequently transferred. The first condition relates to resumption of land.
(1) The Government retains the power of resumption at any time on giving one month's
notice and paying the value of such buildings as may have been authorised to be
erected. (2) The ground being in every case the property of the 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 certain cases. (3) 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.
High Court in its impugned judgment has reproduced extracts from the book on
Cantonment Laws by J.P. Mittal, 2nd Edition at page 3, which may well be
reproduced here:- "Besides municipal administration, another subject that
has always loomed large on the Cantonment horizon, is the question of provision
of necessary accommodation for military officers near the place of their duty.
This led to the issue, from time to time, of certain rules, regulations, and
orders by the Government of Bengal, Madras and Bombay presidencies between the years of
1789 and 1899. The regulations were mostly of an identical nature. They had a
two-fold object in view, that of ensuring sufficient accommodation for military
officers; and that of regulation of the grant of land sites. Some of these
regulations are published in this Book. These rules, regulations and orders
continue to be the law in force in India even after the enforcement of the British statutes (Application to India) Repeal Act, 1960, (AIR 1973 Delhi
169, AIR 1979 ALL 170).
these regulations and orders, officers not provided with Govt. quarters were
allowed to erect houses in the cantonment. For this purpose ground was allotted
to them with the condition that no right of propriety whatever in the ground
was conferred on them and the ground continued to be the property of the State
was resumable at the pleasure of the Govt. by giving one month's notice and
paying the value of the structures as may have been authorised to be erected.
The houses or other property built on such grounds were allowed to be
transferred by one military officer to another without restrictions. To
civilians these could be transferred only with the prior permission of the
officer commanding the station.
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 above 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 given to occupy govt. land in the
cantonments for construction of bungalows 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 cantonments 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.
Rule 3 of these Cantonment Land Administration Rules the Military Estates
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 a 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.
the Cantonment Land Administration Rules, 1925 general land registers are being
maintained in respect of Sagar Cantonment. These registers were produced before
the High Court and were also produced before us. These are old registers
maintained in the form prescribed by the said Rules. In these registers the
property in question is shown as being held by S.N. Mukherjee on old grant
basis. As explained by Mittal in the passage cited above, the tenures under
which permission was given to civilians to occupy Government land in the
cantonments for construction of bungalows on the condition of a right of
resumption of the ground, if required, came to be know as old grant tenures.
tenures were given in accordance with the terms of the order No.179 issued by
the Governor General in Council in the year 1836. 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.
case of Sh. Raj Singh v. The Union of India and Ors. (AIR 1973 Delhi 169), the
Delhi High Court examined the Regulations contained in order No.179 of 1836
regarding the grant of lands situated in cantonment areas and held that the
Regulations were a self-contained provision prescribing the manner of grant and
resumption of land in cantonment areas. It held that the petitioner therein being
a mere occupier of the land under the said Regulations, he was in the position
of a licensee whose licence under the grant and under the law was revocable at
the pleasure of the licensor. This judgment of the Delhi High Court was
approved by this Court in Union of India v. Tek Chand (Civil Appeal No. 3525 of
1983) by its judgment and order dated 5th of January, 1999 passed by S.P. Bharucha
and V.N. Khare, JJ.
respondent, however, contends that since the actual old grant was not produced
in evidence by the appellants the case of the appellants that the land was held
on old grant basis by Mukherjee is not proved by the appellants. This
submission does not appeal to us. The respondents filed a suit claiming title
over the land. If any conveyance in respect of this land had been executed at
any time by the State/Military Estate Officer in favour of Mukherjee or his
predecessor in title, the conveyance ought to have been produced by the person
in whose favour it had been executed or his successor in title. Had a lease
been granted in respect of the said land in favour of Mukherjee or his
predecessor in title, the lessee or his successor in title should have produced
the lease deed in his favour.
grant in favour of the grantee would normally be in the possession of the
grantee. The respondents, however, have not produced any title deeds relating
to the land in question. They have only produced the document of sale from Dubey
to Mukherjee and the four sale deeds from the heirs and legal representatives
of Mukherjee in favour of the purchasing respondents.
none of these documents there is a clear recitation of the nature of the rights
in the land held by the Vendor.
true that the appellants were also required to maintain a file/register of
grants. They have not produced the file. The appellants, however, have led
evidence to show that the concerned file of grants was stolen in the year 1985.
They were, therefore, unable to produce the file pertaining to this grant. They
do, however, have in their possession general land registers maintained under
the Cantonment Land Administration Rules of 1925 in which they are required by
these rules to maintain a record, inter alia, of the nature of the grant in
respect of cantonment lands and the person in whose favour such grant is made.
these registers are very old registers. They bear the endorsement of the
officer who has maintained these registers in the regular course. These
registers also show any subsequent changes made in respect of the lands under the
relevant columns. Both these registers clearly show that the land is held on
old grant basis by Mukherjee. The High Court seems to have rejected the record
contained in the land grants registers on the ground that the terms of the
grant have not been established because the document of grant itself has not
been produced. The terms of the grant, however, are statutorily regulated under
order No.179 of the Governor General in Council of 1836. The administration of
lands in Cantonment areas is further regulated by the Cantonment Act, 1924 and
the Cantonment Land Administration Rules of 1925. The 1836 Regulations
expressly provide that the title to the land in cantonment areas cannot be
transferred. But only occupancy rights can be given in respect of the land
which remains capable of being resumed by the Government in the manner set out
therein. There is no evidence to the contrary led by the respondents. In fact,
under the amendment/admission deeds executed on 4/5.8.1983 the Vendors as well
as the purchasers have stated that the site is wrongly mentioned as lease hold
site instead of 'old grant' site in the four sale deeds. The mistake is being
rectified by the execution of the four amending deeds clarifying that the
Bungalow No.39 is held on 'old grant'. Undoubtedly, this was later retracted
when cancellation deed was executed cancelling the amendment/admission deeds.
Nevertheless, all the statutory provisions clearly indicate that the land being
in the cantonment area was held by Mukherjee only as an occupant/licensee and
that any transfer of the bungalow and other constructions on the said land
required prior approval of the defence establishment. The power of attorney
holder also corresponded with the Defence establishment and asked for mutation
in favour of the purchasers.
even after they were expressly informed by the appellants of the need for prior
permission before transfer, as well as for any further construction on the said
land, the respondents proceeded with the construction work resulting in the
notice to desist issued by the appellants under Section 185 of the Cantonments
said section provides that the Board may, at any time, by notice in writing,
direct the owner, lessee or occupier of any land in the cantonment to stop the
erection or re-erection of a building in any case in which the Board considers
that such erection or re-erection is an offence under Section 184. The Board
also has power to direct the alteration or demolition of such unauthorised
structure. On the facts before us, this action cannot be faulted.
respondents drew our attention to a decision of this Court in the case of Union
of India v. Purshotam Dass Tandon and another (1986 (Supp.) SCC 720), where
this Court observed that the Union of India had made no effort to establish its
title and the grant had not been produced.
the terms of the grant or the date of the grant were not known. Therefore, the
Union of India could not succeed in its contention that the land in the
cantonment was held on old grant basis. In the present case, however, apart
from the requirements of Order No.179 of Governor General in Council, 1836, the
general land register maintained under the Cantonment Land Administration Rules
of 1925 has been produced which supports the contention of the appellants that
the land is held on old grant basis. The appellants have also led evidence to
show that the file containing grant in respect of the said property, is not
available with them because it has been stolen in the year 1985. The respondents
on the other hand have not produced any document of title pertaining to the
said land or showing the nature of the rights of the respondents over the said
land except the sale deeds referred to earlier. The stand of the respondents
relating to their rights over the said land has changed from time to time. In
the sale deeds executed by the Vendees in favour of the respondents, the land
is described as lease hold cantonment land. This was later changed by the
respondents in the amendment deeds to old grant land. In the suit, the
respondents have contended that they have become the absolute owners of the
bare assertions do not carry any conviction. Had there been any conveyance or
lease in respect of the said lands executed in favour of the respondents or
their predecessor in title, such conveyance or lease should have come from
their custody. There is, therefore, no document before the Court which would
show that the respondents were the absolute owners of the said land as now
contended by them. 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. This 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 Mukherjee.
respondents have drawn our attention to the decision in the case of Shri Krishan
v. The Kurukshetra University, Kurukshetra (AIR 1976 SC 376) for showing that
any admission made by them in ignorance of legal rights cannot bind them. This
judgment does not help the respondents because the fact remains that the
respondents have taken a changing stand in relation to the nature of their
rights over the disputed land. The admissions, at least, indicate that the
respondents were, at the material time, not sure about the exact nature of
their right over the said land. Hence they have at one stage described the
nature of their rights as lease hold, at another stage as old grant and at a
third stage they have retracted from their admission that the land was 'old
grant'. The last deed merely states that they have the same rights as their
Vendees had in the said land. Looking to the nature of evidence, therefore,
which was led in the present case, the High Court was not justified in coming
to the conclusion that the land was not held on old grant basis by Mukherjee.
since the land is held on old grant basis in the present case, the appellants
are entitled to resume the land in accordance with law. In the premises the
appeals are allowed, the impugned judgment and order of the High Court is set
aside and the suit of the respondents is dismissed with costs.