India & Ors. Vs. Kamla Verma  INSC 634 (13 August 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6563 OF
2010 (Arising out of SLP) No.20368 of 2007) lUNION OF INDIA & ORS.
.....APPELLANTS VERSUS 1
Being aggrieved by the judgment dated 19th January, 2007 delivered
by the High Court of Allahabad, Lucknow Bench, Lucknow in Writ Petition No.
1661 (M/B) of 1998, the original respondents before the High Court have
approached this Court by way of this appeal.
The facts giving rise to the litigation in a nutshell are as
under:- The respondent- original petitioner before the High Court had filed the
aforesaid writ petition praying that the premises situated at 14, Kasturba
Marg, (Old No. 15, Tomb Road) Lucknow Cantt., be de-hired under the policy of
Central Government as reflected in Para 19 Clause (c) of the Policy and
procedure for dehiring of houses dated 19.11.1979 (as amended on 19.3.1985) as
the premises in question was not being used by the respondents because it was
in a dilapidated condition.
After considering the fact that the premises was not in good shape
and was not in use by the respondents, the High Court allowed the petition by
directing the respondents to permit the petitioner to undertake repair 3 works
of the premises in question and to de-hire the same with immediate effect.
The High Court came to the conclusion that the petitioner was a
landlady and as per Policy of the Central Government, she had a right to get
the property de-hired especially when the respondent authorities were not using
the same. The High Court had taken into account contents of a letter dated 29th
November, 1996, addressed to the Director, DE written by the Defence Estate
Officer of Lucknow Cantt. for coming to the above conclusion. The High Court
came to the conclusion that the reference to "old grant" seemed to be
misconceived as there was nothing on record to show that the land in question
was allotted to the vendor of the petitioner 4 lady on "old grant".
Being aggrieved by the aforesaid judgment, the respondents - Government
authorities have filed this appeal.
The learned Additional Solicitor General appearing for the
appellants - original respondents has submitted that the impugned judgment is
bad in law for the reason that certain factual aspects which had been placed on
record alongwith the counter affidavit filed before the High Court had not been
considered and, therefore, the conclusion arrived at by the High Court is not
It has been submitted by him that the premises in question had
been granted on "old grant" terms to Shri Roop Krishan Seth, son of
Shri Rai Bahadur Prabhu Dayal Seth. Thereafter under an agreement dated 26th
July, 1948, the premises in question had been leased to the present appellants.
A 5 copy of the said agreement was very much on record of the High Court as it
had been annexed to the counter affidavit filed by the present appellants - original
respondents before the High Court. Subsequently, the property in question had
been inherited by Shri Mohan Krishan Seth, son of Shri Roop Krishan Seth.
Thereafter, the property in question had been transferred in favour of the
present respondent, namely, Smt. Kamla Verma who was the petitioner before the
So as to substantiate his case, he has drawn our attention to the
contents of the agreement dated 26th July, 1948, whereby the property in
question had been leased to the appellant authorities. In the preface of the
agreement, it has been clearly stated that the property in question was held by
Shri Roop Krishan Seth on "cantonment tenure" or in other words it 6
means "old grant" terms. The said fact denotes that Shri Roop Krishan
Seth was not a full-fledged owner of the property in question. Had he been the
owner of the property in question, the reference to "cantonment
have been made in the said agreement. Moreover, in clause iv (5) of the said
agreement, it has been stated that the authorities had a right to resume
possession of the whole or any portion of the property in question, during the
period of tenancy without being liable to Shri Roop Krishan Seth in any way.
Had Shri Roop Krishan Seth been an owner of the property in question, there
would not have been any such clause with regard to resumption of the property
i.e. building as well as the land in question, in the lease deed. This fact,
according to the learned Additional Solicitor General, shows that the land in
question, was given to Shri Roop Krishan 7 Seth on "cantonment
tenure" or "old grant" terms. The respondent had purchased right
in respect of the property in question from Shri Mohan Krishan Seth, son of
Shri Roop Krishan Seth after the said property was inherited by him upon death
of his father and as Shri Roop Krishan Seth was having the property in question
on "cantonment tenure", the respondent could not have got better
right than what Shri Roop Krishan Seth had in the property in question.
Therefore, even the respondent is not having full ownership right in respect of
the property in question, but is having only "cantonment tenure" in
respect of the property in question. It has been further submitted by him that
it is open to the appellant authorities to resume the land from the one who has
been granted the land on "old grant" terms. He has submitted that the
land in question is in a cantonment 8 area and in the past, land in cantonment
area, belonging to the government, was given for a limited use to civilians and
it was open to the government to resume such land at any time. He has referred
to a Judgment delivered in the case of Chief Executive Officer vs. Surendra
Kumar Vakil and Ors. 1999 (3) SCC 555, to show as to how the term "old
grant" is being interpreted.
Thereafter it has been submitted that the respondent had filed a
civil suit in the court of Additional District and Sessions Judge FTC-6,
Lucknow, being Small Causes Case No.2 of 2000. The said suit had been dismissed
on 12.12.2006 and while dismissing the suit, the Court had come to the
conclusion that as per the general order of the Governor General in 9 Council
bearing No.179, the land and trees standing on the land in question, belong to
the Government of India, Ministry of Defence. The said findings have become
final and, therefore, it has been submitted that the respondent has no
ownership in respect of the land in question. For the afore-stated reasons, it
has been submitted that the impugned order is bad in law and, therefore, it deserves
to be quashed and set aside.
On the other hand, it has been submitted on behalf of the learned
advocate appearing for the respondent that the respondent was the owner of the
land in question, as the land in question along with super structure, had been
purchased by the respondent from Shri Mohan Krishan Seth. The learned advocate
has also relied upon the letter dated 29-11-1996, written 10 by the Defence
Estate Officer, Lucknow Cantt., which has been referred to hereinabove.
According to him, in view of the contents of the said letter, it is clear that
one of the officers of the appellants had opined that the premises in question
was in a dilapidated condition and it was not being used and, therefore,
recommendation was made for de-hiring the said premises. The said fact,
according to the learned advocate, clearly denotes that the premises in
question, belongs to the respondent, otherwise the respondent would not have
leased the premises to the appellant authorities.
learned advocate has also submitted that the High Court had rightly allowed the
petition and, therefore, the appeal be dismissed.
We have heard the learned advocates and have also gone through the
contents of judgment delivered in the case of Chief Executive Officer (Supra).
Upon perusal of the agreement dated 26.7.1948 and upon perusal of
the sale deed dated 23rd December, 1996 executed in favour of the respondent,
it is crystal clear that the land in question was held by original grantee Shri
Roop Krishan Seth on "old grant" terms under G.G.C. No. 179 dated
12.9.1836. Meaning of the said grant has been clearly explained by this Court
in the case of Chief Executive Officer (Supra) and that clearly denotes that
the vendor who sold the rights in respect of the land in question, was never a
full-fledged owner of the said land but he was given the said land only on
"old grant" terms. Being allotted the land on "old 12
grant" terms, the said allottee never became a full-fledged owner and,
therefore, he could not have transferred any right better than what he had in
respect of the land in question, to the present respondent. Shri Mohan Krishan
Seth inherited rights in respect of the said property from late Shri Roop
Krishan Seth and ultimately Shri Mohan Krishan Seth transferred his rights to
the respondent. So the respondent also got the rights which Shri Mohan Krishan
Seth had in the property in question. Thus, the respondent was also holding the
land/property in question on "old grant" terms and she did not become
a full-fledged owner of the property in question.
In our opinion, the High Court did not consider the fact that the
present respondent was holding the land in question only on "old
grant" terms and, therefore, she was not a full-fledged owner of the land
but she 13 had the right only in respect of the super-structure put up on the
land in question, which had been given on lease to the present appellants.
The Learned Additional Solicitor General has drawn our attention
to the judgment delivered by this Court in the case of Chief Executive Officer
(supra) so as to explain the meaning of the term "old grant". Paras 9
and 10 of the said judgment explain the meaning of the term "old
paras read as under:
The narrow 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.
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. Under Regulation 6 of these
Regulations, the conditions of occupancy of lands in cantonments are laid down.
Thereunder, no ground 14 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:
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
ground being in every case the property of the Government, cannot be sold by
houses or other property thereon situated may be transferred by one military or
medical officer to another without restriction except in certain cases.
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 Edn., at p.
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
Governments of Bengal, Madras and Bombay Presidencies between the years of 1789
and 1899. The regulations were mostly of an identical nature. They had a
twofold 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, (Raj Singh v. Union
of India1, Mohan Agarwal v. Union of India2).
these regulations and orders, officers not provided with government quarters
were allowed to erect houses in the cantonment. For this purpose ground was
allotted to them with the condition that no right of property whatever in the
ground 1 AIR 1973 Del 169 2 AIR 1979 All 170 16 was conferred on them and the
ground continued to be the property of the State, was resumable at the pleasure
of the Government 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
lapse of time civilians were also encouraged to build bungalows on the
government 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
government 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."
Even in the instant case, the land in question, was originally
permitted to be used by a civilian on "old grant" basis and the said
fact is reflected in the lease deed executed by late Shri Roop Krishan Seth.
Moreover, even in the sale deed executed in favour of the respondent, it has
been stated that the vendor was an "occupancy holder of the land and trees
of the aforesaid premises and owner of super structure of the
It is also pertinent to note that even in the land register the
Government of India has been shown as a "Landlord" and Shri Mohan
Krishan Seth has been shown to be having occupancy right and his nature of
right is shown to be of "old grant". These facts had been duly 18
incorporated in the counter affidavit filed by the present appellants before the
It is also pertinent to note that in a civil suit filed by the
respondent in the Court of Additional District and Sessions Judge, FTC-6, Judge
Lucknow being Small Causes Case No. 2/2000 for eviction, the respondent had
failed to obtain decree against the present appellants. The said suit had been
dismissed. The Court, while dismissing the suit, had clearly come to the
conclusion that as per the general order of the GGC No. 179, the land and the
trees standing on the land etc. were the property of the Government of India,
Ministry of Defence. The Court had come to the conclusion that the land in
question was not owned by the present respondent and the present respondent did
not challenge the said findings. Unfortunately, the 19 said fact was also not
considered by the High Court while allowing the petition filed by the present
In view of the above legal position, it is always open to the
appellants to resume the land in question and the appellants can not be
prevented from resuming the land in question. The High Court was in error while
considering the respondent as an owner of the property in question.
We, therefore, set aside the Order passed by the High Court. The
appeal is allowed accordingly. No order as to costs.
........................................J. ( P. SATHASIVAM)
.........................................J. (ANIL R. DAVE)
August 13, 2010.