TMI Blog2019 (3) TMI 1961X X X X Extracts X X X X X X X X Extracts X X X X ..... the PP Act for Appellant's eviction from the suit property. The documents filed in their support, in no uncertain terms, establish that there exists a bona fide long standing dispute as to who is the owner of the suit property-the Appellants or Respondent No. 1 - Respondent No. 1 itself admitted that there exists a bona fide dispute between the Appellants and Respondent No. 1 (Union of India) over the suit property involving disputed questions of facts. Respondent No. 1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos. 609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the Appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The Respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abhay Manohar Sapre, J. 1. This appeal is filed against the final judgment and order dated 17.06.2009 passed by the High Court of Bombay at Mumbai in Writ Petition No. 4386 of 2001 whereby the Division Bench of the High Court dismissed the said writ petition filed by Appellants herein. 2. Though the controversy involved in this appeal is short, in order to appreciate as to how it arose, it is necessary to set out its background facts in detail infra. The facts are stated from the SLP paper books and the List of Dates furnished by the 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. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued a resumption notice in relation to the portion of the suit property (about 22,168 sq. feet). The notice was founded on the allegations inter alia that the suit property was held under old grant which empowered the Union of India to resume the subject land. The notice contained that on the expiry of 30 days period after its service, all private rights, and interest of Mr. Kavasji K Framji would be ceased. The notice offered to Mr. Kavasji a sum of ₹ 4765/- by way of compensation towards the value of various structures standing on the subject land. A cheque of ₹ 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 Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore the court should not determine the same in a petition Under Article 226 of the Constitution but direct the Petitioner to file a suit for that purpose. We find that in this case all the contentions raised and submissions made by both the sides are the same as those made in Special Civil Application No. 1286 of 1972. In that petition, by our reasoned judgment delivered on 5-2-1979, we have negatived the Respondents' said contentions and held accepting the contentions of the Petitioner that the resumption by the Government 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 sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the statement of the Solicitor General of India in the following terms: Learned Solicitor General states that the Union of India would seek dispossession of the Respondent-occupants from the properties involved, in accordance with law and if need be, through a Civil Court by filing suit. In case such steps are taken, any observations made by the High Court which would tend to defeat the remedies sought would not stand in its way. On such stance of the Union of India, Civil Appeals as also the special leave 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants of the suit property. 31. In other words, the submission was that the facts stated above would, in no uncertain terms, go to show that the suit property never belonged to the Union of India and on the other hand it all along belonged to the Appellant's predecessors and then to the Appellants and therefore Respondent No. 2 -Estate Officer had no jurisdiction to treat the suit property to be belonging to the Union of India for initiating proceedings against the Appellants for their summary eviction 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the owner of the suit property (which they are not), then as urged earlier, their remedy lies in filing civil suit in the Civil Court and establish their claim of ownership over the suit property qua the Appellants in terms of the order of this Court dated 04.08.1998 and recover possession of the suit property from the Appellants. 39. His eighth submission was that since the Appellants succeeded in the High Court in the first round of litigation against Respondent No. 1 (Union of India) wherein the High Court 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fundamental Rights conferred on the citizens Under Article 19 (1) (a) and (g) of the Constitution and its violation qua State fell for consideration and were decided, this Court was also called upon to decide the legality and correctness of the notice issued by the Government of India through their officers in their capacity as the lessors of the land in question demanding therein a right of re-entry under the terms of the lease deed on the demised land from the lessee (writ Petitioner of the case). 48. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law. The stakes in this case are very high for both the parties and neither of them can take law into his own hands. 205. I allow the petitions accordingly. The costs of Petitioner 1 shall be paid by the Union Government and the Lt. Governor of Delhi. There shall be no order as to costs against the other Respondents. The other Petitioners shall bear their 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 contradic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers. If they mean to differ in their view, they so openly when they come to deliver their judgments, and if they do not do this, it must be taken that each of them agrees with the judgments of the others. We have then four judgments. The most elaborate of these is, no doubt, that of Lord Watson; but Lord Watson's judgment must have been read by the Lord Chancellor, and the Lord Chancellor must have discussed with Lord Watson whether he agreed 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Justice S.C. Agrawal speaking for the Bench held in Para 6 in the following words: 6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Respondent No. 1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos. 609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the Appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The Respondents cannot now be permitted to go back from their statement and take recourse to a remedy 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di 1959 (supp) 1 SCR 733 pages 743-744. 77. It is on the basis of this submission, learned Counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act. 78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act. 79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned Counsel for the Respondents was entirely on different context and has no application for deciding the issue involved in this appeal. 80. Yet, last submission of the learned Counsel for the Respondents that the writ petition was not maintainable to challenge the notice issued Under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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