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PETITIONER: CHIEF EXECUTIVE OFFICER

       Vs.

RESPONDENT: SURENDRA KUMAR VAKIL & ORS.

DATE OF JUDGMENT:       23/03/1999

BENCH: Sujata V.Manohar, R.C. Lahoti

JUDGMENT:

Mrs.  Sujata V.  Manohar, J.

     These  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  Circle, Jabalpur.

     According  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.

     S.N.Mukherjee 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.

     In  the 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

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deeds  the said description was being changed to ’old grant’ type.

     By  his  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. He  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 of one.

     By  cancellation  deed  dated 30.10.1984  the  parties cancelled  the  amendment/admission   deeds  of  4/5.8.1983. Supplemental  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 property.

     The  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. But  the  same  were  returned duly  rejected  on  6.3.1985. Despite  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 28.8.1985.

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     Thereafter 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.

     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.  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. Under  Regulation  6  of these  Regulations,  conditions  of occupancy   of   lands  in   cantonments  are   laid   down. Thereunder,  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.

     The 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).

     Under  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

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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.

     With  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. Under  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.

     Under  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. Such  tenures were given in accordance with the terms of the order  No.179  issued by the Governor General in Council  in

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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.

     In  the 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.

     The  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. Any  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.

     In none of these documents there is a clear recitation of  the nature of the rights in the land held by the Vendor. It  is  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. Both  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

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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.

     However,  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 Act,  1924. The  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.

     The  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. Hence  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

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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 said land. These  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.

     The  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.

     Therefore,  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.