REPORTABLE

IN THE 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

KAMLA VERMA .....RESPONDENT

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lJ U D G M E N T   

lANIL R. DAVE, J.   

1. Leave granted.

2. 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.

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3. 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.

4. 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  

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works of  the premises in question   and  to de-hire the same with immediate  

effect.                              

5. 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  

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lady  on  “old  grant”.  Being  aggrieved  by  the  aforesaid  judgment,   the  

respondents – Government authorities have filed this appeal.

6. 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 correct.

7. 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  

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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 High Court.

8. 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  

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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 tenure”  

would not 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  

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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  

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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.

9. 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  

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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.  

10. 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  

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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.  

The learned advocate  has also submitted that  the High Court  had rightly  

allowed the petition and,  therefore, the appeal be dismissed.

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11. We have heard the learned advocates  and  have also gone through  

the contents of judgment delivered  in the case of  Chief Executive Officer  

(Supra).

12. 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  

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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.  

13. 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  

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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.   

14. 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 grant”.  

The said paras read as under:

“9. 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,  the  conditions  of  occupancy  of  lands  in  cantonments are laid down. Thereunder, no ground  

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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.

10. The High Court in its impugned judgment  has  reproduced  extracts  from  the  book  on  Cantonment Laws by J.P. Mittal, 2nd Edn., at p.  

3, which may well be reproduced here:

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“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).

Under 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

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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  station.

With  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.”

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15. 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 bungalow….”

16. 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  

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incorporated in the counter affidavit filed by the present appellants before  

the High Court.

17. 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  

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said  fact  was  also  not  considered  by the  High Court  while  allowing  the  

petition filed by the present respondent.

18. 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.

19.  We, therefore, set aside the Order passed by the High Court.  The  

appeal is allowed accordingly.  No order as to costs.

........................................J.                                                                         ( P. SATHASIVAM)

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                                                                       ..................................... ....J.

                                                                          (ANIL R. DAVE)

New Delhi August 13,  2010.  

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