D.K. Jain vs Union of India

Jawahar Lal Gupta, J.—The Bungalow No. 65, The Mall, Jalandhar cantonments, which is built on land measuring 2.95 acres is the bone of contention. on November 26,1970 the Government of India, Ministry of Defence, had accorded sanction for the resumption of liver the possession of the premises. Aggrieved by the order, the petitioner''s predecessor-in-interest had approached the Delhi High Court through Civil Writ Petition No. 388 of 1971. This writ petition was dismissed by a Division Bench of the Delhi High Court by its judgment dated March 5, 1991. Aggrieved by the order, Mr. Shital Prasad Jain filed SLP (Civil) No. 10318 of 1991 in Hon''ble the Supreme Court of India. It has been stated by the counsel for the petitioner that the special leave was granted and registered as a civil appeal. The appeal was posted for hearing along with Civil Appeal No 3221 of 1991 on February 6,2001. The appeal was withdrawn. The appeal having been dismissed, the respondents issued a notice dated February 22,2001 to the petitioner calling upon the occupants of the property to vacate it. Aggrieved by the notice given by the Defence Estate Officer, the petitioner has approached this Court through the present writ petition. He claims to be the exclusive owner in possession of the property. It is alleged that "the respondents have no right or interest in any part thereof". The "land underneath the Bungalow in question had never been given by the Government of India by way of Grant to anybody...and the property is held by the different owners as exclusive owners thereof...". The respondents cannot forcibly dispossess the petition. They have to resort to the proceedings under the Public Premises. Act. On this basis the petitioner prays that the notice dated February 22,2001, a copy of which has been produced as Annexure P-2 with the writ petition, be quashed and that the respondents be restrained from taking forcible possession of the property.

We have heard Mr N.K. Jain, learned counsel for the petitioner. it has been contended that the petitioner is the absolute owner of the property. The appeal was withdrawn form the Supreme Court with the object of initiating fresh proceedings to establish title and that the action of the respondents in proceeding to evict without notice is wholly arbitrary and illegal.

The questions that arise for consideration are:-

Is the petitioner the absolute owner of the property?

Is the action of the respondents in proceeding to evict the petitioner illegal and invalid?

Regarding 1:

The factum of the petitioner''s predecessor-in-interest having approached the Delhi High Court and thereafter the Supreme Court has been mentioned in the writ petition. However, the copies of the pleadings and the judgment have not been produced. We think these were relevant. At our asking, the counsel has shown to us a copy of the SLP No. 10318 of 1991. On this paper book, as handed over by the counsel, the judgment delivered by the Division Bench of the Delhi High Court as also a copy of the written statement filed by Mr. R.P.Sehgal, Military Estate Officer, Jalandhar Circle, Jalandhar Cantonment, in reply to the writ petition are there. Still further, the rejoinder which had been filed by the present petitioner himself is also there.

A perusal of the written statement filed on behalf of the respondents in the Delhi High Court Shows that a specific preliminary objection had been raised in the following words:-

"The petitioner has suppressed material facts. He has not stated in the writ petition that his father, from whom the petitioner has inherited the property had admitted Government''s proprietary right in the land and subscribed to the conditions of the grant on which the site is held. True copy of the admission so made is annexed as Annexure R-1."

Still further, in para 2 of the written statement it has been averred that "the lands in Jalandhar Cantonment were properly acquired by the Government on payment of full compensation. Government of India is thus the sole and absolute owner of the land in Jalandhar Cantonment. The site of the bungalow in question, which is in Jalandhar Cantonment area, was granted for building purposes under the terms and conditions of Governor General Order No. 179 of 12th September, 1836, which applied to the Cantonment and the original grantee as well as the successors-in-interest including the petitioner are merely licensees holding the land under the terms and conditions contained in the aforesaid Governor General Order No. 179 of 1836."

It was also stated that the "Government is the absolute owner of the land measuring 2.95 acres (comprising Survey No 384) appurtenant to Bungalow No. 65 in question in Jalandhar Cantonment... the land is held by the petitioner and his predecessors-in-interest as licensee subject to the conditions of the grant while Government continues to be the absolute owner thereof with powers to resume the property at any time on giving one month''s notice in writing and paying value of buildings authorised to be erected thereon". Facts were also given to challenge the petitioner''s contention that the order of 1836 was illegal and ultra-vires the Constitution. it was pleaded that the "order of 1836 has the force of law and the notice of resumption is valid". On this basis it was prayed that the writ petition be dismissed.

It appears that Mr. Shital Prashed Jain who had filed the writ petition had expired while the matter was pending before the Court. Mr. D.K.Jain, the petitioner before us, filed a rejoinder by way of an affidavit in the Supreme Court of India. In para 1 of this affidavit it was asserted by him as under :-

"That I am owner is occupation of Bungalow No. 65, the Mall Road, Jalandhar Cantt. and as such, I am fully conversant with the facts and circumstances of the above mentioned case and competent to swear this affidavit on the behalf of the petitioner herein."

In para 3 it was inter-alia stated that "the claim of ownership of Union of India through the Revenue Khasra Girdawaries pertaining to Khasra No. 384 Annexure R-1 is totally ambiguous and vague as such these Khasra Girdawaries do not inspire iota of inference of ownership... Bungalow No. 65 which is situate on the Mall Road is in the continuous peaceful possession of the petitioner for the last so many decades... Moreover the assessment list of 1965-66 to 1967-68 and of the subsequent year 1995-96 and 1997-1998 which gives full description of the property in dispute i.e. Bungalow No. 65 shows the ownership of Smt. Vidya Wati wife of Shankar Dass the predecessor if the petitioner. This document undoubtedly establishes cogent evidence of ownership of the petitioner, but also establishes continuous and peaceful possession. The certified copies of the record are annexed herewith as Annexure P-1 and p-2."

In para 4 the following statement appears:-

"That the petitioner the absolute owner of the property, and the petitioner and its predecessor-in-interest have been enjoying continuous peaceful possession of the Bungalow No.65 as full owners for a period of more than 60 years and the petitioner Shri Sheetal Parshad Jain has never admitted categorically that the land of Bungalow No.65 belongs to the Union of India."

Even the admission, a copy of which was produced as Annexure R-1 with the written statement filed in the Delhi High Court was disputed.

At the hearing of the writ petition before the Division Bench of the Delhi High Court, the claim regarding ownership was not at all pressed The ''admission'' regarding ownership of the property in favour of the Central Government was not disputed. The challenge was confined to the validity of the Order No.179 of 1836. The factual position in this behalf is recorded in the opening paragraph of the judgment in the following words :-

"The petitioners in the aforesaid four writ petitions have sought a declaration that the Governor Gengeral''s Order No 179 of 1836 is not law or law in force or existing law. There are other prayers as well but the learned counsel for the petitioners have confined his arguments in respect of the aforesaid prayer only, although, inter alia, the petitioners have also sought a declaration that notice of resumption issued under the aforesaid order to the petitioners for resumption of the grant is illegal and null and void and that the notices may be quashed The two writ petition relate to be bungalows situated in Jalandhar Cantonment, and the two bungalows are situated in the Agra Cantonment in the other two writ petitions. According to the respondents, the land comprised in these bungalows are held by the petitioners and their predecessors-in-interest under the ''Old Grant'' tenure or term. So, they are liable to be resumed under the Governor General''s Order in Council."

The issue was considered by the Bench and it was held as under:-

"Thus, in the light of what we have considered above, we are clearly and firmly of opinion that Governor General''s Order in Council No. 179 dated 12.9.1836 had a statutory force and in existing law and law in force. No other contention had been advanced before us. There is no force in these writ petitions and so, they are hereby dismissed, leaving the parties t bear their own costs."

A perusal of the above factual position indicated that the ownership of the property and the validity of the resumption orders was in issue in the writ petition filed in the Delhi High Court. The Petitioner therein had not pressed the issue of ownership or the validity of the order of resumption. Only a declaration that the Governor General''s Order No. 179 of 1836 is not law was sought. This claim was not accepted.

A SLP was filed. The arising out of the SLP was withdrawn without any reservation. Yet, it deserves notice that in the SLP filed in the Supreme Court it was specifically pleaded in ground XXVIII as under :-

"Because the petitioner is the absolute owner of the property inn dispute as submitted in the writ petition and that the action of the respondent in issuing the impugned notice of resumption was without authority of law."

In ground XXV it was pleaded as under:-

"Because the alleged admission by Shri Shankar Dass Jain is not admitted by the petitioner or his predecessor-in-title. The alleged admission has not been proved in accordance with the law. The respondents are not entitled to rely upon the same. The circumstances under which the admissions has been alleged to have been made can be explained if it is proved that it is a genuine admission. The admission of title is not binding because the title does not vest in the respondents."

However, as already noticed, the appeal was withdrawn unconditionally and without any reservation. This is clear from the order passe by their Lordships on February 6, 2001. It reads as under :-

"Order

Mr. P.C.Jain, learned senior counsel, Dr. Sumant Bhardwaj and Mr.M.K.Garg, learned counsel appearing for the appellants, in C.A. Nos. 4133/91, 3221/91 and 3503/91 respectively state that the appellants wish to withdraw these appeals.

The appeals are dismissed as withdrawn.

Sd/- (V.N.Khare) Sd/- (S.N.Variava)"

15.It is in the background of this factual position that the contentions as raised by the counsel have to be considered.

The above noted factual petition clearly indicates that the petitioner''s predecessor-in-interest had raised the question of title. Even the validity of the order of resumption had been questioned. Despite that the issues were not pressed. It was a conscious decision taken by the petitioner and his predecessor-in-interest to give up the claim. The claim having been raised and having not been pressed shall be deemed to have been declined. Otherwise, nothing stopped the petitioner the in from contending that he was the absolute owner and that the order of resumption was wholly illegal. The fact that the petitioner''s predecessor gave up the claim in the High Court and that the present petitioner withdraw the Appeal in the Supreme Court now precludes him from contending that the notice given to him is illegal as he is the owner of the property. It deserves notices that even before their Lordships of the Supreme court, specific ground that the petitioner was the owner and that the order of resumption was invalid had been raised. However, at the hearing, the claim was not pressed.

Mr. Jain, learned counsel for the petitioner, has contended that the appeal was withdrawn so as to enable the petitioner to initiate fresh proceedings.

We are unable to accept this contention. The order passed by their Lordships has already been reproduced above. A persual thereof clearly militates against the plea as now sought to be raised. The withdrawal was totally unconditional. No right to approach any Court was reserved.

Consequently, the claim as made by the petitioner that he is the owner of the property cannot be accepted.

Regarding 2:

Is the notice given to t petitioner illegal and invalid?

The respondents in C.W.P. No. 388 of 1971 filed by the petitioner had specifically claimed that the Government was the owner of the property. They had also produced that written acknowledgement filed by the petitioner''s predecessor-in-interest. It is in the following terms :-

"I Shankar Dass holder of Bungalow No.65, Jullundur (Survey No.384) do hereby declare and admit that the site appurtenant to the above property and forming its compound as shown in the plaint attached hereto belongs to Government and is held by me subject to the conditions, limitations and disabilities laid down in the G.G.O. No. 179, dated 12th September, 1836. I furthers hereby declare that the trees standing in the compound of Bungalow No. 65, Jullundur Cantonment belong to Government.

Signed at Jullundur Cantonment this 4 day of January of 1951.

Sd/- Shankar Dass Signature of holder of Bungalow No. 65, Jullundur Cantt. In the presence of Witness : Gurdas Ram Hakim Full Address : B.I.Bazar, Jullundur Cantt. Banarsi Dass : Lal Kurti Bazar, Jullundur."

This document was executed on January 4, 1951. It was registered by the Sub Registrar on January 23, 1951 in the presence of witnesses. It had been duly read out to Mr. Shankar Dass, the executant, Thus, it was clearly acknowledged that the Government of India was the owner of the property. Still further, the property had admittedly been resumed in the year 1971. The order of resumption was challenged. The writ petition was dismissed. Even the Civil Appeal was dismissed. It is true that the petitioner has continued to remain in possession. This was apparently on account of the pendency of litigation before the Delhi High Court and then before the Supreme Court. However, the property having been resumed in the year 1971 and the petitioner''s claim having been finally decided by their Lordships in the year 2001, the respondents were entitled to call upon the petitioner to vacate the premises. There is no infirmity in the notice os as to call for any interference in proceedings under Article 226 of the Constitution. There is no equity in favour of the petitioner. We find no ground to invoke our equitable jurisdiction to help him.

Mr. Jain contended that the petitioner was entitled to an opportunity to show cause before he was ordered to be evicted. If such an opportunity had been granted it could have been established that the present petitioner is the owner of the property. We find no warrant for such a submission. The issue was raised before the Delhi High Court. The matter stands concluded. No fresh opportunity was required to be given to the petitioner. A decided cause is not required to be re-decided.

Mr. Jain also made a faint attempt to contend that proceedings under the Public Premises Act should have been initiated against the petitioner. Only thereafter, he could have been asked to vacate the premises. Such a plea could have been raised in the earlier proceedings. There is nothing to indicate that it was so raised. The petitioner cannot be permitted to raise a plea which was open to him at the initial state. It was submitted by the counsel that their Lordships of the Supreme Court had by an order of June 6,1991 granted stay of dispossession. A copy of this order appears at page 158-A of the SLP paper book produced before us by the learned counsel. The order is there on the file. However, the order clearly shows that the petitioner was apprehending dispossession even at that stage. He had claimed no final relief against dispossession.

Resultantly, even the second question s answered against the petitioner.

No other point has been raised.

Before parting whit case, it may be observed that we had started dictating this order in the open Court immediately after the counsel had concluded the arguments. He had continuously interrupted. Resultantly, we had stopped dictation but announced the order regarding the dismissal of the petition. The remaining portion of the order has, thus, been dictated in the Chamber.

In view of the above, we find no merit in this writ petition. It is, consequently, dismissed in limine.

It is directed that a photocopy of the SLP paper book produced by the counsel shall be placed on the record of this case. The copy given by Mr. Jain shall be returned to him.

Petition dismissed.