SAHODARA DEVI Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) The appellants are admittedly the joint owners of Bungalow No. 45, situated along Tagore Road, in the Cantonment of Kanpur. These premises are recorded in the General Land Register of the Cantonment as occupancy land on old grant terms. It appears that the words "old grant terms" referred to grants made by the Government under the General Order of the Governor-General in Council dated 12th September, 1836 .Subsequently, the first Act to be passed in respect of these lands was the Cantonments Act No. 13 of 1889. This was followed by Cantoments Act No. 15 of 1910 and Cantonments Code. 1912. These were amended by Cantonments Act No. 2 of 1924 which still continues to be in force. On the 26th June 1925, Rules were framed for the first time under section 280 of the Cantonments Act of 1924, regulating administration of Cantonment lands. These Rules were, however, superseded by fresh Rules by Government notification dated 23rd November, 1937. The new Rules are described as "Cantonments Land Administration Rules, 1937". Under these Rules, a provision was made in rule 27 for regularisation of old grants by issue of fresh leases. The appellants did not have any documents to show how the original title of their predecessors was acquired in respect of these lands. The earliest document, which the appellants could produce, was a sale-deed executed by Ram Nath and others, sons of Roop Kishore, in favour of Dost Mohammad Estate, on the 8th September, 1943. This document recited that Roop Kishore, the father of vendors Ram Nath and others, purchased the property in various instalments by documents executed between the years 1901 and 1908. The appellants acquired the rights to the Bungalow by a sale-deed executed in their favour by Dost Mohammad Estate on 30th April, 1958. After taking this sale-deed, they applied for mutation to Cantonment authorities; but objections were raised and the authorities did not agree to mutate the names of the appellants until the appellants agreed to give an undertaking to be bound by the terms of the Governor General's Order of September 12, 1836. Their names were then mutated on 13th September, 1961, which had to be followed by a deed of admission executed by the appellants on 15th September, 1961. Subsequently, the appellants approached the authorities to get their rights defined and to have their possession regularised under R. 27 of the Rules of 1937. The request not having been granted, the appellants, on 12th April, 1966, moved the Military Estates Officer, Lucknow for the same purpose and, according to the appellants, no attention was paid to this request of theirs. On 15th October, 1966, they sent a reminder to the Military Estates Officer, Lucknow and, in addition, requested him to supply them with a form prescribed by Schedule V of the Rules of 1937. It may be mentioned that the lease under Rule 27 was required to be executed in the form in Schedule VII and not in Schedule V. On 25th October 1966, the Military Estates Officer wrote to the appellants to collect the form from the Cantonment Executive Officer, Kanpur Cantonment, who was the Agent of the Military Estates Officer, and to submit it, after completion, to the Military Estates Officer, Lucknow, along with a site plan. The letter contained an additional sentence that this reply sent also disposed of the earlier letter of the appellants dated 12th April, 1966.

(2.) The appellants had also, in the meantime, moved the Defence Ministry by a letter dated 27th August,1966, for grant of a lease under Rule 27 read with Schedule VII of the Rules of 1937, quoting an instance of one Mr. Packwood, resident of Kanpur Cantonment, in whose case a similar lease had already been issued. By the letter dated 25th October, 1966, the Joint Secretary to the Defence Ministry informed the appellants that a lease under Rule 27 and Schedule VII could not be granted; but, if the appellants so desired, the Government were prepared to consider their case under Rule 28 (1) and Schedule VIII of those Rules. The appellants made a representation against this letter by a letter dated 1st November, 1966; but, when no reply was received, they gave a notice to the Government on 28th February, 1967, to execute the lease in two months under Rule 27 and Schedule VII. Again, there was no reply and, thereupon, the appellants moved a petition under Art. 226 of the Constitution in the High Court of Allahabad on 18th March, 1967, seeking a writ of mandamus directing the Military authorities to issue a lease to them under Rule 27 and Schedule VII. The petition was heard by a single Judge of the High Court and he issued a direction to the respondents to grant a lease as prayed. He rejected the plea of the respondents ihat the case fell within Rules 16 to 26 and 28 and not under Rule 27. The respondents appealed to a Division Bench which agreed with the learned single Judge that Rules 16-26 and 28 were inapplicable to the case of the appellants. It was, however, of the view that, though the case was covered by Rule 27 that rule did not contain any mandatory provision requiring a lease to be given in all cases of old grants and that there was a discretion vested in the authorities acting under that rule not to give a lease in suitable cases. It was also held that the appellants had no right to claim such a lease under that rule. Consequently, the Division Bench set aside the direction of the single Judge and issued orders to the respondents to reconsider the request of the appellants for grant of lease under Rule 27 and Schedule VII of the Rules in accordance with law. It is against this order that the appellants have come up to this Court by certificate under Article 133 (1) (b) of the Constitution.

(3.) In this appeal, we are concerned with only one single point relating to the nature of the direction contained in R. 27 of the Rules of 1937. The concurrent decision of the single Judge and the Division Bench holding that Rules 16-26 and 28 are inapplicable, has not been challenged in this case before us. The only point that has been canvassed is whether the appellants are entitled to a direction against the respondents to issue a lease to them under Rule 27 and Schedule VII of the Rules of 1937.