PHIROZE TEMULJI ANKLESARIA Vs. H C VASHISTHA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India seeks to challenge a notice dated 29th of January 1972, the contents of which would be shortly noticed, issued by the Government of India in the Ministry of Defence in the circumstances which will be clear as we proceed to narrate the facts. The property involved is a piece of land situated at 17. Right Flank Lines in Poona Cantonment and measuring 0.85 acres equivalent to 4100 sq. metres. On the said land is also situated a bungalow. The petitioner is at present the owner of the said property viz. the land and the building as a trustee. It is the allegation of the petitioner that the land included in the property is of freehold tenure and it had been purchased by his father Temulji Anklesaria, on 19th of Sept. 1918 from one Abdul Kader who himself had become the full owner of the land by virtue of succession. It is unnecessary to refer in any detail to the history prior to 1918 because it is not relevant for the disposal of the points which have been raised in this petition. The petitioner has challenged the abovementioned notice because the said notice informs the petitioner that the property is held by the petitioner on old grant terms under which the Government were entitled to resume the same. In exercise of this right of resumption purporting to be possessed by the Government, the notice informs the petitioner that on expiration of one month from the date of the service of the notice all rights, easements and interests which the petitioner may possess in the land as well as buildings standing thereupon shall cease from that date. By the same notice the petitioner was also informed that the Government were prepared to pay and offer a sum of Rs. 29596/- as the value of the authorised erections standing on the said land. In fact a cheque for that amount was sent along with the said notice and it is admitted before us that the petitioner has accepted that cheque, though under protest. The petitioner was further informed that if the amount of compensation offered by the Government in that notice was not acceptable to him, a Committee "as contemplated in the abovementioned old grant terms" will be convened on hearing from the petitioner to determine the value of the authorised erection. In other words, this notice tells the petitioner that with effect from one month after the service of the notice upon him, he shall cease to have right, title or interest in the property. It is this notice which has been challenged by the petitioner as being without any authority at law.

(2.) Before we consider the various contentions, it may also be noted that by an agreement of lease dated 19th of Oct. 1929 between the petitioner's father as the owner of the said property and the Secretary of State, the petitioner's father granted a lease of the said property to the Government of India for a period of five years from Nov. 1929 on a rent of Rs. 110/- p.m. There is no dispute that in pursuance of the said lease deed the Government of India did pay the rent from time to time. The Government retained occupation of the said property under the said lease till the end of 1934 though it has also been mentioned that for a short period in 1935 the Government had again occupied the property under a monthly lease. Subsequently by an agreement dated 19th of April 1940 between the then trustees of the said property, who included the petitioner, as the owners of the property and the Governor General in Council, a lease described as "Repairing Lease" of the property, was given to the Government for a period of five years commencing from 20th February 1939. It has been called repairing lease because under it the lessee was to repair the buildings at his own expense and to restore the property on termination of the said lease in the same condition in which it wag let out to him. Though the lease expired by efflux of time, the Government of India continued to be in occupation of the said property as tenants holding over and are admittedly in possession of the said property till today. When the notice dated 29th January 1972 was served upon the petitioner, the petitioner found his title being challenged by the Government. In this petition the Government of India in the Ministry of Defence is the first respondent while the Military Estates Officer of Poona Circle is the second respondent. The Union of India as such has been made the third respondent.

(3.) By this petition which is filed on 30th of June 1972 the petitioner has challenged the legality of the notice dated 29th Jan. 1972 by contending that the land on which the bungalow is constructed is held by him on freehold tenure and is of his absolute ownership. In the petition itself it has been specifically mentioned that it is not held on any cantonment tenure or on any grant or licence. The petitioner has briefly traced the circumstance under which his father and thereafter he came to acquire the property. Though the petitioner has asserted that the property held by him is of his absolute ownership he has alternatively pleaded that there is no grant whatsoever from the Government of India granting the petitioner or his predecessor-in-title the land involved in this petition. He has further mentioned that in any event there is no grant containing any terms giving the Government power to resume the land. It has then been mentioned that the structures standing on the land existed prior to 1827. Since there is no grant which gives power to the Government to resume the land, the Government's action in issuing the impugned notice is illegal being without any authority of law. The petitioner mentions that by the impugned notice the executive cannot deprive him of whatever right he holds in the property whether those rights are absolute or limited. The prayer is that this Court should issue a writ of mandamus declaring the impugned notice and all actions taken pursuant thereto as void, ultra vires, and of no legal effect and ordering the respondents to cancel the said notice.