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.
4. To this petition, as we have mentioned above, Respondents have filed on 30th of June 1972 an affidavit in reply dated 10th of Aug. 1972. That affidavit was sworn by one K. C. Agarwal who was at the relevant time Military Estates Officer, Poona Circle. Some of the contentions raised in this petition were challenged while some were admitted. It was asserted on behalf of the respondent in the said affidavit that the property belonged to the Government of India and the land was granted to the predecessor-in-title of the petitioner on old grant terms. It was also mentioned that superstructure on the said land belonged to the petitioner prior to the resumption notice. Secondly it was mentioned that the land had been given for the construction of a bungalow on old grant terms under the conditions of Government General Order 14 of 6-1-1827 to the predecessor in title of the petitioner. In this a specific reference has been made to the Government General Order of 6th of Jan. 1827 to which we will be making further reference later in this judg-ment. Reliance was placed in the affidavit on a judgment of the Privy Council in Kaikhusru Aderji Ghaswala v. Secretary of State : (1911)13BOMLR788 ), in support of the respondents' contention that all lands in the Poona Cantonment which included the land belonging to the petitioner must be held to belong to the Government and was further contended that the petitioner and his predecessors-in-title have reiterated by their conduct that the land belonged to the Government and was resumable by the Government by giving one month's notice. Specific reference must now be made by us to para 11 of this affidavit wherein the following sentence occurs.
'Although the original old grant is not available as already mentioned in the said (6th) para, it is clear that the predecessor in title of the petitioner had taken the land on a clear understanding that it belonged to the Government and was resumable with one month's notice. The father of the petitioner also purchased the superstructure along with the occupancy rights with the full understanding that the land belonged to Government and was resumable with one month's notice.'
From what has been mentioned in the affidavit in reply which has been briefly summarised by us two things appear to us to be clear. That there was an old grant purported to have been given under the Government General Order 14 of 6-1-1827 and that original grant was not available to the respondents but from the conduct which has been followed by the petitioner and his predecessor-in-title and the surrounding circumstances the notice of which has been taken by the Privy Council in Ghaswala's case the land must be held to be resumable by the Government by giving one month's notice. Basically therefore the origin of the grant was in fact pleaded but it was mentioned that it has been lost. It was also pleaded that under the terms of the said grant, land belonging to the petitioner was resumable.
5. On 13th of Apr. 1974 when this petition came up for hearing before another Division Bench, the Counsel for the respondents applied to the Court that he may be permitted to put in further affidavit or affidavits pertaining to Poona Cantonment land or buildings in general and in particular to the land involved in this petition. This application which was made without prejudice to the contention that disputed questions of title should not be gone into in a petition under Article 228, was granted by this Court. Accordingly, pursuant to this leave granted by the Court another affidavit dated 30th of July 1&74 and sworn by J. Seetharaman, Military Estates Officer, Poona, has been filed. This affidavit is from pages 77 to 253 in the petition paper book, i.e. running into 176 pages. Reference will be made at the appropriate place to the appropriate paragraphs of this affidavit. It would be necessary to indicate at this stage briefly that broadly speaking this affidavit contains a somewhat detailed history of the historical circumstances in which the Poona Cantonment was established on the basis of the records that were available to the officer swearing this affidavit. In several places opinion of the officer himself has been freely expressed and inferences traceable to the reasoning contained in the Privy Council judgment in Ghaswala's case are also to be found. The sum and substance of this affidavit is that Poona Cantonment was established by delimiting certain areas from which ownership of the private property was eliminated. It was therefore inconceivable, according to the respondents, that the private property which has now come into the hands of the petitioner could have been allowed to exist in a sea of Government property. In particular, in para 64 sub-para (e) it has been mentioned that:--
'.....it is inconceivable that the European Military Officers who owned and occupied the several surrounding houses could have allowed a private native person at that peculiar time to own and occupy a house in the midst of their houses.....'
From the very use of the word 'native' made by the officer swearing this affidavit it appears to us that several paragraphs in this affidavit are based upon some documents prepared some years ago by officers who could have called Indians as natives. To this extent there is, in our opinion, no proper application of mind to the facts which may have come to the notice of the officer swearing this affidavit. After this detailed affidavit which was sworn by J. Seetharaman was filed, the petitioner has filed another affidavit in reply at pages 254 to 384. Thereafter there is another affidavit of J. Seetharaman running into 4 pages from 385 to 388. During the course of the arguments two compilations containing copies of certain documents were handed over to us. From pages 389 to 406 are copies of documents given to us in the compilation on behalf of the petitioner. The compilation consisting of pases 407 to 421 was handed over to us on behalf of the respondents. Several arguments were in fact addressed on behalf of both the sides on the basis of the documents contained in these two compilations but at the fag end of the hearing Mr. Govilkar, who appeared for the respondents, did not admit the correctness of the documents which were filed on behalf of the petitioner. At this stages we should also note that the copies of the documents filed at pages 407 to 421 on behalf of the respondents have also been offered to us without being supported by an affidavit that they are true copies of the documents of which they purported to be copies. We are thus forced to keep out of consideration all the documents included in the paper book of this petition from pages 389 to 421. Considerable time of the Court would have been saved if the counsel appearing on behalf of the respondents had in the beginning itself taken objection to the admissibility of the documents tendered on behalf of the petitioner copies of which had been admittedly given to him. Unfortunately that course was not followed resulting in waste of time of the Court as well as of the Counsel.
6. Mr. Paranjape, the learned Counsel appearing on behalf of the respondents, has challenged the right of the petitioner to approach this Court under Article 226 of the Constitution on several grounds some of which he called preliminary grounds. In the first place, he contended that under Article 226 of the Constitution, as it stands, the petitioner has no locus standi to approach this Court inasmuch as none of the fundamental rights guaranteed under Part III of the Constitution is infringed or is threatened to be infringed. He also contended, which contention he had not given up while seeking the permission of the court to file a detailed affidavit, that disputed and complicated questions of title and of facts have arisen in this petition and this Court exercising its jurisdiction under Article 226 of the Constitution is not a proper forum for deciding those disputed questions. An argument was also advanced that notice of resumption which is contained in the impugned notice is pursuant to a term contained in the agreement of lease itself and therefore Article 226 of the Constitution is not attracted because what is sought by the petitioner is the adjudication of the contractual terms between the parties. An extended line of the same argument is that what is sought to be challenged in this petition is the refusal of the Government to pay rent to the petitioner consequent to the resumption of the property by the Government and this Court under Article 226 of the Constitution cannot enforce a contractual term or adjudicate upon breach of a term of a contract.
7. The challenge to the locus standi of the petitioner coming to this Court under Article 226 of the Constitution is based upon the interpretation which has been put by Mr. Paranjpe. According to Mr. Paranjpe, the petitioner could approach this Court under Article 226 only for the purpose of enforcing any of the rights conferred upon him by the provisions of part III of the Constitution. In other words, unless a fundamental right is infringed or is about to be infringed the petitioner cannot approach this Court under Article 226. That indeed is the language of the constitutional provision itself but Mr. Paranjpe says that the petitioner must allege and then prove that he is the absolute owner of the property the right to which is now threatened by the impugned notice. In his submission on the material placed before this Court this absolute right of the petitioner to the ownership of the property has not been established. Though Mr. Paranjpe says that this is a preliminary objection, we are unable to share his view that this could be a preliminary objection. Though the petition alleges the absolute right of ownership of the property of the petitioner it proceeds to challenge the impugned notice on the ground that there is no grant containing the terms giving the Government the power to resume the land. If ultimately it is found that the impugned notice does not threaten any property rights of the petitioner, the petition may be dismissed but that is not on what Mr. Paranjpe called a preliminary objection,
8. While narrating briefly the facts upon which the challenge of the petitioner is based, we have noticed that the petitioner has come in possession of this property through his father who himself had purchased it from another. The property includes the land and buildings thereupon. Admittedly, both the land and the building had been leased from time to time by the petitioner not to any outsiders but to the respondents themselves who occupied that property pursuant to the lease granted by the petitioner's father and thereafter by the petitioner. The respondents also duly complied with the other terms of the lease, such as the payment of rent. That the petitioner has been holding this property having a right to lease the same and therefore to receive the rent in respect of the property cannot for a moment be disputed. That right has been recognised by the respondents themselves. Admittedly again the structure which is situated upon this land is of the ownership of the petitioner. By the impugned notice the respondents have threatened to take over that property by offering an amount unilaterally determined by them. If the petitioner can show that this unilateral determination of the compensation by the respondents is not supportable by any authority of law, there is a clear case of a threat to the fundamental right of property of the petitioner. If reference to any authority is needed in this connection one may refer to Madan Mohan Pathak v. Union of India : (1978)ILLJ406SC . In this case the petitioner before the Supreme Court had challenged the vires of the Life Insurance Corporation (Modification of Settlement) Act of 1976 by which the right of the employees of the life Insurance Corporation to receive bonus in accordance with the terms of a settlement earlier arrived at had been extinguished. As we read the report we notice that the leading judgment was given by Bhagwati J. who after reviewing the entire case law up to that date held that arrears of rent due from a tenant constituted a debt and was undoubtedly a species of property. We are therefore of the opinion that the impugned notice which threatens to extinguish all the rights, easements and interests that the petitioner may have in the land as also in the building is a threat held to the right guaranteed to the petitioner by Part III of the Constitution.
9. Before we proceed to consider Mr. Paranjpe's contention that this petition raises disputed and complicated questions of fact and law which could not be decided by this Court under Article 226 of the Constitution, it would be appropriate to dispose of his other contentions based upon the alleged contractual nature of the rights involved in this petition. Mr. Paranjpe is demonstrably on a weak ground when he says that the impugned notice is pursuant to a term in the contract of a lease and therefore what is being asked is the right under the contract. The notice itself speaks otherwise. It talks of a land held by the petitioner on old grant terms under which the Government is entitled to resume. The grant given by the Government cannot be regarded as a contract to which Government and a citizen are parties. Nor are we impressed by the contention that the challenge is in fact to the refusal to pay rent. Refusal to pay rent is a consequence rather than the cause of the deprivation of the property of the petitioner which is threatened by the impugned notice.
10. The petitioner seeks to avoid the consequences of this notice by claiming a declaration from this Court that the notice is of no legal effect! because it is not supported by any authority of law. This challenge in our opinion therefore cannot be regarded as a challenge which is based upon a term of contract between the petitioner and the respondents.
11. We must turn to a more substantial preliminary objection taken by Mr. Paranjpe to the hearing of this petition under Article 226 of the Constitution. He has asserted that the averments in the petition and the affidavit in reply read together lead to disputed and complicated questions of law involving the question of the title of the petitioner to the land and also complicated questions of fact. According to Mr. Paranjpe, there is sufficient authority in some of the judgments of the Supreme Court for the proposition that such disputed and complicated questions of fact and law could not be decided in a petition under Article 228 of the Constitution. One of the judgments of Supreme Court on which Mr. Paranjpe placed direct reliance is that in State of Orissa v. Ramchandra Dev : AIR1964SC685 . The facts of that case disclose that respondents in the appeal before the Supreme Court were ex-zamindars in whose favour the lands which were resumable were found to have been granted. In pursuance of the right of resumption which was found to be existing under the terms of the grant the appellant before the Supreme Court viz. the Government had resumed the property and had entered into possession of the same. The respondents had challenged this action of the appellant under Article 226 of the Constitution. It was also found that the lands which were held by the ex-Za-mindars, were on service tenure which was resumable at the will of the State. The petitioner's contention before the High Court was that they had proprietary interest in the areas granted to them and the appellant i.e. the State had no right to resume the land thus granted to them and was not entitled to recover possession from the Zamin-dars. The High Court took the view that it was impossible for it to decide the important question of title in writ proceedings under Article 226 of the Constitution. Having taken that view, the High Court proceeded to examine the narrow question as to whether the ex-Zamindars could be maintained in their possession of the Maliahs until eviction in due course of law or whether they were to be driven to Civil Court to establish their right after the Government had successfully evicted them by use of force or show of force. The High Court then expressed itself strongly against the intention of the Government to recover possession from the ex-Zamindars merely by resuming the grants without taking recourse to a Court of law. With the view which it thus took the High Court held that under Article 226 ex-Zamindars were entitled to an appropriate writ under the said article. It is true that some of the observations contained in this judgment apparently lend support to the arguments urged by Mr. Paranjpe that complicated questions of title could not be investigated into in a petition under Article 226 of the Constitution. As we have mentioned above in the case before the Supreme Court the right to resume was found to exist and the narrow question was whether after the Government had taken possession of the land pursuant to that right of resumption it was proper for the High Court under Article 226 of the Constitution to restore possession to the ex-Zamindars. This is not in our opinion an authority for the wide proposition that where a right to resume itself is questioned, the High Court cannot enter into an inquiry into the same under Article 226 of the Constitution. Another ground which weighed with the Supreme Court while upsetting the judgment of the High Court below was that as a result of the writ issued by the High Court the respondents would remain in possession of the property until the State filed a suit against them. According to the Supreme Court the said procedure was not justified unless the questions of title were determined.
12. Mr. Paranjpe's reliance on another judgment of the Supreme Court in D.L.F. Housing Construction Ltd. v. Delhi Municipal Corpn. (AIR 1979 SC 386) also seem to be misplaced when we notice the basis of that decision. There the Supreme Court held that in a case where the basic facts are disputed and complicated questions of law and fact depending on evidence are involved the writ Court is not the proper forum for seeking relief. As we will show presently, here it is not necessary for giving relief to the petitioner to decide complicated questions of law which appear to be disputed. Taking minimal basic facts about which no dispute can be said to exist, it is possible to resolve the controversy between the parties in this petition. For similar reasons we are also of the opinion that the judgment of the Supreme Court in Arya Vyasa Sabha v. Commr. of Hindu Charitable & Religious Institutions & Endowments, Hyd. : AIR1976SC475 is of no assistance to the respondents.
13. What is being missed by Mr. Paranjpe is the very narrow nature of the question involved in this petition. That question is the validity of the notice which is purported to have been issued under the authority of what has been called old grant terms. The petitioner no doubt has based his claim partly on the allegation that he is the absolute owner of the property in question and the Government has no authority whatsoever to take possession of the same but while summarising the averments in the petition we have already pointed out that alternatively he has pleaded that he is not holding the land under a grant and in any case if there is a grant it does not provide for resumption of the land. Indeed the prayer clause which also we have summarised shows that the challenge is to the notice on the basis that it is not supportable by any terms of the grant or any authority of law. The respondents themselves have, in their affidavit in reply, in turn admitted the existence of a written grant which is now said to be lost. It is the case of the respondents themselves that the land is resumable under the old grant terms. The respondents, as we have earlier indicated, have come in possession of the property in question pursuant to a lease granted by the petitioner who must be held to be having such proprietary right which enabled him to grant valid lease in favour of the respondents. The minimum position admitted by the Respondents must therefore be taken to be this that the petitioner is in possession of the property through his processors-in-title who came upon the property by virtue of a grant issued by the Government. The petitioner cannot be regarded as a trespasser on the suit property. The petitioner has acknowledged rights in the property, the rights which were acknowledged by the respondents themselves before and after the impugned notice was given. In these circumstances, the petitioner is entitled to come to the Court 'and contend that his right to hold the property and to lease the same will be extinguished by the impugned notice given to him Similarly, the unilateral determination of the compensation of the structures standing on the land is not in pursuance of any law or any terms of the grant under which originally the land was given to the predecessors-in-title of the petitioner. Even an offer of an arbitration committee will have to be justified by reference to either the terms of a grant or to some provisions of law. We do not see the necessity at all of deciding the question of the absolute nature of the title of the petitioner in this petition. So viewed, it is clear that no complicated questions either of fact or of law arise in this case. The respondents are being called upon by the petitioner by this petition to show under what authority the impugned notice is given. If the respondent are unable to show the legal basis of the notice, the petitioner must succeed. If the respondents are able to show that they have under the terms of a grant or under some other law a right to resume, the petitioner must fail subject of course to any other contention which the petitioner may raise regarding the right of the Government to resume the land.
14. That an executive action must be supported by the authority of law is a proposition of a text-book nature but nevertheless bears a repetition in view of the contentions raised in this petition. In Bishan Das v. State of Punjab : 2SCR69 on which Mr. Desai, appearing for the petitioner, predictably placed reliance, the right to a Dharmshala which had been built for the benefit of the travelling public was involved. The said Dharmshala had been built by one Ramji with the permission of the State on a land belonging to the State. After his death the petitioners before the Supreme Court continued the managment. They were however dispossessed of tha property by an executive order passed by the Sub-Divisional Officer in pursuance of directions given by the Deputy Commissioner and the management was thereafter placed in charge of the Municipal Committee. The petitioners approached the Supreme Court under Article 32 of the Constitution for enforcement of the fundamental right to hold the property until deprived of the same in accordance with law. The Supreme Court noticed that the petitioners could not be held to be trespassers in respect of the Dharmshala, temples and the shops appurtenant to the same. It was also held that the Dharmshala, temple and the shops did not belong to the State irrespective of the question whether the trust created was of a public or private nature. The Supreme Court further noticed that even the trustees of a public trust could be removed by following the procedure mentioned in Section 92 of the Code of Civil Procedure. The Supreme Court noticed the admitted position that the land belonged to the State and with the permission of the State Dharmshala, temple and the shops had been constructed and managed originally by Ramji Das and thereafter the petitioners. The Supreme Court held that the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their action. The action of the Government of taking law into their own hands and dispossessing the petitioner by way of force was frowned upon by the Supreme Court as exhibiting a callous disregard for the normal requirements of the rule of law apart from what might legitimately and reasonably be expected from a Government functioning in a society governed by a Constitution which guarantees to its citizens against the arbitrary invasion by the executive of peaceful possession of the property. While so holding, the Supreme Court placed reliance on an earlier decisions of its own in Wazir Chand v. State of Himachal Pradesh, : 1954CriLJ1029 and also on Ram Prasad Narayan Sahi v. State of Bihar : 4SCR1129 . Similarly in State of Madhya Pradesh v. Smt. Shiv Kunwarbai : AIR1971SC1477 it has been held that:--
'When attempts are made to deprive a person of his lawful inheritance it must be shown by irreproachable evidence that the person in possession ceased to have any interest therein at a particular point of time and that by some process of law the property vested in the person seeking^ to eject the former lawful possessor.'
As we have mentioned above, the proposition that every executive action of the State must be supported by law is almost of a text-book nature. Never-the-less, a reference to another judgment on which Mr. Desai relied can be made and that is the State of Madhya Pradesh v. Thakur Bharat Singh AIR 1967 SC 1170. That was a case involving the liberty of a citizen but the proposition laid down there is wide enough to cover the point involved in this petition viz. the right to property of a citizen. Explaining the law laid down in Ram Jawaya Kapur v. State of Punjab : 2SCR225 the Supreme Court pointed out that merely because the executive authority of the State extends to the legislative items of the State, the State or its officers in exercise of executive authority cannot infringe the rights of a citizen without an authority of law in that regard. These three authorities on which reliance was rightly placed on behalf of the petitioner are sufficient to show that any executive action must be supported by some authority of law and the State or its officers cannot by unilateral or arbitrary action threaten to extinguish the rights of the private citizens. Mr. Desai explained the limited ratio of the decision of the Supreme Court in State of Orissa v. Ramchandra : AIR1964SC685 . We have ourselves earlier pointed out that on the facts of that case the Supreme Court felt that in exercise of its jurisdiction under Article 227 of the Constitution the High Court was not justified in driving the State itself to file a suit for possession of the property from the ex-Zamindars especially when it was an admitted position that the Government did have a right to resume and in pursuance of that right the Government had entered into possession. The question to which we must address ourselves now is therefore whether there is any authority of law pursuant to which the Government can resume the property of the petitioner. Pursuant to a permission given by this Court, a detailed affidavit running into 176 pages including the annexures to the affidavit was filed on behalf of the respondents.
15-16. Mr. Paranjpe appearing for the respondents traced the history of the settlement of the Poona Cantonment on the basis of the material contained in this affidavit. This affidavit shows that after the battle of Bassein in 1803 a Brigade of British troops was stationed at Poona near St. Paul's Church which was outside the present Cantonment of Poona. The battle of Kirkee took place on 5th of No. 1817 and after the defeat of the Peshwas in the said battle Poona was captured on 17th of Nov. 1817. On 11th of February 1818 a proclamation was issued for delimiting the Poona Cantonment for the settlement of the fresh troops. In pursuance of this regulation several steps were taken by the military authorities for delimiting the area of the Poona Cantonment and for removing the persons who were found to be residing some of whose lands came to be included in the Poona Cantonment. Actually the Cantonment limits were said to have been marked pursuant to the direction contained in Regulation No. 22 of ,1827 which had come into force on 1st of September 1827. With considerable diligence and industry Mr. Paranjpe took us through pages after pages of this affidavit. Having gone through the same with his assistance, we have failed to find any reference therein to the property involved in this petition viz. the property situated at 17 Right Flank Lines. Ultimately Mr. Paranjpe sought to justify the respondents' contention that the property of the petitioner could not be his property mainly on the ground that no private property could in all probability exist within the Cantonment limits. In the entire affidavit to which are annexed several documents, we have been unable to find any mention of the fact that the remote processors-in-title of the petitioner were removed from the Cantonment area or that the property which they owned was purchased by the military authorities pursuant to the directions given from time to time. The affidavit itself in one sense is candid enough to admit that there is no direct evidence to the property which is now known as 17 Right Flank Lines. In para 65 and thereafter the details of the property at 17 Right Flank Lines are given. We have read all these pages carefully with the assistance of Mr. Paranjpe and apart from what is regarded as the remote possibility of a private citizen being allowed to reside within this military area nothing else is shown which could eliminate the possibility of the existence of private property of the petitioner's predecessors-in-title in the Poona Cantonment area. In particular, we may make a mention of sub-paragraph (e) of para 65 wherein it is mentioned that the houses surrounding House 17 Right Flank Lines i.e. the house involved in this petition were sold by the military officers between 1840 and 1852 and then it is mentioned:
'It is quite likely and highly probable that the present House No. 17 was also sold to a private person at about the same time by the Military Officer and it is inconceivable that the European Military Officers who owned and occupied the several surrounding houses could have allowed a private native person at that peculiar time to own and occupy a house in the midst of their houses.'
The sentence contains its own seed of destruction, On the one hand it refers as highly improbable that a private native person could not have been allowed to own and occupy houses in the midst of white Military Officers; on the other hand, it is mentioned that it was highly probable that the house was sold to a private person by the Military Officers. Further the affidavit proceeds to say that the precessor-in-title of the present owner must have purchased the house from the military owner thereof under the terms and conditions then prevailing subject to the ownership of the land of the Government with rights to the structures thereupon resumable at the pleasure of the Government. There is no dispute before us that the house stood on the land in question prior to 1827. It has not been shown as to how the land on which this house was constructed vested in the Government. If it was the policy of the then authorities, as mentioned in some of the regulations, to remove private citizens from the Cantonment area upon payment of compensation or otherwise purchasing their property, it has not been shown that such compensation was paid or some purchase price was paid to the original owner of the land in question. In these circumstances, it is impossible to subscribe to the view that the earlier predecessor-in-title of the petitioner could not have acquired any title to the land on which the present house is situated. We have already commented with some amount of distress upon the use of the words 'native person' by the officer who has sworn this affidavit. It shows, in our opinion, that the averments contained in this affidavit have been borrowed from some document written by a colonial officer in the past. It is doubtful whether the officer who swore this affidavit applied his mind independently to the facts which according to him were disclosed from the record perused by him.
17. Ultimately this exercise of reading the entire affidavit did not lead Mr. Paranjpe to a position better than the one that emerged from the facts mentioned in the judgment of the Privy Council to which we must now make a reference. That is Kaikhusru Aderji Ghaswala v. Secretary of State for India : (1911)13BOMLR788 . Great emphasis has been laid by Mr. Paranjpe on this judgment which according to him shows that the entire land situated within the Poona Cantonment area belonged to the Government and no private individual owned any land in the said area. In the said case Ghaswala, who was the appellant before the Privy Council, was a defendant in a suit filed by the Government to eject him from certain premises within the limits of the Poona Cantonment. The action of the British Government was based upon the claim that the land belonged to the Government and was only held by the appellant on military or cantonment tenure which entitled the Government to resume it at their pleasure subject to compensation for the buildings which a tenant might have erected thereupon. The appellant before the Privy Council had claimed the land as his own private property and had contended that he was entitled to compensation on the basis of private ownership and not as a mere licensee. In other words, the claim of Ghaswala was that he was full owner and on that basis he must be given higher compensation and not merely as a licensee. It must also be noted that the claim of Ghaswala relating to his ownership was traced to a document dated 27th of August 1864 whereby a Purser of Indian Navy certified that for the consideration mentioned in the said document he 'handed over' to the appellants' predecessor-in-title 'all claims he had to the house, out-houses and premises in general'. Examination of the history of the settlement of the Poona Cantonment and the regulations which were to be followed by the then military authorities led the Privy Council to the view that the purser himself did not have absolute title in the property and therefore could not pass absolute title to his vendees. It is true that while deciding the question before it the Privy Council referred to the history of the settlement of the Poona Cantonment and then proceeded to say as follows:
'It seems reasonably clear, therefore, that from the first the military authorities were conscious, as they would scarcely help being of the inconvenience and risk of having absolute owners of land within the cantonment, and of the necessity for propitiating them by proper settlements and compensation. Even if the appellant established that the house was built at or before the time the cantonment was formed, there is still, under the circumstances of the case, a strong probability that he was duly compensated along with other proprietors for the change in his position as owner to that of licensee. This probability is rendered stronger as the history of the Cantonment proceeds.'
Two features which according to us are striking from this case must be mentioned. One is the fact that the title of the appellant before the Privy Council was traced to a document dated 27th of Aug. 1864 by which time the Poona Cantonment had been practically settled. The probability of a private citizen being allowed in the area of the Cantonment was found to be small by the Privy Council at that late stage of the history of the Cantonment settlement. Secondly the document of title was executed by a member of the armed forces who was found to be in possession of the bungalow pursuant to a term that the bungalow was resumable by the authorities in accordance with the regulations which applied to a military officer. We find that these two factors were of sufficient importance in the conclusion arrived at by the Privy Council in Ghaswala's case. Moreover, we cannot overlook a very important clause mentioned in the judgment of the Privy Council viz. that under the circumstances of the case a strong probability existed that Ghaswala's predecessor-in-title was compensated. This cannot therefore be said to be an authority for the legal proposition that every person within the Cantonment area was paid off and was not allowed to remain amidst the officers in the Cantonment area.
18. Ghaswala's case has been referred to by the Privy Council in another judgment of its own viz. Secretary Cantonment Committee Barrackpore v. Satish Chandra Sen . In this case the property belonging to the respondent before the Privy Council was being acquired for a public purpose under the Land Acquisition Act viz. Act No. 1 of 1894. The respondent set up a claim that he was the full owner of the property and on that basis he was entitled to compensation. The Special Land Acquisition Judge held that the respondent was entitled to the full value of the land and accordingly passed a decree in his favour on the basis that he was the full owner of the land. The Government's challenge to this award having failed in the High Court, the case went up to the Privy Council. On the facts of that case it was found that the respondent before the Privy Council must establish his full ownership in order to merit higher compensation he being in the nature of the plaintiff in the Court of the Land Acquisition Judge. The Privy Council found that the respondent had not established his title in such a way as to merit higher compensation claimed by him. Then their Lordships of the Privy Council proceeded to say as follows:--
'Their Lordships hold that the fair inference from these facts, taken in connexion with the rules of 1838, is that much, and possibly most, of the land in this cantonment was and is the property of Government; that houses were erected upon it by the licence of Government, the buildings being recognized as the property of the persons by whom they were erected, and the land remaining in the ownership of Government, but that there may nevertheless have been within the cantonment limits some land which was never acquired by Government, and of which the ownership was always in private hands.'
The history of the delimitation of the Barrackpore Cantonment was almost on the lines upon which the settlement of the Poona Cantonment was made. Despite this if the Privy Council came to the conclusion that some land must have remained with private persons, we do not see how, it can be laid down as a matter of law that no land in the Poona Cantonment could have been the subject-matter of private ownership before or after the settlement of the Cantonment limits. Referring to its own decision in Ghaswala's case the Privy Council noticed that the said decision was based upon the probabilities which were made stronger partly on the basis of the regulations applicable to the Poona Cantonment and partly by the progress of the settlement of the cantonment. It has not been mentioned, as indeed it could not be done, that Ghaswala's case was an authority for the proposition that in Poona Cantonment no private property was existing because of a regulation which required that such property should not be allowed to exist.
19. At this stage we may also advert to another very significant observation to be found in the judgment in Barrackpore Cantonment case. The respondent on whom lay the burden of proving that he was the absolute owner in order to merit higher compensation was found to have failed to discharge that burden. Then the following observation was made by the Privy Council:--
'If it lay upon the appellant to prove the acquisition of the particular plot which is the subject of this appeal, there can be no doubt that he has failed to do so.'
In other words, if the Cantonment Board had been driven to file a suit on the basis of the title it would have also on the material placed in that case failed in its suit. Ultimately therefore it must be found out whether in fact a particular property was purchased by the Government while the Cantonment was settled. The view which we have thus taken after considering the two judgments of the Privy Council is not weakened by another judgment of the Privy Council in Hari Chand v. Secretary of State on which also reliance was placed by Mr. Paranjpe. The facts of Hari Chand's case are almost identical with the facts of Barrackpote case viz. that the plaintiff whose land in the Cantonment area is acquired for public purpose must prove his title before he can claim compensation. In the additional affidavit filed on behalf of the respondents the judgment of this Court in, Framji Dorabji Ghaswala v. Secretary of State has been included. In the said judgment a brief history of the delimitation of the boundaries of the Kirkee Cantonment has been given. Finding that the boundary lines had run in particular directions and considering the position of the property of the appellant in that case this Court held that:
'This is in itself sufficient to raise a certain presumption that the land belonged to the Government'.
Mr. Paranjpe's attempt was to extend this presumption to the lands in the Poona Cantonment area also. That attempt must fail because in Ghaswala's case that presumption was raised by considering the location of the various properties in Kirkee Cantonment and the manner and the terms under which that cantonment was settled. It is needless to say that the conclusion which emerges from the consideration of the evidence in a particular case cannot be put on the pedestal of a proposition of law in another case. On the facts of each case it will have to be found out whether the land in a cantonment area belongs to the Government and whether there is evidence before the Court in regard to the actual tenure of this land. Till such evidence is adduced and found reliable, it would be unsafe to assume that the land belonging to a private person was taken over by the Government in pursuance of one or the other of the regulations framed by the Government.
20. In para 14 of the affidavit dated 10th of August 1972 filed on behalf of the respondents it has been specifically mentioned that the land in question has been granted to the pre-decessor-in-title of the petitioner under the old grant . under the conditions of Government General Order dated 6th of Jan. 1827 which has a statutory force. This order has been reproduced in the affidavit dated 31st of July 1974 filed on behalf of the respondents and it is at page 118 of the Paper Book. It is in following terms:--
'The Governor General-in-Council finds it necessary to explain in general Orders that any permission which officers not provided with public quarters may receive to erect houses on ground within a Fortress or Military Cantonment confers on them no right of property whatever in the ground allotted to them for that purpose which continues to be the property of the State and re-sumable at the pleasure of Government'.
A proper reading of this order shows that the land itself in the first place must have been allotted to the officers and in the second place they must have been given permission to erect quarters on the said land. Thus, it is made clear that such permission viz. the permission to erect houses will not confer any title on the land allotted to them. We thus fail to see the relevance of this order while determining the question as to whether the ancestor of the petitioner had held the land with the right of resumption claimed by the Government. It does not refer to the permission, if any, given to the civilians; nor does it refer to the grant of land made to the private citizens.
21. Mr. Paranjpe referred to an application dated 18th of Feb. 1885 made by Jivanji Sultan Ali predecessor-in-title of the father of the petitioners. That application is to be found at Exh. 3 to the affidavit dated 10th of Aug. 1972. It was an application made by Jivanji Sultan AH to the Cantonment Magistrate requesting the latter to give him permission to add a room to his Bungalow No. 10 on Right Flank Wanowrie Lines. The Commanding Officer made an endorsement on this application on 30th of Mar. 1885 that the grant of the land applied or for the buildings to be erected thereon will not be injurious to the health and comfort of the troops or to the inhabitants of the cantonment or to the appearance of the cantonment. A map annexed to that application was also examined and found to be in order by the Assistant Quarter-Master-General. The application of Jivanji Sultan Ali was specifically for a permission for adding a room to the structure which was existing on the land. It was not for the purpose of granting permission to occupy the land or to construct a new house on the land already in possession of the applicant However at the end of the form there are certain terms which are alleged to have been accepted by the applicant who certified that the conditions which were referred to in his application dated 19th of Feb. 1885 granted to him had been explained to and were perfectly understood by him. One of the conditions is in the following terms:--
'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--the value to be fixed by a Committee of Arbitration, together with the sum originally paid as ground fee.'
From this term, which according to Mr. Paranjpe was accepted by the pre-decessor-in-title of the petitioner, it is sought to be inferred that the right of resumption was attached to the land and this condition was accepted by the predecessor-in-title. On a closer examination of the terms in which this form came to be utilised by the said Jivanji Sultan Ali, it will be seen that the interpretation sought to be put upon this form and the contents therein by Mr. Paranjpe is wholly misconceived. This is a form which was prescribed under a regulation of the year 1875. Section 18 of this regulation dealt with the cantonment and Clause 52 onwards of the said section provide for granting of the unoccupied lands in the cantonment area. Applications for occupying the lands were to be made in form 212 which is the form with which we are concerned. This is so provided in clause 56 which further stipulates that the application must be accompanied by a sketch or a rough plan of the site applied for embracing the portion of cantonment adjacent to it and exhibiting the roads, public buildings or private estates by which it was bounded. Clause 58 specified that no ground should be granted except on certain conditions one of which was the retention by the Government of 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. Even marginal understanding of these facts will show that the conditions which were alleged to have been admitted by Jivanji Sultan Ali were wholly inappropriate to the application for addition of a room which he had made. That application could not, by any stretch of imagination, be called an application made under Clause (56) of Section 18 of the Regulation of 1875. If the signature made by Jivanji Sultan AH under the said terms and conditions is to be regarded as an admission that admission is clearly explained by the very nature of the form and the circumstances in which that permission was sought. We therefore do not attach any importance to what Mr, Paranjpe has characterised as a clear-cut admission on the part of the predecessor-in-title of the petitioner.
22. At this stage we must check the flow of this judgment and turn to the crucial point involved in this petition. That is, as we have already indicated, the right of resumption pleaded by the Government under what is characterised as old grant term and the right of the Government to unilaterally fix compensation of a structure which according to them they are entitled to take. In para 11 of the affidavit dated 10th of August 1972 a clear-cut admission has been given on behalf of the respondents that there was an original grant which, at the time of joining the issue with the petitioner, was not available. If this is so, the respondents were at liberty to prove how and in what circumstances that old grant has become unavailable and to establish the circumstances under which they could produce and rely upon the secondary evidence. Section 91 of the Indian Evidence Act lays down that when the terms of a grant have been reduced to the form of a document and in those cases where any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such grant except the document itself, or the secondary evidence as admissible under the provisions of the Evidence Act. Section 61 stipulates that the contents of the documents may be proved either by primary or by secondary evidence and the primary evidence has been defined in Section 62 as the document itself produced for inspection of the Court. Section 63 defines secondary evidence to mean and includes --
(1) Certified copies given under the provisions contained in the Evidence Act;
(2) Copies made from the original by mechanical processes;
(3) Copies made from or compared with the original;
(4) Counter-parts of documents as against the parties who did not execute them; and
(5) Oral accounts of the contents of a document given by some person who has himself seen it.
23. Section 65 lays down under what circumstances secondary evidence can be given. The respondents have not made out a case as required by Section 65 of the Evidence Act to produce and rely upon secondary evidence. It is unnecessary to refer to this aspect of the case further because what has been produced in the affidavit is not secondary evidence at all as defined in Section 63 of the Evidence Act. The entire attempt on behalf of the respondent is towards probabilising the ease of the resumption terms from historical circumstances, contents of the regulation passed from time to time and the conduct of the parties. Even if one has to test the veracity of the claim of the respondents on this basis, we are bereft of the particulars such as date of the grant, the terms of the grant and the party in whose favour that grant was given. If it is the contention of the respondent that the land is resumable, the evidence relating to the terms on which the land is resumable must come forth. There is before us no such evidence. Merely because in one particular case on the probability of that case it was held that a land belonging to a particular person must have vested in the Government, it is impermissible for us to hold that similar set of facts existed in another case. On the material placed before us we have been unable to find any evidence relating to the land in dispute in this petition which would indicate that this particular land is resumable by the Government on the terms and conditions set out by them in the impugned notice. That notice is thus found to be without authority of law and naturally will have to be set aside.
24. Since however some arguments have been with considerable persistence advanced before us, we may make a brief reference to the same. Our attention is invited to the Government (Bombay) General Order dated 22nd Aug. 1835. If the object of this reference was to indicate that the land involved in the petition is also resumable, it has hopelessly failed in achieving that object. This order refers to the procedure for appropriation of unoccupied land within the limits of the military cantonment after this order came into force. Clause 5 of this Order mentions that the permission granted to occupy the land within the cantonment area confers no proprietary rights on the occupant. By another order viz. Government General Order dated 7th of May 1838 a system of rules is purported to have been evolved which permits resumption by the Government of the land which was allowed to be occupied by private persons. As it has been pointed on behalf of the petitioner, for the first time mention of the power of resumption occurs in these rules under the Government General Order of 7th of May 1838. One cannot contend and it has not been contended that this power of resumption operates with retrospective effect. Then there is Government General Order No. 569 dated 8th of Nov. 1849. Article 28 of this order required owners of houses within the cantonment, not being resident military officers, to have their names registered in the major or Brigade or Station Staff Officer's Office together with the bona fide value of their buildings, monthly rent and the names of their occupants. It has been mentioned that pursuant to this direction details of the houses were given. Then there is Government General Order No. 677 dated 15th of Dec. 1851 which also deals with applications for unoccupied ground for the purpose of being enclosed, built upon or in any way appropriated to the private parties within the limits of military cantonment. This provision relating to the occupation of unoccupied land is obviously inapplicable to the land in dispute which had been occupied long before this Government General Order was passed. Further provisions under these General Orders which include the provision relating to resumption cannot be said to deprive the predecessor-in-title of the petitioner of any right which he already possessed. One document to which reference would be most appropriate is to be found at Exh. 25 annexed to the affidavit dated 31st day of July 1974 and that is the notice issued by the Special Land Acquisition Officer, Poona, on 8th of November 19?8 calling upon the public in general and the occupiers of land in particular in Poona Cantonment to admit the proprietary rights of the Government to the soil on which their holdings stand or otherwise to establish their claim with documentary proof. If it is contended that the petitioner did not accept this invitation to prove his title and thus he must be deemed to have acquiesced in the title of the Government to the soil of the Cantonment Board, that contention must obviously fail because the Special Land Acquisition Officer, Poona is not shown to be having any judicial or other authority to determine the title of the properties in the Cantonment area. On the other hand, this public notice required occupants of the property in the Poona Cantonment area to prove their title giving rise to an inference that even the Government was aware as late as in the year 1928 that there were private properties within the Cantonment area. Reliance placed upon the registers of the Government property maintained by the Cantonment Authorities will also be of little assistance to the respondents because it has not been shown to us that before making entries in the registers, owners of the properties were individually informed of the proposal to make entries in such registers. It has been contended that public notice had been given and it should be regarded as a notice to all the occupiers in the Cantonment area. It has not been contended, let alone shown, that such public notice could be given or was given in pursuance of any provision in any Act or Rules made under any Act. It is an admitted position that no individual notice was given to the petitioner or his father before making any entry in the register maintained by the Cantonment Authorities. There is no presumption in law that the entries made in such register are true until the contrary is proved -- the type of presumption which will be found in respect of the entries in the Record of Rights under the Land Revenue Code.
25. Mr. Govilkar placed reliance upon Section 37 of the Bombay Land Revenue Code, 1879, wherein it has been mentioned that all public roads, lanes, paths and other parts of the land and/or lands wherever situated 'which are not the property of individuals, or of aggregate of persons legally capable of holding property' were declared to be with all the rights in or over the same or appurtenant thereto as the property of the Government. This, says Mr. Govilkar, shows that the property of the petitioner situated in the cantonment area must also be regarded as the property which vested in the Government under Section 37 of the Code. The fallacy of this argument need only be mentioned to be appreciated. Mr, Govilkar relied upon a statute of 1879 which speaks of the property 'which are not the property of individuals' vesting in the Government. Mr. Govilkar should not have missed that we are dealing with a property which was the property of some individual long before the Code came into force. If the most it could be suggested by the respondents that by subsequent change in the circumstances, including the promulgation of some Government General Orders, the property passed from the hands of individuals into the hands of Cantonment but that is not the suggestion. Worse still Mr. Govilkar failed to show us how the property with which we are concerned and which was, according to him, the property in the hands of the Cantonment Board could be covered by Section 37 of the Bombay Land Revenue Code. Another aspect of this argument which was relied upon on behalf of the respondents was the absence of any assessment payable on the holding by the petitioner. The contention was that the absence of assessment is itself an indication of the public character of the holding. We are unable to accept this interpretation because if the assessment referred to above is the one to be made under the Land Revenue Code, it is patent that the Land Revenue Code could not have applied in the first place to the lands in the Cantonment Board.
26. On a consideration of all the material that has been placed before us by the petitioner as well as the respondents, it is clear to us that there is no evidence whatsoever of the Government's right to resume the land in possession of the petitioners; there is no evidence of the terms under which that right of resumption, if any, could be exercised and most important, there is no evidence whatsoever of the right or power of the Government to acquire the structure standing upon the land in question by determining arbitrarily or unilaterally its compensation. All these three rights--the right of resumption, the right to resume upon particular terms and the right to take possession of the houses situated on the land which are mentioned in the impugned notice -- are found to be non-existing. The impugned notice, therefore, is patently without any authority of law and is not supportable by the terms of the grant which itself has not been proved.
27. In the result, it must be held that the respondents cannot act upon the notice of 29th of Jan. 1972. Accordingly, we hereby issue a writ of mandamus declaring that the notice bearing No. 701/62/L/L & C/71/12088/D (lands) dated 29th of Jan. 1972 issued by the Government of India in the Ministry of Defence is without an authority of law and is of no legal consequence and restrain the respondents in this petition from acting under the said notice or from resuming the property of the petitioner or any part thereof in pursuance of the said notice. Considering the number of days over which the hearing of this petition along with the hearing of Special Civil Application No. 364/71 went on we are of the opinion that the costs should be quantified at Rs. 1500/- in each of these petitions. We direct that the respondents shall pay to the petitioners the costs of Rs. 1500/- in this petition.
28. Petition allowed.