D.S. Tewatia, J.
1. The petitioners have impugned the resumption of the property in dispute firstly on an all-embracing ground that it was without the authority of law Alternatively, regulation 6 of the Governor General-in-Council's Order No. 179 dated 12th Sept. 1836, which had been invoked in issuing the impugned notice of resumption Annexure g' dated 17th Mar. 1971, by respondents Nos. 1 and 2, is being labelled as null and void as being violative of the fundamental rights of the petitioners, ranted under Arts 31 and 19(1)(f) of the Constitution of India, and, in any case, the action of resumption is said to be suffering from the vice of discrimination and thus violative of Art. 14 of the Constitution.
2. Before embarking upon a consideration of contentions based on the aforesaid three grounds, it is apt to first clear a confusion in regard to the identification of the property in dispute sought to be resumed.
3. From the pleadings of the parties including the replication filed on behalf of the petitioners, the facts which indisputably emerge are that the petitioners father, Lala Duni Chand, held on 'old grant' terms as contained in the Governor General-in-Council's Order No. 179 dated 12th Sept. 1838 an area of 2.98 acres in Ambala Cantt. On 30th of July 1941, the petitioners father secured on lease from the Central Government, vide Annexure 'A', en area of 0.38 acres out of the area of 2.98 acres held on 'old grant' terms The lease, which was initially for 90 years was renewable up to 90 years. The remaining area of 2.80 acres held on 'old grant' terms was allotted Survey No 36 while the area of 0.38 acres held on lease after 30th of July 1941 was given Survey No. 38-A. the respondents have sought to resume the site covered by Survey No-36 covering an area of 2.80 acres and the building standing thereon which is described as Bungalow No 42, as would be clear from notice dated l7th of Mar. 1971, Annexure `D' which bears reproduction in full. It reads:--
'Whereas the land comprising Survey No. 36 (Bungalow No. 42). Ambala Cantonment masuring 2.60 acres and bounded as follows:--
North by--Brind Road and Survey No. 30-A,
South by--Survey No. 35 (Buogalow No. 40)
East by--R. H. A. Mess Road,
West by--Survey No. 33 (Bangalow No. 43), belongs to the President of India (hereinafter called the Government) and is held. on 'old grant'' terms as contained in Governor General's Order No. 179 dated 12-9-1836 under which Government are entitled to resume the said land.
AND WHEREAS the said property is held on hire by the Government is in the occupation of Government.
AND WHEREAS the Government have decided to resume the said property under the terms of the aforementioned Governor General's Order:
NOW therefore, in exercise of the power hereinfore mentioned, the Government hereby inform you that all rights, easements and interest you may have in the said land as also in the buildings standing thereon shall cease on the expiry of 30 days of this notice.
TAKE NOTICE further that the Government are prepared to pay and so offer you the sum of Rs 3,640/- (Rupees three thousand six hundred and forty only) as, the value of the authorized erections, standing on the said land. In case the amount of compensation offered is not acceptable to you, you are at liberty, if you so desire, to remove the structure so as to leave the land in the same condition in which it was before the erections.'
That means that the area covered by Survey No. 36-A and which forms the subject-matter of lease-deed, Exhibit 'A; dated 30th July, 1941 is not been sought to be resumed. Further, as would clear from paragraph 2 of affidavit by way of written statement to Civil Writ Petition No. 1455 of 1971, the land covered by Survey No. 36 on which stood premises of Bangalow No. 42, was admittedly under the ownership of the Central Government (hereinafter referred to as the respondent-Government).
4. The entire site covered by Survey Nos. 36 and 36-A and the building constructed thereon was with the Central Government on rent of Rs. 500/- per mensem.
5. In the light of the above survey of admitted facts, it would be unnecessary to take notice of any argument based on the assumption in the petition that the property sought to be resumed was under lease with the petitioners, vide lease-deed, Annexure 'A'; dated 30th July, 1941, and the said lease stood renewed for a further period of 36 years as a result of the acceptance by the respondents of the proposal to that effect contained in petitioners letter, Annexure 'B', dated 10th January, 1971.
6. The question almost identical as above, came up for consideration before a Division Bench of the Delhi High Court in Sh. Raj Singh v Union of India, AIR 1973 Delhi 169. Deshpande,, who prepared, the opinion for the Bench after an exhaustive survey of the constitutional and legislative history, with which it is unnecessary to burden this judgment, held that the Governor General-in-Council's, Order No. 179 dated 12th Sept. 1836, is a valid piece of law and any action taken thereunder thus has the authority of law.
7. While examining the question that regulation 8 was violative of the fundamental rights of the petitioners, contained in Arts 31 and 19(1)(f) of the Constitution, Deshpande, J., observed as under:--
'The power of resumption is a special power given by a statutory regulation. It would be presumed, therefore, that the enforcement of the power is also to be made under the same statutory regulation. For there b nothing to show that the statutory authority was required to go outside the statutory regulation to a Civil Court or to some other authority for such enforcement The statutory regulation is self-contained. For, the power of resumption simply means that the status quo ante before the grant comes into being.
It cannot be said, therefore, that the Government took the law into its own bands or that the Government was acting without recourse to law in resuming the land and the house. The regulation is a special law. It did not contemplate the intervention of any judicial or quasi-judicial authority between the Government and the grantee. The total absence of any interest or right in or to the land disabled the grantee from claiming that the Government should file a suit against him to resume possession of the land and the house. There was no dispute to be decided between the grantor and the grantee regarding the resumption. This explains the direct exercise of the power of resumption by the Government under the statutory regulation. No objection can, therefore be taken to it. According to Art 31(5)(a) of the Constitution the regulation is 'existing law' prior to the Constitution. Clause (2) of Art 31 of the Constitution does not, therefore, apply to it. As the regulation clearly gives the right to directly resume the land and the house, the petitioner appellant has been deprived of his house 'by authority of law' within the meaning of CL (1) of Art 31. For the same reason, the right of the petitioner appellant to hold the house property under Art 19(1)(f) of the Constitution is subjected to the reasonable restriction under Art. 19(5) thereof in the interest of the general public...............'
With respect, we ate in entire agreement with the aforesaid formulations of Deshpande, J. (as his Lordship then was).
8. The primary point that has been debated before us is that the action of respondent No 2 (hereinafter referred to as the respondent-Government) in invoking regulation 6 for resuming the site covered by Survey No. 36 and the building erected thereon is discriminatory in that the property of persons who held the same under similar 'old grant' terms in the past had been acquired by pressing into service the provisions of the Land Acquisition Act, which envisage payment at market value of the building sought to be resumed along with solatium, which mode of assessment of compensation is more liberal and beneficial to the owner of the superstructure standing on the land owned by the respondent-Government than the compensation assessed and offered when such superstructure is sought to be taken over by the respondent-Government by passing a resumption order under regulation 6. Yet another point that has been canvassed with some vehemence on behalf of the petitioners is that principles of natural justice warranted that both before determining the quantum of compensation for the building and before issuing notice of resumption, Annexure `D', the petitioners should have been afforded an opportunity of hearing.
9. The learned counsel developing his submission pertaining to unequal treatment and thus being discriminated against stressed that where two alternative remedies were available, it was the one which was less harsh in its operation that had to be resorted to and, therefore, the provisions of the Land Acquisition Act which qualify the test of liberalism, and not the provisions of regulation 6 which provide no criterion for assessment of compensation for the resumed building and thus could be operated harshly against the owner of the building in regard to payment of compensation, that should have been invoked. The respondents in their written statement admitted that in certain cases, in the past, the provisions of the Land Acquisition Act had been pressed into service for acquiring the land and the superstructure standing thereon. But that practice had been given up. In the cases of Roshan Lal Sharma and R. L. Verma referred to in Para. 23 of the petition, it was by an oversight that the provisions of the Land Acquisition Act had been invoked.
10. In our opinion, the answer to the aforesaid contention is provided by S. 3 of the Government Grants Act, 1895 (hereinafter referred to as the Grants Act), which is in the following terms:--
'All provisions, restrictions, conditions and limitations over contained in any such grant on transfer as aforesaid shall he valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.
Their Lordships in State of U. P v. Zahoor Ahmad (1973) 2 SCC 547: (AIR 1973 SC 2520), while interpreting S. 3 of the Grants Act, held that S. 3 thereof declares unfettered discretion of the Government to impose such conditions and limitations as it thought fit no matter what the general law of the land might be. The meaning of Ss. 2 and 3 of the Grants Act was that the scope of that Act was not limited to affect only the provisions of the T. P. Act. The Government had unfettered discretion to impose any conditions, limitations or restrictions in its grants, and the right privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.
11. In view of the above, the contention that the Central Government was not within its right to invoke the provisions of regulation 6, cannot be countenanced. The petitioners are to he dealt with strictly in accordance with the conditions of grant that they had agreed to abide by when accepting the grant of the land for the purpose of erecting superstructure thereon which now along with the site stands resumed. No doubt, the Government in the past as also in regard to persons mentioned in Para. 23 of the petition had invoked the provisions of the Land Acquisition Act for acquiring the superstructures on the grant lands. This at best tantamounts to same concession having been shown to such persons by the Government and such a concession cannot be claimed as a matter of right and if the petitioners were not given that concession, that action of the Central Government cannot be termed as discriminatory, for when one comes to stake one's claim, then one is restricted to limit one's claim to the one which one is entitled to in law.
12. Now we examine the petitioners contention that before issuing the notice and before determining the quantum of compensation, they should have been afforded an opportunity of hearing. They sought support for this contention from a Division Bench decision of this Court reported as Union of India v. Mrs. Har darshan Sahi, AIR 1975 Punj and Har 228, and drew out pointed attention to the following observations thereof:--
'The argument of Mr. Kuldip Singh to the effect that in the absence of a specific provision in the grant requiring an opportunity of hearing being given to the grantee before any part of her grant is resumed, no question of satisfying principles of natural justice can arise, is wholly without merit. Principles of natural justice will always step in where civil rights of a person are involved or where some quasi-judicial and judicial function has to he exercised unless the application of any of those Principles is expressly excluded by the relevant law or grant. There is no such exclusion of the principles of natural justice is this case. Those principles must, therefore, apply both to the question of resumption of a part of the grant, and also to the question of determination of the quantum of compensation to which the respondent is entitled.'
The ratio of Mrs. Hardarshan Sahi's case (supra) itself has been pressed before us on behalf of the respondents. also to counter the submission aforesaid. The emphasis on behalf of the respondents is laid on the following observations of Chief Justice Narula who spoke thus for the Bench in the aforesaid case:--
'I am also in full agreement with the observations of the learned Judge in Chambers that things would have been entirely different if the entire plot forming the subject-matter of the grant was to be resumed. In that event, there woul3 be no cause to be shown by the grantee against the resumption in view of the absolute right of the grantor to resume the grant. Things are, however substantially different in a case where the Government wants to resume a portion of the land forming the subject-matter of the grant. It does not need any argument to demonstrate that resuming an exactly identical area of land out of a plot on which a bungalow has been built at one place or at any other place may make all the difference for the grantee with whom the remaining land is going to be left though it may not make any difference at all for the Government insofar as its requirement for a particular area of the land abutting on the road or otherwise is concerned. In such an event it is manifest that the civil rights of the grantee to hold the remaining and after a part of the grant is resumed or seriously jeopardized by the selection of the area which may in one event practically destory the remaining grant also and in another event may not either affect the same at all or affect it negligibly. In such a situation it appears to me to be axiomatic that principles of natural justice would at once come in and require the Central Government to bear the objections and/or the alternative suggestions of the respondent and then finally decide which portion of the property they would like to take. Of course, the decision of the Government after hearing the respondent is not subject to any argument appeal or scrutiny'. The facts in Mrs. Hardarshan Sahi's case (AIR 1975 Punj and Har 228) (supra) were that only part of the grant land was sought to be resumed and it was for that reason that this Court held that before issuing the notice of resumption, the grantee ought to have been given an opportunity of hearing. The position in the present case is entirely different in that the whole of the grant is sought to be resumed and, therefore, the question of affording any opportunity as envisaged in Mrs. Hardarshan Sahi's case (supra) does not arise.
13. As regards the affording of an opportunity in regard to determination of quantum of quantum of compensation, it may he observed that the action of resumption of the grant land and its superstructures thereon is not conditional on the prior payment of the value of the superstructures. That is a liability that follows from the action of resumption. The position of the grantee being that of licence, once the licence is resumed, his position becomes that of a trespasser and he cannot hold on to the resumed property to which he would he so entitled if it is held that payment of the value of the superstructures on the grant land in the event of resumption of the grunt, would be condition precedent to the resumption thereof and the determination of the value would be made after affording an opportunity of hearing to the grantee.
14. We are also not prepared to go the whole hog with the counsel for the respondents when he, on the strength of the ratio of a judgment of the Allahabad High Court in Bhagwati Devi v. President of India, 1972 All LJ 382, canvassed that if offer of compensation was not acceptable to the grantee, he could remove the material within the period stipulated in the notice and give vacant possession of the site to the respondents.
15. Regulation 6 of the Grants Act imposes two conditions on the Government for resuming the grant, i. e., (1) that it would give one month's notice and (2) that it mould pay thc value of the permitted building that might have been constructed on the grant land. This regulation has to he interpreted in a manner that it neither thwarts the purpose behind the said provisions of resumption of the grant as and when considered necessary by the grantor nor does it put in jeopardy the grantee's right to receive in accordance with law, full value of the building that he was permitted, to raise on the grant land. Wren so construed, the extreme contention, in our view of 'leave it' or 'take it' advanced on behalf of the respondents in regard to the payment of value of the superstructures, cannot pass muster. With great respect, we find ourselves unable to subscribe to the view enunciated in Bhagwati Devi's case (1972 All LJ 382)(supra). We are of the view, as already observed, that the operation of the order of resumption cannot wait the payment of the value of the building. The order of resumption becomes operative on the date of expiry of period of one month from the date of receipt of the notice. Thereafter, even if the grantee tries to stay in the building. he does so as a trespasser and not as a grantee or a licensee and can be dealt with as such in accordance with law. It would, however, be incumbent upon the respondents to afford an opportunity of hearing to the grantee in regard to the determination of the quantum of value of the resumed building. In the event of the grantee not accepting the quantum of compensation that may be determined after hearing him by the competent authority, it would be open to the grantee to challenge the inadequacy of compensation in an ordinary Civil Court and seek recovery of what he considers to be the just and legal compensation for the resumed building.
16. In the present case Mr. C. D. Dewan, learned counsel for the respondents, supplied to us the document showing the mode of calculating the value of the building. The principle followed in calculating the value of the building is on the basis that the building had outlived its life on the date of resumption. What was then taken into consideration was the amount of the material, the money that would have to be spent on demolishing the building, and the cost of removal of the demolished material from the site. The value of the building was obtained after deducting the cost of the demolition of the structure and the removal of thc material from the site from the value of the material.
17. Firstly it would be a moot point as to whether the building had outlived its life. The building was with the respondents on a rental of Rs. 500/- per month on the date of resumption. Either before or on the date of resumption, it was not said that the building had become worthless for human habitation on account of its dilapidated condition or otherwise. The mode adopted by the respondents in calculating the value of the building of the petitioners is quite the contrary to the one ruled by their Lord-ships of the Privy Council in Secretary of State v. Sri Narain Khanna, AIR 1942 PC 35, wherein the Principle for calculating the value of the building laid down was in these terms:
'The subject to be valued being a building apart from the site the principle of fixing value by ascertaining the cost of reproducing the building at the present time, and the allowing for depreciation in consideration of the age of the building and for the cost of such repairs as might be required apart from depreciation is quite a well known and recognised method of valuing buildings for the purpose of compensation. That method was pursued here, and that method is not, as their Lordships conceive it, affected by the resumption notice because the prices which would be taken, and were taken, in this case, for the purpose of ascertaining the cost of reproducing the building would not be affected by the resumption notice at all.'
In the result, we hold--
(i) that the resumption of the building and the site underneath became operative on the date of the expiry of one months notice (from the date of receipt) given to the petitioners under regulation 6 in question, as the resumption of the building is not dependent on the prior payment of the value of the building;
(ii) that it was incumbent upon the respondents to afford an opportunity of hearing to the petitioners at the time of determining of the quantum of value of the building resumed; and
(iii) that since the petitioners had not been afforded an opportunity of hearing in regard to the quantum of compensation for the resumed building, we direct the respondents to afford an opportunity of hearing to the petitioners in regard to the assessment of the quantum of compensation for the resumed building and thereafter quantify the compensation for the said building.
The petition stands disposed of accordingly with no order as to costs.
18. Petition disposed of.