V.S. Deshpande, J.
1. Ubi jus Ibi remedium says the maxim. If so the converse should also be true. namely 'where there is no right; there is no remedy.' It is also equally turn that even where right exists it has to be enforced in due course of law. It cannot be enforced by self help without recourse to law. No body can be allowed to taken the law into his own hands. If thereforee a person without right to a property is dispossessed by the owner thereof directly and without recourse to judicial machinery. Can the former successfully challenge the legality of the dispossession? This question which arises frequently in courts has to be decided in the light of the above principles which may appear to be conflicting but would be found to be reconcilable.
2. Shri Raj Singh though his predecessors-in-title held a plot of land in Meerut Cantonment on what are known as the 'old grant' terms. A house has been built to the plot. He purchased the house in 1941 for Rupees 14000/-. On 4th November 1970. however he received the impugned notice in the following terms:--
'Whether the land .... belongs to the President of India and is held of you on old grant terms under which Government are entitled to resume the said land.
And whereas the Government have decided to resume possession of the said land and to obtain possession of the structures now standing thereon.
Now in exercise of the power herein before mentioned the Government given you this notice to quite and deliver possession of the aforesaid building site at 10 A. M. on 18th December 1970 to the Military Estates Officer, Meerut Cantonment failing which Government will under all powers enabling them in that behalf resume on the said date the possession of the aforesaid property and your occupation and any right. easements and interest you may have in the said and also in the buildings standing thereon shall thereupon cases as from that date.
Take notice further that that Government are prepared to pay and so offer you the sum of Rs. 407/- as the value of the erections standing on the said land. In case the amount of compensation is a not acceptable to you, you are at liberty. If you so desire to remove the structures so as to leave the land in the safe condition in which is was before the erections'.
Shri Rah Singh regretted on 25th November 1970 that the possession of the property could not be handed over and returned the cheque of Rs. 407/- because
(a) the compensation offered was very inadequate and
(b) the resumption of the property was not show to be for public purpose. But the possession of the land and the house was taken by the Government on the 18th December 1970 as previous intimated peaceably in the absence of Shri Raj Singh. On 4th April 1971 thereafter Shri Ram Singh filed a wit petition for quashing the impugned notice and for an order to the Government to pay fair compensation to him for the house and also directing the government to grant him a lease of the said land in place of the old grant terms on which it was held. He did not however seek to recover the possession of the land and the house from the Government.
3. The wit petition was heard by Sachar. J. before whom the following ground were urged in it support by the petitioner:--
(1) That the power of resumption given to the Government by the old grant terms was since then circumscribed by the subsequent decision of the President taken on the 20th March 1970 laying down that the land could be resumed only for a public purpose.
(2) The Government had no right to taken the law into its own hands and should not have thereforee taken possession directly from the petitioner without recourse to law.
(3) The possession of the land could be taken only be paying value of the building thereon. The compensation of offered for the building is inadequate. Pending the determination of the compensation. possession of the property could not be taken by the Government.
(4) The petitioner did not have any opportunity of the being heard either before the resumption of before the officer of the compensation was made and with a view to help determination of the compensation for the house.
4. The above contention were, however rejected by the learned single judge how held that--
(1) The resumption of the land and the a house was for a public purpose. Namely providing accommodation on to the families of the military officers.
(2) The power of resumption was exercised in accordance with law and the question of Government taking the law into its own hands did not arise.
(3) The determination of compensation was not a condition precedent to the resumption .
(4) The question of hearing the petitioner did not arise as the resumption was made in accordance with the old grant terms which are building on the petitioner and the fixation of the compensation could be done in an independent proceeding where in the petitioner would be heard.
5. In this appeal against the dismissal of the writ petition . Shri S. C. Gupta learned counsel for the petitioner appellant has argued that thought the land belonged to the Government and could be resumed by it the house belonged to the petitioner appellant and could not be resumed by the Government except on payment of compensation . The action of the Government in taking possession of both without payment of compensation to the petitioner appellant was otherwise than in due course of law. the notice of resumption was thus illegal and house be quashed. Let us examine the argument carefully.
6. The land situated in the Cantonments and belonging to the Government must to be given to private persons for building houses thereon under what are called the old grant terms. These terms are contained in order No.179 of 1863 issued by the Government General in Council and reproduced and paged 142 to 144 of the Military Lands Manual (1954) the preamble and regulation 6 and 7 contained in the said order are along relevant and are as below:--
'The Governor General of India in council is pleased to rescind the various orders not in force in this Presidency in regard of the occupation of ground and the disposal of premises or building situated within the limits of military cantonments. and to substitute for them the following regulation which are to have effect from the date of its promulgation at the different stations of Bengal Army:--
7. No ground will be granted except on the following conditions. Which are to be subscribed by every grantee. as to well as by those to whom his grant may subsequently be transferred:--
1st:-- The Government to retain the power of resumption at any time on giving one month's notice an payment of the value of such building as may have been authorised to be erected.
2nd:- The ground being in every case the property of the Government cannot be sold by the grantee but houses or other property thereon situated may be transferred by one military or medical officer to another without restriction except in the case of reliefs when. If required, the terms of the sale of transfer are to be adjusted by a committee of Arbitration.
3rd:-- If the ground has been build upon the building are not to be disposed of to any person of whatever description a who does not belong to the army. until the consent of the officer Commanding the station shall have been previously obtained under his hand.
4th:-- When it is proposed, with the consent of the General Officer to transfer possession to a native should the native the value of the house. Buildings or property to be so transferred exceed Rupees 5,000, the sale must not be effected until the sanction of Government shall have been obtained through his Excellency the Commander -in- Chief.
8. All houses in a military cantonment, being the property of persons not belonging to the army which may be deemed by the Commanding Officer of the station suitable from their local for the accommodation of officer shall be claimable for purchase or for hire at the option of the owner in the former case at a valuation and in the latter at a rent to be fixed in case of the parties disagreeing the committee of Arbitration constituted as follows'.
9. The is the nature of the regulation contained or order 179 of 1836? Two answer are possible namely.
(a) that they are statutory regulation issued under Section 43 of the Government of India Act, 1833 and
(b) that they are only administration instructing got only administrative statue in support of the first view it may be pointed out that Section 43 of the Government of India Act 1833 expressly stated as follows:--
'That the said Government General in Council shall have power to make laws and Regulation of repealing amending or altering any laws and Regulation whatever not in force'. The preamble of Order 179 of 1863 purports or rescind the various orders in force till then and to substitute for them the regulations promulgated thereby.
10. Secondly the word regulation was used for statutory regulations in later 18th and the earlier 19th century of the regime of the East India company supervised by the British Government in India. The power to issue regulations was given to the Governor General By the Regulating Act. 1772 as also by the subsequent Acts including the Government of India Act. 1833. The first two volumes of the Statue books those very contained the Bengal Relation and it is only in the third volume that Act occur Along with the Regulations. The positions was analogous to the one which obtained in medieval England prior to the emergence of the formal parliamentary enactment. C. K. Allen in his 'Law in the Making 7th Edn., page 476 quotes the following observation of Professor Plucknett:--
'The grant concern of the Government was to govern and if in the course or its duties legislation became necessary then it was effected simply and quickly without any complication or formalities.' the learned author then states:--
'These governmental acts go by a bewildering variety of names .... 'statute' is a less frequent term that most of the others and seems to have means something decided on' a provision of a public document rather then the whole document itself'. Section 45 of the Government of India Act 1833 states that all laws that regulations made was aforesaid shall be of the same force and effect within and throughout the said Territories as any Act of Parliament would. Section 65 Act of Government of India Act. 1858 continued 'all Acts provisions now (then) in force.' the regulations contained I order 179 of 1863 were provision of statutory and nature and were continued by the Act of 1859. Sec 130 of the Government of India Act, 1915 repe led the Government or India Act 1858 but provided that the repel was not to affect the validity of the Regulations issued there under and in force at the commencement to the Government of India Act. 1951. These regulation thereforee continued in force thereafter. On the principle embodied in Section 124 of the General Clauses Act 1897. these Regulations were continued in force unless and until they were repealed or they were inconsistent with some later enactment. They would thereforee be deemed to be in force in view of the Article 272(1) of the constitution.
11. Thirdly, the words in the preamble of the order such as to rescind the various orders now in force the following regulations which are to have effect from the date of its promulgation indicate that the order which were rescinded and also the regulation which were promulgated were both of a statutory nature. Such language is not used for mere administrative instructions.
12. Fourthly, all or almost all Bengal Regulation have been regarded as a statutory in the nature. these are also Bengal Regulation and there is no reason why they alone should be regarded as purely administrative.
13. Lastly it is true that the preamble does not expressly state that the regulation were issued under Section 43 of the Government of India Act. 1833. But it is well established that if the power to issues regulation vested of the Governor General in Counsel there under, then even without the recital of the source of the power the regulation would be deemed to have been issued there under. The same view has been expressed by the Allahabad High Court in Sri Narain Khanna v. the Secretary of State of India in Council. first Appeal No.166 of 1935 decided on 12-9-1938 = : AIR1939All723 by Bannet. Acting C. H. and Verma J., and Smt. Bhagwati Devi v. The president of India Civil Misc. Writ Petn NO. 520 of 1969 decided on 26-9-1971 (All by Loker J.
On the order hand the legal Central Government or rather their legal advisers do not seem to have appreciated the above legal position but have proceeded on the assumption that these are executive orders and not statutory regulations. The reason seems to be that these regulations were repeated in Bengal Army Regulation 1855. 1873. 1880 Army Regulation India 1887 and the Cantonment Codes of 1895 and 1912. It is to be investigated whether the latter were issued under any statute or not. When the Cantonment Act 1925 was passed clauses (a) and (b) of sub-section (2) of the Section 280 empowered the Central Government to make rules relating to the grant of cantonment and conditions on which it should be granted. it is to be noted that by the time the Cantonment codes of 1895 and 1921 came to be formed the code of the Government has undergone a change. It was then decided that the cantonment land should be granted not on the old grant terms but as leases. But the 'old grant' terms continued to govern the grant previously made. This is shown by Rule 6 (iii) of the Cantonment Land Administration Rules 1937 which is as follows:--
'Classes 'B' (3) Land. which is held by any private person under the provision of that rules or which is held or may be presumed to be under the provisions of the Cantonment code of 1899 or 1912 or under any executive orders previously in force under subject to conditions under which the Central Government reserve or have reserved to themselves the proprietary rights in the soil'.
The words 'executive order previously in force' used therein would be shown that the old grant terms were understood to be executive in their nature. Similarly on 20th March 1970. The president issued an executive order laying down the policy for resumption of grant and leases. The very fact that under the 'old grant' terms a grant old be resumed at the pleasure of the Government while under the presidential order it could be resumed according to the 'old Grant' terms provided that the resumption was necessary for a public purpose would show that the President order modified the 'old grant' terms administratively. In so far as such modification was inconsistent with the old grant terms it could be effective only on the assumption that the 'old grant' terms it could be effective only on the assumption that the 'old grant' terms themselves were administrative. The Allahabad High Court in Raghubar Dayal v. Secretary of State of India in Council (194) 46 All 427 : AIR 1924 All 415 and Thankur. J. of the High Court of Himachal Pradesh in Durga Dass Sud v. Union of India. . have expressed the view that the old grant terms were executive in their nature. In the present case it is not necessary to decide which of the above we two views is to be preferred. For our decision would be the same on either of the two alternative hypotheses.
14. We first consider the argument of the petitioner appellant on the assumption that the order 179 of 1834 was a 'law' if so the president of India who now stands in the place of the Governor General in Council in view of Section 64 of the Government of India Act. 1858 is the statutory authority entitled to work out the right of the Government there under. these right are to be found on a construction of the first condition embodies in regulation 6 contained in the order. It says that:--
(1) government is to retain the power of resumption.
(2) at any time.
(3) one giving one month's notice, and
(4) paying the value of such building as may be have been authorised to be erected.
The word 'resume' means to retake possession of property so that the possession is restored to the authority who had originally given it to the grantee the power to resume possession at any time means that the grant did not confer any interest in or right to the land in the grantee. The only conditions to be complied with the Government in resuming the land are thereforee (3) one month's notice and (4) payment of compensation for the house. The requisite notice has been given Learned Counsel for the appellant however. Argues that Government could not have taken possession of the house without paying adequate compensation to the appellant. This argument assumes that the land could be resumed by the Government unconditionally. It nevertheless purports to distinguish the house from the land and say that the possession of the house could not be taken. It virtually means. thereforee, that the possession of the land also could not be taken. For, the land separate from the house. There are only two alternative construction of the first condition of regulation 6. Either the Government could resume the possession of the land and the house together or the government could not resume the possession either or the land or of the house. The first construction is the natural one . It accords with the maxim quicquied plantatur solo credit (what ever is affixed to the soil becomes. In contemplation of law a part of it and is subject to the same rights or property as the soil itself). It thereforee the Government had the absolute right to the resumption of land, then it had also the absolute right to the resumption of everything which is attached to it. For a person who knowingly builds on land which he known could be resumed by the Government at any time complain if the government takes away the land. The Government does not purport to take away the house but it inevitably goes with the land. the well known exception to this rule is the doctrine of acquiescence formulated by the house of Lords in the leading case Ramsaden v. Dyson (1865) 149 Rr 543. If the owner of land allows a person to violate his ownership by building on the land and assents to such violation. then he would be prevented later from setting up his right to the land to the damage of the person who built on the land. the owner would then be disabled from taking possession of the land itself because of cannot taken possession of the house and the two cannot be separated. This rule has been followed in India by the Judicial Committee of the a privy Council in Beni Ram v. Kundan Lal (1898) 26 I.A. 58. But the doctrine of acquiescence is itself subject to the counter exception that the party of the other is unable to prevent him self from being evicted by the owner. His only right is to remove the building from the land . As the first condition of regulation 6 had made it clear that the power of resumption was absolute, the grantee could not have any reason to think that by building up on the land he could prevent the Government from resuming the land. On the country a reading of the condition must have made it clear to him that the building would go with the land on resumption and the only right of the grantee would be to claim compensation.
15. The power of resumption is a special power given by a statutory regulation. it would be presumed thereforee that the enforcement of the power is also to be made under the same statutory regulation. For there is nothing to show that the statutory authority was to show 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 statue quo ante before the grant comes into being. It cannot be said thereforee that the Government took the law into its own hands or that the Government was acting without recourse to the 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 grant and the grantee regarding the resumption. This explains the direct exercise of the power of resumption but the Government under the statutory regulation. No objection can thereforee be taken to it. According 31 of (5) (a) of the constitution the regulation is 'existing law' prior to the Constitution. Ci (2) of Article 31 of the Constitution does not thereforee apply to it . As the regulation clearly given the fight 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 clause (1) of Art. 31. For the same reason the right of the petitioner appellant to hold the house property under Article 19(1)(f) of the constitution is subjected to the reasonable restriction under Article 19(5) thereof in the interest of the general public when the Government was allowed to resume the land along with the house to provide accommodation for the families of the army, for the on this view of the matter thereforee the petitioner appellant cannot subject to the resumption.
16. Alternatively we a may assume that the regulations contained in O. 179 of 1837 were not statutory but only executive. If so the grant of the land was a legal transaction between to parties. It is called a grant because is it not a transfer. It is different from a transfer in many respects. Firstly its terms do not fit in with any recognised mode of transfer such as sale or lease. Secondly it is governed by the special Act- the Government Grant Act 1895. Section 2 thereof makes the Transfer Property Act. 1882 inapplicable to government grants. Section 3 there of ensures that 'all provisions restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor. any rule of law. statue or enactment of the legislature to the contrary notwithstanding'. The power of resumption is a special one contained only in the grant. The procedure of writ enforcement is also. thereforee. presumably contained in the grant itself which appears to be self-contained. Neither the Code of Civil Procedure nor the Court- fees Act no the Suits Valuation Act no the Public premises (Eviction of Unauthorised Occupants) Act. 1958 and 9171 contemplated action for resumption being taken there under. As section 3 of the Government Grant Act gives the old grant terms full operation notwithstanding any statute to the country. It resumption of the land and the house is to be made directly by the Government under the 'old grant' terms without having recourse to any terms machination 6 of Order 179 of 1835 thereforee authorises the Government directly to resume the land without recourse to any other law then it cannot be argued that the Government should have taken recourse to any of these legal provisions. The condition is a part of the contract or transaction between the Government and the grantee. what it the nature of this transaction? It is not a transfer or a lease. For the essence of a transfer or a lease is that the transfer acquires an interest in or a right to the property so transferred. As the Government is empowered to resume the land at any time on giving one month's notice and as the building has to go with the land being a part of it the transaction can be only a bare license which is defined in Section 52 of the Easements Act. 1882 as follows:--
''license' defined -- where on person grant to another, or to a definite number of to the person a right to do or continue to do. in the upon the immovable property of the grantor something which would in the absence of such right be unlawful. and the such right does not amount to an easement or an interest in the property, the right is called a license.' It is to be noted that the word 'possession' is not used in Section 52. The reason is that ownership consists of various element the most important of which is possession . 'Possession' says Inhering, 'is the objective realisation of ownership'. Possession consists of two elements namely. (1) corpus possessions and (2) animus Possidendi. It is only when the property is in physical possession of a person who intends to keep it in his own right in exclusion to others that the person can be said to be in possession of the property. Such possession may be called 'legal or juridical' possession as distinguished from merely physical possession or custody. When the land was given to the grantee under the first condition of regulation 6. on right to or interest in it was given to him. He was. thereforee. given only physical possession but no legal possession . He was thereforee. only a licensee without any right to or interest in the land. Late justice Holmes in his 'Common Law', Lecture Vi, page 213. asked the question -- 'Is possession the fact or a right'? After consideration the relationship of possession to the ownership. Homles concludes at page 246 that 'the owner is allowed to exclude all and is accountable to no one. The possessor is allowed to exclude all but one. and is accountable to on one but him.' This leads to the conclusion that mere possessor has not right against the owner unless the owner has given him one. Possession without right it mere occupation. There is no legal protection to mere occupation against the owner. The law protects only right. This is why J. L. Parker learned Editor of Salmon on Jurisprudence, 9th Edition. observes at pages 412- 413 thereof as follows:--
'As the remedy develops and become more popular, their is a tendency for the purely physical element of possession become less important ..... 'Possession' ......... become more and more a question of right and less and less a matter of infra-jural fact. At the same time. as remedies multiply it become increasing important to ask. 'What kind of possession?' 'Possession for the purpose of what action?''
Dias on Jurisprudence. 3rd Edition at page 348 also concludes that--
'(T)here is nothing in the factual situation that determines the incidence of possession . It is determined on the basis of title because as between the two them. it is the person entitled to the land who deserves compensation by means of the action in trespass against the other. If it is sought to establish possession without proof of title. the 'exclusiveness' of the plaintiff's possession depends on the facts'.
Therefore. a bar licensee whose license is revocable at the pleasure of the licensor cannot be said to have any legal possession over the land as against the licensor though the may have such possession against all others. (Piryar Lal v. Jia Rani R. F. A. 88 -D of 1962 decided on 10-2-1972). He is only an occupier without any right to or interest in the land. If the grant had not preserved the right or resumption to the Government at pleasure then only the building of a house on the land by the grantee could be considered as an estoppel preventing the Government from resuming the and. It was precisely to exclude such an estoppel that such a right was reserved to the Government in the grant itself.
17. It is an these circumstance that we have to considered whether the petitioner appellant had any right to keep the possession of the land and the house after the land was resumed by the Government. The effect of resumption of the land by the Government was stated in the following words by the Privy Council in Secretary of State v. Sri Narain Khanna :--
'(I)t necessarily follows the as from the date of resumption the respondent cases to have any right to keep the building on the land.'
The grantee had of course the right to remove the building before can resumption . Thus the has the not done can he insist that the Government should have either filed a suit against him or resorted to the provision of the Public premises (Eviction of Unauthorised Occupants) Act and the Government could not have taken direct possession of the land and the house from him? We have already observed above that Section 3 of the Government Grantees Act disable the petitioner appellant from pointing out that the power of direct resumption of the land and the house given to the grantor by the 'old grant' terms is contrary to Civil Procedure Code on the public premises (Eviction of Unauthorised occupants) Act 1958 and 1971 or Section 6 of the Specific Relief Act or to any other law. But even if it is assumed that these laws were applicable. the total absence or any right to our interest in the land on the part of the petitioner appellant would still leave him without any remedy against the government. For. the prior possession gave him a right against everyone also other him a right against owner. But as against the owner he was not entitled to retain possession . This is strikingly brought but the provisions of Section 6 of the Specific Relief Act sub-sections (1) and (2) of which are as follows:--
'(1) If any person is dispossessed without his consent of immovable property otherwise that in due course of law he. or any person claiming thought him may. but suit. recover possession thereof notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought:--
(a) after the expiry of the six month from the date of dispossession ;or
(b) against the Government it will be sent that the petitioner appellant could have bee availed himself of the remedy under Section 6 only due if he was evicted 'otherwise than in due course of law' Shri S. C. Gupta contended that direct resumption of possession of land and house by the Government was 'otherwise than in due course of law.' For wise than law meant the Civil P.C. or the public premises (eviction of Unauthorised Occupant) Act. But the procedure of resumption under the old grant terms has itself been legalised by Section 3 of the Government Grants Act. It cannot. thereforee. be said to be 'otherwise than in due course of law'. Secondly. it is only a person who is 'Dispossessed'. from immovable property who can avail himself of the Government under Section 6. The word 'possession' however in this context. means 'legal or juridical' possession. The physical possession must be combined with the ought to posses. By the terms of the grant, the grantee know that the he had not right to possess the land after the grantor to posses than land after the grantor chose to resume it. Out of the two element constituting possession, thereforee, he had only one namely. corpus possession is. He did not have the other. namely. animus possidendi. Since he did not have the intention to exclude the owner after resumption. he had no right to keep possession after the resumption. He could not have. thereforee. invoked the possessory remedy under Section 6 of the specific Relief Act. A fortiori. he cannot invoke the remedy under Art. 26 of the Constitution.
18. Building of the house on the land granted to him could have made the license irrevocable under Section 60 of the Easements Act. But the conduit to of the grant itself was that the land could be resumed at any time. this prevented the license being irrevocable. The position of a leases whose tenancy has been determined I said to be better than that of the bare licensee. For the quondam lessee had interest in the property at one time. He would, thereforee. expect the Lesser to go to Court for obtaining possession from him. But is not an invariable rule. There is nothing to prevent the landlord form re-entering on the land and taken possession peaceably from the tenant 'subject only to certain statutory restriction on forcible entry' (23 Halsbury's Laws of England. paragraph 1446 at page 705). In Hemmings v. The Stoke Poges Golf Club Ltd. (1920) 1 Km 820 the Court of Appeal held that even if the landlord were to make what to would be technically a 'forcible entry' within the meaning of the stature concerned. the tenant would not be able to the him for assault. battery and trespass. This decision was followed in State of the West Bengal v. Birendra Nath Basunia. : AIR1955Cal601 , where Chakravarti C. J. and Lahiri J. held that the landlord can taken possession of the land from the quondam tenant and cannot be always driven to a court of the Law. This decision was followed by Sinha. J. in Manindra L. Goswami v. R. N. Bose. : 30ITR550(Cal) . It averment ex-lessee cannot resist taking or peaceful possession by the landlord. a fortiori. a bare license like the petitioner appellant cannot do so.
19. In Darbar Shri Vira Vala Surag Vala Vadia v. State of Saurashtra, : 3SCR521 , the grant was not an absolute one. It stood terminated when the capacity of the grantee as a cadet came to an end. It could. thereforee. be resumed by the grantor. No question of infringement of any fundamental right of the grantee arose as the grantee had no right to or interest in the land.
20. In State of Orissa v. Ram Chandra Dev Air 1961 Sc 685. the grant way by way of remuneration for services. It came to an end when the services to be rendered. The grantor. thereforee. resumed possession of the land directly without going to Court. In a writ petition by the dispossessed grantee, the High Court appeared to have assumed that the grantor was not entitled to seek recovery to possession of the property after resuming the grant in question . But the Supreme Court expressed a different view in paragraph 11 in the following words:--
'Ordinarily. where property has been granted by the State on conditions with make the grant resumable, after resumption it is the grantee who moves the court for appropriate relief. and that proceeds on the basis that the grantor state which has reserved to itself the right to resume may, after exercising it right seek to recover possession of the property without filling a suit. But apart from this aspect of the matter. it is difficult to see how the High Court was justified in issuing the writ in the present appeals the inevitable consequence of which would be that the respondent would remain in possession of the property until the appellant filed a suit against them; and that. in our opinion, would be justified unless question of title are determined and it is held that the appellant must file a suit before the respondent can be dispossessed. It appears that in issuing the writ in favor of the respondents. the High Court failed to appreciate the legal effect of it conclusion that question of title cannot be determined. It follows that no right can be postulated in favor of the respondents on the basic of which a writ can be issued in their favor under Art. 226. In paragraph 13. the court distinguished certain decisions cited by the learned counsel for the grantee on the ground that executive action no founded on any law was used in those cases to obtain possession . The action of resumption cannot be said to be such executive action no founded on any law.
21. For the same reasons, three other decisions relied upon by Sh. S. C. Gupta are distinguishable. In Bishan Das v. The State of Punjab. : 2SCR69 , the grant of land did not contain any condition as to the buildings to be constructed on it. The construction of the buildings on the land. thereforee, seemed to make the license irrevocable. The grantees could not, thereforee, be removed from the land by an executive flat. For. their rights to the buildings had to be determined outside the terms of the grant and this could be done only by a court of law or by some other judicial machinery. In Wire-Netting Stores v. The Delhi Development Authority. : (1969)3SCC415 , also the license in respect of the land became irrevocable under Section 60 of the Indian Easements Act due to the permitted constructions made thereon because there was no absolute right of resumption of land reserved to the Delhi Development Authority. In Mohanlal v. The State of Punjab 1970 All India Rent Cj 95 the lessees claimed that they were entitled to have the lease renewed for a further term of 5 years. That inquired into by a court of law or a judicial authority.
22. The above discussion leads to the following conclusions:--
(1) Mere physical possession without any claim of right to retain it against the owner confers on right on the possessor. The claim of right my be only a semblance. Nevertheless. there must be claim. however will plausible it may be if their is no claim of right at all then the possession is not legal possession.
(2) A person who is not in legal possession and cannot claim to have any semblance of right against the true owner will not be entitled in law to retain. Possession against the true owner.
(3) The true owner can peaceably recover possession from a bare licensee or a person in physical possession when claim of right against the owner directly without going to court of law or invoking the provision of the Public premises (Eviction of Unauthorised Occupants) Act.
(4) If however the person in physical possession without any thing resists the taking of possession and creates a law would not be justified in the having recourse to violence even in the enforcement of his right. the provisions of Criminal Procedure code. Section 144 either and 145. would perhaps be invoked by either party. Alternatively the owner my resort to a civil suit or proceeding under the public premises (Eviction of Unauthorised occupants) Act.
(5) The taking of peaceful possession by the power using just the necessary force incidental to the exercise of the legal authority does not amount of the taking the law into his own hands. It is a legal process and the possession in the such case is taken in due course of law specially when the terms of the grant etc. expressly given the right of resumption to the grantor.
(6) In view of the provisions of the Government Grants Act. 1896 and Section 6 (2) (b) of the specifically Relief Act 1963. The position of the Government as the owner of the land against a grantee of Government land is better than the position of an ordinary owner against his grantee.
(7) A trespasser is not under the disability of the being in mere permissive physically possession only as is the bare license whose license is not irrevocable.
We are thereforee of the view that the possession of the land and the house was taken by the Government from the petitioner appellant in due course of law. The petitioner appellant is not entitled to any remedy against the Government either by way of a writ petitioner or a suit or under section 6 of the Specific Relief Act. The special is thereforee dismissed but in the circumstance without any order as to costs.
23. The question of compensation would have to be considered in an independent proceeding between the ex-grantee and the Government in the light of the provisions of the first condition of regulation 6 and the whole of regulation 7 of Order 179 of Order 1836 . The question whether the Government must pay compensation or whether they can taken the stand that the grant can remove the superstructure if the Government do not want it would be considered there. Further. the application of regulation 7 to the determination as compensation in a resumption proceeding as distinguished from a proceeding for the acquisition of the house under the Land Acquisition Act will also be considered therein. Just as the learned Single Judge has not decided this question we would be leave it open for decision in such further proceeding.
24. Appeal dismissed.