1. The petitioner (Delhi Simla Catholic Archdiocese) is a society registered under the Societies Registration Act and owns lands situated in the revenue estates of villages Okhla, Bahapur and Jogabai, said to be within the limits of the Delhi Municipal Corporation. Some lands were acquired by the State of U. P. for the purpose of digging what was known as the Agra canal. The petitioner claims that land, measuring 20 bighas (field No. 31-A) in Kham village Jasola had been leased out by the State of U. P. for the Model Farms owned by the Petitioner society. Such a lease is said to have been granted as early as June, 1951, according to the allegations in the petition; it transpires that there were such leases for an earlier period also. The exact period for which the petitioner has been in possession of the lands is, however, not material for the present case. What is material is the grant said to have been made to the petitioner on 1-7-1962 under the Crown (now Government) Grants Act, 1895. The petitioner society which has been having perpetual leasehold rights in 26.016 acres (part of what is known as old Mughal canal ) is cultivating these lands also under the name and style of 'Model Farms', Masihgarh. It is alleged that the petitioner society has spent thousands of rupees in developing and filling the said canal to make it fit for cultivation. The above grant made on 1-7-1962, was for a period of five years ; prior to that the leases granted earlier had been successively renewed. By a communication dated 29-5-1967 the petitioner was informed that the rights of cultivation in the said land were being auctioned on 20-6-1967 and that the petitioner might bid at the said auction if it so desired. It is further alleged that when the petitioner's representative met the Executive Engineer and the Assistant Engineer (respondents 3 and 4) of the U. P. Government in connection with the above said communication he was informed that this was done merely with a view to fix the lease money for a further period of six years starting from the first day of July, 1967. But on 10-6-1967 the petitioner was informed by respondent No. 4 that the auction would be proceeded with and that if the petitioner was not the highest bidder ejectment would follow. The petitioner gave a notice through their counsel claiming rights as tenant under the Delhi (Urban Areas) Tenants Relief Act, 1961 and the Punjab Tenancy Act, 1887.
As soon as the respondent No. 4 orally informed the petitioner's representative that there were orders for ejecting the petitioner society, the present writ petition was filed with a prayer to restrain such forcible eviction pending disposal of the writ petition.
2. An affidavit has been filed by Shri S. K. Sharma, Assistant Engineer No. 1, Upper Division Agra Canal, Okhla in opposition to the writ petition claiming that the land was granted to the petitioner under a registered deed dated 19-12-1962 (Annexure A in reply to the stay application) for five years from 1-7 1962 to 30-6-1967 on the terms and conditions mentioned therein and that the said grant was under the Government Grants Act (Act Xv of 1895). The allegation that the amount was spent by the petitioner for developing the land and to make it fit for cultivation has been denied. The allegation in the petition that the petitioner's representative was assured by respondents 3 and 4 after communication dated 29-5-1967 that auction was only to fix the lease money was denied. It was claimed that the respondents were within their rights to hold an auction, enter into a fresh grant with the petitioner and eject it, if it did not offer the highest bid .It was contended that the possession of the petitioner after the expiry of the period fixed in the grant, namely, 30-6-1967, was unauthorised and that the petitioner was thereafter a trespasser. It was denied that the lands are situate within the Delhi Municipal Corporation limits. It was contended that Section 3 of the Government Grants Act applied and that the same would take effect according to its tenor in spite of any law enacted to the contrary, namely, the Delhi (Urban Areas) Tenants Relief Act (which applies to the Municipal Area) or any other enactment would in no way make the conditions of the grant invalid.
3. It is not in dispute that the Government Grants Act of 1895 applies to U. P., it is applicable to the Union Territory of Delhi also. There is no difficulty about the application of the said Act because it extends, as per Section 1(2), to the whole of India except the territories which immediately before the 1st November, 1956, comprised in Part B States. According to Section 3 all provisions, restrictions, conditions and limitations contained in any such grant or transfer as aforesaid shall be valid and take effect according to the tenor, any rule of law, statute or enactment to the contrary notwithstanding.
4. The State of U. P. had amended Sections 2 and 3 of the Government Grants Act, 1895 by the State Amending Act (XIII of 1960). By reason of the said amendment the provisions of the Transfer of Property Act, 1882 were not to apply to Government Grants; the U. P. Tenancy Act of 1939 and the Agra Tenancy Act of 1926 were not to affect certain leases made by or on behalf of the Government. certain leases made or on behalf of the Government were to take effect according to their tenor. The last provision is important and may be read.
'All provisions, restrictions, conditions and limitations contained in any such creation, conferment or grant referred to in Section 2, shall be valid and take effect according to their tenor; any decree or direction of a court of law or any rule of law, statute or enactment of the Legislature, to the contrary notwithstanding: Provided that nothing in this section shall prevent or be deemed ever to have prevented, the effect of any enactment relating to the acquisition of property land reforms or the imposition of ceiling on agricultural land.'
5. The State of U. P. had chosen to make the above said amendment providing for the land reforms of that State having paramountcy over grants made under the Government Grants Act of 1895. It is also obvious the State of U. P. would have no legislative power with reference to properties situated outside its territorial limits, namely, Delhi. In other words, it would have no power to legislate with reference to its properties situate outside its territorial limits.
6. If the land in question falls within the Municipal limits of Delhi the provisions of the Delhi (Urban Areas) Tenants Relief Act, 1961 would apply. The reason for the said enactment was as follows: The tenancy laws in force in the urban areas of Delhi, that is, the area which before the 1st of November, 1956, were included within the limits of a Municipality or a Notified Area Committee or a Cantonment, did not provide for protection of tenants against eviction by the landlords. On account of the rapid growth of the city, more and more agricultural lands in the areas of Delhi were expected to be diverted to non-agricultural uses. Until such lands were so diverted it was necessary to confer security of tenure of agricultural tenants and to regulate the rent payable by them. The above said Act was, thereforee, passed in order to achieve the above said objective, making provisions for restoration of tenancy to agricultural tenants who were evicted otherwise than on special grounds from their holdings on or after the 1st of July, 1958. The said Act extended to the Union Territory of Delhi which immediately before the 1st day of November, 1956, was included in a Municipality or a Notified Area etc. According to Section 7 it was to have effect notwithstanding anything contrary to any other law, custom or usage or agreement or decree or order of the court. So far as the lands outside the Municipal limits are concerned the Delhi Land Reforms Act of 1954 applies. The said Act extends to the whole of Union Territory of Delhi but not to the areas which are may before the 1st day of November, 1958, be included in a Municipality; it also did not apply to areas occupied for public purpose or public utility relating to lands acquired for a public purpose. The tenants of those lands who were recorded in the revenue register as being in possession on the relevant date were to acquire interest as Bhoomidar, Asami etc. Such tenants also could not be evicted.
7. It is, thereforee, contended on behalf of the petitioner that the Government Grants Act could not have any paramountcy over the above said two local laws in force in Delhi. It is also contended that the petitioner who holds the land belonging to the State of U. P. outside its territorial limits could not be discriminated against by the State providing for the land reforms of U. P. alone being given paramountcy over the Government Grants Act; it should also enable the local Acts of Delhi getting such paramountcy over the provisions of the said Act. Even in the view that the Punjab Tenancy Act of 1887, but not the other two enactments, applied the Petitioner who claims to have made improvements on the land, could not be evicted before compensation was assessed and awarded. According to Section 68 of that Act a tenant who had made improvements in accordance with its provisions could not be ejected until he had received compensation for improvements. It is claimed, thereforee, that there could be no forcible eviction of the petitioners by the State of U. P. except in the manner provided by law. The provision of right of re-entry in the said Act would be of no consequence because such right of re-entry could not be exercised in the face of the enactments having validity within the Union Territory of Delhi. The expression 'tenant' as has been defined in the Delhi (Urban Areas) Tenants Relief Act, 1961 would have the same meaning assigned to it in relation to areas to which the Punjab Tenancy Act applied as provided in that Act and in relation to the areas to which Agra Tenancy Act applied as provided in that Act. Whatever Act may be applicable according to the definitions in those two enactments the petitioner would be a tenant within the meaning of both those Acts. The Delhi (Urban Areas) Tenants Relief Act, 1961 provides for eviction of a tenant only on the special grounds specified in Section 3; none of those grounds are present in this case.
8. There was also some discussion as to whether the petitioner was merely a tenant or licensee. There can be no doubt that the petitioner has been given exclusive possession of the lands under the grant even in respect of trees, which were not given to it, the State of U. P. would be able to attend to them or gather their useful effect only with the premission of the petitioner. These, among other features, are clearly indicative of the exclusive possession being granted to the petitioner. The fact of the petitioner being in exclusive possession has not even been controverter. It is no doubt true that the mere fact of a person being in exclusive possession would not be conclusive in favor of the same being a lease because there may be other circumstances which may still negative the inference of a lease to indicate the same being only a license. There being no such feature in this case it is not possible to regard the same only as a license and not a lease (vide Associated Hotels of India Ltd. v. R. N. Kapoor, : 1SCR368 ). Mrs. M. N. Clubwala v. Fida Hussain Saheb, : 6SCR642 and Lakhi Ram Ram Das v. M/s. Vidyat Cable and Rubber Industry, (1969) 2 Scwr 658. I have, thereforee, to proceed only on the footing that the petitioner was granted a lease of the land despite reference to the Government Grants Act and the right of entry being provided.
9. I am unable to see how a State can make a grant of property situated outside its territorial limits under the Government Grants Act. In respect of such lands it would certainly have ordinary ownership rights-not Statal rights. The power to re-enter the property could not be so easily enforced by a State in areas where it does not exercise sovereignty or Statal power, it would be only at par with a private Lesser's right of reentry. Further, the property situated outside the territories of a State would be subject to the local laws of that State. I am, thereforee, unable to visualise a case of a State making any grant of property under the Government Grants Act outside is territorial limits; otherwise it may lead to a conflict between the paramountcy of the State making the grant (which is usually nil) outside the territorial limits of the State and that of the State where the property is situate Looked at in this manner it seems to me that reliance on the provisions of the Government Grants Act by the State of U. P. is altogether futile.
10. Achhru Ram, J., speaking for the Division Bench of the East Punjab High Court in Mathra Das v. Punjab Provinces, AIR 1949 EP 246 held that Section 3 of the Crown Grants Act did not take the lease of plots of building sites belonging to Government outside the operation of the Punjab Urban Rent Restriction Act, in so far as the provisions of that Act were applicable. Relying upon the decision of the Federal Court in Jagannath Baksh Singh v. United Provinces, and what the Judicial Committee of the Privy Council (reported in as Thakur Jagannath Baksh Singh v. United Provinces) had observed while confirming the above said decision of the Federal Court Achhru Ram, J., held that to eject the tenant on the expiry of the lease, the Crown has to follow the same procedure as laid down in Section 10 of the Punjab Urban Rent Restriction Act which any other landlord similarly situated is required to follow. Explaining the scope of the Crown Grants Act (As it was known then) Achhru Ram, J., referred to the observations of the Federal Court to the effect that there was nothing in the Crown Grants Act to limit the power of the legislature to pass such legislation as it thought fit thereafter as well as of the Judicial Committee of the Privy Council that Crown Grants Act could not be construed to limit the statutory competence of the Provincial Legislature under the Constitution.
11. In the light of the above principle the question is whether any of the above three local Acts or even any one of them would render the provision concerning re-entry in the above grant made under the Government Grants Act inapplicable in the present case. It may be noticed that it has not been possible for Mr. Watel, learned counsel for the petitioner, to make any positive statement before me as to whether the land in question despite an allegation to the effect in the petition which has been controverter in the return, is within the Municipal area or not. He stated at the bar that he made his best efforts to find out what the position was both from the Patwari of the Village as well as from the Delhi Municipal Corporation and he has not been able to make a statement one way or the other; in the result, it may either be within the limits of the Corporation or it may not be. He had, thereforee, only to argue this question on an alternative footing.
12. Shri G. N. Dikshit, who argued the case for the State of U. P., drew my attention to a decision of S. N. Shankar, J., in the Delhi Peasants Co-operative Multi-Purpose Society Ltd. v. Collector, Delhi, (C. W. 150-D of 1961 decided on 22-11-1967) holding that as per the language of Section 1(2)(c) the Delhi Land Reforms Act, 1954, would not apply to the areas held and occupied for a public purpose or a work of public utility and declared as such by the Chief Commissioner or acquired under the Land Acquisition Act, 1894, or any other enactment other than this Act, relating to acquisition of land for a public purpose. Even in the view that the Delhi Land Reforms Act does not apply to the area where the land in question, which has been acquired for a canal, is situate, Mr.Watel pointed out that according to Section 2 (1) of the same Act the Punjab Tenancy Act 1887, as modified by Punjab Act No. 9 of 1939, stood repeal they apply to areas to extends and that if the land in question was not one to which the said Delhi Land Reforms Act of 1954 applied the provisions of the Punjab Tenancy Act of 1887 (as amended) would still be applicable to it. As a consequence of this position Mr. Watel maintained that the petitioner could not be evicted before the payment a compensation. If the land was in the municipal area then the Delhi (Urban Areas) Tenants Relief Act of 1961 would apply and even then he could not be evicted. In no view of the matter thereforee, could the respondents seek to evict the petitioner forcibly by exercising the right of re-entry which has been reserved in the said lease.
13. Reliance was placed by Shri G. N. Dikshit upon a decision of a Division Bench of this Court (To which I was a party) in Rai Singh v. Union of India, : AIR1973Delhi169 . None of the observations in that case would be of any assistance to the respondents because the property in that case was in a Cantonment area to which the provisions of the Government Grants Act but no other local Act was applicable; Deshpande, J., who spoke for the Division Bench, had also drawn upon the analogy of a landlord having a right of entry and being able to effect re-entry as laid down in Hemmings v. The Stoke Pogis Golf Club Ltd., (1920) 1 Kb 720. But Mr. Watel brings to my notice the fact that the said decision, which was followed by the Calcutta High Court in State of West Bengal v. Birendra Nath Basunki, : AIR1955Cal601 has been disapproved by the Supreme Court in Lallu Yashwant Singh v. Rao Jagdish Singh, : 2SCR203 .
14. It is, however, needless to be detained by this aspect because the right of re-entry as an ordinary Lesser in terms of the right of re-entry under the lease has not been pleaded. Such a right, in the sense in which it has been upheld by the decision in Hemmings, (1920) 1 Kb 720 could not be claimed by an ordinary Lesser in India after the above decision of the Supreme Court.
15. It was finally contended on behalf of the State of U. P., that a writ under Article 226 of the Constitution could not issue at the instance of the grantee against the grantor (the Government) when the grant is resumable. Reliance has been placed for this contention upon the decision of the Supreme Court in State of Orissa v. Ram Chandra Dev, : AIR1964SC685 . On my above finding that this grant of property being outside the territorial limits of U. P. the State of U. P. cannot effect re-entry no assistance from the above said decision can be derived. The observations made in the above said case were in the context of a grant being resumable on the abolition of the office as remuneration for which the grant was made, in such a situation the person concerned had no legal right to continue in possession; no right of his had consequently been illegally invaded or threatened. The principle of law which is applicable to the present situation is what Hegde, J.. explained, speaking for the Supreme Court, in Mohanlal v. State of Punjab, 1970 Ren. C. J. 95 namely, that under our jurisprudence even an unauthorised occupant can be evicted only in the manner authorised by law. In the case of a Government grant of even property situate within the territorial limits of a State the grantor will not be able to re-enter if there is any local law which creates rights in the grantee rights higher than or different from those conferred by the said grant. As explained by Gwyer, C. J., in at p. 18: 'if ..... lands or buildings are vested in His Majesty for the purposes of a Province outside the territorial limits of the Province, the rights of the Provincial Government over them are analogous to those of a private owner'. The very basis of a Government granting property to another under the Government Grants Act enabling it to re-enter the property in certain eventualities, postulates that the Government can use its power in order to get back possession of the property within its territorial limits and that the grantee will not be able to resist the same; but there will be clearly no scope for the Government effecting re-entry in the case of property outside its territorial limits for it cannot do so qua Government but only as a private owner outside the territory of the State. In this view the respondents cannot derive any assistance from the fact that the Punjab Tenancy Act, 1887, was earlier than any point of time than the Government Grants Act of 1895.
16. The learned counsel for the State of U. P. were given more than one opportunity to cite decisions in addition to those cited at the regular hearing, even after the conclusion of the hearing, but they have not been able to cite any authority before me pertaining to a case where in respect of a Government Grant of property situate outside its territorial limits, the right of re-entry was upheld.
17. The impugned orders are quashed and the respondents are restrained from ejecting the petitioner by exercising the right of re-entry and except in due course of law. This Writ Petition is accepted accordingly with costs. Counsel fee Rs. 250/-.
18. Petition allowed.