A.F.R.

Reserved on 19.09.2019

Delivered on 19.12.2019

Court No. - 1

Case :- WRIT - C No. - 46421 of 2006

Petitioner :- Chandra Prakash Shivhare

Respondent :- Union Of India And Another

Counsel for Petitioner :- Pankaj Bhatia,M.I. Farooqui

Counsel for Respondent :- A.S.G.I. 2006/2008, Ajai Bhanot,

B.N. Singh, K.N.Yadav, Manoj Kumar Singh

connected with

Case :- WRIT - C No. - 24748 of 2019

Petitioner :- Chandra Prakash Shivhare

Respondent :- Union Of India And 4 Others

Counsel for Petitioner :- Ashish Jaiswal, Madan Gopal Sharma

Counsel for Respondent :- A.S.G.I., Chandra Bhan Gupta,

Shyam Mani Shukla, Swarn Lata Suman

and

Case :- WRIT - C No. - 57082 of 2017

Petitioner :- Chandra Prakash Shivhare

Respondent :- Union Of India And 3 Others

Counsel for Petitioner :- Archit Mandhyan, Mohd. Hesamuddin

Khan

Counsel for Respondent :- A.S.G.I., Chandra Bhan Gupta, Om

Prakash Gupta

Hon'ble Ramesh Sinha,J.

Hon'ble Ajit Kumar,J.

(Delivered by Ajit Kumar,J.)

1. Since all the three above matters are connected and the

reliefs claimed in two matters is on the basis of the pleadings

raised and relief claimed in the leading writ petition bearing Writ-

C No.- 46421 of 2006, all the three writ petitions are being heard

and decided by this common judgment taking Writ- C No.- 46421

of 2006 as leading case.

2. Heard Sri Archit Mandhyan and Sri Ashish Jaiswal

learned counsels appearing for the petitioner, Sri O.P. Gupta,

learned counsel appearing for the Union of India and Sri Chandra

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Bhan Gupta, learned counsel appearing for the Cantonment Board.

3. By means of the present writ petition under Article 226

of the Constitution, the petitioner has questioned the order dated

22

nd

November, 2001 passed by the Estate Officer, Agra, Cantt.

Exercising power under the Public Premises (Eviction of

Unauthorised occupants) Act, 1971 (for short 'Act, 1971') and the

order of the District Judge, Agra, dated 10

th

August, 2006,

whereby appeal of the petitioner under the Act, 1971 has come to

be rejected.

4. Briefly stated facts of the case are that the property in

question is the land property with construction of a bungalow so

recorded as Bungalow No.- 178 situate at Namiyar Mohalla,

Ajmer Road, Agra. It has been the property of the Defence

department and so recorded as well as a defence property under

Defence Land Register. It so happened that the territorial limits of

the cantonment board were excised and the area where the

bungalow situates was brought within the municipal limits of the

then Municipality of Agra, admeasuring 198.303 acres

approximately and, accordingly, Ministry of Defence vide

Circular No.- 79 dated 9

th

February,1957 excised the said area

from the limits of the cantonment of Agra. With the exclusion of

the area including the bungalow from the territorial limits of the

cantonment board, Agra, the petitioner being in possession, it

appears, applied for sanction of map to raise construction over the

land in question before Nagar Mahaplika Parishad, Agra and

Nagar Mahapalika Parishad, Agra approved the same on 28

th

March, 1958. With the approval so granted by the Nagar

Mahapalika Parishad, Agra, the petitioner raised construction over

the same. On 26

th

October, 1998, the petitioner was served with a

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notice under the signature and seal of the Estate officer under the

Act, 1971.

5. The petitioner submitted reply asking for certain papers

mentioned therein so that he may contest the matter. Thereafter,

the petitioner filed a detailed objection to the notice before the

Prescribed Authority of Agra Cantt. and requested for recall of the

notice dated 11

th

November, 1998 and dropping of the

proceedings. When nothing happened in the matter petitioner

approached this Court and this Court vide order dated 27th

January, 1999 passed in CMWP No.- 3190 of 1999 directed the

prescribed authority to decide the objection of the petitioner and

also supply the copies of documents requested by the petitioner.

Again when nothing happened, the petitioner filed another petition

and this Court vide order dated 8

th

August, 2001 directed the

respondent No.3 to decide the objection of the petitioner and pass

appropriate orders after affording opportunity of hearing to the

petitioner. In compliance of the above order the prescribed

authority under the order dated 22

th

November, 2001 rejected the

objection of the petitioner and held the constructions to be

unauthorized without there being any approval of the competent

authority and, accordingly, directed for removal of the same. The

petitioner then preferred a statutory appeal against the order

passed by the prescribed authority and the same has also come to

be rejected.

6. Having heard learned counsel for the parties and their

arguments raised across the Bar and having perused the record,

what we find that the moot question for our consideration in the

present case is as to whether a property already recorded as a

Defence property within the erstwhile territorial limit of

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cantonment, would cease to be a property of Government of India,

defence department, in the event, the area of the cantonment board

stands excised and the area where the defence property situates,

comes within the extended municipal limits of the local

Municipality. In the event the answer is in affirmative, say 'Yes',

the impugned orders would be quashed and in the event the

answer is in negative, the impugned orders would be upheld and

the petitioner would be liable to remove the unauthorized

construction. Accordingly, we framed following two questions to

be answered in the present petition:-

(A). Whether the bungalow No.178 situate at Namiyar Mohalla,

Ajmer Road, Agra ceased to be a defence property with the

extention of the municipal limits and the land over which

bungalow falls coming within the municipal limits; and

(B). Whether the defence Estate Officer acting as Prescribed

Authority can exercise power under the Act, 1971 in respect of a

property that falls within the municipal limits of a Municipality of

Agra.

7. Now coming to the first question, we needed to trace out

the history, if any pleaded, that has led to the occupation by the

petitioner of the bungalow in question. Bungalow No.- 178 is

admitted to the petitioner to be belonging initially to the defence

department. The petitioner's claim to be in possession of the

bungalow is since 1970 on-wards. Prior to the 19

th

February, 1957

the General Land Register, maintained by the Cantonment Board

(for short 'GLR') admittedly show area as survey number in

question within the cantonment board and the letter dated 30

th

November, 1957 issued by the Defence authority that the area

where the bungalow stands stood transferred to the territorial

5

authority of Municipality, Agra and the GLR showed entry in

respect of the bungalow as occupied by private individual and the

date of acquisition and possession column contains a remark “not-

known”. Municipal records shows that name of Shri G.D. Shiv

Hare had been entered over the bungalow as tax of house receipts

have been filed along with writ petition. Jal Sansthan receipt also

stands in the name of Smt. G.D. Shiv Hare.

8. Nowhere it has been stated in the pleadings raised in the

writ petition as to how the petitioner has entered into possession

of the property. He is not the son of Mr. G.D. Shiv Hare whose

name is recorded in the Municipal records with Chandra Prakash

Shivhare (1981-86). So, at the most the status of the petitioner as

an occupant would be of a sub-lessee/ sub-grantee. The original

lessee or grantee seems to have passed away much earlier and

there are no pleadings to that effect in the present writ petition.

The bungalow property is admitted to the parties to be a subject

matter of old grant. The petitioner not being a valid transferree

from the defence department, the question is as to whether the

bungalow in question ceased to be a defence property with the

enforcement of the Municipality in the area. The notification

states that the area ceases to be a defence area but from the perusal

of the Government of India notification dated 26

th

December,

1961, it is very much clear that the property that was under use for

non military purposes before excision, their control remains with

the Ministry of Defence under Rule 2(B) of the ACR Rules.

However, the minutes of Separation Committee show that the civil

area notified can be transferred to the State Government free of

cost but subject to certain formalities to be carried out.

9. It is not disputed that the both the Municipality as well

6

as the Cantonment Board are the local bodies in their own rights

having an operational area as per the respective Acts, under which

they have been constituted. The Municipality governing the area

of civil residents is a local body as in the present case constituted

under the U.P. Municipal Corporation Act, 1959, an erstwhile

municipality governed under the U.P. Municipalities Act, 1916

whereas the Cantonment Board operates basically in an area

defined as cantonment of the defence under the erstwhile

Cantonment Act, 1924, later superseded by the Cantonments Act,

2006. The landed property falling in the cantonment area may be

also in occupation of a civilian if it is either under the old grant by

the Government of India or under the lease of the department of

the Defence. But the landed property of the cantonment which is

recorded as such in the defence land register to be a defence

property cannot be in the ownership of a private individual unless

there is lease in perpetuity to that effect or by way of conveyance

of sale. The Cantonment Act, 2006 provides for incorporation of a

Cantonment Board for general administration of the land falling in

the cantonment area in the same manner as the municipality in a

civil area. An extension of Municipality to such area which was

earlier under the territorial limits of the Cantonment Board, if it

has been excised by the Government of India, Ministry of

Defence, it is the general administration of such area that would

stand transferred from the Cantonment Board to the Municipality

or the Municipal Corporation as the case may be, but a land that

belongs to the defence, may be under the lease or old grant by the

Ministry of Defence, Government of India in favour of civilian,

would not automatically get transferred either to that individual

who is the occupier of the property or to the Municipal

Corporation. The title shall remain with the defence department

7

unless and until it is transferred in the name of occupier by the

competent authority. The letter of the Under Secretary to the

Government of India, Ministry of Defence written to the Director,

Military Land and Cantonment explaining the excision of the

civilian area from cantonment clarifies eight points. The letter in

its entirety is reproduced hereunder:-

“No. 18/13/G/L & C/52/1028/ LC/ D/ (C&L)

Government of India

Ministry of Defence

New Delhi, the 7

th

February, 1955

To

The Director, Military Land and Cantonments

Excision of Civil areas from Cantonments

Sir,

I am directed to say that the question of terms on

which assets located in the areas to be excised from

cantonments may be dealt with has been under the

consideration of the Government of India. It has now been

decided that the following broad principles shall govern the

excision of civil areas from cantonment:-

(a) Cantonments Board's assets and liabilities the area be

transferred to the successor local body free of any

compensation except for such financial adjustment which may

be necessary in the local circumstances of each case.

(b) Income and expenditure be divided on the basis of actual

income from a source, such as octroi, should normally be

divided on population basis, a different method may, however,

be adopted if the local conditions warrant the adoption of such

a course.

(c) Government right in the leased sites etc., be transferred to

the State Government, free of cost, subject to the condition that

the income derived from such areas will be utilized for the

resident of those areas exclusively.

(d) Vacant lands be retained for future use or eventual disposal

by the Government of India.

(e) M.E.S. Properties, if any, be retained for use or eventual

disposal.

(f) To report on the extent of, and terms on which the properties

8

vesting in and belonging to the cantonment Board should be

appropritioned between the two local bodies.

(g) To report on the needs of the two areas for the construction

of new buildings, consequent upon the transfer of those existing

to either local body, with financial effect.

(h) To report on any other matter relevant to excision in so far

as financial adjustment or apportionment of assets and

liabilities or assignment of easement/ ammonities is concerned.

Yours faithfully

Sd/-

Deputy Secretary to the Govt. of India”

10. From the bare reading of the aforesaid clauses given

under the letter it is clearly revealed that Government right in the

lease sites would be transferred to the State Government free of

cost and that income derived shall be utilized for the residents of

such area.

11. However, in order to make effective those transfer of

the defence property to the State Government, it is required to

have necessary approval of the competent authority. The letter of

the Government of India, Ministry of Defence earlier issued in this

regard dated 26

th

December, 1961 clearly stipulates following

conditions:-

“2. As the lands excised from Agra Cantt. were surplus to

Defence requirements, being in use for non-Military purposes

before excision, their control remains with the Ministry of

Defence under Rule 2(b) of the ACR Rules. The M.E.O. Agra

Circle, is therefore, responsible for management of these

lands under Rules 3(b) ibid and specific orders to this effect

are not necessary.

3. In accordance with the minutes of the Separation

Committee the M.E.O. Agra Circle, should initiate

immediately proposals for:-

(a) Transfer of lease hold site inside the ex-notified civil area,

to State Govt. free of cost.

9

(b) Conversion into free hold of all old grant and lease hold

sites outside ex-notified civil area, on payment by the holders

of conversion value at the rate of 25 times the current market

rent in 5 easy instalments. In this connection the method

followed in Sitapur Cantt. may be adopted.

(c) Disposal of vacant sites, by dividing into suitable plots,

wherever necessary.

4. A site plan distinctly showing the sites involved and a

statement containing GLR entries, should be furnished with

each proposals.”

12. From the reading of the aforesaid notification it is quite

clear that although the area stood excised following extension of

the municipal limits but the excision is only for the purposes of

the municipal function. The rights and title do continue with the

Union of India, Ministry of Defence. As in the earlier part of this

order, we have discussed that the defence land register also shows

that bungalow No. 178 to be in occupation of private individual

but the land and bungalow do continue to be recorded as such and,

accordingly, the property is a defence property. The petitioner in

the entire pleadings has not disclosed as to how he has come to

occupy the land of bungalow in question. He is not able to

demonstrate any lease in his favour or in favour of his

predecessor-in-interest and, therefore, his continuance is only

subject to approval of the defence department and any

construction upon vacant land or remodeling of the house

necessarily required the approval of the competent authority.

Merely because Agra Municipality had sanctioned some map for

construction of building over the area, does not mean that the

constructions have become legal. It may be legal for the authority

to have exercised power under an Act but the question is whether

sanction of Map was as per the lease agreement and the

application was moved by the lessee. However, in the present case

10

map was applied by the occupier who was not beneficiary of

either lease agreement or old grant and so no such exercise could

have been, in the absence of consent of the owner of the property

and, the entire proceedings of sanction of map would be rendered

void in the absence of consent of the owner and in our considered

opinion, the owner has authority to question the constructions and

if found illegal get it demolished. In the present case, therefore,

we are of firm view that since the land of bungalow No.178

continued to belong to the defence department and the petitioner

has failed to demonstrate either from the pleadings or from the

document that he is valid transferee of the property he can defend

constructions that have been rendered illegal for want of necessary

sanction. A transfer of an area from the cantonment to the

municipality, is a mere transfer for the purposes of municipal

functions from one local body to the other local body but rights

and title of the property of the original owner does continue and

there can be no ipso facto transfer of title on extension of

municipal limits to the area of such property. Thus following

findings of the Prescribed Authority cannot be held bad as we do

not find any perversity in the same:-

(1) The land in question, sy.no.131/381, B. No. 178, Ajmer

Road, Namnir Agra Cantt. is Defence land owned by the

Govt. of India, Ministry of Defence.

(2) Although it was excised alongwith other area, and merged

with the Municipal area vide SRO No. 312 dated 25.6.1957

but this transfer has taken effect only in r/o Municipal

function. The management of lands falling with in the excised

area of Agra Cantt. still remains with the Defence Estates

Officer, Agra Circle, Agra Cantt.

(3) It is clear from the Govt. orders issued vide their letter No.

18/1/ G/ L&C/ 58 dated 26.12.1961 that after the excision the

administrative control of the area remained with the Ministry

of Defence, Govt. of India and management comes under the

D.E.O. Agra Circle, Agra Cantt. Till the formalities stipulated

11

in para 3 and 4 of the said Govt. order are completed and the

transfer of these lands to the State Govt. takes place, these

lands remain under the management of D.E.O. Agra Circle,

Agra Cantt.”

13.In taking the above view we find support in the judgment of

the Apex Court in the case of Chief Executive Officer v.

Surendra Kumar Vakil and others (1999) 3 SCC 555. In the

said case a suit had been decreed of the vendors and vendees on

the ground that one S.N. Mukharjee who was a occupancy holder

and as such recorded in the GLR had died in the year 1972 leaving

behind 11 legal heirs, who validly succeeded the property.

However, their names could not be mutated in the records over

Bungalow No. 39 as they did not apply for the same. The heirs

who had ultimately sold out the property in favour of the 24

persons by a registered sale deeds dated 26

th

February, 1983

through power of attorney holder Gopal Das Soni. The property

was described as old grant of the cantonment board and so

vendees were to abide by the terms and conditions on which the

land was held in the name of ancestors of the vendors. The

amendment deeds further came to be registered in respect of those

sale deed to the effect that lease deed got wrongly transcribed as

the land was of 'old grant' type. The Military Estate Officer issued

notices on 3

rd

October, 1993 to the vendores for validating the

terms and conditions of the old grant by dividing the property into

four shares prior to the sanction of the competent authority and

hence notices were also issued to the purchasers to show cause

why action for resumption of the site be not taken against them.

The plea taken by the respondents was that in view of the 'old

grant' seller were having occupancy rights over the Bungalow No.

39, therefore, they validly transferred the rights to the purchasers.

The Cantonment Board lost the suit and first appeal as well and so

12

filed an appeal before the Apex Court. Apex Court repelled the

arguments of the respondents and their claim on the legal

principles qua 'old grant' and accepted the appeal vide paragraph

Nos. 12, 13, 14, 15, 16, 17, 18 and 19 that run as under:-

12. Under the Cantonment Land Administration Rules, 1925

General Land Registers are being maintained in respect of

Sagar Cantonment. These registers were produced before the

High Court and were also produced before us. These are old

registers maintained in the form prescribed by the said Rules. In

these registers the property in question is shown as being held

by S.N. Mukherjee on old grant basis. As explained by Mittal in

the passage cited above, the tenures under which permission

was given to civilians to occupy Government land in the

cantonments for construction of bungalows on the condition of a

right of resumption of the ground, if required, came to be know

as old grant tenures. Such tenures were given in accordance

with the terms of the order No.179 issued by the Governor

General in Council in the year 1836. These require that the

ownership of land shall remain with the Government and the

land cannot be sold by the grantee. Only the house or other

property thereon may be transferred. Such transfers would

require consent of the officer commanding the station when the

transfer is to a person not belonging to the army. In respect of

old grant tenure, therefore, the Government retains the right of

resumption of land.

13. In the case of Raj Singh v. Union of India, AIR 1973 Delhi

169, the Delhi High Court examined the Regulations contained

in order No.179 of 1836 regarding the grant of lands situated in

cantonment areas and held that the Regulations were a self-

contained provision prescribing the manner of grant and

resumption of land in cantonment areas. It held that the

petitioner therein being a mere occupier of the land under the

said Regulations, he was in the position of a licensee whose

licence under the grant and under the law was revocable at the

pleasure of the licensor. This judgment of the Delhi High Court

was approved by this Court in Union of India v. Tek Chand

(Civil Appeal No. 3525 of 1983) by its judgment and order dated

5th of January, 1999 passed by S.P. Bharucha and V.N. Khare,

JJ.

14. The respondent, however, contends that since the actual old

grant was not produced in evidence by the appellants the case of

the appellants that the land was held on old grant basis by

Mukherjee is not proved by the appellants. This submission does

13

not appeal to us. The respondents filed a suit claiming title over

the land. If any conveyance in respect of this land had been

executed at any time by the State/Military Estate Officer in

favour of Mukherjee or his predecessor in title, the conveyance

ought to have been produced by the person in whose favour it

had been executed or his successor in title. Had a lease been

granted in respect of the said land in favour of Mukherjee or his

predecessor in title, the lessee or his successor in title should

have produced the lease deed in his favour. Any grant in favour

of the grantee would normally be in the possession of the

grantee. The respondents, however, have not produced any title

deeds relating to the land in question. They have only produced

the document of sale from Dubey to Mukherjee and the four sale

deeds from the heirs and legal representatives of Mukherjee in

favour of the purchasing respondents. In none of these

documents there is a clear recitation of the nature of the rights

in the land held by the Vendor.

15. It is true that the appellants were also required to maintain a

file/register of grants. They have not produced the file. The

appellants, however, have led evidence to show that the

concerned file of grants was stolen in the year 1985. They were,

therefore, unable to produce the file pertaining to this grant.

They do, however, have in their possession general land

registers maintained under the Cantonment Land Administration

Rules of 1925 in which they are required by these rules to

maintain a record, inter alia, of the nature of the grant in

respect of cantonment lands and the person in whose favour

such grant is made. Both these registers are very old registers.

They bear the endorsement of the officer who has maintained

these registers in the regular course. These registers also show

any subsequent changes made in respect of the lands under the

relevant columns. Both these registers clearly show that the land

is held on old grant basis by Mukherjee. The High Court seems

to have rejected the record contained in the land grants

registers on the ground that the terms of the grant have not been

established because the document of grant itself has not been

produced. The terms of the grant, however, are statutorily

regulated under order No.179 of the Governor General in

Council of 1836. The administration of lands in Cantonment

areas is further regulated by the Cantonment Act, 1924 and the

Cantonment Land Administration Rules of 1925. The 1836

Regulations expressly provide that the title to the land in

cantonment areas cannot be transferred. But only occupancy

rights can be given in respect of the land which remains capable

of being resumed by the Government in the manner set out

therein. There is no evidence to the contrary led by the

respondents. In fact, under the amendment/admission deeds

executed on 4/5.8.1983 the Vendors as well as the purchasers

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have stated that the site is wrongly mentioned as lease hold site

instead of 'old grant' site in the four sale deeds. The mistake is

being rectified by the execution of the four amending deeds

clarifying that the Bungalow No.39 is held on 'old grant'.

Undoubtedly, this was later retracted when cancellation deed

was executed cancelling the amendment/admission deeds.

Nevertheless, all the statutory provisions clearly indicate that

the land being in the cantonment area was held by Mukherjee

only as an occupant/licensee and that any transfer of the

bungalow and other constructions on the said land required

prior approval of the defence establishment. The power of

attorney holder also corresponded with the Defence

establishment and asked for mutation in favour of the

purchasers.

16. However, even after they were expressly informed by the

appellants of the need for prior permission before transfer, as

well as for any further construction on the said land, the

respondents proceeded with the construction work resulting in

the notice to desist issued by the appellants under Section 185 of

the Cantonments Act, 1924. The said section provides that the

Board may, at any time, by notice in writing, direct the owner,

lessee or occupier of any land in the cantonment to stop the

erection or re-erection of a building in any case in which the

Board considers that such erection or re-erection is an offence

under Section 184. The Board also has power to direct the

alteration or demolition of such unauthorised structure. On the

facts before us, this action cannot be faulted.

17. The respondents drew our attention to a decision of this

Court in the case of Union of India v. Purshotam Dass Tandon

and another, 1986 Supp. SCC 720, where this Court observed

that the Union of India had made no effort to establish its title

and the grant had not been produced. Hence the terms of the

grant or the date of the grant were not known. Therefore, the

Union of India could not succeed in its contention that the land

in the cantonment was held on old grant basis. In the present

case, however, apart from the requirements of Order No.179 of

Governor General in Council, 1836, the general land register

maintained under the Cantonment Land Administration Rules of

1925 has been produced which supports the contention of the

appellants that the land is held on old grant basis. The

appellants have also led evidence to show that the file

containing grant in respect of the said property, is not available

with them because it has been stolen in the year 1985. The

respondents on the other hand have not produced any document

of title pertaining to the said land or showing the nature of the

rights of the respondents over the said land except the sale deeds

referred to earlier. The stand of the respondents relating to their

15

rights over the said land has changed from time to time. In the

sale deeds executed by the Vendees in favour of the respondents,

the land is described as lease hold cantonment land. This was

later changed by the respondents in the amendment deeds to old

grant land. In the suit, the respondents have contended that they

have become the absolute owners of the said land. These bare

assertions do not carry any conviction. Had there been any

conveyance or lease in respect of the said lands executed in

favour of the respondents or their predecessor in title, such

conveyance or lease should have come from their custody. There

is, therefore, no document before the Court which would show

that the respondents were the absolute owners of the said land

as now contended by them. The Regulations as well as the

general land registers, on the other hand, which are old

documents maintained in the regular course and coming from

proper custody, clearly indicate that the land is held on old

grant basis. This is, therefore, not a case where the appellants

had not produced any evidence in support of their contention

that the land in the cantonment area was held on old grant basis

by Mukherjee.

18. The respondents have drawn our attention to the decision in

the case of Shri Krishan v. The Kurukshetra University, AIR

1976 SC 376 for showing that any admission made by them in

ignorance of legal rights cannot bind them. This judgment does

not help the respondents because the fact remains that the

respondents have taken a changing stand in relation to the

nature of their rights over the disputed land. The admissions, at

least, indicate that the respondents were, at the material time,

not sure about the exact nature of their right over the said land.

Hence they have at one stage described the nature of their rights

as lease hold, at another stage as old grant and at a third stage

they have retracted from their admission that the land was 'old

grant'. The last deed merely states that they have the same rights

as their Vendees had in the said land. Looking to the nature of

evidence, therefore, which was led in the present case, the High

Court was not justified in coming to the conclusion that the land

was not held on old grant basis by Mukherjee.

19. Therefore, since the land is held on old grant basis in the

present case, the appellants are entitled to resume the land in

accordance with law. In the premises the appeals are allowed,

the impugned judgment and order of the High Court is set aside

and the suit of the respondents is dismissed with costs.”

14. The case of the petitioner is even worse. Vide paragraph

4 of the writ petition he has claimed that his ancestors were

occupant of Bungalow No. 178 and possibly because of old grant

16

only. However, he has not been able to produce any document to

that effect inasmuch as he could not establish his right of

succession, to wit, whether he is a direct descent of the original

grantee or by way of sub-lessee or any sale agreement. He has

sought to set up the claim of the entry in the name of Pyare Lal,

possibly as his ancestor whose name had been entered on account

of sale deed in the year 1957 but no such document has been

brought on record to establish as to whether such sale was with

permission of the competent authority or not. Sri G.D. Shivhare

whose name finds entry in GLR, as a old grantee, the petitioner

could not have obtained a better title than that of the old grantee,

provided he produced any such document. Under the

circumstances, therefore, the petitioner like the vendor and

vendees in the above said case could not have claimed a valid

right to raise constructions in the absence of proper sanction of the

competent authority.

15. In view of the above we find merit in the argument

advanced by the learned counsel for the respondent that merely

because the property has occupied by civilian under an old grant

basis, such a grantee only has status of mere occupier and does not

become the title holder of the property. The petitioner has not

produced any document that he has the old grant in favour of his

predecessor-in-interest. He does not also show as to how he has

come to occupy the property in the year 1970. At the most,

therefore, he is an occupant, may be unauthorized one.

16. Now coming to the second question, it is necessary to

first go through the relevant provisions of the Public Premises

(Eviction of Unauthorised Occupants) Act, 1971 which is relevant

herein, to find answer to the question. Vide Section 2 of the Act,

17

1971 defines the premises and public premises separately. Vide

Section 2 (c) and 2 (e) of the Act, 1971 are, accordingly,

reproduced hereunder:-

2 (c) "premises" means any land or any building or part of a

building and includes, -

(i) the garden, grounds and outhouses, if any,

appertaining to such building or part of a building, and

(ii) any fittings affixed to such building or part of a

building for the more beneficial enjoyment thereof;

2 (e) “public premises” means -

(1) any premises belonging to, or taken on lease or

requisitioned by, or on behalf of the Central Government, and

includes any such premises which have been placed by that

Government, whether before or after the commencement of

the Public Premises (Eviction of Unauthorised Occupants)

Amendment Act, 1980 (61 of 1980), under the control of the

Secretariat of either House of Parliament for providing

residential accommodation to any member of the staff of that

Secretariat;”

17. From a bare reading of the aforesaid provision, it is

clear that Legislature has used the word 'Premises' in a generic

sense, comprehending in it the land, the structure standing over it

and every such other activity in forms of any fixture for the

beneficial enjoyment of the premises and the public premises are

such that belong to the Central Government. We have already held

that land and the house standing thereupon as bungalow No.- 178

is admittedly a property belong to the defence department and so it

is a defence property. Section 5A & B provide for the removal of

unauthorized constructions if made over and above such land of

property and Section 5B empowers the authority to remove the

unauthorized construction by undertaking of demolition exercise.

Section 5C also provides for sealing of the unauthorized

constructions. The relevant Section 5A, 5B and 5C of the Act,

1971 are reproduced hereunder:-

“5A. Power to remove unauthorised constructions, etc.— (1)

No person shall—

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(a) erect or place or raise any building or [any movable or

immovable structure or fixture],

(b) display or spread any goods.

(c) bring or keep any cattle or other animal, on, or against, or

in front of, any public premises except in accordance with the

authority (whether by way of grant or any other mode of

transfer) under which he was allowed to occupy such

premises.

(2) Where any building or other immovable structure or fixture

has been erected, placed or raised on any public premises in

contravention of the provisions of sub-section (1), the estate

officer may serve upon the person erecting such building or

other structure or fixture, a notice requiring him either to

remove, or to show cause why he shall not remove such

building or other structure or fixture from the public premises

within such period, not being less than seven days, as he may

specify in the notice; and on the omission or refusal of such

person either to show cause, or to remove such building or

other structure or fixture from the public premises, or where

the cause shown is not, in the opinion of the estate officer,

sufficient, the estate officer may, by order, remove or cause to

be removed the building or other structure or fixture from the

public premises and recover the cost of such removal from the

person aforesaid as an arrear of land revenue.

(3) Where any movable structure or fixture has been erected,

placed or raised, or any goods have been displayed or spread,

or any cattle or other animal has been brought or kept, on any

public premises, in contravention of the provisions of sub-

section (1) by any person, the estate officer may, by order,

remove or cause to be removed without notice, such structure,

fixture, goods, cattle or other animal, as the case may be, from

the public premises and recover the cost of such removal from

such person as an arrear of land revenue.]

5B. Order of demolition of unauthorised construction.— (1)

Where the erection of any building or execution of any work

has been commenced, or is being carried on, or has been

completed on any public premises by any person in occupation

of such public premises under an authority (whether by way of

grant or any other mode of transfer), and such erection of

building or execution of work is in contravention of, or not

authorised by, such authority, then, the estate officer may, in

addition to any other action that may be taken under this Act

or in accordance with the terms of the authority aforesaid,

make an order, for reasons to be recorded therein, directing

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that such erection or work shall be demolished by the person

at whose instance the erection or work has been commenced,

or is being carried on, or has been completed, within such

period, as may be specified in the order.

Provided that no order under this sub-section shall be made

unless the person concerned has been given by means of a

notice [of not less than seven days] served in the prescribed

manner, a reasonable opportunity of showing cause why such

order should not be made.

(2) Where the erection or work has not been completed, the

estate officer may, by the same order or by a separate order,

whether made at the time of the issue of the notice under the

proviso to sub-section (1) or at any other time, direct the

person at whose instance the erection or work has been

commenced, or is being carried on, to stop the erection or

work until the expiry of the period within which an appeal

against the order of demolition, if made, may be preferred

under section 9.

(3) The estate officer shall cause every order made under sub-

section (1), or, as the case may be, under sub-section (2), to be

affixed on the outer door, or some other conspicuous part, of

the public premises.

(4) Where no appeal has been preferred against the order of

demolition made by the estate officer under sub-section (1) or

where an order of demolition made by the estate officer under

that sub-section has been confirmed on appeal, whether with

or without variation, the person against whom the order has

been made shall comply with the order within the period

specified therein, or, as the case may be, within the period, if

any, fixed by the appellate officer on appeal, and, on the

failure of the person to comply with the order within such

period, the estate officer or any other officer duly authorised

by the estate officer in this behalf, may cause the erection or

work to which the order relates to be demolished.

(5) Where an erection or work has been demolished, the estate

officer may, by order, require the person concerned to pay the

expenses of such demolition within such time, and in such

number of instalments, as may be specified in the order.]

5C. Power to seal unauthorised constructions.— (1) It shall

be lawful for the estate officer, at any time, before or after

making an order of demolition under section 5B, to make an

order directing the sealing of such erection or work or of the

public premises in which such erection or work has been

20

commenced or is being carried on or has been completed in

such manner as may be prescribed, for the purpose of carrying

out the provisions of this Act, or for preventing any dispute as

to the nature and extent of such erection or work.

(2) Where any erection or work or any premises in which any

erection or work is being carried on has, or have been sealed,

the estate officer may, for the purpose of demolishing such

erection or work in accordance with the provisions of this Act,

order such seal to be removed.

(3) No person shall remove such seal except—

(a) under an order made by the estate officer under sub-section

(2); or

(b) under an order of the appellate officer made in an appeal

under this Act.]”

18. The Estate Officer is the officer who is appointed by the

Central Government under Section 3 of the Act, 1971 by the

notifying such officer in the Official Gazette. Sub-section (b) of

Section 3 provides the power to be exercised by such officer

within the defined local limits to be notified by the Government or

the categories of public premises in respect of which, the Estate

Officer shall exercise powers conferred and perform the duties

imposed by the State under the Act. Section 3 of the Act, 1971 in

its entirety is reproduced hereunder:-

“3. Appointment of estate officers.—The Central Government

may, by notification in the Official Gazette,—

(a) appoint such persons, being gazetted officers of

Government

8

[or of the Government of any Union Territory]

or officers of equivalent rank of the 2[statutory authority], as it

thinks fit, to be estate officers for the purposes of this Act:

[Provided that no officer of the Secretariat of the Rajya Sabha

shall be so appointed except after consultation with the

Chairman of the Rajya Sabha and no officer of the Secretariat

of the Lok Sabha shall be so appointed except after

consultation with Speaker of the Lok Sabha:

Provided further that an officer of a statutory authority shall

21

only be appointed as an estate officer in respect of the public

premises controlled by that authority; and]

(b) define the local limits within which, or the categories of

public premises in respect of which, the estate officers shall

exercise the powers conferred, and perform the duties

imposed, on estate officers by or under this Act.”

(emphasis added)

19. From the perusal of the aforesaid provisions, it is very

much clear that not only the local limits in respect of which the

power should be exercised by the State Officer but it could be also

property specific. The Military Estate Officer, namely Defence

Officer appointed and notified by the Central Government to

exercise the power under the Act, 1971 in the present case is not

disputed. What is disputed is that since area has stood transferred

from the cantonment limits to the local limit, the Military Estate

Officer as such could not have exercised the power.

20. We do not find merit in the above argument for the

simple reason that sub-section (b) of Section 3 not only talks of

notifying the limits but also of the property. Admittedly, the

bungalow No. 178 is the defence property and to that extent,

therefore, it stands notified as a defence property. The notification

of the 1957 by which municipal limits of Agra has been extended

and the cantonment area has been excised, it equally saves the

property of the Central Government particularly the defence

where there is no proper exercise has been carried out transferring

the property to the State Government. No document has been led,

nor, anywhere it has been pleaded that the bungalow No.178 itself

has stood ipso facto transferred with the notification of extension

of municipal limits to the area where the bungalow situates.

21. Since we have already held that the property belongs to

22

the defence department, it was a public premises for the purposes

of Section 5B of the Act, 1971 and, therefore, the defence estate

officer who has been assigned the duties of Presiding Officer to

act under the Act, 1971 has the jurisdiction and so he rightly

exercised the same in the present case. We do not find any error in

the authority of the Defence Estate Officer exercising power under

the Act, 1971. The question of constructions whether it would fall

in the category of unauthorized use of the public premises or in

contravention of conditions prescribed under the old grant, we

may hold that the petitioner since has not been able to demonstrate

that he had old grant in his favour and that he had otherwise been

a valid lessee, any construction or alteration of the existing

structure by the petitioner required prior sanction and in the event

no such permission had been accorded, raising of the structure

may be with the sanction of the local development authority,

would not validate the development activity and the constructions

made in that regard. Thus, we are of the view that the Defence

State Officer, who exercised the power as Presiding Officer under

the relevant provisions of the Act, 1971 rightly exercised the

power and we do not find any fault at his end in the matter.

22. In view of the above the writ petition being Writ- C

No.- 46421 of 2006 lacks merit and is, accordingly, dismissed and

so other two writ petitions are also dismissed.

Order Date :- 19.12.2019

Atmesh

(Ajit Kumar,J.) (Ramesh Sinha,J.)