Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6194 OF 2013

(arising out of SLP (C) No.2933 of 2010)

UNION OF INDIA & ANR. … APPELLANTS

VERSUS

DINSHAW SHAPOORJI ANKLESARI & ORS. … RESPONDENTS

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against the judgment dated 25

th

November,

2009 passed by the High Court of Judicature at Bombay in Civil Revision

Application No.272 of 2009. By the impugned judgment the High Court

dismissed the Revision Application and affirmed the judgment and decree

passed by the Appellate Court and the Trial Court.

2.The dispute relates to the piece of property bearing GLR Survey No.

258, admeasuring 0.90 acres which comprise of superstructure consisting

of main bungalow, servant quarter and garage situated at Elphinstone

Road, Pune Cantonment, Pune (hereinafter referred as the “suit

premises”).

3.The case of the appellants is that the suit premises as aforesaid

belongs to the appellants – “Pune Cantonment Board”. The Governor-

General by its order No.14(G.G.O.-14) dated 6

th

January, 1827 intimated

that officers not provided with public quarters may receive permission to

Page 2 erect houses within fortress or military cantonment conferring on them

right of property whatever in the ground allotted to them for that purpose,

which will continue to be the property of the State, and resumable at the

pleasure of the Government. The plot admeasuring 0.90 acres (suit

premises) in question was initially granted to one Nusserwanji Sorabji

Anklesaria who erected superstructure, including the Bungalow in question.

In the year 1891 he bequeathed the suit bungalow no.1A, Elphinstone

Road to his son Maneckhji Nusserwanji Anklesaria. The name of Maneckhji

Nusserwanji was registered in General Land Register. Therein it was

mentioned that the bungalow in question is held under old grant under

conditions of GGO 14 dated 6

th

January, 1827.

4.An agreement for occupation by Government of the property in a

cantonment not requisitioned under the Cantonment (House

Accommodation) Act known as “Repairing Lease” was entered between

Maneckji Nasserwanji Anklesaria in one part (First Part) and the Governor

General in Council on the other (Second Part) on 29

th

August, 1941,

whereunder property described in Schedule I thereto i.e. Bungalow No. 1-A

with servant quarter, garage, etc. was given in possession to the second

part (i.e. Governor General in Council) for a consideration of monthly

payment of Rs.196/- payable on the first of every month, the first of such

payment being made on the first day of August, 1941. As per the said

agreement, the appellants were required to maintain the premises i.e.

Bungalow No. 1-A with servant quarter, garage etc.. It was agreed upon

that if by reason of fire or tempest or other cause not occurred by the

willful act or default of the party on the second part, the premises or any

Page 3 part or parts thereof or was in the opinion of the party on the second part

is rendered uninhabitable at any time, the said agreement in force, then

until the premises or such part and parts thereof as are affected shall be

restored or rendered fit for reoccupation to the satisfaction of the party on

the second part.

5.Subsequently, by an Indenture of Sale dated 12

th

November, 1968

between Manekji Nassurwanji Anklesaria and two others and plaintiffs-

respondents, Dinshaw Shapurji Anklesaria and two others it was agreed to

sell and purchase the lease-hold rights being perpetual grant under the old

grant of the Pune Cantonment Board over the suit premises including the

bungalow, servant quarters’ garage, etc. with full rights of ownership of

the building for total consideration of Rs. 60,000/-. In the said “Indenture

of Sale” it was narrated that necessary permission on that behalf had been

received from the authorities concerned by letter no. 201125/Q(PP) dated

14

th

June, 1968, signed by the General Officer Commanding in Chief, Head

Quarter, Southern Command.

6.The admission certificate with regard to suit premises was issued by

the plaintiffs-respondents on 19

th

April, 1971 in favour of the Military

Cantonment Estate Officer, Poona Circle, Pune.

7.According to appellants, as per terms of old grant, the appellants

decided to resume the said property and, therefore, issued notice from its

Ministry of Defence being Notice No. 701/27/L/L&C/71/3606/D(Lands) dated

11

th

June, 1971 to plaintiffs-respondents intimating the intention to resume

the suit premises and also informed that the appellants are ready to pay

a compensation of Rs.31,537/- as the value of the authorized erection

Page 4 made on the said land. The plaintiffs-respondents were informed that in

case the amount of compensation offered is not acceptable to them, the

committee of Arbitration will be convened to assess the value of the

authorized erection on the land. The cheque for the said amount was

attached with the aforesaid notice. The symbolic possession of the

bungalow in question was taken on 12

th

July, 1971.

8.After about two years, the respondent filed Special Civil Application

No. 1536/1973 challenging the resumption notice dated 11

th

June, 1971.

Some other individuals who erected bungalows on similarly situated lands

which were also resumed, also filed similar special civil applications

including Special Civil Application No. 1286 of 1972, etc..

9.By judgment and order dated 5

th

February, 1979, the Bombay High

Court allowed the Special Civil Application No.1286/1972 being Phiroze

Temulji Anklesaria Vs. H.C. Vashistha & Others, AIR 1980 Bom 9

and set aside the notice of resumption. The High Court held that there is

no evidence whatsoever of the Government’s right to resume the land in

possession and the terms under which right of such resumption, if any,

could be exercised. It further held that most importantly there is no

evidence of the right or power of Government to acquire the structure

standing on the land in question by arbitrarily or unilaterally determining

compensation.

10.Relying on the aforesaid judgment, writ petition preferred by the

plaintiffs-respondents in Special Civil Application No.1536/1973 was also

allowed by judgment dated 27

th

February, 1979.

Page 5 11.Being aggrieved by judgments passed in various special civil

applications whereby the High Court set aside the resumption notices, the

Union of India filed SLP(C) Nos.498-511/1980 before this Court. Against

the judgment dated 27

th

February, 1979 passed in the case of plaintiffs-

respondents in SCA No. 1536/1973 the defendants-appellants filed SLP(C)

No.503/1980 .

12.By order dated 19

th

March, 1980 leave was granted in SLP(C)

Nos.498-511/1980 and they were renumbered as Civil Appeal Nos.608-

621/1980.

SLP(C) No.503/1980 filed by the appellants against the judgment

dated 27

th

February, 1979 passed in the case of the plaintiffs-respondents

was renumbered as Civil Appeal No.613/1980 after admission.

13.Phiroze Temulji Anklesaria-petitioner in Special Civil Applications Nos.

1286/1972, 1487/1972, 1486/1972 and 1484/1972 had filed civil suits for

rent and possession against the Government of India before CJSD, Pune.

Same were numbered as Civil Suit No.477/1980, 476/1980, 488/1980 and

475/1980.

The said suits were decreed by the CJSD, Pune relying upon the

decision of the Bombay High Court in Phiroze Temulji Anklesaria

(supra).

14.Against the aforesaid judgment, the appellants filed appeal

Nos.1159/1984, 1160/1984 and 1161/1984. Cross Appeal No.1/1985, Cross

Appeal No.2/1985, Cross Appeal No.3/1985 were also filed in those

appeals. Second Appeal Nos.15 and 16 of 1989 were subsequently filed

before the Bombay High Court.

Page 6 When Civil Appeal Nos. 608-621/1980 preferred by the appellants

against the original judgment in Phiroze Temulji Anklesaria (supra) reached

for final hearing before this Court, the abovementioned appeals preferred

before the Bombay High Court were called for by this Court on the ground

that they were interconnected.

As a result appeals covered by SCA No.1286/72, SCA No.1486/72,

SCA No.1487/72, SCA No.1484/72, SCA No.1485/72 got transferred to this

Court and numbered as Transferred Case Nos.67 to 72 of 1985 and 11 &

12 of 1987.

15. Transferred Case Nos. 67 to 72 of 1985 and 11&12 of 1987 titled

Union of India & Others v. P.T. Ankleshwar (dead) by LRs. & Ors. on

hearing were remitted back to the High Court for disposal by this Court on

20

th

July, 1988, with the following directions:

“1. While considering the merit of the case, the High Court shall

not place any reliance upon the Division Bench judgment of the High

Court consisting of D.H. Rege and R.A. Jahangir, JJ. rendered in Special

Civil Application No. 1286/72 decided on 6/6 February, 1979 against

which appeals are pending in this Court.

2. While considering the case, if the High Court finds that the trial

court or the first appellate court has placed reliance or made any

reference to the aforesaid judgment of the Division Bench, it shall

ignore that judgment, to that extent, and the High Court shall decide

the matter afresh in accordance with law without taking into

consideration or being influenced by the aforesaid judgment of the

Division Bench.

3. The parties will be at liberty to adduce additional evidence before

the High Court within the period fixed by the High Court.”

16.Civil Appeal Nos. 608-621 of 1980 titled Union of India & Others v.

P.T. Ankleshwar (dead) by LRs. & Ors. were subsequently taken up by this

Court and in the light of observation made on 20

th

July, 1988 in Transferred

Case Nos.67 to 72 of 1985 and 11&12 of 1987, as quoted above, by order

Page 7 dated 25

th

March, 1992, this Court declared the appeals to be infructuous

without prejudice to whatsoever rights to which the appellants are entitled

in law.

17.The respondents, thereafter, filed Civil Application No.3382 of 1992 in

Special Civil Application No.1536 of 1973 before the Bombay High Court

for possession of the suit premises. The Bombay High Court by its order

dated 11

th

September, 1992 directed the appellants to handover symbolic

possession of the suit premises bearing survey no.258, Bungalow No.1-A

situated at Elphinstone Road, Pune Cantonment, Pune to the respondents.

18.The appellants filed a review application before this Court for review

of order dated 25

th

March, 1992 passed in Civil Appeal Nos.608-621 of

1980 on the ground that only the civil appeals connected with transferred

cases in which the issue of ownership of land and building were interlinked

with validity of resumption notices had become infructuous. In other Civil

Appeal Nos.620, 610, 613 (the appeal preferred against the judgment in

the case of plaintiffs-respondents), 614, 618, 609 and 621 of 1980, the

issue of ownership of land and building was not interlinked with validity of

resumption notices and hence the same had not become infructuous.

19.By the order dated 13

th

November, 1995, this Court allowed the

review application thereby modifying the order dated 25

th

March, 1992

passed in Civil Appeal Nos.608-621 of 1980 by setting aside the order of

dismissal of the aforesaid civil appeals as infructuous as there were no

eviction decrees obtained by any of the bungalow owners.

Page 8 20.The aforesaid civil appeals including Civil Appeal No.613 of 1980 filed

by the Union of India against the plaintiffs-respondents were taken up for

hearing on 4

th

August, 1998 when the following order was passed:

“Learned Solicitor General states that the Union of India would seek

dispossession of the respondent – occupants from the properties

involved in accordance with law and if need be, through a Civil

Court by filing suits. In case such steps are taken, any observations

made by the High Court which would stand to defeat the remedies

sought would not stand in its way. On such stance of the Union of

India, Civil Appeals as also the special leave petitions stand

disposed of accordingly.”

21.The plaintiffs-respondents thereafter filed suit for possession, arrears

of rent and damages against the defendants-appellants in the Small

Causes Court at Pune numbered as Civil Suit No. 695 of 1999. It was

contended therein that the defendants-appellants served resumption

notice upon the plaintiffs-respondents which was challenged by the

plaintiffs-respondents before the Bombay High Court in SCA No.1536 of

1973 which was allowed and the resumption notice was declared void,

inoperative and without legal effect. The said order of the High Court was

affirmed in Civil Appeal No.613 of 1980. The appellants filed review

application and the same was disposed of recording the statement of

learned Solicitor General. An Order which was passed by the High Court

with respect to resumption notice was not set aside. Therefore, the

occupation of defendants-appellants in the said property is that of lessee.

The plaintiffs-respondents are, therefore, entitled to ask for possession of

the property from the defendants-appellants as the defendants are trying

to set up adverse title.

Page 9 22.The defendants-appellants contested the suit by filing detailed

written statement. It was brought to the notice of the Court that the

property was held on old grant terms, therefore the Government of India

has every right to resume the property. It was also contended that the

Government has resumed the property and the plaintiffs-respondents have

no right to ask for possession. It was also contended that the Military

Authorities have made a plan to demolish the present structure and

construct a new building for accommodation of its officers and therefore,

repair for the suit premises was not under taken.

23.In the said suit the Trial Court framed the following issues:

1)Do plaintiffs prove that they are landlords and the

defendants are tenants of the suit premises?

2) Do they prove that the defendants have committed

breach of agreement of lease by not maintaining the

property and by causing damage to it?

3) Do they prove that the defendants have disowned

the title of the plaintiff and thereby committed breach of

the agreement of lease?

4) Do they prove that the defendants have caused

damage to the extent of Rs.4 lac to the suit property?

5) Do they prove that the defendants are in arrears of

rent since 1.7.1971 to 30.6.1999 at the rate of Rs.196/-

per month?

6) Whether this Court has jurisdiction to entertain, try

and decide this suit?

7) What is due to the plaintiffs?

8) What relief, order and decree?

24.By judgment and decree dated 9

th

June, 2005, the Trial Court partially

decreed the suit on the ground of breach of terms and conditions of

tenancy i.e. non-repair of the suit premises.

Page 10 The Trial Court directed the defendants-appellants to handover the

vacant and peaceful possession of the suit premises together with

structure consisting of main bungalow, servant quarter, garage and any

other structure thereon to the plaintiffs-respondents.

24.1With reference to issue nos.1 and 6, it was held that in view of sale

deed dated 12

th

November, 1968 in favour of the Maneckji Ankesaria, the

consent letter dated 19

th

December, 1967 and the lease agreement dated

29

th

August, 1941 the plaintiffs were only holders of occupancy rights in

respect of the land and were owners of the superstructure. The

defendants were tenants and hence the suit was between the landlord and

the tenant and the Small Causes Court has jurisdiction to entertain, try and

decide the same.

24.2The issue no.3 was answered in negative with observation that the

defendants have legal right of resumption. Mere exercise of such right

does not mean that the defendants have denied the lease hold right over

the land and ownership of the superstructure of the plaintiff.

24.3Issue no.5 regarding the defendants being in arrears of rent since

17

th

July, 1979 to 30

th

June, 1999 @ Rs.196/- per month was answered in

negative with the observation that there was no willful default on part of

the defendants and the defendants have deposited arrears of rent along

with interest there on @ Rs.9% per annum before the date of hearing of

the suit. Thus, defendants are entitled to protections of eviction as per the

provisions of sub section 3 of Section 12 of the Bombay Rent Act. The

defendants were not in arrears of the rent on the date of hearing of the

suit.

Page 11 24.4The issue no.2 regarding the breach and terms of the agreement by

not maintaining the property and by causing damage to it was answered in

affirmative.

24.5The issue no.4 regarding the plaintiffs’ entitlement to damages of

Rs.4 lakhs was answered in negative for want of evidence.

24.6The issue no.7 regarding the amount due to the plaintiff was

answered in negative.

25.Being aggrieved by the judgment and decree dated 9

th

June, 2005

passed in Civil Suit No.695 of 99, the appellants preferred Civil Appeal

No.26 of 2006 in the District Court, Pune.

26.In Civil Appeal No.26 of 2006, the First Appellate Court by judgment

and decree dated 15

th

January, 2009 while dismissed the appeal and

modified the judgment and decree passed by the Trial Court holding that

the plaintiffs-respondents are entitled to recover the amount of Rs.20,972/-

along with cantonment taxes @ 6 per cent per annum from February,

2000 till the date of actual realization.

27.Being aggrieved by the aforesaid judgment dated 15

th

January, 2009

the appellants preferred Civil Revision Application No.272 of 2009 before

the Bombay High Court. The Bombay High Court dismissed the same

giving rise to the present appeal.

28. Mr. Mohan Parasaran, learned Solicitor General of India appearing

on behalf of the appellants-Union of India made the following submissions:-

(i) As per Section 2 of the Government Grants Act, 1895,

Transfer of Property Act, 1882 is not applicable to such

Page 12 Government grant lands and the Government Grant is taken

effect as if the said Act had not been passed.

(ii)Not only the Transfer of Property Act is made inapplicable to

the Government but Section 3 of the Government Grants

Act,1895 makes it clear that the Government grants is to take

effect according to their tenor, notwithstanding any rule of law,

Statute or enactment of the Legislature to the contrary to the

same.

(iii) (Crown)- Union of India has unfettered discretion

to impose any condition, limitation or restriction in its grants and

rights, privileges and obligations of the grantee would be

regulated only in accordance with the terms of the grant itself

though they are inconsistent with the provisions of any Statute

or Common Law.

(iv) The possession of the house was taken by the

appellant-Union of India from the plaintiffs-respondents in due

course of law and that the plaintiffs-respondents was not

entitled to any remedy against the Government either by way of

a writ petition or a suit or under Section 6 of the Specific Relief

Act.

(v)Clause 4 of the Repairing Lease Deed dated 29.08.1941 even

protects the Government’s right of resumption and therefore,

the plaintiffs-respondents cannot derive advantage of the

Repairing Lease Deed for claiming right or title over the suit

premises.

(vi) In view of the Section 3 of the Government Grants

act, 1895, the Bombay Rent Control Act will not be applicable in

absence of landlord-tenant relationship, the land being in the

Page 13 nature of a Government grant over which the super-structure

was constructed.

(vii) No right has been vested or granted in the repair

lease to the occupant to evict the owner of the land who in this

case incidentally proceeded to become the occupant of the

super-structure put up by the plaintiffs-respondents. That will

not create any legal landlord-tenant relationship as in other

cases as the property in question falls in the cantonment area

and is governed by Government grants.

29. On the other hand, learned counsel for the plaintiffs-respondents

raised following grounds to dismiss the appeal:

(i)The High Court’s judgment dated 27.2.1979 passed in the

Writ Petition preferred by plaintiffs-respondents in SCA No.

1536/1973 setting aside the notice of resumption dated 11

th

June, 1971 has reached finality. The legality and propriety of

aforesaid decision cannot be raised at this stage.

(ii)In absence of jurisdictional error committed by Court’s below,

the High Court was right in refusing to interfere with concurrent

findings of fact. The scope of Revisional Jurisdiction under

Section 115 CPC is limited and the same cannot be exercised to

interfere with the finding of fact.

(iii) Since the High Court’s approach and analysis is

correct, this Court should not exercise its power under Article

136 of the Constitution to set aside the impugned order.

30. The case of the appellants is that the suit premises (land) belongs

to Union of India- “Pune Cantonment Board”. It was allotted by way of

grant to one Nusserwanji Sorabji Anklesaria who erected super structure

including bungalow, garage and servant quarter. In 1891, the suit

Page 14 bungalow no.1A, Elphinstone Road was bequeathed to Maneckhji

Nusserwanji Anklesaria by his father Nusserwanji Sorabji Anklesaria. The

name of Maneckhji Nusserwanji was registered in the General Land

Register. Therein it was mentioned that the bungalow in question is held

under old grant under conditions of GGO 14 dated 6

th

January, 1827.

The aforesaid fact is also clear from the agreement and repairing

lease dated 29

th

August, 1941 reached between Maneckhji Nusserwanji

and the Governor General in Council wherein at clause iii (4) it is

mentioned as follows;

“(4) Nothing herein shall prejudice the right of the party of the

second part to resume under the terms of the Cantonment tenure

above referred to; and

(5) In the event of any dispute arising between the party of the first

part and the party of the second part as regards the interpretation

of any terms or condition herein contained, the same shall be

referred to C.R.E. Poona Area whose decision will be final.”

31. The consent letter dated 19

th

December, 1967 written by Maneckji

Nassurwanji Anklesaria to the Military Estates Officer, Poona Cantonment,

Poona shows that permission for sale of property bearing No.1A,

Elphinstone Road, Poona Cantonment, Poona was sought for by Maneckji

Nassurwanji Anklesaria and two others as they wanted to sell of their right,

title and interest in the property to Dinshaw Shapurji Anklesaria and two

others as a part of settlement of the family dispute. Permission was also

sought for to complete the said transaction with clear assurance that

Dinshaw Shapurji Anklesaria and two others in whose favour the rights are

sought to be sold are ready to execute such document in favour of the

State as may be required under the existing rules.

Page 15 32. The Military Estates Officer, Poona Circle in reference to above

letter dated 19

th

December, 1967 informed Maneckji Nassurwanji

Anklesaria that sanction was accorded to the transfer by sale of the above

bungalow to Dinshaw Shapurji Anklesaria and others and ask them to

comply with certain instructions, as evident from the said letter, is quoted

below:

“No. H/517

Office of the Mily. Esates Officer,

Poone Circle, Poona-1, 25 June, 1968.

To,

Maneckji Nassurwanji Anklesaria,

94, Mahatma Gandhi Road,

Poona-1.

Subject: Transfer of B.No.1-B Elphinestone Road,

Poona Cantonment.

Dear Sir,

Reference your letter dated 19.12.1967.

2.With the previous concurrence of the GOC-in-C, Southern

Command, Poona sanction is hereby accorded to the transfer by sale

of the above bungalow to Shri. Dinshaw S. Anklesaria and others of

94-A Mahatma Gandhi Road, Poona-1 for a sum of Rs.60,000/- subject

to the condition that the intending purchasers executed and registers

the admission certificate of their own expense as per their

undertaking dated 3.1.68.

3.Please comply with the following instructions:-

i) It should be mentioned in the sale deed to be executed that

the land is held on old Tenure and is not being sold.

ii)The date of execution of the sale and the number and date on

which it was accepted for registration should be intimated to

this office.

iii) The sale deed duly registered should be forwarded to this

office through CPO, Poona for necessary mutation entries being

made in the GLR. The document will be returned when no

longer required.

Yours faithfully,

Sd/-

Military Estate Officer,

Poona Circle,

(Y.P. Kapoor)

Copy to:-

Page 16 Shri. Dinshaw S. Anklesaria and others,

94-A, Mahatma Gandhi Road,

Poona-1. – With reference his undertaking dated 3.1.68

please forward a non-judicial stamp paper to the value of

Rs.3.00 together with site plan (one on tracing cloth)

…….drawn to a scale 40’ to an inch in respect of the

above bungalow showing the existing authorized

buildings to enable this office to take further necessary

action in the matter.

The C.R.O, - For information.

Poona-1.”

33. Indenture of sale made and executed on 12

th

November, 1968 by

Maneckji Nassurwanji Anklesaria and two others (vendors) in favour of the

Dinshaw Shapurji Anklesaria and two others (vendee) reads as follows:-

“Whereas the vendors are fully seized and possessed of and

otherwise well and sufficiently entitled to all the lease – hold rights in

all that piece and parcel of land being perpetual grant under the old

grant of the Poona Cantonment and of the full right of ownership of all

the building and structure standing on the property known as No.1-A,

Elphinestone Road, Poona Cantonment, Poona 1 and which property is

more described in the Schedule “A” hereunder

written……………………………..the vendors agreed to sell and the

purchaser agreed to purchase all the leasehold rights being perpetual

grant under the old grant of the Poona Cantonment Board in all that

piece and parcel of the land situated within the Registration District of

Poona and Registration Sub-District of Taluka Haveli and situated

within the limits of the Poona Cantonment Board and within the

Revenue limits of Taluka Poona City and bearing Poona Cantonment

No.1-A, Elphinestone Road, Poona Cantonment, Poona-1 and bearing

G.L.R. and Survey No. 258 and bearing Military Estate House No.517

along with the full rights of ownership of all buildings out – houses,

structures, appurtenances and benefits of all amenities belonging to

or available to the said property and which property is more fully

described in the Schedule ‘A’ hereunder written, free from all

encumbrances, charges, burdens……..”

34.Thereafter, Dinshaw Shapurji Anklesaria purchaser of the bungalow

no.1A, Elphinstone Road, Poona Cantonment signed admission certificate

dated 19

th

April, 1971 with following conditions:

“ Admission Certificate

Page 17 We, the undersigned, Shri Dinashaw S. Anklesaria residing at 94-A

Mahatma Gandhi Road, Poona Cantonment, the purchaser of Bungalow

No.1A, Elphinstone Road General Land Register Survey No.258 of Poona

Cantonment, Sub District and Taluka Haveli, District Poona, do hereby

subscribe to the conditions (reproduced below) of the original grant

pertaining to the site thereof and this agreement shall be binding on me

as well as my heirs, successors and assigns as the case may be whoever

shall be in possession of the said property.

Conditions

1.Permission to occupy ground in a Military Cantonment confers no

proprietary right; it continuous the property of the Estate and

presumable at the pleasure of Government, but in all practicable case

one month’s notice of resumption will be given and the value of all

buildings which may have been authorized to be erected thereon, as

shown in the accompanying plan, as estimated by the Committee

contemplated in General Order-Separate of 1856, will be paid to the

owner.

2.That no buildings are to be erected on the ground other than those now

existing and shown on the attached plan no additions or alternations are

to be made thereto without the permission of the Officer Commanding

the Station.

3.The ground, being the property of Government cannot be sold by the

grantee. The buildings may be sold by house owners of the previous

permission of the Officer Commanding the Station.

4.That the Military Authorities have the power to cancel the grant if the

ground is used for any purpose other than for which it was originally

granted.

5.We also agree to abide by any orders and rules that may be passed

regarding tenure of land in cantonments.

Place: Poona

Dated: April 1971

Signature of the purchaser of

Bungalow No.1-A, Elphinstone Road

Sy. No.258 Poona Cantonment.

The above conditions have been explained by me to the purchaser of

Bungalow No.1-A Elphinstone Road, Poona Cantonment, and have been

subscribed to by him in my presence.

Place: Poona

Dated: 19

th

April, 1971

Military Estates Officer

Poona Circle

Page 18 (K.C. Agarwal)”

35. From the aforesaid records, it is clear that the land measuring

0.90 acres bearing General Land Register Survey No.258 situated at

Elphinstone Road, Poona Cantonment, Poona belongs to the appellant. The

said land was leased by way of grant originally to Nusserwanji Sorabji

Anklesaria under conditions of GGO 14 dated 6

th

January, 1827. The super

structure including bungalow, garage and servant quarter on the plot was

constructed by him. In the year 1891, the super structure bequeathed to

his son-Maneckhji Nusserwanji. Maneckhji Nusserwanji Anklesaria and two

others sold their right, title and interest over the super structure i.e.

bungalow no.1A in favour of Dinshaw Shapurji Anklesaria and two others

(nephews of Maneckhji Nusserwanji Anklesaria). Thereby file of the super

structure was transferred in favour of Dinshaw Shapurji Anklesaria and two

others but the title of the land remained with the appellant.

36. This is also evident from General Land Register- Cantonment 8-

A(1) dated 7

th

March, 2007 and relevant portion of which is as follows:

“ Extract Form General Land Register-

Cantonment 8-A(1)

Survey No.258 S No.122 VOL. No.II PAGE

Details and date of mutation 1

Subsidiary Sy. No. 2

Volume & Page No. of

Register

3

Area in Acres/Sq.Ft. 4 0.90 acre

Description 5 Bungalow No.1A,

Elphinstone Road

Class 6 B-3

By whom managed 7 D.E.O

Landlord 8 Central Government

Holder of occupancy rights 9 Maneckhji

Nusserwanji

Nature of Holder’s right

under GGO

10 Old Grant

conditions of 14 of

Page 19 6.1.1827

Rent payable: Central Govt. 11

Per annum Cantt. Board

Date of expiry of lease 12

Remarks 13

Station: Pune-1

Dated: 07, March, 2007

Sd/-

Defence Estates

Officer

Pune Circle

(SR. Nayyar)”

37. The Government of India from Ministry of Defence by notice dated

11

th

June, 1971 intimated Dinshaw Shapurji Anklesaria and two others that

the land belongs to the President of India i.e. the Government and is held

on Old Grant terms under which the Government is entitled to resume the

same. It was informed that the Government has resumed the said property

under the terms of the aforesaid Old Grant for its use and therefore, in

exercise of power conferred under the provisions of the Act agreed to offer

a sum of Rs.31,537/- as the value of the authorized erection standing on

the said land. It was further intimated that in case if the amount of

compensation offered was not acceptable to the respondent, a committee

of arbitration will be convened to assess the value of the erection on the

land. A cheque for the amount was also attached along with the said

notice.

38. The Government Grants Act, 1895 as would be evident from the

preamble and Section 2 therein, seeks to clarify the doubts with regard to

the extended operation of the Transfer of Property Act. Section 2 of the Act

reads as follows:

“2. Transfer of Property Act, 1882, not to apply to Government

grants.-Nothing in the Transfer of Property Act, 1882, contained shall

apply or be deemed ever to have applied to any grant or other transfer

of land or of any interest therein heretofore made or hereafter to be

Page 20 made by or on behalf of the Government to, or in favour of, any person

whosoever; but every such grant and transfer shall be construed and

take effect as if the said Act had not been passed.”

39. Not only the Transfer of Property Act is made inapplicable to the

Government grants but Section 3 of the Government Grants Act, 1895

further makes it clear that the Government grants is to take effect

according to their tenor, notwithstanding any rule of law, statute or

enactment of the Legislature to the contrary. Section 3 lays down as

follows:-

“3. Government grants to take effect according to their tenor.-

All provisions, restrictions, conditions and limitations over contained in

any such grant or transfer as aforesaid shall be valid and the effect

according to their tenor, any rule of law, statute or enactment of the

Legislature to the contrary notwithstanding.”

40. This Court in Azim Ahmad Kazmi and Others. v. State of

Uttar Pradesh and Another, (2012) 7 SCC 278 , has held that the

Government grant of lease of land is governed entirely by the terms of the

grant. The Court took note of Section 3 of the Government Grants Act,

1895 which is to take effect according to its tenor notwithstanding any

other law to the contrary.

41. In Chief Executive Officer v. Surendra Kumar Vakil and

Others, (1999) 3 SCC 555 , this Court has held that the grantee under

the old grant terms is a mere occupier/licensee having no title over the

land so as to entitle him to transfer the land or to another person without

prior consent of the authorities concerned. The Court further held that the

regulations as well as the General Land Register which are old documents

maintained in the regular course and coming from proper custody clearly

indicate that the land was held on old grant basis and this was sufficient

Page 21 for the Government to resume the land in accordance with law.

42. In Union of India and others v. Kamla Verma, (2010) 13 SCC

511, this Court has held that it is always open to the Union of India to

resume the land held on old grant terms and that the Union of India cannot

be prevented from resuming the said land.

43. Therefore, it is clear that the Government has unfettered

discretion and under Section 3 impose any condition, limitation or

restriction in its grants and the rights, privileges and obligations of the

grantee would be regulated only according to the terms of the grant itself

though they may be inconsistent with the provisions of any Statute or

Common Law.

44. The grants of lands situated in cantonment area under Old Grants

form a self contained provision prescribing the procedure as to the grant

and resumption of the land and hence recourse to the Civil Procedure Code

or the Specific Relief Act will not be applicable.

45. From the permission for sale of property letter dated 19

th

December, 1967, Indenture of Sale dated 12

th

November, 1968 and

admission certificate dated 19

th

April, 1971 signed by the respondent it is

clear that the Military Authorities have the power to cancel the grant if the

land is used for any purpose other than for it was originally granted.

46. In the suit the plaintiffs-respondents falsely claimed that the suit

premises described in para 1 of the plaint is owned by the plaintiffs as

freehold property. This would be evident from the pleadings made by the

plaintiffs-respondents, as discussed below.

47. The description of the property has been shown at paragraph 1 of

Page 22 the plaint as under:

“1. Description of the Property:

All that piece and parcel of property bearing GLR Survey No.258

and corresponding an area of 0.90 acres together with structure

consisting of main Bungalow, Servant Quarter Garage and

Servant Quarter, and bounded as under:

On or towards the East: Elphinstone Road

On or towards the South: Bungalow No.2, Elphinstone Road

On or towards the West: Bungalow No.13, Moldina Road

On or towards the North: Bungalow No.13, Moledina Road”

Paragraphs 2, 3 and 4 of the plaint read as under:

“2. That the property described in Para 1 above is owned by

plaintiffs as freehold property.

3. That the said property originally belonged to Nusserwanjee

Sorabji Anklesaria. Plaintiffs have purchased the property as per

conveyance deed dated 12.11.1968 from Shri Maneckaji

Nusserwanjee Ankelsaria. That name of plaintiffs was also recorded

in GLR Record and which was subsequently removed by the

defendant no.2 illegally. The plaintiff has challenged the aforesaid

act of defendant no.2 deleting the name of the plaintiffs in Civil

Court.

4. That lease deed dated 29.8.1941 was executed by the

then owners of the suit property and Union of India. That as per the

aforesaid lease deed the said property was leased out to defendants

under repairing lease for a period of 5 years. After the expiry of the

said period the defendants continued to be in use and occupation of

the said property as at tenant holding over on the same terms and

conditions as a monthly tenant. Thus the defendants are occupying

the said property as a statutory tenant only.”

48. The plaintiffs-respondents also misled the Court by stating that the

resumption notice dated 11

th

June, 1971 was set aside by the Bombay High

Court and the said order has attained finality.

49. In fact the judgment aforesaid on challenge before this Court in

Civil Appeal No.613 of 1980, heard along with other appeals, this Court by

order dated 4

th

August, 1998 made the following observation:

“ Order

Learned Solicitor General states that the Union of India would

seek dispossession of the respondent-occupants from the

properties involved in accordance with law and if need be,

through a Civil Court by filing suits. In case such steps are taken,

any observations made by the High Court which would stand to

Page 23 defeat the remedies sought would not stand in its way. On such

stance of the Union of India, Civil Appeals as also the special

leave petitions stand disposed of accordingly.”

50. The liberty given to the Union of India to dispossess the plaintiffs-

respondents from the suit property clearly indicates that the decision of the

Bombay High Court that the suit premises do not belong to the Union of

India was not acceptable to this Court.

51. The aforesaid misleading pleading made by the plaintiffs-

respondents is without any evidence and the same influenced the Court in

coming to a wrong conclusion that the plaintiffs-respondents are the

landlords and defendants-appellants are the tenants of the suit premises.

52. The Appellate Court also failed to appreciate the evidence and

erred in affirming the Trial Court’s view that the plaintiffs-respondents are

the landlords and defendants-appellants are the tenants.

53. The land of the suit premises belong to the Union of India-

appellants herein. Therefore, they cannot be held to be tenants of the suit

premises comprising of an area of 0.90 acres together with structure

consisting of main Bungalow, Servant Quarter and Garage.

54. The plaintiffs-respondents have only right with regard to the

structure built on the suit premises. The Union of India-appellants have a

right for resumption of the suit premises, as evident from evidence on

record as discussed above. This issue was not properly appreciated by the

Trial Court, the Appellate Court and the High Court which also failed to

notice the appellants’ right under Section 2 and 3 of the Government

Grants Act, 1895.

55. For the reasons aforesaid, we set aside the impugned judgment

Page 24 dated 25

th

November, 2009 passed by the High Court of Judicature at

Bombay in Civil Revision Application No.272 of 2009, the judgment dated

15

th

January, 2009 passed by the First Appellate Court and judgment and

decree dated 9

th

June, 2005 passed by the Trial Court. Civil Suit

No.695/1999 on the file of Small Causes Court, Pune is dismissed.

56. The appeal is allowed. No order as to costs.

………………………………………………… .J.

(DR. B.S. CHAUHAN)

………………………………………………… .J.

(SUDHANSU JYOTI

MUKHOPADHAYA)

……………………………………………… .J.

(KURIAN JOSEPH)

NEW DELHI,

MAY 06, 2014.