RSA No.1999 of 1983(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1999 of 1983(O&M) Date of Decision: May 9, 2011 Union of India .....Appellant v. Sham Sunder Dass and another .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Ms.Ranjana Sahi, Advocate for the appellant. Mr.Sanjay Majithia, Sr.Advocate with Mr.Shailender Mohan, Advocate for the respondents. Mr.S.D.Bansal, Advocate for the applicant-respondent in C.M.Nos.3368-69 of 2011. ..... RAM CHAND GUPTA, J. Facts leading to the present Regular Second Appeal are as under: Respondents-plaintiffs filed a suit for declaration that Notice No.1/41/L/L&C/69 dated 21.3.1975/7.4.1975 issued by Deputy Director, Military Lands & Cantonments, Ministry of Defence (ML&C) New Delhi, relating to the resumption of Bungalow No.102, the Mall, Ambala Cantt, measuring 1.60 acres or thereabout and bounded as follows:- On the North - By Road On the South - Survey No:357 (Bungalow No.103) On the East - Road RSA No.1999 of 1983(O&M) -2- On the West - Survey No: 358, is illegal, null, void and unconstitutional and against the principles of natural justice and hence, not binding upon the rights of the respondents- plaintiffs and defendant has acquired no right, title or interest therein. It has been averred that respondents-plaintiffs are owners in possession of the property in dispute and that the impugned notice, duly described in para no.2 of the plaint, had been served upon them by appellant-defendant-Union of India by referring Bungalow in dispute as an “OLD GRANT” terms under the Government and, hence, Government decided to resume the said land and the building standing thereon and hence, in exercise of powers vested in the Government, the notice to quit the same is being given and respondents-plaintiffs were asked to deliver the possession of the same alongwith structure standing thereon to the Military Estate Officer, Ambala Circle, Ambala Cantt., on the expiry of one month from the date of service of the notice. It has also been made clear in the notice that on the expiry of one month from the date of service of the notice, the occupation of the respondents-plaintiffs and all rights, easements and interests therein belonging to them in the said land and building standing thereon shall cease to exist from the said date. Notice was also accompanied by a cheque for a sum of `64126/- as value of authorised erection standing on the said land. However, the said cheque was returned by respondents-plaintiffs vide their letter dated 18.4.1975 protesting that the resumption of the property is vague and indefinite and no ground or reason has been mentioned in the notice for resumption of the property and the amount of compensation is highly inadequate and was not acceptable. RSA No.1999 of 1983(O&M) -3- The said notice has been challenged by respondents-plaintiffs on the ground that no property belonging to citizen of India can be acquired except in accordance with law and that the notice is also in conflict with the provisions of the Land Acquisition Act, 1894, Cantonment Act, 1924 and House Accommodation Act, 1926; that no public purpose for resumption has been mentioned in the notice; that the notice is also discriminatory as the bungalow, of the private holders and similarly situated bungalows of other persons have not been resumed; that the Rules and Regulations have ceased to have any effect in view of Article 13 of the Constitution of India as the same are inconsistent with the Constitution of India and the Laws of India; that under GIR No.287/D, Ambala Cantt, dated 12.9.1936 property cannot be resumed; that the compensation offered for the lease hold rights is inadequate as respondents-plaintiffs had spent `1,00,000/- in renovating the same and the present market value of the same is more than `3,00,000/-; that the value of lease hold rights is about `50,000/-; that the value of other gates, hedges and wires etc. is `10,000/- and value of annexe is `50,000/-; that no notice has been given to respondents-plaintiffs before issuing notice of resumption and hence, the notice is also in contravention of principles of natural justice. It has also been averred that no notice and no opportunity of hearing has also been given to the respondents-plaintiffs before assessing the market value of the structure standing on the land in dispute. Plea has also been taken that even a trespasser cannot be dispossessed except with the authority of law. Notice under Section 80 of the Code of Civil Procedure (for short `the Code') was also served upon appellant-defendant before filing RSA No.1999 of 1983(O&M) -4- the suit. Appellant-defendant contested the suit filed by respondents- plaintiffs, inter alia, on the ground that the land in dispute is defence land measuring 1.60 acres out of survey No.356, known as Bungalow No.102 and the same was held by respondents-plaintiffs under “OLD GRANT” terms governed by G.G.O. No.179 dated 12.9.1836. A notice of resumption of the said property was duly given to respondents-plaintiffs directing them to hand over the same within 30 days, as per terms and conditions of the said G.G.O. However, as respondents-plaintiffs had refused to hand over the possession of the property in dispute, even after expiry of notice period, hence, now they are unauthorised occupants of the public premises and hence, appellant-defendant -Union of India have started proceedings under the provisions of Public Premises (Eviction of Unauthorised Occupation) Act, 1971 (Central Act XI of 1971), (for short `the 1971 Act') in the Court of Estate Officer, Ambala Circle, Ambala Cantt., and therefore, it is contended that jurisdiction of Civil Court is barred as provided under Section 15 of the 1971 Act. Specific plea has been taken that respondents- plaintiffs are in possession of the land in dispute as licencees of appellant- defendant- Union of India on “OLD GRANT” terms under G.G.O. No.179, dated 12.9.1836 and that President of India is not bound to give any reason to resume the property and that notice has been issued as per terms and conditions of the said G.G.O. No.179. It has also been contended that present case cannot be termed as a land acquisition case and it also cannot be said that all the previous contract agreements, Rules and Regulations ceased to operate after commencement of the Constitution. The G.G.O. No.179, under which permission to use the land was granted, is legally RSA No.1999 of 1983(O&M) -5- binding on respondents-plaintiffs and the building has been resumed under the terms and conditions of the said G.G.O. Specific plea has been taken that terms and conditions of the said G.G.O. have been admitted by respondents-plaintiffs and hence now they cannot take the plea that the same is not binding upon them. It has also been pleaded that compensation offered to respondents-plaintiffs have been correctly assessed by Military Engineers for the super structure authorised to be erected on the land in dispute and that no compensation of land is liable to be paid to respondents- plaintiffs as the entire land of Bunglaow in question belongs to Government of India, Ministry of Defence and these facts were duly admitted by respondents-plaintiffs when the land was given to them under the terms and conditions of G.G.O. No.179. Further plea has been taken that depreciated value of the super structure is payable to the respondents-plaintiffs and hence, an amount of `64,126/- was offered to them and however, it was admitted that the cheque was returned by respondents-plaintiffs. The receipt of notice under Section 80 of the Code was admitted, however, the plea has been taken that the same was not tenable and hence the same was ignored. In replication to the written statement filed by respondents- plaintiffs, it has been denied that they are in possession of the property in dispute under “OLD GRANT” terms as per G.G.O. No.179 dated 12.9.1836. From the pleadings of the parties, following issues were framed by learned trial Court:- “1. Whether the impugned notice detailed in para no.2 of RSA No.1999 of 1983(O&M) -6- the plaint is illegal, unconstitutional, without jurisdiction, ultra vires as alleged in the plaint? OPP 2. Whether the Civil Courts have no jurisdiction to entertain the present suit? OPD 3. Relief.” Parties adduced evidence in support of their respective contentions before learned trial Court. Learned trial Court decided issue no.1 in favour of respondents-plaintiffs by holding that the same is against the principle of natural justice, as no opportunity of being heard was given to respondents-plaintiffs before issuing the said notice and that no opportunity was also being given to respondents-plaintiffs before assessing value of the super structure and that even notice is discriminatory as no such notice has been given to owners of building in the vicinity. Issue No.2 has also been decided in favour of respondents- plaintiffs and against appellant-defendant. Issue No.3 has also been decided in favour of respondents- plaintiffs and against defendants and however, while deciding issue no.3, it was observed that the property in dispute is being held by respondents- plaintiffs on “OLD GRANT” terms and they are bound by terms of G.G.O. No.179 dated 12.9.1836 on the ground mainly that the said fact has been admitted by respondents-plaintiffs, as is clear from the recital in sale deed Ex.D1, vide which the property in dispute was purchased by respondents-plaintiffs from previous owner. As a sequel to findings on various issues, suit of respondents- plaintiffs was decreed and a decree for declaration has been granted in their favour to the effect that the impugned notice issued by Deputy Director, RSA No.1999 of 1983(O&M) -7- Military Lands and Cantonments, Ministry of Defence, M.L.& C, DTE, New Delhi, relating to resumption of property in dispute is illegal, void, unconstitutional, and against the principles of natural justice and not binding upon the rights of the respondents-plaintiffs. Aggrieved by the said judgment and decree passed by learned trial Court, appellant-defendant filed appeal before learned District Judge, Ambala, however, as the appeal was not filed within prescribed period of limitation, an application under Section 5 of the Limitation Act was also filed for condonation of delay in filing the appeal. The application was contested by respondents-plaintiffs. Learned first appellate Court framed the following issue on the application for condonation of delay in filing appeal under Section 5 of the Limitation Act and reply thereof:- “ Whether there are sufficient grounds for condonation of delay?” Parties adduced evidence in support of their respective contentions on the said issue. Appellant-defendant examined Shri A.P.Singh, Military Estates Officer, Ambala Cantt., as AW1 and Shri R.K.Srivastav, Surveyor and Draftsman, Military Estates Officer, Ambala Cantt., as AW2. However, no evidence was adduced by respondents- plaintiffs on the point. Learned first appellate Court vide impugned judgment and decree dismissed the application filed by appellant-defendant for condonation of delay in filing the appeal and as a consequence thereto dismissed the appeal as well, as having not been filed within prescribed period of limitation and decree-sheet was prepared accordingly. Aggrieved against the said judgment and decree passed by RSA No.1999 of 1983(O&M) -8- learned first appellate court, the present Regular Second Appeal has been filed by appellant-defendant, which was admitted for hearing by this Court on 7.12.1983, without framing substantial questions of law. A Full Bench of this Court in the case of Ghanpat v. Ram Devi, AIR 1978 Punjab and Haryana 137, had taken a view that in view of Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by Lrs, (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure, on a substantial question of law. It may be mentioned here that though question of law was not framed at the time of admission of present appeal, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others, (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code of Civil Procedure at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held RSA No.1999 of 1983(O&M) -9- that it is the duty of the Court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. Hence, in view of this legal proposition, learned counsel for the appellant-defendant was asked to file substantial questions of law, stated to be arising in this appeal. Learned counsel for the appellant-defendant has filed the following substantial questions of law, stated to be arising in this appeal:- “1. Whether the notice of resumption dated 7.4.1975 is illegal as it is a condition precedent to give opportunity of being heard and determine the compensation? 2. Whether having come to the finding and held the property in suit `OLD GRANT BASIS' the notice issued under Claim 6 of the G.G.O. No.179 of 12th September 1836 could be set aside as illegal and arbitrary? 3. Whether the impugned judgment and decree rendered by learned Courts below are against law? 4. Whether the appeal could be dismissed being barred by time without adjudicating the other issues and law points?” I have heard learned counsel for the parties on the substantial questions of law, stated to be arising in this appeal, and have gone through the whole record carefully. At the very outset, an objection has been taken by learned counsel for the respondents-defendants about maintainability of present Regular Second Appeal, on the ground that the first appellate Court has not decided the appeal on merits and rather the same has been dismissed on the RSA No.1999 of 1983(O&M) -10- ground of limitation only and hence, it is contended that proper course for the appellant-defendant was to file a revision under Section 115 of the Code and not a Regular Second Appeal. On the point he has placed reliance upon number of judgments rendered in The Commissioner, Hubli-Dharwad Municipal Corporation v. Shrishail and others, AIR 2004 Karnataka 75, Jogendra Prasad Singh and another v. Satya Narayan Singh and others, 2002(2) ICC 330, Rambharose Singh v. Hemlata Aathle, AIR 1994 Madhya Pradesh 198, Daya Ram v. Divisinal Eng. (O&M), M.P. Elec.Board, 2001(5) SLT 68, Buta Ram v. Harnam Singh, decided on 11.8.2009 in C.R.No.221 of 2005, S.Satnam Singh and others v. Surender Kaur and another, AIR 2009 Supreme court 1089, and Kh.Ali Mohd. v. Chief Secretary to Govt. and others, 2009(4) RCR (Civil) 818. On the other hand, it has been contended by learned counsel for the appellant-defendant- Union of India that as appeal filed by appellant- defendant has been dismissed by learned first appellate Court, may be on the ground of limitation, the same amounts to decision in appeal and hence, judgment and decree passed by learned trial Court has merged in the judgment and decree passed by learned appellate Court. It is further contended that decree was also prepared in this case by learned first appellate Court and, hence, it is contended that only Regular Second Appeal is maintainable against the impugned judgment and decree passed by learned appellate Court, on the substantial questions of law, arising in this appeal. She has also placed reliance upon Shyam Sundar Sarma v. Pannalal Jaiswal and others, AIR 2005 SC 226. The question whether an appeal, accompanied by an application RSA No.1999 of 1983(O&M) -11- for condonation of delay in filing the appeal, is an appeal in the eyes of law, when the application for condonation of delay in filing the appeal is dismissed and consequently appeal is also dismissed being barred by limitation, in view of Section 3 of the Limitation Act, came to be considered by Privy Council in Nagendranath v. Suresh Chandra, 1932 PC 165, and it was observed as under:- “There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the terms, and that it is no less an appeal because it is irregular or incompetent.” A bench of three Hon'ble Judges of Hon'ble Apex Court in Messers. Mela Ram and sons v. Commissioner of Income-tax, Punjab, 1956 AIR (SC) 367: 1956 (1) SCR 166, considered this specific question and came to the conclusion that an appeal presented after limitation is an appeal and an order dismissing it as time barred is one based in appeal by placing reliance upon decision of Privy Council in Nagendranath's case (supra) and observed as under:- “9. But the question still remains whether the view taken in 1949 Bom 400 and 1952 Bom 157, that an appeal which is filed beyond the period of limitation is, in the eye of law, no appeal, unless and until there is a condonation of delay, and that, in consequence, an order passed thereon cannot be held to be passed in appeal so as to fall within Section 31, is right. RSA No.1999 of 1983(O&M) -12- Now, a right of appeal is a substantive right, and is a creature of the statute Section 30(1) confers on the assessee a right of appeal against certain orders, and an order of assessment under section 23 is one of them. The appellant therefore had a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income-tax Officer. Then, we come to section 30(2), which enacts a period of limitation within which this right is to be exercised. If an appeal, is not presented within that time, does that cease to be an appeal as provided under section 30 (1)? It is well established that rules of limitation, pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with section 30(1) must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in section 30(2) it is liable to be dismissed in limine. There might be a provision in the statute that at the end of the period of limitation prescribed, the right would be extinguished, as for example, section 28 of the Limitation Act; but there is none such here. On the other hand, in conferring a right of appeal under section 30(1) and prescribing a period of limitation for the exercise thereof separately under section 30 (2), the RSA No.1999 of 1983(O&M) -13- legislature has evinced an intention to maintain the distinction well-recognised under the general law between what is a substantive right and what is a matter of procedural law.In Nagendranath v. Suresh Chandra Dey(3) Sir Dinshaw Mulla construing the word ' appeal' in the third column of article 182 of the Limitation Act observed: "There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent". These observations were referred to with approval and adopted by this Court in Raja Kulkarni and others v. The State of Bombay, 1954 SC 73. In Promotho Nath Roy v. W. A. Lee, 1921 Cal 415,an order dismissing an application as barred by limitation after rejecting an application under Section 5 of the Limitation Act to excuse the delay in presentation was held to be one "passed on appeal" within the meaning of section 109 of the Civil Procedure Code. On the principles laid down in these decisions, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal.” In later judgment rendered by four Hon'ble Judges of Apex RSA No.1999 of 1983(O&M) -14- Court in Sheodan Singh v. Daryao Kunwar, 1966 AIR (SC) 1332: 1966 (3) SCR 300, the question again arises whether dismissal of an appeal from a decree on the ground that appeal was barred by limitation was a decision in appeal, it was observed as under:- “14........We are therefore of opinion that where a decision is given on the merits by the trial Court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground of dismissal of the appeal.” In a recent judgment rendered by a Bench of three Judges of Hon'ble Apex Court in Shyam Sundar Sarma's case (supra) by relying upon Nagendra Nath's case (supra), Sheo Dan's case (supra) and Messers Mela Ram and Sons' case (supra) and while considering Rattan Singh v. Vijay Singh and others, (2001) 1 SCC 469 observed as under:- “12. Learned counsel placed reliance on the decision in Ratansingh vs. Vijaysingh and others [(2001) 1 SCC 469 ] rendered by two learned Judges of this Court and pointed out that it was held therein that dismissal of an application for condonation of delay would not amount to a decree and, therefore, dismissal of an appeal as time barred was also not a decree. That decision was rendered in the context of Article 136 of the Limitation Act, 1963 and in the RSA No.1999 of 1983(O&M) -15- light of the departure made from the previous position obtaining under Article 182 of the Limitation Act, 1908. But we must point out with respect that the decisions of this Court in Messrs Mela Ram and Sons and Sheodan Singh (supra) were not brought to the notice of their Lordships. The principle laid down by a three Judge Bench of this Court in M/s Mela Ram and Sons (supra) and that stated in Sheodan Singh (supra) was, thus, not noticed and the view expressed by the two Judge Bench, cannot be accepted as laying down the correct law on the question. Of course, their Lordships have stated that they were aware that some decisions of the High Courts have taken the view that even rejecting an appeal on the ground that it was presented out of time is a decree within the definition of a decree obtaining in the Code. Thereafter noticing the decision of the Calcutta High Court above referred to, their Lordships in conclusion apparently agree with the decision of the Calcutta High Court. Though the decision of the Privy Council in Nagendra Nath Dey vs. Suresh Chandra Dey (supra) was referred to, it was not applied on the ground that it was based on Article 182 of the Limitation Act, 1908, and there was a departure in the legal position in view of Article 136 of the Limitation Act, 1963. But with respect, we must point out that the decision really conflicts with the ratio of the decision in Messrs Mela Ram and Sons and Sheodan Singh (supra) and another decision of this Court rendered by two learned RSA No.1999 of