*THE HON'BLE SRI JUSTICE GODA RAGHURAM + WRIT PETITION NO : 14347 of 2002 % Dated: 22-07-2011 # Smt. Roshan Minoo Patel and others …PETITIONERS (W.P.No.14347 of 2002) VERSUS $ Union of India, rep. by its Secretary Ministry of Defense, New Delhi. and others ...RESPONDENTS (W.P.No.14347 of 2002) ! Counsel for the petitioners : SRI CHALLA SEETHA RAMAIAH FOR SMT.A.ANASUYA ^ Counsel for the respondents : SRI.L.PRABHAKAR REDDY <GIST: >HEAD NOTE: ?Cases referred 1. [2002 (5) ALT 370] 2. [1994 (2) SCC 14]. 3. [(1996) 2 SCC 520] 4. [AIR 1931 PC, 1] 5. 12 ALL Pg.1 (FB) per Mahmood, J 6. AIR 1983 SC 684 7. (1998) 3 SCC 331 8. AIR 1954 SC 379 : 57 Bom LR 678 9. AIR 1954 SC 606 10. ILR (1902) 29 Cal 190 (PC) 11. ILR (1895) 22 Cal 533 : 22 IA 60 (PC) 12. AIR 1934 pc 157 : 61 IA 286 13. ILR (1895) 22 Cal 533 (PC) 14. AIR 1934 PC 157 15. [(1904) AC 31] 16. [1973 (2) ALL.ER 546 ] 17. 17 W.R 104 18. 36 Madras 364 19. A.I.R. (35) 1948 Madras 134 20. AIR 2003 SC 3349 21. 1963 3 S.C.R. Pg.22 22. 2 M.H.C.R. 276 23. (1867) 7 W.R. 338 24. A.I.R. 1941 P C. 85 25. (1867) 7 W.R. 338 26. (1965) 2 ALL ER 27. 77 CLR 511 28. AIR 1969 SC 961 29. AIR 1968 SC 1281 30. (1990) 2 ALL.ER 31. (1958) AC 95 32. (1999) 4 SCC 149 33. AIR 1999 SCC 2294 34. AIR 1961 AP 113 35. AIR 1965 SC 1923 36. AIR 1977 BOM 220 37. (1853) 9 Ex. 111 38. (1888) 21 QBD 313 39. [1969] 2 AC 147 40. Administrative Law [8th edition, Pg.269] 41. (1910) 2 KB 859 42. (1951) 2 KB 1 43. AIR 1964 SC 807 44. AIR 1982 SC 1081 45. 1984 1 AN.W.R. 404 46. 1988 (1) ALT 716 47. (1986) 1 SCC 133 48. 1995 Supp (2) SCC 290 49. [1910] ILR 33 MAD 173 50. [1896] ILR 19 MAD 165 51. [1909] ILR 36 CAL 1 52. 1967 (2) An.W.R 433 53. AIR 1983 Delhi 347 54. 2002 (5) ALT 370 55. AIR 1955 SC 352 56. AIR 1956 SC 60 57. AIR 1995 SC 227 58. AIR 1961 A.P. 113 59. 1989 3 SCC 612 60. 1993 4 SCC 403 61. (1996) 6 SCC 223 62. (1996) 11 SCC 257 63. (2007) 6 SCC 186 64. AIR 1980 BOMBAY 9 65. 2003(5) ALT 143 66. A.G. Noorani: A Constitutional History of Jammu and Kashmir, pg.3. 67. 1969 (2) SCC 289 68. AIR 1953 SC 33 69. AIR 1973 AP 256 70. AIR 1969 SC 316 71. 1989 Supp(2) SCC 627 72. 1990 Supp SCC 633 (635)=AIR 1991 SC 264 73. (1974) 2 SCC 393 74. AIR 1950 PC 80 75. AIR 1968 SC 1328 76. AIR 1963.SC 385 77. AIR 1922 PC 241 78. AIR 1977 25 79. (1976) 4 SCC 780 80. (1982) 1 SCC 4 81. (1990) 4 SCC 286 82. (1993) 1 SCC 531 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SECOND DAY OF JULY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO : 14347 of 2002 Between: 1 Smt. Roshan Minoo Patel, W/o Minoo Sorabji Patel, R/o 1-10-156, Alexander Road, Secunderabad. 2 Sri Feroxe Behram Chenoy, S/o Behram Sorabhi Chenoy, R/o 1-10-156, Alexander Road, Secunderabad. 3 Sri Jahangir Behram Chenoy, S/o Behram Sorabji Chenoy, R/o 1-10-156, Alexander Road, Secunderabad. ..... PETITIONERS AND 1 Union of India, rep. by its Secretary Ministry of Defense, New Delhi. 2 Director General of Defense Estate Ministry of Defense, Government of India, New Delhi. 3 Defense Estate Officer, A.P. Circle, Secunderabad Cantonment Board, Secunderabad. 4 Sri Hamidullah Sharif, 5 Sri Fiazujjun Gori .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to call for the records from the respondent no.3 pertaining to case no.21/188/EV/Sy.No.528/B.No.176 on the file of the Estate Officer (under Central Act No.40 of 1971), Andhra Pradesh Circle, Court Compound, Secunderabad, dated 30-5-2002 and quash the same by issuing a Writ or order or orders mainly in nature of Writ or Certiorari or any other proper Writ, as the said order is without jurisdiction, contrary to law and violative of Article 300-A of Constitution of India Counsel for the Petitioner: Sri CHALLA SEETHA RAMAIAH for SMT.A.ANASUYA Counsel for the Respondent No.: SRI.L.PRABHAKAR REDDY The Court made the following Order: THE HON’BLE SRI JUSTICE GODA RAGHURAM W.P. No. 14347 of 2002 Dated 22-07-2011 ORDER : Competing claims to ownership of a property in Secunderabad Cantonment, between the petitioners and the respondents has resulted in the Writ Petition, challenging the order impugned. Heard Sri Challa Sitaramiah learned Senior Counsel instructed by Smt. A. Anasuya for the petitioners and the learned Central Government standing counsel Sri T. Venkata Raju Goud for the respondents. The Order, dated 30–05–2002, in case No.21/188/EV/SY.No.528/B.No.176, passed by the 3rd respondent – the Defence Estate Officer, holding that an extent of Acs.02 – 80 gts comprised in G.L.R. Sy.No.528 of the Secunderabad Cantonment is a public premises and the constructions carried out therein by the petitioners and respondent Nos.4 to 5 herein as setout in the schedule to the Notice, dated 29–12–1995 are unauthorised; and directing demolition (by the petitioners and respondent Nos. 4 & 5 within 30 days); and in the event of their refusal or failure to comply with the Order within the stipulated period, directing the Estate Officer or an officer authorised by him to demolish the constructions, is assailed in this Writ Petition. THE FACTS PLEADED BY THE PETITIONERS : [A] Bungalow No.176 in land admeasuring Acs.2.6224 bounded by a compound wall at Bowenpally, Secunderabad, originally belonged to Mirza Parvarish Ali. Parvarish Ali sold the said property to Sri B. D. Chenoy through a registered sale deed, dated 18 – 08 – 1905. Eversince, the property has been in the ownership, custody and possession of private individuals. On the death of Sri B. D. Chenoy his wife and children succeeded to the property. After death of Sri B. D. Chenoy’s wife, Smt. Avabai Chenoy the petitioners who are the daughter and sons of Late Sri B. D. Chenoy inherited the schedule property and are in exclusive possession thereof. [B] The Petitioners filed declarations before the Urban Land Ceiling Authorities in 1976. The 3rd respondent and competent authority (ULC), Secunderabad Cantonment, conducted enquiry and passed an order determining that the petitioners are holding excess land. The petitioners preferred an appeal before the Appellate Authority under Section 33 of the Urban Land Ceiling Act - the Director Defence Estate (Lands) Southern Cantonment. The appeal was rejected by the Appellate Authority. Thereagainst the petitioners filed W.P. No.5187 of 1982 and batch before this Court. The writ petitions were allowed and the cases remitted to the Appellate Authority; before whom the appeals are pending. [C] Pursuant to different notifications issued on 02–11–1947 under the provisions of the Hyderabad Land Acquisition Act [Hyderabad Act IX of 1309 Fasli] large extents of land were acquired for expansion of the Begumpet aerodrome. Among the properties acquired were 10,014 Sq.yds. including bungalow No.164 of Ms. Feroze Nadirsha Chenoy; 11,500 Sq.yds. together with bungalow No.165–2–B–26 of Mr. S. Madhavarao; bungalow in an area of 8,407 Sq.yds belonging to the petitioners; a land and bungalow No.171 belonging to E.P. Chenoy; bungalow No.161, including the appurtenant land belonging to E.J. Chenoy; bungalow No.166 - land and out-houses of H.S. Chenoy; and bungalow No.163 - land and out-houses belonging to F.S. Chenoy. Compensation only for the buildings was paid and not for the land. The claimants sought reference under Section 14 of the Hyderabad Land Acquisition Act and the references came to be numbered as O.P. Nos.19, 39, 43, 45, 63, 64 & 65 of 1952. By the common judgment dated 01 – 11 – 1961 of the Reference Court of the learned Chief Judge, City Civil Court, Secunderabad, the O.P’s were allowed. The Reference Court held that the acquired properties did not belong to the Cantonment Authorities but belonged to the claimants and they were entitled to compensation for acquisition of the lands as well. The Reference Court clearly held that the ownership of the land vested in and continued with the claimants but not with the Secunderabad Cantonment. In particular a finding was recorded that lands in Thokatta Village belonged to private individuals and neither to the Central Government nor the Cantonment. [D] The 3rd respondent issued a notice dated 17–07–1997 to the petitioners alleging that they are in unauthorised possession of the enumerated premises and asked them to vacate. Aggrieved thereby, the petitioners filed C.M.A. No.172 of 1997 before the Chief Judge, City Civil Court, Hyderabad, under Section 10 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter ‘The 1971 Act’). By the order dated 31 – 01 – 2002 C.M.A. No.172 of 1997 was allowed and the 3rd respondent was required to enquire into the matter in detail. [E] Though the petitioners claimed ownership of the property, denied any right title or authority of the Government or the Cantonment in respect of the said property, and disputed the very authority and jurisdiction of the 3rd respondent, the 3rd respondent by the impugned proceedings determined the land as the property of the Cantonment and directed demolition of the constructions in the schedule property and ordered eviction of the petitioners. [F] Since the property in question is not a public premises and belongs to the petitioners, the 3rd respondent has no jurisdiction and the entire initiation, processing and conclusion of proceedings under the provisions of the 1971 Act is unsustainable. THE RESPONSE : The 3rd respondent – The Defence Estate Officer [DEO] filed a counter-affidavit, which to the extent relevant and material asserts: (a) As per the entry in the General Land Register (GLR) of Secunderabad Cantonment, an area admeasuring Acs.02.80gts comprised of G.L.R. Sy.No.528, situate outside the notified civil area is classified as B(3), i.e., owned by the Central Government (Ministry of Defence) and is placed under the management of the DEO. According to the entries in the GLR only occupancy rights were held by B.D. Chenoy under the terms of an old grant governed by order No.179 & 700 dated 12-09-1836 and 03-07-1855 respectively, issued by the Governor General-in-Council; (b) In terms of the above grant the land and the trees growing thereon vest absolutely in the Government and cannot be sold. However, occupancy rights therein together with superstructures are transferable subject to previous sanction of the Government. Under the terms of the old grant the Central Government also reserves their right of resumption by giving one months’ notice and paying the value of superstructures, authorised before their erection; (c) Consequent on the death of B.D. Chenoy the names of his wife and three children were mutated in the GLR devolving occupancy rights held by late B.D. Chenoy. It is incorrect to state that the petitioners are in exclusive possession and the Government did not object to the “free-hold enjoyment” of the petitioners. Mere filing of appeals under the Urban Land Ceiling Authorities or the pendency of the Appeal before the Appellate Authority does not confer title upon the petitioners in respect to the property; (d) The Petitioners claim that they were paid compensation in respect of the land acquired for the national highway and thus the Government admitted their title is incorrect. Resumption of land was made in respect of GLR Sy.Nos.441, 417 & 528 by paying compensation for various structures standing on the land. Rs.3,647/- was paid to the petitioners by the Military Estate Officer (now D.E.O.) through cheque dated 20-09-1979 and the land was utilized for the national highway. The further contention of the petitioners with regard to the decision of the Civil Court dated 01-11-1961 in O.P. Nos.19 of 1952 and batch and that they were paid compensation for the land as well pursuant to the declaration by the Civil Court on their title to the lands is not answered, contending that the respondents are not parties to the O.P.’s; (e) The DEO being the Estate Officer under the provisions of 1971 Act initiated steps for eviction of the petitioners in respect of the public premises by passing an order dated 17-07-1997. Assailing the same the petitioners filed a statutory appeal C.M.A.No.172 of 1997 which was remanded to the 3rd respondent, i.e., the DEO by the Appellate Authority on 31-01-2002 including for consideration of the contentions and claims of the petitioners. Therefore, the allegation that the DEO has no locus standi or jurisdiction to decide any issue with regard to the property of the petitioners is unsustainable. The point of patent lack of jurisdiction of the DEO was not raised by the petitioners in the earlier round of litigation, i.e., in C.M.A. No.172 of 1997; (f) The findings and reasons recorded by the Reference Court in its judgment in O.P. No.19 of 1952 and batch, particularly with regard to the report of Captain James, etc., is untenable and is, at any rate, not binding on the respondents who are not parties to the said litigation; (g) The petitioners who came into possession of the property in 1960 as L.R.’s of B.D. Chenoy never raised a dispute with regard to the title or ownership of the Government and the lands. Their claim is, therefore, barred by limitation; and (h) As the petitioners are substantially seeking a declaration of title in the context of a serious dispute as to title and the assertion of the title is also by the Secunderabad Cantonment and the Government of India, such dispute is not amenable to the jurisdiction of this Court under Article 226 of the Constitution. The reply by the Petitioners: The petitioners rely on what is pleaded to be an extract of the Memorandum on tenure of land in the Administered Area by the Government of India sourced from the India Office Library Records, vide reference No.IOR/R-12 Box 89 Serial No.22. According to the petitioner the “Memorandum on tenure” records: “ Para 1: The large tract of land roughly 16 square miles in area, known as the Cantonment of Secunderabad has been acquired at different times for the use of the Military authorities, starting from 1806, in which year the Subsidiary Force was permanently stationed at the capital of Hyderabad. There was at no time any definite assignment of the land: land was taken up as required by the Military authorities. No payment was apparently ever made. Some of the land was used for barracks rangers and Military buildings generally: some was occupied by bazaars which ultimately grew up into the town of Secunderabad: some remained as grazing waste and agricultural land included in the Cantonment area mainly for sanitary and police purposes. There are 13 villages known as Moglai Villages which were also included in the whole or in part in the Cantonment area for similar reasons. In these villages, the British authorities merely exercise police jurisdiction combined with sanitary control. Civil (judicial), Ecclesiastical, Revenue and general administration in these villages vest in the Nizam’s Government. In the rest of the area, the British authorities have full civil and criminal jurisdiction. In areas not actually occupied by the Military authorities or utilized for purposes subsidiary to Military administration, the Nizam’s Government still have revenue jurisdiction in respect of areas assessed to land revenue, such jurisdiction being exercised subject to Residency control. Para 2: No separate record of rights has ever been prepared for the entire area, and it is believed that there is no actual register of property in Secunderabad town. An attempt was made to compile a register in 1871 but was abandoned owning to the difficulties experienced. Para 3: A demi-official letter dated 15th June, 1898 may be quoted in this connection. The Foreign Secretary observes: No land has been assigned to the Government of India by the Nizam’s Government for Military purposes. Occupation has been acquiesced in because the British Government wanted it for the Military purpose of cantoning troops… … There is therefore no land in Secunderabad which absolutely belongs to the Government of India, and the Military authorities are entitled to exercise control only over so as much of the land within the outer boundary line as has been actually assigned for Military purposes. For example the administration of all revenue paying land within this line rests with the Nizam’s officials by who the revenue is collected. The Resident went on to refer to a survey which has been effected in 1884, during the course of which a map was prepared by Major Stevenson assisted by an Officer of the Nizam’s Government,, showing all the Military lands in the Cantonment. The result was to show that various block of land scattered through out the entire area were in the occupation of the Military authorities. There was no compact block which might be surrounded by a ring fence. Sir Chichele Plowden defined three classes of land in the Cantonment at the time, viz., (i) The Military area which includes all the land actually assigned for Military purposes and in Military occupation (ii) The Moglai villages, 13 in number, (iii) The civil area which, comprises all the land in the external boundary not included in either of the other areas. Sir Chichele Plowden further observed that the Military area also included lands not actually in occupation for Military purposes. As to these, the Government of India in their Public Works Department No.467-B.M. of 25th April, 1873, laid down the principles that, while the Military authorities could dispose of the lands assigned for specific Military purposes, they were not empowered to permit the occupation of lands in the Cantonment the allotment of which for a specific purposes has not been sanctioned by Government. This pronouncement was followed by the enactment of certain rules which deal with applications for land within the Military Cantonment. They came into effect from the 6th May 1873, and laid down the procedure by which applications for the grant of lands pass through various channels and are finally sanctioned by the Resident. Most of the lands in the civil area is private property and the sovereign rights vest in the Nizam, the British Government occupying much the same status as it does in the Residency Bazaars, ie., the Resident exercises full administrative control in trust for the Nizam’s Government. The Government of India in their final pronouncement on the Resident’s letter decided not to interfere with the existing system… … Para 5 : A new Survey was taken up in 1900 of both the Cantonments, Secunderabad and Bolarum, showing the outer boundary and also the land actually in Military occupation. The Nizam’s Government was associated in the operations and a map was finally prepared in 1902, showing the lands under Military occupation and various plots marked green on the map with regard to which the Nizam’s representative raised objections on the ground and they were not definitely in Military occupation. The Nizam’s Government, at first refused to assign these lands for Military purposes. The question was not definitely settled until 1908 (letter from the Nizam’s Minister No.1930 dated 14th September 1908) when the Minister informed the Residency that the Nizam agreed to 17 of the sites in question being retained within the Military limits of Cantonment, subject to the condition that the Inamdars and others who had lands in the said area were not precluded from enjoying their existing rights on their respective holdings. Para 7: A revised description of the boundaries of the Cantonment of Secunderabad was published with the approval of the Government of India in the Residency Orders on the 14th October 1911. Para 8: The area within the Cantonment boundaries of Secunderabad consists of the Moglai Villages and the Civil and Military areas. There is no question of house accommodation in the Moglai villages. Para 9 : It is regrettable that so far no register of rights in land within the Cantonment area has been prepared. If such a register were in existence it would greatly simplify the question of grants of land for building and other purposes. It is obvious that such a register will be necessary if we are to prepare for the Cantonment a clear and definite set of rules such as have been recently framed by the Government of India for Cantonments generally. Para 10 : A very important distinction must be drawn between the status of government as regards land within the Cantonment of Secunderabad and land in Cantonments in British India, or in Indian States, where land has been definitely assigned for purposes of a Cantonment. In the later case, most of the land was the property of Government at the outset, having been specially acquired for the cantonments. In the case of Secunderabad, there has been no definite assignment; land has been handed over from time to time free of charge by the Nizam’s Government fro occupation by the Military authorities: This procedure has been followed only in cases of land actually in Military occupation, such as barracks, officers’ bungalows and military buildings generally, the rest of the lands being included within the Cantonment boundary for purposes subsidiary to Cantonment administration namely Sanitary and Police purposes, bazaars, markets, etc. Para 11: In the Civil area outside the Military areas properly so called, and excluding the Moglai Villages, the control of building rests with the Cantonment authority. They can give permission to build, but this amounts merely to a license and does not convey a title to the land. The land may be owned by private individuals or by the Nizam’s Government: It may be Revenue paying land or waste and used for grazing or otherwise. It is owned by the Nizam’s Government, an application for permission to buy or lease should be addressed to that Government through the Residency. If the applicant owns the land either by purchase or by hereditary rights there is no difficulty, unless the land pays revenue to the Nizam’s Government. In this case the sanction of the Nizam’s Government would be necessary. They might permit the land revenue to be redeemed or convert it into a ground rent. The resident might refuse to take up the case even if the Cantonment authority had sanctioned the building. In the case of non-revenue paying land owned privately the consent of the Nizam’s Government would not be necessary. In the town of Secunderabad apparently most of the land is held privately. Para 13: The land affected by the rules would comprise the entire Cantonment area excluding the 13 Moglai Villages and other villages in which the Cantonment Authority merely has a right to control the sanitation ie., the Military area and the Cantonment area… … The Petitioners further contend that in the Gazette Notification issued by the Government of Nizamul Kul Asif Jar 1286 HIJRI set out in volume No.38, Hyderabad Deccan, it is clearly recorded that by the resolution passed by the Nizam Government and the Firman-e-Mubarrak issued on 28-08-1906, only the power of criminal and police jurisdiction were transferred to Government of India and all rules and regulations formulated for the Cantonment are not applicable to the villages; and further, the Government of Hyderabad shall utilize all the power of judiciary, civil as usual in these areas. On the amalgamation of these lands into the Cantonment the rights and easements which vested in Government of Hyderabad Jagirdars or owners, possessors of the land of the 13 villages, the rights, enjoyments and power are not effected. As per the Firman the rights of jagirdars and owners and possessors shall be continued and they would enjoy the rights and the Secunderabad Cantonment shall provide ample facilities for the use of these rights. The State Government acquired some portions of the