1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO. 4386 OF 2001 1. Kaikhosrou (Chick) Kavasji Framji of Indian Inhabitant, having his permanent place of residence at Bungalow No.17. Dr.Coyajhi Road, Pune-411 001. 2. Jawahir (Jerry) Kavasji Framji of Indian Inhabitant, residing at Bungalow No.17, Dr.Coyaji Road, Pune- 411 001. ... Petitioners. V/s. 1. The Union of India, New Delhi Through Ministry of Defence 2. Smt.Gita Kashyap, Defence Estate Officer, Pune Circle, And Estates Officer under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, who has her office at C/o.D.E.O., P.C., Pune-411 001. ... Respondents. D.J.Khambata, senior counsel with Siraj Rustomjee and Z.T.Andhyarujina i/b. Federal & Rashmikant for the petitioners. S.R.Rajguru with J.C.Satpute, A.D.Kango and D.A.Dubey for the respondents. CORAM: V.C.DAGA & MRS.MRIDULA BHATKAR, JJ. JUDGMENT RESERVED ON : 12th JUNE, 2009 JUDGMENT PRONOUNCED ON : 17th JUNE, 2009 2 JUDGMENT : (PER : V.C.DAGA,J.) 1. The present writ petition is filed under Article 226 of the Constitution of India challenging the notice dated 31st July, 2001, (“the impugned notice”) issued by the respondent No.2 to the petitioners under sections 4(1) and 2B(i) of the Public Premises Premises Act"), whereby and whereunder the petitioners are called upon to show cause why the order of eviction should not be made against them, holding them to be unauthorised occupants, under the provisions of the Public Premises Act. According to the petitioners, the impugned notice is without authority of law, without jurisdiction and ultra virus the Public Premises Act and it involves serious disputed questions of title to the premises comprising of the land admeasuring 21,168 sq.ft. ("the said land") out of the larger property (including residential bungalow) admeasuring in all about 1.52 acres situated at Survey No.417, B.No.17, Dr.Coyaji Road (formerly known as Elphinston Road), Pune- 411 001 ("the subject property"). PAST HISTORY : 2. The present litigation has a chequered past history. The respondent- Union of India through the Under Secretary to the Government for and on behalf of the President of India had addressed a notice dated 21st January, 1971 to late Kawasji Kaikhushru Sorabji Framji through whom the petitioners are claiming interest in the subject property being his legal heirs and representatives, seeking to resume the subject property alleging that the same belongs to the President of India and that the same was held by the noticee late Framji on "Old Grant Terms" under which Government was entitled to resume the said land and bungalow a portion of which was under requisition of the Government. 3 3. The noticee late Framji filed writ petition being Special Civil Application No.634/1974 under Article 226 of the Constitution of India to challenge the aforesaid notice dated 21st January, 1971 claiming to be the owner of the said property sought to be resumed by the Government of India. The main challenge to the notice dated 21st January, 1971 was on the ground that it threatened resumption of the petitioners' property without any authority of law and that it was given without observing principles of natural justice. The petitioner's case was that the property was purchased by his father Kaikhushroo Sorabji Framji from one Mohomedbhoy Hajibhoy under a conveyance dated 28th November, 1923. The said Mohd Hajibhoy had purchased the said property from one Burjorji Gustadji and Cooverbhai Homi Karani by a conveyance dated 1st March, 1920 in a public auction held on 12th October, 1919. According to the late Framji, the said land was a freehold land and that it was never held by him or his predecessors in title on any Military or Cantonment Tenure or under any grant or licence from the Government of India or east India Company. 4. On being noticed, the present respondents had appeared in that petition and filed their affidavit in reply dated 24th September, 1971 contending that the land belonged to them and was the property of the Central Government. It was resumable at the pleasure of the Central Government as the same was held by the petitioner late Framji and his predecessors in title on Old Grant Terms (Ordinary Cantonment Tenure) under the Government General Order No.14 dated 6th January, 1827. 5. At this juncture, it is relevant to mention similar notice of resumption was issued to MR Phiroj Temulji Ankalesaria who challenged in Special Civil Application No.1286/1972 raising identical contentions sketched hereinabove. That petition was allowed and the notice of resumption involved therein was quashed by the Division Bench presided 4 over by Justice Rege (as he then was) vide their Judgment dated 5th February, 1979 reported as (P. T. Anklesaria V. H.C.Vashishta in AIR 1980 Bom 9). 6. The writ petition filed by late Framji was heard simultaneously by the same Bench. It was decided on 6th February, 1979; wherein the leaned Division Bench relying upon its judgment in the case of P.T.Anklesaria (supra) for the reasons stated therein held that the said notice dated 21st January, 1971, was bad and illegal and issued a writ of mandamus restraining the respondents from acting under the said notice and resuming the subject property or any part thereof in pursuance of the said notice. While deciding the petition, one more contention, advanced by the respondents therein in defence that the settlement was subject to rules and regulations of Cantonment as to the tenure of the land giving them right of resumption, was also brushed aside by the Division Bench holding it to be without any substance. 7. The above judgments of the Division Bench, one in the case of P.T.Anklesaria, and another in the case of late Framji, (the predecessor-in- title of the present petitioners) were subject matter of appeal before the Hon'ble Supreme Court along with number of other petitions arising out of transfer cases; wherein the Hon'ble Supreme Court was pleased to pass orders from time to time, which are reproduced hereinbelow: "Order dated 20th July, 1988 TRANSFERRED CASES NOS.67-72/85 & 11-12 OF 1987 Union of India & Ors. ... Appellants. Versus P.T.Ankleshwar (dead) by Lrs. & Ors. etc. ... Respondents. 5 ORDER We are disposing of this cases with the agreement and consent of the counsel for the parties. These transferred cases are remitted back to the High Court for disposal, keeping in view 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.Jahagirdar, JJ, rendered in Special Civil Application No. 1286/72 decided on 5/6 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. 4. The High Court will make every effort to dispose of the cases within six months from the date of the receipt of the record. . The transferred cases stand disposed of accordingly. . Office is directed to take immediate steps for sending back the records of the cases to the High Court within one week. Order dated 25th March, 1992 Civil Appeal No.608-621 of 1980 Union of India and Ors. ... Appellants Versus P.T.Anklesaria (dead) by Lrs and Ors. ... Respondents. (with Appln for directions) 6 Date : 25.3.1992 Coram : Hon'ble Mr.Justice T.K.Thoman Hon'ble Mr.Justice S.C.Agrawal For the Petitioner(s)/Appellants(s): Mr.J.S.Jain, Sr.Adv. Mr.I.S.Goyal, Adv. Ms.A.Subhashini, Adv.(N.P.) For the Respondent(s)/Opposite Party: Mr.Y.A.Bobde, Sr.Adv. Dr.Sumant Bhardwaj, Adv. Mr.Sunil Goyal, Adv. for M/s.Gagrat & Co. Upon hearing counsel the Court made following O R D E R . The appeals are dismissed as infructuous in terms of the signed order placed on the file. ----- Order dated 13th January, 1995 REVIEW PETITIONS NOS.1773-86 OF 1993. IN CIVIL APPEALS NOS.608-21 OF 1980 Union of India & Ors. ... Appellants Versus P.T.Anklesaria(D) by Mrs. and Ors. ... Respondents. O R D E R These are the Petitions for review of the order dated March, 25, 1992 whereby Civil Appeals Nos.608 to 621 of 1980 were dismissed as having become infructuous. The reason given for the said order was the observations made by this Court on July, 20,1988 in Transferred Cases Nos.67 to 72 and 11- 12 of 1987. It has been submitted that out of the 14 appeals which 7 were disposed of by this Court by the orders passed by the High Court in Transferred Cases, namely, O.A.Nos. 608, 612 and 619-620 of 1988 and these appeals along could be dismissed as infructous for the reason given in the said order. As regards the other appeals the said reason does not apply in these circumstances the order dated March, 25, 1992 is modified and it is confirmed in its application to C.A.Nos.608, 612, 619, 620 of 1980. So far as the other appeals are concerned the order dated March, 25, 1992 is recalled and the matters are restored. The other appeals will be listed before the Court for hearing in the normal course. I.A.No.15 in C.A.No.614/80. I.A.No.15 is allowed and the legal representatives of the deceased respondents are brought on record. ----- Order dated 4th August, 1998 CIVIL APPEAL NOS.609-11 OF 1980 WITH CIVIL APPEAL NOS.613-18, 621/80 Union of India & Ors. ... Appellants Versus P.T.Anklesaria & Ors. ... Respondents. WITH C.A.4697/89, SLP(C) No.5428/90, C.A. 588/81, 3681/82, SLP(C) 10997/92, 6438/86. O R D E R 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 tend 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. 8 8. The last order dated 4th August 1998 appearing in the aforesaid catalogue, passed by the Hon'ble Supreme Court relates to the case of Framji, relevant to the present Litigation. The appeal came to be disposed of on the basis of the statement made by learned Solicitor General that the Union of India would seek dispossession of the respondents- occupants from the properties involved in accordance with law and if need be, through a Civil Court by filing suits. It was also made clear by the Hon'ble Supreme Court that if such steps are taken, any observations made by the High Court, which would tend to defeat the remedies sought, would not stand in the way of Union of India. Accordingly civil appeals as well as special leave petitions were disposed of. Much legal debate was raised on the sweep of the aforesaid order to which reference is made in detail in latter part of this judgment. 9. The respondents herein armed with the aforesaid order dated 4th August 1998 passed by the Apex Court sought to evict the petitioners from the subject property resorting to the provisions of the Public Premises Act, as a result of which, the impugned notice dated 31st July, 2001, came to be issued to the petitioners. The said notice is a subject matter of challenge in this petition as stated in the opening part of this Judgment. RIVAL SUBMISSIONS : 10. In persuasive address on behalf of the petitioners, Mr.D.J.Khambata, learned senior Counsel while challenging the aforesaid impugned notice dated 31st July, 2001 mainly raised two contentions; Firstly, the impugned notice is without jurisdiction and ultra virus the Public Premises Act since condition precedent to its issue that the premises should be "public premises" has not been established. In his submission under the Public Premises Act, the Estate Officer has to, prima facie; satisfy himself before issuing notice under section 4 about 9 the three jurisdictional pre- requisites; (a) that the premises are "public premises"; (b) that the noticee is in unauthorised occupation of the such public premises; and (c) that the noticee should be evicted. Reliance is placed on the Division Bench judgment of this Court in the case of Minoo Framroze Balsara v. Union of India, AIR 1992 Bom. 375. Secondly, that the the bonafide disputed question of title cannot be decided in the proceedings under the Public Premises Act which provide for summary eviction of the persons by the Government. In his submission, the impugned notice itself recognises that there is serious long standing unresolved dispute with regard to the title of the subject property which can only be adjudicated by the Civil Court. In support of his submission, he placed reliance on the judgment and order dated 6th February, 1979 of the Division Bench of this Court in Special Civil Application No. 364/1971 (K.K.Framji case). 11. In nut shell, the submission which has been pressed by the learned senior counsel for the petitioners is that the present case involves complicated questions of title and the respondents could not be permitted to resort to summary proceeding under the Public Premises Act. Learned counsel for the petitioners has also placed reliance on the judgment of the Apex Court in State of U.P. v. Zia Khan, (1998) 8 SCC 483 and pressed into service para-3 thereof and went on to urge that the provisions of the U.P.Public Premises (Eviction of Unauthorised Occupants) Act, 1972 are in pari materia with the provisions of the Public Premises Act. He has also placed reliance on some other judgments of the Apex Court in the case of Union of India v. Sitaram Garodia, (1996) 11 SC 578 and State of A.P. v. T.K.Rao, (1982) 2 SCC 134 to contend that if there is bonafide dispute to the title of the property, the government cannot take unilateral decision in its favour that the property belongs to it. 10 12. Mr. Khambata would contend that the correct procedure which needs to be followed by the respondents is that they should file suit in Civil Court and obtain declaration of their title to the said land and get the dispute as to the title decided and after obtaining declaration of title in their favour, they can resort to a fresh resumption proceedings. 13. Mr. Khambata heavily relied upon the judgments in the case of P.T.Anklesaria and K.K.Framji (supra) delivered by the Division Bench of this Court presided over by Justice Rege (as he then was) and went on to urge that plain reading of these judgments do indicate several areas of dispute as to whether the said land was held by the petitioners under any Old Grant from the Union of India and if so, whether the premises of such alleged Grant authorised the Union of India to resume possession of the said land. 14. Mr.Khambata further went on to urge that the judgment of this Court in the case of K.K.Framji has not been set aside and that it is binding on the Union of India even today. In his submission, the Hon'ble Supreme Court has not set aside the judgment. It merely recorded the statement of learned Solicitor General made on behalf of the Union of India that it 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. Upon such statement, Court directed that if such steps are taken, any observations made by the High Court, which would tend to defeat the remedies sought, would not stand in its way. According to Mr.Khambata, reading of this order, no one can infer even merger of the judgment of the Division Bench (in K.K.Framji case) in the order of the Supreme Court dated 4th August, 1998. In his submission, looking to the nature of the above order of the Supreme Court and its subject matter, it is clear that neither the merits of the judgment of Division Bench of this Court nor the reasons recorded therein or the law 11 laid down therein was gone into by the Hon'ble Supreme Court as such doctrine of merger is not attracted. Reliance is placed on the S.Shan Mugaval Nadar v. State of Tamil Nadu, (2002) 8 SCC 361. 15. Mr. Khambata, in order to buttress his submission, has also relied upon the judgment of the learned single Judge of this Court (Khanvilkar, J.) dated 23rd July, 2001 in Writ Petition No.2079/1995 (Union of India v. Smt.Banu Jahangir Coyajee); wherein the learned single Judge held that the order passed by the Supreme Court did not result in setting aside the order of the earlier Division Bench, which had set aside the resumption notice and that the same holds good even today. 16. Mr.Khambata strongly canvassed that once it is demonstrated that there is a serious dispute about title, then such dispute cannot be resolved under the Public Premises Act. He pressed into service Division Bench judgment of this Court in W.P.No.1552/2000 (M/s.Durga Trading Co. v. Union of India) decided on 6th February, 2003 and another Judgment of the Division Bench in W.P.No.5554/2004 (Framroze Navroji Darukhanwala v. Union of India) decided on 3rd April, 2006 (both unreported). In addition to these judgments, he has also relied upon the judgment of the three Judge Bench of the Supreme Court in the case of Government of A.P. v. T.K.Rao (cited supra). 17. Lastly, we were taken through the judgments delivered in the cases of P.T.Anklesaria and K.K.Framji together with various orders passed by the Supreme Court in the related matters to contend that the impugned notice is barred by principles of res judicata and that the respondents have no title to the subject property as such proceeding is liable to be quashed and set aside leaving the Union of India to seek declaration of their title in the Civil Court. 12 18. Per contra, Mr.Rajguru, learned counsel appearing for the Union of India with all vehemence at his command tried to counter the submissions made by Mr.Khambata. He contends that whether or not the subject property is a public premises; whether or not petitioners are unauthorised occupants of the subject property; and whether or not the noticee should be evicted, all these questions can only be resolved on the basis of evidence which the parties can lead before the Estate Officer appointed under the provisions of the Public Premises Act. In his submission all these questions are the questions arising out of the provisions of the Public Premises Act, they can only be decided by the authorities created under the said Act. The same cannot be gone into in writ jurisdiction of this Court being disputed question of fact requiring to be decided on the basis of documentary and oral evidence. 19. Mr. Rajguru further submits that the petitioners are trying to defeat the remedy of the Union of India by pressing into service the Division Bench judgments in the case of P.T.Anklesaria as also K.K.Framji which is not permissible in view of the clear-cut observation of the Hon'ble Supreme Court, which, in unequivocal terms, has observed that any observation made by the High Court which would tend to defeat the remedies sought by the respondents would not stand in its way. He, thus, submits that the Union of India is following due process of law by approaching the competent forum created under the Public Premises Act for eviction of the Petitioner and all the questions sought to be raised herein with regard to the validity of notice can alone be gone into by the Estate Officer, whose orders could be the subject matter of the appeal before the District Judge of the district in which the public premises are situated or such other judicial officer of that district having not less than 10 years standing as the District Judge may designate. 13 20. Mr.Rajguru further submits that issuance of the notice under section 4 of the Public Premises Act amounts to taking steps for eviction of the petitioners in accordance with law as permitted by the Hon'ble Supreme Court in its order dated 4th August, 1998, hence the impugned notice including action based thereon is perfectly legal and valid. 21. Mr.Rajguru also urged that the order dated 6th February, 1979 passed in Special Civil Application No.364/1971 in the case of K.K.Framji has merged into the order dated 4th August, 1999 passed by the Hon'ble Supreme Court. He placed reliance on the judgment of the Supreme Court in the case of M/s.Gojer Bros. (Pvt.)Ltd. v. Ratan Lal Singh, (1974) 2 SCC 453 in support of his submission to contend that there cannot be at one and the same time, more than one operative order in the same Lis governing the same subject matter. In his submission, the judgment of the inferior court, if subjected to an examination by the superior court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior court. In other words, the judgment of the inferior court loses its identity by its merger with that of the order of the superior court. He, thus, submits that this Court cannot rely upon the judgment either in the case of P.T.Anklesaria or in K.K.Framji. 22. Mr.Rajguru heavily relied upon the observations of the Hon'ble Supreme Court with regard to the Division Bench judgment of this Court presided over by Justice Rege (as he then was) in Special Civil Application No.1286/72 and pressed into service following observations of the Apex Court to contend that none of them have a presidential value: "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 14 Bench, it shall ignore the Judgment to that extent and the High court shall decide the matter afresh in accordance with law without taking into consideration or being influenced the aforesaid judgment of the Division Bench." (Emphasis supplied) 23. Mr. Rajguru further submits that the Division Bench judgment has not only lost its presidential value but none of the observations made therein can be allowed to be pressed into service to defeat the remedy sought by the respondents. In his submission, the order of the Supreme Court dated 4th August, 1998 alone is holding the field and based on that the impugned notice and the action of the respondents is legal and valid. 24. Mr.Rajguru further submits that two Division Bench judgments sought to be relied upon by the petitioners one in the case of Durga Trading Co. and another in the case of Framji Nanjee Darukhanwala (supra) were decided on the facts of those cases and are per in curium as it was not brought to the notice of the Court the specific bar created by Section 15 of the Public Premises Act, whereunder no Court can have jurisdiction to entertain the proceeding in respect of the eviction of any person, who is in unauthorised occupation of any public premises. 25. Mr.Rajguru took us through the various documents available on record to demonstrate title in favour of the Union of India and went on to press into service some of the recitals contained in the registered documents including one undertaking given by Mohmmedbhoy Rajeebhoy vide his letter dated 26th January, 1920 addressed to the Secretary, Cantonment Committee, Poona reading as under: 12, Cuffe Parade, Bombay, 15 26th January 1920 From : The Hon'ble Mr.Mohmmedbhoy Rajeebhoy. To The Secretary, Cantonment Committee, Poona. Sir, I have the honour to inform you that I have contracted to purchase Bungalow No.17, Elphinstone Road, Poona from Mr.Burjorjee Goostadjee and Bai Cooverbai, Executor and Executrix of the late Goostadjee Dhunjishaw. I understand that my Vendors will apply to