Case: KAIKHOSROU(CHICK) KAVASJI FRAMJI AND ANR Vs. UNION OF INDIA AND ANR

2. Though the controversy involved in this appeal is short, in order to appreciate as to how it arose, it is necessary to set out its background facts in detail infra. The facts are stated from the SLP paper books and the List of Dates furnished by the parties3. The appellants herein are the writ petitioners and the respondents herein are the respondents in the writ petition out of which this appeal arises4. The dispute relates to a property, which is situated at Survey No.417, Bungalow No.17, Dr. Coyaji Road (formerly known as Elphinstone Road) Pune-411001. The property consisted of a main bungalow, a cottage, outhouses, garages, and an open plot of land (garden) admeasuring around 1.52 acres (hereinafter referred to as the suit property)5. One Burjorji Goostadji and Cooverbai Homi Karani were the owners of the suit property. They sold the suit property to one Mr. Mohammad Hajjibhoy by indenture of conveyance dated 01.03.1920 pursuant to the order of the District Judge made on a Misc. Application No.5 of 1919 granting sanction for the sale in favour of Mr. Mohammad Hajjibhoy6. Mr. Mohammad Hajjibhoy then sold the suit property to one Mr. Kaihosrou Sorabji Framji by indenture of conveyance dated 28.11.1923. Mr. Kaihosrou Sorabji Framji then in turn leased out the suit property on 10.10.1929 to the Government of India for a period of five years on a rent of Rs.110/-per month7. Even after the lease having come to an end by efflux of time, the lessee i.e. the Government of India continued to remain in possession of the suit property. However, Mr. Kaihosrou Sorabji Framji then executed another lease deed on 19.04.1940 in favour of the Government of India for a further period of five years. In the year 1939, the lessor i.e. Mr. Kaihosrou Sorabji Framji applied to the Cantonment Board, Pune for giving permission to undertake certain building work in the suit property. After exchange of some letters, the Cantonment Board granted the permission to Mr. Kaihosrou Sorabji Framji8. On 30.04.1941, Mr. Kaihosrou Sorabji Framji expired leaving behind his son Mr. Kavasji K Framji who inherited the suit property. By order dated 08.06.1943, the then Collector, Poona requisitioned the suit property under Rule 75 A (i) of the Defense of India Rules and handed over its possession to the Military Authorities9. However, after three years on 23.03.1946, the suit property was de-requisitioned and the possession was handed over back to Mr. Kavasji K Framji. On 05.08.1948, the Collector again requisitioned the suit property under Section 5 (1) of the Bombay Land Requisition Act, 1948. In this order it was mentioned that Mr. Kavasji K Framji is the owner of the suit property10. Mr. Kavasji K Framji filed Writ Petition No.2783 of 1983 in the Bombay High Court seeking inter alia a relief for restoration of possession of the suit property. By order dated 14.01.1985, the Bombay High Court allowed the writ petition and directed restoration of possession of the suit property to Mr. Kavasji K Framji. The Government of India, however, did not vacate the suit property but undertook to vacate it by 30.04.198511. Reverting to the events to complete the narration of facts in chronology, on 21.01.1971, the Union of India issued a resumption notice in relation to the portion of the suit property (about 22,168 sq. feet). The notice was founded on the allegations inter alia that the suit property was held under old grant which empowered the Union of India to resume the subject land. The notice contained that on the expiry of 30 days period after its service, all private rights, and interest of Mr. Kavasji K Framji would be ceased. The notice offered to Mr. Kavasji a sum of Rs.4765/- by way of compensation towards the value of various structures standing on the subject land. A cheque of Rs.4765/-was sent to Mr. Kavasiji K Framji by letter dated 23.01.1971 who, in turn, declined to accept the said amount and sent his reply on 27.01.1971 objecting therein to the notice and its contents12. Felt aggrieved by the notice and the letter, Mr. Kavasji K Framji filed Writ Petition No.364/1971 in the Bombay High Court challenging both the notice and the letter. The writ petition was filed on the allegations inter alia that the subject land was a free hold tenure and was never held by Mr. Kavasji K Framji under any Grant or Licence from the Union of India or from any department of the Union of India and hence it is not resumable at the instance of the Central Government13. Besides Mr. Kavasji K Framji, several other persons including one person namely Mr. PT Anklesaria also got similar notices from the Union of India in relation to their land. Mr. PT Anklesaria, Mr. Kavasji K Framji and others felt aggrieved and they filed writ petitions (SCA No.1286/1972) in the Bombay High Court questioning the legality and validity of the notices sent to them by the Union of India14. By the judgment/order dated 05.02.1979 in Phiroze Temulji Anklesaria vs. H.C. Vashistha, AIR 1980 Bombay 9, the High Court allowed the writ petition and declared the notice as illegal and issued without authority of law and accordingly restrained the Union of India from giving any effect to the impugned notice. The High Court held inter alia as under:26. On a consideration of all the material that has been placed before us by the petitioner as well as the respondents, it is clear to us that there is no evidence whatsoever of the Governments right to resume the land in possession of the petitioners; there is no evidence of the terms under which that right of resumption, if any, could be exercised and most important, there is no evidence whatsoever of the right or power of the Government to acquire the structure standing upon the land in question by determining arbitrarily or unilaterally its compensation. All these three rightsthe right of resumption, the right to resume upon particular terms and the right to take possession of the houses situated on the land which are mentioned in the impugned noticeare found to be non-existing. The impugned notice, therefore, is patently without any authority of law and is not supportable by the terms of the grant which itself has not been proved15. The Union of India felt aggrieved and filed appeals before the Division Bench of the High Court (Special Civil Application No.364/1971). The Division Bench dismissed the appeals in the case of Kavasji Kaikhoshrou Framji vs. D.Krishnamunny with the following observations:5…….The respondents have also raised two preliminary contentions as to the maintainability of the petition viz., (1) that the petitioner had not established his title to the property to enable him to maintain the petition and (2) that the petition involved disputed questions of facts and law as to title and therefore the court should not determine the same in a petition under Art.226 of the Constitution but direct the petitioner to file a suit for that purposeWe find that in this case all the contentions raised and submissions made by both the sides are the same as those made in Special Civil Application No.1286 of 1972. In that petition, by our reasoned judgment delivered on 5-2-1979, we have negatived the respondents said contentions and held accepting the contentions of the petitioner that the resumption by the Government of the petitioners land and bunglow were without any authority of law and therefore the impugned notice was invalid. On the very same reasoning in this case also we negative all the contentions of the respondents and uphold the contentions of the petitioners inter alia that the resumption of the petitioners land by the Government was without any authority of law and therefore the impugned notice was invalid16. In all, 14 special leave petitions were filed by the Union of India in this Court against the judgment/order of the High Court17. It may here be mentioned that in the meantime, Mr. PT Ankelesaria had also filed civil suits in the Court of District Judge, Poona in the light of observations made by the Bombay High Court in (AIR 1980 Bombay page 9) and prayed for grant of relief of possession of the subject land. The District Judge, Poona decreed these suits in plaintiffs favour. The Union of India felt aggrieved and filed First Appeals in the Bombay High Court whereas the plaintiff filed cross-objections in these appeals (608-621/1980). These appeals were later transferred to this Court at the instance of the Union of India for their disposal and were re-numbered as (67-72/1985 and 11-12/1987)18. By consent order dated 20.07.1988, this Court remitted the appeals to the Bombay High Court for their disposal as directed therein. The order reads as under: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 Bench3. The parties will be at liberty to adduce additional evidence before the High Court within the period fixed by the High Court4. The High Court will make every effort to dispose of the cases within six months from the date of the receipt of the record19. The remaining appeals were disposed of by another order dated 25.03.1992 of this Court, which reads as under:The Appeals are dismissed as infructuous in terms of the signed order placed on the file20. The aforesaid order dated 25.03.1992 was later recalled by this Court on a review petition filed by the Union of India by order dated 13.01.1995. The Review Petition was allowed by this Court on the ground that the consent order was passed only in relation to Mr. PT Ankelesarias case by which his appeals alone were remitted to the High Court for their disposal, whereas the other appeals could not have been dismissed as having rendered infructuous in the light of the said order21. In the meantime, Mr. Kavasji K Framji died and his legal representatives (appellants herein) were brought on record of the case to continue the lis22. This Court then by order dated 04.08.1998 disposed of the aforementioned appeals after recording the statement of the Solicitor General of India in the following terms: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 suit. 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 accordingly23. It is with these background facts which began from 01.03.1920 and ended with the order of this Court passed on 01.08.1998, Respondent No.2-Estate Officer issued a notice on 31.07.2001 under Sub-(1) and Clause (b) (ii) of Sub-Section 2 of Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (for short the PP Act) to the appellants. The present appeal is concerned with the legality and correctness of this notice24. The notice in question was founded on the allegations inter alia that the appellants are in unauthorized occupation of the public premises mentioned in the schedule in the notice i.e the suit property and therefore the appellants should vacate the suit property. The contents of the notice read as under:Whereas the nature of Holders rights on the land is limited only to its occupancy, therefore, being the property of the Govt. the land is liable to be resumed, in terms of conditions obtaining under the old grant terms. Accordingly the Govt. of India, Ministry of Defence resumed the land and building after giving one months notice vide Order no.701/71/L/L & C/70/12030/D (lands) 21 st January 1971 on payment of Rs.4,765/-(Rupees Four Thousand Seven Hundred Sixty Five only) towards resumption cost of authorized super structure standing thereon which has been accepted by you, albeit, under protest25. The appellants felt aggrieved by the issuance of the aforementioned notice to them by Respondent No.2 and filed a writ petition in the High Court of Bombay questioning its legality and correctness and sought its quashing. The appellants challenged the notice on several factual and legal grounds as is clear from the grounds enumerated in the writ petition26. The respondents filed their counter and defended issuance of the notice to the appellants including its contents. By impugned order, the High Court dismissed the writ petition and upheld the issuance of notice to the appellants under the PP Act, which has given rise to filing of this appeal by way of special leave in this Court by the unsuccessful writ petitioner.

Reasoning: 44. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions, we find force in the submissions urged by the learned counsel for the appellants (writ petitioners)47. Though, in Express Newspaper case (supra) several other issues relating to Fundamental Rights conferred on the citizens under Article 19 (1) (a) and (g) of the Constitution and its violation qua State fell for consideration and were decided, this Court was also called upon to decide the legality and correctness of the notice issued by the Government of India through their officers in their capacity as the lessors of the land in question demanding therein a right of re-entry under the terms of the lease deed on the demised land from the lessee (writ petitioner of the case)48. It is this issue, which was extensively dealt in the context of civil law as also the special laws, which provides for taking recourse to the summary remedy by the State to take possession of the State land from its occupants.50. At this stage, it is necessary to deal with one objection raised by learned Additional Solicitor General on the aforementioned statement of law laid down in Express Newspaper case (supra)51. The objection of learned counsel for the respondent was that the view expressed by A.P. Sen J. in Paras 86-87 could at best be regarded as his own view but not the view of the Court by majority because other two learned Judges (E.S. Venkataramiah J. and R.B. Mishra J.) did not express any opinion on this question. It is for this reason the learned counsel submits that this Court should not place any reliance on the statement of law laid down in Paras 86-8756. Keeping in view the reasoning of Lord Esher M.R., when we examine the statement of law laid down in Express Newspaper decision (supra), we are of the considered view that the reasoning of A.P. Sen J. contained in Paraa 86-87 is the law laid down on behalf of all the three Judges. It is a law by majority and is thus a law laid down by the Court under Article 141 of the Constitution57. It is for the reason that first, though the lead judgment was authored by A.P. Sen J., the other two Judges concurred with the view and the reasoning of A.P. Sen J. Second, both the concurring Judges also expressed their individual views on the question on the same lines on which A.P. Sen J. expressed his view and the Third, there is no dissent inter se Lordships on any issue much less on the issue with which we are concerned in this appeal58. It is for these reasons, we are of the considered view that law laid down in the lead judgment in Express Newspaper (supra) is the law by three Honble Judges who constituted the Bench and thus binds all the Courts in the country under Article 141 of the Constitution. It satisfies the test laid down by Lord Esher M.R. in the case of The Guardian (supra)59. The question involved in Express Newspaper case (supra) in relation to remedy of the State qua person in possession of the land was again considered by a Bench consisted of three Judges in a case reported in State of Rajasthan vs. Padavati Devi [supra]60. In that case also, the question arose as to whether the State Government can take recourse to a summary remedy of eviction of a person under the State Revenue Laws from the land when such person raises a bona fide dispute about his right to remain in occupation over such land. Their Lordship held that in such a situation, the summary remedy to evict such person under the Act couldnt be resorted to64. Keeping in view the statement of law laid down by this Court in cited decisions supra, when we examine the facts of the case in hand, we have no hesitation in holding that the appellants have raised a bona fide dispute on the question of ownership of the suit property qua respondent No.1 (Union of India)65. A fortiori, in such case, respondent No. 2 has no jurisdiction to invoke the powers under section 4 of the PP Act by resorting to a summary procedure prescribed in the PP Act by sending a notice under Section 4 of the PP Act for appellants eviction from the suit property. This we say for the following six reasons66. First, the facts set out above and the documents filed in their support, in no uncertain terms, establish that there exists a bona fide long standing dispute as to who is the owner of the suit property -the appellants or Respondent No.1 (Union of India)67. Second, respondent No.1 itself admitted that there exists a bona fide dispute between the appellants and respondent No.1 (Union of India) over the suit property involving disputed questions of facts (see Paras 7, 8 & 18 of the Review Petition filed by Respondent No.1 in Civil Appeal Nos.608-612 against the appellants in respect of suit property in this Court)68. Third, respondent No.1 (Union of India) itself stated in this Court in earlier round of litigation while disposing of their Civil Appeal Nos.609, 611-613, 614 and 621 of 1980 that they would seek dispossession of the appellants from the property in question in accordance with law and, if need be, by filing civil suit in the Civil Court. The respondents cannot now be permitted to go back from their statement and take recourse to a remedy of summary procedure under the PP Act, which is otherwise not available to them69. Fourth, this Court while granting special leave to appeal on 03.08.2009 had also granted liberty to respondent No.1 (Union of India) to file civil suit against the appellants, if they are so advised. It was, however, not resorted to70. Fifth, the effect of quashing the resumption notice dated 21.01.1971 issued by the respondents by the High Court vide order dated 05.02.1979/06.02.1979 in relation to the suit property was that respondent No.1 (Union of India) was not entitled to resort to any kind of summary remedy to evict the appellants from the suit property not only under the Bombay Land Requisition Act, 1948 but also under the PP Act because the PP Act also provides similar summary remedy of eviction71. Sixth, the Civil Court alone could try and decide the question of declaration of ownership of any immovable property between the parties and such disputes could not be decided in summary proceedings under the PP Act73. In our view, the principle of merger is fairly well settled. For merger to operate, the superior court must go into the merits of the issues decided by the subordinate court and record finding/s one way or other on its merits. If this is not done by the superior court, a plea of merger has no application in such a case and the order of subordinate court would continue to hold the field (see Shanmugaval Nadar vs. State of Tamil Nadu [1989 (4) SCC 187 ]74. In our view, this court while disposing of the appeals by its order dated 04.08.1998, did not go into the merits of the various contentions which were decided by the High Court in its order dated 06.02.1979 and disposed of the appeal on the statement made by the respondents through the Solicitor General that respondent No.1 (Union of India) would take recourse to the remedy of the civil court by filing a civil suit75. Indeed, in the light of such statement made by the respondents (who were appellants in the appeal), which resulted in disposal of their appeal, the respondents themselves did not call upon this Court to examine the merits of the issues raised by them in their appeals. In such a situation, there was no occasion for this Court to apply the mind to the merits much less to record any finding on any of the issues arising in the appeal. In this view of the matter, the principle of merger could not operate76. Now coming to another argument, the learned counsel for the respondents contended that there lies a distinction between the two types of Tribunals -one which exercises powers only when it is shown that certain state of facts exist and other which has jurisdiction to determine whether the preliminary state of facts exists as well as it has the jurisdiction to proceed further to do something more as explained in the case reported in Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp) 1 SCR 733 pages 743-74477. It is on the basis of this submission, learned counsel contended that the Estate Officer has jurisdiction to examine the facts of this case in Section 4 proceedings under the Act78. We do not agree. In our opinion, once the Constitution Bench in the case of Kaiser-I Hind (supra) after examining the provisions of the PP Act has laid down the law as to how the PP Act operates and needs to be applied, all the issues arising under the PP Act has to be examined in the light of the law which deals with the PP Act.79. The law laid down in Chaube Jagdish Prasad (supra) relied on by the learned counsel for the respondents was entirely on different context and has no application for deciding the issue involved in this appeal80. Yet, last submission of the learned counsel for the respondents that the writ petition was not maintainable to challenge the notice issued under Section 4 of the PP Act has no merit and deserves rejection. Suffice it to say, firstly, the High Court having entertained the writ petition and dismissing it on merits, this objection does not survive for consideration and second, in the light of long line of decisions on this question, a writ petition to question the legality and correctness of the notice issued under any Act is no bar in entertaining the writ petition in appropriate case. The case at hand was regarded as an appropriate case for entertaining the writ petition [see -Siemens Ltd. vs. State of Maharashtra 2006 (12) SCC 33  and Whirlpool Corporation vs. Registrar of Trade Marks (1998) 8 SCC 1 ]81. Before parting, we consider it apposite to mention that we have set out the facts of the case only for the purpose of appreciating and deciding the legal issue arising in the appeal namely - the validity of issuance of notice under Section 4 of the PP Act and not beyond it. We have not examined the rival claims of the parties over the property in question on merits and nor have recorded any finding on the rival claims82. In this view of the matter, whenever the question of ownership of the rights of the parties will be gone into by the concerned court, it shall decide the said question/s strictly on the basis of pleadings and the evidence adduced by the parties in accordance with law uninfluenced by any observations made by the High Court and this Court.