Kaikhosrou(Chick) Kavasji Framji And ... 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 parties.

4. The dispute relates to a property, which is situated at Survey No.417, Bungalow No.17, Dr. Coyaji Road (formerly known as “Elphinstone Road”) Pune­411001. 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”).

9. However, after three years on 23.03.1946, the suit property was de­requisitioned 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 4 order it was mentioned that Mr. Kavasji K Framji is the owner of the suit property.

11. 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 5 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 contents.

12. 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 6 India and hence it is not resumable at the instance of the Central Government.

23. 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 Sub­Section 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 notice.

25. 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 petition.

30. His second submission was that keeping in view the backgrounds facts stated above coupled with the orders passed by the High Court and this Court in judicial proceedings, which emanated from these facts, it is prima facie clear that respondent No.2 ­ Estate Officer had no jurisdiction over the 1 suit property for invoking his powers under Section 4 of the PP Act against the appellants for their summary eviction and treating them to be unauthorized occupants of the suit property.

31. In other words, the submission was that the facts stated above would, in no uncertain terms, go to show that the suit property never belonged to the Union of India and on the other hand it all along belonged to the appellant’s predecessors and then to the appellants and therefore respondent No.2 ­ Estate Officer had no jurisdiction to treat the suit property to be belonging to the Union of India for initiating proceedings against the appellants for their summary eviction under the PP Act.

These questions can be satisfactorily and effectively dealt with in a properly instituted proceeding or suit and not by a writ petition on the basis of affidavits which are so discrepant and contradictory in this case. 2

208. I accordingly allow the writ petitions with costs against the Union Government and the Lt. Governor of Delhi and quash the impugned notices.”

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).

71. 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 Act.

75. 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 operate.

82. 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.

83. In the light of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside. As a consequence, the writ petition filed by the appellants is allowed and 4 the notice dated 31.07.2001 issued by respondent No.2 (Annexure P­34) impugned in the writ petition is quashed by issuance of writ of certiorari.

March 15, 2019.