# Chandra Prakash Sivhare v. Union of India & Anr

- **Citation:** (2020) 2 ILRA 504
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-19
- **Case number:** Writ C No. 46421 of 2006
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-prakash-sivhare-v-union-of-india-anr-45313
- **Pages:** 15

## Headnote

2 All. Chandra Prakash Sivhare Vs. Union of India & Anr.
505
A.S.G.I., 2006/2008, Sri Ajai Bhanot, Sri
B.N. Singh, Sri K.N. Yadav, Sri Manoj
Kumar Singh

A. Civil Law-U.P. Municipal Corporation
Act, 1959 - Cantonments Act, 2006 -
Application - The Municipality governing the
area of civil residents is a local body as
constituted
under
the
U.P.
Municipal
Corporation
Act,
1959
-
Whereas
the
Cantonment Board operates basically in an
area defined as cantonment of the defence
under the erstwhile Cantonment Act, 1924,
later superseded by the Cantonments Act,

## Text

_Characters 0–39,932 of 51,141. This is a partial read: ask again with offset=39932 for what follows._

504 INDIAN LAW REPORTS ALLAHABAD SERIES
a fundamental right has to be read together
and nobody has a right to practice religion
in a way so as to invade privacy of others.
The Court observing thus appealed to the
public at large to refrain from using
loudspeakers
for
various
religious
practices such as Akhand Ramayan,
Kirtan, etc. as it causes inconvenience to
public and creates noise pollution.

29. It may not be out of place to refer
to a Supreme Court decision in RE-:
Noise Pollution, wherein the Apex Court
expressed opinion that the fundamental
right of a person under Article 19 (1) of
the Constitution of India of freedom of
speech and expression are not absolute and
no one can claim fundamental right to
create noise by amplifying sound of his
speech with the help of loudspeakers as
every citizen has a fundamental right to
live in peace, comfort and quietness of his
house.

30. In Farad K. Vadia, it has been
observed that "necessity of silence",
"necessity of sleep", "process during sleep
and rest" are all biological necessities and
essentials for health and is part of human
rights as noise is injurious to health.

31. It is universally acceptable today
that noise adversely affects human health.
It causes hearing loss or deafness, high
blood pressure, depression, fatigue and
even annoyance. Excessive noise has
resulted in cardiac ailments, neurosis and
nerves breakdown.

32. It is a cardinal principle of a
exercise of equitable jurisdiction that the
High Court in such exercise should
maintain social balance by interfering
where necessary and refusing where it is
against social interest and public good.

33. In State of Maharashtra, it has
been observed that in exercising equity
jurisdiction in social interest, the Court
should weigh the pros and cons of
exercising the jurisdiction and to see
whether the interference would cause more
harmony to the society or its refusal.

34. In Ritesh Tiwari, the Court held
that the equitable jurisdiction may be
exercised to promote good faith and equity
and in the larger public interest.

35. In view of the aforesaid facts and
circumstances, we are of a clear opinion
that this matter does not require any
interference by us in exercise of our
extraordinary jurisdiction as otherwise it
may result in causing social imbalance.

36. Accordingly, the writ petition is
dismissed with no order as to costs.
----------
(2020)02ILR A504

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Writ C No. 46421 of 2006
Connected with
Writ C Cases No. 24748 of 2019 & 57082 of
2017

Chandra Prakash Sivhare ...Petitioner
Versus
Union of India & Anr. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Bhatia, Sri M.I. Farooqui, Sri
Archit Mandhyan, Sri Ashish Jaiswal

Counsel
for
the
Respondents:
2 All. Chandra Prakash Sivhare Vs. Union of India & Anr.
505
A.S.G.I., 2006/2008, Sri Ajai Bhanot, Sri
B.N. Singh, Sri K.N. Yadav, Sri Manoj
Kumar Singh

A. Civil Law-U.P. Municipal Corporation
Act, 1959 - Cantonments Act, 2006 -
Application - The Municipality governing the
area of civil residents is a local body as
constituted
under
the
U.P.
Municipal
Corporation
Act,
1959
-
Whereas
the
Cantonment Board operates basically in an
area defined as cantonment of the defence
under the erstwhile Cantonment Act, 1924,
later superseded by the Cantonments Act,
2006. (Para 9)

B. Civil Law-Municipality and Cantonment
Board - Transfer of property - Effect on title
of Defence Department - An extension of
Municipality to such area which was earlier
under the territorial limits of the Cantonment
Board, if it has been excised by the
Government of India, Ministry of Defence, it is
the general administration of such area that
would stand transferred from the Cantonment
Board to the Municipality - But a land that
belongs to the defence, may be under the
lease or old grant by the Ministry of Defence,
Government of India in favour of civilian, would
not automatically get transferred either to that
individual who is the occupier of the property
or to the Municipal Corporation - The title shall
remain with the defence department unless
and until it is transferred in the name of
occupier by the competent authority - Merely
because the property has occupied by civilian
under an old grant basis, such a grantee only
has status of mere occupier and does not
become the title holder of the property. (Para 9
and 15)

C. Civil Law-Public Premises (Eviction of
Unauthorised occupants) Act, 1971 - Section
5B - Jurisdiction of Defence Department -
Legislature has used the word 'Premises' in a generic
sense, comprehending in it the land, the structure
standing over it and every such other activity in
forms of any fixture for the beneficial enjoyment of
the premises and the public premises are such that
belong to the Central Government - The property
belongs to the defence department - It was a public
premises for the purposes - Therefore the defence
estate officer who has been assigned the duties of
Presiding Officer to act under the Act, 1971 has the
jurisdiction and so he rightly exercised the same in
the present case. (Para 17 and 21)

Writ Petition dismissed.(E-1)

List of cases cited :-

1. Chief Executive Officer v. Surendra Kumar Vakil
and others (1999) 3 SCC 555

(Delivered by Hon'ble Ajit Kumar, J.)

1. Since all the three above matters are
connected and the reliefs claimed in two
matters is on the basis of the pleadings raised
and relief claimed in the leading writ petition
bearing Writ- C No.- 46421 of 2006, all the
three writ petitions are being heard and decided
by this common judgment taking Writ- C No.-
46421 of 2006 as leading case.

2. Heard Sri Archit Mandhyan and Sri
Ashish Jaiswal learned counsels appearing for
the petitioner, Sri O.P. Gupta, learned counsel
appearing for the Union of India and Sri
Chandra
Bhan
Gupta,
learned
counsel
appearing for the Cantonment Board.

3. By means of the present writ
petition under Article 226 of the
Constitution,
the
petitioner
has
questioned
the
order
dated
22nd
November, 2001 passed by the Estate
Officer, Agra, Cantt. Exercising power
under the Public Premises (Eviction of
Unauthorised occupants) Act, 1971
(for short 'Act, 1971') and the order of
the District Judge, Agra, dated 10th
August, 2006, whereby appeal of the
petitioner under the Act, 1971 has
come to be rejected.

4. Briefly stated facts of the case are
that the property in question is the land
property with construction of a bungalow
506 INDIAN LAW REPORTS ALLAHABAD SERIES
so recorded as Bungalow No.- 178 situate
at Namiyar Mohalla, Ajmer Road, Agra. It
has been the property of the Defence
department and so recorded as well as a
defence property under Defence Land
Register. It so happened that the territorial
limits of the cantonment board were
excised and the area where the bungalow
situates was brought within the municipal
limits of the then Municipality of Agra,
admeasuring 198.303 acres approximately
and, accordingly, Ministry of Defence vide
Circular No.- 79 dated 9th February,1957
excised the said area from the limits of the
cantonment of Agra. With the exclusion of
the area including the bungalow from the
territorial limits of the cantonment board,
Agra, the petitioner being in possession, it
appears, applied for sanction of map to
raise construction over the land in question
before Nagar Mahaplika Parishad, Agra
and Nagar Mahapalika Parishad, Agra
approved the same on 28th March, 1958.
With the approval so granted by the Nagar
Mahapalika Parishad, Agra, the petitioner
raised construction over the same. On 26th
October, 1998, the petitioner was served
with a notice under the signature and seal
of the Estate officer under the Act, 1971.

5. The petitioner submitted reply asking
for certain papers mentioned therein so that he
may contest the matter. Thereafter, the
petitioner filed a detailed objection to the
notice before the Prescribed Authority of Agra
Cantt. and requested for recall of the notice
dated 11th November, 1998 and dropping of
the proceedings. When nothing happened in
the matter petitioner approached this Court and
this Court vide order dated 27th January, 1999
passed in CMWP No.- 3190 of 1999 directed
the prescribed authority to decide the objection
of the petitioner and also supply the copies of
documents requested by the petitioner. Again
when nothing happened, the petitioner filed
another petition and this Court vide order dated
8th August, 2001 directed the respondent No.3
to decide the objection of the petitioner and
pass
appropriate
orders
after
affording
opportunity of hearing to the petitioner. In
compliance of the above order the prescribed
authority
under
the order
dated
22th
November, 2001 rejected the objection of the
petitioner and held the constructions to be
unauthorized without there being any approval
of the competent authority and, accordingly,
directed for removal of the same. The
petitioner then preferred a statutory appeal
against the order passed by the prescribed
authority and the same has also come to be
rejected.

6. Having heard learned counsel for
the parties and their arguments raised
across the Bar and having perused the
record, what we find that the moot
question for our consideration in the
present case is as to whether a property
already recorded as a Defence property
within the erstwhile territorial limit of
cantonment, would cease to be a property
of
Government
of
India,
defence
department, in the event, the area of the
cantonment board stands excised and the
area where the defence property situates,
comes within the extended municipal
limits of the local Municipality. In the
event the answer is in affirmative, say
'Yes', the impugned orders would be
quashed and in the event the answer is in
negative, the impugned orders would be
upheld and the petitioner would be liable
to remove the unauthorized construction.
Accordingly, we framed following two
questions to be answered in the present
petition:-

(A). Whether the bungalow
No.178 situate at Namiyar Mohalla, Ajmer
Road, Agra ceased to be a defence
2 All. Chandra Prakash Sivhare Vs. Union of India & Anr.
507
property with the extention of the
municipal limits and the land over which
bungalow
falls
coming
within
the
municipal limits; and

(B). Whether the defence Estate
Officer acting as Prescribed Authority can
exercise power under the Act, 1971 in
respect of a property that falls within the
municipal limits of a Municipality of
Agra.

7. Now coming to the first question,
we needed to trace out the history, if any
pleaded, that has led to the occupation by
the petitioner of the bungalow in question.
Bungalow No.- 178 is admitted to the
petitioner to be belonging initially to the
defence department. The petitioner's claim
to be in possession of the bungalow is
since 1970 on-wards. Prior to the 19th
February, 1957 the General Land Register,
maintained by the Cantonment Board (for
short 'GLR') admittedly show area as
survey number in question within the
cantonment board and the letter dated 30th
November, 1957 issued by the Defence
authority that the area where the bungalow
stands stood transferred to the territorial
authority of Municipality, Agra and the
GLR showed entry in respect of the
bungalow
as
occupied
by
private
individual and the date of acquisition and
possession column contains a remark "notknown". Municipal records shows that
name of Shri G.D. Shiv Hare had been
entered over the bungalow as tax of house
receipts have been filed along with writ
petition. Jal Sansthan receipt also stands in
the name of Smt. G.D. Shiv Hare.

8. Nowhere it has been stated in the
pleadings raised in the writ petition as to
how the petitioner has entered into
possession of the property. He is not the
son of Mr. G.D. Shiv Hare whose name is
recorded in the Municipal records with
Chandra Prakash Shivhare (1981-86). So,
at the most the status of the petitioner as
an occupant would be of a sub-lessee/ subgrantee. The original lessee or grantee
seems to have passed away much earlier
and there are no pleadings to that effect in
the present writ petition. The bungalow
property is admitted to the parties to be a
subject matter of old grant. The petitioner
not being a valid transferree from the
defence department, the question is as to
whether the bungalow in question ceased
to be a defence property with the
enforcement of the Municipality in the
area. The notification states that the area
ceases to be a defence area but from the
perusal of the Government of India
notification dated 26th December, 1961, it
is very much clear that the property that
was under use for non military purposes
before excision, their control remains with
the Ministry of Defence under Rule 2(B)
of the ACR Rules. However, the minutes
of Separation Committee show that the
civil area notified can be transferred to the
State Government free of cost but subject
to certain formalities to be carried out.

9. It is not disputed that the both the
Municipality as well as the Cantonment
Board are the local bodies in their own
rights having an operational area as per the
respective Acts, under which they have
been
constituted.
The
Municipality
governing the area of civil residents is a
local body as in the present case
constituted under the U.P. Municipal
Corporation Act, 1959, an erstwhile
municipality governed under the U.P.
Municipalities Act, 1916 whereas the
Cantonment Board operates basically in an
area defined as cantonment of the defence
under the erstwhile Cantonment Act, 1924,
later superseded by the Cantonments Act,
508 INDIAN LAW REPORTS ALLAHABAD SERIES
2006. The landed property falling in the
cantonment area may be also in
occupation of a civilian if it is either
under
the
old
grant
by
the
Government of India or under the
lease
of
the
department
of
the
Defence. But the landed property of
the cantonment which is recorded as
such in the defence land register to be
a defence property cannot be in the
ownership of a private individual
unless there is lease in perpetuity to
that effect or by way of conveyance
of sale. The Cantonment Act, 2006
provides
for
incorporation
of
a
Cantonment
Board
for
general
administration of the land falling in
the cantonment area in the same
manner as the municipality in a civil
area. An extension of Municipality to
such area which was earlier under the
territorial limits of the Cantonment
Board, if it has been excised by the
Government of India, Ministry of
Defence,
it
is
the
general
administration of such area that
would stand transferred from the
Cantonment
Board
to
the
Municipality
or
the
Municipal
Corporation as the case may be, but a
land that belongs to the defence, may
be under the lease or old grant by the
Ministry of Defence, Government of
India in favour of civilian, would not
automatically get transferred either to
that individual who is the occupier of
the property or to the Municipal
Corporation. The title shall remain
with the defence department unless
and until it is transferred in the name
of
occupier
by
the
competent
authority. The letter of the Under
Secretary to the Government of India,
Ministry of Defence written to the
Director,
Military
Land
and
Cantonment explaining the excision
of the civilian area from cantonment
clarifies eight points. The letter in its
entirety is reproduced hereunder:-

"No. 18/13/G/L & C/52/1028/
LC/ D/ (C&L)

Government of India

Ministry of Defence

New Delhi, the 7th February,
1955

To

The Director, Military Land and
Cantonments

Excision of Civil areas from
Cantonments

Sir,

I am directed to say that the
question of terms on which assets located
in
the
areas
to
be
excised
from
cantonments may be dealt with has been
under the consideration of the Government
of India. It has now been decided that the
following broad principles shall govern
the
excision
of
civil
areas
from
cantonment:-

(a) Cantonments Board's assets
and liabilities the area be transferred to
the successor local body free of any
compensation except for such financial
adjustment which may be necessary in the
local circumstances of each case.

(b) Income and expenditure be
divided on the basis of actual income from
a source, such as octroi, should normally
be divided on population basis, a different
method may, however, be adopted if the
local conditions warrant the adoption of
such a course.

(c) Government right in the
leased sites etc., be transferred to the State
Government, free of cost, subject to the
condition that the income derived from
such areas will be utilized for the resident
of those areas exclusively.
2 All. Chandra Prakash Sivhare Vs. Union of India & Anr.
509

(d) Vacant lands be retained for
future use or eventual disposal by the
Government of India.

(e) M.E.S. Properties, if any, be
retained for use or eventual disposal.

(f) To report on the extent of,
and terms on which the properties vesting
in and belonging to the cantonment Board
should be appropritioned between the two
local bodies.

(g) To report on the needs of the
two areas for the construction of new
buildings, consequent upon the transfer of
those existing to either local body, with
financial effect.

(h) To report on any other
matter relevant to excision in so far as
financial adjustment or apportionment of
assets and liabilities or assignment of
easement/ ammonities is concerned.

Yours faithfully

 Sd/-

Deputy Secretary to
the Govt. of India"

10. From the bare reading of the
aforesaid clauses given under the letter it is
clearly revealed that Government right in the
lease sites would be transferred to the State
Government free of cost and that income
derived shall be utilized for the residents of
such area.

11. However, in order to make effective
those transfer of the defence property to the
State Government, it is required to have
necessary approval of the competent authority.
The letter of the Government of India,
Ministry of Defence earlier issued in this
regard dated 26th December, 1961 clearly
stipulates following conditions:-

"2. As the lands excised from Agra
Cantt. were surplus to Defence requirements,
being in use for non-Military purposes before
excision, their control remains with the
Ministry of Defence under Rule 2(b) of the
ACR Rules. The M.E.O. Agra Circle, is
therefore, responsible for management of these
lands under Rules 3(b) ibid and specific orders
to this effect are not necessary.

3. In accordance with the minutes of
the Separation Committee the M.E.O. Agra
Circle, should initiate immediately proposals
for:-

(a) Transfer of lease hold site inside
the ex-notified civil area, to State Govt. free of
cost.

(b) Conversion into free hold of all
old grant and lease hold sites outside exnotified civil area, on payment by the holders
of conversion value at the rate of 25 times the
current market rent in 5 easy instalments. In
this connection the method followed in Sitapur
Cantt. may be adopted.

(c) Disposal of vacant sites, by
dividing
into
suitable
plots,
wherever
necessary.

4. A site plan distinctly showing the
sites involved and a statement containing GLR
entries, should be furnished with each
proposals."

12. From the reading of the aforesaid
notification it is quite clear that although
the area stood excised following extension
of the municipal limits but the excision is
only for the purposes of the municipal
function. The rights and title do continue
with the Union of India, Ministry of
Defence. As in the earlier part of this
order, we have discussed that the defence
land register also shows that bungalow No.
178 to be in occupation of private
individual but the land and bungalow do
continue to be recorded as such and,
accordingly, the property is a defence
property. The petitioner in the entire
pleadings has not disclosed as to how he
510 INDIAN LAW REPORTS ALLAHABAD SERIES
has come to occupy the land of bungalow
in question. He is not able to demonstrate
any lease in his favour or in favour of his
predecessor-in-interest and, therefore, his
continuance is only subject to approval of
the
defence
department
and
any
construction
upon
vacant
land
or
remodeling of the house necessarily
required the approval of the competent
authority.
Merely
because
Agra
Municipality had sanctioned some map for
construction of building over the area,
does not mean that the constructions have
become legal. It may be legal for the
authority to have exercised power under an
Act but the question is whether sanction of
Map was as per the lease agreement and
the application was moved by the lessee.
However, in the present case map was
applied by the occupier who was not
beneficiary of either lease agreement or
old grant and so no such exercise could
have been, in the absence of consent of the
owner of the property and, the entire
proceedings of sanction of map would be
rendered void in the absence of consent of
the owner and in our considered opinion,
the owner has authority to question the
constructions and if found illegal get it
demolished. In the present case, therefore,
we are of firm view that since the land of
bungalow No.178 continued to belong to
the defence department and the petitioner
has failed to demonstrate either from the
pleadings or from the document that he is
valid transferee of the property he can
defend constructions that have been
rendered illegal for want of necessary
sanction. A transfer of an area from the
cantonment to the municipality, is a mere
transfer for the purposes of municipal
functions from one local body to the other
local body but rights and title of the
property of the original owner does
continue and there can be no ipso facto
transfer of title on extension of municipal
limits to the area of such property. Thus
following findings of the Prescribed
Authority cannot be held bad as we do not
find any perversity in the same:-

(1)
The
land
in
question,
sy.no.131/381, B. No. 178, Ajmer Road,
Namnir Agra Cantt. is Defence land
owned by the Govt. of India, Ministry of
Defence.

(2) Although it was excised
alongwith other area, and merged with the
Municipal area vide SRO No. 312 dated
25.6.1957 but this transfer has taken effect
only in r/o Municipal function. The
management of lands falling with in the
excised area of Agra Cantt. still remains
with the Defence Estates Officer, Agra
Circle, Agra Cantt.

(3) It is clear from the Govt.
orders issued vide their letter No. 18/1/ G/
L&C/ 58 dated 26.12.1961 that after the
excision the administrative control of the
area remained with the Ministry of
Defence, Govt. of India and management
comes under the D.E.O. Agra Circle, Agra
Cantt. Till the formalities stipulated in
para 3 and 4 of the said Govt. order are
completed and the transfer of these lands
to the State Govt. takes place, these lands
remain under the management of D.E.O.
Agra Circle, Agra Cantt."

13. In taking the above view we find
support in the judgment of the Apex Court
in the case of Chief Executive Officer v.
Surendra Kumar Vakil and others
(1999) 3 SCC 555. In the said case a suit
had been decreed of the vendors and
vendees on the ground that one S.N.
Mukharjee who was a occupancy holder
and as such recorded in the GLR had died
in the year 1972 leaving behind 11 legal
heirs, who validly succeeded the property.
2 All. Chandra Prakash Sivhare Vs. Union of India & Anr.
511
However, their names could not be
mutated in the records over Bungalow No.
39 as they did not apply for the same. The
heirs who had ultimately sold out the
property in favour of the 24 persons by a
registered sale deeds dated 26th February,
1983 through power of attorney holder
Gopal Das Soni. The property was
described as old grant of the cantonment
board and so vendees were to abide by the
terms and conditions on which the land
was held in the name of ancestors of the
vendors. The amendment deeds further
came to be registered in respect of those
sale deed to the effect that lease deed got
wrongly transcribed as the land was of 'old
grant' type. The Military Estate Officer
issued notices on 3rd October, 1993 to the
vendores for validating the terms and
conditions of the old grant by dividing the
property into four shares prior to the
sanction of the competent authority and
hence notices were also issued to the
purchasers to show cause why action for
resumption of the site be not taken against
them. The plea taken by the respondents
was that in view of the 'old grant' seller
were having occupancy rights over the
Bungalow No. 39, therefore, they validly
transferred the rights to the purchasers.
The Cantonment Board lost the suit and
first appeal as well and so filed an appeal
before the Apex Court. Apex Court
repelled the arguments of the respondents
and their claim on the legal principles qua
'old grant' and accepted the appeal vide
paragraph Nos. 12, 13, 14, 15, 16, 17, 18
and 19 that run as under:-

12. Under the Cantonment Land
Administration Rules, 1925 General Land
Registers are being maintained in respect
of Sagar Cantonment. These registers
were produced before the High Court and
were also produced before us. These are
old registers maintained in the form
prescribed by the said Rules. In these
registers the property in question is shown
as being held by S.N. Mukherjee on old
grant basis. As explained by Mittal in the
passage cited above, the tenures under
which permission was given to civilians to
occupy
Government
land
in
the
cantonments
for
construction
of
bungalows on the condition of a right of
resumption of the ground, if required,
came to be know as old grant tenures.
Such tenures were given in accordance
with the terms of the order No.179 issued
by the Governor General in Council in the
year 1836. These require
that the
ownership of land shall remain with the
Government and the land cannot be sold
by the grantee. Only the house or other
property thereon may be transferred. Such
transfers would require consent of the
officer commanding the station when the
transfer is to a person not belonging to the
army. In respect of old grant tenure,
therefore, the Government retains the right
of resumption of land.

13. In the case of Raj Singh v.
Union of India, AIR 1973 Delhi 169, the
Delhi
High
Court
examined
the
Regulations contained in order No.179 of
1836 regarding the grant of lands situated
in cantonment areas and held that the
Regulations
were
a
self-contained
provision prescribing the manner of grant
and resumption of land in cantonment
areas. It held that the petitioner therein
being a mere occupier of the land under
the said Regulations, he was in the
position of a licensee whose licence under
the grant and under the law was revocable
at the pleasure of the licensor. This
judgment of the Delhi High Court was
approved by this Court in Union of India
v. Tek Chand (Civil Appeal No. 3525 of
1983) by its judgment and order dated 5th
512 INDIAN LAW REPORTS ALLAHABAD SERIES
of January, 1999 passed by S.P. Bharucha
and V.N. Khare, JJ.

14. The respondent, however,
contends that since the actual old grant
was not produced in evidence by the
appellants the case of the appellants that
the land was held on old grant basis by
Mukherjee is not proved by the appellants.
This submission does not appeal to us. The
respondents filed a suit claiming title over
the land. If any conveyance in respect of
this land had been executed at any time by
the State/Military Estate Officer in favour
of Mukherjee or his predecessor in title,
the conveyance ought to have been
produced by the person in whose favour it
had been executed or his successor in title.
Had a lease been granted in respect of the
said land in favour of Mukherjee or his
predecessor in title, the lessee or his
successor in title should have produced the
lease deed in his favour. Any grant in
favour of the grantee would normally be in
the possession of the grantee. The
respondents, however, have not produced
any title deeds relating to the land in
question. They have only produced the
document
of
sale
from
Dubey
to
Mukherjee and the four sale deeds from
the heirs and legal representatives of
Mukherjee in favour of the purchasing
respondents. In none of these documents
there is a clear recitation of the nature of
the rights in the land held by the Vendor.

15. It is true that the appellants
were
also
required
to
maintain
a
file/register of grants. They have not
produced
the
file.
The
appellants,
however, have led evidence to show that
the concerned file of grants was stolen in
the year 1985. They were, therefore,
unable to produce the file pertaining to
this grant. They do, however, have in their
possession
general
land
registers
maintained under the Cantonment Land
Administration Rules of 1925 in which
they are required by these rules to
maintain a record, inter alia, of the nature
of the grant in respect of cantonment lands
and the person in whose favour such grant
is made. Both these registers are very old
registers. They bear the endorsement of
the officer who has maintained these
registers in the regular course. These
registers
also
show
any
subsequent
changes made in respect of the lands
under the relevant columns. Both these
registers clearly show that the land is held
on old grant basis by Mukherjee. The High
Court seems to have rejected the record
contained in the land grants registers on
the ground that the terms of the grant have
not been established because the document
of grant itself has not been produced. The
terms of the grant, however, are statutorily
regulated under order No.179 of the
Governor General in Council of 1836. The
administration of lands in Cantonment
areas
is
further
regulated
by
the
Cantonment
Act,
1924
and
the
Cantonment Land Administration Rules of
1925. The 1836 Regulations expressly
provide that the title to the land in
cantonment areas cannot be transferred.
But only occupancy rights can be given in
respect of the land which remains capable
of being resumed by the Government in the
manner set out therein. There is no
evidence to the contrary led by the
respondents.
In
fact,
under
the
amendment/admission deeds executed on
4/5.8.1983 the Vendors as well as the
purchasers have stated that the site is
wrongly mentioned as lease hold site
instead of 'old grant' site in the four sale
deeds. The mistake is being rectified by the
execution of the four amending deeds
clarifying that the Bungalow No.39 is held
on 'old grant'. Undoubtedly, this was later
retracted when cancellation deed was
2 All. Chandra Prakash Sivhare Vs. Union of India & Anr.
513
executed
cancelling
the
amendment/admission
deeds.
Nevertheless, all the statutory provisions
clearly indicate that the land being in the
cantonment area was held by Mukherjee
only as an occupant/licensee and that any
transfer of the bungalow and other
constructions on the said land required
prior
approval
of
the
defence
establishment. The power of attorney
holder also corresponded with the Defence
establishment and asked for mutation in
favour of the purchasers.

16. However, even after they
were expressly informed by the appellants
of the need for prior permission before
transfer, as well as for any further
construction on the said land, the
respondents
proceeded
with
the
construction work resulting in the notice to
desist issued by the appellants under
Section 185 of the Cantonments Act, 1924.
The said section provides that the Board
may, at any time, by notice in writing,
direct the owner, lessee or occupier of any
land in the cantonment to stop the erection
or re-erection of a building in any case in
which the Board considers that such
erection or re-erection is an offence under
Section 184. The Board also has power to
direct the alteration or demolition of such
unauthorised structure. On the facts before
us, this action cannot be faulted.

17. The respondents drew our
attention to a decision of this Court in the
case of Union of India v. Purshotam Dass
Tandon and another, 1986 Supp. SCC 720,
where this Court observed that the Union
of India had made no effort to establish its
title and the grant had not been produced.
Hence the terms of the grant or the date of
the grant were not known. Therefore, the
Union of India could not succeed in its
contention that the land in the cantonment
was held on old grant basis. In the present
case,
however,
apart
from
the
requirements
of
Order
No.179
of
Governor General in Council, 1836, the
general land register maintained under the
Cantonment Land Administration Rules of
1925 has been produced which supports
the contention of the appellants that the
land is held on old grant basis. The
appellants have also led evidence to show
that the file containing grant in respect of
the said property, is not available with
them because it has been stolen in the year
1985. The respondents on the other hand
have not produced any document of title
pertaining to the said land or showing the
nature of the rights of the respondents
over the said land except the sale deeds
referred to earlier. The stand of the
respondents relating to their rights over
the said land has changed from time to
time. In the sale deeds executed by the
Vendees in favour of the respondents, the
land is described as lease hold cantonment
land. This was later changed by the
respondents in the amendment deeds to old
grant land. In the suit, the respondents
have contended that they have become the
absolute owners of the said land. These
bare
assertions
do
not
carry
any
conviction.
Had
there
been
any
conveyance or lease in respect of the said
lands
executed
in
favour
of
the
respondents or their predecessor in title,
such conveyance or lease should have
come from their custody. There is,
therefore, no document before the Court
which would show that the respondents
were the absolute owners of the said land
as
now
contended
by
them.
The
Regulations as well as the general land
registers, on the other hand, which are old
documents maintained in the regular
course and coming from proper custody,
clearly indicate that the land is held on old
grant basis. This is, therefore, not a case
514 INDIAN LAW REPORTS ALLAHABAD SERIES
where the appellants had not produced
any evidence in support of their contention
that the land in the cantonment area was
held on old grant basis by Mukherjee.

18. The respondents have drawn
our attention to the decision in the case of
Shri
Krishan
v.
The
Kurukshetra
University, AIR 1976 SC 376 for showing
that any admission made by them in
ignorance of legal rights cannot bind
them. This judgment does not help the
respondents because the fact remains that
the respondents have taken a changing
stand in relation to the nature of their
rights over the disputed land. The
admissions, at least, indicate that the
respondents were, at the material time, not
sure about the exact nature of their right
over the said land. Hence they have at one
stage described the nature of their rights
as lease hold, at another stage as old
grant and at a third stage they have
retracted from their admission that the
land was 'old grant'. The last deed merely
states that they have the same rights as
their Vendees had in the said land.
Looking to the nature of evidence,
therefore, which was led in the present
case, the High Court was not justified in
coming to the conclusion that the land was
not held on old grant basis by Mukherjee.

19. Therefore, since the land is
held on old grant basis in the present case,
the appellants are entitled to resume the
land in accordance with law. In the
premises the appeals are allowed, the
impugned judgment and order of the High
Court is set aside and the suit of the
respondents is dismissed with costs."

14. The case of the petitioner is even
worse. Vide paragraph 4 of the writ
petition he has claimed that his ancestors
were occupant of Bungalow No. 178 and
possibly because of old grant only.
However, he has not been able to produce
any document to that effect inasmuch as
he could not establish his right of
succession, to wit, whether he is a direct
descent of the original grantee or by way
of sub-lessee or any sale agreement. He
has sought to set up the claim of the entry
in the name of Pyare Lal, possibly as his
ancestor whose name had been entered on
account of sale deed in the year 1957 but
no such document has been brought on
record to establish as to whether such sale
was with permission of the competent
authority or not. Sri G.D. Shivhare whose
name finds entry in GLR, as a old grantee,
the petitioner could not have obtained a
better title than that of the old grantee,
provided he produced any such document.
Under the circumstances, therefore, the
petitioner like the vendor and vendees in
the above said case could not have claimed
a valid right to raise constructions in the
absence
of
proper
sanction
of
the
competent authority.

15. In view of the above we find
merit in the argument advanced by the
learned counsel for the respondent that
merely because the property has occupied
by civilian under an old grant basis, such a
grantee only has status of mere occupier
and does not become the title holder of the
property. The petitioner has not produced
any document that he has the old grant in
favour of his predecessor-in-interest. He
does not also show as to how he has come
to occupy the property in the year 1970. At
the most, therefore, he is an occupant, may
be unauthorized one.

16. Now coming to the second
question, it is necessary to first go through
the relevant provisions of the Public
Premises
(Eviction
of
Unauthorised
Occupants) Act, 1971 which is relevant
2 All. Chandra Prakash Sivhare Vs. Union of India & Anr.
515
herein, to find answer to the question.
Vide Section 2 of the Act, 1971 defines
the
premises
and
public
premises
separately. Vide Section 2 (c) and 2 (e) of
the Act, 1971 are, accordingly, reproduced
hereunder:-

2 (c) "premises" means any land
or any building or part of a building and
includes, -

(i) the garden, grounds and
outhouses, if any, appertaining to such
building or part of a building, and

(ii) any fittings affixed to such
building or part of a building for the more
beneficial enjoyment thereof;

2 (e) "public premises" means -

(1) any premises belonging to, or
taken on lease or requisitioned by, or on
behalf of the Central Government, and
includes any such premises which have
been placed by that Government, whether
before or after the commencement of the
Public Premises (Eviction of Unauthorised
Occupants) Amendment Act, 1980 (61 of
1980), under the control of the Secretariat
of either House of Parliament for
providing residential accommodation to
any
member
of
the
staff
of
that
Secretariat;"

17. From a bare reading of the
aforesaid provision, it is clear that
Legislature has used the word 'Premises' in
a generic sense, comprehending in it the
land, the structure standing over it and
every such other activity in forms of any
fixture for the beneficial enjoyment of the
premises and the public premises are such
that belong to the Central Government.
We have already held that land and the
house standing thereupon as bungalow
No.- 178 is admittedly a property belong
to the defence department and so it is a
defence property. Section 5A & B provide
for
the
removal
of
unauthorized
constructions if made over and above such
land of property and Section 5B empowers
the authority to remove the unauthorized
construction by undertaking of demolition
exercise. Section 5C also provides for
sealing of the unauthorized constructions.
The relevant Section 5A, 5B and 5C of the
Act, 1971 are reproduced hereunder:-