Supreme Court of India
SMT. USHA KAPOOR & ORS.versusGOVERNMENT OF INDIA & ORS.
- Citation
- 2014 INSC 991
- Decided
- 14 August 2014
- Disposal
- Dismissed
- Bench
- RANJAN GOGOI
Holding
The land is an old grant; occupants have only occupancy rights and the Union of India retains title and the power to resume the land, rendering the resumption notices valid.
Summary
The Government of India issued two notices in 2001‑2002 for the resumption of a 3.20‑acre bungalow site in the Allahabad cantonment, invoking powers under Order No.179 of the Governor‑General‑in‑Council dated 12 September 1836. The appellants, Smt. Usha Kapoor and others, contended that they owned the land by virtue of a sale deed executed in 1943 and that the property was not covered by an "old grant". The High Court, relying on the General Land Register (GLR) entry and the historical grant to Rev. J. Williamson, held that the land was indeed an old grant, conferring only occupancy rights on the occupants while title remained with the Union of India. On appeal, the Supreme Court affirmed that the GLR is a public document and conclusive evidence of title, that the nature of the holding as an old grant vests the Union with the power of resumption, and that Rule 6(iii) of the Cantonment Land Administrative Rules does not confer full ownership to private persons. Consequently, the notices of resumption were deemed legal and valid, and the appeal was dismissed.
Issues considered
- The nature of the title of the land in question: whether it is an "old grant" or a fee simple ownership.
- Whether the occupants possess only occupancy rights subject to government resumption under Order No.179 of 1836.
- The evidentiary value of entries in the General Land Register under the Cantonment Land Administrative Rules.
- The interpretation of Rule 6(iii) of the Cantonment Land Administrative Rules regarding "land held by any private person".
- The applicability of Section 280 of the Cantonment Act, 1924 and Section 43 of the Government of India Act, 1833 to the power of resumption.
Legislation cited
Subjects
Cantonment lawOld grantLand resumptionGeneral Land RegisterOccupancy rightsGovernment of IndiaSection 280Order No.179Public documentStatutory title
Judgment
[2014] 9 S.C.R. 401
SMT. USHA KAPOOR & ORS. A
v.
GOVERNMENT OF INDIA & ORS.
(Civil Appeal No. 1844 of 2008)
AUGUST 14, 2014
B
[RANJAN GOGOi AND M.Y. EQBAL, JJ.]
Cantonment Laws - Notice for resumption of land - In
exercise of powers vested by Order No. 179 of the Governor
General in-Council dated 12. 9. 1836 - Claiming the land to be C
Old Grant land - Propriety of - Held: In view of the nature of
holding i.e. 'Old Grant' and in view of the nature of rights of
holder i.e. 'occupancy rights' in respect of the structures
thereon, the UOI having vested title in it, has the power to
resume - Cantonment Act, 1924. D
Respondent-Government of India, issued Notice,
dated 14th December, 2001 for resumption of the land
having a bungalow in the cantonment area, in exercise
of powers vested by Order No. 179 of the Governor
General-in-Council dated 12th September, 1836. The E
second Notice dated 5th February, 2002 was
consequential and required the appellant to hand-over
the land to Defence Estates Officer.
Appellant filed writ petition challenging the two F
notices. The stand of the appellant was that the property
in question was purchased by her predecessor-in-
interest in 1943.
The High Court took into account the prior sanction G
of the Governor General-in-Council acting through the
Commander-in-Chief for the sale and transfer
contemplated by the deed dated 1st September, 1943
which, according to it, was in conformity with Clause 6(4)
401 H
402 SUPREME COURT REPORTS [2014] 9 S.C.R.
A of the Order No.179 of the Governor General-in-Council
dated 12th September, 1836 embodying the terms of the
Old Grant and held that the property was Old Grant.
Therefore, High Court dismissed the writ petition. Hence
the present appeal.
B
Dismissing the appeal, the Court
HELD: 1. General Land Register (GLR) is required to
be maintainea by the MUitary Estates Officer of the
Cantonment under the provisions of the Cantonment
C Land Administrative Rules framed in exercise of power
under Section 280 ·of the Cantonment Act, 1924. The
General Land Register maintained by the Cantonment
Board under the Cantonment Act and the Rules framed
thereunder is a public document and the entries therein
D are conclusive evidence of title. The reference to the
nature of the holding i.e. old grant and the nature of rights
of the holder i.e. occupancy rights, in the G.L.R. in the
present case is conclusive of the fact that the land is
covered by an old grant and the rights enjoyed by the
E appellants were mere possessory or occupancy rights in
respect of the structures thereon. The terms of such
grants being statutory and the same having vested title
of the land in the UOI with the power of resumption, the
impugned notices dated 14th December, 2001 and 5th
F February, 2002 must be acknowledged to be legal and
valid. [Para 13) [412-C-F]
Chief Executive Officer vs. Surendra Kumar Vakil & Ors.
1999 (3) SCC 555: 1999 (2) SCR 118; Union of India vs.
Ibrahim Uddin & Anr. 2012 (8) SCC 148: 2012 (8) SCR 35;
G Union of India & Ors. vs. Kam/a Verma 2010 (13) SCC 511;
Union of India & Ors. vs. Robert Zomawia Street 2014 (6)
sec 707 - relied on.
Raj Singh vs. The Union of India AIR 1973 Delhi 169;
H Union of India vs. Tekchand 1999 (3) SCC 565; Mohan
USHA KAPOOR v. GOVERNMENT OF INDIA 403
Agarwal vs. Union of India & Ors. AIR 1979 Allahabad 170 - A
referred to.
2. The class of land in question has been described
as B-3 in the GLR. The aforesaid description of the land
is relatable to Rule 6 of the Cantonment Land 8
Administrative Rules. The meaning and expression "held
by any private person" in Rule 6 (iii) of the' Rules cannot
mean that the private person would not be a tenant but
would hold the land on the basis of a legal title thereto.
[Paras 14 and 15) [412-H; 413-A, D, E]
c
Case Law Reference:
AIR 1973 Delhi 169 referred to Para 11
1999 (3) sec 565 referred to Para 11
D
AIR 1979 Allahabad 170 referred to Para 11
1999 (2) sqR 118 relied on Para 12
2012 (8) SCR 35 relied on Para 13
2010 (13) sec 511 relied on Para 13 E
2014 (6) sec 101 relied on Para 15
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1844 of 2008.
F
From the Judgment and Order dated 08.03.2006 of the
High Court Allahabad in Civil Misc. Writ Petition No. 9024 of
2002.
K.K. Mohan For the Appellants.
G
R.S. Suri, Ashok K. Srivastava, S. Wasim A. Qadri, Sunita
Sharma, B.V. Bairam Das (For Anil Katiyar) for the
Respondents.
The Judgment of the Court was delivered by H
404 SUPREME COURT REPORTS [2014] 9 S.C.R.
A RANJAN GOGOi, J. 1. The challenge laid by the
appellants to notices dated 14th December, 2001 and 5th
February, 2002 having proved futile, this appeal has been filed
upon grant of special leave under Article 136 of the Constitution.
B 2. The first notice dated 14th December, 2001 is one of
resumption ofland comprising the site of Bungalow No.1, Elgin
Road, bearing General Land Register (GLR) Survey No.214,
New Cantonment, Allahabad measuring 3.20 acres. The said
notice has been issued on behalf of the President of India in
exercise of powers vested by Order No.179 of the Governor
C General-in-Council dated 12th September, 1836. The second
notice dated 5th February, 2002 is consequential and required
the appellant to hand over the aforesaid land to the Defence
Estates Officer, Allahabad Circle on 11th March, 2002.
D 3. According to the ·appellants, by a sale deed dated 1st
September, 1943 executed by and between Kirk Session of
the Church of Scotland at Allahabad and Smt. Mohini Devi
Kapoor, the predecessor-in-interest of the appellants, the
vendor (Kirk Session) conveyed and sold/transferred to their
E predecessor (Smt. Mohini Devi Kapoor), a lower roomed
tenement or dwelling standing on the said site free from all
encumbrances. Another recital in the sale deed described that
on or about 2nd day of March, 1873, the land, covered by the
notice dated 14th December, 2001 was granted to the
F Reverend J. Williamson Chaplain of the Church of Scotland for
the purpose of erecting thereon a Manse and accordingly the
Members of the Church erected and built on the said ~piece of
land, a lower roomed tenement/dwelling house for use as a
Manse together with outhouses. By a deed of transfer dated
G 7th November, 1901, Mr. Henry Charles King and Wilkie
Adolphus McReddie, Elders of St. Andrews Church of the
Scotland at Allahabad transferred to the Kirk Session (Vendor
herein), the aforesaid lower roomed tenement or dwelling
house which was subsequently the subject matter of the sale
H deed dated 1st Septemqer, 1943. The said sale deed was
U'SHA KAPOOR v. GOVERNMENT OF INDIA 405
[RANJAN GOGOi, J.]
executed after permission to effect the same was granted by A
the Governor General-in-Council acting through the ·
Commander-in-Chief, as conveyed by letter dated 3oth June,
1943 from the Military Estate Officer, Allahabad Circle,
Allahabad.
B
4. Before the High Court, the appellants, as the writ
petitioners, had contended that they are the. owners of the
property including the land by virtue of the sale deed dated 1st
September, 1943. The claims of the respondents that the land
was covered by an Old Grant had not been substantiated C
~nasmuch as no document showing the actual grant had been
laid at any stage before any authority. It was contended that the
onus to prove that the land was covered by Old Grant lies upon
the respondents which had not been satisfactorily discharged
by production of the relevant records.
D
5. The High Court took into account the prior sanction of
the Governor General-in-Council acting through the
Commander-in-Chief for the sale and transfer contemplated by
the deed dated 1st September, 1943 which, according to it,
was inconformity with Clause 6(4) of the Order No.179 of the E
Governor General-in-Council dated 12th September, 1836
embodying the terms of the Old Grant which were extracted in
the impugned judgment of the High Court. The High Court also
took note of an entry made in the General Land Register (GLR)
on 23rd September, 1943 the extract of which reads as follows:- F
"Name of cantonment : Allahabad (New}, Survey No.214
1. Details and date of Sold to Mrs. Mohini Devi
mutation and initials of DEO Kapoor wife of Mr.
N.C.Kapoor of the Indian G
State Railway Service, at
present on the E.I. Rly as
Superintendent Cawnpore
area for Rs.22,000/-vide sale
deed executed on 7.9.1943 H
406 SUPREME COURT REPORTS [2014] 9 S.C.R.
A and regd. As No.1420 in Bk
1 Vol.782 on pages 315 to
319 on 9th September, 1943
Authority:- D.D.Letter
B No.90704/Q.3 (B) 3199 - U
C&+) dated 7.5.43.
Sd/-xxxx
. Capt. M.E.0.23.9.4~ .
2. Subsidiary Survey No.
c
. 3. Volume and page of
Register
4. Area in Acres 3.20 Acres
D 5. Description Bungalow
6. Class B(3) '
7. By whom managed' M.E.O.
E 8. Landlord Govt. of India
9. Holder of occupancy Mrs. Mohini Devi Kapoor
rights
10. Nature of holders right Old Grant (Granted to Rev. J
F Williamson, Chaplain of the
Church of Scotland vide lette
No.7510 of8.3.1872 from the
Q.M.G. of the Army.
G 11. Rent payable per annum: :-o Central Govt; .......
To Gantt. Board .......
12. Date of expiry of lease
H ..
USHA KAPOOR v. GOVERNMENT OF INDIA 407
[RANJAN GOGOi, J.]
13. REMARKS The holder of site subscribes A
to condition 6(1) to (4) of
G.G.O. No.179 of 1836 vide
her transfer application datec
26.11.42.
B
Sd/- xx xx xx
23 Sept. 43
M.E.O;"
c
6. The High Court also took note of the fact that the
predecessors-in-interest of the appellants had again sought
sanction for transfer of the land in favour of one Ms. Shakuntala
Nair on 16th June, 1959. In the application seeking permission,
it was mentioned that the land was covered by Old Grant. D
7. The High Court also noticed that on the demise of Smt.
Mohini Devi Kapoor, amendments were made iri the G.L.R. on
the basis of the Will dated 22nd July, 1982 and extracted the
relevant part of the said amendment which is reproduced herein
below: E
"8. Land Government of India
9. Holders of Occupancy Shri Giriraj Kapoor, son of
rights Late Nanak Chand Kapoor
F
· and S~ri Krishna Kapoor sor
of Shri Giriraj Kapoor
10. Nature of holders ·Old Grant
rights Grant to Rev. J. Williamson
Chaplain of the Church of G
Scotland vide letter No.75/C
dated 8.3.1873 from the
QMG of the Army Site of
• bungalow is an Old Grant
terms as per GGO 179 of H
408 SUPREME COURT REPORTS [2014) 9 S.C.R.
A 1836. Defence Department
and Quarter Master General
letter Nos. 90704/Q-3(b)
(3199-LC&L) dated 7.5.1943
and 96633/LC
B dated9.4.1943 respectively
refers. Also DEO letter
No.A2/2/45 dated
23.7.(sick)."
c 8. On the aforesaid materials, the High Court thought it
proper to conclude that the land in question was covered by
old grant, the terms of which did not entail any transfer of land
to the grantee and further authorized the resumption of the land
on payment of compensation to the occupier for the structure/
D building standing thereon.
9. In a book on Cantonment Laws by J.P.Mittal, a precise
history of the tenures which came to be known as Old Grant is
, available. A few paragraphs from the aforesaid book may be
very usefully extracted below :
E
"Besides municipal administration, another subject that has
always loomed large on the cantonment horizon, is the
question of provision of necessary accommodation for
military officers near the place of their duty. This led to the
F issue, from time to time, of certain rules, regulations, and
orders by the Governments of Bengal, Madras and
Bombay Presidencies between the years of 1789 and
1899. The regulations were mostly of an identical nature.
They had a twofold object in view, that of ensuring sufficient
accommodation for military officers; and that of regulation
G
of the grant of land sites. Some of these regulations are
published in this book. These rules, regulations and orders
continue to be the law in force in India even after the
·enforcement of the British statutes (Application to India)
Repeal Act, 1960, (Raj Singh v. Union of India, Mohan
H Agarwal v. Union of India).
USHA KAPOOR v. GOVERNMENT OF INDIA 409
[RANJAN GOGOi, J.]
Under these regulations and orders, officers not provided A
with government quarters were allowed to erect houses in
the cantonment. For this purpose ground was allotted to
them with the condition that no right of property whatever
in the ground was conferred on them and the ground
continued to be the property of the State, was resumable B
at the pleasure of the Government by giving one month's
.notice and paying the value of the structures as may have
been authorised to be erected. The houses or other
property built o·n such grounds were allowed to be
transferred by one military officer to another without c
restrictions. To civilians these could be transferred only with
the prior permission of the officer commanding the station.
With the lapse of time civilians were also encouraged to
build bungalows on the government land in the cantonment
on the same condition of fesumption of the ground as D
given above and with a further condition that they may be
required to rent or sell the same to any military officer. In
case of disagreement about the rent or the sale price, the
same was to be fixed by a committee of arbitration. These
tenures under which permission was given to occupy' E
government land in the cantonments for construction of
bungalows came to be known as 'old grant'. Such
permission was given mostly on payment of no rent. This
is how a large number of bungalows in the cantonments
all over India came in the hands of civilians." F
10. The terms of the tenures which came to be known as
Old Grants are contained in Order No.179 issued by the
Governor General-in-Council dated 12th September, 1936. The
preamble and Clauses 6 and 7 of the said order, being relevant, G
would require reproduction at this stage :
''The Governor General of India in Council is pleased to
rescind the various orders now in force in this Presidency
in regard of the occupation of ground and the disposal of
premises or buildings situated within the limits of military H.
410 SUPREME COURT REPORTS [2014] 9 S.C.R.
A cantonments, and to substitute for them the following
regulations, which are to have effect from the date of its
promulgation at the different stations of the Bengal Army
.-
** ** **
B
6. No ground will be granted except on the following
conditions which are to be subscribed by every grantee,
as well as by those to whom his grant may subsequently
be transferred :-
c
1st:- the Government to retain the power of resumption at
any time on giving one month's notice and payment of the
value of such buildingi:; as may have been authorised to
be erected .
.o 2nd:- The ground, being in every case the property of the
Government, cannot be sold by the grantee but houses or
other property thereon situated may be transferred by one
military or medical officer to another without restriction
except in the case of reliefs when, if required, the terms
E of sale or transfer are to be adjusted by a Committee of
Arbitration.
3rd:- If the ground has been built upon the buildings are
not to be disposed of to any person of whatever description
F who does not belong to the army, until the consent of the
officer commanding the station shall have been previously
obtained under his hand.
4th :- When it is proposed, with the consent of the General
Officer to transfer possession to a native; should the value
G of the house, buildings or property to be so transferred
exceed Rupees 5,000 the sale must not be effected until
the sanction of Government shall have been obtained
through his Excellency the Commander-in-Chief.
H 7. All houses in a military cantonment, being the property
I
USHA KAPOOR v. GOVERNMENT OF INDIA 411
• [RANJAN GOGOi, J.]
of persons not belonging to the army which may be A
deemed by the Commanding Officer of the station su~able
from their locality for the accommodation of officers, shall
be claimable for purchase or for hire at the option of the
owner: in the former case at a valuation and in the latter
at a rent to be fixed in case of the parties disagreeing by B
a Committee of Arbitration constituted as follows".
11. In Raj Singh vs. The Union of lndia 1 which decision
was approved' by this Court in Union of India vs. Tekchand 2
(C.A.No 3525 of 1983 decided on 5.1.1999), the aforesaid C
Order No.179 of 1836 was held to be a statutory exercise
made under Section 43 of the Government of India Act, 1833.
In Mohan Agarwal vs. Union of India & Ors. 2, fhe legislative
history following the promulgation of Order No.179 under the
Government of India Act, 1833 has been traced upto the date
of the commencement of the Constitution to establish that the D
said order was an existing law on the date of the coming into
force of the Constitution of India and, therefore, would continue
to remain in force till repealed, which event has not yet occurred.
The painstaking efforts of the learned Judges of the Delhi High
Court in Raj Singh (supra) and Allahabad High Court in Mohan E
Agarwal (supra) has to be acknowledged as significant
contributions in this realm of law.
12. In Chief Executive Officer vs. Surendra Kumar Vakil
& Ors. 3 , the effect of the terms of the tenures granted under F
Order No.179 dated 12th September, 1836 was considered
and it was held that under the-said terms ownership of the land
remains with the Government and the land cannot be sold by a
grantee. The original grantee is vested with the right to build
up a house/structure on the land and he may only transfer the G
same. Such transfer would require the consent of the
1. [AIR 1973 Delhi 169].
2. [AIR 1979 Allahabad 170].
3. 11999 (3) sec 555. H
412 SUPREME COURT REPORTS [2014] 9 S.C.R.
A commanding officer when the transfer is to a person not
belonging to the armed forces. The right to resume the land, at
any time, after following the procedure prescribed (extracted
above) was expressly recognized by this Court to be vested in
the Union.
B
13. The decision of this Court in Chief Executive Officer
vs. Surendra Kumar ·Vakil (supra) also considered the legal
effect of the entries in the G.L.R. which Register is required to
be maintained by the Military Estates Officer of the Cantonment
C under the provisions of the Cantonment Land Administrative.
Rules framed in exercise of power under Section 280 of the
Cantonment Act, 1924. The General Land Register maintained
by the Cantonment Board under the Cantonment Act and the
Rules framed thereunder is a public document and the entries
therein are conclusive evidence of title. This is the view
D expressed by this Court in two other decisions, namely, Union
of India vs. Ibrahim Uddin & Anr. 4 and Union of India & Ors.
vs. Kam/a Verma 5, apart from the decision in Chief Executive
Officer vs. Surendra Kumar Vakil (supra). The reference to the
natur~ of the holding i.e. old grant and the nature of rights of
E the holder i.e. occupancy rights, in the G.L.R. extracted above,
in our considered view, is conclusive of the fact that the land is
covered by an old grant and the rights enjoyed by the appellants
were mere possessory or occupancy rights in respect of the
structures thereon. The terms of such grants being statutory and
F the same having vested title of the land in the UOI with the power
of resumption, the impugned notices dated 14th December,
2001 and 5th February, 2002 must be acknowledged to be
legal and valid.
G 14. There is another small aspect of the matter which would
require a mention. Against Sl.No.6 of the extract of the G.L.R.
extracted above, the class of land has been described as B-3.
The aforesaid description of the land is relatable to Rule 6 of
4. [2012 (8) sec 148..·
H 5. [2010 (13) sec 511. ·
USHA KAPOOR v. GOVERNMENT OF INDIA 413
[RANJAN GOGOi, J.]
the Cantonment Land Administrative. Rules which is in the A
following terms :
"6. Class 'B' Land - Class "B" land shall be div_ided by the
Central Government, or such other authority as they may
empower in this behalf, into the following sub-classes, 8
namely-
(iii) Class 'B3' land, which is held by any private person
under the provisions of these Rules, or which is held or may
be presumed to be held under the provisions <;>f the
Cantonment Code of 1899 or 1912, or under any executive G
orders previously in force, subject to conditions under
which the Central Government reserve, or have reserved,
to themselves the proprietary rights in the soil;"
15. In Union of India & Ors. vs. Robert Zomawia Street 6 o
this Court considered the effect of the meaning and expression
"held by any private person" in Rule 6:(iii) above and after an
elaborate consideration rejected the pl'ea that the said
expression could mean that the private person would not be a
tenant but would hold the land on the basis of a legal title thereto. E
16. In view of the foregoing discussions, we arrive at the
conclusion that this appeal is wholly without any merit or
substance. The challenge to the impugned notice must fail. The
appeal is, accordingly, dismissed. However, in the facts and
circumstances of the case, we make no order as to costs. F
Kalpana K. Tripathy Appeal dismissed.
G
6. [20141 (6) sec 101. H
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