KAIKHOSROU (CHICK) KAVASJI FRAMJI versus UNION OF INDIA & ANR. on 15 March 2019

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SUPREME COURT REPORTS

[2019] 4 S.C.R.

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KAIKHOSROU (CHICK) KAVASJI FRAMJI

v.

UNION OF INDIA & ANR.

(Civil Appeal No. 5574 of 2009)

BMARCH 15, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Public Premises (Eviction of Unauthorised Occupants) Act,1971: ss. 4(1) and 4(2)(b)(ii) – Issue of notice to show cause againstCorder of eviction – Summary remedy of the State qua person inpossession of the land – On facts, predecessor of the appellantsleased their property to the Government twice – Said land wasrequisitioned, derequisitioned and thereafter again requisitioned –Issuance of notice by Estate Officer u/ss. 4(1) and 4(2)(b)(ii), to theDappellants, treating them to be unauthorized occupants of the suitproperty – Notice upheld by the High Court – On appeal, held:Appellants raised a bona fide dispute on the question of ownershipof the suit property qua Union of India – A fortiori, in such case,Estate Officer has no jurisdiction to invoke the powers u/s. 4 byresorting to a summary procedure prescribed in the Act by sendingEa notice u/s. 4 for appellant’s eviction from the suit property – Factsand the documents establish that there exists a bona fide longstanding dispute as to who is the owner of the suit property-appellants or Union of India – Union of India itself stated in thisCourt in earlier round of litigation that they would seekdispossession of the appellants from the property in accordanceFwith law and, if need be, by filing civil suit in the civil court, however,the same was not resorted to – Respondents cannot now be permittedto go back from their statement and take recourse to a remedy ofsummary procedure under the Act, which is otherwise not availableto them – Effect of quashing the resumption notice issued by theGrespondents by the High Court in relation to the suit property wasthat Union of India was not entitled to resort to any kind of summaryremedy to evict the appellants from the suit property – Civil courtalone could try and decide – Thus, the notice issued by the EstateOfficer is quashed.

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Precedent: Binding effect of – Reading a decision to find outratio decidendi – Three Judge Bench decisions – Judgment authoredby one judge, and the other two judges concurred with the saidview and the reasoning – Two concurring judges also supplementedtheir individual concurring reasoning on the same lines on whichthe lead judge expressed his view – No dissent inter se judges onany issue – Held: Is a law by majority and thus, a law laid down bythe Court u/Art. 141 – Constitution of India – Art. 141.

Doctrines/Principles: Principle of merger – Applicability of– Held: For merger to operate, the superior court must go into themerits of the issues decided by the subordinate court and recordfindings on its merits – If this is not done by the superior court, aplea of merger has no application in such a case and the order ofsubordinate court would continue to hold the field – On facts, thisCourt while disposing of the appeals by its order did not go into themerits of the various contentions which were decided by the HighCourt in its order and disposed of the appeal on the statement madeby the respondents that they would take recourse to the remedy ofthe civil court by filing a civil suit – Thus, the principle of mergerwould not operate.

Allowing the appeal, the Court

HELD: 1.1 The submission of the counsel for therespondent that the view expressed by A.P. Sen J. in Paras 86-87 in Express Newspaper case could at best be regarded as hisown view but not the view of the Court by majority because othertwo Judges (E.S. Venkataramiah J. and R.B. Mishra J.) did notexpress any opinion on this question, thus, this Court should notplace any reliance on the statement of law laid down in Paras 86-87, cannot be accepted. [Paras 51-52][240-B, C]

Conclusion

1.2 Keeping in view, the reasoning of Lord Esher M.R. inthe Guardian’s case when the statement of law laid down inExpress Newspaper decision is examined, the reasoning of A.P.Sen J. contained in Para 86-87 is the law laid down on behalf of allthe three Judges. It is a law by majority and is thus, a law laiddown by the Court under Article 141 of the Constitution. It is forthe reasons that though the lead judgment was authored by A.P.Sen J., the other two Judges concurred with the view and the AB

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Areasoning of A.P. Sen J; both the concurring Judges alsoexpressed their individual views on the question on the samelines on which A.P. Sen J. expressed his view and there is nodissent inter se Lordships on any issue much less on the issuewith which this Court is concerned in this appeal. The law laiddown in the lead judgment in Express Newspaper’s case is theBlaw by three Hon’ble Judges who constituted the Bench and thus,binds all the Courts in the country under Article 141 of theConstitution. It satisfies the test laid down by Lord Esher M.R.in the case of The Guardian’s case. [Paras 56, 57, 58][241-G, H;242-A-C]

CExpress Newspapers v. U.O.I. (1986) 1 SCC 133 :[1985] 3 Suppl. SCR 382 – explained.

The Guardians of the Poor of the West Derby Union v.The Guardians of the Poor of the Atcham Union Queen’sBench 1889 (Vol. XXIV) 117 – referred to.D

2.1 Keeping in view the statement of law laid down by thisCourt in Kaiser I Hind’s case and Northern India’s case, onexamination of the facts of the instant case, there is no hesitationin holding that the appellants have raised a bona fide dispute onthe question of ownership of the suit property qua respondentENo.1 (Union of India). [Para 64][243-F]

2.2 A fortiori, in such case, respondent No. 2 has nojurisdiction to invoke the powers under section 4 of the PP Actby resorting to a summary procedure prescribed in the PP Act bysending a notice under Section 4 of the PP Act for appellant’sFeviction from the suit property. First, the facts set out and thedocuments filed in their support, in no uncertain terms, establishthat there exists a bona fide long standing dispute as to who isthe owner of the suit property-the appellants or Respondent No.1(Union of India). Second, respondent No.1 itself admitted thatGthere exists a bona fide dispute between the appellants andrespondent No.1 (Union of India) over the suit property involvingdisputed questions of facts. Third, respondent No.1 (Union ofIndia) itself stated in this Court in earlier round of litigation thatthey would seek dispossession of the appellants from the propertyin question in accordance with law and, if need be, by filing civilHsuit in the Civil Court. The respondents cannot now be permitted

to go back from their statement and take recourse to a remedyof summary procedure under the PP Act, which is otherwise notavailable to them. Fourth, this Court while granting special leaveto appeal had also granted liberty to respondent No.1 (Union ofIndia) to file civil suit against the appellants, if they are so advised.It was, however, not resorted to. Fifth, the effect of quashing theresumption notice issued by the respondents by the High Courtin relation to the suit property was that respondent No.1 (Unionof India) was not entitled to resort to any kind of summary remedyto evict the appellants from the suit property not only under theBombay Land Requisition Act, 1948 but also under the PP Actbecause the PP Act also provides similar summary remedy ofeviction. Sixth, the Civil Court alone could try and decide thequestion of declaration of ownership of any immovable propertybetween the parties and such disputes could not be decided insummary proceedings under the PP Act. [Paras 65-71][243-G, H;244-A-F]

3. The principle of merger is fairly well settled. For mergerto operate, the superior court must go into the merits of the issuesdecided by the subordinate court and record finding/s one way orother on its merits. If this is not done by the superior court, aplea of merger has no application in such a case and the order ofsubordinate court would continue to hold the field. As to whetherjudgment rendered by the High Court stood merged in the orderof this Court dated 04.08.1998, this Court while disposing of theappeals by its order did not go into the merits of the variouscontentions which were decided by the High Court in its orderand disposed of the appeal on the statement made by therespondents through the Solicitor General that respondent No.1-Union of India would take recourse to the remedy of the civilcourt by filing a civil suit. Indeed, in the light of such statementmade by the respondents (appellants in the appeal), whichresulted in disposal of their appeal, the respondents themselvesdid not call upon this Court to examine the merits of the issuesraised by them in their appeals. In such a situation, there was nooccasion for this Court to apply the mind to the merits much lessto record any finding on any of the issues arising in the appeal. Inthis view of the matter, the principle of merger could not operate.[Paras 72-75][244-G, H; 245-A-D]

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AShanmugaval Nadar v. State of Tamil Nadu (1989) 4SCC 187 : [1989] 3 SCR 488 – relied on.

4. The respondents submitted that there lies a distinctionbetween the two types of tribunals – one which exercises powersonly when it is shown that certain state of facts exist and otherBwhich has jurisdiction to determine whether the preliminary stateof facts exists as well as it has the jurisdiction to proceed furtherto do something more, and on the basis thereof, the Estate Officerhas jurisdiction to examine the facts of this case in Section 4proceedings under the Act, cannot be accepted. Once in the caseof Kaiser-I Hind it has been laid down the law as to how the PPCAct operates and needs to be applied, all the issues arising underthe PP Act has to be examined in the light of law which deals withthe PP Act. [Paras 76-78][245-E-G]

Kaiser-I-Hind Pvt. Ltd. v. National TextileCorp.(Maharashtra North) Ltd. (2002) 8 SCC 182 :D [2002] 2 Suppl. SCR 555 – followed.

Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi–[1959] Supp 1 SCR 733 distinguished.

5. The submission that the writ petition was notEmaintainable to challenge the notice issued under Section 4 ofthe PP Act has no merit and is rejected. Firstly, the High Courthaving entertained the writ petition and dismissing it on merits,this objection does not survive for consideration and second, inthe light of long line of decisions on this question, a writ petitionto question the legality and correctness of the notice issued underFany Act is no bar in entertaining the writ petition in appropriatecase. The case at hand was regarded as an appropriate case forentertaining the writ petition. [Para 80][246-B, C]

Siemens Ltd. vs. State of Maharashtra (2006) 12 SCC33 : [2006] Suppl. SCR 925; Whirlpool CorporationGvs. Registrar of Trade Marks (1998) 8 SCC 1 : [1998]2 Suppl. SCR 359 – relied on.

6. The impugned order is set aside. As a consequence, thewrit petition filed by the appellants is allowed and the notice issuedby respondent No.2 impugned in the writ petition is quashed byHissuance of writ of certiorari. [Para 83][246-F]

KAIKHOSROU (CHICK) KAVASJI FRAMJI v. UOI

Phiroze Temulji Anklesaria v. H.C. Vashistha AIR 1980Bombay 9; State of Orissa v. Ram Chandra Dev AIR1964 SC 685; Western Coalfields Ltd. & Anr. v. BallapurCollieries Company & Ors. (2019) 2 SCC 327; M/s.Ballapur Collieries Company & Ors. v. Estate Officer& Ors. (Judgment dated 22.01.2007 of the BombayHigh Court in Civil Revision Application No.801 of2002 and Civil Revision Application No.803 of 2003;State of U.P. & Anr. v. Zia Khan (1998) 8 SCC 483;State of A.P. v. Thummala Krishna Rao (1982) 2 SCC134; State of Rahasthan v. Padmavatidevi (1995) Suppl2 SCC 872; Northern India Caterers (P) Ltd. v. State ofPunjab AIR 1967 SC 1581 : [1967] SCR 399 – referredto.

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Case Law Reference

AIR 1980 Bombay 9AIR 1964 SC 685(2019) 2 SCC 327(1998) 8 SCC 483(1982) 2 SCC 134(1995) Suppl 2 SCC 872[1985] 3 Suppl. SCR 382[1967] SCR 399 [1989] 3 SCR 488[2002] 2 Suppl. SCR 555(1959) Supp 1 SCR 733[2006] Suppl. SCR 925[1998] 2 Suppl. SCR 359

ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 5574of 2009.

From the Judgment and Order dated 17.06.2009 of the High Courtof Judicature at Bombay in Writ Petition No. 4386 of 2001.

Darius Khambata, Huzefa Ahmadi, Sr.Advs., Mahesh Agarwal,BRishi Agrawala, Ankur Saigal, Ms. Devika Mohan, Jai Chhabaria,Ms. Akanksha Sexana, Arnav Behari, E. C. Agrawala, Rohan Sharma,Advs. for the Appellants.

Aman Lekhi, ASG, Harish Pandey, Sachin Sharma, Arvind KumarSharma, Mrs. Anil Katiyar, Advs. for the Respondents.C

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. This appeal is filed againstthe final judgment and order dated 17.06.2009 passed by the High Courtof Bombay at Mumbai in Writ Petition No.4386 of 2001 whereby theDDivision Bench of the High Court dismissed the said writ petition filedby appellants herein.

2. Though the controversy involved in this appeal is short, inorder to appreciate as to how it arose, it is necessary to set out itsbackground facts in detail infra. The facts are stated from the SLPpaper books and the List of Dates furnished by the parties.E

3. The appellants herein are the writ petitioners and therespondents herein are the respondents in the writ petition out of whichthis appeal arises.

4. The dispute relates to a property, which is situated at SurveyFNo.417, Bungalow No.17, Dr. Coyaji Road (formerly known as“Elphinstone Road”) Pune-411001. The property consisted of a mainbungalow, a cottage, outhouses, garages, and an open plot of land (garden)admeasuring around 1.52 acres (hereinafter referred to as “the suitproperty”).

G5. One Burjorji Goostadji and Cooverbai Homi Karani were theowners of the suit property. They sold the suit property to one Mr.Mohammad Hajjibhoy by indenture of conveyance dated 01.03.1920pursuant to the order of the District Judge made on a Misc. ApplicationNo.5 of 1919 granting sanction for the sale in favour of Mr. MohammadHajjibhoy.H

6. Mr. Mohammad Hajjibhoy then sold the suit property to oneMr. Kaihosrou Sorabji Framji by indenture of conveyance dated28.11.1923. Mr. Kaihosrou Sorabji Framji then in turn leased out the suitproperty on 10.10.1929 to the Government of India for a period of fiveyears on a rent of Rs.110/- per month.

7. 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 possessionof the suit property. However, Mr. Kaihosrou Sorabji Framji then executedanother lease deed on 19.04.1940 in favour of the Government of Indiafor a further period of five years. In the year 1939, the lessor i.e. Mr.Kaihosrou Sorabji Framji applied to the Cantonment Board, Pune forgiving permission to undertake certain building work in the suit property.After exchange of some letters, the Cantonment Board granted thepermission to Mr. Kaihosrou Sorabji Framji.

8. On 30.04.1941, Mr. Kaihosrou Sorabji Framji expired leavingbehind his son Mr. Kavasji K Framji who inherited the suit property. Byorder dated 08.06.1943, the then Collector, Poona requisitioned the suitproperty under Rule 75 A (i) of the Defense of India Rules and handedover its possession to the Military Authorities.

9. However, after three years on 23.03.1946, the suit propertywas de-requisitioned and the possession was handed over back to Mr.Kavasji K Framji. On 05.08.1948, the Collector again requisitioned thesuit property under Section 5 (1) of the Bombay Land Requisition Act,1948. In this order it was mentioned that Mr. Kavasji K Framji is theowner of the suit property.

10. Mr. Kavasji K Framji filed Writ Petition No.2783 of 1983 inthe Bombay High Court seeking inter alia a relief for restoration ofpossession of the suit property. By order dated 14.01.1985, the BombayHigh Court allowed the writ petition and directed restoration of possessionof the suit property to Mr. Kavasji K Framji. The Government of India,however, did not vacate the suit property but undertook to vacate it by30.04.1985.

11. Reverting to the events to complete the narration of facts inchronology, on 21.01.1971, the Union of India issued a resumption noticein relation to the portion of the suit property (about 22,168 sq. feet). Thenotice was founded on the allegations inter alia that the suit propertywas held under “old grant” which empowered the Union of India toresume the subject land. The notice contained that on the expiry of 30

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Adays period after its service, all private rights, and interest of Mr. KavasjiK Framji would be ceased. The notice offered to Mr. Kavasji a sum ofRs.4765/- by way of compensation towards the value of variousstructures standing on the subject land. A cheque of Rs.4765/- was sentto Mr. Kavasiji K Framji by letter dated 23.01.1971 who, in turn, declinedto accept the said amount and sent his reply on 27.01.1971 objectingBtherein to the notice and its contents.

12. Felt aggrieved by the notice and the letter, Mr. Kavasji KFramji filed Writ Petition No.364/1971 in the Bombay High Courtchallenging both the notice and the letter. The writ petition was filed onthe allegations inter alia that the subject land was a free hold tenureCand was never held by Mr. Kavasji K Framji under any Grant or Licencefrom the Union of India or from any department of the Union of Indiaand hence it is not resumable at the instance of the Central Government.

13. Besides Mr. Kavasji K Framji, several other persons includingone person namely Mr. PT Anklesaria also got similar notices from theDUnion of India in relation to their land. Mr. PT Anklesaria, Mr. KavasjiK Framji and others felt aggrieved and they filed writ petitions (SCANo.1286/1972) in the Bombay High Court questioning the legality andvalidity of the notices sent to them by the Union of India.

14. By the judgment/order dated 05.02.1979 in Phiroze TemuljiEAnklesaria vs. H.C. Vashistha, AIR 1980 Bombay 9, the High Courtallowed the writ petition and declared the notice as illegal and issuedwithout authority of law and accordingly restrained the Union of Indiafrom giving any effect to the impugned notice. The High Court heldinter alia as under:F“26. On a consideration of all the material that hasbeen placed before us by the petitioner as well as therespondents, it is clear to us that there is no evidencewhatsoever of the Government’s right to resume the landin possession of the petitioners; there is no evidence ofGthe terms under which that right of resumption, if any, couldbe exercised and most important, there is no evidencewhatsoever of the right or power of the Government toacquire the structure standing upon the land in question bydetermining arbitrarily or unilaterally its compensation. Allthese three rights—the right of resumption, the right toHresume upon particular terms and the right to take possession of the houses situated on the land which arementioned in the impugned notice — are found to be non-existing. The impugned notice, therefore, is patently withoutany authority of law and is not supportable by the terms ofthe grant which itself has not been proved.”

15. The Union of India felt aggrieved and filed appeals before theDivision Bench of the High Court (Special Civil Application No.364/1971). The Division Bench dismissed the appeals in the case of KavasjiKaikhoshrou Framji vs. D.Krishnamunny with the followingobservations:

“5…….The respondents have also raised two preliminarycontentionsas to the maintainability of the petition viz., (1)that the petitioner had not established his title to theproperty to enable him to maintain the petition and (2) thatthe petition involved disputed questions of facts and law asto title and therefore the court should not determine thesame in a petition under Art.226 of the Constitution butdirect the petitioner to file a suit for that purpose.

We find that in this case all the contentions raised andsubmissions made by both the sides are the same as thosemade in Special Civil Application No.1286 of 1972. In thatpetition, by our reasoned judgment delivered on 5-2-1979,we have negatived the respondents’ said contentions andheld accepting the contentions of the petitioner that theresumption by the Government of the petitioner’s land andbunglow were without any authority of law and thereforethe impugned notice was invalid. On the very samereasoning in this case also we negative all the contentionsof the respondents and uphold the contentions of thepetitioners inter alia that the resumption of the petitioner’sland by the Government was without any authority of lawand therefore the impugned notice was invalid.”

16. In all, 14 special leave petitions were filed by the Union ofIndia in this Court against the judgment/order of the High Court.

17. It may here be mentioned that in the meantime, Mr. PTAnkelesaria had also filed civil suits in the Court of District Judge, Poonain the light of observations made by the Bombay High Court in (AIR

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A1980 Bombay page 9) and prayed for grant of relief of possession of thesubject land. The District Judge, Poona decreed these suits in plaintiff’sfavour. The Union of India felt aggrieved and filed First Appeals in theBombay High Court whereas the plaintiff filed cross-objections in theseappeals (608-621/1980). These appeals were later transferred to thisCourt at the instance of the Union of India for their disposal and wereBre-numbered as (67-72/1985 and 11-12/1987).

18. By consent order dated 20.07.1988, this Court remitted theappeals to the Bombay High Court for their disposal as directed therein.The order reads as under:

C“2. While considering the case, if the High Court finds thatthe trial Court or the first appellate Court has placed relianceor made any reference to the aforesaid judgment of theDivision Bench, it shall ignore that judgment, to that extent,and the High Court shall decide the matter afresh inaccordance with law without taking into consideration orDbeing influenced by the aforesaid judgment of the DivisionBench.

3. The parties will be at liberty to adduce additional evidencebefore the High Court within the period fixed by the HighCourt.E4. The High Court will make every effort to dispose of thecases within six months from the date of the receipt of therecord.”

19. The remaining appeals were disposed of by another orderdated 25.03.1992 of this Court, which reads as under:F“The Appeals are dismissed as infructuous in terms of thesigned order placed on the file.”

20. The aforesaid order dated 25.03.1992 was later recalled bythis Court on a review petition filed by the Union of India by order datedG13.01.1995. The Review Petition was allowed by this Court on theground that the consent order was passed only in relation to Mr. PTAnkelesaria’s case by which his appeals alone were remitted to theHigh Court for their disposal, whereas the other appeals could not havebeen dismissed as having rendered infructuous in the light of the saidorder.H

21. In the meantime, Mr. Kavasji K Framji died and his legalrepresentatives (appellants herein) were brought on record of the caseto continue the lis.

22. This Court then by order dated 04.08.1998 disposed of theaforementioned appeals after recording the statement of the SolicitorGeneral of India in the following terms:

“Learned Solicitor General states that the Union of India would seek dispossession of the respondent-occupantsfrom the properties involved, in accordance with law and ifneed be, through a Civil Court by filing suit. In case suchsteps are taken, any observations made by the High Courtwhich would tend to defeat the remedies sought would notstand in its way. On such stance of the Union of India, CivilAppeals as also the special leave petitions stand disposedof accordingly.”

23. It is with these background facts which began from 01.03.1920and ended with the order of this Court passed on 01.08.1998, RespondentNo.2- Estate Officer issued a notice on 31.07.2001 under Sub-(1) andClause (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 andcorrectness of this notice.

24. The notice in question was founded on the allegations interalia that the appellants are in unauthorized occupation of the publicpremises mentioned in the schedule in the notice i.e the suit property andtherefore the appellants should vacate the suit property. The contentsof the notice read as under:

“Whereas the nature of Holder’s rights on the land islimited only to its occupancy, therefore, being the propertyof the Govt. the land is liable to be resumed, in terms ofconditions obtaining under the old grant terms. Accordinglythe Govt. of India, Ministry of Defence resumed the landand building after giving one month’s notice vide Orderno.701/71/L/L & C/70/12030/D (lands) 21[st] January 1971on payment of Rs.4,765/- (Rupees Four Thousand SevenHundred Sixty Five only) towards resumption cost ofauthorized super structure standing thereon which has beenaccepted by you, albeit, under protest.”

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A25. The appellants felt aggrieved by the issuance of theaforementioned notice to them by Respondent No.2 and filed a writpetition in the High Court of Bombay questioning its legality andcorrectness and sought its quashing. The appellants challenged the noticeon several factual and legal grounds as is clear from the groundsenumerated in the writ petition.B

26. The respondents filed their counter and defended issuance ofthe notice to the appellants including its contents. By impugned order,the High Court dismissed the writ petition and upheld the issuance ofnotice to the appellants under the PP Act, which has given rise to filingof this appeal by way of special leave in this Court by the unsuccessfulCwrit petitioner.

27. Heard Mr. Darius Khambata, learned senior counsel for theappellants and Mr. Aman Lekhi, learned ASG for the respondents.

28. Mr. Darius Khambata, learned senior counsel appearing forDthe appellants (writ petitioner) has mainly argued the following eightpoints.

29. His first submission was that the High Court erred in dismissingthe writ petition and thereby erred in upholding the impugned noticeissued under Section 4 of the PP Act.

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E30. His second submission was that keeping in view thebackgrounds facts stated above coupled with the orders passed by theHigh Court and this Court in judicial proceedings, which emanated fromthese facts, it is prima facie clear that respondent No.2 - Estate Officerhad no jurisdiction over the suit property for invoking his powers underSection 4 of the PP Act against the appellants for their summary evictionFand treating them to be unauthorized occupants of the suit property.

31. In other words, the submission was that the facts stated abovewould, in no uncertain terms, go to show that the suit property neverbelonged to the Union of India and on the other hand it all along belongedto the appellant’s predecessors and then to the appellants and thereforeGrespondent No.2 - Estate Officer had no jurisdiction to treat the suitproperty to be belonging to the Union of India for initiating proceedingsagainst the appellants for their summary eviction under the PP Act.

32. His third submission was that from the facts narrated above,it is clear that there does exist a “bona fide dispute” between the H

appellants and the Union of India (respondent No.1) in relation to thesuit property as to who is its real owner - the appellants or the Union ofIndia.

33. According to the learned counsel, in a situation where therearises a bona fide dispute between the two rival claimants over a propertyabout their ownership such as the one which has arisen in the case athand, the remedy of the parties lies in filing a civil suit in the civil courtand seek a declaration of their ownership over the property in accordancewith law but not to take recourse to any summary remedy to evict aperson, such as the one done by the respondents under the PP Act againstthe appellants only because one of the rival claimants, i.e., respondentNo.1 happens to be the Union of India.

34. His fourth submission was that, respondent No.1 through theircounsel (Solicitor General) having made a statement in this Court on04.08.1998, that respondent No.1 (Union of India) would take steps infiling civil suit in the Civil Court against the appellants for theirdispossession from the suit property, and this Court disposing of theappeals of the Union of India in the light of such statement, respondentNo.1 is bound by their own statement. It is therefore, urged that theUnion of India must take recourse to the remedy of filing civil suit againstthe appellant in relation to the suit property in the civil court, which isotherwise a proper remedy available in law for claiming the relief.

35. His fifth submission was that even otherwise, looking to thenature of documents filed by the appellants and the manner in which theappellants have traced their title to the suit property, the appellants couldnot prima facie be regarded as trespassers in the suit property and norcould they be regarded as the persons in its unauthorized occupation byrespondent No.1 (Union of India) so as to empower them to take recourseto the provisions of the P.P. Act.

36. In other words, the submission was that the documents reliedupon by the appellants prima facie proved that the appellants were/areand have all along been the owners of the suit property to the exclusionof all persons including respondent No.1 (Union of India) and, therefore,no one has a right to disturb their long established possession over thesuit property except by following the “due process of law”.

37. His sixth submission was that the provisions of the PP Act aremade applicable only to those properties which are admittedly belonging A

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Ato the Central Government or the State Government as the case may beand therefore proceedings under the PP Act can be initiated against anyperson when he is found to be in its unauthorized occupation without anylawful authority from its real owner i.e. the Central/State Government.Such is not the case here.

38. His seventh submission was that, if respondent No.1 (Unionof India) claims themselves to be the owner of the suit property (whichthey are not), then as urged earlier, their remedy lies in filing civil suit inthe Civil Court and establish their claim of ownership over the suit propertyqua the appellants in terms of the order of this Court dated 04.08.1998and recover possession of the suit property from the appellants.

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39. His eighth submission was that since the appellants succeededin the High Court in the first round of litigation against respondent No.1(Union of India) wherein the High Court quashed the resumption noticedated 21.01.1971 by order dated 05.02.1979 (AIR 1980 Bombay 9), thisorder still continues to hold good because none of the finding recordedDtherein are either set aside or modified by this Court by its order dated04.08.1998.

40. Learned counsel while elaborating his aforementionedsubmissions placed reliance on the decisions in Express Newspapersvs. U.O.I., (1986) 1 SCC 133, State of Orissa vs. Ram ChandraEDev, AIR 1964 SC 685, Western Coalfields Ltd. & Anr. vs. BallapurCollieries Company & Ors. (judgment dated 11.12.2018 in C.A.Nos.4487-4488/2009), M/s. Ballapur Collieries Company & Ors.vs. Estate Officer & Ors. (Judgement dated 22.01.2007 of the BombayHigh Court(Nagpur Bench) in Civil Revision Application No.801 of 2002Fand Civil Revision Application No.803 of 2003, State of U.P. & Anr.vs. Zia Khan, (1998) 8 SCC 483, State of A.P. vs. Thummala KrishnaRao, (1982) 2 SCC 134 and State of Rahasthan vs. Padmavatidevi,1995 Suppl(2) SCC 872.

41. In reply, learned Additional Solicitor, Mr. Aman Lekhi whileGsupporting the reasoning and the conclusion of the High Court in theimpugned order contended that none of the submissions urged by thelearned counsel for the appellants have any merit.

42. It was his submission that having regard to the previous factualhistory, it does not take away the jurisdiction of the Estate Officer underthe PP Act to issue notice under Section 4 of the PP Act and since theH

suit property belonged to the Union of India, a notice under Section 4 ofthe PP Act could always be issued by respondent No.2 and in such asituation, the remedy of the appellants would be to submit to the authorityof the Estate Officer and file reply to enable the Estate Officer to proceedwith the matter on merits and pass appropriate order.

43. In other words, his submission was that the Estate Officerpossesses the jurisdiction to issue notice in question and also possessesa jurisdiction to hold an inquiry under the Act in relation to the disputessought to be raised by the appellants and therefore the appellants shouldhave submitted to the jurisdiction of the Estate Officer rather than topursue the extraordinary remedy of filing the writ petition under Article226 of the Constitution of India. It is these submissions, which the learnedAdditional Solicitor General elaborated while opposing the appeal.

44. Having heard the learned counsel for the parties and on perusalof the record of the case including the written submissions, we findforce in the submissions urged by the learned counsel for the appellants(writ petitioners).

45. Before we examine the facts of the case, it is necessary totake note of the law, which deals with the issues arising in this Case.Indeed, if we may say so, it is fairly well settled.

46. This Court (Three Judge Bench) has succinctly dealt with theissues arising in this case in Express Newspaper Pvt. Ltd. & Ors.vs. Union of India & Ors.(1986) 1 SCC 133.

47. Though, in Express Newspapercase (supra) several otherissues relating to Fundamental Rights conferred on the citizens underArticle 19 (1) (a) and (g) of the Constitution and its violation qua Statefell for consideration and were decided, this Court was also called uponto decide the legality and correctness of the notice issued by theGovernment of India through their officers in their capacity as the lessorsof the land in question demanding therein a right of re-entry under theterms of the lease deed on the demised land from the lessee (writ petitionerof the case).

48. It is this issue, which was extensively dealt in the context ofcivil law as also the special laws, which provides for taking recourse tothe summary remedy by the State to take possession of the State landfrom its occupants. The learned Judge A.P. Sen J. speaking for the A

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ABench in his inimitable style of writing answered the question in paras86/87 as under:

“86. The Express Buildings constructed by ExpressNewspapers Pvt. Ltd. with the sanction of the lessor i.e.the Union of India, Ministry of Works and Housing on plotsBNos. 9 and 10, Bahadurshah Zafar Marg demised onperpetual lease by registered lease-deed dated March 17,1958 can, by no process of reasoning, be regarded as publicpremises belonging to the Central Government underSection 2(e). That being so, there is no question of the lessorapplying for eviction of the Express Newspapers Pvt. Ltd.Cunder Section 5(1) of the Public Premises (Eviction ofUnauthorised Occupants) Act, 1971 nor has the EstateOfficer any authority or jurisdiction to direct their evictionunder sub-section (2) thereof by summary process. Dueprocess of law in a case like the present necessarily impliesDthe filing of suit by the lessor i.e. the Union of India, Ministryof Works & Housing for the enforcement of the allegedright of re-entry, if any, upon forfeiture of lease due to breachof the terms of the lease.

87. Nothing stated here should be construed to mean thatEthe Government has not the power to take recourse to theprovisions of the Public Premises (Eviction of UnauthorisedOccupants) Act, 1971 where admittedly there isunauthorised construction by a lessee or by any otherperson on Government land which is public premises withinthe meaning of Section 2(e) and such person is inFunauthorised occupation thereof.”

49. The other two learned Judges, namely, E.S. Venkataramiah J.and R.B. Mishra J. also concurred with the reasoning and the conclusionreached by Justice A.P. Sen on this question and supplemented theirindividual concurring reasoning in the following words:G

“Venkataramiah, J.— I have gone through the judgmentwhich my learned Brother Justice A.P. Sen has just nowdelivered. …………………….....……………………………

202. The rest of the questions relate truly to the civil rightsof the parties flowing from the lease-deed. Those questionscannot be effectively disposed of in this petition underArticle 32 of the Constitution. The questions arising out ofthe lease, such as, whether there has been breach of thecovenants under the lease, whether the lease can beforfeited, whether relief against forfeiture can be grantedetc. are foreign to the scope of Article 32 of the Constitution.They cannot be decided just on affidavits. These arematters which should be tried in a regular civil proceeding.One should remember that the property belongs to theUnion of India and the rights in it cannot be bartered awayin accordance with the sweet will of an officer or a Ministeror a Lt. Governor but they should be dealt with inaccordance with law. At the same time a person who hasacquired rights in such property cannot also be deprived ofthem except in accordance with law. The stakes in this caseare very high for both the parties and neither of them cantake law into his own hands.

205. I allow the petitions accordingly. The costs of Petitioner1 shall be paid by the Union Government and the Lt.Governor of Delhi. There shall be no order as to costsagainst the other respondents. The other petitioners shallbear their costs.”

“R.B. Misra, J.— I have perused the judgment preparedby brother Justice A.P. Sen as also the judgment of brotherJustice E.S. Venkataramiah. While I agree that theimpugned notices threatening re-entry and demolition ofthe construction are invalid and have no legal value andmust be quashed for reasons detailed in the two judgments,which I do not propose to repeat over again. I am of theview that the other questions involved in the case are basedupon contractual obligations between the parties. Thesequestions can be satisfactorily and effectively dealt with ina properly instituted proceeding or suit and not by a writpetition on the basis of affidavits which are so discrepantand contradictory in this case.

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A208. I accordingly allow the writ petitions with costs againstthe Union Government and the Lt. Governor of Delhi andquash the impugned notices.”

50. At this stage, it is necessary to deal with one objection raisedby learned Additional Solicitor General on the aforementioned statementBof law laid down in Express Newspaper case (supra).

51. The objection of learned counsel for the respondent was thatthe view expressed by A.P. Sen J. in Paras 86-87 could at best be regardedas his own view but not the view of the Court by majority because othertwo learned Judges (E.S. Venkataramiah J. and R.B. Mishra J.) did notCexpress any opinion on this question. It is for this reason the learnedcounsel submits that this Court should not place any reliance on thestatement of law laid down in Paras 86-87.

52. We find no merit in this objection for more than one reason.We, however, consider it apposite to refer to one classic decision of theDQueen’s Bench reported in 1889 (Vol. XXIV) page 117 (The Guardiansof the Poor of the West Derby Union vs. The Guardians of thePoor of the Atcham Union) on this subject which was rightly relied onby the learned counsel for the appellants in answer to this question.

53. The question arose before the Queens Bench in TheEGuardians case (supra) as to how the Court should read a decision tofind out the ratio decidendi laid down in the decision when such decisionis delivered by the Bench of more than one Judge (as in that case byfour Judges of the House of Lords) and especially when all the Judgeshave authored their individual opinions on the subject.

54. Lord Esher M.R. in his distinctive style of writing succinctlyFexplained this question in the following words:

“The question is, what is the true construction of the 35thsection of the Act of Parliament which is before us, and,when we have got at the true construction, what is theapplication of it to this case ? ..........................................TheGHouse of Lords heard the cases, and did not give judgmentat once, but considered the matter carefully, and four of thelearned judges in the House of Lords gave judgment. Nowwe know that each of them considers the matter separately,and they then consider the matter jointly, interchanging theirHjudgments, so that every one of them has seen the judgments of the others. If they mean to differ in theirview, they so openly when they come to deliver theirjudgments, and if they do not do this, it must be taken thateach of them agrees with the judgments of the others.

We have then four judgments. The most elaborate of theseis, no doubt, that of Lord Watson; but Lord Watson’sjudgment must have been read by the Lord Chancellor, andthe Lord Chancellor must have discussed with Lord Watsonwhether he agreed with or not, and he must have agreedwith it. Lord FitzGerald in terms, says, “I have read thejudgment of Lord Watson, and I agree with it;” that is, heagrees not only with the result but with the mode in whichthe result is arrived at. Lord Macnaghten had read LordWatson’s judgment, and he does not attempt to expressthe smallest difference of opinion about it; he adopts thereasoning of Lord Watson and agrees with it, but he addsanother reason of his own.

What is import to-day is what is the view taken by the Houseof Lords of the interpretation of the third part of the 35thsection. It is plain that Lord Watson has taken a distinctand clear view, and has stated it clearly, of what is the effect,to a certain extent at all events, of the thirdclause……………………………………………………..I amclear that they decided the point which is before us: thatLord Watson’s judgment deals with it most specifically, thatthe judgment is really agreed with by the Lord Chancellorand by Lord FitzGerals, and by Lord Macnaghten, but thatLord Macnaghten has also given another reason for comingto the same conclusion.”

55. The other two learned Judges Lindley LJ and Lopes LJ agreedwith Lord Esher M.R.

56. Keeping in view the reasoning of Lord Esher M.R., when weexamine 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 threeJudges. It is a law by majority and is thus a law laid down by the Courtunder Article 141 of the Constitution.

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A57. It is for the reason that first, though the lead judgment wasauthored by A.P. Sen J., the other two Judges concurred with the viewand the reasoning of A.P. Sen J. Second, both the concurring Judgesalso expressed their individual views on the question on the same lineson which A.P. Sen J. expressed his view and the Third, there is nodissent inter se Lordships on any issue much less on the issue withBwhich we are concerned in this appeal.

58. It is for these reasons, we are of the considered view that lawlaid down in the lead judgment in Express Newspaper (supra) is thelaw by three Hon’ble Judges who constituted the Bench and thus bindsall the Courts in the country under Article 141 of the Constitution. ItCsatisfies the test laid down by Lord Esher M.R. in the case of TheGuardian (supra).

59. The question involved in Express Newspaper case (supra)in relation to remedy of the State qua person in possession of the landwas again considered by a Bench consisted of three Judges in a caseDreported in State of Rajasthanvs. Padavati Devi[supra].

60. In that case also, the question arose as to whether the StateGovernment can take recourse to a summary remedy of eviction of aperson under the State Revenue Laws from the land when such personraises a bona fide dispute about his right to remain in occupation oversuch land. Their Lordship held that in such a situation, the summaryEremedy to evict such person under the Act couldn’t be resorted to.

61. Justice S.C. Agrawal speaking for the Bench held in Para 6 inthe following words:

“6. As noticed earlier Section 91 of the Act prescribes asummary procedure for eviction of a person who is foundFto be in unauthorised occupation of Government land. Thesaid provisions cannot be invoked in a case where theperson in occupation raises bona fide dispute about his rightto remain in occupation over the land. Dealing with similarprovisions contained in Section 6 of the Andhra PradeshGLand Encroachment Act, 1945, this Court in Govt. of A.P.v. Thummala Krishna Rao1 has laid down that the summaryremedy for eviction provided by Section 6 of the said Actcould be resorted to by the Government only againstpersons who are in unauthorised occupation of any landwhich is the property of the Government and if the person H

in occupation has a bona fide claim to litigate he could notbe ejected save by the due process of law and that thesummary remedy prescribed by Section 6 was not the kindof legal process which is suited to an adjudication ofcomplicated questions of title. For the same reasons, it canbe said that summary remedy available under Section 91 ofthe Act is not the legal process which is suited foradjudication of complicated questions of title where theperson sought to be evicted as an unauthorised occupantmakes a bona fide claim regarding his right to be inpossession. In such a case the proper course is to have thematter adjudicated by the ordinary courts of law.”

62. This view was reiterated in the case reported in State of U.P.vs. Zia Khan [1998 (8) SCC 483].

63. At this stage we consider apposite to take note of theConstitution Bench decision of this Court wherein this Court afterexamining and upholding the constitutional validity of the PP Act in Kaiser-I-Hind Pvt. Ltd. vs. National Textile Corp. (Maharashtra North)Ltd. [(2002) 8 SCC 182] reiterated the view taken by this Court in anearlier decision of Northern India Caterers (P) Ltd. vs. State ofPunjab (AIR 1967 SC 1581) that the PP Act does not create any newright of eviction but it only creates a remedy for a right which alreadyexists under the general law. In other words, it was held that it onlyprovides a remedy which is speedier than the remedy of a suit under thegeneral law.

64. Keeping in view the statement of law laid down by this Courtin cited decisions supra, when we examine the facts of the case inhand, we have no hesitation in holding that the appellants have raised abona fide dispute on the question of ownership of the suit property quarespondent No.1 (Union of India).

65. A fortiori, in such case, respondent No. 2 has no jurisdictionto invoke the powers under section 4 of the PP Act by resorting to asummary procedure prescribed in the PP Act by sending a notice underSection 4 of the PP Act for appellant’s eviction from the suit property.This we say for the following six reasons.

66. First, the facts set out above and the documents filed in theirsupport, in no uncertain terms, establish that there exists a bona fide AB

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Along standing dispute as to who is the owner of the suit property - theappellants or Respondent No.1 (Union of India).

67. Second, respondent No.1 itself admitted that there exists abona fide dispute between the appellants and respondent No.1 (Unionof India) over the suit property involving disputed questions of facts (seeBParas 7, 8 & 18 of the Review Petition filed by Respondent No.1 in CivilAppeal Nos.608-612 against the appellants in respect of suit property inthis Court).

68. Third, respondent No.1 (Union of India) itself stated in thisCourt in earlier round of litigation while disposing of their Civil AppealNos.609, 611-613, 614 and 621 of 1980 that they would seek dispossessionCof the appellants from the property in question in accordance with lawand, if need be, by filing civil suit in the Civil Court. The respondentscannot now be permitted to go back from their statement and takerecourse to a remedy of summary procedure under the PP Act, which isotherwise not available to them.D69. Fourth, this Court while granting special leave to appeal on03.08.2009 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 to.

70. Fifth, the effect of quashing the resumption notice datedE21.01.1971 issued by the respondents by the High Court vide order dated05.02.1979/06.02.1979 in relation to the suit property was that respondentNo.1 (Union of India) was not entitled to resort to any kind of summaryremedy to evict the appellants from the suit property not only under theBombay Land Requisition Act, 1948 but also under the PP Act becausethe PP Act also provides similar summary remedy of eviction.F

71. Sixth, the Civil Court alone could try and decide the questionof declaration of ownership of any immovable property between theparties and such disputes could not be decided in summary proceedingsunder the PP Act.

72. This takes us to examine another question raised by theGrespondents as to whether judgment rendered by the Bombay High Courtdated 06.02.1979 stood merged in the order of this Court dated04.08.1998. In our view, it does not merge.

73. In our view, the principle of merger is fairly well settled. Formerger to operate, the superior court must go into the merits of the H

issues decided by the subordinate court and record finding/s one way orother on its merits. If this is not done by the superior court, a plea ofmerger has no application in such a case and the order of subordinatecourt 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 itsorder dated 04.08.1998, did not go into the merits of the various contentionswhich were decided by the High Court in its order dated 06.02.1979 anddisposed of the appeal on the statement made by the respondents throughthe Solicitor General that respondent No.1 (Union of India) would takerecourse to the remedy of the civil court by filing a civil suit.

75. Indeed, in the light of such statement made by the respondents(who were appellants in the appeal), which resulted in disposal of theirappeal, the respondents themselves did not call upon this Court to examinethe 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 meritsmuch 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.

76. Now coming to another argument, the learned counsel for therespondents contended that there lies a distinction between the two typesof Tribunals - one which exercises powers only when it is shown thatcertain state of facts exist and other which has jurisdiction to determinewhether the preliminary state of facts exists as well as it has the jurisdictionto proceed further to do something more as explained in the case reportedin Chaube Jagdish Prasad vs. Ganga Prasad Chaturvedi 1959 (supp)1 SCR 733 pages 743-744.

77. It is on the basis of this submission, learned counsel contendedthat the Estate Officer has jurisdiction to examine the facts of this casein Section 4 proceedings under the Act.

78. We do not agree. In our opinion, once the Constitution Benchin the case of Kaiser-I Hind (supra) after examining the provisions ofthe PP Act has laid down the law as to how the PP Act operates andneeds to be applied, all the issues arising under the PP Act has to beexamined in the light of the law which deals with the PP Act.

79. The law laid down in Chaube Jagdish Prasad (supra) reliedon by the learned counsel for the respondents was entirely on different A

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80. Yet, last submission of the learned counsel for the respondentsthat the writ petition was not maintainable to challenge the notice issuedunder Section 4 of the PP Act has no merit and deserves rejection.BSuffice it to say, firstly, the High Court having entertained the writ petitionand dismissing it on merits, this objection does not survive for considerationand second, in the light of long line of decisions on this question, a writpetition to question the legality and correctness of the notice issued underany Act is no bar in entertaining the writ petition in appropriate case.The case at hand was regarded as an appropriate case for entertainingCthe writ petition [see - Siemens Ltd. vs. State of Maharashtra 2006(12) SCC 33 and Whirlpool Corporation vs. Registrar of TradeMarks (1998) 8 SCC 1].

81. Before parting, we consider it apposite to mention that wehave set out the facts of the case only for the purpose of appreciatingDand deciding the legal issue arising in the appeal namely - the validity ofissuance of notice under Section 4 of the PP Act and not beyond it. Wehave not examined the rival claims of the parties over the property inquestion on merits and nor have recorded any finding on the rival claims.

82. In this view of the matter, whenever the question of ownershipEof the rights of the parties will be gone into by the concerned court, itshall decide the said question/s strictly on the basis of pleadings and theevidence adduced by the parties in accordance with law uninfluencedby any observations made by the High Court and this Court.

83. In the light of the foregoing discussion, the appeal succeedsFand is accordingly allowed. The impugned order is set aside. As aconsequence, the writ petition filed by the appellants is allowed and thenotice dated 31.07.2001 issued by respondent No.2 (Annexure P-34)impugned in the writ petition is quashed by issuance of writ of certiorari.

GNidhi Jain

Appeal allowed.

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