REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5574 OF 2009

Kaikhosrou (Chick) Kavasji Framji & Anr.          ….Appellant(s)

VERSUS

Union of India & Anr.        …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1.  This appeal is filed against the final judgment

and order dated 17.06.2009 passed by the  High

Court of Bombay at Mumbai Writ Petition No.4386

of  2001  whereby the  Division  Bench  of the  High

Court dismissed the said writ petition filed by

appellants herein.  1

2. Though the controversy involved in this appeal

is short,  in order to appreciate as to how it arose, it

is necessary to set out its background facts in detail

infra. The facts are stated from the SLP paper books

and the List of Dates furnished by the parties.

3. The appellants herein are the writ petitioners

and the respondents herein are the respondents in

the writ petition out of which this appeal arises.

4. The dispute relates to a property, which is

situated at Survey No.417, Bungalow  No.17, Dr.

Coyaji Road (formerly known as “Elphinstone Road”)

Pune­411001. The property consisted of a  main

bungalow, a cottage, outhouses, garages, and  an

open plot of land (garden) admeasuring around 1.52

acres (hereinafter referred to as “the suit property”).

5. One Burjorji Goostadji and Cooverbai Homi

Karani were the owners of the suit property. They

sold the suit property to one Mr. Mohammad

Hajjibhoy by indenture of conveyance dated

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01.03.1920  pursuant to the order of the  District

Judge made on a  Misc.  Application No.5 of  1919

granting sanction for the sale in favour of  Mr.

Mohammad Hajjibhoy.

6. Mr.  Mohammad Hajjibhoy then sold  the suit

property to one  Mr.  Kaihosrou  Sorabji Framji by

indenture of conveyance dated 28.11.1923.  Mr.

Kaihosrou Sorabji  Framji then  in  turn  leased out

the suit property on 10.10.1929 to the Government

of India for a period of five years on a rent of

Rs.110/­ per 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 possession of the suit

property. However,  Mr. Kaihosrou Sorabji Framji

then executed another lease deed on 19.04.1940 in

favour of the  Government of India for a further

period of five years. In the year 1939, the lessor i.e.

Mr. Kaihosrou Sorabji Framji applied to the

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Cantonment  Board,  Pune  for  giving permission  to

undertake certain building work in the suit

property.   After exchange of some letters, the

Cantonment  Board granted  the permission to  Mr.

Kaihosrou Sorabji Framji.  

8. On 30.04.1941, Mr. Kaihosrou Sorabji Framji

expired leaving behind his son Mr. Kavasji K Framji

who inherited the suit  property.  By  order  dated

08.06.1943, the then Collector, Poona requisitioned

the suit property under Rule 75 A (i) of the Defense

of India Rules and handed over its possession to the

Military Authorities.  

9. However, after three years on 23.03.1946, the

suit property was de­requisitioned and the

possession was handed over back to Mr. Kavasji K

Framji. On 05.08.1948, the Collector again

requisitioned the suit property under Section 5 (1)

of the Bombay Land Requisition Act, 1948.  In this

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order it was mentioned that Mr. Kavasji K Framji is

the owner of the suit property.   

10. Mr. Kavasji K Framji filed Writ Petition

No.2783 of 1983 in the Bombay High Court seeking

inter alia a relief for restoration of possession of the

suit property. By order dated 14.01.1985, the

Bombay High Court  allowed the  writ  petition and

directed restoration of possession of the suit

property to Mr. Kavasji K Framji. The Government

of India, however, did not vacate the suit property

but undertook to vacate it by 30.04.1985.

11. Reverting to the events to complete the

narration of facts in chronology, on 21.01.1971, the

Union of India issued a resumption notice in

relation to the portion of the suit  property  (about

22,168 sq. feet). The  notice  was founded on the

allegations inter alia that the suit property was held

under “old  grant”  which empowered the  Union  of

India to resume the subject land. The notice

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contained that on the expiry of 30 days period after

its service, all private rights, and interest of  Mr.

Kavasji K Framji would be ceased.   The notice

offered to Mr. Kavasji a sum of Rs.4765/­ by way of

compensation towards the value of various

structures standing on the subject land.   A cheque

of Rs.4765/­ was sent to Mr. Kavasiji K Framji by

letter  dated  23.01.1971 who, in turn,  declined to

accept the said amount and sent his reply on

27.01.1971 objecting therein to the notice and its

contents.  

12. Felt aggrieved by the notice and the letter,  Mr.

Kavasji K Framji filed  Writ Petition No.364/1971  in

the Bombay High Court challenging both the notice

and  the letter.  The writ  petition  was filed  on  the

allegations inter alia that the subject land was a free

hold tenure and was never held by Mr. Kavasji  K

Framji under any Grant or Licence from the Union

of India  or from any  department  of the  Union  of

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India and hence it is not resumable at the instance

of the Central Government.

13. Besides  Mr. Kavasji K Framji, several other

persons including one person namely Mr. PT

Anklesaria also got similar notices from the Union of

India in relation to their land.   Mr. PT Anklesaria,

Mr. Kavasji K Framji and others felt aggrieved and

they filed writ petitions (SCA No.1286/1972) in the

Bombay  High Court questioning the legality and

validity of the notices sent to them by the Union of

India.

14. By the judgment/order dated 05.02.1979 in

Phiroze  Temulji  Anklesaria  vs.  H.C.  Vashistha,

AIR 1980 Bombay  9, the  High Court  allowed  the

writ petition and declared the notice as illegal and

issued without authority of law and accordingly

restrained the Union of India from giving any effect

to the impugned notice.  The High Court held inter

alia as under:

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“26.  On a consideration of  all the  material that has been placed before us by the petitioner  as  well  as the respondents, it is clear to us that there is no evidence whatsoever of the Government's right to resume the land in possession of the petitioners; there is no evidence of the terms under which that right of resumption, if any, could be exercised and most important, there is no evidence  whatsoever of the right or power of the Government to acquire the structure standing upon the land in question by determining arbitrarily or unilaterally its compensation. All these three rights­­the right of resumption, the right to resume upon particular terms and the right to take possession of the houses situated on the land which are mentioned in the impugned notice ­­ are found to be non­existing. The impugned notice, therefore, is patently without any authority of law and is not supportable by the terms of the grant which itself has not been proved.”

15. The Union of India felt aggrieved and filed

appeals before the Division Bench of the High Court

(Special Civil Application No.364/1971). The

Division Bench dismissed the appeals in the case of

Kavasji Kaikhoshrou Framji vs. D.Krishnamunny

with the following observations:  

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“5…….The respondents have also raised  two preliminary contentions  as to the maintainability of  the petition viz., (1)  that the petitioner had not established his title to the property to enable him to maintain the petition and (2) that the  petition involved disputed questions of facts and law as to title and therefore the court should not determine the same in a petition under Art.226 of the Constitution but direct the petitioner to file a suit for that purpose.

We find that in this case all the contentions raised and submissions  made by both the sides are the same as those made in Special Civil  Application No.1286 of 1972.  In that petition, by our reasoned judgment delivered on 5­2­1979, we have negatived the respondents’ said contentions and held accepting  the contentions  of the petitioner that the resumption  by  the  Government  of the petitioner’s land and bunglow were without  any  authority  of law  and  therefore the impugned notice  was invalid.   On the very same reasoning in this case also we negative all the contentions of the respondents  and  uphold the  contentions  of the petitioners inter alia that the resumption of the petitioner’s land by the Government was without any authority of law and therefore the impugned notice was invalid.”

16. In all, 14 special leave petitions were filed by

the Union of India in this Court against the

judgment/order of the High Court.

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17. It may here be mentioned that in the

meantime,  Mr.  PT  Ankelesaria  had also filed  civil

suits  in the Court of  District Judge, Poona in the

light of observations  made by the Bombay  High

Court in (AIR 1980 Bombay page 9) and prayed for

grant of relief of possession of the subject land.  The

District Judge, Poona decreed these suits in

plaintiff’s favour.   The Union of India felt aggrieved

and filed First Appeals in the Bombay High Court

whereas the plaintiff filed cross­objections in these

appeals (608­621/1980).  These appeals  were  later

transferred to this Court at the instance of the

Union of India for their disposal and were re­

numbered as (67­72/1985 and 11­12/1987).   

18. By consent order dated 20.07.1988, this Court

remitted the appeals to the Bombay High Court for

their disposal as directed therein. The order reads

as under:  

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“2.  While  considering  the  case, if the  High Court finds that the trial Court or the first appellate Court has placed reliance or made any  reference to the  aforesaid judgment  of the Division Bench, it shall ignore that judgment, to that extent, and the High Court shall decide the matter afresh in accordance with law without taking into consideration or being influenced by the aforesaid judgment of the Division Bench.

3.  The  parties  will be  at liberty to adduce additional evidence before the High Court within the period fixed by the High Court.

4. The High Court will make every effort to dispose of the cases within six months from the date of the receipt of the record.”

19. The remaining appeals were disposed of by

another order dated 25.03.1992 of this Court, which

reads as under:  

“The Appeals are dismissed as infructuous in terms of the signed order placed on the file.”

20. The aforesaid order dated 25.03.1992 was

later recalled by this Court on a review petition filed

by the Union of  India by order dated 13.01.1995.

The Review Petition was allowed by this Court on

the ground that the consent order was passed only

in relation to Mr. PT Ankelesaria’s case by which his

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appeals alone were remitted to the High Court for

their disposal, whereas the other appeals could not

have been dismissed as having rendered

infructuous in the light of the said order.

21. In the  meantime,  Mr.  Kavasji  K  Framji  died

and his legal representatives (appellants herein)

were brought on record of the case to continue the

lis.   

22. This Court then by order dated 04.08.1998

disposed of the aforementioned appeals after

recording the statement of the Solicitor General of

India in the following terms:

“Learned Solicitor General states that the Union of India  would seek dispossession  of the respondent­occupants from the properties involved, in  accordance with  law and if need be, through a Civil Court by filing suit.   In case such steps are taken, any observations made by the High Court which would tend to defeat the remedies sought would not stand in its way.   On such stance of the Union of  India,  Civil  Appeals as also the special leave petitions stand disposed of accordingly.”

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23. It is with these background facts which began

from 01.03.1920 and ended with the order of this

Court passed on 01.08.1998, Respondent No.2­

Estate Officer issued a notice on 31.07.2001 under

Sub­(1) and Clause (b) (ii) of Sub­Section 2 of

Section 4 of the Public Premises (Eviction of

Unauthorized Occupants) Act, 1971 (for short “the

PP Act”)  to the appellants.  The present appeal  is

concerned with the legality and correctness of this

notice.  

24. The notice in question  was founded on the

allegations  inter alia  that the appellants are in

unauthorized occupation of the public premises

mentioned in the schedule in the notice i.e the suit

property and therefore the appellants should vacate

the suit property.  The contents of the notice read as

under:  

 “Whereas  the  nature  of  Holder’s rights  on the land is limited only to its occupancy, therefore, being the property of the Govt. the land is liable to be resumed, in terms of

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conditions obtaining under the old grant terms.   Accordingly the Govt. of India, Ministry of  Defence resumed the land and building after giving one month’s notice vide Order no.701/71/L/L & C/70/12030/D (lands) 21st  January 1971 on payment of Rs.4,765/­ (Rupees Four Thousand Seven Hundred Sixty Five only) towards resumption cost  of  authorized super  structure  standing thereon which has been accepted by you, albeit, under protest.”

25. The appellants felt aggrieved by the issuance of

the aforementioned notice to them by Respondent

No.2 and filed a writ petition in the High Court of

Bombay questioning its legality and correctness and

sought its quashing. The appellants challenged the

notice  on  several factual  and  legal  grounds  as is

clear from the grounds enumerated in the writ

petition.

26. The respondents filed their counter and

defended  issuance of the  notice to the  appellants

including its contents. By impugned order, the High

Court  dismissed  the  writ  petition  and upheld the

issuance of notice to the appellants under the PP

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Act, which has given rise to filing of this appeal by

way of special leave in this Court by the

unsuccessful writ petitioner.

27. Heard  Mr.  Darius  Khambata, learned senior

counsel for the appellants and  Mr. Aman Lekhi,

learned ASG for the respondents.

28. Mr. Darius Khambata, learned senior counsel

appearing for the appellants (writ petitioner) has

mainly argued the following eight points.  

29. His first submission was that the High Court

erred in  dismissing the  writ petition  and thereby

erred in upholding the impugned notice issued

under Section 4 of the PP Act.  

30. His second submission  was that keeping in

view the  backgrounds facts stated above coupled

with the orders passed by the High Court and this

Court in judicial proceedings, which emanated from

these facts,  it  is  prima facie  clear that respondent

No.2 ­  Estate  Officer  had no  jurisdiction over the

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suit property for invoking his powers under Section

4 of the PP Act against the appellants for their

summary eviction and treating them to be

unauthorized occupants of the suit property.

31. In other words, the submission was that the

facts stated above would, in no uncertain terms, go

to show that the suit property never belonged to the

Union of India and on the other hand it all along

belonged to the appellant’s predecessors and then to

the appellants and therefore respondent No.2 ­

Estate Officer had no jurisdiction to treat the suit

property to be belonging to the Union of India for

initiating proceedings against the appellants for

their summary eviction under the PP Act.

32. His third submission was that from the facts

narrated above, it is  clear that there does exist  a

“bona fide dispute” between the appellants and the

Union of India (respondent No.1) in relation to the

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suit property as to who is its real owner ­ the

appellants or the Union of India.  

33. According to the learned counsel, in a

situation  where there arises a  bona fide  dispute

between the two rival claimants over a property

about their ownership such as the one which has

arisen in the case at hand, the remedy of the parties

lies in filing a civil suit in the civil court and seek a

declaration of their ownership over the property in

accordance with law but not to take recourse to any

summary remedy to evict a person, such as the one

done by the respondents under the PP Act against

the appellants only because one of the rival

claimants, i.e., respondent No.1 happens to be the

Union of India.   

34. His fourth submission  was that, respondent

No.1 through their counsel (Solicitor General)

having made a statement in this Court on

04.08.1998, that respondent No.1 (Union of India)

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would take steps in filing civil suit in the Civil Court

against the appellants for their dispossession from

the suit property, and this Court disposing of the

appeals of  the Union of India in the light of  such

statement, respondent No.1 is bound by their own

statement. It  is therefore, urged that the Union of

India must take recourse to the remedy of filing civil

suit against the appellant in relation to the suit

property in the civil court, which is otherwise a

proper remedy available in law for claiming the

relief.   

35. His fifth submission was that even otherwise,

looking to the nature of documents filed by the

appellants and the manner in which the appellants

have traced their title to the suit property, the

appellants could not  prima facie  be regarded as

trespassers in the suit property and nor could they

be regarded as the persons in its unauthorized

occupation by respondent No.1 (Union of India) so

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as to empower them to take recourse to the

provisions of the P.P. Act.  

36. In other words, the submission was that the

documents relied upon by the appellants  prima

facie proved that the appellants were/are and have

all along been the owners of the suit property to the

exclusion of all persons including respondent No.1

(Union of India) and, therefore, no one has a right to

disturb their long established possession over the

suit property except by following the “due process of

law”.

37. His sixth submission was that the provisions

of the PP  Act are  made applicable only to those

properties  which are admittedly belonging to the

Central Government or the State Government as the

case may be and therefore proceedings under the PP

Act can be initiated against any person when he is

found to be in its unauthorized occupation without

any lawful authority from its real owner i.e. the

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Central/State  Government.  Such  is  not the  case

here.

38. His seventh submission was that, if

respondent No.1 (Union of India) claims themselves

to be the owner of the suit property (which they are

not), then as urged earlier, their remedy lies in filing

civil suit in the Civil Court and establish their claim

of ownership over the suit property  qua  the

appellants in terms of the order of this Court dated

04.08.1998 and recover possession of the suit

property from the appellants.     

39. His eighth submission was that since the

appellants succeeded in the High Court in the first

round of litigation against respondent No.1 (Union

of India) wherein the High Court quashed the

resumption notice dated 21.01.1971 by order dated

05.02.1979  (AIR  1980 Bombay  9), this  order  still

continues to hold good because none of the finding

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recorded therein are either set aside or modified by

this Court by its order dated 04.08.1998.

40. Learned counsel while elaborating his

aforementioned submissions placed reliance on the

decisions in Express Newspapers vs. U.O.I., (1986)

1 SCC 133, State of Orissa vs. Ram Chandra Dev,

AIR 1964 SC 685, Western Coalfields Ltd. & Anr.

vs. Ballapur Collieries Company & Ors. (judgment

dated 11.12.2018 in C.A. Nos.4487­4488/2009),

M/s. Ballapur Collieries Company & Ors. vs.

Estate Officer & Ors.  (Judgement dated

22.01.2007 of the Bombay High Court(Nagpur

Bench) in Civil Revision Application No.801 of 2002

and 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  Krishna  Rao,

(1982) 2 SCC 134 and  State of Rahasthan vs.

Padmavatidevi, 1995 Suppl(2) SCC 872.

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41. In reply, learned Additional Solicitor, Mr.

Aman Lekhi while supporting the reasoning and the

conclusion of the High Court in the impugned order

contended that none of the submissions urged by

the learned counsel for the appellants have any

merit.  

42. It was his submission that having regard to the

previous factual history, it does not take away the

jurisdiction of the Estate Officer under the PP Act to

issue notice under Section 4 of the PP Act and since

the suit property belonged to the Union of India, a

notice under Section 4 of the PP Act could always be

issued by respondent No.2 and in such a situation,

the remedy of the appellants would be to submit to

the authority of the Estate Officer and file reply to

enable the Estate Officer to proceed with the matter

on merits and pass appropriate order.  

43. In other words,  his submission was that the

Estate  Officer possesses the jurisdiction to issue

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notice in question and also possesses a jurisdiction

to hold an inquiry under the Act in relation to the

disputes sought to be raised by the appellants and

therefore the appellants should have submitted to

the jurisdiction of the Estate Officer rather than to

pursue the extraordinary remedy of filing the writ

petition under Article 226 of the  Constitution of

India.  It  is these submissions, which the learned

Additional Solicitor General elaborated while

opposing the appeal.      

44. Having heard the learned counsel for the

parties and  on  perusal of the record  of the case

including the written submissions, we find force in

the submissions urged by the learned counsel for

the appellants (writ petitioners).

45. Before we examine the facts of the case, it is

necessary to take note of the law, which deals with

the issues arising in this Case. Indeed, if  we may

say so, it is fairly well settled.

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46. This Court (Three Judge Bench) has succinctly

dealt with the issues arising in this case in Express

Newspaper Pvt. Ltd. & Ors.   vs. Union of India &

Ors. (1986) 1 SCC 133.  

47. Though, in  Express  Newspaper  case (supra)

several other issues relating to Fundamental Rights

conferred on the citizens under Article 19 (1) (a) and

(g) of the Constitution and its violation qua State fell

for consideration and were decided, this Court was

also called upon to decide the legality and

correctness of the notice issued by the Government

of India through their officers  in their capacity as

the lessors of the land in question demanding

therein a right of  re­entry under the terms of the

lease deed on the demised land from the lessee (writ

petitioner of the case).  

48. It is this issue, which was extensively dealt in

the context of civil law  as  also the special laws,

which provides for taking recourse to the summary 2

remedy by the State to take possession of the State

land from its occupants. The learned Judge A.P. Sen

J. speaking for the Bench in his inimitable style of

writing  answered  the  question  in paras  86/87 as

under:

“86. The  Express Buildings constructed by Express Newspapers Pvt. Ltd. with the sanction of the lessor i.e. the Union of India, Ministry of Works and Housing on plots Nos. 9 and 10,  Bahadurshah Zafar Marg demised on  perpetual lease by registered lease­deed dated March 17, 1958 can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e). That being so, there is no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under Section 5(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 nor has the Estate Officer any authority or jurisdiction to direct their eviction under sub­section (2) thereof by summary process. Due process of law in a case like the present necessarily implies the filing of suit by the lessor i.e. the Union of India,  Ministry of Works & Housing for the enforcement of the alleged right of re­entry, if any, upon forfeiture of lease due to breach of the terms of the lease.

87. Nothing stated here should be construed to  mean that the  Government  has  not the power to take recourse to the provisions of

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the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 where admittedly there is  unauthorised construction by a  lessee or by any other person on Government land which is public premises within the meaning of Section 2(e) and such person is in unauthorised 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 conclusion

reached by Justice A.P. Sen on this question and

supplemented their individual concurring reasoning

in the following words:

“Venkataramiah, J.— I have gone through the judgment which my learned Brother Justice A.P. Sen has just now delivered. ………………………………………………………………

202. The rest of the questions relate truly to the civil rights of the parties flowing from the lease­deed. Those questions cannot be effectively disposed of in this petition under Article 32 of the Constitution. The questions arising out of the lease, such as, whether there has been breach of the covenants under the lease, whether the lease can be forfeited, whether relief against forfeiture can be granted etc. are foreign to the scope of Article 32 of the Constitution. They cannot be decided just on affidavits. These are

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matters  which should  be tried in  a regular civil proceeding. One should remember that the  property  belongs to the  Union  of India and the rights in it cannot be bartered away in accordance with the sweet will of an officer  or a  Minister  or  a  Lt.  Governor  but they should be dealt with in accordance with law. At the same time a person who has acquired rights in such property cannot also be deprived of them except in accordance with law.  The stakes in this case  are  very high for both the parties and neither of them can take law into his own hands.

205. I allow the  petitions  accordingly.  The costs of Petitioner 1 shall be paid by the Union Government and the Lt.  Governor  of Delhi. There shall be  no order as to costs against the other respondents. The other petitioners shall bear their costs.”

“R.B. Misra, J.— I have perused the judgment prepared by brother Justice A.P. Sen as also the judgment of brother Justice E.S. Venkataramiah. While I agree that the impugned notices threatening re­entry and demolition of the construction are invalid and have no legal value and must be quashed for reasons  detailed in the two judgments, which I do not propose to repeat over again. I am of the view that the other questions involved in the case are based upon contractual  obligations between the parties. These questions can be satisfactorily and effectively dealt with in a properly instituted proceeding or suit and not by a writ petition on the basis of affidavits which are so discrepant and contradictory in this case.

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

50. At this stage, it is necessary to deal with one

objection raised by learned Additional Solicitor

General on the aforementioned statement of law laid

down in Express Newspaper case (supra).  

51. The objection of learned counsel for the

respondent was that the view expressed by A.P. Sen

J. in Paras 86­87 could at best be regarded as his

own view but not the view of the Court by majority

because other two learned Judges (E.S.

Venkataramiah J. and R.B. Mishra J.) did not

express any opinion on this question. It is for this

reason the learned counsel submits that this Court

should not place any reliance on the statement of

law laid down in Paras 86­87.

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 the Queen's Bench 2

reported in 1889 (Vol. XXIV) page 117 (The

Guardians of the Poor of the West Derby Union

vs.  The  Guardians  of the  Poor of the  Atcham

Union) on this subject which was rightly relied on

by the learned counsel for the appellants in answer

to this question.

53. The question arose before the Queens Bench

in The Guardians case (supra) as to how the Court

should read a decision to find out the  ratio

decidendi  laid down in the decision when such

decision is delivered by the Bench of more than one

Judge (as in that case by four Judges of the House

of Lords) and especially when all the Judges have

authored their individual opinions on the subject.

54. Lord Esher M.R. in his distinctive style of

writing succinctly explained this question in the

following words:

“The question is, what is the true construction of the 35th section of the Act of Parliament which is before us, and, when we

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have got at the true construction, what is the application of it to this case?............................................................ The House of Lords heard the cases, and did not give judgment at once, but considered the matter carefully, and four of the learned judges in the House of Lords gave judgment. Now we know that each of them considers the matter separately, and they then consider the matter jointly, interchanging their judgments, so that every one of them has seen  the judgments  of the  others.   If they mean to differ in their view, they so openly when they come to deliver their judgments, and if they do not do this, it must be taken that each of them agrees with the judgments of the others.

We have then four judgments.   The  most elaborate of these is, no doubt, that of Lord Watson; but Lord  Watson’s judgment  must have been read by the Lord Chancellor, and the Lord Chancellor must have discussed with Lord Watson whether he agreed with or not, and he must have agreed with it.   Lord FitzGerald in  terms,  says,  “I  have read the judgment of  Lord Watson,  and I  agree with it;” that is, he agrees not only with the result but  with the  mode in  which the result is arrived at.   Lord Macnaghten had read Lord Watson’s judgment, and he does not attempt to express the smallest difference of opinion about it; he adopts the reasoning of Lord Watson and agrees with it, but he adds another reason of his own.

What is import to­day is  what is the view taken by the House of Lords of the interpretation of the third part of  the 35th section.   It is plain that Lord  Watson  has

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taken a distinct and clear view, and has stated it clearly, of what is the effect, to a certain extent at all events, of the third clause…………………………………………………….. I am clear that they decided the point which is before us: that Lord  Watson’s judgment deals with it most specifically, that the judgment  is really  agreed with by the Lord Chancellor and by Lord FitzGerals, and by Lord Macnaghten, but that Lord Macnaghten has also given another reason for coming to the same conclusion.”  

55. The other two learned Judges Lindley LJ and

Lopes LJ agreed with Lord Esher M.R.  

56. Keeping  in view the reasoning of  Lord Esher

M.R.,  when we examine the statement of law laid

down  in  Express Newspaper  decision  (supra),  we

are of the considered view that the reasoning of A.P.

Sen  J. contained in Paraa  86­87 is the law laid

down on behalf of all the three Judges.   It is a law

by  majority and is thus a law laid  down  by the

Court under Article 141 of the Constitution.

57. It is for the reason that first, though the lead

judgment was authored by A.P.  Sen J., the other

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two Judges concurred with the view and the

reasoning of A.P. Sen J. Second, both the

concurring  Judges  also  expressed  their individual

views on the question on the same lines on which

A.P. Sen J. expressed his view and the Third, there

is no dissent inter se  Lordships on any issue much

less on the issue with which we are concerned in

this appeal.  

58. It is for these reasons, we are of the considered

view  that law  laid  down  in the lead judgment in

Express Newspaper  (supra) is the law by three

Hon’ble Judges who constituted the Bench and thus

binds all the  Courts in the  country  under Article

141 of the  Constitution. It satisfies the test laid

down by Lord Esher M.R. in the case of  The

Guardian (supra).

59. The question involved in  Express Newspaper

case (supra) in relation to remedy of the State  qua

person in possession of the land was again 3

considered by a Bench consisted of three Judges in

a case reported in State of Rajasthan vs. Padavati

Devi [supra].     

60. In that case also, the question arose as to

whether the State Government can take recourse to

a summary remedy of eviction of a person under the

State Revenue Laws from the land when such

person raises a bona fide dispute about his right to

remain in occupation over such land. Their

Lordship held that in such a situation, the

summary remedy to evict such person under the Act

couldn’t be resorted to.  

61. Justice  S.C.  Agrawal  speaking  for the Bench

held in Para 6 in the following words:

“6. As noticed earlier Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case  where the person in occupation raises  bona fide  dispute about  his right to remain in occupation over the land. Dealing with similar provisions contained in Section

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6 of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Govt. of A.P. v. Thummala Krishna Rao1 has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are  in unauthorised occupation of  any  land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter 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 the  Constitution  Bench decision of this  Court

wherein this Court after examining and upholding

the constitutional validity of the PP Act in Kaiser­I­

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Hind Pvt. Ltd.  vs.  National Textile Corp.

(Maharashtra North) Ltd.  [(2002) 8 SCC 182]

reiterated the view taken by this Court in an earlier

decision  of  Northern India  Caterers (P)  Ltd.  vs.

State of Punjab (AIR 1967 SC 1581) that the PP Act

does not create any new right of eviction but it only

creates a  remedy  for  a  right  which already exists

under the general law.  In other words, it was held

that it only  provides a remedy  which is speedier

than the remedy of a suit under the general law.  

64. Keeping in view the statement of law laid down

by this  Court in cited decisions  supra,  when  we

examine the facts of the case in hand, we have no

hesitation in holding that the appellants have raised

a bona fide dispute on the question of ownership of

the suit property  qua  respondent  No.1 (Union of

India).  

65. A fortiori, in such case, respondent No. 2 has

no jurisdiction to invoke the powers under section 4 3

of the PP Act by resorting to a summary procedure

prescribed in the PP Act by sending a notice under

Section 4 of the PP Act for 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  their  support, in  no uncertain

terms, establish that there exists a  bona fide  long

standing dispute as to who is the owner of the suit

property ­ the appellants or Respondent No.1 (Union

of India).  

67. Second, respondent  No.1 itself  admitted  that

there exists a  bona fide  dispute between the

appellants and respondent No.1 (Union of India)

over the suit property involving disputed questions

of facts (see Paras 7, 8 & 18 of the Review Petition

filed by Respondent No.1 in Civil Appeal Nos.608­

612 against the appellants in respect of suit

property in this Court).

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68. Third, respondent No.1 (Union of  India)  itself

stated in this  Court in earlier round  of litigation

while disposing of their Civil Appeal Nos.609, 611­

613,  614 and  621 of  1980  that they  would seek

dispossession of the appellants from the property in

question in accordance with law and, if need be, by

filing  civil suit in the Civil Court. The respondents

cannot now be permitted to go back from their

statement and take recourse to a remedy of

summary procedure under the PP Act, which is

otherwise not available to them.

69. Fourth, this Court while granting special leave

to appeal on 03.08.2009 had also granted liberty to

respondent  No.1 (Union  of India) to file civil suit

against the appellants, if they are so advised. It was,

however, not resorted to.

70. Fifth, the effect of quashing the resumption

notice dated 21.01.1971 issued by the respondents

by the High Court vide order dated

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05.02.1979/06.02.1979 in relation to the suit

property was that respondent No.1 (Union of India)

was not entitled to resort to any kind of summary

remedy to evict the appellants from the suit

property not only under the Bombay Land

Requisition  Act, 1948  but  also  under the  PP  Act

because the PP Act also provides similar summary

remedy of eviction.

71. Sixth, the Civil Court alone could try and

decide the question of declaration of ownership of

any immovable  property  between the  parties and

such  disputes could  not be decided in summary

proceedings under the PP Act.

72. This takes us to examine another question

raised by the respondents as to whether judgment

rendered by the Bombay High Court dated

06.02.1979 stood merged in the order of this Court

dated 04.08.1998.  In our view, it does not merge.

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73. In our  view, the  principle  of  merger is fairly

well settled. For  merger to operate, the superior

court must go into the merits of the issues decided

by the subordinate court and record finding/s one

way or other on its merits. If this is not done by the

superior court, a plea of merger has no application

in such a case and the order of subordinate court

would continue to hold the field (see Shanmugaval

Nadar vs. State of Tamil Nadu [1989 (4) SCC 187].

74. In our view, this court while disposing of the

appeals by its order dated 04.08.1998, did not go

into the  merits of the various contentions  which

were decided by the High Court in its order dated

06.02.1979 and disposed of the appeal on the

statement  made by the respondents through the

Solicitor  General that respondent  No.1 (Union of

India) would take recourse to the remedy of the civil

court by filing a civil suit.   

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75. Indeed, in the light of such statement made by

the respondents (who were appellants in the

appeal), which resulted in disposal of their appeal,

the respondents themselves did not call upon this

Court to examine the merits of the issues raised by

them  in their  appeals. In  such  a  situation, there

was no occasion for this Court to apply the mind to

the merits much less to record any finding on any of

the issues arising in the appeal. In this view of the

matter, the principle of merger could not operate.

76. Now coming to another argument, the learned

counsel for the  respondents  contended  that there

lies a distinction between the two types of Tribunals

­ one which exercises powers only when it is shown

that certain state of facts exist and other which has

jurisdiction to determine  whether the preliminary

state of facts exists as well as it has the jurisdiction

to proceed further to do something more as

explained in the case reported in  Chaube Jagdish

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Prasad vs. Ganga Prasad Chaturvedi  1959 (supp)

1 SCR 733 pages 743­744.  

77. It is on the basis of this submission, learned

counsel contended that the Estate Officer has

jurisdiction to examine the facts of this case in

Section 4 proceedings under the Act.

78. We do not agree. In our opinion, once the

Constitution  Bench in the case of  Kaiser­I  Hind

(supra) after examining the provisions of the PP Act

has laid down the law as to how the PP Act operates

and needs to be applied, all the issues arising under

the PP Act has to be examined in the light of the law

which deals with the PP Act.  

79. The law laid down in Chaube Jagdish Prasad

(supra) relied on by the learned counsel for the

respondents  was entirely  on different  context  and

has no application for deciding the issue involved in

this appeal.  

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80. Yet, last submission of the learned counsel for

the respondents that the writ petition was not

maintainable to challenge the notice issued under

Section 4 of the PP Act has no merit and deserves

rejection.  Suffice it to  say, firstly, the  High Court

having entertained the writ petition and dismissing

it on  merits, this objection does not survive for

consideration and second, in the light of long line of

decisions on this question, a writ petition to

question the legality and correctness of the notice

issued under any Act is no bar in entertaining the

writ petition in appropriate case.  The case at hand

was regarded as an appropriate case for

entertaining the writ  petition  [see ­  Siemens Ltd.

vs.  State of Maharashtra  2006  (12)  SCC 33 and

Whirlpool Corporation vs. Registrar of Trade

Marks  (1998) 8 SCC 1].

81. Before parting, we consider it apposite to

mention that we have set out the facts of the case 4

only for the  purpose of  appreciating and deciding

the legal  issue arising in the appeal namely ­ the

validity of issuance of notice under Section 4 of the

PP Act and not beyond it.   We have not examined

the rival claims of the parties over the property in

question on merits and nor have recorded any

finding on the rival claims.  

82. In this view of the matter, whenever the

question of  ownership  of the rights of the  parties

will  be gone  into  by the concerned court, it  shall

decide the said question/s strictly on the basis of

pleadings and the evidence adduced by the parties

in accordance with law uninfluenced by any

observations made by the High Court and this

Court.   

83. In the light of the foregoing discussion, the

appeal  succeeds and  is  accordingly  allowed.  The

impugned order is set aside. As a consequence, the

writ petition filed by the appellants is allowed and

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the notice dated 31.07.2001 issued by respondent

No.2 (Annexure P­34) impugned in the writ petition

is quashed by issuance of writ of certiorari.      

   …………………………………J.       [ABHAY MANOHAR SAPRE]

....…..................................J.              [DINESH MAHESHWARI]

New Delhi; March 15, 2019.        

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