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     REPORTABLE

             IN THE  SUPREME COURT OF INDIA                      CIVIL APPELLATE  JURISDICTION                                 

CIVIL APPEAL No. 7183  OF 2008                                                                PARMANAND SINGH (D) TH. LRS ..    APPELLANT(S)                   

  Versus

UNION OF INDIA & ANR. ..    RESPONDENT(S)                                                      J U D G M E N T R.F. NARIMAN, J.

1. The  present  case  reveals  a  very  sorry  state  of affairs.  It appears that the ancestors of the appellant were Zamindars, and the appellants claim that they were in possession of the disputed land, which is roughly 5 acres, since 1930.  On 25th July, 1974, proceedings under Section 122-B of the U.P. Zamindari Act were initiated against the appellants on the ground that the said land belonged to the State Government and the Gaon Sabha and that the appellants therefore ought to be evicted.  After the  appellants  filed  their  reply  in  the  aforesaid proceedings,  by  order  dated  25th July,  1974,  the proceedings  were  dropped  and  it  was  stated  that proceedings under Section 180 of the U.P. Tenancy Act be initiated.

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2. On 30th October, 1974, the State Government on behalf of  the  Union  of  India  through  the  Collector  Mirzapur filed a suit being Suit No.1 of 1974-75 under Section 180 of the U.P. Tenancy Act for recovery of possession and damages  against  the  appellants.   The  appellants  filed their written statement and contested the suit.  During the pendency of the suit, a show cause notice dated 24th

February, 1977, was issued by the Defence Estate Officer under the Public Premises Eviction Act under Section 4(1) thereof.  On 11th March, 1977, the appellant replied to the said notice.  On 17th March, 1977 the Defence Estate Officer passed an order under Section 5(1) of the Public Premises Act.  We have gone through the said order, which only states that the respondent was put on notice and their reply was received and considered. Without giving any reason as to why the reply was not acceptable, an order under Section 5(1) of the said Act was made to evict  the  appellants  from  the  said  premises.   On  6th

April, 1977 the State Government allowed the Suit No.1 of 1974-75 to be dismissed in default.

3. Inasmuch as the proceeding under Public Premises Act then  continued,  a  writ  petition  being  filed  by  the appellant which was also disposed of, an appeal which was first dismissed on the ground of delay was then restored by the High Court by order dated 10th May, 1988.  This

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appeal finally dismissed on 10th April, 1990.  This order recorded:

“Further it is clear from the evidence on record that the authorities have taken the possession of the land in question and has further allotted the same to some other ex-servicemen on 7.9.84 and  the  possession  was  also  delivered  to  the allottees.

On the basis of the discussions made above, as well as on the assessment of the evidence  on  record,  I  come  to  the  conclusion that  the  appellant  was  rightly  found  in unauthorized occupatiion by the Defence Estate Officer over the land in question and I do not find any illegality in the proceeding initiated for the eviction of the appellant from the land in question.  I am of the view that the present appeal, being devoid of any merit, is liable to be  dismissed  and  the  impugned  order  dated 17.3.77  passed  by  the  Defence  Estate  Officer under  Section  5(1)  of  the  Public  Premises (Eviction of Unauthorized Occupants) Act, 1971 deserves to be confirmed.

ORDER The  appeal  is  dismissed.   The  impugned

order dated 17.3.77 passed by the Defence Estate Officer,  Bihar  and  Orissa  Circle  Danapur Cantonment  Bihar  under  Section  5(1)  of  the Public  Premises  (Eviction  of  Unauthorized Occupants) Act, 1971 is hereby confirmed.”

4. A  writ  petition  was  filed  against  the  aforesaid order,  in  which  an  affidavit  was  filed  by  one  Sonam Yangdol  in  which  the  deponent  recorded  some  of  the aforesaid facts and also referred to the suit that was filed under Section 180 of the U.P. Tenancy Act.  Without giving the actual date on which the suit was dismissed for default, which we have seen is on 6th April, 1977, the

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deponent of this affidavit went on to state “thereafter proceedings were initiated under the Public Premises Act for eviction on 24th February, 1977.”

5. It is most unfortunate that an impression was sought to be created that it was only after the suit was not proceeded with that proceedings were initiated under the Public Premises Act when the converse was true.

6. The appellants met with the same fate in the High Court, which by its order dated 2nd September, 2005, held against the appellants as follows :

“Notice under Section 4 dated 24.02.1977 was issued to the petitioner and he filed his reply dated 11.03.1977.  Both the documents are on record and they are not denied.  It is only contended  that  a  general  notice  was  served through registered post and reply was also given by post but he was not heard.  A perusal of the notice  shows  it  was  a  specific  notice  to  the petitioner, who gave his reply.  Neither in the reply nor anywhere else the petitioner has sought any  personal  hearing.   In  my  opinion  the petitioner had a reasonable opportunity and the order cannot be challenged on this ground.  The appellate  court  has  considered  this  issue  in detail and has recorded a finding of fact which has not been shown to be perverse.

He has then urged that since a suit under Section  180  of  the  U.P.  Tenancy  Act  had  been filed, which was dismissed in default, parallel proceedings under the Act could not go on.  In my opinion, an order dismissing the suit in default will not help the petitioner and earlier to it the order had already been passed for eviction under the Act and thus, the respondents did not pursue the suit under Section 180.  In any event,

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as considered by the learned District Judge, the petitioner himself had averred in paragraph 1 of the Writ Petition No.11820/1984 that he was only recorded  as  a  non-occupancy  tenant  over  the disputed land, which he admitted was set apart for  military  encamping  ground.   Thus,  the petitioner cannot contend that he had any title to the land.”

7. The  learned  counsel  appearing  on  behalf  of  the appellant has argued before us that, at the very least, the  appellants  were  non-occupancy  tenants  and  not unauthorised  occupants  and  that,  therefore  the  entire proceeding under the Public Premises Act was  non est as the  jurisdictional  fact  of  their  being  “unauthorised occupants” was unwarranted.  He cited before us certain judgments and showed that, in any event, he was not given any  hearing  that  was  mandated  by  Section  5  of  the aforesid Act, nor was he allowed to lead any evidence which showed that he was not an unauthorised occupant.

8. As  against  the  arguments  of  the  appellant,  Shri Yashank  Adhyaru,  learned   senior  counsel  appearing  on behalf of the Union of India, has argued before us that it is clear that the Union of India is the owner of the premises  and  as  such  owner  was  entitled  to  initiate proceedings under the Public Premises Act.  In any event, according to the learned counsel, the possession has been taken of the said land way back in 1974 and a lease given to certain ex-servicemen which continued till the year

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1998.  Ms. Rani Chhabra, learned counsel appeared before us on behalf of the intervenor ex-servicemen, and showed us the lease that was granted in their favour, which she says is continuing even as on date.

9. Having heard learned counsel for the parties, it is first  important  to  set  out  Section  180  of  the  United Provinces  Tenancy  Act,  1939.   Section  180  of  the  Act reads as follows:

[180.  Ejectment  of  person  occupying  land without consent. -(1) A person taking or retaining possession of a plot of land without the consent of the person entitled to admit him to occupy such plot  and  otherwise  than  in  accordance  with  the provisions of the law for the time being in force, shall be liable to ejectment under this section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the  sanctioned  rates  applicable  to  hereditary tenant:

Provided that, notwithstanding the provisions of sub-section  (1)  of  Section  246,  where  such  a person taking or retaining possession is one of the co-sharers whose joint consent is required to bring such suit, he shall not be required to join as plaintiff in the suit.  In such a case, the decree passed in favour of the plaintiff shall be deemed to be in favour of all such co-sharers.

Explanation I. - A co-sharer in the proprietary rights  in  a  plot  of  land  taking  or  retaining possession of such plot without the consent of the whole body of co-sharers or of an agent appointed to act on behalf of all of them, shall be deemed to be in possession of such plot otherwise than in accordance with the provisions of the law within the meaning of this section.

Explanation II. - A tenant entitled to sub-let a plot of land in accordance with the provisions of the law for the time being in force may maintain a

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suit under this section against the person taking or retaining possession of such plot otherwise than in the circumstances for which provision is made in Section 183.

(2) If no suit is brought under this section, or if  a  decree  obtained  under  this  section  is  not executed, the person in possession shall become a hereditary tenant of such plot, or if such person is a co-sharer, he shall become a khudkasht holder, on  the  expiry  of  the  period  of  limitation prescribed for such suit or for the execution of land decree, as the case may be.

Provided  that  where  the  person  in  possession cannot  be  admitted  to  such  plot  except  as sub-tenant by the person entitled to admit, the provisions  of  this  sub-section  shall  not  apply until the interest of the person so entitled to admit is extinguished in such plot under Section 45(f).]

10.   Obviously,  the  suit  was  filed  by  the  State Government on behalf of the Union on the footing that the non-occupancy tenant retained the possession of the plot of  land  without  the  consent  of  the  Union,  and  that, therefore, he was liable to ejectment and to pay damages. Once  that  suit  is  dismissed  for  non-prosecution,  the provisions  of  Section  180(2)  kick  in.   Under  this sub-section,  if no  suit is  brought under  the Section, which must also be understood as a suit being brought and dismissed  in  default,  the  person  in  possession  shall become a hereditary tenant of such plot. The effect in law, therefore, of the dismissal for default of suit No.1 of  1974-75  on  6th April,  1977  is  that  the  appellant's status is that of a hereditary tenant.  This being the case,  the  foundational  jurisdictional  fact  of  the

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appellant  being  an  unauthorised  occupant  in  order  to attract  the  provisions  of  the  Public  Premises  Act  is lacking.  As this is so, all the orders that have been passed by the authorities as well as the High Court are without jurisdiction.  This being the case, it is now important to do complete justice between all the parties. Since, it appears that some portion of the appellants' 5 acres may be in the possession of the ex-servicemen as lessees of the Union of India, we direct as follows:

1)  The khatauni numbers contained at pages 14 and 15 of the paper book shall be handed back to the appellants, if they  are  not  in  possession  of  these  khatauni  numbers already.  If the appellant is in part possession, then the part of which they are not in possession shall be handed back by the respondents within a period of twelve weeks from today.

2)  If it is necessary to displace the ex-servicemen from some part or the entirety of their property in order to hand back the land belonging to the appellants, the Union of India will see to it that equivalent land with an equivalent  lease  will  be  made  available  to  the ex-servicemen, which should also be done within a period of twelve weeks granted.

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12.   With these observations, the judgment under appeal is set aside and the appeal is allowed.

                                     ....................J.                [ROHINTON FALI NARIMAN]                                

                                  ....................J.            [SANJAY KISHAN KAUL]  

   NEW DELHI, AUGUST 31, 2017.    

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ITEM NO.102               COURT NO.12               SECTION III-A                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

 Civil Appeal  No.7183/2008 PARMANAND SINGH (D) TH. LRS.                       Appellant(s)                                 VERSUS UNION OF INDIA & ANR.          Respondent(s)

Date : 31-08-2017 This appeal was called on for hearing today. CORAM :           HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN          HON'BLE MR. JUSTICE SANJAY KISHAN KAUL For Appellant(s) Mr.Akhilesh Kumar Pandey, AOR                     For Respondent(s) Mrs.Rani Chhabra, AOR

Ms. Priyanka Sony, Adv.                     Mr. Yashank Adhyaru, Sr.Adv.

Ms. Alka Agrawal, Adv. Mr. M.K. Maroria, Adv. Mr.D. S. Mahra, AOR

                              UPON hearing the counsel the Court made the following                              O R D E R

The appeal is allowed in terms of the signed reportable judgment.  Pending application, if any, disposed of.

(USHA RANI BHARDWAJ)                            (SAROJ KUMARI GAUR) AR CUM PS                                     BRANCH OFFICER

Signed reportable judgment is placed on the file.