PETITIONER: UNION OF INDIA AND ORS. Vs. RESPONDENT: HARISH CHAND ANAND DATE OF JUDGMENT26/07/1995 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J) CITATION: 1996 AIR 203 1995 SCC Supl. (4) 113 JT 1995 (6) 144 1995 SCALE (4)586 ACT: HEADNOTE: JUDGMENT:
O R D E R
This is an appeal by Certificate granted by the High
Court by order dated December 14, 1978 with a question as
under :
“Whether the only right of the grantee
is to claim compensation and whether the
Government can take possession at any
time after expiry of one month in view
of Governor General’s Order No.179 dated
12th September, 1836?”
In view of the Certificate granted by the High Court
under Art.133(1) of the Constitution, the question arises
whether the State is entitled to resume land granted under
s.3 of Government Grant Act, 1895 without prior
determination of the amount for the structure. Though the
respondent has been served, he has not appeared, either in
person or through counsel. We have taken the assistance of
counsel for the appellant and we have perused the judgment
of the Delhi High Court reported in Sh. Raj Singh v. Union
of India, (AIR 1973 Delhi 169) and the Division Bench
judgment of the High Court of Allahabad reported in Bhagwati
Devi v. President of India, (1974 (72) Allahabad Law
Journal, 43) which was relied on and followed by the
Division Bench in this case to hold that it is a condition
precedent that the State should give notice to the
respondent, determine the compensation and then resume the
property granted to the respondent. The question, therefore,
is whether it is a condition precedent for the Government to
resume the land only after determination of the compensation
and payment thereof or on the issuance of the notice as
required under the Grant and on expiry thereof. To
appreciate the contention, it is necessary to look to the
provisions of the Grant itself. Under s.3 of the Act, the
Governor General in Council exercised the power and granted
licence to the respondent to erect the structure on the
Government land. The conditions of the Grant are :
“No ground will be granted except
on the following conditions, which are
to be subscribed by every grantee as
well as by those to whom his grant may
subsequently be transferred:-
1st : The Government to retain the
power of resumption at any time on
giving one month’s notice and payment of
the value of such buildings as may have
been authorised to be erected.”
The other clauses are not relevant for the purpose of
this case. Hence they are omitted.
In the Order No.179 of 1836, the Governor General in
Council had issued the regulation empowering the Governor
General to rescind authorised orders in force till then and
to substitute for them by regulations. The regulations in
order No. 179 of 1836 are statutory regulations made by the
Governor General in Council in exercise of his statutory
power. The covenants for the Grant clearly empower the
Government retaining its power of resumption at any time.
The conditions precedent are : to issue one month’s notice
and payment of the value of such building as may have been
authorised to be erected.
The Division Bench of the Delhi High Court has left
open the question of mode of determination of the value of
the building to be determined in accordance with the
relevant provisions of the law. The Division Bench of the
Allahabad High Court in Bhagwati Devi’s case, (supra) in
paragraph 7, had held that though the Government is entitled
to resume the land, the grantee is entitled to a prior
opportunity to represent his case before the competent
authority in determination of the value of the building and
for payment of the value of such building resumed by the
State.
It would appear that detailed instructions in that
behalf were made in the Standing Order No.241 which was
produced before the Division Bench of the High Court of
Allahabad in which Military Engineer was instructed to
evaluate the value of the building which was resumed by the
Government for payment of the amount to the erstwhile
licencee. We are not concerned in this appeal as to the
method of valuation. Suffice it to state that the Order
No.241 though does not contemplate of issuing prior notice
to erstwhile licencee whose licence has been determined
under Clause I of the Grant, before determination of the
actual amount, the erstwhile grantee is entitled to a
notice, so that the grantee would be at liberty to place
before the competent authority all relevant material for
determining the value of the building and for payment of the
amount thereof. It is seen that it is not a condition
precedent to determine, at the first instance, the
compensation after giving an opportunity; make payment
thereof and then to resume the property. What is a condition
precedent is issuance of one month’s notice and on expiry
thereof the Government is entitled to resume the land. The
amount is to be determined as required under the relevant
provisions after giving opportunity and which could be done
thereafter. After all, the property would be resumed for
public use and determination of value of the building
errected is a ministerial act and payment thereof is the
resultant consequence. This process would take some time and
if the reasoning of the High Court of Allahabad is given
effect to, it would defeat the public purpose. The view of
the Delhi High Court is consistent with the scheme and
appears to be pragmatic and realistic. The High Court,
therefore, was not right in its conclusion that it is a
condition precedent to determine the amount of the value of
the building in the first instance and payment thereof
before resumption of the property.
The appeal is accordingly allowed, but since the
respondent is not present, without costs.