—
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/INHERENT JURISDICTION
CIVIL APPEAL NO. 4983 OF 2009
State of Uttarakhand and Anr. .… Appellants
VERSUS
Ravi Kumar (Deceased) through …. Respondents
LRs and others
WITH
CIVIL APPEAL NO. 4988 OF 2009
WITH
CIVIL APPEAL NO. 4984 OF 2009
WITH
CIVIL APPEAL NO. 4985 OF 2009
Signature Not Verified
Digitally signed by
satish kumar yadav
Date: 2023.05.18
16:38:27 IST
Reason:
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 1 of 67
WITH
CONTEMPT PETITION (CIVIL) NO. 165-168 OF
2007
IN
CIVIL APPEAL NO. 4983 OF 2009
WITH
CIVIL APPEAL NO. 4989-4992 OF 2009
JUDGMENT
Surya Kant, J.
1. The core question that arises for our
consideration in the present set of connected
matters pertains to the ownership of land measuring
183 bigha 8 biswa which is equivalent to 28.56
acres of land, bearing Khasra Nos. 2, 3/1, 3/2, 4 to
28/1, 28/2, to 49 and situated in Village Haripur,
Tehsil Haldwani, District Nainital (hereinafter,
‘Suit Land’).
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 2 of 67
2. Since these appeals arise out of a complex
factual scenario and different sets of legal
proceedings which proceeded in parallel, it would be
appropriate to discuss the same at length before
delving into the issue of law, which require
adjudication before us.
A. FACTS
A.1 THE COMMON FACTS: 1924 SALE DEED, 1967
EVICTION SUIT AND 1978 MUTATION
PROCEEDINGS
3. The genesis of these disputes began on
20.06.1924, when one Mr. John Vaughn, son of Mr.
Charles Vaughn obtained a lease of the Suit Land
(hereinafter, ‘1924 Lease Deed’) from the erstwhile
colonial rulers through the Secretary of State for
India in Council for thirty years on payment of rent
as agreed between the parties. The lease was also
extendable for another thirty years and was subject
to certain conditions, which are reproduced as
follows: –
“X-X-X-X
(a) The lessee to pay the first period of
thirty years the yearly rental of No.183-
6-4 clear of all deductions on the first
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 3 of 67
day of March in each year at the
Haldwani Tehsil or at such other place
as the Deputy Commissioner of Nainital
shall form time to time appoint in this
behalf and also from time to time and at
all times during the continuance of the
said lease pay and discharge all rates,
taxes, charges and assessment of every
description which are now or may at any
time hereafter during the said lease be
assessed, charged or imposed upon the
land hereby demised.
(b) Lessee agree that the said plot of
land will be used for residential
purposes, for poultry farming for
orchards and for vegetable cultivation
only.
(c) The lessee agrees that he will submit
the plan of any building which he wish
to erect or of any existing building
which he has to modify to the Deputy
Commissioner of Nainital for approval
before starting building operations, that
he will complete the sanctioned building
within two years of the receipt of
approval and that he will keep every
building erected by him and also the
Government buildings standing on the
said plot of land and shown on the plan
annexed in good and substantial repair
and condition both externally and
internally.
(d) The lessee agrees that he shall not
claim the benefits which agricultural
tenant and lessees are given in the Tarai
and Bhaber estates.
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 4 of 67
(e) The lessee agrees that he will not
transfer or sublet said plot of land
without the written approval of the
Deputy Commissioner of Nainital.
(f) The lessee agrees that he shall be
responsible for the observance of Estate
rules in force now or at any time
hereafter regarding sanitation, reporting
cattle disease etc.
(g) The lessee agrees that he shall have
no right to any minerals in the aid plot
of land.
(h) The lessee further agrees that if he
dies heirless before the expiry of lease as
also on the expiry of lease, the land
hereby demised and all buildings
standing on the land shall revert to the
lesser without compensation.
(i) The lessee shall have the right to
erect masonry wall not exceeding 4.5
feet in height or a wire fence along the
boundary of the said land hereby
demised.
(j) The lessee shall have the use of a
share of the water when available for
irrigation purposes from the tank fixed
approximately at mile 6 furlong 70 feet
left of the main gailuwar canal, but the
lessor reserve on control over this outlet
which the lessor is empowered to
decrease or close whenever such
decrease or closure is required on
account of short supplies in or on
account of executing repairs, extensions
or improvements canal works etc. and
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 5 of 67
the lessee shall have no right to claim
compensation for any damage done by
such reduction or closer of the water
supply to the said plot of land.
(k) The lessee shall have and
unrestricted right to dispose of the
produce of the land leased to him in any
manner he may choose and the lessee
shall be allowed to clear and use for his
requirements the trees and bushes
standing on the land hereby demised.
(l) If there be any breach by the lessee of
any covenant herein before contained
the Deputy Commissioner of Nainital
may, not withstanding the waiver of any
previous breach by the lessee giving the
Deputy Commissioner of Nainital the
right of re-entry, enter upon any part of
whole of the land hereby demised or of
the buildings standing on the said plot
of land and thereupon the said land and
buildings shall remain to the use of and
be vested in the Secretary of State and
the lessee shall not been titled to any
compensation for any building erected
by him or for any improvements made
by him upon the land demised and this
demise shall absolutely determine.
(m) The Deputy Commissioner of
Nainital agrees to stamp the lease at his
expense.
X-X-X-X”
(Emphasis Applied)
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 6 of 67
4. After the execution of the 1924 Lease Deed
which was registered on 22.08.1925, it appears that
revenue entries were made in favour of one Manohar
Lal, who is said to have purchased the Suit Land
through a sale deed dated 17.11.1947 (hereinafter,
‘Sale Deed’). The same Manohar Lal is also stated
to be the paternal uncle of the primary contesting
respondents before us, namely Virendra Kumar and
Ravi Kumar (hereinafter, ‘Respondents’), as the
relief sought by all the remaining private parties in
connected matters flows from their claim on the Suit
Land. It would be appropriate at this stage to
reproduce the relevant portion of the Sale Deed,
which records the factum of prior permission as
required under the 1924 Lease Deed. The same is as
follows –
“……whereas the vendor has full right to
sell the aforesaid buildings and
constructions with the permission of the
Deputy Commissioner, Nainital for
which the vendor has obtained the
necessary permit from the proper
authorities and mutation has been duly
effected in the name of the vendee on
25.9.47 in the Government records in
the office of the Superintendent, Tarai
Bhabar, Nainital……”
(Emphasis Applied)
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 7 of 67
5. Thereafter, it is to be noted that revenue
records continued to depict the name of the
predecessor of the Respondents as ‘Occupancy
Tenant’ on the strength of the said Sale Deed.
Interestingly, at the expiry of thirty years in 1954, it
is admitted that predecessor of Respondents applied
for renewal and paid enhanced rent as per the 1924
Lease Deed. After that, consolidation proceedings
took place between 1959-1960 wherein revenue
entries remained in favour of Manohar Lal and even
compensation was also awarded for a portion of Suit
Land which was acquired by the military authorities
in 1963.
6. It was not until 1967 that the State filed a suit
for possession of the Suit Land along with the
damages before the concerned District Judge.
During the pendency of the said suit, UP Public
Premises (Eviction of Unauthorised Occupants) Act,
1972 was promulgated and accordingly, the said
suit stood transferred to the Prescribed Authority
under the Act. In the interregnum before the final
adjudication took place before the Prescribed
Authority, it is pertinent to note that Bhumidhari
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 8 of 67
certificates were also issued to the predecessor of
Respondents under the applicable tenancy law by
depositing the amount which was equal to twenty
times the land revenue for the Suit Land.
Eventually, the Prescribed Authority dismissed the
suit on 25.03.1975 as being non-maintainable in
view of the exclusion clause contained in the UP
Public Premises (Eviction of Unauthorised
Occupants) Act, 1972 whereby the lands which were
held by any class of tenure-holder are exempted
from the applicability of the said Act. The State’s
appeal against the said order before the District
Judge was also dismissed on the grounds of being
time-barred and the suit being non-maintainable.
The relevant extract of the District Judge’s order
dated 30.07.1976 is as follows –
“There are document on record to show
that in 1366 Fasli the Respondent were
recorded as Occupancy tenants. Similar
entries exist on the Khatauni for the
year up to 1375 Fasli and in the
Khatauni for 1376 Fasli the
Respondents are recorded Sirdar. The
learned Counsel for the respondents has
referred me to section 2(b) which defines
the expression “Premises”. There are
certain exception mentioned and sub
section (ii) is in respect of land by a
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 9 of 67
tenure holder under the U.P. Tenancy
Act. The land in dispute has to be
excluded from the expression
“Premises” and the prescribed authority
was justified in holding so. The appeal
must, therefore be dismissed.”
(Emphasis Applied)
7. Hence, the suit which was instated in 1967
was never adjudicated on merits per se in respect of
the claim of tenancy by the Respondents, but on the
technical grounds of the bar contained in the UP
Public Premises (Eviction of Unauthorised
Occupants) Act, 1972 as well as on the ground that
the appeal against the Prescribed Authority’s order
was time barred. However, the District Judge’s order
dated 30.07.1976 remained unchallenged and
ultimately, after the demise of Manohar Lal, who
died issueless, mutation proceedings were initiated
in 1978 by the present Respondents on the basis of
a family settlement.
8. While the relevant orders in the said mutation
proceedings have not been made part of the records
produced before us, it is stated that the Tehsildar,
Haldwani passed an order dated 04.07.1978 in
favour of the Respondents. This order was later
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 10 of 67
confirmed by another order dated 30.08.1978
passed by the concerned SDM directing the
Tehsildar, Haldwani to mutate the Suit Land in
favour of Respondents in revenue records. Against
the order of the SDM, the State preferred an appeal
before the Commissioner, Kumaon which was
rejected vide order dated 07.08.1980 and even the
revision application against the same was dismissed
on 31.12.1980. It is pertinent to note that during
the proceedings, a vernacular copy of the order
dated 07.08.1980 was produced before us, which we
will refer to at a later stage.
9. In the end, because of the fact that the
Respondents were successful in the mutation
proceedings, the Pargana Officer, Haldwani passed
an order dated 30.09.1981 accepting the partition
between the concerned Respondents, i.e. between
Virendra Kumar and Ravi Kumar, on the basis of
family settlement. Meanwhile, orders dated
07.08.1980 and 31.12.1980 were challenged before
the Board of Revenue in revision proceedings, but
the same were dismissed via order dated 20.01.1982
with the following observation –
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 11 of 67
“In fact, the challenge which is raised on
behalf of the government, is in respect
of ownership of the land and this matter
cannot be decided finally in the
mutation proceeding. Therefore, the
matter should be proceeded in other
competent court.”
Thus, the issue of ownership again remained
unadjudicated even at this stage.
10. For the ease of analysis, the key events in
these proceedings are summarised as follows –
1967 Eviction Suit
Date Proceedings
10.06.1967 State files eviction suit along
with damages.
1972 UP Public Premises (Eviction of
Unauthorised Occupants) Act,
1972 was promulgated (Hence,
the abovementioned suit
transferred to Prescribed
Authority under the said Act).
25.03.1975 Suit got dismissed as non-
maintainable.
30.07.1976 Appeal against the order dated
25.03.1975 got dismissed as
non-maintainable as well as
time-barred.
1978 Mutation Proceedings
Date Proceedings
04.07.1978 It is stated that the
concerned Tehsildar passed
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 12 of 67
an order recording the
Respondents’ name in
revenue records.
30.08.1978 SDM, Haldwani passed an
order directing concerned
Tehsildar to mutate the
Suit Land in favour of
Respondents (This order is
stated to have been
complied by the Tehsildar).
07.08.1980 Revision/Appeal against
order dated 30.08.1798
dismissed by
Commissioner.
31.12.1980 Revision against order
dated 07.08.1980
dismissed.
20.01.1982 Revisions against orders
dated 07.08.1980 and
31.12.1980 dismissed by
Board of Revenue.
A.2 THE CANCELLATION OF REVENUE ENTRIES AND
RESTRAINT ON SALE OF LAND: CIVIL APPEAL NO
4983 OF 2009 AND CIVIL APPEAL NO 4985 OF
2009
11. The subject matter of these appeals arose from
an order dated 31.12.1981 passed by the District
Collector, Nainital (hereinafter, ‘Expunction
Order’) during the pendency of the revision
proceedings before the Board of Revenue in the
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 13 of 67
abovementioned mutation proceedings. In the said
order, the Collector noted that on perusal of the
revenue records, it was found that after the initial
lease period of thirty years had expired, the
Respondents had illegally gotten themselves
recorded as ‘Bhumidhar’ of the Suit Land in the
revenue records. Accordingly, the Collector directed
the expunction of the revenue entries in favour of
the Respondents and recommended that eviction
proceedings be initiated against them.
12. Against the Expunction Order, the
Respondents preferred a revision before the
Commissioner, Kumaon who passed an interim
order dated 20.01.1982 directing that no revenue
entries should be deleted in light of the fact that the
matter was pending before the Board of Revenue in
mutation proceedings. However, as noted above, the
Board of Revenue dismissed the said pending
revision in the mutation proceedings on the same
date. Consequently, it is stated that despite the
abovementioned interim order dated 20.01.1982 of
the Commissioner, the Tehsildar acted on
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 14 of 67
Expunction Order and proceeded to expunge the
revenue entries in favour of Respondents.
13. Afterwards, on 16.08.1983, the Commissioner,
Kumaon dismissed the revision pending against the
Expunction Order noting that the same was not
maintainable in view of the fact that no provision
provided for revision of an order passed under the
Government Grants Act of 1895 as applicable to the
then State of Uttar Pradesh vide amendment made
in 1960. The relevant provisions after the 1960
amendment to the Government Grants Act of 1895
are as follows –
“2. (1) Transfer of Property Act, 1882,
not to apply to government grants.-
Nothing contained in the Transfer of
Property Act, 1882, shall apply or be
deemed ever to have applied to any
grant or other transfer of land or of
any interest therein, heretofore made
or hereafter to be made, by or on
behalf of the Government to or in
favour of any person whomsoever; and
every such grant and transfer shall be
construed and take effect as if the said
Act had not been passed.
(2) U.P. Tenancy Act, 1939 and Agra
Tenancy Act, 1926 not to affect
certain leases made by or on behalf of
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 15 of 67
the Government.-Nothing contained in
the U.P. Tenancy Act, 1939, or the
Agra Tenancy Act, 1926, shall affect,
or be deemed to have ever affected any
rights, created, conferred or granted,
whether before or after the date of the
passing of the, Government Grants (U.P.
Amendment) Act, 1960, by leases of
land by, or on behalf of, the
Government in favour of any person;
and every such creation, conferment
or grant shall be construed and take
effect notwithstanding anything to the
contrary contained in the U.P.
Tenancy Act, 1939, or the Agra
Tenancy Act, 1926.
(3) Certain leases made by or on
behalf of the Government to take
effect according to their tenor.-All
provisions, restrictions, conditions
and limitations contained in any such
creation, conferment or grant referred
to in Section 2, shall be valid and take
effect according to their tenor; any
decree or direction of a court of law or
any rule of law, statute or enactment
of the legislature, to the contrary
notwithstanding:
Provided that nothing in this
section shall prevent, or be deemed
ever to have prevented, the effect of
any enactment relating to the
acquisition of property, land reforms
or the imposition of ceiling on
agricultural lands.”
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 16 of 67
It must also be highlighted that the
Respondents, against the aforesaid action of the
Tehsildar wherein he expunged the revenue entries
in favor of Respondents, preferred a contempt
petition before the Allahabad High Court, which was
dismissed in limine on 16.08.1986 after the
concerned officials tendered unqualified apologies.
14. Aggrieved by the said order dated 16.08.1983
of the Commissioner, the Respondents filed a
revision before the Board of Revenue, which was
heard by a Single Member who vide its order dated
22.01.1993 (hereinafter, ‘Single Member’s Order’)
set aside the Expunction Order. The Single
Member’s Order noted that the Expunction Order
was not passed under the Government Grants Act of
1895 but under the applicable land revenue laws,
making it susceptible to revisionary jurisdiction. It
furthermore noted that no enquiry report was ever
obtained nor was any opportunity given to
Respondents for being heard while passing the
Expunction Order.
15. Against the Single Member’s Order, the District
Magistrate of Nainital wrote a letter to the Board of
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 17 of 67
Revenue seeking permission to challenge the same
through a writ petition and during the interregnum,
the State filed a writ petition in 1996 against the
Single Member’s Order (hereinafter, ‘First Writ
Petition’). Meanwhile, the Board of Revenue acted
on the abovementioned letter addressed by the
District Magistrate of Nainital and constituted a
Three Member Bench to scrutinise the Single
Member’s Order.
16. The Three Member Bench in turn vide its order
dated 20.12.1996 (hereinafter, ‘Three Member
Bench’s Order’) held that Single Member’s Order
was without any jurisdiction as no power for
revision existed under the land revenue laws and
also noted that the Expunction Order was passed
under the Government Grants Act of 1895. It
furthermore noted that the Collector had rightly
issued the Expunction Order as the Respondents
illegally obtained revenue entries in their favour in
collusion with revenue officials after the expiry of
the initial lease period of thirty years. Hence, it
observed that the Suit Land stood automatically
resumed in favour of the State after the expiry of the
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 18 of 67
lease period, and no notice was required to be given
to the Respondents at the time of passing the
Expunction Order. Against this Three Member
Bench’s Order, Respondents filed a writ petition in
1997 (hereinafter, ‘Second Writ Petition’).
17. Afterwards, a review petition was filed before
the Single Member of the Board of Revenue in view
of the observations in the Three Member Bench’s
Order. Accordingly, the Single Member on
03.03.1997 directed that the review petition be
placed before the same bench that rendered the
Three Member Bench’s Order. In turn, the said
bench on 18.12.1997 is said to have passed an
order stating that Three Member Bench’s Order did
not alter the Single Member’s Order and directed
that the review should be filed before the Single
Member only. Though, it is stated by the
Respondents that no such review proceedings took
place as none of the parties pursued it any further
and instead the matter was kept pending in the writ
proceedings as noted above. However, it has come
on record that a review was indeed filed by the
Appellants, which was directed to be heard urgently
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 19 of 67
and later on was transferred to the revenue court of
Additional Chief Revenue Commissioner, Nainital
after the formation of State of Uttarakhand.
18. During the pendency of the aforesaid writ
proceedings as well as the review before the revenue
court, the District Magistrate passed orders dated
02.05.2001 and 21.05.2001 (hereinafter, ‘Restrain
Orders’) directing the Special Land Acquisition
Officer and the concerned Tehsildar to restraint the
Respondents from selling, transferring or mutating
the Suit Land or any part thereof. Aggrieved by the
said orders, the Respondents filed an injunction
suit, but the same was dismissed on 06.06.2002 on
account of being non-maintainable. Upon dismissal
of the suit, the Respondents instead filed a revision
petition before the Additional Chief Revenue
Commissioner, who vide his order dated
22.07.2002, declared Restrain Orders as void and
illegal. It also noted that the Single Member’s Order
had attained finality, the State recognised
ownership of the Respondents as they granted them
compensation for the land acquired by military
authorities in 1963 and that the revenue entries
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 20 of 67
were longstanding in favour of the Respondents. It
must be noted that the Appellants filed a writ
petition against the order dated 22.07.2002 before
the High Court (hereinafter, ‘Third Writ Petition’).
19. Ultimately all three writ petitions were heard
together by the High Court, which vide the
impugned judgement dated 07.10.2005 in Civil
Appeal No 4985 of 2009 decided the matter in
favour of Respondents. The High Court noted that,
firstly the predecessor of the Respondents validly got
the approval of the Commissioner as required under
the 1924 Lease Deed, which was reflected in the
order dated 07.08.1980 passed by the
Commissioner in the mutation proceedings.
Secondly, the revenue entries have long been
standing in favour of the Respondents since 1948
which reflects that they have been accorded the
status of ‘Bhumidhar’. Furthermore, it noted that
these entries became final since the Appellants
never initiated any proceedings for their correction,
and these entries could not be deleted through an
administrative order as done by the Expunction
Order. Consequently, the Respondents’ writ, i.e.
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 21 of 67
Second Writ Petition, was allowed while the
remaining writ petitions filed by the Appellants were
dismissed.
20. Interestingly after the High Court passed the
impugned judgement dated 07.10.2005, the pending
review before the revenue court of Additional Chief
Revenue Commissioner, Nainital was decided in
favour of the Appellants vide an order dated
21.10.2005 wherein the authority set aside the
Single Member’s Order and directed that in view of
the Three Member Bench’s Order, the Expunction
Order must be complied with.
21. Consequently, the Appellants preferred review
applications against the judgement dated
07.10.2005, which the High Court dismissed vide
the impugned judgement dated 05.08.2006 in Civil
Appeal No 4983 of 2009 wherein it was noted that
no ground for review was made out by the
Appellants and the observations of the order dated
07.10.2005 were reiterated. It also specifically noted
that Expunction Order stood set aside in view of the
Single Member’s Order and that order dated
21.10.2005 was passed without any jurisdiction by
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 22 of 67
the Additional Chief Revenue Commissioner as the
High Court already decided the matter vide
judgment dated 07.10.2005. We must also hasten to
add that during the hearing of the abovementioned
review applications, the Additional Chief Revenue
Commissioner tendered an apology via an affidavit
stating that he had no knowledge that the High
Court had already decided the pending writ
petitions through its judgment dated 07.10.2005.
22. Again for ease of analysis, the key events in
these proceedings are summarised as follows –
Expunction Order Proceedings and
Restrain Orders’ Proceedings
Date Proceedings
31.12.1981 Collector passed Expunction
Order.
20.01.1982 In revision against
Expunction Order,
Commissioner, Kumaon
passed an interim order
directing that no revenue
entries should be deleted
16.08.1983 Commissioner, Kumaon held
that revision against
Expunction Order was non-
maintainable.
22.01.1993 Single Member’s Order which
set aside the Expunction
Order. [First Writ Petition
against this order by State.]
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 23 of 67
20.12.1996 Three Member Bench’s Order
held Single Member’s Order
to be without jurisdiction
(Based on this, it is stated that
a review application was filed
before the Single Member of
the Revenue Board). [Second
Writ Petition against this order
by Respondents.]
03.03.1997 Single Member of the Revenue
Board directed that the
matter be listed before the
same bench which passed the
Three Member Bench’s Order.
18.12.1997 The said bench passed an
order stating that Three
Member Bench’s Order did
not alter the Single Member’s
Order and directed that the
review should be filed before
the Single Member only
(Pursuant to this review filed
by State).
02.05.2001 Restrain Orders issued.
and
21.05.2001
06.06.2002 Injunction Suit against the
restrain orders dismissed as
non-maintainable.
22.07.2002 Additional Chief Revenue
Commissioner set aside the
Restrain Orders in revision
proceedings [Third Writ
Petition against this order by
State].
07.10.2005 Impugned Judgement by HC
whereby Second Writ Petition
preferred by the Respondents
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 24 of 67
was allowed while the
remaining petitions were
dismissed.
21.10.2005 Review pending before the
revenue court of Additional
Chief Revenue Commissioner,
Nainital was decided in favour
of the Appellants.
05.08.2006 Review against the judgement
dated 07.10.2005 dismissed
(It was held that order dated
21.10.2005 was passed
without jurisdiction).
A.3 THE RESPONDENTS’ 1983 INJUNCTION SUIT
PROCEEDINGS: CIVIL APPEAL NO 4988 OF 2009
AND CIVIL APPEAL NO 4984 OF 2009
23. The cause for the inception of these appeals
arose when the Commissioner dismissed the
revision against the Expunction Order as non-
maintainable. Because of the said dismissal, the
Respondents apprehended that the revenue entries
in their favour would be struck off, and accordingly,
they filed a suit praying for perpetual injunction
restraining the Appellants from evicting the
Respondents from the Suit Land as well as a
mandatory injunction directing the Appellants to
refrain from deleting or restoring the revenue entries
in their favour.
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 25 of 67
24. The Trial Court decreed the said suit in favour
of the Respondents vide its order dated 20.10.1984.
The Trial Court made extensive reference to 1967
Eviction Suit proceedings and 1978 Mutation
Proceedings to hold that Respondents became
‘Sirdar’ and later on ‘Bhumidhar’ legally and that
Appellants have no claim of title over the Suit Land.
The Appellants filed an appeal against the order
dated 20.10.1984, which was dismissed by the First
Appellate Court on 16.06.1986 on identical
reasoning as given by the Trial Court. The First
Appellate Court again highlighted the factum of
longstanding revenue entries in favour of
Respondents and the continued possession with
them to uphold the order of the Trial Court. It also
observed that the dispute in respect of the revenue
entries should have been adjudicated by the
competent revenue court instead of being decided by
the Collector vide the Expunction Order.
25. The Appellants proceeded to file the second
appeal before the High Court against the First
Appellate Court’s order, and the same was
dismissed vide the impugned judgment dated
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 26 of 67
05.11.2004 passed in Civil Appeal No 4988 of 2009.
While dismissing the second appeal, the High Court
noted that the suit was filed within limitation and
that the courts below have rightly held that
Respondents have lawfully acquired the status of
‘Sirdar’ and later on that of ‘Bhumidhar’. Against
the said judgment dated 05.11.2004, the Appellants
preferred a review petition, but the same was
dismissed vide the impugned judgement dated
28.07.2005 in Civil Appeal No 4984 of 2009 on
identical reasoning.
26. We again proceed to summarise the litigation
history in a tabular format as follows –
1983 Injunction Suit Proceedings
Date Proceedings
22.08.1983 Injunction Suit imitated by
the Respondents.
20.10.1984 Injunction Suit decreed in
favour of Respondents by
Trial Court.
16.06.1986 First Appellate Court
dismissed appeal against
order dated 20.10.1984.
05.11.2004 HC dismissed the Second
Appeal against order dated
16.06.1986
28.07.2005 Review against judgement
dated 05.11.2004 dismissed
by HC.
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 27 of 67
A.4 THE 1982 LAND ACQUISITION PROCEEDINGS:
CIVIL APPEAL(S) NO. 4989-4992 OF 2009
27. The commencement point for these appeals
began when the state authorities issued a
notification dated 13.04.1982 under Section 4 of the
Land Acquisition Act of 1894 for acquiring land
measuring 70 bigha 08 biswa for the construction of
Model Industrial Training Institute. Out of the entire
proposed acquisition, land measuring 11 bigha 06
biswa was part of the Suit Land. Subsequently, a
notification dated 16.09.1982 under Section 6 of the
Land Acquisition Act of 1894 was issued, possession
was taken on 23.07.1983 and an award was also
passed on 30.09.1985, but the Respondents were
denied compensation on the ground that land
belonged to the government. Aggrieved by the denial
of compensation, the Respondents filed a reference
which was decided in their favour on 21.02.2006 on
the strength of impugned judgements in the
abovementioned connected civil appeals which
determined Respondents as lawful owners of the
Suit Land.
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 28 of 67
28. The Appellants filed respective appeals before
the High Court against the Reference Court’s order,
and the same was dismissed vide the impugned
judgement dated 24.07.2008 in Civil Appeal(s) No
498-4992 of 2009 wherein the High Court again
held in favour of the Respondents on identical
grounds and granted compensation at the rate of
Rs. 8 per square feet along with solatium and
applicable statutory benefits.
29. To summarise these proceedings –
1982 Land Acquisition Proceedings
Date Proceedings
13.04.1982 Notification under Section 4
of the Land Acquisition Act,
1894 issued.
16.09.1982 Notification under Section 6
of the Land Acquisition Act,
1894 issued.
23.07.1983 Possession taken.
30.09.1985 Award published but
compensation was not
granted to Respondents.
21.02.2006 Reference filed by
Respondents allowed and
court granted them
compensation as per
award.
24.07.2008 HC via impugned
judgement granted
compensation at the rate of
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 29 of 67
Rs. 8 per square feet along
with solatium and
applicable statutory
benefits to Respondents.
A.5 CONTEMPT PETITION (CIVIL) NO 165-168 OF
2007 IN CIVIL APPEAL NO 4983 OF 2009
30. Respondents have initiated these contempt
proceedings for violation of order dated 23.02.2007
passed by this Court directing parties to maintain
the status quo. The Respondents contend that the
Appellants have been interfering with their peaceful
possession, especially in concern with the
commercial activities conducted on the Suit Land.
However, since we are disposing off the appeals
finally, there is no need to deal with these contempt
petitions.
B. CONTENTIONS
31. We have heard learned counsel for the parties
and perused the documents produced on record. We
would like to point out that during the course of
arguments which went on for a couple of days, the
bench as well as the counsel for the parties, readily
agreed that the core issue for adjudication was in
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 30 of 67
respect of the status of the Respondents under the
applicable tenancy law and whether the same
entitled them for ownership of the Suit Land. It is in
this context that we propose to consider the
arguments raised by the parties.
32. Mr. Atul Sharma, learned counsel for the
Appellants made the following contentions –
a) It was submitted that the Suit Land was given
on lease to Mr. John Vaughn for the limited period
of thirty years under the Government Grant Act of
1895 and as per the conditions stipulated in the
1924 Lease Deed, it was necessary to obtain a prior
written approval or approval of the Deputy
Commissioner, Nainital before the lease rights could
be transferred in favour of the Respondents.
Therefore, since no such approval was ever given
nor produced before the courts during the
proceedings below by the Respondents, it must be
construed that the predecessor of Respondents, i.e.
Manohar Lal was an illegal occupant when he was
put into possession of the Suit Land on the basis of
the Sale Deed. He vehemently argued that the Sale
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 31 of 67
Deed was null and void as the vendor himself had
no ownership title which he could lawfully alienate;
b) It was argued that even otherwise the
Respondents’ status remained that of illegal
occupants as the initial lease period ended in 1954
and since no renewal was granted by the State.
Hence, it was submitted that the Suit Land stood
automatically resumed in favour of the State after
the expiry of the lease period;
c) The 1924 Lease Deed explicitly stated that
there would be no application of tenancy law
benefits as applicable to the lessees of the Suit
Land. Furthermore, it was submitted that after the
1960 State amendment to the Government Grant
Act of 1895, the applicability of the tenancy laws as
well as Transfer of Property Act was retrospectively
barred. Hence in effect, no tenancy rights were ever
created in favour of Respondents, nor could they
claim lawful tenancy by evoking the doctrine of
holding over;
d) It was also argued that 1967 Eviction Suit and
1978 Mutation Proceedings never decided the issue
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 32 of 67
of ownership or tenancy status. Therefore, these
proceedings cannot be treated to have decided the
principal issues on merits.
e) It was also argued that mere longstanding
entries in favour of Respondents would not be
sufficient to establish the claim of ownership and
that the same were made fraudulently in connivance
with revenue authorities. In other words, mutation
entries in no way confer the title.
f) Finally, the Courts or quasi-judicial authorities
have merely followed each other without going into
the root question as to how the Respondents
claimed to have become the owner or ‘Bhumidhar’
over the Suit Land.
33. On the contrary, Mr. Harin P. Ravel, learned
senior counsel for the Respondents initiated his
arguments on the first day of hearing by submitting
that the Respondents claimed ownership on two
independent grounds, firstly through the Sale Deed
and secondly, on the strength of status accorded
under the applicable tenancy laws. However, on the
final day of arguments, Mr. Ravel clarified the
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 33 of 67
abovementioned stand by stating that the Sale Deed
pertained to sale of leasehold rights and not the sale
of title or ownership rights. Therefore at present, the
claim of the Respondents is actually based on the
strength of status accorded under the applicable
tenancy laws as we will note while reiterating Mr.
Ravel’s arguments which are as follows –
a) It has been submitted that there was no
mandatory requirement of prior approval from the
Deputy Commissioner at time of the execution of the
Sale Deed. The Respondents have relied upon the
decision in U.P. Avas Evam Vikas Parishad v
Friends Coop. Housing Society Ltd.1 to contend
that there is a distinction between the term
‘approval’ and ‘permission’ wherein when the former
term is used, all actions hold good until they are
explicitly disapproved. In other words, they contend
that the Sale Deed must be treated as valid until
there is an explicit refusal to grant consent for
transfer of rights by the Deputy Commissioner.
1 U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd
1995 Supp (3) SCC 456.
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 34 of 67
b) It was also argued that even otherwise,
permission or approval as required from the Deputy
Commissioner was granted on 16.12.1948 as
recorded in order dated 07.08.1980 passed by the
Commissioner in the mutation proceedings.
Therefore as the approval was validly granted, albeit
after the Sale Deed was executed, the predecessor of
the Respondents was rightly accorded the status of
‘occupancy tenant’ under the United Provinces
Tenancy Act of 1939 (hereinafter, ‘1939 Act’),
which superseded the conditions in the 1924 Lease
Deed as well as provisions of the Government Grant
Act of 1895. Furthermore, it was submitted that
after notification dated 30.06.1969 was issued by
the State, which extended the provisions of U.P.
Zamindari Abolition and Land Reforms Act, 1950 to
the Suit Land (hereinafter, ‘Zamindari
Notification’), the predecessor of Respondents
became ‘Sirdar’ as per Section 131 as applicable
vide Zamindari Notification. The relevant portion of
the said notification is as follows –
“X-X-X-X
130- Every person belonging to any of
the following classes shall be called a
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 35 of 67
bhumidhar and shall have all the
rights and be subject to all the
liabilities conferred or imposed upon
bhumidhars by or under this Act,
namely –
(a) every person who on the date
immediately preceding the appointed
day held land as-
(i) an occupancy
tenant
(ii) a hereditary Processing
tenant, or the rights to
(iii) a lessee to transfer the
whom the holding by
provisions of the sale
Government
Grants Act, 1895
apply
(b) every person who acquires the
rights of a bhumidhar under or in
accordance with the provisions of
this Act.”
x-x-x-x
131. Sirdar. – Every person belonging
to any of the following classes shall
be called a sirdars and shall have all
the rights and be subject to all the
liabilities conferred or imposed upon
sirdars by or under this Act, namely –
(a) every person who, on the date
immediately preceding the appointed
day held kind as-
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 36 of 67
(i) an occupancy Not being a
tenant tenant
(ii) a hereditary referred to
tenant in clause (a)
of Section
130.(iii) a grantee at favourable rate of
rent(iv) a lessee holding a lease under the
provisions of the Government Grants
Act, 1895 and having rights of
hereditary tenant under the terms of
the lease, but not possessing the
rights to transfer the holding by sale,(b) every person who is admitted as
sirdar of vacant land under the
provisions of this Act,(c) a tenant in any of the 42 Buxari
villages specified in the Annexure,
appended hereto, who was recorded
in Class X(l) in the Khatauni of the
previous agricultural year, and(d) every person who, in any other
manner, acquires the rights of a
sirdar under or in accordance with
the provisions of this Act.X-X-X-X”
c) Extending the abovementioned argument, it is
submitted that predecessor of Respondents made
application for becoming a ‘Bhumidhar’ under theCivil Appeal No. 4983 of 2009 ETC. ETC. Page 37 of 67
applicable rules which is stated to be allowed. It is
also stated that they paid twenty times the revenue
for the Suit Land and accordingly were granted a
‘Bhumidhari’ certificate under Section 137 of the
U.P. Zamindari Abolition and Land Reforms Act,
1950. Therefore to sum up, it was submitted that
the entire chronological sequence as narrated above
bears testimony to the logical progression of rights
of the predecessor of the Respondents culminating
into title as ‘Bhumidhar’ as per the object of the U.P.
Zamindari Abolition and Land Reforms Act, 1950.
This argument is further supplemented by stating
that the Appellants have failed to produce anything
on record to support the plea that the concerned
revenue entries during this period have been made
fraudulently or through suppression of any fact.d) It was also submitted that Appellants have
deliberately failed to take any steps to correct the
abovementioned revenue entries, which carry the
presumption to be correct in law, despite
suggestions to the contrary by the adjudication
authorities in multiple proceedings, including in the
1978 Mutation Proceedings. Therefore in effect, it isCivil Appeal No. 4983 of 2009 ETC. ETC. Page 38 of 67
stated by Respondents by relying on multiple
decisions2 that favourable orders passed in the
erstwhile proceedings between parties have become
final, especially in light of the fact that the
Appellants never took steps to get them set aside by
competent authorities.e) It was argued that the Respondents have
acquired rights over the Suit Land by way of
acquiescence and the conduct of the Appellants
wherein it is alleged that in addition to failure to
initiate proper proceedings to evict them, the
Appellants accepted the enhanced rent, raised
revenue demands and allowed them approvals for
further development of the Suit Land.f) Finally, it has been argued that the lease did
not end after the expiry of the initial thirty year
period in June 1954 and instead the lease got
extended on an yearly basis on account of
application of Section 116 of the Transfer of
Property Act of 1882, through which tenancy has2 Smith v East Elloe Rural District Council [1956] 1 All ER 855; State of
Punjab v Gurdev Singh (1991) 4 SCC 1, para 8-9; State of Kerala v M.K.
Kunhikannan Nambir Manjeri Manikoth Naduvil (1996) 1 SCC 435, para
7-8; Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd.
(1997) 3 SCC 443, para 17-18.Civil Appeal No. 4983 of 2009 ETC. ETC. Page 39 of 67
been lawfully continued by holding over on account
of continuous possession by Respondents. Reliance
was placed on the decision rendered in State of
Uttar Pradesh v Zahoor Ahmad3 to argue that
Section 116 of the Transfer of Property Act of 1882
would be applicable notwithstanding the 1960 State
amendment to the Government Grant Act of 1895
and the fact that predecessor of Respondents
deposited enhanced rent as per the 1924 Lease
Deed which was never rejected by the Appellants.C. ANALYSIS
34. Before we analyse the rival contentions raised
by the parties, it would be appropriate to broadly
highlight the issues which arise for our
consideration –i. Did the Respondents’ predecessor-in-interest
purchase ownership rights or leasehold rights from
Mr. John Vaughan?ii. In case of the latter, the next question that
arises is whether the leasehold rights stood legally
transferred to the predecessor of Respondents as3 State of U.P. v. Zahoor Ahmad (1973) 2 SCC 547.
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 40 of 67
per the conditions of the 1924 Lease deed, which
was governed under the Government Grants Act of
1885?iii. If the leasehold rights cannot be held to be
validly transferred under the 1924 Lease Deed,
whether the same stood determined at the time of
execution of Sale Deed because of violation of the
stipulated conditions?iv. If the abovementioned question is answered
negatively, did the 1924 Lease Deed stand
determined at the expiration of the initial lease
period of thirty years?v. If the 1924 Lease Deed stood determined after
the initial lease period of thirty years, whether the
Respondents are entitled to seek protection of
holding over of the lease under Section 116 of the
Transfer of Property Act of 1882?vi. Alternatively, could the lease ever deemed to
have been subsisted because of the doctrine of
acquiescence and through the conduct of
Respondents? Furthermore, if the same couldCivil Appeal No. 4983 of 2009 ETC. ETC. Page 41 of 67
accord them any benefit under the Zamindari
Notification?vii. Regardless of the fact that the lease deed is
deemed to have subsisted, was it possible for
predecessor of Respondents to be accorded the
status of ‘Occupancy Tenant’ under the 1939 Act,
which resulted in them being subsequently
accorded the status of ‘Sirdar’ under the Zamindari
Notification?viii. Furthermore, could the predecessor of
Respondents have been accorded the status of
‘Sirdar’ through any other alternate method as
indicated under the Zamindari Notification? In other
words, did the Respondents’ predecessor obtain
status as ‘Sirdar’ on account of being recorded as a
‘hereditary tenant’ or a ‘government lessee’ as per
Section 131 of the Zamindari Notification?C.1 SALE OF OWNERSHIP RIGHTS OR LEASEHOLD
RIGHTS35. At the outset, it is iterated that during the oral
arguments, the Respondents have taken the stand
that the Sale Deed actually pertained to sale of
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 42 of 67
leasehold rights and not of title per se. However, it ispertinent to mention that their stand has been
inconsistent regarding this issue in the courts below
and even the High Court vide its impugned
decisions have given parallel findings regarding the
nature of the Sale Deed.
36. In the impugned judgement 07.05.2005, which
arose from the Expunction Order Proceedings, the
High Court noted –
“The respondents are the recorded
Bhumidhar of the land in question
which is evident from the khatauni of
1401 F- 1406 F. The land was leased out
to Mr. John Vaughan on 20.6.1924 who
sold the land to Sri Manohar Lal vide
sale deed dated 117 .11.194 7 and
thereafter the land was recorded in the
name of Sri Manohar Lal and on his
death his successor Sri Ravi Kumar and
Virendra Kumar. They are continuously
recorded as Bhumidhar of the land in
question. The Chief Revenue
Commissioner also held in his judgment
that from the order dated 20.9.1999 of
Additional District Magistrate (Land
Acquisition) Lucknow and from the
G.O.No. 376 dated 16.5.2002 issued byCivil Appeal No. 4983 of 2009 ETC. ETC. Page 43 of 67
the Secretary, Uttaranchal Government
all land acquisition proceedings in
respect of the land in question have
come to an end and the Government has
ordered that the land be kept in the
ownership and possession of the
Bhumidhars i.e . Sri Ravi Kumar and
Virendra Kumar.”
(Emphasis Applied)On the contrary, in the impugned judgement
05.11.2004 which arose from the 1983 Injunction
Suit, the High Court noted –“In view of the amended section 131
of U.P.Z.A. LR. Act, a lease holder
would become a Sirdar on the date of
enforcement of the Act viz. 1.7.1969. The plaintiffs’ predecessor
Sri Manohar Lal got transferred the
lease existing in the name of Mr.
John Vaughan with the permission of
the Commissioner Kumaon and he
was in possession in July 1969 on the
land in suit. Thus from the evidence
on record it is established that the
plaintiffs are the Bhumidhar, and are
in possession over the land in dispute
and there is no material error in the
finding arrived at by both the courts
below.”
(Emphasis Applied)Civil Appeal No. 4983 of 2009 ETC. ETC. Page 44 of 67
37. Therefore, the High Court while deciding the
issue of ownership in favour of Respondents on the
strength of the Sale Deed, have come to different
conclusions as such to the nature of the
instrument. In this respect, our attention is also
drawn towards the contrary stands taken by the
Respondents in their pleadings which have been
brought on record. In the plaint filed by them in
1983 Injunction Suit, the Respondents claim to
tenure holders who were later accorded the status of
‘Bhumidhar’ on the basis of Zamindari Notification.
On the other hand, in the Second Writ Petition,
Respondents stated that the Sale Deed was actually
in respect of the title per se.38. Nevertheless, even if the clarification on behalf
of Respondents which is taken for the first time at
this stage is allowed, we must note that the tenor of
the Sale Deed completely contradicts the said
modified stance. The relevant portion of the Sale
Deed is as follows –“…….NOW THIS DEED WITNESSETH
That in consideration of the sum of
Rupees Fifty Five Thousand Rs.55000/-
paid by the vendee to the vendor in theCivil Appeal No. 4983 of 2009 ETC. ETC. Page 45 of 67
manner following i.e., Rs.5000/- five
thousand acknowledged and Rs.20000/-
Twenty Thousand paid in cash before
the Sub. Registrar. Rs.20000 by cheque
16124 on Imperial Bank Nainital dated
the 17th November 1947 Rs.5000/- five
thousand by cheque No. 16125 on the
same Bank dated the 10th December
1947 which cheques have been handed
over to the vendor before the Sub
Registrar to day and the balance of
Rs.5000/- five thousand to be paid by
the vendee when the garages are vacated
by the present tenants whom the vendor
undertakes to vacate by the end of this
month set forth above is acknowledged
in full, the vendor for himself, his
executors, administrators and assigns
doth hereby sell, transfer, convey and
assign unto the vendee the aforesaid
plot of land in its entirety containing by
admeasurements 28.165 acres of land
more fully described at the foot of
THESE PRESENTS with all residential
and other buildings therein standing and
the boundary wall, tank, garages and out
houses together with all trees, plants,
shrubs, crops and all agricultural
implements and cattle as per list handed
over to the vendee and all surface rights,
lights, water other rights easements
to have to hold and to enjoy peaceably
and for ever without any let or
hindrance from the vendor or any one
claiming through him or independently.
It is certified by These Presents that the
possession of the premises has already
been made over to the vendee whoseCivil Appeal No. 4983 of 2009 ETC. ETC. Page 46 of 67
name has already been mutated in the
Government records in place of the
vendor aforesaid. It is further certified
that the land and premises hereby sold
are absolutely free from all liens and
charges save and except the yearly
Government lease rent of Rs.183/6/4.
The Vendor covenants with the vendee
to compensate and save from harm the
vendee his heirs, executors and assigns
against any loss or damage that he
might suffer due to any defect in the
title of the vendor to sell the premises
hereby transferred or to any part
thereof…….”
(Emphasis Applied)These recitals of the Sale Deed highlight that
the relationship between Mr. John Vaughn and Mr.
Manohar Lal seemed more akin to that of a vendor-
vendee in a title sale than that of the sale of
leasehold rights.39. We must again take note that in respect of the
two parallel findings given by the High Court, the
Respondents for the first time before this Court have
given up the finding which treated the Sale Deed as
a sale of title. However, we must note that both
these parallel findings by the High Court have been
without any serious examination of the nature of theCivil Appeal No. 4983 of 2009 ETC. ETC. Page 47 of 67
Sale Deed itself. In our opinion, High Court erred in
respect of these findings and as the same was
essential to determine the present dispute on merit,
we deem it a fit case to exercise our power of
remand.40. Additionally, despite these findings being a
serious lacuna for us to reach a conclusive decision,
the Appellants have raised no serious objection to
the modified stand taken by the Respondents
wherein they stated that the Sale Deed was in
respect of leasehold rights only. However, we would
like to highlight several other aspects of the present
disputes which further warrant the exercise of the
power of remand.C.2 DETERMINATION OF THE 1924 LEASE DEED: THE
BREACH OF THE CONDITION OF PRIOR APPROVAL
AND EXPIRY OF INITIAL LEASE DEED PERIOD41. During the course of hearing, the bench raised
a query in respect of the earliest stand taken by the
Appellants on the aspect of breach of clause (e) of
the 1924 Lease Deed in respect of prior approval. In
response to the same, our attention was towards theCivil Appeal No. 4983 of 2009 ETC. ETC. Page 48 of 67
plaint filed by the State in the 1967 Eviction Suit,
the relevant part thereof is as follows –“X-X-X-X
3. That on or about 21-8-1947 the lease,
Mr. John Vaughan Transferred the
property in suit to the defendant no.1
and put him in possession of the same
without the written approval of the
Deputy Commissioner, Nainital, an
application was no doubt made to and
approved by the then superintendent of
Tarai and Bhabar Govt. Estates, but the
orders of the Superintendent T. B.Govt. Estates, sanctioning and
approving the transfer were without any
right or authority. The name of the
defendant no. 1 was ordered to be
entered in the revenue records by the
superintendent Tarai and Bhabar
Govt.Estates and entries were made
accordingly. But these entries were not
in order and according to law or
otherwise correct and no presumption of
correctness flows from them.The breach of the covenant by the
lease has given a right to the plaintiff of
re-entry and as also a right to recover
damages.4. That on the expiry of the original
lease on 20th June 1954 the defendant
No. 1 deposited rent at the enhanced
rates and applied for a renewal of the
lease to which he was not entitled.Civil Appeal No. 4983 of 2009 ETC. ETC. Page 49 of 67
5. That the approval of the
superintendent, Tarai and Bhabar Govt.
Estates; The entry in the revenue
records on the payment of the rent do
not in any way confer the rights of a
lease on the defendant no. 1 whose
possession continues to be wrongful
from its very inception and the plaintiff
is entitled to recover the possession of
the premises in suit and also damages.
X-X-X-X”42. Hence, it can be safely deduced that the
Appellants did contend the issue of prior approval
from the initial stage itself. Apart from the said
eviction suit, two other proceedings need to be
highlighted, i.e. consolidation proceedings which
occurred between 1959-1960 and acquisition
proceedings for a portion of land initiated by the
military authorities in 1963. In respect of the
consolidation proceedings, we cannot deduce the
stand taken by State as no document or order in
respect of the same has been produced before us.
However in respect of the acquisition, order dated
22.11.1965 passed by the concerned Land
Acquisition Officer, which granted compensation to
the predecessor of Respondents has been broughtCivil Appeal No. 4983 of 2009 ETC. ETC. Page 50 of 67
on record wherein it must be noted that
compensation was granted on the basis of revenue
entries and without any serious examination of the
validity of the same. Hence, both these proceedings
cannot be treated as an admission of validity of
revenue entries or as accepting the waiver of breach
of the condition in respect of prior approval from the
Deputy Commissioner.43. Coming back to the aspect of prior approval,
the Respondents drew our attention towards the
vernacular copy of the order dated 07.08.1980
passed by the Commissioner, Kumaon, in the
mutation proceedings to support the plea of grant of
valid approval. The relevant part of the said order in
the vernacular language is as follows –“Mool leejdhari shri John Vaughan ko
Upayukta ki anumati 2009 se lease
hastantaran ke adhikar prapt the jo
anumati missal 14/23 dinank 6.12.48
dwara unhone prapt kar li thi aur jiske
adhar par malkagjatomein 1948 mein
sanshadhan bhi ho gayatha”4
[Broadly on translation in English, it
would read: “The original lease holder Sri
John Vaughan had rights to transfer withCivil Appeal No. 4983 of 2009 ETC. ETC. Page 51 of 67
the permission of Deputy Commissioner
which permission he had received vide File
14/23 dated 6.12.48 and on the basis of
which amendments were made in the
Revenue papers in 1948.”]The following order makes it apparent that the
approval from the appropriate authority as per the
lease deed, i.e. Deputy Commissioner was granted
only on 06.12.1948 which is more than a year later
than the Sale Deed.44. On the contrary, as per the recitals contained
in the Sale Deed as extracted in Para 4 of this
judgment, it is mentioned that due permission was
obtained and the consequent mutation was effected
in the office of Superintendent, Tarai and Bhabar,
Nainital before its execution. Hence, this
abovementioned recital leads to immense confusion
as to whether any approval was ever granted at the
first instance. Even if such approval was granted, no
indication is given as such to actually who granted
the approval and if it is assumed that a subordinate
authority granted the approval, no statutory
instrument is produced before us to highlight
whether this delegation was possible or not. TheCivil Appeal No. 4983 of 2009 ETC. ETC. Page 52 of 67
subordinate courts as well as the High Court have
merely relied on the order dated 07.08.1980 passed
by the Commissioner, Kumaon to come to a
sweeping conclusion that a valid approval existed in
favor of the predecessor of the Respondents despite
glaring contradictions which were on the face of the
record. Consequently, on this issue of breach of the
conditions of the 1924 Lease Deed, we again fail to
arrive at a decisive conclusion as neither the
original record nor its true copies have been placed
on record of this Court or the High Court as well as
the other forums.45. Finally, while the Respondents have argued
that until there existed an express refusal by the
Deputy Commissioner for sale of leasehold rights,
the sale was valid especially in light of post facto
approval granted by the Deputy Commissioner as
has been recorded in order dated 07.08.1980 passed
by the Commissioner. They have relied on the
following observation in U.P. Avas Evam Vikas
Parishad5 –5 U.P. Avas Evam Vikas Parishad (n 1).
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 53 of 67
“6. This Court in Life Insurance Corpn.
of India v. Escorts Ltd. [(1986) 1 SCC
264], considering the distinction
between “special permission” and
“general permission”, “previous
approval” or “prior approval” in para 63
held that: “We are conscious that the
word ‘prior’ or ‘previous’ may be implied
if the contextual situation or the object
and design of the legislation demands it,
we find no such compelling
circumstances justifying reading any
such implication into Section 29(1) of
the Act.” Ordinarily, the difference
between approval and permission is that
in the first case the action holds good
until it is disapproved, while in the
other case it does not become effective
until permission is obtained. But
permission subsequently granted may
validate the previous Act. As to the word
‘approval’ in Section 33(2)(b) of the
Industrial Disputes Act, it was stated
in Lord Krishna Textiles Mills
Ltd. v. Workmen [AIR 1961 SC 860 :(1961) 1 LLJ 211] , that the Management
need not obtain the previous consent
before taking any action. The
requirement that the Management must
obtain approval was distinguished from
the requirement that it must obtain
permission, of which mention is made in
Section 33(1).7. It is seen that the approval envisaged
under Exception (iii) of Section 59(1)(a),
is to enable the Parishad to proceed
further in implementation of the scheme
framed by the Board. Until approval isCivil Appeal No. 4983 of 2009 ETC. ETC. Page 54 of 67
given by the Government, the Board
may not effectively implement the
scheme. Nevertheless, once the approval
is given, all the previous acts done or
actions taken in anticipation of the
approval get validated and the
publications made under the Act thereby
become valid.”
(Emphasis Applied)In this respect, we would like to hold that
reliance on the same is misdirected for the reason
that the interpretation of a contractual condition as
contained in the present lease deed stands on a
different footing than the interpretation of statutory
provisions which were the subject matter in the case
of U.P. Avas Evam Vikas Parishad.646. It is now settled law that any contractual term
or condition is to be interpreted as per the natural
and ordinary meaning appended to the language
used by the parties unless the same leads to
absurdity.7 In the present case, condition (e) of the
1924 lease deed makes it clear that no rights in the
Suit Land are allowed to be transferred or created6 U.P. Avas Evam Vikas Parishad (n 1).
7 M.O.H. Uduman v. M.O.H. Aslum, (1991) 1 SCC 412, para 14; InvestorsCompensation Scheme Ltd vs. West Bromwich Building Society, [1998] 1
All ER 98.Civil Appeal No. 4983 of 2009 ETC. ETC. Page 55 of 67
“without the written approval of the Deputy
Commissioner of Nainital” which bears the crystal
clear requirement of the prior assent needed from
the Deputy Commissioner. This interpretation is
also supported from the fact that leases under the
Government Grants Act of 1985 are to be strictly
constructed as per the terms of the grant, regardless
of any other provisions of the law as noted in State
of Uttar Pradesh v Zahoor Ahmad8 which states
that –
“16. Section 3 of the Government
Grants Act declares the unfettered
discretion of the Government to impose
such conditions and limitations as it
thinks fit, no matter what the general
law of the land be. The meaning of
sections 2 and 3 of the Government
Grants is that the scope of that Act is
not limited to affecting the provisions of
the Transfer of Property Act only. The
Government has unfettered discretion to
impose any conditions, limitations, or
restrictions in its grants, and the right,
privileges and obligations of the grantee
would be regulated according to the
terms of the grant, notwithstanding any
provisions of any statutory or common
law.”8 State of U.P. (n 3).
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 56 of 67
47. Additionally, the bench in U.P. Avas Evam
Vikas Parishad9 furthermore relied on the
decisions rendered in Life Insurance Corpn. of
India v. Escorts Ltd.10 and Lord Krishna Textiles
Mills Ltd. v. Workmen11, wherein the terms
‘permission’ and ‘approval’ were used within same
statute which necessitated the distinction between
these terms. Hence, the present case is
distinguishable on this aspect also, as no such
distinction is warranted in the case at hand.48. Even otherwise, the High Court and other
authorities have proceeded on the premise of a valid
approval. They are completely silent on whether the
post facto approval could be granted and if so, who
granted such approval. Again, no records are
produced and its not known whether any approval
was ever actually granted and when or by whom?49. In our opinion, a reasoned finding on both the
nature of Sale Deed as well as whether the same
was violative of conditions of the 1924 Lease Deed
goes to the heart of the present dispute, because of9 U.P. Avas Evam Vikas Parishad (n 1).
10 Life Insurance Corpn. of India v. Escorts Ltd. (1986) 1 SCC 264.
11 Lord Krishna Textiles Mills Ltd. v. Workmen AIR 1961 SC 860.Civil Appeal No. 4983 of 2009 ETC. ETC. Page 57 of 67
which the issue of determination of lease remains
unanswered. Hence, in light of the same we must
also note that the Respondents’ claim on the
strength of doctrine of holding over or through
doctrine of acquiescence as well as the reliance on
the conduct of Appellants, remains in doldrums as
the same are hinged on the finding in respect of
determination of lease. However, before moving
forward, we must highlight another aspect which
requires application of mind by the High Court. We
observe so for the reason that decades have passed
in litigation, and it would be extremely iniquitous to
remand the case to revenue authorities at such a
belated stage.C.3 RESPONDENT’S TITLE CLAIM THROUGH TENANCY
LAW: THE CONUNDRUM OF VALIDITY OF REVENUE
ENTRIES50. In the present case, revenue entries starting
from 1948 have recorded the Respondents’
predecessor as ‘Occupancy Tenant’ on the strength
of which they were accorded the status of ‘Sirdars’
vide the Zamindari Notification. Consequently, this
led to predecessor of Respondents being accorded
the status of ‘Bhumidhar’ as per the applicableCivil Appeal No. 4983 of 2009 ETC. ETC. Page 58 of 67
statutory scheme. Since these entries carry the
statutory presumption of correctness in their favour,
we must address them.51. However, before delving into the issue of the
tenancy status of the Respondents, it would be
appropriate to highlight the legislative history of the
term ‘Occupancy Tenants’. Under the U.P.
Zamindari Abolition and Land Reforms Act, 195012,
it is assigned the same meaning as employed in the
1939 Act which is as follows-28. Occupancy tenants - Every tenant,
who is not a fixed rate tenant or an
exproprietary tenant and who, at the
commencement of this Act, has acquired
a right of occupancy under the Agra
Tenancy Act, 1926, or any previous
enactment relating to Agra, or under the
Oudh Rent Act, 1886, shall be called an
occupancy tenant, and shall have the
rights and be subject to the liabilities
conferred and imposed on occupancy
tenants by this Act.Hence by virtue of this definition, ‘Occupancy
Tenants’ are the ones who have acquired a right of
occupancy under the Agra Tenancy Act of 1926 and
its legislative pre-enactment, i.e. Agra Tenancy Act
12 Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950,s 3(26).
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 59 of 67
of 1901 or the Oudh Rent Act of 1886. Nevertheless,
this provision only confirms the occupancy rights
which were enjoyed at the commencement of the
1939 Act. Therefore, new occupancy tenancies
cannot be created even if it is assumed that all the
concerned parties consented to the same.1352. Even assuming arguendo that Mr. John
Vaughn was deemed to have been granted status as
an ‘Occupancy Tenant’ under the 1939 Act, it
should be noted that his status as an ‘Occupancy
Tenant’ cannot be transferred to the predecessor of
Respondents in light of Section 33 of the 1939 Act
which is as follows –
“33. Interest of other tenants. - (1)
The interest of a tenant holding on
special terms in Oudh, of an ex-proprietary tenant, of an occupancy
tenant, of a hereditary tenant, and of
a non-occupancy tenant is heritable,
but is not transferable otherwise than
in accordance with the provisions of
this Act.(2) Nothing in the foregoing
provisions of this section shall render
illegal:13 Shambhu Dayal Singh, The Law of Tenancy in U.P. (3rd edn, Empire
Press, 1949) 131.
Civil Appeal No. 4983 of 2009 ETC. ETC. Page 60 of 67
(a) a sub-lease of a holding as
hereinafter provided.(b) a sale of the interest of a
tenant under the provisions of
Section 251.(c) a release or transfer of an
interest in favour of a co-tenant:Provided that no person shall be
deemed to be a co-tenant
notwithstanding that he may have
shared in the cultivation of the
holding, unless he was a co-tenant
from the commencement of the
tenancy, or has become such by
succession or has been specifically
recognised as such in writing by the
land-holder.”The only exception to the bar on transfer of
status as an ‘Occupancy Tenant’ in the
abovementioned section is under sub-clause (b) of
clause (2) wherein reference is made to Section 251
which in turns deals with sale of occupancy rights
when the tenant himself is facing the execution of a
decree for arrears of rent. As no factual situation
has been indicated stating that Mr. John Vaughn
had suffered a decree for rent arrears, we are
unsure as to how any transfer of ‘Occupancy
Tenant’ status in favour of the predecessor of
Respondents was sustainable. This confusionCivil Appeal No. 4983 of 2009 ETC. ETC. Page 61 of 67
further indicates that the predecessor of
Respondents could not have been accorded the
status of ‘Sirdar’ under the Zamindari Notification
on the strength of revenue entries which recorded
him as an ‘Occupancy Tenant’.53. Hence, the High Court again made sweeping
remarks in respect of the tenancy status without
any serious consideration as to whether the same
were legally tenable or not. We must highlight that
no reference is made to any proceedings wherein the
status as an occupancy tenant was ever granted to
the predecessor of the Respondent and, if so, how
and when the same culminated into the status of
‘Sirdar’ under the Zamindari Notification. These
proceedings which ultimately led to the grant of
status of ‘Bhumidhar’ in favour of the predecessor of
Respondents for the first time, could have
potentially served as the litmus test for the validity
of these revenue entries.54. Additionally, we must also take note of the
finding of the High Court via its impugned
judgement dated 07.10.2005 wherein it is held that
predecessor of Respondents was rightly accordedCivil Appeal No. 4983 of 2009 ETC. ETC. Page 62 of 67
the status of ‘Sirdars’ under the Zamindari
Notification on the ground that they were lease-
holders governed by the Government Grants Act of
1895. However, this finding again appears
unsustainable because there is no proper factual
analysis as to when the 1924 Lease Deed stood
determined or whether the same subsisted after the
initial period of thirty years.55. Before parting, we must also point out that
initially the 1939 Act was not applicable to the Suit
Land as the concerned area where it is situated was
excluded from the purview of the 1939 Act, as it was
specifically included in the First Schedule. Any
future application of the 1939 Act in respect of the
Suit Land was supposed to be through a separate
notification, but the same has again not been
produced in these proceedings or before any forum,
which further dissuades us from rendering any final
opinion at this stage.56. The same aspect has been highlighted by
Appellants who contend that the area in which the
Suit Land is situated was governed by the Kumaon
Tenancy Rules of 1918. On the other hand,Civil Appeal No. 4983 of 2009 ETC. ETC. Page 63 of 67
Respondents have produced on record a - G.O. No.
5678/ 1-B-1212~B-19 dated the 30.04.1948 titled
‘Tarai and Babbar Government Estates (Kham
norms), Revised norms’ issued by Revenue (B)
Department which notes as follows –“I. Tenants on admission on have
hereditary rights as defined in
section 29 on the united provinces
Tenancy Act expect in the 55 Buxeris
village mentioned in the first
schedule to the Act.”
This notification indicates the possibility of
hereditary rights being accrued on predecessor of
Respondents under the 1939 Act but again, we are
constrained to give any finding on the same because
of the lack of proper documents on record to
ascertain the tenancy status of the Respondents.
Hence, on this ground also the present appeals are
liable to be remanded back so that the relevant
statutory notifications, original records can be
placed before the High Court to enable it to
determine the applicable tenancy law and their
impact on the alleged rights of the Respondents.Civil Appeal No. 4983 of 2009 ETC. ETC. Page 64 of 67
D. Conclusion
57. We are conscious of the fact that these appeals
have been pending before this Court for more than
15 years. In normal circumstances, we would have
ventured to decide the issues ourselves but in light
of the abovementioned observations and dearth of
appropriate records, we are constrained to hold that
ownership rights in respect of an immovable
property cannot be decided casually. We are
actually left with no other option but to remand
these appeals back to the High Court for effective
adjudication on merits.58. Our hands are further tied because of the fact
that the ownership of certain portions of the Suit
Land has apparently changed hands on account of
subsequent sale by the Respondents. Furthermore,
we must also note that the value of the Suit Land
has increased exponentially during the entire period
of litigation and the relevant parties have also done
certain valuable developments. Any decision now
cannot be based on conjectures and surmises or on
the basis of mere guesswork. Hence, we are
reluctant to give a final opinion on the matter untilCivil Appeal No. 4983 of 2009 ETC. ETC. Page 65 of 67
the Court is satisfied on the basis of the entirety of
documents which showcase how the ownership or
possessory rights were created on the Suit Land.59. There are indeed compelling circumstances
which have been left unanswered by the courts
below, because of which determination of several
factual issues have been left in limbo. Therefore, in
light of the peculiar situation, we find it expedient to
remand the present appeals back to the High Court
for fresh adjudication on the issues formulated in
Para 34 of this judgement and the observations
made above. However, we hasten to add that these
observations may not to be treated as final
determination on the merits of the dispute.60. Furthermore, in light of the long-drawn
pendency of these disputes, we request the High
Court to take up these matters at the earliest and
dispose of the same as early as possible, preferably
within a period of upcoming 12 months. However,
all the original records, including revenue entries as
well as that of the office of Deputy Commissioner,
Nainital may be requisitioned. In this regard, we
direct the Appellant State to produce entire recordsCivil Appeal No. 4983 of 2009 ETC. ETC. Page 66 of 67
and notifications before the High Court and render
assistance in the early disposal of these matters.61. Consequently, these appeals are allowed in
part; the impugned judgments of the High Court are
set aside, and the matters are remanded to the High
Court for a fresh adjudication. It is made clear that
casual findings/observations made by Revenue
Authorities or the Civil Court shall not be accepted
at their face value unless the High Court is satisfied
on a thorough inspection of the original or certified
copies of the relevant record. The parties are
directed to keep status quo until the matters are
decided afresh by the High Court.62. Ordered accordingly. Pending applications, if
any, are also disposed of in above terms.………..………………… J.
(SURYA KANT)
………………………….. J.
(J.K. MAHESHWARI)
NEW DELHI
DATED: 18.05.2023Civil Appeal No. 4983 of 2009 ETC. ETC. Page 67 of 67