1965 Supreme(MP) 141

High Court Of Madhya Pradesh
V. R. Newaskar, P. K. Tare and H. R. Krishnan, JJ.
SHIVKUNWARBAI - Appellant
Versus
STATE - Respondents
Misc. Petn. 18 Of 1964
Decided On : 11/25/1965

Headnote:(1) Government Premises (Eviction) Act, 1952 (M.P.) - Ss. 3 & 5 - basis jurisdiction of ordering eviction under the Act-Occupant making out a prima facie case for his possession-eviction cannot be ordered-Government should have a clear title in order to invoke these provisions.

       Per Newaskar J.- It will be seen from the provisions of the Act that the jurisdiction of the competent authority to order any person to vacate the premises in his occupation rests upon those premises being Government premises. This is consequently a jurisdictional fact. The competent authority cannot require a person to vacate the premises in exercise of the power under section 3 of the Madhya Pradesh Government Premises (Eviction) Act if they arc not Government premises. It is also clear that the competent authority, by erroneously holding any premises as Government premises cannot confer upon itself jurisdiction which it does not possess. (1190) 2 Kings Division 859 relied on. [Para 66]

       Per Tare, J.- It is not necessary for me to go into the question whether a disputed question of title could be gone into in such summary proceedings. Generally there is an accepted principle that disputed question of title should not be gone into in summary proceedings and the summary enquiry ought to be confined to the specific provisions made in the particular enactment. In the present cases, the petitioners have undoubtedly made out a prima facie case for the exercise of prerogative powers of this Court by showing that the claim of the respondent about the premises being Government premises was an untenable one from any point of view; and for that reason the provisions of the Government Premises (Eviction) Act, 1952, could not be resorted to. [Para 22]

       Per Krishnan, J.—When there is a bona fide dispute regarding the title or when Government's own title is doubtful or uncertain, it would be inexpedient for Government to take steps under the Act, one of the conditions of its application being that there should be clear title in Government. [Para 31]

       (2) Constitution of India - Art. 226 - Government Premises (Eviction) Act, 1952 (M.P.) - Ss. 3 & 6 - jurisdiction of civil Courts barred-competent authority wrongly assuming jurisdiction - High Court should grant relief.

       Per Newaskar, J. - Even as the jurisdiction of the Civil Court is barred under section 6 of the Act it is competent for the High Court in exercise of its powers under Article 226 of the Constitution to examine whether the jurisdictional fact regarding the premises being Government premises has been rightly assumed to exist. If according to the view of the High Court there was no lawful basis for such assumption, then it is competent for it to act in exercise of its powers under Article 226 of the Constitution for the issue of a writ of certiorari and quash the orders of the competent and appellate authorities. AIR 1962 SC 918 and AIR 1957 SC 832 relied on. [Para 68]

       (3) Constitution of India –Arts. 366 (10) and 372 - Orders of a former Ruler of Indian State-whether law or executive or administrative orders-tests-orders of the Ruler of the Jhabua State declaring property given to petitioners as his personal property - are not law-successor Government gels no right over such property.

       The former Ruler of the Jhabua State made an order on 30-3-1948 that the immovable property mentioned in the list annexed thereto became his private property. The second order dated 1-4-1948 was in the nature of communication addressed to the petitioners informing them that cash allowance which they were being paid out of the Civil list would thereafter be paid to them from the State Treasury. It. was also stated that the petitioners were in possession of private property of the Ruler, they could continue to live in them till their life whereafter they would be taken possession of by the Ruler.

       Per Newaskar, J.— The order. dated 30-3-1948 cannot be 'Law' because had that been so in the ultimate settlement these properties would have become de property of the Ruler, since the law of the erstwhile State which integrated to Madhya Bharat became the law of the new State unless modified, altered or repealed by the Act of the State legislature and later when the Constitution came into force, the laws of the pre-existing States become the existing law under Art. 366(10) of the Constitution and would have continued under Art. 372 as laws. Such a position is moreover destructive of the stand of the State of Madhya Pradesh that the said properties became the properties of the succeeding State and did not continue as the private properties of the Ruler. The order dated 30-3-1948 of the Ruler is, therefore, not 'law'. It is also not a judicial determination of the dispute as to title between the Ruler and the petitioner. This order, is therefore, nothing better than an executive order of a declaratory character. [Para 54]

       The statement made in order dated 1-4-1948, involving assection of fact cannot be read as 'law'. For if it were law then on integration it bad to be respected by the State of Madhya Bharat by the Regulation of Government Act No. 1 of 1948 and there would have remained no scope for the Government of India to intervene and 'settle the private property of the Rulers so as to exclude these houses from the list of the private properties of the Rulers. The law in the absence of any legislation by the State of Madhya Bharat before the Constitution would have continued as 'law' under Article 372 of the Constitution of India as the existing law as defined in Article 366(10) of the Constitution of India. In that case there would remain no scope for the State to claim the houses as the "Government Premises". [Para 57]

       It is thus clear that the communication of the Ruler addressed to the predecessors of both the petitioners dated 1-4-1948 is not law. It cannot be called judicial determination of the absolute title of the Ruler and the extent of the interest which the petitioners were entitled to hold. Case-law reviewed. [Para 58]

       Per Tare, J.-Such orders passed by the previous Rulers, if they had been given effect to or carried out, in short, if they had become a fait-accompli, there would be nothing for the successor sovereign either to approve or disapprove or to recognise or not to recognise. But if such orders had not become fait-accompli, the successor sovereign would be required to recognise or not to recognise the same or to give effect to them or not to give effect to them. [Para 14]

       After enactment of the Constitution, such high-handed and arbitrary orders of confiscation of property by the Ex-Rulers at their whim and, sweet will have evidently no place In the scheme of the rule of the law established by our Constitution. Therefore, it can be assumed safely that the successor sovereign in all propriety, fairness and sense of justice refused to recognise the same on the premises that they were inchoate and not fait-accompli. Case-law discussed. [Para 16]

       Per Krishnan, J.—I do not agree that the decision by the Ruler in 1948 made before the accession of the State and embodied in the orders was not a fait-accompli. No doubt even after that order the grantees continued staying in the houses; but it was in a new capacity, which was made perfectly clear to them. Before the order they stayed on in the houses on what might be called an inchoate title. But after the orders they stayed only by virtue of the permission granted by the Ruler, permission in other words to stay there during their life-times. I am even prepared to consider it as a 'property' in a general sense, namely, a right to stay during the lifetime. But nobody has deprived or is seeking to deprive the grantees of this right. The present steps are against their successors-in-interest after their death, in other words, after that 'property' if one should can it so, has ceased to exist, and had spent itself alongwith the life of the grantees. I fail to understand why such a position should be called inchoate. [Para 28]

       It is therefore clear that the Ruler of the Jhabua State had while he was still the absolute Ruler clearly ordered that in these houses the grantees at that time should have only the right of residence till their death after which they should become State properties. If the Courts feel themselves competent to interfere with the final and complete disposition of properties made by the Rulers before their accession there would be no end to confusion and injustice. We may find ourselves called upon to reopen grants or forfeitures made by the East India Company, or even the Moghuls or the Guptas. The only cases in which such intervention can be envisaged are those where the decision concerned are patently incomplete, and the Rulers themselves have left something indefinite and uncertain for subsequent reconsideration. That is not the position here. [Para 30]