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SUPREME COURT OF INDIA
Abhay Manohar Sapre, Dinesh Maheshwari, JJ.
KAIKHOSROU (CHICK) KAVASJI FRAMJI AND ANOTHER – Appellant
Versus
UNION OF INDIA AND ANOTHER – Respondent
Civil Appeal No. 5574 of 2009
Decided on : 15-03-2019
(B) Public Premises (Eviction of Unauthorized Occupants) Act, 1971 – Section 4 – Issuance of eviction notice by Estate Officer – Legality of – Notice founded on allegations that appellants are in unauthorized occupation of public premises mentioned in schedule in notice – Appellants have raised bona fide dispute on question of ownership of suit property qua respondent No.1 (Union of India) – In such case, Estate Officer has no jurisdiction to invoke powers under Section 4 of PP Act by resorting to a summary procedure prescribed in PP Act by sending notice under Section 4 of PP Act for appellant’s eviction from suit property – Respondents cannot now be permitted to go back from their statement and take recourse to remedy of summary procedure under PP Act which is otherwise not available to them – Civil Court alone could try and decide question of declaration of ownership of any immovable property between parties and such disputes could not be decided in summary proceedings under PP Act – Impugned order set aside – Notice issued by Estate Officer impugned in writ petition quashed. (Paras 24, 64 to 68, 71 and 83)
(C) Doctrine – Principle pf Merger – For merger to operate, superior court must go into merits of issues decided by subordinate court and record finding/s one way or other on its merits – If this is not done by superior court, plea of merger has no application in such a case and order of subordinate court would continue to hold field. (Para 73)
(D) Constitution of India – Article 226 – Writ petition – Maintainability – Writ petition to question legality and correctness of notice issued under any Act is no bar in entertaining writ petition in appropriate case. (Para 80)
Facts of Case:
Property dispute. respondents filed their counter and defended issuance of notice to appellants including its contents. By impugned order, High Court dismissed writ petition and upheld issuance of notice to appellants under PP Act, which has given rise to filing of this appeal by way of special leave in this Court by unsuccessful writ petitioner.
Findings of Court:
Whenever question of ownership of rights of parties will be gone into by concerned court, it shall decide said question/s strictly on the basis of pleadings and evidence adduced by parties in accordance with law uninfluenced by any observations made by High Court and this Court.
Result : Appeal allowed.
JUDGMENT
Abhay Manohar Sapre, J.
This appeal is filed against the final judgment and order dated 17.06.2009 passed by the High Court of Bombay at Mumbai Writ Petition No.4386 of 2001 whereby the Division Bench of the High Court dismissed the said writ petition filed by appellants herein.
2. Though the controversy involved in this appeal is short, in order to appreciate as to how it arose, it is necessary to set out its background facts in detail infra. The facts are stated from the SLP paper books and the List of Dates furnished by the parties.
3. The appellants herein are the writ petitioners and the respondents herein are the respondents in the writ petition out of which this appeal arises.
4. The dispute relates to a property, which is situated at Survey No.417, Bungalow No.17, Dr. Coyaji Road (formerly known as "Elphinstone Road") Pune-411001. The property consisted of a main bungalow, a cottage, outhouses, garages, and an open plot of land (garden) admeasuring around 1.52 acres (hereinafter referred to as "the suit property").
5. One Burjorji Goostadji and Cooverbai Homi Karani were the owners of the suit property. They sold the suit property to one Mr. Mohammad Hajjibhoy by indenture of conveyance dated 01.03.1920 pursuant to the order of the District Judge made on a Misc. Application No.5 of 1919 granting sanction for the sale in favour of Mr. Mohammad Hajjibhoy.
6. Mr. Mohammad Hajjibhoy then sold the suit property to one Mr. Kaihosrou Sorabji Framji by indenture of conveyance dated 28.11.1923. Mr. Kaihosrou Sorabji Framji then in turn leased out the suit property on 10.10.1929 to the Government of India for a period of five years on a rent of Rs. 110/- per month.
7. Even after the lease having come to an end by efflux of time, the lessee i.e. the Government of India continued to remain in possession of the suit property. However, Mr. Kaihosrou Sorabji Framji then executed another lease deed on 19.04.1940 in favour of the Government of India for a further period of five years. In the year 1939, the lessor i.e. Mr. Kaihosrou Sorabji Framji applied to the Cantonment Board, Pune for giving permission to undertake certain building work in the suit property. After exchange of some letters, the Cantonment Board granted the permission to Mr. Kaihosrou Sorabji Framji.
8. On 30.04.1941, Mr. Kaihosrou Sorabji Framji expired leaving behind his son Mr. Kavasji K Framji who inherited the suit property. By order dated 08.06.1943, the then Collector, Poona requisitioned the suit property under Rule 75 A (i) of the Defense of India Rules and handed over its possession to the Military Authorities.
9. However, after three years on 23.03.1946, the suit property was de-requisitioned and the possession was handed over back to Mr. Kavasji K Framji. On 05.08.1948, the Collector again requisitioned the suit property under Section 5 (1) of the Bombay Land Requisition Act, 1948. In this order it was mentioned that Mr. Kavasji K Framji is the owner of the suit property.
10. Mr. Kavasji K Framji filed Writ Petition No.2783 of 1983 in the Bombay High Court seeking inter alia a relief for restoration of possession of the suit property. By order dated 14.01.1985, the Bombay High Court allowed the writ petition and directed restoration of possession of the suit property to Mr. Kavasji K Framji. The Government of India, however, did not vacate the suit property but undertook to vacate it by 30.04.1985.
11. Reverting to the events to complete the narration of facts in chronology, on 21.01.1971, the Union of India issued a resumption notice in relation to the portion of the suit property (about 22,168 sq. feet). The notice was founded on the allegations inter alia that the suit property was held under "old grant" which empowered the Union of India to resume the subject land. The notice contained that on the expiry of 30 days period after its service, all private rights, and interest of Mr. Kavasji K Framji would be ceased. The notice offered to Mr. Kavasji a sum o
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