PARMANAND SINGH (D) THR. LRS.versusUNION OF INDIA AND ANR.

                            (2017] 14 S.C.R. 582


A                  PARMANAND SINGH (D) THR. LRS.
                                       v.
                       UNION OF INDIA AND ANR.
                        (Civil Appeal No. 7183 of2008)
B                             AUGUST 31,2017
         [R. .F. NARIMAN AND SANJAY KISHAN KAUL, JJ.]
         United Provinces Tenancy Act.1939-s.180- Case of appellant
   that his ancestors were zamindars and were in possession of the
 C disputed land since 1930 :_Jn 1974. proceedings were initiated
   against the appellants uls.122-B of the U.P. Zamindari Act on the
   ground that the said land belonged to the State Government and
   the Gaon Sabha and therefore appellants ought to he evicted -
   Howeve1: thereafter proceedings under U.P. Zamindari Act were
   dropped and proceedings 11/s. I 80 of t~e U.P. Tenancy Act were
D initiated against the appella1.1ts - During the pendency of the suit ul
   s.180. a show cause notice was issued by the Defence Estate Officer
   under the Public Premises Eviction Act u!s.4(1) -_Appellant replied
   to the said notice - However. without giving any reason as to why
   the reply was not acceptable. an order uls. 5(1) ofthe Public Premises
'E Eviction Act was made to evict the appellants from the said premises -
   Meanwhile. the State Government dismissed the suit u/s.180 in
   default - Writ petition filed by the appellant was dismissed - On
   appeal. held: Once suit u!s. I 80 of the Act is dismissed for non-
   prosecution. the provisions of s. I 80(2) activates. under which. if
   no suit is brought under the section, which must also he understood
 F as a suit being brought and dismissed in default, the person in
   possession shall become a hereditary tenant of such plot - The effect
   in law. therefore, of the dismissal for default of suit u/s. I 80 is that
   the status of appellant is that of a hereditary tenant - This being the
   case. the foundational jurisdictional fact of the appellant being an
 G unauthorised occupant in order to attract the provisions of the Public
   Premises Act is lacking - Respondents directed to give the possession
   hack to appellant - Public Premises (Eviction of Unauthorized
   Occupants) Act. 1971 - ss.4 (lnd 5 - U.P. Zamindari Act - s.122-B.
           Allowing the appeal, the Court
H          HELD: 1.1 The suit was filed by the State Government on
                                      582
  PARMANAND ~l'.'\GH (D) THR. LRS. v. UNION OF INDIA                     583 ·
                             AND ANR.


behalf of the Union on the footing that the non-occupancy tenant A
retained the possession of the plot of land without the consent of
the Union, and that, therefore, he was liable to cjcctment and to
pay damages. Once that suit is dismissed for non-prosecution,
the provisions of Section 180(2) of the U.P. Tenancy Act, 1939
kick in. Under this sub-section, if no suit is brought under the B
Section, which must also be understood as a suit being brought
arid dismissed in default, the person iit possession shall become
a hereditary tenant of such plot. The effect in law, therefore, of
the dismissal for default of suit u/s.180 is that the appellant's
status is that ot' a hereditary tenant. This being the case, the
foundational jurisdictional fact of the appellant being an C
unauthorised occupant in order to .attract the provisions of the
Public Premises Act is lacking. As this is so, all the orders that
have been passed by the author.ities as well as the High Court
arc without jurisdiction. [Pata 10] [558-C-F]
    · 1.2 This being the case, it is important to do complete justice    D
between all the parties. Since, it appears that some portion of the
appl!llants' 5 acres may be in the possession of the ex-servicemen
as· lessees of t.hc Union of lrtdfa, it Is directed as follows:-
         1) The khatauni numbers contained at pages 14 and 15 of
         the paper book shall be handed back to the appellants, If       E
         they are not in possession of these khatauni numbers
         already. If the appellantis in part possession, then the
         part of which they arc not in possession shall be handed
         back by the respondents within a period of twelve weeks.
         (Para Hl) (588-F-G]
                                                                         F
         2) If it is necessary to displace the ex-servicemen from
          some part or the entirety of their property in order to hand
          back the land b~longing to the appellants, the Union of
          India will see to it that equivalent land with an equivalent
        · lease will be made available to the ex-servicemen, which
          should also be done within a period of twelve weeks            G
          granted. [Para 10] [588~H; 589~A] ·
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7183 of
2008.

                                                                         H
584            SUPREME COURT REPORTS                       (2017) 14 S.C.R.


A           From the Judgment and final Order dated 02.09.2005 passed by
      the High Court of Judicature at Allahabad in Civil Misc. Writ No.14335
      ofl990.
            Akhilesh Kumar Pandey, Adv. for the Appellant.
            Yashank Adhyaru, Sr. Adv., Mrs. Rani Chhabra, Ms. Priyanka
B     Sony, Ms. Alka Agrawal, M.K. Maroria, D.S. Mahra, Advs. for the
      Respondents.
            The Judgment of the Court was delivered by
            R. F. NARIMAN, J. l. The present case reveals a very sorry
c state of affairs. It appear5 that the ancestors of the appellant were
  Zamindars, and the appellants claim that they were in possession of the
  disputed land, which is roughly 5 acres, since 1930. On 25th July, 1974,
  proceedings under Section 122-B of the U.P. ZamindariAct were initiated
  against the appellants on the ground that the said land belonged to the
  State Government and the Gaon Sabha and that the appellants therefore
D ought to be evicted. After the appellants filed their reply in the aforesaid
  proceedings, by order dated 25•h July, 1974, the proceedings were dropped
  and it was stated that proceedings under Section 180 of the U.P. Tenancy
  Act be initiated.
          2. On 30•h October, 1974, the State Government on behalf of the
 E Union of India through the Collector Mirzapur filed a suit being Suit
   No. I of .1974-75 under Section 180 of the U.P. Tenancy Act for recovery
   of possession and damages against the appellants. The appellants filed
   their written statement and contested the suit. During the pendency of
   the suit, a show cause notice dated 24'h February, 1977, was issued by
 F the Defence Estate Officer under the Public Premises Eviction Act under
   Section 4(1) thereof. On 11th March, 1977, the appellant replied to the
   said notice. On I 7'h March, 1977 the Defence Estate Officer passed an
   order under Section 5(1) of the Public Premises Act. We have gone
   through the said order, which only states that the respondent was put on
   notice and their reply was received and considered. Without giving any
 G reason as to why the reply was not acceptable, an order under Section
   5(1) of the said Act was made to evict the appellants from the said
   premises. On 6'h April, 1977 the State Government allowed the Suit
   No. I of 1974-75 to be dismissed in default.
         3. Inasmuch as the proceeding under Public Premises Act then
 H continued, a writ petition being filed by the appellant which Wf!S also
  PARMANAND SINGH (D) THR. LRS. v. UNION OF INDIA                              585
          AND ANR. [R. F. NARIMAN, J.]

disposed of, an appeal which was first dismissed on the ground of delay        A
was then restored by the High Court by order dated 101h May, 1988.
This appeal finally dismissed on J0 1h Apri_l, 1990. This order recorded:
       "Further it is clear from the evidence on record that the authorities
       have taken the possession of the land in question and has further
       allotted the same to some other ex-servicemen on 7.9.84 and             B
       the possession was also delivered to the allottees.
                  On the basis of the discussions made above, as well as
        on the assessment of the evidence on record, I come to the
        conclusion that the appellant was rightly found in unauthorized
        occupatiion by the Defence Estate Officer over the land in c
        question and I do not find any illegality in the proceeding initiated
        for the eviction of the appellant from the land in.question. I am
        of the view that the present appeal, being devoid ofany merit, is
        liable to be dismissed and the impugned order dated 17.3.77
        passed by the Defence Estate Officer under Section 5( 1) of the
        Public Premises (Eviction of Unauthorized Occupants) Act, 1971 D
        deserves to be confirmed.
                                     ORDER
             The appeal is dismissed. The impugned order dated 17.3.77
        passed by the Defence.Estate Officer, Bihar and Orissa Circle          E
        Da11apur Cantonment Bihar under Section 5(1) of the Public
        Premises (Eviction of Unauthorized Occupants) Act, 1971 is
        hereby confirmed."
      4: A writ petition was filed against the aforesaid order, in which
an affidavit was filed by one Sonam Yangdol in which the deponent              F
recqrded some of the aforesaid facts and also referred to the suit that
was filed under Section 180 of the U.P. Tenancy Act. Without giving the
actual date on which the suit was dismissed for default, which we have
seen is on 61h April, 1977, the deponent of this affidavit went on to state
"thereafter proceedings were initiated under the Public Premises Act
fot eviction on 24'h February, 1977 ."                                         G
      5. It is most unfortunate that an impression was sought to be
created that it was only after the suit was not proceeded with that
proceedings were initiated under the Public Premises Act when the
converse was true.
                                                                               H
586            SUPREME COURT REPORTS                      , (2017] 14 S.C.R.


A            6. The appellants met with the same fate in the High Court, which
      by its order dated 2"'1 September, 2005, held against the appellants as
      follows:
              "Notice under Section 4 dated 24.02.1977 was issued to the
              petitioner and he filed his reply dated I 1.03.1977. Both the
B             documents arc on record and they arc not denied. It is only
              contended that a general notice was served through registered
              post and reply was also given by post but he was not heard. A
              perusal of the notice shows it was a specific notice to the
              petitioner, who gave his reply. Neither in the reply nor anywhere
              else the petitioner has sought any personal hearing. In my opinion
c             the petitioner had a reasonable opportunity and the order cannot
              be challenged on this ground. The appellate court has considered
              this issue in detail and has recorded a finding of fact which has
              not been shown to be perverse.·
                   He has then urged that since a suit under Section 180 of
D            the U.P. Tenancy Act had been filed, which was dismissed in
             default, parallel proceedings under the Act could not go on. In
             my opinion, an order dismissing the suit in default will not help
             the petitioner and earlier to it the order ha:d already been passed
             for eviction under the Act and thus, the respondents did not pursue
E            the suit under Section 180. In any event, as considered by the
             learned District Judge, the petitioner himself had averred in
             paragraph 1 of the WritPetition;No.l 1820/1984 that he was only
             recorded as a non-occupancy tenant over the disputed land, which
             he admitted was set apart for military encamping ground. Thus,
             the petitioner cannot contend that he had any title to the land."
F
         7. The learned counsel appearing on behalf of the appellant has
  argued before us that, at the very least, the appellants were non-
  occupancy tenants and not unauthorised occupants and that, therefore
  the entire proceeding under the Public Premises Act was non est as the
  jurisdictional fact of their being "unauthorised occupants" was
G unwarranted. He cited before us certain judgments and showed that, in
  any event, he was not given any hearing that was mandated by Section
  5 of the aforesid Act, nor was he allowed to lead any evidence which
  showed that he was not an unauthorised occupant.
           8. As against the arguments of the appellant, Shri Yashank
H     Adhyaru. learned senior counsel appearing on behalf of the Union of
  PARMANAND SINGH (D) THR. LRS. v. UNION OF INDIA                               587
          AND ANR. [R: F. NARHvl.AN, J.]

India, has argued before us that it is clear that the Union oflndia is the      A
owner of the premises and as such owner was entitled to initiate
proceedings under the Public Premises Act. In any event, ac;cording to
the learned counsel, the possession ha~ been taken of the said land way
back in 1974 and a lease given to certain ex-servicemen which continued
till the year 1998. Ms. Rani Chhabra, learned counsel appeared before           B
us on beha If 6f the intervenor ex-servicemen, and showed us the lease
that was granted in their favour, which she says is continuing even as on
date.
       9. Having heard learned counsel for the parties, it is first important
to set out Section 180 of the United Provinces Tenancy Act, 1939. Section
180 of the Act reads as follows:                                 ·              C·

               [ 180. Ejectment of person occupying land without consent. -
         (I) A person taking or retaining possession of a plot ofland without
         the consent of the person entitled to admit him to occupy such
         plot and otherwise than in accordance with the provisions of the
         law for the time being in force, shall be liable to ejectmentundct D
         this section on the suit of the person so entitled, and also to pay
         damages which may extend to four times the annual rental value
         calculated in accordance with the sanctioned rates applicable to
       · hereditary tenant:
               Provided that, notwithstanding the provisions ofsub-section E
         ( 1) of Section 246, where such a iJerson takthg or. retaining
         possession is one of the co-sharers whose joint consent is required
         to bring such suit, he shall not be required to join as plaintiff in
         the suit. In such a ·case, the decree passed in favour of the
       · plaintiff shall be deemed to be in favour of all such co-sharers.
                                                                              F
               Explanation I. - A co-sharer in the proprietary rights in a
         plot of land taking or retaining possession of such plot without ·
         the consent of the whole body of co-sharers or of an agent
         appointed to act on bchalfofail of them, shall be deemed to be in      ""
         possession of such .pl~t otherwise than in accordance with the
         provisions of the law within the meaning of this section.            G
               Explanation II. -A tenant entitled to sub-Jet a plot ofland in
         accordance \liith the provisions of the law for the time being in
         force may maintain a suit under this section against the person
         taking or retaining possession_()f such plot otherwise than in the
         circumstances for which provision is made in Section 183.            H
588            SUPREME COURT REPORTS                         [2017] 14 S.C.R.


A                 (2) If no suit is brought under this section, or if a decree
             obtained under this section is not executed, the person in
             possession shall become a hereditary tenant of such plot, or if
             such person is a co-sharer, he shall become a khudkasht holder,
             on the expiry of the period oflimitation prescribed for such suit
             or for the execution of land decree, as the case may be.
B
                   Provided that where the person in possession cannot be
             admitted to such plot except as sub-tenant by the person entitled
             to admit. the provisions of this sub-section shall not apply until
             the interest of the person so entitled to admit is extinguished in
             such plot under Section 45(t).]
 c
          10. Obviously, the suit was filed by the State Government on
   behalfofthe Union on the footing that the non-occupancy tenant retained
   the possession of the plot ofland without the consent of the Union, and
   that, therefore, he was liable to ejectment and to pay damages. Once
   that suit is dismissed for non-prosecution, the provisions of Section 180(2)
 D kick in. Under this sub-section, if no suit is brought under the Section,
   which must also be understood as a suit being brought and dismissed in
   default, the person in possession shall become a hereditary tenant of
   such plot. The effect in law, therefore, of the dismissal for default of suit
   No. I of 1974-75 0116 1h April, 1977 is that the appellant's status is that of
 E a hereditary tenant. This being the case, the foundational jurisdictional
   fact of the appellant being an unauthorised occupant in order to attract
   the provisions of the Public Premises Act is lacking. As this is so, all the
   orders that have been passed by the authorities as well as the High
   Court arc without jurisdiction. This being the case, it is now important to
   do complete justice between all the parties. Since, it appears that some
 F portion of the appellants' 5 acres may be in the possession of the ex-
   servicemen as lessees of the Union of India, we direct as follows:
       The khatauni numbers contained at pages 14 and 15 of the paper
      1)
   book shall be handed back to the appellants, if they are not in possession
   of these khatauni numbers already. lfthe appellant is in part possession,
 G then the part of which they are not in possession shall be handed back
   by the respondents within a period of twelve weeks from today.
      2) If it is necessary to displace the ex-servicemen from some part or
      the entirety of their property in order to hand back the land belonging to
      the appellants, the Union of India will see to it that equivalent land with
 H
  PARMANAND SINGH (D) THR. LRS. v. UNION OF INDIA·                          589
          AND ANR. [R. F. NARIMAN, J.]

an equivalent lease will be made available tO the ex-servicemen; which      A
should also be donc·within a period of twelve weeks granted.
      12. With these observations, the judgment under appeal is set
aside and the appeal is allowed.


Ankit Gyan                                                Appeal allowed.




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