Bombay High Court
Sir N. P. Vakil Trust And Anr vs Union Of India And 4 Ors on 14 July, 2016
Bench: S.C. Dharmadhikari
Judgment-WP.2353.2013.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2353 OF 2013
1. Sir N. P. Vakil Trust }
having its office at 19-DG }
st
Chambers, 1 floor, 100-104, }
Nagindas Master Road, }
Fort, Mumbai - 400 001 }
}
2. Mr. N. E. Vakil }
residing at Belvedere Court }
Oval Maidan, Churchgate }
Mumbai - 400 020 } Petitioners
versus
1. Union of India }
Aaykar Bhavan, New Marine }
Lines, Mumbai 400 020 }
}
2. Mr. H. K. Sharma }
Estate Officer appointed by }
Government of India }
Office of the Dy. Salt }
Commissioner, Exchange }
th
Building, 4 floor, Shiv }
Sagar Ram Ghulam Marg, }
Ballard Estate, }
Mumbai 400 001. }
}
3. Salt Commissioner, }
Government of India, P. B. }
No. 139, Jaipur, Rajasthan }
}
4. Deputy Commissioner of }
Salt, }
Exchange Building, 4 th floor }
Shiv Sagar Ram Ghulam }
Marg, Ballard Estate, }
Mumbai 400 001. }
}
5. Superintendent of Salt }
Bhayandar Circle, }
Bhayander District, Thane } Respondents
Page 1 of 67
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Judgment-WP.2353.2013.doc
Mr. Navroze Seervai - Senior Advocate
with Mr. Sharan Jagtiani, Mr. Maneck
Mulla, Ms. Lara Jesani, Mr. Priyank
Kapadia, Mr. Siddharth Damle
i/b.M/s.Mulla and Mulla Associates for the
petitioners.
Dr. G. R. Sharma with Mr. S. R. Rajguru
and Ms. Jyotsna N. Pandhi i/b. Mr. Dhiren
H. Shah for respondent nos. 2 to 5.
CORAM :- S. C. DHARMADHIKARI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
Reserved on 21 st April, 2016
Pronounced on 14 th July, 2016
JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. Since detailed arguments are canvassed based on
exhaustive pleadings, we proceed to dispose of this writ petition
finally with consent of parties.
2. Rule. Respondents waive service.
3. By this petition under Article 226 of the Constitution of
India, the petitioners are seeking a writ of mandamus or any writ,
order or direction in the nature thereof, directing the respondents
to forthwith withdraw and cancel the notices impugned in the
writ petition (Annexures B-1 to B-9) dated 23 rd May, 2013 and
not to take any steps including holding any inquiry in pursuance
thereof. The first petitioner is a private trust governed by the
provisions of the Indian Trusts Act, 1882. The indenture of Trust
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dated 14th January, 1892 duly registered with the Sub-Registrar
of Assurances, Bombay is relied upon and the petition is affirmed
by the second petitioner, who is one of the trustees of the first
petitioner Trust. He has been duly authorised to file this petition.
4. Annexure 'A' to the writ petition is a description of the two
salt works and the lands on which they are located.
5. The first respondent Union of India through the Deputy Salt
Commissioner issued
ig the impugned notices invoking the
provisions of the Public Premises (Eviction of Unauthorised
Occupants) Act, 1971 (hereinafter referred to as "the PPE Act").
The second respondent is the Estate Officer, whereas, respondent
nos. 3 to 5 are respectively the Salt Commissioner and other
functionaries working with or under him. They are authorities
constituted under the provisions of the Central Excise and Salt
Act, 1944 and the Central Excise and Salt Rules.
6. The notices, copies of which are annexed as B-1 to B-9 refer
to section 4(1) and clause (B)(ii) of sub-section 2 of section 4 of
the PPE Act. The grounds on which the notices have been issued
read as under:-
"GROUNDS
Land admeasuring admeasuring 240 acres 00 gunthas
and 04 annas In S. No. 123 and 294 of Village Umela and
Sondore, in the District Thane covered by Jahagir Mahal
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Salt Works in Vasai Road Salt Factory of Bhyandar Circle
vest in Union of India and are under the administration of
this Salt Department. They had been manufacturing Salt
in the salt works under a licence granted under the
Central Excise and Salt Act, 1944 and Rules made there
under and have been paying Ground Rent for the use of
the land covered by the said Salt works for salt
manufacture.
All salt manufacturers in Bombay Region were called upon
to surrender their licence under Rule 111-A of Central
Excise Rules, 1944 and granted a new licence in new
format approved by the government under Rules 103(2)
of the central Excise Rules, 1944 for a period of 25 years
during 1958 in the format approved by the government
and notified Gazette Notification under Salt Commissioner
C. No. 6(3)P/54/7920 appeared on pages 424 & 425 (Part-
III Section I) of the Gazette of India dated April 12, 1958.
Besides, the Manubhai Shah's Committee set up in
January, 1959 by the government of India, recommended
Uniform System of Licensing and Registration (execution
of Lease Deed) of land for manufacture of Salt.
Accordingly the Government of India, vide their
Resolution No. 18(4)/59-Salt, dated 3rd May, 1961 and
Resolution No. 16(23)/63-Salt, dated 13 th December, 1969
had accepted that the Government lands will be leased out
for manufacture of salt for a period of 20 years on
execution of lease deed between the lessor and the lessee.
After the expiry of the validity of the licence granted for
25 years during 1958, by a Notice bearing No. S-
11011(8)Salt/83/4479-4486 dt. 30/06/1983, they were
requested to submit an application duly signed by all the
joint licensees for renewal of the said licence. They were
further requested to get substituted the names of the
persons whose right for salt manufacture in licence needs
devolution owing to inheritance and/or alienation due to
partition from a sale, gift, exchange, etc. and in
accordance with the policy of the Government as stated in
preceding paras. A lease of the lands under salt
manufacture was offered to the persons applying for
renewal of licence on the execution of lease in the
prescribed format and on payment of Ground Rent at Rs.2
per acre per annum and Assignment Fee at Re.1/= per
tonne of salt produced in the said salt works subject to a
minimum production of 20 tonnes per acre per annum.
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The salt manufacturers of Jahgir Mahal Salt Works did
not comply with the conditions of lease offered to them
and did not execute lease deed with the Department.
In identical case(s) the licensees who were issued Notice
for execution of lease of the Central Government Land
being used by them for salt manufacture challenged the
Notice of Dy. Salt Commissioner, Mumbai in various Writ
Petitions in the Hon'ble High Court of Bombay. The
Bombay High Court directed renewal of licence without
insisting upon requisition set out in the Notice. In the
appeal of the Union of India from the said Order of the
Bombay High Court, the Supreme court of India in SLP No.
16065/95 and Companion Petitions has directed the
Respondent (the salt manufacturers) to get their Title
declared from the Competent Authorities.
In accordance with the above Court order, the salt
manufacturers of Jahagir mahal salt Works were again
issued Notice vide C. No.S-11011(8)Salt/83/2619-2626
dt. 05/04/2006 calling for execution of lease deed or to
establish their alleged title to the lands of salt works
before competent court. The salt manufacturers did not
comply with the Notice and did not execute any Lease
Deed with the Department. They failed to establish their
alleged title to the lands of salt works before Competent
Court.
Meanwhile Government of India delicensed the Salt
Industry and deleted the provisions related to Salt under
the Central Excise and Salt Act 1944 and Rules made
thereunder under Notification No.14/96 Central Excise
(NT) dated 23rd July 1996. Since then they are holding
neither a licence to salt manufacture nor any lease deed
executed with the Department for manufacture of salt.
Thus the salt manufacturers of Jahagir Mahal
Salt Works are UNAUTHORISED OCCUPANTS OF
THE SAID PUBLIC PREMISES. "
7. The petitioners replied to these notices contending that
they have been acknowledged owners in uninterrupted
possession since the year 1887. The notices are without
jurisdiction, illegal and malafide.
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8. That is on the footing that for a period of more than 125
years and more the petitioners are recognised as the owners of
the subject lands. That in the year 1971, the first respondent
proceeded to acquire a part of the lands under the provisions of
the Land Acquisition Act, 1894 on the basis that petitioner no. 1
is owner thereof and further the ownership of the subject lands by
the petitioners was for the first time put in issue in 1983 by
illegally calling upon the petitioners to execute lease deeds as a
precondition for renewal of the license for manufacture of salt on
the subject lands. The petitioners vehemently disputed this
position. No action was taken thereafter by respondent No.1 or
any of the other respondents, being authorities established by it
under a statute.
9. Similar Notices (to the Notices of June 1983) were issued
on 17th August, 1998 and 19th August 1998, and reiterated by a
Notice of 4th February, 1999. No action was taken after the
issuance of these Notices to resume the land on the basis that the
petitioners were in unlawful or unauthorized occupation without
the execution of a lease deed with respondent No.4.
10. The petitioners thereafter received notices dated 5 th May
2005. In response to the Notices of May 2005, the petitioners by
their advocates' reply dated 21st May 2005 asserted the position
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that they are the absolute owners of the subject lands and there
was no question of executing any lease deed in respect of the
same.
11. Then again, on 5th April, 2006, notices similar to the notices
of June 1983 were issued calling upon the petitioners, inter alia,
to execute lease deeds with Respondent No.4. Once again, the
petitioners responded and opposed the said notices on the
aforementioned ground.
12.
On 20th June 2007, the Salt Department of respondent No.
issued similar Notices, which were responded to in the aforesaid
manner by the petitioners reply dated 28th June 2007. This reply
of the petitioners again categorically mentioned that it had
already submitted all relevant documents, establishing the title of
the petitioners to the subject lands, to the Salt Department of
respondent No.1 and offered another copy of the said documents
if required.
13. On 2nd August 2007, the petitioners filed Writ Petition
No.1683 of 2007 in the Hon'ble High Court of Bombay challenging
the aforementioned Notices dated 20th June 2007 and 5th April
2006. As in the present case, that Petition proceeded, inter alia,
on the basis that the petitioner No.1 was the absolute owner and
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fully possessed of the subject lands and therefore the demand for
execution of a lease and the threat of resumption of the lands was
completely illegal and arbitrary.
14. By an order dated 18 th September 2008, this Hon'ble Court
disposed off Writ Petition No. 1683 of of 2007 by issuing the
direction to the respondents not to resume the lands in
possession of the petitioners without following due process of law.
15. After this order, despite the directions issued by the
Hon'ble High Court, the Salt Department of the Union of India did
not take any steps to resume the subject lands by following due
process of law.
16. Considering that it was expressly contended by the
petitioners in that Writ Petition that the Salt Department of the
Union of India and the authorities established by the Union of
India cannot take any steps for dispossessing the petitioners from
the subject lands without first establishing their legal right, title
and entitlement in a court of competent jurisdiction, paragraph 4
of the said order necessarily required the Salt Department of the
Union of India and the authorities established by the Union of
India to institute a suit on title in a civil court of competent
jurisdiction.
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17. In February 2011, the trustees of petitioner No.1 visited the
subject lands and observed that the Salt Department of
respondent No.1 had put up markers / signboards claiming that
the land belongs to respondent No1. It was also observed that
respondent No.1 (through the Salt Department) was carrying on
illegal construction of blocks / markers.
18. The advocate for the petitioners addressed a notice date 4 th
March 2011 to the Salt Department of respondent No.1 stating
that this activity was illegal.
19. As no response was received to this notice, the petitioners
were constrained to file Writ Petition No. 555 of 2011. The
petition was withdrawn by the petitioners vide order of this Court
dated 16th March 2011.
20. Thereafter, despite the directions at paragraph 4 of the
aforementioned order dated 18th September, 2008, no
proceedings were adopted by respondent No.1 or the Salt
Department of respondent No.1 or any of the authorities joined as
respondents to the present petition in respect of the subject lands
to establish their title or entitlement to the subject lands. On 23 rd
May 2013, as already mentioned, respondent No.2 issued the
impugned notices under the Public Premises Act.
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21. The petitioners entitlement to the subject lands as also their
right to operate salt works on the subject lands has been accepted
and admitted by respondent No.1 and the Salt Department of
respondent No.1 (Including various authorities that are
constituents of Salt Department of respondent No.1).
22. In 1879, the Bombay Land Revenue Code, 1879 came to be
enacted. This Code defined 'occupant' and conferred various
rights on 'occupants' of land. In 1881, the Bombay Land Revenue
Rules, 1881, came to be framed. These Rules, inter alia,
authorized the Collector to grant occupancy of unoccupied /
unalienated salt marsh (Khajan) land. The rules mandated that
any grant of such land was required to set out the terms of such
grant.
23. By a Government Resolution No,.10279 of 1885 dated 22 nd
December 1885, it was clarified that the power to make a grant of
unoccupied salt lands was with the Collector of the Bombay Land
Revenue Rules and not with the Salt Department.
24. It is pertinent to note that the position that existed at the
time when the subject lands were granted to Sir Navroji Pestonji
Vakil in 1887 was that the power of disposing unoccupied /
unalienated lands for opening salt works was with the Collector -
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Revenue Departments and rights of Salt Department was
restricted to granting licences for manufacture of Salt.
Thereafter, in the year 1890, there was an amendment to the
Bombay Land Revenue Rules and by the introduction of Rules 7A,
7B and 7C the power for disposing lands required for opening salt
works was for the first time conferred upon the Collector of Salt
Revenue. The amendments of 1890 had no retrospective
operation on lands that had earlier been granted by the Revenue
Collector to private individuals the Salt Department did not
assume any control or domain save the right to recover Salt
Revenue on salt produced thereon.
25. The relevant background relating to the manner in which
Sir Navroji Pestonji Vakil (the predecessor in title of Petitioner
No.1and the settlor of petitioner No.1) acquired a grant of the
subject lands from the then Government of British India in 1887
is set out. Also set out is the reference to the facts and documents
by which the said lands were transferred and settled upon
petitioner No.1.
26. It was in the context of this framework of the Bombay Land
Revenue Code and Bombay Land Revenue Rules as also connected
Government Resolutions that the predecessor in the title of the
petitioners, Sir Navroji Pestonji Vakil, after whom the petitioner
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No.1 Trust is named has acted for 14 years as Government Agent
for the sale of salt and upon the sudden abolition of his salt
agencies by the Finance Committee in 1887, Sir Navroji Vakil
wrote to the Salt Department for a grant of Government waste
marsh lands to open new salt works in vicinity of Mumbai for
utilizing his experience and capital and also for deploying his
trained men, otherwise rendered jobless, to manufacture five to
ten lakh maunds of salt. Annexure- "S" to the paper-book is a
copy of the application letter dated 19th March 1887 by Sir
Navroji Vakil to the Commissioner of Customs, Salt, Opium and
Abkari for grant of waste lands.
27. The petitioners state that as Sir Navroji Vakil had a
business relationship with the salt department, made an
application to the Commissioner of Customs, Salt Opium and
Abkari for land and permission to manufacture salt thereon. As
recorded, many others had also applied to the Commissioner of
Customs, Salt, Opium and Abkari, for the grant of the very same
lands to manufacture salt. The Commissioner had no hesitation
in choosing Sir Navroji Vakil, from amongst the many applicants,
as the appropriate person to be granted the lands and give him a
licence to manufacture salt thereon, as pecuniary interests of
Government would be better served by securing as salt
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manufacture the best (former) tenant rather than persons taking
the lands only for mercantile speculation. However, as per laws
and regulations prevailing prior to 1890, disposal of land could
only be by the Land Revenue authorities as the Salt Revenue
Collector had no dominion over the lands prior to 1890. As the
Salt Commissioner did not have the powers to either grant or
dispose off the lands or grant occupancy rights of any form
thereupon, only the district revenue authority, namely the
Collector, was empowered to do so and could dispose off land to
private individuals.
28. That being pleased with the good services of Sir Navroji
Vakil, the Commissioner of Customs, Salt, Opium & Abkari vide
letter dated 24th March 1887 recommended Sir Navroji Vakil's
application to the Secretary to Government, Revenue
Department, Bombay, recording that due to the abolition of his
Government Salt Agencies, Sir Navroji Vakil was now desirous of
entering salt trade on his own. The Salt Commissioner had no
hesitation in selecting him out of all those who had applied for the
grant of certain unreclaimed salt swamp lands at Survey No. 99
of village Umelli and Survey No. 266 of village Sandore in Bassein
Taluka of Thana District without putting it up to public
competition on the ground of the good services he had rendered
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as Government agent for the sale of salt. As per the then
prevailing regulations, the Salt Commissioner recommended Sir
Navroji Vakil for grant of occupancy rights for lands to the
Revenue Department. The Commissioner requested the Collector
of Thana and Kolaba to issue orders for disposal of Government
waste lands to Sir Navroji Vakil by treating his application for the
said lands, as a special case and to grant him occupancy right to
the said lands without putting it up to public competition, which
lands are the subject matter of the present petition. Annexure -
"I" to the paper-book is a copy of the letter dated 24 th March 1887
from the Commissioner of Customs, Salt, Opium and Abkari to the
Secretary to Government, Revenue Department, Bombay.
29. The petitioners state that the Commissioner wrote to the
Governor in Council of Bombay, soliciting the Government's
advice on how the lands could be granted to Sir Navroji Vakil. In
the letter, the Commissioner supported a general proposal put
forth by the Collector of Thana, to the effect that the disposal of
occupancy right of land wanted for extension of salt manufacture
ought to vest exclusively in the Salt Department and that
occupancy rights on such lands ought to be granted by the
respective collector to any person nominated by the Salt
Department. Further, the Commissioner of Salt also stated that if
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the general proposal put by him regarding the disposal of lands be
not acceptable to the Government, then an exception may be
created in the case of Sir Nowrojee Vakil and land may be granted
to him without putting it up for auction on the ground of the good
service rendered by him.
30. The petitioners state that pursuant to the aforesaid
correspondence, the Governor in Council made an absolute grant
of the said land to Sir Navroji Pestanji Vakil by Government
Resolution No. 3380 dated 30th May 1887. The relevant portion
of the resolution is reproduced herein below.
"The case of the Mr. Navroji Pestonji is special, and in the
circumstances of the case, the land applied for may be
granted to him without putting it up to auction. But in
making this exception the Governor in Council is unable to
assent to the general rule proposed by Mr. Pritchard....
Sd
Acting Secretary to Government"
31. Annexure "U" to the paper-book is a copy of the Resolution
of the Governor in Council dated 30th May 1887.
The petitioners state that Resolution 3380 makes it
32.
abundantly clear that the Government intended to make (and
ultimately did make) an unconditional 'grant' of land to Sir
Navroji Vakil. Significantly, the resolution does not even
remotely suggest that the land is leased out to him. The words of
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the resolution are capable of only one interpretation; that the said
land was granted to him absolutely without payment of
occupancy price. The petitioners state that all government
authorities, including the Governor in Council, which passed the
said resolution, took the view that by the said resolution the
Government had made a 'grant' of the said land to Sir Navroji
Vakil, as is borne out by documents enumerated herein below,
thereby acknowledging the title of Sir Navroji Vakil to the said
lands.
33. The petitioners state that after the grant of a larger portion
of lands in the Bassein Taluka, objections were received by the
Mamlatdar from the villagers. In order to assuage their
difficulties, Sir Navroji Vakil conceded certain portion of the land
to the villagers as he wished to keep on good terms with the
villagers and resolved the matter. In recording a letter dated 15 th
August 1887 to the Collector of Thana in this regard, Sir Navroji
Vakil stated that he had applied to the Commissioner of Salt
Revenue for the lands to be given to him as compensation for his
abolished salt agencies as he had no direct claim on the Revenue
Department. Annexure - "W" to the paper-book is a copy of the
letter dated 20th October, 1887.
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34. Sir Navroji Vakil was hereafter put in possession of the said
lands by the relevant Revenue authority, the Mamlatdar of
Bassein under the provisions of the Bombay Land Revenue Code,
1879. The Commissioner informed Sir Nowrojee Vakil of the
Collector of Thana being requested to enter the names of M/s
Navroji Pestonji and Jehangirji Pestonji as the registered
occupants of Umela lands granted to him by Government and
informed that the licence to be granted by the salt department
would be issued in their joint names as is borne out by the letter
dated 1st November 1887 numbered 6044 of 1887, addressed by
the Commissioner of Customs, Salt, Opium and Abkari Poona to
M/s. Nowroji Pestonji & Co. Annexure - "X" to the paper-book is a
copy of the letter dated 1st November, 1887.
35. The petitioners state that Government having treated the
said lands as the absolute property of Sir Navroji Vakil, the
Collector of Thana intimated the Commissioner of Customs vide
letter dated 14th November 1887 of orders having been issued to
Mamlatdarof Bassein to enter in the Government accounts the
names of Messrs Nawroji Pestoji and Jehangirji Pestonji of the
'Registered Occupants' of the Umela lands. Annexure - "Y" to the
paper-book is a copy of the letter dated 14th November, 1887.
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36. At the relevant time the form of Licence for manufacture of
salt in the Presidency, mandated that an applicant seeking a salt
licence had to make arrangements to acquire possession of
ground on which the applicant would then be permitted to
manufacture salt, prior to making an application to the Collector
of Salt Revenue for salt manufacture licence. Annexure - "Z" to
the paper-book is a copy of Form No.13 being the Form No.13
being the Form of Licence provided to Sir Navroji Vakil.
37.
Subsequently on 9th February 1888 the Assistant Collector,
Salt Revenue, Thana Range informed the Deputy Collector, Salt
Revenue of the proposed scheme for salt works received from
Navroji Pestonji & Co. who had obtained 52.8 acres marshy
ground in Bassein Taluk giving details of the three salt works,
recommending Navroji Pestonji & Co. be given similar conditions
as those enjoyed by proprietors of other neighbouring salt works
like Manik Mahal and Jal Mahal, in view of their good services
and testimonials from the Salt Department. Annexure - "AA" to
the paper-book is a copy of the letter dated 9th February, 1888.
38. The petitioners state that after the grant of land, the
Assistant Collector of Salt Revenue on 18 th November 1888 in
response to an application made to the Salt Department, informed
Messers Navroji Pestonji & Co. that the Commissioner of Customs,
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Salt, Opium and Abkari had granted permission to manufacture
salt in their lands. Annexure - "BB" to the paper-book is a copy of
the order dated 18th November 1888.
39. The petitioners state that during the construction of the salt
pans, for operational reasons, additional land was acquired by Sir
Navroji Vakil and Government ordered the Collector of Thana to
grant occupancy rights for 4 acresof Keravali lands on charges of
Rs.2-8 per acre and assessment levied on the same terms as on
the Umela lands added to Jehangir Mahal Salt Works. The
petitioners state the similarly additional lands of about 4 acres
were purchased from the villagers of Umela on payment of then
market price, which lands were included in the Naval Sagar Salt
Works.
40. Thereafter, as per permission from the Salt Department, Sir
Navroji Pestonjee and Jehangirji Pestonjee established three salt
works on the said land namely Jehangir Mahal, Naval Sagar and
Din-Behram Agars, named on family members and hereinafter
referred to as the said salt works. The opening date recorded by
the predecessors of respondents in the Jaminkharda (the record
of rights as maintained by Salt Department) of Jehangir Mahal
Agar is 13.3.1889 and in the Jaminkharda of Naval Sagar and
Din Behram Agar is 1.4.1889. The Jaminkharda column
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referring to ownership 'Whether Government, Inami or Private',
reflects the agar as Private shown as "Shilhotri". Annexure -
"CC1", "CC2" and "CC3" to the paper-book are copies of the
Jaminkhards of Jehangir Mahal, Naval Sagar and Din Behram
Agars respectively.
41. The petitioners state that on 14th January 1892, Sir Navroji
Pestonji and Jehangirji Pestonjee created a private trust i.e. Sir
N.P. Vakil Trust under which the Settlors settled in trust their
properties including the whole of said lands together with the salt
works thereon, valued at Rs.1 lakh and that stamp duty paid on
the said instrument in 1892 was Rs.810/-. In terms of the
Indenture of Settlement, the lawful title and ownership of the said
land and the salt works thereon passed to the petitioner No.1 and
to its Trustees. Annexure - "DD" to the paper-book is a copy of the
Indenture of Settlement dated 14th January, 1892. Since then the
petitioners have been in long, continuous and open possession of
the said lands and the salt works resting thereon and have been
its absolute owners, possessors and have since been
manufacturing salt thereupon. The said Indenture of 1892
settling the Trust is a registered document recording title of the
said lands together with salt works thereon and is within the
knowledge of the respondents for 126 years.
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42. The petitioners state that in addition to the above the
respondents are well aware that the petitioners are the owners of
the lands from various records maintained by the respondents
themselves. The Salt Department maintains a Register of
Buildings of the Bombay Salt Department. The said Register,
apart from describing the name of the building, nature of the
construction also describes the ownership of the lands under the
building. It is undisputed that in the abovementioned register the
said lands upon which stand the salt works are shown as
belonging to the petitioners, as Shilotri's. Annexure - "EE" to the
paper-book is a copy of the Register of Buildings of the Bombay
Salt Department.
43. The petitioners state that the original Register of Licences
of Salt works granted by the Collector of Salt Revenue under
section 12 of Act II of 1890 (Salt Act), and maintained by the
respondents in respect of Jehangir Mahal salt work, Naval Sagar
salt work and Din Behram salt work all record the date of Licence
granted as on 10th May 1894. The Register reflects the name of
the Trustees of the Deed of Settlement in the column Name of
Licensee. The petitioners state that the License Register
unequivocally records that the petitioners, as owners, have leased
out their salt works to various lessees from time to time and the
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respondents have duly acknowledged the same never disputing
the petitioners actions.
44. On 14th October 1898, the Survey Commissioner and
Director, Land Records and Agriculture, addressed an internal
memorandum to the Secretary to Government, Revenue
Department, Bombay. This Memorandum discussed the
feasibility of introducing a system of Record of Rights for the
Bombay Presidency and proposed a scheme for the introduction
of such record.
ig The appendix to this Memorandum was a
template of record of rights in land. This template entitled
"Remarks" also forms part of the appendix, Column 9 of template
record of rights captioned "Status of Occupation" was explained in
the records in the following terms:
Column 9 - "Status of occupant - This is very important
column:-
(a) except in the case mentioned below when
the occupant is identical with the registered occupant
his status will be entered as that of owner ("Malik")
see serial number 1 of model form. The status of any
occupant other than the registered occupant will be
desired according to the circumstances of the
particular case, as tenant (Serial nos. 3 4, 5, 6 and S)
name of landlord being stated, separate sharer (Serial
nos.2, 10, 11 and 13), mortgagee (Serial no. 7),
vendee or the like ....."
45. Annexure - "FF" is a copy of the memondarum dated 14 th
October 1898.
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46. The petitioners submit that the present format of revenue
records including the Extract of 7/12, was introduced in or about
1903. From inception till date, Revenue Record of the subject
lands show the lands as property of the petitioners, reflecting the
names given by the Settlors to the individual Agars as borne out
by the Indenture of Settlement, 1892. The word 'Salt Work' /
'Mithagar' in the 7/12 Extract is not to reflect government
ownership but records the said lands and salt works thereon as
named after family members of the Settlors viz., Jehangir Mahal
salt work, Naval Sagar salt work and Din Behram salt works
which are the names appearing in the 'Occupant / Owner' column.
It is pertinent to point out that there is no reference to
Government in the 7/12 Extract. Annexures - "GG1", "GG2" and
"GG3" to the paper-book are copies of the recent Extracts of 7/12
Register dated 3rd September 2012.
47. The petitioners state that on 21st August 1967 upon a
request made the Salt Department, the Dy. Superintendent of
Salt, Bassein provided a list of all salt works in Bhayander Circle,
Bassein Factory, setting out various details as per Government
records, including Licence Numbers, Date of inception of Salt
works and 'Whether the lands under salt manufacture is taken by
the owner on lease from State Government.' The Salt Department
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has categorically acknowledged at column 9 of the chart prepared
that the petitioners lands shown at Licence Nos.22 23 and 24,
being Naval Sagar, Jehangir Mahal and Din Behram salt works
are salt works are on private land owned by Shilotri and clearly
record. "No, Private land owned by Shilotri".
48. The petitioners state that in terms of a Deed of Indenture of
30th October 1969, the petitioners No.2, along with two others,
was appointed trustee of the Indenture of Settlement of 1892 and
was vested with the properties of the trust including the subject
land. That the respondents have at all times been aware of the
Trust deeds and appointment of new Trustees as owners and
possessors of the trust lands and have acknowledged the same by
making necessary changes in the Licence Register of the Salt
Department from time to time.
On 17th February 1971, an Award came to be passed in land
49.
acquisition proceedings numbered as LAQ/S/R/311 by which
monetary compensation of Rs.11,021.17 was paid to Petitioner
No.1 under Section 12(2) of the Land Acquisition Act, 1894
(hereinafter referred to as "the Land Acquisition Act") as owners
of the Dinbehram Agar, the acquired property. It is thus clear
that respondent No.1 has at the relevant time proceeded on the
basis that the subject land on which the salt work of Dinbehram
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Agar was located was land owned by petitioner No.1. The Award
records Din Behram Agar as the kabjedar of land and that 'there
is no dispute of ownership'. This, amongst other things, amounts
to an unequivoval acceptance of petitioner No.1's ownership of
the subject lands. Annexure - "HH" to the paper-book is a copy of
the Award in the land acquisition proceedings dated 27 th January,
1871.
50. In 1988, one Mr. Bankatlal Hazarimal Garodia, filed a suit
against the petitioners, being Special Civil Suit No.522 of 1988 in
the Court of Civil Judge Senior Division, Thane, seeking a
declaration that the title in the said lands belonged to him. The
respondent Nos.1, 3 and 4 herein were impleaded as defendants
in the said suit and were legally represented and filed their
Written Statement in the suit making a bald claim of ownership of
the said lands without providing any details thereto, whilst filing
a detailed para wise reply to the Plaint. Annexure - "II" to the
paper-book is a copy of the Written Statement filed on behalf of
respondent Nos.1 to 3 herein.
51. The petitioners state that subsequent to filing of the Written
Statement, the plaintiff sought to delete the names of defendant
Nos.2 to 5 therein (including respondent Nos.1 to 3 herein) and
as per order dated 23rd September 1996 passed by the Civil
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Judge, the defendant Nos.2 to 5 were deleted from the array of
parties. Annexure - "JJ" is a copy of the order dated 23 rd
September, 1996.
52. Subsequently, the suit filed by Garodia (plaintiff) was
compromised in September 1996 as per Consent Terms recorded
and a compromise Decree drawn recording that:
"Agreed and Declared that Defendant No.1Sir N.P. Vakil
Trust, represented by its present Trustees K.E. Lalkaka,
C.E. Lalkaka, N.B. Vakil, C. Lalkaka and N.E. Vakil are
the full and absolute owners of and in possession of lands
bearing Survey Nos.117, 118, 123 and 294 on which
stand the three salt works, namely Naval Sagar, Din-
Behram and Jehangir Mahal situate at village Umela,
Taluk Vasai, District......"
53. The conduct of the respondents during the pendency of the
suit, and thereafter is of some significance, for, amongst other
things it bears out the fact that the respondents were always
aware of the petitioners ownership of the said lands and that they
unequivocally accepted the same. The respondents, though not
party to the said consent terms, were fully aware of the aforesaid
decree and did nothing to challenge or otherwise call in question,
the same. As such, the respondents knowingly acknowledged the
said consent decree and, as in the past, accepted the petitioners
title to the said land. In short, the Salt Department and the Union
of India, once again, as they had done on several occasions for
over a century accepted the absolute and undisputed title of the
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petitioners to the said lands. Annexure - "KK" to the paper-book
is a copy of the Consent Decree passed in Special Civil Suit No.
522 of 1988.
54. Thereafter, in Suit No.277 of 1990 filed by the petitioners
against their former salt agent, i.e., the said Goradia, the suit was
settled in terms of consent terms recorded between the petitioner
(as plaintiff therein) and the defendant vide order dated
21.9.1996 recording the same which read as under:
"Agreed and declared that the plaintiffs as the present
Trustees of Sir N.P. Vakil Trust are the full and
absolute owners of and in possession of the lands
bearing Survey Nos.117, 118, 123 and 294 on which
stand the three salt works, namely Naval Sagar, Din-
Behram and Jehangir Mahal situate at village Umela,
Taluk Vasai, District Thana admeasuring about 441
Acres ....."
55. The petitioners submit that of the Decree and orders passed
by civil court of Thana, has declared the title of the petitioners to
the said lands. Annexure - "LL" to the paper-book is a copy of the
order passed in Special Civil Suit No.277 of 1990.
56. As mentioned in the foregoing paragraphs, there were
various Notices issued commencing June 1983 and responses
thereto as also prior proceedings between the parties in relation
to the subject lands and the salt works operated thereon. The
aforestated background and documents categorically establish
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that till June 1983, respondent No.1 and the other respondents
being authorities forming part of the Salt Department of
respondent No.1 have never disputed the ownership and title of
petitioner No.1 or its predecessors, Navroji Pestonji Vakil and
Jehangirji Pestonji Vakil.
57. On a copy of the present writ petition being served on the
respondents, an affidavit in reply has been filed. The affidavit is
affirmed by the Assistant Salt Commissioner. He states that the
petition filed by the petitioners is premature. The writ petition is
filed before conclusion of the proceedings under the PPE Act.
These proceedings are pending before the Eviction Officer. Even
before they are concluded, this writ petition is filed. The
petitioners are not precluded from raising proper contentions and
resisting the eviction proceedings in accordance with the PPE Act
and the Rules. If any adverse order is passed at the end of the
same, then, that can be challenged in appeal before the appellate
authority referred in section 9 of the PPE Act. In the face of such
remedies, this writ petition need not be entertained and be
dismissed as premature.
58. It is then stated that the documents relied upon by the
petitioners clearly reveal that they were never granted any
ownership rights in respect of the lands covered by the salt works
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or that they were in absolute possession thereof. In para 4 of the
reply affidavit, it has been pointed out that the land was granted
as a special case without putting it in auction. The then Salt
Commissioner had put up a proposal to direct the Collector to give
occupancy to the salt pan land to the person named by the Salt
Commissioner. Thus, as a special case and without any auction,
the salt pan land came to be allotted merely on the undertaking of
the petitioner to pay land revenue assessment as usual survey
rate. The documents in that behalf are relied upon and the details
of the same are set out in para 4 of this affidavit. Thus, there was
a grant of an occupancy right and in accordance with the
Government policy. Thus, the Government policies do not enable
grant of any ownership rights as are claimed. The petitioners are
never acknowledged as owners or as having uninterrupted
possession of salt land. Thus, it is contended that the petition
should not be entertained. The petitioners can very well raise all
contentions and at an appropriate stage. Then, it is contended
that the writ petition is not maintainable also on the ground that
there is a bias alleged against the Estate Officer. All the
allegations of bias are denied right up to para 18 of the affidavit in
reply. The petitioners are accused of wrongfully claiming the
lands inasmuch as it is urged that the 7X12 extracts do not
mention the name of the petitioners as holders/tenants. There is
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no lease agreement. The affidavit in reply, therefore, extensively
deals with the documents and attempts to explain as to how the
contents of such documents would not conclusively establish and
prove the rights particularly as owners claimed by the
petitioners. For all these reasons, it is submitted that the writ
petition be dismissed. The argument that the respondents were
obliged to file a suit on title but that being barred by limitation,
they are taking recourse to the PPE Act demonstrates the lack of
bonafides, is denied by pointing out that the parties have been
given an opportunity to agitate their rights before an appropriate
forum. It is not as if proceedings under the PPE Act are ex-facie
without jurisdiction or not maintainable. For all these reasons
and in an affidavit running into about 104 paragraphs, it is
submitted that the petition be dismissed.
59. An affidavit in rejoinder has been filed by the petitioners
reiterating the contents of the writ petition and denying whatever
is contrary and inconsistent therewith. In the affidavit in
rejoinder, it is stated that the proceedings initiated are
completely high handed and not maintainable. The petitioners
have pointed out that they are in uninterrupted and peaceful
possession of the lands for 127 years and as admitted, there is
also no deed of lease in respect of the lands. The long
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uninterrupted possession and in the absence of a deed of lease
would raise a presumption under section 110 of the Indian
Evidence Act that the petitioners are owners of the lands and the
onus of proving and establishing to the contrary is on the
respondents. Further, the attempt of the respondents is to
overcome decrees passed by the Civil Court in Civil Suit No. 522
of 1988 and Special Civil Suit No. 277 of 1990 (Civil Judge,
Senior Division, Thane). There, in the decrees itself is a
declaration that the petitioner Trust is an absolute owner of and
in possession of land bearing Survey Nos. 117, 118, 123 and 294,
on which the three salt works, namely, Naval Sagar, Din-Behram
and Jehangir Mahal are standing. No action has been taken by
the respondents to question the decrees. Then, it is submitted
that the respondents are reluctant to prove their title in the
proceedings simply because post institution of this writ petition,
several facts have come to light. These would also demonstrate as
to how the respondents are seeking to abuse the process of not
only this court but even that under the PPE Act. The documents
are referred to from para 7 onwards of this rejoinder and the
annexures thereto, according to the petitioners, would support
their stand that this court, while disposing of the earlier writ
petition, has not permitted the respondents to invoke the PPE
Act. In the circumstances, while denying each and every
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assertion in the affidavit in reply, in this detailed rejoinder
affidavit, the petitioners elaborated their pleas of ownership and
title to the lands.
60. Mr. Seervai learned Senior Counsel appearing for the
petitioners would submit that the respondents and particularly
the Estate Officer has misconstrued and misinterpreted the order
passed by this court in Writ Petition No. 1683 of 2007 passed on
18th September, 2008. Mr. Seervai would submit that this order
would have to be read as a whole. By reading it in entirety, it is
revealed that the Division Bench, on due consideration of the
notices, which were impugned therein and the decisions relied
upon, held that the petition need not be kept pending. The
respondents were directed not to resume the lands in possession
of the petitioners without following due process of law. This court
once again has emphasised the requirement of following due
process of law. Mr. Seervai submits that the due process of law in
this case would not mean recourse to summary powers conferred
by the PPE Act. These summary powers cannot be invoked to
adjudicate the disputed question of title to immovable property.
This is not a case where the premises are admitted to be public
premises and that they are in unauthorised occupation of the
petitioners. Rather, there is a serious dispute as to whether the
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petitioners' assertion of ownership, which is disputed by the
respondents, is worthy of acceptance or the plea to the contrary
raised by the respondents. Once the contents of the documents
and which are relied upon by the petitioners and the respondents
will have to be proved, because their existence is established.
The petitioners are relying on official documents. They emanate
from the respondents themselves. Once there is a presumption
about such documents and records in law, then, it is for the
respondents to establish and prove that they confer no title as
owner and allegedly fall short of the same. The learned Senior
Counsel relies upon paras 18, 19 and 20 of the affidavit in reply of
the respondents to the present petition in that behalf. On the
question of their contents, the respondents would have to lead
evidence. Equally, there is a right to cross examine the witness
who rely on these documents. It would not be permissible in the
summary proceedings to decide and rule upon the issue of title.
Thus, the moot question is whether the premises can be termed as
public premises and secondly, whether the petitioners can be
claimed to be unauthorised occupants thereof. In the
circumstances, it is not open for the respondents to initiate
summary proceedings.
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61. Mr. Seervai submits that in Writ Petition No. 1683 of 2007,
the petitioners challenged the notices issued by the Salt
Commissioner. In these notices, all salt manufacturers in Bombay
Salt Region were called upon to surrender their licences under
Rule 11A of the Central Excise Rules, 1944 and granted a new
licence in new format provided by the Central Government under
Rule 103(2) of the Central Excise Rules, 1944 for a period of 25
years from 1958 in the format approved by the Government.
These were put in the Government gazette.
ig This assertion is
based on para 1 of this notice that the land covered by the salt
works vests in the Union of India and is under the administration
of the Salt Department. By this notice, the Government called
upon the petitioners, who are stated to be manufacturing salt in
the land pursuant to the above licences and paying ground rent
that certain committee was set up styled as Manubhai Shah
Committee. Its recommendations are referred to in the notice
and eventually, a notification dated 19th July, 1996 is referred. It
is claimed that there is no necessity to obtain licence from the
Salt Department of Government of Maharashtra for manufacture
of salt and therefore, the question of renewal of licence does not
arise. Similarly, the notice refers to copies of prior office notice of
1998, by which, the Department had called upon the
manufacturer to execute lease for the land under salt
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manufacture in the said salt works in the prescribed format and
pay the consideration set out in that notice or else the lands
would be resumed.
62. The notice, therefore, states that the petitioners are still in
possession of the land for the purpose of manufacture of salt, but
they have not responded to the earlier notices. It is in these
circumstances that they were called upon to execute the lease
deed for a period of 20 years from 1 st July, 2003 onwards in the
prescribed format and pay the consideration as set out in the
earlier notices. If they failed to do so, these lands would be
resumed by the Salt Department, Government of India. The
identical notices in relation to these lands and which are subject
matter of this petition were received and a reply was forwarded
by the first petitioner Trust thereto. Mr. Seervai refers to this
reply, copy of which is at Annexure 'N' and submits that the
documents which are referred therein and compiled separately
for the purpose of this petition would denote as to how the
petitioners cannot be said to be the trespassers or in
unauthorised possession of the lands. They are owners of the
same and in their own right. It is in these circumstances that Mr.
Seervai would submit that there is a distortion and misreading of
the order passed by this court. The respondents cannot invoke
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the summary powers vested in the Estate Officer to dispossess
and evict the petitioners. Hence, he would submit that the writ
petition be allowed.
63. Mr. Seervai has taken us through the memo of the writ
petition and all the annexures thereto in great details. He has
also taken us through the compilation tendered containing the
documents relied upon throughout by the petitioners. On the
strength of all this, he would submit that this is a fit case where
the petitioners should not be made to go through the summary
eviction proceedings which are ex-facie without jurisdiction and
an abuse of the process of law. He would submit that if this court
does not take such a view, the PPE Act would be utilised with
impunity to throw out lawful occupants and persons holding title
to the land. In the face of such serious issues as are raised, Mr.
Seervai would submit that the petition be allowed by quashing the
impugned notices. In support of his submissions, Mr. Seervai
relies upon the Resolution of the Governor-in-Council dated 30 th
May, 1887, the correspondence thereafter, the copy of the
indenture of settlement dated 14th January, 1892, copy of the
building register maintained by the respondents and copy of the
Jamin Kharda of the three salt pan lands and the works. Mr.
Seervai also relies upon the copies of the letter of 1957 and the
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correspondence from September to November, 1957 and file
noting so also certain charts to submit that these documents have
been revealed during the course of information provided under
the Right to Information Act, 2005. Mr. Seervai also relies upon
copies of certain documents which are filed as annexures to the
affidavit in rejoinder and eventually the copy of the award in the
land acquisition proceedings. All this would indicate as to how,
according to Mr. Seervai, the petitioners' possession can be traced
to a valid authority. That authority in law is uninterrupted and
un-interferred with till date. On the strength of the same and by
placing reliance on the decision of the Hon'ble Supreme Court of
India in the case of Express Newspapers Pvt. Ltd. and Ors. vs.
Union of India and Ors.1 and in the case of Government of Andhra
Pradesh vs. Thummala Krishna Rao and Anr. 2, it is submitted
that the writ petition be allowed.
64. On the other hand, Mr. Sharma appearing for the
respondents submitted that there is no substance in any of the
contentions raised by Mr. Seervai. This writ petition is
premature and nothing but a futile and desperate attempt to stall
and delay the eviction proceedings. The eviction proceedings are
initiated in pursuance of a valid parliamentary enactment. The
1 (1986) 1 SCC 133
2 (1982) 2 SCC 134
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PPE Act is held to be constitutionally valid. Once that Act is
resorted to, it is evident that the respondents have abided by due
process of law. They have not taken law in their hands, but have
granted full opportunity to the petitioners to controvert the
contents of the show cause notices. Their version would be
considered by the Estate Officer and he will pass a reasoned order
in accordance with law. The writ petition cannot be entertained
because today no eviction order is passed against the petitioners.
The petitioners have not pleaded and with relevant material that
the proceedings would be conducted in such a high handed
manner by the officer that he would afford no reasonable
opportunity to the petitioners of being heard. Rather, the notices
call upon the petitioners to answer the allegations and the
grounds and thereafter bring such materials in their defence as
are permissible in law. Though the proceedings are summary, the
principles of natural justice would not be compromised or done
away with. There is no apprehension that the petitioners would
not be afforded proper and complete opportunity to establish and
prove their defence or raise pleas in answer to the show cause
notice. Therefore, it is not proper to interfere with the notices at
this stage. He would, therefore, submit that the writ petition be
dismissed.
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65. Mr. Sharma further submits that the writ petition involves
disputed questions of fact. The petitioners have merely set out
their version in relation to the salt lands/immovable properties.
Their defence or version does not raise a issue of title much less a
bonafide dispute. Every unauthorised occupant claims title in
himself. By this claim itself he cannot resist or stall lawful
eviction proceedings. Every illegal occupant claims to be the
owner. However, the lands are public premises. How they can be
termed as public premises has been clearly set out in the grounds
in the show cause notices. Once these are public premises, then,
the jurisdiction of a Civil Court to try and determine the eviction
proceedings in relation thereto is barred. He submits that the
jurisdiction is ousted by section 15 of the PPE Act. Mr. Sharma
would submit that the public premises which are in unauthorised
occupation of the petitioners need to be resumed and retrieved.
Eventually, these are public premises and the Government holds
them in Trust for public. What belongs to the public must come
back to the public and by lawful means. In the circumstances,
neither any award in the land acquisition proceedings nor a
decree of Civil Court would bind the respondents. It is well settled
that an award is mere offer and compensation can be offered to
even a person interested in the land. If he can claim that sum,
then, it is evident that land acquisition proceedings cannot be
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termed to be an adjudication as regards the right, title and
interest claimed in immovable properties. Further, consent
decrees, to which the respondents are not parties, in no manner
bind the Union of India.
66. Alternatively and without prejudice, Mr. Sharma submits
that as far as salt pans are concerned, these are lands on which
salt can be manufactured. The right to manufacture it has been
created and vested in parties like the petitioners subject to terms
and conditions. The grant of lands must be seen in this light. It is
not a conferment of title in the lands. None of the documents
produced by the petitioners and relied upon can be said to be a
document of title. At best they would demonstrate prolonged
possession. Thus, there is no title document like a sale deed etc.
in favour of the petitioners. Mere prolonged possession would not
confer title, and that too in respect of public premises, in private
parties like the petitioners. Once the lands belong to the Union of
India, can be termed as public premises, then, the proceedings
under the PPE Act are maintainable. There is jurisdiction in the
Estate Officer to initiate the eviction proceedings under the PPE
Act and take them to their logical conclusion. Though the Act
envisages summary proceedings, but it vests powers in the Estate
Officer to try and decide them in accordance with the substantive
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provisions in the Act and the Rules framed thereunder. The
Estate Officer is a statutory authority. He derives jurisdiction
from the PPE Act. He is not a usurper nor can he be alleged to
have assumed the jurisdiction illegally or unlawfully. Once the
Estate Officer is a statutory functionary, then, there is no
question of bias or prejudice on his part. In these circumstances,
looked at in any manner, the writ petition is not maintainable and
should be dismissed.
67.
Reliance is placed by Mr. Sharma on a decision of a Division
Bench of this court in the case of Kaikhosrou (Chick) Kavasji
Framji of Indian Inhabitant and Anr. vs. The Union of India and
Anr.3.
68. With the assistance of both counsel, we have perused the
writ petition and all the annexures thereto. We have also perused
the affidavit in reply and rejoinder together with the annexures
to the same as well. We have perused the relevant provisions of
the PPE Act and the decisions brought to our notice.
69. The grounds in the show cause notices issued under the
aforereferred provisions/sections of the PPE Act are premised on
the plea that certain lands and more particularly described in the
Schedule to these notices covered by the salt works vest in the
3 2009 (4) AIR Bom. R. 808
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Union of India and are under the administration of the Salt
Department. The noticees had been manufacturing salt in the salt
works under the licences granted under the Central Excise and
Salt Act, 1944 and the Rules made thereunder. They have been
paying ground rent for the use of the lands covered by the salt
works for salt manufacture. The salt manufacturers were called
upon to surrender their licences and granted the new licences in
new format approved by the Government. There was a committee
set up by the Central Government, which recommended uniform
system by licencing registration of lands for manufacture of salt.
The Government expected that the Government lands would be
leased for manufacture of salt for 25 years on execution of deeds
between the lessor and the lessee. After expiry of the validity of
the licences granted for 25 years, the noticees were requested to
submit an application duly signed by all the joint licencees for
renewal of the licences. They were further requested to get their
names substituted in place of those who were granted right for
salt manufacture and which substitution may be on account of
several causes particularly set out in the notice. Pertinently, the
notice itself refers to the lease of the lands under salt
manufacture and that being offered to the parties like the
noticees. Then, the allegation is that the salt manufacturers in
this case did not comply with the condition of lease offered to
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them and did not execute lease deed with the Department. Then,
there is a reference made to an order passed by this court in
various writ petitions challenging the notices issued for execution
of lease of the Government lands used for salt manufacture.
There is a reference made to the order passed by this court, under
which a direction was issued to renew the licences without
insisting upon compliance with the notices. There is a reference
then made to an appeal preferred by the Union of India against
this order of the Bombay High Court and the directions in the
order of the Hon'ble Supreme Court of India that the salt
manufacturers should get their title declared from the competent
authority.
70. The notice further alleges that in pursuance of the order
passed by the Hon'ble Supreme Court of India, the Salt
Commissioner again issued notice calling upon them to have the
lease deed executed or to establish their alleged title to the lands
of salt works before a competent authority. The salt
manufactures did not comply with the notice and did not execute
the lease deed with the Department. They failed to establish their
alleged title to the lands of salt works before the competent
authority. In the meanwhile, the Government of India delicenced
the salt industry and deleted the provisions relating to salt from
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the Central Excise Act, 1944 so also the Rules made thereunder.
The notice, therefore, alleges that since the noticees are neither
holding the licence to manufacture salt nor any lease deed is
executed with the Department for manufacturing salt, then, their
possession of the public premises is unauthorised and, therefore,
they should show cause as to why an order of eviction should not
be made.
71. The petitioners have submitted that they are owners of the
subject lands and posses them as such. They rely on certain
events. The first set of events are issuance of similar notices in
the past, namely Annexures F-1, F-2 and F-3 and the reply
thereto at Annexure 'G' dated 27th October, 1983. In this reply,
copy of which is annexed and which is addressed to the Deputy
Salt Commissioner, it is stated that the trustees have been in
possession of the three Agar lands since 1892 and they have not
paid any rent in respect of the same till 27 th October, 1983.
Reliance is placed upon the trust deed. They stated that the
beneficiaries under the Trust have all along been assessed to and
paid tax in respect of the said Trust. Any claim against the
trustees or otherwise is time barred. It was stated in that letter
that the trustees have been producing salt on part of the lands
under the licence from the Salt Commissioner and which was
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renewed from time to time. Despite this position and facts, if the
Government maintains that the lands belong to it that it is
entitled to levy ground rent, the Deputy Commissioner was
requested to produce the documents to substantiate the claim. It
is stated that after such a reply, no steps were taken by the
respondents nor they initiated any legal action.
72. Similar notices were issued on 17th August, 1998 and 19th
August, 1998 reiterated by further notice dated 4 th February,
1999.
No action was taken even after these notices for
resumption of the lands on the footing that the petitioners were in
unlawful or unauthorised occupation thereof. Annexures 'H', 'I'
and 'J' are copies of these notices.
73. Then, another set of notices received in May, 2005 were
replied to vide annexure 'L' by the petitioners' Advocate. In that
as well, the petitioners asserted their ownership by pointing out
that they are owners of the lands beneath the salt works. The
petitioners alleged that the Salt Commissioner mischievously
addressed notices despite knowing that these are private lands.
74. It is alleged that similar notices were issued on 5 th April,
2006 and they were opposed by the petitioners. They replied to
these notices issued on 5th April, 2006 and a copy of that
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letter/reply is at Annexure 'N' to the petition. In that reply, after
repeating their assertion of absolute ownership, attributing
malafides to the Salt Commissioner, the petitioners stated that
their legal ownership dates back to the year 1887. The lands
were acquired by Nawroji Pestonji under a grant from the
Government in the year 1887. The lands were granted under
Government Resolution issued in terms of Chapter IV of the
Bombay Land Revenue Code, 1879 with special reference to
sections 60 to 68 thereof.ig Despite such legal ownership, the
Department is calling upon the petitioners to execute the lease
agreement in respect of the said lands, which is absolutely illegal
and bad in law. They stated that it is incorrect to state that the
land beneath the salt works vests in the Union of India and is
under the administration of the Salt Department of the
Government of India. They rely upon a trust deed dated 14 th
January, 1892, which, according to them, vested the lands with
the Trust. They stated that only the salt manufacturing licence
format was modified and it had no reference to the lands beneath
the salt works. Then, a reference is made to the notices of 1983
and the payment of assignment fees since then, under protest.
Thus, the ground rent was paid, which is nothing but a land
revenue assessment. That was collected on behalf of the land
revenue authority as per the relevant Government notification.
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Then, they refer to a notification of 2003, which, according to
them, makes no reference to collection of ground rent by the salt
commissionerate. They stated that the Manubhai Shah
Committee's recommendations have no application to private
lands, on which salt works are situated. They would apply only to
the lands vesting in the Government. Since the lands are
privately owned by petitioner no. 1 Trust, there is no requirement
of having lease deed executed. The petitioners made a clear
distinction between the licence required to manufacture salt and
the said requirement having nothing to do with the land beneath
the salt works. The land beneath continuous to be held privately
according to the petitioners. It is in these circumstances that
they called upon the respondents to withdraw the notices. The
petitioners having set up a title in themselves and throughout
that Mr. Seervai would submit that the respondents rightly did
not invoke the provisions of the PPE Act or the summary powers
of the Estate Officer thereunder.
75. When they again issued such notices, the petitioner had to
knock the doors of this court, according to Mr. Seervai. Prior
thereto, the petitioners replied to the letter dated 20 th June, 2007
of the Deputy Salt Commissioner, Mumbai by their letter dated
28th June, 2007. The petitioners stated that for the past 120
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years, the lands are with them. The lands were given under grant
of occupancy rights to the settlors of the Trust and if the
Department has, in its possession, any lease agreement executed
between the Government and the Trust in respect of these salt
works, then, they be provided with the copy of the same.
76. It is in such circumstances that Writ Petition No. 1683 of
2007 was filed and this court, after hearing both sides, passed the
following order:-
"1. Heard.
2. The petitioner has approached this court seeking a
writ of this court to declare that the attempted
resumption of the said lands by the respondents is ultra
vires Article 246 read with Entry 18 of List II to the
Seventh Schedule to the Constitution of India and
Article 300A of the Constitution of India, contrary to
law, and wholly without jurisdiction and therefore, this
court should prohibit the respondents, by themselves,
their servants, agents, officers and subordinates, from
resuming the said lands, acting under the impugned
notices or at all, and/or in any manner dispossessing
the petitioners from the said lands except by the due
process of law, and in any event, not without first
establishing their legal right, title and entitlement to do
so in a court of competent jurisdiction and for other
ancillary reliefs like withdrawing the impugned notices
which have been issued by the respondents to the
petitioners annexed as Exhibits EE and CC1 to CC3.
3. Our attention has also been drawn to the decisions
of the Division Benches of this court in the case of Abdul
Samad Abdul Kadir Thakur vs. the Union of India and
Ors. in Writ Petition No. 176 of 1983 decided on 9.10.91
and the other in the case of Shri Vinayak Yadneshwar
Sathe vs. Union of India & Ors. in Writ Petition No. 7916
of 2003 decided on 6.5.08 and the decision of the
Supreme Court rendered in the case of Union of India
through Deputy Salt Commissioner vs. Shri Puranmal
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Lalchand Mundra and anr. reported in AIR 1996 SC
3195.
4. After giving our anxious consideration to the
decisions which have relied upon by the parties and
going through the impugned notices, we are of the view
that the petition can be disposed of with a direction to
the respondents not to resume the land in possession of
the Petition without following due process of law.
5. We may reiterate that the emphasis is on due
process of law and it will be open for the parties to
agitate their rights at appropriate forum.
6. Petition stands disposed of accordingly."
77. Then, the petitioners objected to the placing of a signage on
the lands belonging to the Trust. They stated that these are
incorrect and illegal and putting up of the same amounts to
trespassing on the petitioners' lands. Therefore, the petitioners
states that when this court granted liberty to the respondents to
dispossess the petitioners by due process of law or to resume the
lands by following due process of law, that due process of law does
not mean invoking the PPE Act.
78. Mr. Seervai also relied upon the documents which are in
possession of the respondents and dating back to 1887 in order to
buttress the above submission.
79. We would make a brief reference to these documents and
which are placed before us in a compilation. Prior thereto, we
would refer to the Advanced Law Lexicon by P. Ramanatha Aiyar,
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3rd Edition Reprint 2007 to understand as to what is meant by
"due process of law". The "due process of law" is understood
thus:-
"DUE PROCESS OF LAW in each particular case means
such an exercise of the powers of the government as
the settled maxims of law permit and sanction, and
under such safeguards for the protection of individual
rights as those maxims prescribe for the class of cases
to which the one in question belongs. A course of legal
proceedings according to those rules and principles
which have been established in our systems of
jurisprudence for the enforcement and protection of
private rights. To give such proceedings any validity,
there must be a tribunal competent by its constitution-
that-is, by the law of its creation-to pass upon the
subject-matter of the suit; and, if that involves merely
a determination of the personal liability of the
defendant, he must be brought within its jurisdiction
by service of process within the state, or his voluntary
appearance. Pennoyer v. Neff, 95 US 733, 24 L Ed
565. Due process of law implies the right of the person
affected thereby to be present before the tribunal
which pronounces judgment upon the question of life,
liberty, or property, in its most comprehensive sense;
to be heard by testimony or otherwise, and to have the
right of controverting, by proof, every material fact
which bears on the question of right in the matter
involved. If any question of fact or liability be
conclusively presumed against him, this is not due
process of law."
80. Mr. Seervai relies upon the principle that if any question of
fact or liability has to be conclusively presumed against someone,
it is not due process of law. According to him, the notices proceed
on the basis that the lands beneath the salt works belong to and
vest in the Government and the petitioners having failed to renew
the licence to manufacture salt and execute a lease deed for the
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land beneath their possession and occupation thereof is
unauthorised. This, according to Mr. Seervai, is belied by the
contents of the documents and records, in respect of these lands,
and in force since 1887.
81. To appreciate the correctness of this submission, we would
now make a brief reference to the documents and stated to be in
possession and control of the Central Government. This is in
order to find out as to whether there is a real and bonafide dispute
with the Government and if the Government desires to prove its
case as set out in the notices, is it necessary for it to approach a
competent Civil Court or the recourse to the summary jurisdiction
is permissible in the facts and circumstances of the case.
82. A grant was made to Mr. Navroji Pestonji of licence to
manufacture salt on certain unreclaimed salt swamps in the
villages in Bassein Taluka in Thane District as a special case.
That Grant No. 3380 of the Revenue Department, Bombay Castle
dated 30th May, 1887 refers to several applications received for
issue of licence to manufacture salt on certain unreclaimed salt
swamps, but among the applications received, the one from
Navroji Pestonji, who acted for many years as Government agent
for the sale of certain salt to the entire satisfaction of Department
concerned and who had lately closed the business came to be
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selected as the best tenant and salt manufacturer. Accordingly,
for disposal of the occupancy rights of land wanted for extension
of salt manufacture and vested exclusively in the Salt
Department, there was a suggestion that these occupancy rights
in Government land cannot by law be conferred except by the
action of the district revenue authorities, the Collectors of Thane
and Colaba. Therefore, the district revenue authority was
informed that the occupancy rights should not be disposed of
without consulting the Salt Department. If the preamble and the
contents of the letter dated May, 1887 are read, prima facie, it is
apparent that the revenue authorities were directed to grant
occupancy right in the land to the person named by the
Commissioner of Salt and if these general proposals from the
Department do not meet the approval of the Government, then,
Mr. Navroji Pestonji's case/application be treated as a special case
and the occupancy rights be granted to him without a public
competition. That was on the ground of good service rendered as
Government agent for the sale of salt. Mr. Seervai does not rest
the case only at this recital or preamble, but relies on the
following resolution:-
"Resolution - The case of Mr. Navroji Pestonji is special,
and in the circumstances of the case the land applied for
may be granted to him without putting it up to auction.
But in making this exception the Governor in Council is
unable to assent to the general rule proposed by
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Mr.Pritchard, and the present Acting Commissioner,
Mr.Moore, should be requested to submit proposals to
give effect to the orders contained in Government
Resolution No. 2423, dated 29th November, 1886."
83. Next document relied upon is the proposal prior to the said
grant. That proposal was put up by none other than the
Commissioner of Customs, Salt, Opium and Abkari one C. B.
Pritchard. That proposal to the extent relevant reads thus:-
"6. If these general proposals should not meet with the
approval of government, I would request that
government may be pleased to treat Mr. Nawroji
Pestonji application for the Umeli and Sandar land as a
special case and to grant him the occupancy right
without putting of up to public competition on the
ground of the good revenue he has rendered as govt.
agent for the sale of salt."
84. These proposals of the Collector were sanctioned and that is
also evident from the document dated 21st October, 1887.
85. Then, reliance is placed upon the indenture of settlement
and prior thereto, the intimation to the Mamlatdar of Bassein to
enter in the Government accounts names of M/s. Nawroji Pestonji
and Hehangir Pestonji as the registered occupants of the Umela
land.
86. The deed of settlement records a grant from Navroji
Pestonji to one Kothawala, Vania and Dinshaw Jijibhoy and their
heirs. Prior thereto, reliance is also placed on the entries in
Jaminkharda of Jehangir Mahal Salt Work and Din-Behram Salt
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Work so also Navalsagar Salt Work. Then, reliance is placed on
the building register maintained by the respondents.
87. Mr. Seervai places reliance on the insertion of the word
"shilotri". Mr. Seervai would submit that this word itself would
denote as to how the occupation and possession is understood.
This is not suggestive of any unauthorised occupation in the least.
At best, it is a nomenclature given to the nature of the occupancy
or the right created. He would rely upon the Manarashtra Land
Revenue Code, 1879 and its predecessor law. It is submitted that
occupancy rights are creatures of statutes or to be precise the
creatures of customs adopted by statutes in the sense that
acquisition of such rights by ryots etc. does not depend upon
bounty or gift of the landlord, but they can be acquired against his
will. Our attention is also invited to section 29 of the existing
Maharashtra land Revenue Code, 1966, which enlists the
occupancy rights and categories them Class - I and Class - II.
Class - I occupant can transfer the Government land allotted to
him without permission of the Government, but Class - II
occupant has to obtain it prior to effecting a transfer in favour of a
third party.
88. Mr. Seervai has then invited our attention to the letter at
pages 453 to 456 of the rejoinder (at pages 82 to 85 of the
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compilation) to submit that as early as on 31 st August, 1957, the
Salt Commissioner, Delhi was informed as under:-
"DEPARTMENT/OFFICE
Letter Serial No.
Draft File No.
No.2(52)Salt(B)/57 Dated the 31st August, 1957.
To,
The Salt Commissioner
New Delhi
Sir,
Sub:- 'Jehangir Mahal' ' Naval Sagar' and
'Dinbehram' Salt Works in Bassein Factory -
Leave of for a further period of 5 years from
1.7.1958 to 30.06.1963
---------------------------
I have the honour to State that the three Salt Works
viz. (1) Jehangir Mahal, (2) Naval Sagar (3) Dinbehram
in Bassein Salt Factory, stand in the joint names of the
trustees and Shilotries viz. (1) Shri B. S. Lalkaka (2) Shri
B. H. Vakil, (3) Shri J. R. Vakil, (4) Shri R. D. Vakil and
(5) Dr. K. A. Lalkaka. These three salt works had already
been allowed to be leased to Shri Bankatlal Hazarimal for
a period of 5 years from 1.7.1953 to 30.6.1958 under this
office order No. 2(101) Salt (B)/53 dated the 29 th January
1954.
2. In his application dated the 8th July 1957, Shri B. S.
Lalkaka, the Managing trustee of three abovesaid three
Salt Works, now requests permission to lease these three
Salt Works for a further period of five years from 1.7.1958
to 30.6.1963 to Shri Bankatlal Hazarimal of Bhayandar,
the present lessee. The latter has given his consent to the
said transaction and the A. S. C. Thana has recommended
his request.
3. The land covered by these three Salt Works does not
belong to the Central Govt, and I see no objection to the
applicant's request being granted.
Yours Faithfully,
O/c
D. S. C. (B)
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Sd/- Sd/- Sd/-
30.8.57 30.8057 30.8.57
"Supplied under R. T. I. Act, 2005."
VMA/SK
31/8"
89. He emphasises the words appearing in para 3 reproduced
above.
90. Then, Mr. Seervai has relied upon the Deputy Salt
Commissioner's notes in the file, which reveal as to how the
abovequoted letter has been understood. The Assistant Salt
Commissioner, Thane recommended the request, but while
sanctioning it, it was sanctioned with the above endorsement and
clarification. Then, what is relied upon is the letter from
Assistant Salt Commissioner, Thane to the Salt Commissioner,
Bombay, in which it is stated that the surviving trustees of the
Jehangir Mahal, Naval Sagar and Din-Behram salt works of Vasai
factory have requested for inserting the name of Mr. K. E.
Lalkaka as trustee vice Mr. T. R. Vakil since deceased. Though
this application has not been signed by one of the trustees Mr. B.
S. Lalkaka, who is reported to be ill, it is confirmed in this letter
that the Solicitors for the Trust have clarified that the request of
the other trustee about the appointment of new trustee in place of
the deceased would be confirmed in writing by Mr. B. S. Lalkaka.
That is how the Assistant Salt Commissioner was requested to
grant the permission. Thereafter, Mr. Seervai relies upon the file
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notings, copies of which are to be found at pages 97 to 100 and it
is stated that the request as made has been sanctioned.
Mr.Seervai has also relied upon the further file noting to be found
at page 102. That pertains to the complaint made to the Revenue
Department for carrying out a survey. That was to identify any
encroachment on the land. The clarification was sought as to
whether anybody from the Department, namely, the Salt
Commissionerate should remain present at the time of such
survey. The clarification is that the salt work is a private one.
The Department, therefore, does not find it necessary to remain
present at the time of survey by the Revenue Department. The
dispute is between the Revenue Department and the Shilotris.
91. Mr. Seervai then relies upon a copy of the chart furnished
by the Deputy Superintendent of Salt, Vasai under cover letter
dated 22nd July, 1967. That informs the Superintendent of Salt
and the factory officer about the lands held by Salt Department,
payment of land assessment to the State Government. Therefore,
information was sought so that from the details it could ascertain
whether the land in column 5 of the chart is placed for disposal by
the Department and it shows the date thereof and whether the
land under salt manufacture is taken by the owners on lease from
the State Government.
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92. Mr. Seervai submits that above correspondence, together
with the copy of the opinion dated 3rd/10th October, 2008 at
pages 520 to 524 of the rejoinder and pages 183 and 187 of the
compilation would indicate that the opinion was sought regarding
further action to be taken by the Salt Commissionerate in
pursuance of the order dated 18th September, 2008 of the
Division Bench of this court in Writ Petition No. 1683 of 2007. In
that opinion, according to Mr.Seervai, reliance was placed on the
earlier correspondence and the stand of the petitioners that they
are owners of the entire land, they and their predecessors have
been in possession since last century. Thus, it was claimed to be a
private property and therefore, no rent is payable. They stated
that the land can be used for any purpose. That is how the
trustees were called upon to produce documentary evidence to
show the origin of their alleged title to the land. The opinion also
refers to the reply to this notice and the production by the
trustees of a trust deed dated 14th January, 1892. That confers
ownership, according to the petitioners/trustees and the
possession of the Agar lands since 1892. Then, this opinion states
that though the trustees did not execute any lease deed with the
Department, the licence for manufacture of the salt was renewed.
The correspondence would reveal that the Salt Department called
upon the petitioners to obtain a licence and to execute lease teed,
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but the stand of the petitioners was that they have not found any
such document. Then the opinion states that much prior to the
notice of Salt Department, the salt works were leased out by the
trustees to one Mr. Bankatlal Hazarimal Garodia for work of salt.
A suit was filed by the said Bankatlal being Special Civil Suit No.
522 of 1988 in the court of Civil Judge, Senior Division against
the Trust, Union of India and others. The opinion also refers to
the outcome of the suit, namely, the consent terms, by which, the
suit was compromised between the plaintiffs and the defendants.
An application was again made by the plaintiffs informing that
they do not want to prosecute the suit against the Union of India
nor they want to claim any relief against the Union of India and
therefore, prayed to delete their name and others from the suit,
which was granted by the Civil Court on 23rd September, 1996.
Thus, the Department was not aware about the application for
consent terms. The consent terms indicated that the trust was in
full and absolute ownership and possession of the land in which,
the three salt works are standing and that is how a reference was
made to the Law Branch Secretariat, Mumbai on 26 th August,
1999 seeking an opinion from them as to whether the suit as
compromised by the parties needs to be restored and if yes, the
procedure to be followed. The Law Branch Secretariat, on 8 th
September, 1999 endorsed to the Salt Commissioner that the
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limitation to set aside the ex-parte order is over long back and the
Department will have to file a separate suit to challenge the
decree. The suit was not filed because of the reasons explained in
the opinion. These reasons are read out by Mr. Seervai in details
and what appears from this opinion is that the consent decree
dated 23rd September, 1996 still stands, the Union of India is yet
to file a suit as advised earlier by the Law Ministry in terms of
para 12 of this opinion and the High Court order dated 18 th
September, 2008 ig restrains the Department from taking
possession of the lands without following due process of law.
93. Then, Mr. Seervai relies upon letter dated 1 st January, 2001
addressed by the Deputy Salt Commissioner to the Additional
Legal Adviser, Law Branch Secretariat, Mumbai seeking the Law
Ministry's opinion as to whether the PPE Act can be invoked in
the above circumstances or a substantive suit should be filed
challenging the decree. A doubt was expressed and according to
Mr. Seervai, throughout that the PPE Act cannot be invoked if
there are litigations pending. Though the litigations are pending,
there is a consent decree, by which, the claim of the Trust as
owners appears to be established.
94. Finally, Mr. Seervai submits that if a "Shilotri" is a person
to whom occupancy rights are granted and based on that
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compensation has been awarded to the petitioners under an
award passed by the Collector/Land Acquisition Officer invoking
the Land Acquisition Act, 1894, then, it is apparent that the
proceedings for acquisition can be initiated only for acquisition of
lands not belonging to the State Government or central
Government or private lands. If the lands vest in the Central
Government, then, there was no need to acquire them by invoking
this Act. That means, the Government has admitted that the
lands are of private ownership.
95. Mr. Sharma appearing for the Revenue does not deny that
these documents are from the official files and records of the Salt
Commissionerate and the Government itself. These documents
do indicate that such doubts were expressed as are extensively
referred by Mr. Seervai. These documents would also show that
there were proceedings of the nature referred above. By that,
Mr.Sharma would submit it does not mean that the PPE Act
cannot be invoked. Even if the PPE Act is invoked, that abides the
order passed by the Division Bench in Writ Petition No. 1683 of
2007. Meaning thereby, this is due process of law.
96. We are unable to accept Mr. Sharma's submissions. In the
present facts and circumstances, which are indeed peculiar, we
do not see how the Government/Union of India could have taken
recourse to any summary proceedings. The documents referred
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by us above create sufficient doubt in the mind of respondents
themselves. The doubt may not be about title of the lands as
projected by Mr. Seervai, but it is definitely about the remedy
they must resort to so as to recover possession of the lands from
the petitioners before us. Even if they are termed as
unauthorised occupants, then, from the notices issued under the
PPE Act, what we find is that the contents of the same and the
documents are inconsistent with and contradict each other. The
notices proceed on the footing that the lands vest in the Central
Government, but are termed as salt lands, because these lands
have been allowed to be utilized for manufacture of salt by
private manufacturers of parties. The notice proceeds on the
footing that for the purpose of manufacturing salt, licences were
issued under the then Central Excise and Salt Act, 1944 and such
licences were obtained/renewed till a certain period. Thereafter,
the licencees though in possession, have not come forward to
obtain the licences or to seek the renewal of the same. They have
failed to obtain or renew the lease of the land beneath the salt
works. They having not taken such steps, their occupation and
possession of the land is unauthorised. Therefore, they can be
evicted under the PPE Act. We find from the Government records
themselves that certain documents were traced out and they
reveal the consistent stand of the Salt Commissionerate. The
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consistent stand is that allotment of land is made in favour of
Navroji Pestonji as a special case without inviting bids or a public
competition, the prolonged and continued possession of the lands
by the Trust/trustees of the private Trust, the trustees being
permitted to induct third parties for operating the salt works, the
dispute between the third parties and the petitioners/trustees
which was subject matter of a civil suit in the court of competent
jurisdiction at Thane, the consent terms filed therein after
deleting the Union of India from the array of parties, but at the
same time such terms acknowledging the ownership rights of the
present petitioners, such terms having been accepted on record
by the Civil Court and the suit decreed on the basis thereof, the
resumption notices being not pursued and similarly, though
pursued resulting in a writ petition being filed in this court with
the above order and direction coupled with the land acquisition
proceedings create not only a doubt about the remedy to be
adopted against the petitioners in the mind of the Central
Government/Union of India, but the basis thereof prime facie is a
title dispute. That relates to the properties/lands in question. In
the circumstances, this is not a case where it is the petitioners
who in defence of some proceedings instituted by the Central
Government or Union of India contending that they are full
owners and not having any limited occupancy rights, but it is the
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Central Government's opinion and view that it may have to move
a competent Civil Court to establish its title and seek possession of
the lands. In the face of such opinions, remarks in official
documents and records, it is really surprising that the
respondents resort to summary remedies and shortcuts.
97. We find that Mr. Seervai's reliance on the decision of the
Hon'ble Supreme Court of India in the case of Express
Newspapers Pvt. Ltd. (supra) to be well placed. The Hon'ble
Supreme Court of India clarifies that there may be a ambiguity in
the expression "due process of law", but in the facts and
circumstances before it, the Hon'ble Supreme Court of India
desired a clear answer to it and whether it mandates institution of
a suit in a competent Civil Court. In para 85, the Hon'ble Supreme
Court, speaking through His Lordship Mr. Justice A. P. Sen (as
His Lordship then was) held that once there was a grant and in
favour of Express Newspapers Private limited, then, the
possession of the said lands by that entity coupled with the
construction carried out would reveal that they were not
unauthorised occupants as understood by the PPE Act and
therefore, recourse to the summary proceedings was not
permissible. In that case, "due process of law" would imply filing
of a suit by the Union of India.
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98. This aspect has also been very succinctly pointed out in an
earlier decision of the Hon'ble Supreme Court of India in the case
of Thummala Krishna Rao and Anr. (supra). Mr. Seervai rightly
places reliance on paras 6, 8, 9 and 10 of this judgment.
99. Once the summary procedure under the Act in that case,
namely, the A. P. Act styled as A. P. Land Encroachment Act,
1905 was not permissible because the facts squarely raised an
issue of title or a dispute in nature thereof, then, to our mind,
disregarding this settled principle, the respondents in this case
could not have resorted to the PPE Act.
100. The respondents' act of resorting to the same is in the face
of the order passed by this court and the principle of "due process
of law". The impugned action is clearly arbitrary and violative of
the mandate of Article 14 of the Constitution of India. The
principle of equality before law and equal protection of law in this
case implies that whether it is the Union of India or a private
party, the moment there is a dispute about title, then, the remedy
of a regular civil suit in a competent Civil Court must be resorted
to. Any departure from the same or bypassing it would violate
the mandate of Article 14 of the Constitution of India and make a
mockery of the principle enshrined therein of equality before law.
Looked at from this angle and in the light of the peculiar facts and
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circumstances of this case, it will have to be held that the
impugned eviction notices and the proceedings in pursuance
thereof are ex-facie without jurisdiction. The eviction officer
under the PPE Act has usurped the jurisdiction without any legal
foundation. Once this conclusion is reached, the petitioners
cannot be compelled to appear before him and defend the notices
or submit to his power and authority under the Act. The Act itself
is incapable of being invoked and applied to the petitioners
herein. The matter before us is squarely covered by the
principles laid down in the case of Whirlpol Corporation vs.
Registrar of Trade Marks, Mumbai4
101. As a result of the above discussion and without multiplying
this judgment with more authorities and rulings, we quash and
set aside the impugned notices. Rule is made absolute in terms of
prayer clauses (a) (ii) and (iii). In the circumstances, there
would be no order as to costs.
102. However, our judgment and order in this writ petition shall
not, in any manner, be construed or interpreted as an opinion on
the question of title to the lands covered by the salt pans. The
issue of title shall be decided uninfluenced by the outcome of the
present petition. Equally, no court or tribunal shall be influenced
4 AIR 1999 SC 22
J.V.Salunke,PA
Judgment-WP.2353.2013.doc
by our observations above. All the more, our judgment and order
does not hold that the petitioners are owners of the property.
(DR. SHALINI PHANSALKAR-JOSHI, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
