Roman Catholic Diocese Of Agra vs Union Of India
2010 Latest Caselaw 695 Del

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        *           IN THE HIGH COURT OF DELHI AT NEW DELHI

        4
        +                                    W.P.(C) 4447/1997


                ROMAN CATHOLIC DIOCESE OF AGRA
                P.LTD.                                   ..... Petitioner
                                  Through Dr. Sumant Bhardwaj with
                                  Ms. Archana Pathak Dave, Advocate


                                versus


                UNION OF INDIA                              ..... Respondent
                                           Through Mr. Sachin Datta, Advocate

                CORAM:
                HON'BLE DR. JUSTICE S.MURALIDHAR

                             ORDER

% 08.02.2010

1. This is the second time the Petitioner Roman Catholic Diocese of

Agra Private Limited at Agra in Uttar Pradesh is approaching this Court.

2. On 16th February 1994 the Petitioner filed Writ Petition (Civil) No.

889 of 1994 praying for a direction to the Respondents, which included

the Director General, Defence Lands and Cantonments, Ministry of

Defence, Government of India to take a decision on the application made

by the Petitioner on 19th April 1977 and subsequent representations for

"correction of the entry in the General Lands Register pertaining to

Bungalow No. 161 within the limits of Agra Cantonment which is under

the jurisdiction and control of the Respondents."

3. On 31st January 1996 the following order was passed in the said writ

petition by the Division Bench:

"31.1.1996 CW 4833/1994 Rule 14 of the Cantonment Land Administration Rules 1937 which deals with power to amend the General Land Register and the Military Land Register States that the Director, Defence Estates and Director, Defence Estates (Lands) at Command HQRS and the DED delegated the power to amend the G.L.R. and M.L.R. to Director at Command HQrs. It is not the case of the Respondents that the request of the Petitioner for amendment of G.L.R. was considered by either the Director as aforesaid in the parent Rule or by the Director at command HQrs. In this view we direct that the representations of the petitioner shall be considered and decided by a speaking order by the competent authority, under the aforesaid Rule within a period of three months.

For compliance list the case on 1st August 1996."

4. Thereafter, the Petitioner‟s representations were considered by the

Director, Defence Estates (Lands) Central Command, Lucknow

Cantonment who passed a detailed order on 26th April 1996. The

following three issues were addressed in the said order:

"(A) The basis of entries showing as site granted under Military Rule before commencement of Cantonment Code 1899 as Special Rights.

(B) On what basis the property in question alongwith other properties was declared as

"Wajib-ul-arj" vide Government letter dated 20-5-1943.

(C) Whether the property in question is private property i.e. the building and the land."

5. On the Issue (A) it was concluded as under:

"A careful perusal of the sale deed dated 25th October 1910 registered on 14th November 1910 by Robert Edward Forrest who inherited the property as the sole heir of Capt George Forrest V.C. in favour of Ignatius Colclough Ellis & Mrs Delphine Mary Webb reveals that only the house was sold and the land along with appurtenant land was not at all a part of the said sale deed. The subsequent sale deed dated 27th June 1991 between Ignatius Colcclough Ellis and Mrs. Delphine Mary Webb in favour of His Grace the Archbishop of Agra also does not mention that the Land was a part of the said sale deed.

Another register of Government lands prepared under 271 of the Cantonment Code 1912 for Agra Cantonment shows that the site was occupied before the commencement of the Cantonment Code and the site was granted under Military Rule in special rights.

As already mentioned that this property was mortgaged with Delhi Bank after Capt. George Forrest VC obtained sanction to mortgage the property from Lt. Col. Cheecomdas. No permission is required to mortgage personal property. Moreover, the assets over the land appurtenant to the bungalow like trees etc. had never been part of sale transactions taking place time to time. This all goes to show that land in question belongs to Government."

Further it was held that "The last order regulating the grant of land was issued vide Governor General Order No. 179 of 12th September 1836 wherein the procedure to allow to occupy the land was prescribed. The said Governor General order has still the force of law as an Act of Parliament as held by Full Bench of Hon‟ble Allahabad High Court as reported in AIR 1970 page 170. Therefore, I am of the considered view that the land in question of Bungalow No. 161, Metcalf Road, Agra Cantonment was duly granted by the Government as mentioned in Registrars of Cantonment Code 1899 and 1912."

6. On Issue „B‟ the conclusion was as under:

"As the property had never been a private property it was recorded as Wajibi Arj on the basis of customary rights which were recognized by the Revenue authorities. The existing old grant entry was amended as Nazib-ul-arjon the basis of recommendations of the then Military Estate Officer during 1942-43. Perusal of terms of Wajib-ul-Arz and other related citations shows that the entry of Wajib-ul-Arz is at par with the old existing entry as old grant and it was nothing to do being a private property."

7. On the Issue „C‟ it was held as under:

"According to the provisions of Section 19 of Agra Tenancy Act 1926 Statutory rights cannot accrue to the lands situated within the limits of any Cantonment. This has been further clarified under Section 39 of the United Provinces Tenancy Act 1939 by stating that hereditary rights shall not accrue to the lands situated within the limits of any Cantonment."

"...the land is not at all private property as has been represented by the Roman Catholic Diocese of Agra. Before I sum up the findings I may add that the history of Agra Cantonment by Shri Mukut Behari Lal Mathur, Advocate, Agra prepared in 1934 has got no authenticity and it is also not a published document. Therefore I am unable to take cognisance of this unpublished and unreliable document."

8. After the above order was passed, the writ petition was again listed

before this Court and disposed of on 10th March 1997 by the following

order:

"By order made on 16th May 1994 in CW 889 of 1994 the respondents were directed to dispose of the application of the petitioner dated 19th April 1977 and subsequent representations mentioned in the said order in accordance with the law. Since those representations had not been disposed of by the authorities competent in that behalf, the present petition was filed. In this petition, by order made on 31st January 1996 after noticing that it is not the case of the respondents that the request of the petitioner for amendment of GLR was considered by either the Director, as mentioned in Rule 14 of the Cantonment Land Administration Rules 1937 or by Director at Command Headquarters, we directed that representations of the petitioner shall be considered and decided by speaking order by the competent authority under the aforesaid Rule 14. Pursuant to the aforesaid directions, the respondents have decided the representation and have placed on record the finding dated 26th April 1996 of Mr. A. Mubayi, Director of Defence Estates (Lands), Central Command, Lucknow Cantt. deciding the issue under Rule -14 of the aforesaid Rules. According to the petitioner all

representations of the petitioner have not been decided. We are, however, unable to agree. The question is not about the mentioning of the dates of all the representations of the petitioner in decision dated 26th April 1996 but is to decide the issue. The main issue is noticed in the finding dated 26th April 1996. The same being the case of the petitioner for declaring the property in question as private property having been purchased as per petitioner as freehold by Archbishop of Agra (Fr. Charles Gentili) and the challenge of the petitioner to the description of the property in the records as Wazib-ul-Arz vide Government letter 20th May 1943. The report/finding sets out the main issues as A, B & C and then decides those issues. It would, of course, be for the petitioner to challenge these finding, if permissible in law but we are unable to accept the contention of the petitioner that all the representations have not been considered and issues have not been decided. In this view, the writ petition is dismissed."

9. Thereafter the Petitioner filed the present petition on 13 th/14th October

1997 challenging the order dated 26th April 1996 passed by the Director

General, Defence Lands & Cantonments, Ministry of Defence,

Government of India, impleaded as Respondent No.5 herein. Apart

from seeking the quashing of the said order, the Petitioner is seeking a

direction to the Respondents "to correct the entries in the GLR

pertaining to the Land and Buildings of the Petitioner Bungalow No.

161 situated within the limits of Agra Cantonment which is under the

Respondents."

10. It appears that on the very first date of hearing of the present writ

petition on 23rd October 1997 the learned Single Judge directed Rule to

issue. On the interim application it was recorded that the Petitioner did

not press for the relief sought and it was disposed of as such. Thereafter

the writ petition was dismissed on 19th November 2004 on the ground

that process fee had not been filed. Later, when the Registry pointed out

that it had indeed been deposited, that order was recalled on

28th January 2005 and the writ petition was restored. Thereafter, the

case was listed on 16th July 2009. None was appeared but no adverse

order was passed. When none appeared on the next hearing 20 th July

2009, the case was dismissed in default. It was again restored on

27th July 2009. Again none was present when the case was listed on

26th October 2009. In the meanwhile, the Respondents filed an

additional affidavit dated 13th November 2009 to which no rejoinder has

been filed despite the Petitioner being granted time both on

17th November 2009 and 8th January 2010. It was made clear in the

order dated 8th January 2010 that there would be no further

adjournment.

11. The relevant portion of the additional affidavit dated 13th November

2009 filed by the Respondents reads as under:

"2. I state that the true copy of „Jama Bandi register and Khasra related Chakchavni (Agra) Property Secretariat (Government property) 1878" clearly establishes beyond any shadow of doubt that Khasra No. 99 and 100 were shown as Government property as far back as 1878. The status of the said land as government property has remained unchanged till date. A true copy of the relevant

extracts from the said Jama Bandi register is Annexure A hereto.

3. I further state that the "Register of Government land held by the lessee outsize bazaar (Section 271 The Cantonment Code 1912)" reflects Bungalow No. 161 to be a Government land. This register of 1912 is much prior to the preparation of GLR (which was made for the first time pursuant to the Cantonment Land Administration Rules framed in 1925). A true copy of the relevant extracts from the said register is Annexure B hereto.

4. That also enclosed herewith is a map, the legends and the recitals on which clearly shows that the Government notification of 1879 brought certain pockets of land which were in between the fort area of the cantonment and the main cantonment, within the fold of cantonment area. The entire area was thereby consolidated. The said notification did not bring about any change in the status of the concerned land. A true copy of the Map is Annexure C hereto.

5. That the register of Government land prepared under Section 266 of Cantonment Code 1899, which shows the details of land held by the lessees clearly records Mr. Robert Edward Forest (from whom the petitioner derives title) as the lessee. The relevant extract of the register is enclosed herewith as Annexure D hereto."

12. This Court heard the submissions of Dr. Sumant Bhardwaj, learned

counsel for the Petitioner and Mr. Sachin Datta, learned counsel for the

Respondents.

13. Dr. Bhardwaj was asked to show in the first place how complicated

questions of fact concerning title to immovable property in a cantonment

area could be adjudicated in a petition under Article 226 of the

Constitution. It was submitted that since Rule had been issued in the writ

petition way back on 23rd October 1997 the Petitioner cannot at this stage

be relegated to the remedy of proceedings before a civil court. This

Court does not agree with this submission. Merely because the Rule has

been issued in a writ petition does not mean that it should necessarily be

entertained despite the fact that it involves disputed questions of fact

which requires evidence to be led and for which proceedings under

Article 226 of the Constitution are not appropriate.

14. According to the counsel for the petitioner there was no dispute at

all that the Petitioner was the owner of the land in question. All that was

required to be done was to correct the entries in the GLR to reflect this

position and for which purpose a writ of mandamus could issue. He

added that this being a cantonment area, the civil court might decline to

entertain the suit of the petitioner seeking such relief. In order to

substantiate the said submission, learned counsel took the court

through the documents enclosed with the petition which according to

him unambiguously showed that the land in question was a private land

even in the revenue records. Counsel for the petitioner described the

additional affidavit dated 13th November 2009 filed by the Respondents

as "false" and the documents annexed thereto to be

"fabricated". According to him, these documents do not reflect the

correct factual position. He attacked the impugned order dated 26th April

2006 passed by the Respondent No.5 as being totally false and contrary

to the records.

15. In response to the query of this Court whether any of the documents

referred to by him showed that the petitioner was the owner of the land

in question, learned counsel for the petitioner answered in the negative.

He nevertheless referred to some correspondence in which questions

were raised as to why the revenue records were not corrected to

indicate that the land was private. The opinion of Advocate Mr.Mukut

Behari Lal which has been characterised as "unbelievable" in the

impugned order was referred to as proof of the land being a private land.

The fact however remains that the revenue records continue to show that

the land as Government land, which is why the petitioner has in the first

place approached this court.

16. In the considered view of this Court this petition raises disputed as

well as complicated questions of fact. The land in question is located in

Agra Cantonment. The Respondents rely on official records, i.e. the

relevant extracts from the Jamabandi register, the register of government

lands, and a copy of the Map in support of their plea that the land has

always belonged to and continues to belong to the government. It is

difficult to appreciate how this court is, in a writ petition under Article

226, supposed to adjudicate the issue raised by the petitioner that each of

the above documents enclosed with the Respondent‟s additional affidavit

dated 13th November 2009 is a "fabricated" document and that the

affidavit filed is "false". On the other hand there is in the Evidence Act

1872 (EA) a presumption of the genuineness of official records (See for

e.g. Sections 79 read with 78, Sections 83 and 90 EA). In a case like the

present, where the official records date back to over a hundred years ago,

the burden on the person challenging their genuineness is not

insubstantial and that cannot be discharged by mere statements in

affidavits in writ proceedings. The orders in the earlier writ petition were

only to get the respondents to take a decision on the petitioner‟s

representation. When this court in its order dated 10th March 1997 in the

earlier writ petition permitted the petitioner to challenge the findings in

the impugned order "if permissible in law", this court was by no means

suggesting that a writ petition was the appropriate remedy for that

purpose.

17. The Petitioner has come to this Court asserting that it is the owner of

the land in question and that the Respondents are obliged

to acknowledge that fact by making appropriate entries in the

GLR. However, the Petitioner has not been able to show any document

which unambiguously shows it to be the owner of the land in

question. Unless the Petitioner first discharges the burden of showing

that it has valid legal title to the land, its prayer for a mandamus to the

Respondents to correct the entries in the GLR cannot obviously be

entertained. Consequently, this Court is unable to entertain the present

petition and grant the reliefs as prayed for.

18. The petition is dismissed.

S. MURALIDHAR, J.

FEBRUARY 09, 2010 rk