Satish Chandra, J. - (1.) THE Appellant claims that she is the owner in possession of premises No. 23 B.I. Lines Meerut Cantonment. On 23 -1 -1969 the Military Estates Officer, Meerut Cantonment, served upon the Appellant a notice stating that the Govt. has derided to resume the property and it required the Appellant to hand over possession thereof by 28 -2 -1969. A cheque for Rs. 6,650. 00 was annexed with the notice as compensation for the various structures standing on the land. The Appellant challenged the validity of this notice by way of a writ petition in this Court. A learned single Judge held that the case of the Appellant that the land was owned by her as private property and not under an old grant which was subject to cantonment tenure was without merit and was an afterthought. The land was held by the Appellant and her predecessors as an old grant subject to cantonment tenure. He held that the old grants were governed by Governor General's Order No. 179 dt. 12 -9 -1836. This order was in force and is still in force even after the commencement of the Constitution. It was equally applicable to Meerut Cantonment. Construing Clause 6 of this order the learned single Judge held that an offer of compensation is merely an offer to take over the buildings if the Appellant is agreeable and does not involve the process of compulsory acquisition. The Appellant is free to demolish the buildings and remove the bricks and mortar leaving the land in vacant state to be taken possession of by the Govt. There is no compulsion that the Appellant must part with the buildings for the value offered. The Govt. has made an offer that the Appellant may surrender the buildings in return for the compensation mentioned and it is for the Appellant either to accept the offer or to hand over the lands in a vacant state after pulling down the buildings. The learned Judge held: I am unable to agree with the argument that resumption of the land is conditional upon the payment of the value of the buildings thereon or that the acquisition of the buildings is a necessary concomitant of the resumption of the land.... If the price is not acceptable to the Petitioners, they are at liberty to reject the offer and remove the buildings or negotiate for the price. On these findings it was held that the notice does not disclose any legal infirmity and should not be quashed. The writ petition was dismissed. Aggrieved, the Petitioner has come up in appeal.
(2.) FOR reasons mentioned by him we are in agreement with the learned single Judge that the Appellant held land subject to cantonment tenure and that Order No. 179 of 12 -9 -1836 was still in force and was applicable to the Cantonment of Meerut. We deem it unnecessary to reiterate the reasons given by the learned single Judge in support of this view. We are, however, unable to agree on the construction of Clause 6 of this Order. Clause 6 is headed as 'Conditions of Occupancy'. It reads: 6. No ground will be granted except on the following conditions which are to |be subscribed by every grantee, as well as by those to whom his grant may subsequently be transferred: Resumption of Land: 1st.... The Govt. to retain the power of resumption at any time on giving one month's notice and paying the value of such buildings as may have been authorised to be erected. To us it appears that this clause confers upon the Govt. power to resume the grant. The power of resumption is conditioned upon the giving of one month's notice and on paying the value of such buildings as may have been authorised to be erected. We are unable to construe this clause as conferring an unfettered power of resumption. Clearly, two conditions precedent are to be satisfied before the power of resumption can be exercised. The grantee's interest can come to an end only after he has been given one month's notice and paid the value of the authorised buildings. It cannot hence be said that the Govt. acquires right to take possession of the land on the expiry of one month's notice. The paying of the value of the buildings is as much a condition as is the giving of one month's notice before the power to resume can be effectively exercised.
(3.) THE learned Standing Counsel invited our attention to the decision of the Delhi High Court in Sh. Raj Singh v. Union of India : AIR 1973 Del 169. With respect, we are unable to agree with the view that the only right of the grantee is to claim compensation and the Govt. can take possession at any time after the expiry of one month's notice.;