B. L. Yadav, J. - (1.) THE Union of India has filed the present petition under Article 226 of the Constitution of India against the order dated 15-12-1976 passed by the Ilnd Additional District Judge, Meerut in an appeal under Section 9 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, (for short the Central Act), allowing the appeal filed by respondent no. 2 against the notice dated 12th January, 1971.
(2.) THE facts of the case are few and simple. Respondent no. 2 Smt. Sanno Devi was the daughter of late Sri Bishambhar Swaroop. She was grantee of the land in Bungalow ho. 9, R. A. Lines, Meerut Cantt. in view of the provisions of Clause 6 of the Bengal Army Regulations, Governor General Order by the Governor General in Council, No. 179 dated 12-9-1836, (for short the Order) (vide Annexure C. A. ' 3 ' to the counter affidavit). That was the order to have the effect from the date of its promulgation at different stations of the Bengal Army. THE Meerut City and its Cantonment area came within area specified in this Order and was all included within different stations of Bengal Army. THEre was a provision providing that the Government retains 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 rooted. Further it was made clear that the land belongs to the Govt, and the same cannot be sold by the grantee. The petitioner no. 2 issued a notice dated 30-7-68, (hereinafter called as the first notice), to Smt. Sanno Devi, respondent no. 2 under Clause 6 of the Order along with a Cheque for Rs. 5,827/- being value of the buildings standing on the land. This notice dated 30th July, 1968 was to the effect that she held Cantonment tenure as a grantee, the President of India being the owner, wants to resume the said land and the construction, the value of the construction, the Cheque for rupees 5,827/- was being sent. This notice was given to quit and deliver possession of the aforesaid building side (i. e. Survey No. 172, Bungalow No. 9, R. A.) to the Military Estate Officer, Meerut, at 10.00 A. M. on 2nd September, 1968. This first notice was not contested by respondent no. 2 nor it was challenged by filing any appeal etc. or by any other process available to her under law. A copy of the first notice has been filed as Annexure ' 1 ' to the writ petition. As the first notice was not challenged, hence the legal consequences indicated in that notice followed. The Military Estate Officer, or the Government became entitled to take and resume possession, at the same time the right of respondent no. 2 to occupy the said land and the building ceased as indicated in the last but one paragraph, of the said notice. In other words, in pursuance of the said notice the right to retain the land and the building came to an end and respondent no. 2 was only entitled to claim damages, for which a cheque for Rs. 5,827/- was sent to her. In pursuance of the first notice respondent no. 2 must have handed over possession to the petitioners, but she did not do so. Thereafter, a second notice dated 19-8-1970, under section 7 (2) of the Central Act, after a lapse of about two years, was sent by the petitioners to the respondent no. 2, indicating that the cantonment tenure along with the building held by her has been resumed with effect from 2-9-1978 (i. e. on which possession was required to be delivered in view of first notice) and she was required to pay damages, for unauthorised occupation. To the second notice, respondent no. 2 submitted a reply dated 7-9-70 (Annexure-3). The said objection was considered by the Estate Officer, Meerut Circle, and it was held that respondent no. 2 was liable to pay damages amounting to Rs. 8,061.45 for the period 2-9-68 to 19-8-1970 and further she was liable to pay damages at the rate of Rs. 4,096.80 per annum from 20-8-70 till the date of handing over possession. Thereafter, a third notice dated 12-1-71 under section 7 (2) of the Central Act was issued, wherein respondent no. 2 was directed to pay damages as aforesaid (Annexure ' 4 '). Respondent no. 2 filed an appeal and the same was allowed by the impugned order
(3.) LEARNED counsel for the petitioners urged that as the first notice, under Clause 6 of the Order was not challenged, which was to the effect that the possession of land and building was resumed and the rights of respondent no. 2, who remained in possession after service of first notice, came to an end, the appellate court erred in entering into the questions covered by the first notice, i. e. resumption of land and building. Only second and third notices were challenged and not the first notice. Consequently, the first notice issued under Clause 6 of the Order about resumption of land and buildings and delivery of possession on 2-9-68 cannot be quashed by the appellate court. It was admitted that contesting respondent no. 2 did not deny this fact, that she did not contest the first notice, hence it was not open on her behalf to argue anything in appeal against the contents of the first notice nor the appellate court had any authority or jurisdiction to allow the appeal and quash the first notice. At the best the appeal could have been decided only in respect of quantum of damages payable by respondent no. 2, which was the subject matter of second and third notice served on respondent no. 2. Learned counsel for the contesting respondent supported the impugned order and urged that the impugned order was perfectly correct and legal and there was no merit in the writ petition.;