R.M. Sahai, J. - (1.) FACTS giving rise to this petition are that plot No. 28 measuring 1 bigha 15 Biswas in village Aibakpur, Tahsil Chunar was granted to one Osborne, as far back as in 1907 by the then government under the Crowns Grant Act in lieu of services rendered by him for purposes of construction of a building. It is not disputed that he did construct a bungalow on it and remained in occupation thereof as Rent Free Grantee. Osborne transferred the entire property to one Kali Das Barerji on 23.02.l942 who in his turn transferred the same to Sri Kishan Das and Gopal Das in 1948. In 1969 the Petitioner purchased the property from the aforesaid transferors and his name was entered in the Municipal records in pursuance of an order dated 13.10.1969 passed by the Secretary, Municipal Board. In 1970 an application was filed on behalf of Municipal Board before the Prescribed Authority for emend of peutiouer and for recovery of Rs. 5250/ - as damages. It was claimed that he was an unauthorised occupant over the land in dispute for the last two years. It has been found and is not disputed that property in dispute was originally granted to Osborne. In paragraph 2 of the writ petition it is stated that grant was heriditable and transferable. It is not disputed in the counter -affidavit, rather it is admitted that the grant was made under provisions of Crowns Grant Act and it was Rent Free Grant for services rendered by Osborne.
(2.) SECTION 3 of the Government Grants Act provides that 'all provisions, restrictions, conditions and limitations contained in any grant shall be valid and given effect to according to their tenor. As the tenor of the grant A as a permanent lease in favour of Osborne for constructing a building with hereditable and transferable rights therein it could not be resumed by the Municipal Board or even the State Government. In State of Orissa v. Ram Chandra Dev AIR 1964 SC b85 it was observed, 'the distinction between grant of land burdened with service, and grants of land made by way of remuneration attaching to the office created by them is well known. In the first category of cases, grant may not be resumeable while in second category of cases, with the abolition of the office the land can be resumed'. As the grant in favour of Petitioner and his predecessors was not resumeable the Petitioner could not be treated as an unauthorised occupant . It has been argued on behalf of Municipal Board that in 1936 the Settlement area which comprised of the Cantonment Buildings and land and managed the property passed a resolution subjecting the Bungalovv to assessment of rent. It further resolved that the occupant of the land be directed to execute a lease for thirty years in favour of Settlement Area. Therefore, the original grant which was personal in nature in favour of Osborne stood modified. It is very difficult to accept this argument. The grant being in nature of permanent lease in favour of Osborne it could not be modified by the settlement Area. Moreover, this resolution of the Settlement Area was never given effect to as it is admitted that no such deed was got executed by Petitioners predecessors. Resolution determining rent or its demand could not alter the nature of grant. It could not confer any right of resumption of grant either in the Settlement Area or its successor later on.
(3.) IN the result this petition succeeds and is allowed. The orders passed by the opposite parties 2 and 3 are quashed. There shall be no order as to costs.;