Allowed

Shri Narendra Madhusudan Murkumbi v. the Director General Defence Estates

Karnataka HC23 Nov 2021WP/102891/2021

Case brief

AI extract

What is this about?

Transfer of an old-grant cantonment bungalow required prior permission, including transfer of its superstructure and leasehold rights. The court quashed the refusal of GLR mutation and directed consideration of post facto permission with a hearing. It also directed registration-record endorsements preventing transfers without permission.

What did the court decide?

Mutation rejection quashed; representation to be considered within 60 days with a hearing. Registration-record endorsements requiring prior transfer permission directed.

Shri Narendra Madhusudan Murkumbi Vs the Director… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 23^RD DAY OF NOVEMBER, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION No.102891/2021 (GM-RES)

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BETWEEN:

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SHRI NARENDRA MADHUSUDAN MURKUMBI AGE. 51 YEARS, OCC. BUSINESS, R/O. B C 105, HAVELOCK ROAD, CAMP. BELAGAVI 50001, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, SMT. VIDYA MADHUSUDAN MURKUMBI, AG.E 74 YEARS, OCC. BUSINESS, R/O. B C 105, HAVELOCK ROAD, CAMP, BELAGAVI 500001 ...PETITIONER

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(BY SRI.: SANGRAM S KULKARNI, ADV.)

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AND

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1 . THE DIRECTOR GENERAL DEFENSE ESTATES MINISTRY OF DEFENSE, RAKSH SAMPADA BHAWAN, ULLAN BATAR MARG,

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DELHI 110010.

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2 . THE DIRECTORATE OF DEFENSE ESTATES MINISTTRY OF DEFENSE, SOUTHERN COMMAND, PUNE 411001, MAHARASHTRA.

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3 . THE DEFENSE ESTATE OFFICER KARNATAKA AND GOA CIRCLE, K KAMRAJ ROAD, BANALORE 560042.

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4 . THE CHIEF EXECUTIVE OFFICER CANTONMENT BOARD, CAMP, BELAGAVI 590001. …RESPONDENTS

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(BY SRI VENKATESH M.KHARVI, CGSC)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI AND QUASH THE IMPUGNED ORDER BEARING FILE NO.K/299/59 DATED 01.10.2020 VIDE ANNEXURE-E ISSUED BY THE THIRD RESPONDENT THE DEFENSE ESTATE OFFICER, MINISTRY OF DEFENSE GOVT. OF INDIA, BANGALORE, 2. ISSUE A WRIT OF MANDAMUS DIRECTING THE THIRD RESPONDENT TO FAVORABLY CONSIDER THE REPRESENTATION DATED 19.10.2020 VIDE ANNEXURE-F FILED BY THE PETITIONER AND DIRECT THE THIRD RESPONDENT TO ENTER THE NAME OF THE PETITIONER IN THE GLR RECORDS RELATING TO GLR SY.NO.146, BUNGALOW NO.160 SITUATE AT CATTLE ROAD, CAMP, BELAGAVI.

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THIS WRIT PETITION COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for the following relief:

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“1) To issue a writ of certiorari and quash the impugned order bearing file No.k/299/59 dated 01.10.2020 vide Annexure-E issued by the third respondent the Defense Estate Officer, Ministry Of Defense, Govt. of India, Bangalore.

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2) Issue a writ of mandamus directing the third respondent to favorably consider the representation dated 19.10.2020 vide annexure-F filed by the petitioner and direct the third respondent to enter the name of the petitioner in the GLR records relating to GLR Sy.No.146, Bungalow No.160 situate at cattle road, camp, Belagavi”

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2. Facts:

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2.1. The petitioner claims to be a purchaser of property bearing No. BC 160 consisting of the main bungalow and outhouse and the land appurtenant thereto measuring about 1.72 acres, bearing GLR Sy.No.146 along with occupancy right situated at Cattle Road, Camp, Belagavi.

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2.2. The petitioner has purchased the superstructure namely the main bungalow situated on the aforesaid properties.

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2.3. The petitioner claims that the occupancy right was granted to late Sri R.N.Boyce who was in possession of the same and his name was duly entered in the GLR. Thereafter, the property changed hands and now the petitioner has purchased superstructure on the property.

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2.4. Upon the said purchase, by way of registered sale deed dated 5/12/2018, the petitioner issued a notice under Section 81(1) Cantonment Act 2006 to respondent No.4 requesting for entering the petitioner’s name in the tax demand register as also an application was submitted on 22/1/2020 for entering the name of the petitioner in the GLR.

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2.5. Though the notice under Section 81 was accepted and necessary entries were made incorporating the name of the petitioner in the tax demand register, however, petitioner request for entering his name in the GLR register is rejected vide letter dated 1/10/2020 issued by the Defense Estate Officer, Karnataka Circle, Bangalore, contending that there was a prerequisite for obtaining prior permission for sale or

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purchase of old grant bungalow. Since no such prior permission had been obtained, the name of the petitioner cannot be entered in the GLR.

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2.6. The petitioner has immediately issued a letter dated 19/10/2020 to the Defense Estate Officer (DEO) vide Annexure-F contending that neither the petitioner nor the vendors were aware of the said requirement. Hence, the petitioner was making a formal request for a grant of permission post facto. The said letter is yet to be replied to by the respondents.

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2.7. The petitioner is before this Court seeking for the aforesaid relief of quashing the rejection letter dated 1/10/2020 at Annexure-E and for a mandamus directing the respondents to consider the representation dated 19/10/2020 vide Annexure-F aforesaid.

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Shri Sangram S.Kulkarni, learned counsel

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appearing for the petitioner submits that

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3.1. Once the respondents have entered the name of the petitioner in the tax demand register, it was required for the respondents also to enter the name of the petitioner in the GLR.

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3.2. Since the petitioner has purchased the property under a registered sale deed and are making payment of necessary tax, he submits that what has been purchased by the petitioner is only a superstructure. Hence, there is no embargo on the respondents to register the name of the petitioner since it is akin to transfer or assignment of leasehold rights there is no transfer or sale of the land in question, the Defense Department continues to be the owner of the said land.

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3.3. There cannot be restriction or embargo on a person transferring the superstructure for eternity or for perpetuity, the petitioner’s purchase is required to be recognized and consequently, his name entered in the GLR.

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3.4. The petitioner will not act to the prejudice of the respondent in as much as the petitioner intends to use the property only for the purpose of residence. The petitioner would not be demolishing the construction or putting up any new construction on the property.

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3.5. He submits there is no provision under the Cantonment Act 2006 or in Cantonment Act 1924 requiring prior permission to be obtained before such transfer.

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3.6. There is a default committed by the petitioner and the landowners in obtaining the prior

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permission which is completely bonafide, this would be a fit case for the respondent to consider the representation of the petitioner at Annexure-F and grant post facto permission and enter the name of the petitioner in the GLR. On these grounds, he submits that the petition requires to be allowed.

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Per contra, Shri Venkatesh M.Kharvy, learned counsel appearing for the respondent submits that:

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4.1. There is an order by the Governor-General in Council No.179 dated 12.09.1836 by virtue of which in terms of clause (6) thereof, prior permission is required to be obtained from the Government through the Commander-inChief. Clauses 6 and 7 thereof are reproduced hereunder for easy reference:

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“6. Conditions of occupancy: No ground will be granted except on

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the following conditions, which are to be

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subscribed by every grantee, as well as by those to whom his grant may subsequently be transferred.

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Resumption of land :

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Ist:- The Government to retain the power of resumption any time on giving one month’s notice and paying the value of such buildings as may have been authorized to be erected.

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Land belongs to Govt. Land cannot be sold by grantee. Transfer of houses between military officers.

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2^nd :- The ground, being in every case the property of Government, cannot be sold by the granted: but houses or other property thereon situated may be transferred by one military or medical officer to another without restriction, except in the case of reliefs, when, if required, the terms of sale or transfer are to be adjusted by a Committee of Arbitration.

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Arbitration in case of transfer on relief. Transfer of house to civilian.

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3^rd :- If the ground has been built upon the buildings are not to be disposed of to any person of whatever description who does not belong to the army until the consent of the Officer Commanding the station shall have been previously obtained under his land.

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4^th :- Transfer to native. When it is proposed, with the consent of the General Officer, to transfer possession to a native, should the value of the house, buildings or property to be so transferred exceed Rs.5,000, the sale must not be effected, until the sanction of Government shall have been

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obtained through His Excellency the Commander-in-chief.

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7. Houses claimable for purchase or hire at option of owner: All houses in a military Cantonment, being the property of persons not belonging to the army, which may be deemed by the Commanding Officer of the station suitable, from their locality, for the accommodation of officers, shall be claimable for purchase or for hire at the option of the former case at a valuation, and in the latter at a rent, to be fixed, in case, of the parties disagreeing by Committee of Arbitration constituted as follows.

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4.2. The said General Order was amended in the

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year 1855 and the amended provision also requires prior permission of the Government to be obtained. Clauses 6 and 7 of the General Order by the President in Council in No.700 dated 3^rd July, 1855, is reproduced

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hereunder for easy reference:

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Condition of occupancy: Resumption of

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land

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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;

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1^st – The Government 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.

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2^nd – Land cannot be sold by grantee, Transfer of houses between Mily Officer. The ground, being in every case the property of Government, cannot be sold by the grantee; but houses belong to Govt. of other property thereon situated may be transferred by one military or medical officer to another without restriction, except in the case of reliefs, when, if required, the terms of sale or transfer are to be adjusted by a Committee of Arbitration.

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Arbitration in case of transfer on relief. Transfer of house to civilian.

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3^rd – If the ground has been built upon, the buildings are not to be disposed of to any persons, of whatever description who does not belong to the army, until the consent of the officer Commanding the station shall have been previously obtained under his hand.

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4^th – Transfer to native: When it is proposed, with the consent of General Officer, to transfer possession to a native, should be value of the house, buildings or property to be so transferred exceed Rs.5,000, the sale must not be effected, until the sanction of Government shall have been obtained through His Excellency the Commander-in-chief.

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7. Houses claimable for purchase of hire at option of owner. All houses in a military cantonment, being the property of persons not belonging to the army, which may be deemed by the Commanding Officer of the Station suitable, from their locality, for the accommodation of officers shall be claimable for purchase or for hire at the option of the owner; in the former case at a valuation, and in the latter at a rent, to be fixed, in case of the parties disagreeing, by a Committee of

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Arbitration Committee of Arbitration constituted as follows.

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5.1. He refers to letter issued by the Under Secretary to the Government of India,

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Ministry of Defense to the Director, Military Lands and Cantonment dated

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21.08.1970 which reads as under:

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“ No.8026/L/L&C/70/8249/D (Lands) Government of India, Ministry of Defense, New Delhi, the 21^st August, 1970

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The Director, Military Lands & Cantonments, New Delhi.

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Sub:Mutation of Bungalows held on old grant terms.

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Sir,

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I am directed to refer to Ministry of Defense letter No. 3116-L/L&C/51, dated the 21st March, 1951 sad to convey the sanction of the President to the withdrawal of the power delegated the MEOs to sanction with the previous concurrence of the Officer Commanding the Station the transfer from one party to another of Bungalows on sites granted under the terms of GGO 179 of 1836. In future, all cases where sanction is required for the transfer of properties held on/Old Grant' terms and situated outside the civil areas will be referred to Government for orders.. The proposals will be sent by the MEOs direct to

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the DML & C accompanied by the following documents/information

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1. GLR Extract.

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2. Copy of old grant papers where available. 3. Site plans showing authorised and unauthorised constructions and area covered by them.

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4. Copy of application of the holder of the house, building or property requesting for permission to sell the property.

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5. The name of the intending purchaser and the price proposed to be paid.

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Yours faithfully,

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Sd/D.Krishnamurthi, Under Secretary to the Government of India”

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5.2. The power under the letter of 1970 was delegated to the Director General, DLC vide letter dated 29.03.1978 again issued by the

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Under Secretary to Government of India addressed to the Director, Defense Lands and Cantonment. The said letter reads as under:

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No.730/14/L&C/70/2436/D (Lands) Government of India, Ministry of Defense, New Delhi, the 29th March, 1978

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The Director General, Defense Lands & Cantonments, Ministry of Defense, New Delhi.

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Sub: Mutation of bungalow held on old grant terms.

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Sir,

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I am directed to say that in supersession of the orders contained in Ministry of Defense letter No. 8026/L/L&C/70/8249/D (Lands), dated 21-81970, the President is pleased to delegate to the Director General, DL & C the power to sanction mutation of sites held on old grant terms in bungalow areas of Cantonments.

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2. While according his sanction, the Director General would stipulate the following terms and conditions:

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(a) That the Transferee admits Government's title over the land.

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(b) That the transferee admits Government's right of resumption of the land.

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(c) That the Transferee would not sub-divide the site,

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(d) That in the event of resumption of the property, the Govt. will not be obliged to pay compensation for authorised structures on the basis of sale price and that the compensation will be fixed in accordance with instructions issued by Govt. from time to time.

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3. The above delegation of power is subject to the express condition that all doubtful and complicated cases will continue to be referred to the Govt. of India for orders as here to force.

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4. This issues with the concurrence of the Ministry of Finance (Defense) vide their u.o. No. 562/W-VI of 1978.

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Yours Faithfully, Sd/ Under Secretary to the Government of India.”

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5.3. Relying on the aforesaid two letters, Shri Karvy submits that whenever any land in the cantonment has been leased out initially to a native under the GGO 179/1836 as amended by the General Order of the President in Council dated 03.07.1855 necessary permission has to be obtained initially from the Military Estate Officer (MEO) with the concurrence of the officer commanding the station under the Order 1978 and from the year 1978 i.e., from 29.03.1978, no objection has to be obtained from the Director General, Defense Land and Cantonments.

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5.4. A clarification is issued by the Government of India, Ministry of Defense on 22.02.1990 in terms thereof the permission of the Director

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General of Defense is required to be obtained. The said clarification is reproduced

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hereunder for easy reference:

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“36. Mutation of Bungalow held on Old Grant Terms

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A reference has been received from the Director of a Command seeking clarification as to whether there is a need for seeking 'No Objection' from the local Military authorities when a request is received by the DEO for grant of permission for sale/mutation of sites of bungalows held on old grant terms to enable him and the DEOs to forward such proposals/requests to this Directorate General for issuance of sanction of the competent authority.

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(2) In this context it may be noted that GGO 179 of 1836 and similar other old grant terms contain the following two conditions:

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"3^rd - If the ground has been built upon, the building are not to be disposed of to any person, of whatever description, who does not belong to the army, until the consent of the officer commanding the station shall have been previously obtained under his hand.

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4^th -When it is proposed, with the consent of the General Officer, to transfer possession to a native, should the value of the house, buildings or property to be so transferred exceed Rs. 5,000 the sale must not be effected, until the sanction of Government shall have been obtained through His Excellency the Commander-in-Chief

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(3) In view of the above it cannot be held that the views of the Station Commander are not relevant in the case of authorising/recognising transfer of buildings. All the same, their are other laws and constitutional rights that have come into force and have become applicable even in modification of the

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old grant terms after these terms were laid down in 1836, and other relevant years for areas outside the jurisdiction of the Bengal Army. Under Section 10 of the Transfer of Property Act, 1882" where property is transferred subject to any condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition of limitation is void, except in the case of a lease the condition for the benefit of the lessor or those claiming under him". These are applicable to the holders of the old grant sites, and hence, in the normal course, there should be no objection in transferring the rights of the holders of old grant sites unless such transfer is prejudicial to the interest of the Government.

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(4) It cannot also be held that the Government of India's permission envisaged under the 4th condition regarding the transfer of property shall be subject to a veto by the Officer Commanding the Station. What is required is not a No. Objection in the sense of a veto for the Station Commander, but the view of the Station Commander as to the effect of such sale/proposed transfer on the military interests, to enable the Government to take a decision on the proposed sale/transfer of the property. While taking a decision the Government will give due respect to the views of the Station Commander. If the Transfer is within the delegated power of the Director General, Defense Estates for exercising the power of the Government the Director General will also do likewise.

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(5) Hence, what is expected is ascertaining the views of the Officer Commanding the Station on the proposed sale/transfer and not a no objection certificate. This may please be noted.

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(6) This also disposes of Director, Defense Estates, Central Command letter No. 16248/LC3 dated 29.12.1988.

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[GOI, Min. of Def. (Dte. Gen. D.E.) No. 730/14/L/RD/L&C/70 [dated 22.02.1990]”

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5.5. He relies upon the decision of the Apex Court in CHIEF EXECUTIVE OFFICER VS. SURENDRA KUMAR VAKIL AND OTHERS reported in AIR 1999 SC 2294 more particularly paragraphs 9, 11 and 12 which are reproduced hereunder for easy reference:

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“9. The narrow question is whether the land was held by S.N. Mukherjee on old grant basis or not. The land is in the Cantonment area of Sagar. Grant of land in cantonment areas was, at all material times, governed by the general order of the Governor General in Council bearing No.179 of the year 1836, known as the Bengal Regulations of 1836. Under Regulation 6 of these Regulations, conditions of occupancy of lands in cantonments are laid down. Thereunder, no ground will be granted except on the conditions set out therein which are to be subscribed to by every grantee as well as by those to whom his grant may be subsequently transferred. The first condition relates to resumption of land. (1) The Government retains 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. (2) The ground being in every case the property of the Government, cannot be sold by the grantee. But houses or other property thereon situated may be transferred by one Military or Medical Officer to another without restriction except in certain cases. (3) If the ground has been built upon, the buildings are not to be disposed of to any person of whatever description who does not belong to the army until the consent of the

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officer commanding the Station shall have been previously obtained under his hand.

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11. Under Section 280 of the Cantonments Act, 1924, power was given to the Governor General in Council to make rules for the purpose of carrying out the objects of the Cantonments Act, 1924. In particular, these rules could provide for: (a) The manner in which and the authority to which application for permission to occupy land belonging to the Government in a cantonment is to be made; (b) The authority by which such permission may be granted and the conditions to be annexed to the grant of any such permission. In the exercise of this power, the Cantonment Land Administration Rules, 1925 have been framed. These Rules as amended upto 21.12.1935 are produced before us. Under Rule 3 of these Cantonment Land Administration Rules the Military Estates Officer of the cantonment shall prepare and maintain a general land register of all land in the cantonment in the form prescribed in Schedule I and no addition or alteration thereto shall be made except as provided therein. Under Rule 4 of the Rules in force in 1936, the Military Estate Officer was required to maintain a Register of Mutation in which every transfer of right or interest in land in the cantonment which necessitated an alteration of the entries in any of the columns of the general land register, was entered. Under Rule 5 as then in force, every fifth year the general land register shall be rewritten so as to include all changes in the rights or interest in land and a fresh register of mutation shall be opened simultaneously. Under Rule 6, for the purpose of the general land register, land in the cantonment is divided into class A land, class B land and class C land. Rules 7 and 8 deal with these different categories of land.

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12. Under the Cantonment Land Administration Rules, 1925 general land registers are being maintained in respect of Sagar Cantonment. These registers were produced before the High Court and were also produced before us. These are old registers maintained in the form prescribed by the

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said Rules. In these registers the property in question is shown as being held by S.N. Mukherjee on old grant basis. As explained by Mittal in the passage cited above, the tenures under which permission was given to civilians to occupy Government land in the cantonments for construction of bungalows on the condition of a right of resumption of the ground, if required, came to be know as old grant tenures. Such tenures were given in accordance with the terms of the order No.179 issued by the Governor General in Council in the year 1836. These require that the ownership of land shall remain with the Government and the land cannot be sold by the grantee. Only the house or other property thereon may be transferred. Such transfers would require consent of the officer commanding the station when the transfer is to a person not belonging to the army. In respect of old grant tenure, therefore, the Government retains the right of resumption of land.

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5.6. On the basis of the above he submits that the Writ Petition is liable to be dismissed, since admittedly no prior permission has been obtained.

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Heard Shri Sangram Kulkarni for the Petitioner, S hri Venkatesh Karvy, learned counsel for the respondent and perused papers.

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The short question that arises in the present matter is as to whether prior permission is required

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to be obtained for sale/purchase of a property in a cantonment, which is entered in the General Land Register (GLR)?

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S hri Venkatesh Karvy, learned counsel for the respondent has gone to great pain in pointing out the order of the Governor General in Council of the year 1836 as amended by the General Order of the President in Council dated 03.07.1855, the clarification issued by the Under Secretary, Government of India dated 21.08.1970 followed by the delegation letter issued by the Under Secretary to the Government of India dated 29.03.1978, the clarification issued by the Ministry of Defense in the year 1990 which have been reproduced hereinabove.

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The contention of Shri Karvy, as aforesaid is that even if any bungalow or land in the cantonment area had been leased to a private person and his/her name entered in the General Land

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Register, it would be required that prior to any transfer of the said land permission of the concerned authorities in terms of the letter dated 1978 which is applicable as on date be obtained and the person seeking to take the property on transfer furnish necessary undertaking to abide by the conditions imposed therein.

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The Apex Court has considered the above issue in SURENDRA KUMAR VAKIL’S CASE the relevant paragraphs having been reproduced hereinabove. The apex court has categorically held that there was a power vested in Governor General in Council to make Rules as regards cantonments. This power has been recognised and reiterated by Section 280 of the Cantonments Act, 1924 and as such, the General Order passed by the Governor General in Council 179 dated 12.09.1836 as amended by the General Order issued by the President in Council 700 dated 03.07.1855 still continues to be

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in force and therefore, prior permission is required to be obtained by any person seeking to transfer or obtaining transfer of the land which is situate in the cantonment area.

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It is not in dispute that the concerned property in the above writ petition has been registered in the General Land Register and bears GLR Sy.No.146 describing the property as bungalow No.160 having a land area of 1.720 acres being of classB3.

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It is also not in dispute that in terms of the said entry made in the General Land Register, the property is managed by the Military Estate Officer (MEO) and the landlord is stated to be the Central Government with only the occupancy right vested with RN Boyce under whom the petitioner now claims title.

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In the above circumstances, the 1836 General Order as amended in 1855 still being applicable, the Cantonment Land Administration Rules, 1937, issued under the Cantonment Act, 1924 deals with the General Land Register, the clarification of lands, use of lands, transfer of lands etc.,

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Rule 3 of the Cantonment Land Administration Rules, 1937 reads as under:

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“ 3. General Land Register –

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(1) The Military Extates Officer shall prepare, in the form prescribed in Schedule I, a General Land Register of all lands in the Cantonment -

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(a) inside bazaars, and

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(b) outside bazaars,

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(2) No addition or alteration shall be made in the General Land Register except with the previous sanction of the Central Government of such other authority as the Central Government may appoint for his purpose or in accordance with the provisions of rules 10 and 45.”

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Rule 9 of the Cantonment Land Administration Rules, 1937 deals with the management of the lands and reads as under:

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“ 9. Management of land -(1) The management of Class "A" (1) land, except for such areas or classes of areas as

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may from time to time be declared by the Central Government to be under the immediate management of the Military authorities themselves, shall entrusted to the Military Estates Officer.

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Note - For class A (1) land placed under manangement of military authorities

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please see Annexure III.

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(2) The management of Class "A" (2) land shall vest in the Military Estates Officer.

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(3) The management of Class "B" (1) land shall vest in the Department or Administration in occupation of the land.

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(4) The management of class "B" (2) land shall vest in the State Government in occupation or having control over the land.

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(5) The management of all Class "B" (3) land and class "B" (4) land be entrusted to the Military Estates Officer: [No 1550 dated 19-10-1940]

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Provided that the Central Government may entrust the management of any such land to the Board. [x x x]

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[No. 1550 dated 19-10-1940]

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(6) The management of Class "C" land vest in the Board under section 108 of the Act.

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Rule 10 of the Cantonment Land Administration

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Rules, 1937 deals with the maintenance of the

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General Land Register and reads as under:

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10. Maintenance of General Land Register -

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(1) The Military Estates Officer shall maintain the General Land Register prepared under rule 3 in respect of all land, other than land in bazars the management of which has been entrusted to, or vests in, the Board, and shall

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register all mutations in columan 1 thereof, and shall enter therein -

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(i) every transfer of right of interest in land in the cantonment registered under section 54, 59, 107 or 123 of the Transfer of Property Act 1882, of which information has been sent to him under subsection (2) of section 287 of the Cantonments Act 1924, or by the Board, when such transfer necessitates an alteration of entries, in any of the columns of the register,

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(ii) every grant of such right or interest made by the Central Government.

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(iii) every report of the transfer of such right or interest made under section 73 of the Act, sent to him by the Board under Rule 45. [***] (No. 909 dated 235-1942)

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(iv) every acquisition of interest in land by a Board made under rule 4 of the Cantonment Property Rules, 1925.

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(v) every transfer of land to or resumption from a Board made under rule 6 or transfer by a Board made under rule 9 of the Cantonment Property Rules, 1925.

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(vi) every interdepartmental transfer of class "A" land and every transfer of class "A" land, from one service of the Army to another under the control of the same head of a department sanctioned by the Central Government.

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(vii) every alteration in classification of land sanctioned under rule 7 and [No. 909 dated 23-5-1942]

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(viii) every transfer of occupation between departments of the Central Government, State Government and Railway Administrations].

¶190

[No. 909 dated 23-5-1942]

¶191

(2) The Military Estates Officer shall also make an entry in the Register respecting the transfer of any such right of interest, as aforesaid which he has reason to believe has taken place and of which no report has been made to him.”

¶192

: 27 :

¶193

A perusal of the three Rules extracted above would indicate that the Military Estate Officer who is now called the Defense Estate Officer has to prepare a General Land Register there being different classes of land as regards which the register is prepared.

¶194

The management of the different classes of lands/areas is vested with the different authorities as stated in Rule 9 which has taken into account both the classes of land and the management of land as regards which the General Land Register is to be prepared and maintained in terms of Rule 10 above.

¶195

Rule 10(i) of the Cantonment Land Administration Rules, 1937 makes it clear that every transfer of the right or interest in land in the cantonment registered under Sections 54, 59, 107 or 123 of the Transfer of Property Act, 1882 would have to be entered in the General Land Register.

¶196

: 28 :

¶197

Section 107 of the Transfer of Property Act reads as under:

¶198

“ 107. Leases how made .-A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.

¶199

[All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

¶200

[Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:]

¶201

Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.]

¶202

Section 107 applies to leases. Thus, even a lease is covered under Rule 10 (i) imposing a provision requiring such a transfer by way of a lease to be entered into General Land Register.

¶203

Though the contention is that the petitioner has only purchased the superstructure i.e., the building and not the land, the fact remains that the

¶204

: 29 :

¶205

superstructure has been sold in perpetuity and the petitioner has been assigned the leasehold rights as held by the vendor in perpetuity. This in my considered opinion would not fall short of a sale of a property though it is described as a transfer of leasehold rights only. Thus, the contention of Shri Sangram S.Kulkarni, that a lease would not require prior permission cannot be accepted. Any transfer as contained under Rule 10(i) would require prior permission.

¶206

Rule 15 prohibits any sale of land for any purpose without definite orders of the Central Government. The said Rule 15 is reproduced hereunder for easy reference:

¶207

“15. Sale of land Prohibited- The sale of land for any purpose without the definite orders of the Central Government is prohibited.”

¶208

The aforesaid Rules read with the aforesaid general orders would indicate that prior to any transfer, permission needs to be obtained for such transfer.

¶209

: 30 :

¶210

The Cantonment Land Administration Rules, 1937 had been issued in pursuance of the powers vested under Section 280 of the Cantonments Act, 1924. The Cantonments Act, 1924 has been repealed by the Cantonment Act, 2006. Section 360 of the Cantonment Act, 2006, reads as under:

¶211

360. Repeals and savings.-

¶212

(1) The Cantonments Act, 1924 is hereby repealed.

¶213

(2) Notwithstanding the repeal of the Cantonments Act, 1924 ,-

¶214

(a) any appointment, notification, order, scheme, rule, form, notice or bye- law made or issued, and any licence or permission granted under the Act shall, in so far as it is not inconsistent with the provisions of this Act continue in force and be deemed to have been made, issued or granted, under the provisions of this Act, unless and until it is superseded by any appointment, notification, order, scheme, rule, form, notice or bye- law made or issued or any licence or permission granted under the said provisions;

¶215

(b) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Board shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Board constituted under this Act;

¶216

(c) all budget estimates, assessments, valuations, measurements or divisions made by the Board shall in so far as they are not

¶217

: 31 :

¶218

inconsistent with the provisions of this Act, continue in force and be deemed to have been made under the provisions of this Act unless and until they are superseded by any budget estimate, assessment, valuation, measurement or division made by the Board constituted under the said provisions;

¶219

(d) all properties, movable and immovable and all interests of whatsoever nature and kind therein, vested in the Board shall with all rights of whatsoever description, use, enjoyed or possessed by the said Board vest in the Board constituted under this Act;

¶220

(e) all rates, taxes, fees, rents and other sums of money due to the Board shall be deemed to be due to the Board constituted under this Act;

¶221

(f) all rates, taxes, fees, rents, fares and other charges shall, until and unless they are varied by the Board constituted under this Act, continue to be levied at the same rate at which they were being levied by the Board immediately before the commencement of this Act;

¶222

(g) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against the Board may be continued or instituted by or against the Board constituted under this Act.

¶223

A perusal of the said provision indicates that all properties movable and immovable and all interest of whatsoever nature and kind therein vested in the earlier Board shall with all rights of whatever description stand vested with the Board constituted

¶224

: 32 :

¶225

under the Act of 2006. Thus, in effect the Board constituted under the Act of 2006 continues to be a landlord of GLR Sy.No.146 measuring 1.720 acres on which Bungalow No.160 is situate.

¶226

In terms of Section 360(2)(a) all

¶227

notifications/orders issued under the Act of 1924 would continue to be in operation unless and until it is superseded by any particular notification issued under the Act of 2006.

¶228

Apparently no notification or order has been issued which supersedes the General Order of 1836 as amended in the year 1855 as regards which the delegation orders of 1970 and 1978 have been issued. Thus, those orders continue to be in effect requiring any seller/purchaser to follow the mandate thereof.

¶229

Such being the position of law, the petitioner having purchased GLR Sy.No.146 measuring 1.720

¶230

: 33 :

¶231

acres on which Bungalow No.160 is situate without the prior permission cannot seek for registration of his name in the GLR.

¶232

However, the contention of Sri.Sangram S Kulkarni, learned counsel for the petitioner is that the petitioner was not aware of these Rules since the petitioner has gone by the contents of the Cantonment Act, 2006 which did not specifically refer to or contain the extract the General Order of 1836, amendment of the year 1855, letters of 1970 and 1978 and the clarification of the order 1990. He therefore submits that the petitioner has acted bonafide and there are no malafides on the part of the petitioner and therefore the applications/representation dated 19.10.2020 now submitted by the petitioner at Annexure-F to the writ petition is required to be considered.

¶233

The submission made by Sri.Sangram S Kulkarni, learned counsel for the petitioner is just and fair

¶234

: 34 :

¶235

inasmuch as even the learned counsel for the Respondent had to take several adjournments to trace out and produce the aforesaid documents and place the same before this Court. In that background it cannot be expected that a layman like the petitioner could have knowledge of the said general orders.

¶236

In view thereof, I pass the following order:

¶237

32.1. A certiorari is issued, the impugned order bearing File No.K/299/59 dated 01.10.2020 at Annexure-E issued by the Defense Estates Officer, Ministry of Defense, Government of India is hereby quashed.

¶238

32.2. A mandamus is issued directing respondent No.3 to consider the representation dated 19.10.2020 vide Annexure-F in accordance with law within a period of 60 days of the receipt of the certified copy of this order.

¶239

: 35 :

¶240

32.3. The petitioner is permitted to submit such documents and statements as the petitioner wishes to rely upon to respondent No.3Defense Estates Officer. Within 15 days of the receipt of the certified copy of this order.

¶241

32.4. Respondent No.3-Defense Estates Officer shall comply with the principles of natural justice and afford a hearing to the petitioner before passing any order. While doing so issue notice to the Petitioner fixing the date of such hearing.

¶242

32.5. The respondents are directed to place all the details or the properties held by the respondents as regards which GLR entries are made before the Principal Secretary, Revenue Department, who shall in turn direct the Inspector of General Registration and Stamps to cause entries in the concerned registers, as also software like Bhoomi/Kaveri of the

¶243

: 36 :

¶244

interest of the Central Government in the lands as regards which there is a General Land Register maintained with a further endorsement that no sale/transfer be registered by the concerned Sub-Registrar without prior permission from the concerned respondents depending on the class of land. The said direction to be complied with within a period of 60 days from the date of receipt of a certified copy of this order.

¶245

32.6. Accordingly, the writ petition stands allowed/disposed of.

¶246

[Sd/-] JUDGE

¶247

Vmb-from paragraphs 1 to 7 Jm/sh/-

Shri Narendra Madhusudan Murkumbi v. the Director General Defence Estates

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Shri Narendra Madhusudan Murkumbi v. the Director General Defence Estates

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