Full Judgment Text
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PETITIONER:
MD. HANIF
Vs.
RESPONDENT:
THE STATE OF ASSAM
DATE OF JUDGMENT:
03/09/1969
BENCH:
ACT:
Constitution of India, Art. 226-Jurisdiction of High Court.
HEADNOTE:
The British Crown had leased a land for 99’ years and the
lease provided for resumption by the Government for public
purpose. The appellant had purchased the leasehold rights.
When the Deputy Commissioner on behalf of the respondent-
State served a notice of resumption on the appellant, he
filed a petition under Art. 226 of the Constitution
challenging the validity of the order of resumption on the
grounds that the land did not vest in the State, the Deputy
Commissioner had no right to issue the notice under the
lease, and that the public purpose had not been mentioned in
the notice, and so the notice was invalid. The High Court
dismissed the petition holding that the case involved
disputed questions of title, that the remedy of the
appellant was to file a suit and a petition under Art. 226
of the Constitution was not maintainable. In appeal to this
Court, the appellant contended that no disputed questions of
title were involved as the title of the appellant as a
grantee was not questioned by the State and the question at
issue was whether the State was entitled to resume the land
by virtue of the lease granted by the British Crown.
HELD: The judgment of the High Court had to be set aside.
The jurisdiction of the High Court under Art. 226 is an
extraordinary jurisdiction vested not for the purpose of
declaring private rights of the, parties but for the purpose
of ensuring that the law of the land is implicitly obeyed
and that the various tribunals and public authorities are
kept within the limits of their jurisdiction. The remedy
provided under Art. 226 is a remedy ’against the violation
of the rights of a citizen by the State or statutory
authority. In other words, it is a remedy in public law.
[202 C--E]
In the present case, the appellant was not merely
attempting to enforce his contractual right but important
constitutional issues were raised his behalf. [203 B]
State of Orissa v. Ramchandra, A.I.R. 1964 S.C. 865,
distinguished. Basappa v. Nagappa, [1955] 2 S.C.R. 250,
referred to. ,
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1378 of 1966.
Appeal from the judgment and order dated April 22, 1966
of the Assam and Nagaland High Court in Civil Rule No. 35 of
1963.
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B. Sen and P.K. Ghosh, for the appellant.
Niren De, Attorney-General, Naunit Lal and S.N. Chaudhury,
for the respondents.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by certificate
from the judgment of the High Court of Assam and Nagaland,
dated
198
April 22,: 1966 in Civil Rule No. 35 of 1963. whereby the
High Court by a majority judgment dismissed the writ
petition filed by the appellant.
The land in dispute was originally located in the State
of Mylliem in the Khasi and Jaintia Hills. This land was
leased out in perpetuity to the British Government by Khasi
Land-owners Thholyomawrie and U. Mongormawrie by a deed of
lease executed on November 4, 1874. On April 1, 1907 the
Secretary of State for India on behalf of the British
Crown made a settlement of the land with Capt. E.M. Manley
for 99 years on a premium of Rs. 716-8-9 and annual
revenue of Rs. 35-13-3. The’ document of lease was executed
by the Deputy Commissioner, Khasi and Jaintia Hills. On
March 18, 1909 Capt. Manley sold his right and title in
the land to Messrs Jamatullah & Sons. Subsequent to. the
sale Messrs Jamatullah & Sons constructed three houses on
the land, known as ’Cedar Lodge’, ’Cryptomaria’ and
’Eldorado’. The appellant is the successor of Messrs
Jamatullah & Sons. Out of the three buildings, the
appellant has been living in ’Eldorado’ and the other two
buildings have been given on rent to the Government of
Assam. ’Cryptomaria’ is occupied by one of the Ministers of
the Government of Assam and ’Cedar Lodge’ has been occupied
by the offices of the Electricity Board. Clause V of the
lease in favour of Capt. Manley reads as follows:
"If the site, or any part of it, is
required for public purposes (including the
maintenance or alteration of public
aqueducts), it may be resumed by Government.
In this case the lessee will be entitled to
receive such compensation, calculated
according to the spirit of the Land
Acquisition Act, as fairly represents the
actual value of the land and the buildings
upon it. The amount of the compensation
shall be ,determined by the Deputy
Commissioner subject to an appeal to the
Commissioner."
On September 18, 1959 the Deputy Commissioner of Khasi and
Jaintia Hills served a notice of resumption on the appellant
purporting to exercise the right of the Government under
Clause V of the lease. The appellant thereafter moved the
High Court of Assam in Civil Rule No. 119 of 1959
challenging the validity of the order of resumption. By a
majority the High Court dismissed the writ petition flied by
the appellant holding that rights and obligations springing
from the contract of lease should be decided by the ordinary
civil courts and it is not proper for the High Court to
exercise its power under Art. 226 of the Constitution. Soon
after the decision of the High Court there was a proposal
for a compromise between the parties and the Government
agreed to
199
drop the resumption proceedings on certain terms and
conditions. But it was alleged that the appellant did not
comply with the terms and conditions of the compromise
proposal and a fresh order of resumption was, therefore,
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made by the Government on March 15, 1963 and a sum of Rs.
59,965/- was determined as compensation payable to the
appellant. The notice of resumption dated March 15, 1963 is
the following effect:
"ORDERS OF THE GOVERNMENT OF ASSAM REVENUE (SETTLEMENT)
DEPARTMENT
SETTLEMENT BRANCH
Dated Shillong the 15th March
WHEREAS a plot of land in Shillong
measuring more or less 4.77 acres within the
boundaries specified in the Schedule below was
originally leased by the Secretary of State
for India to Captain E.M. Manley by a deed of
lease dated 9-12-1907 and mutated in the name
of Sri Md. Haniff of Police Bazar, Shillong
subject to the terms and conditions specified
in the said deed of lease:
AND WHEREAS the Governor of Assam is
satisfied that it is necessary to resume the
aforesaid plot of land with houses standing
thereon for providing suitable accommodation
to the Government Offices and the
Minister of Government, which are hereby
declared to be a public purpose.
Now, therefore, in exercise of powers
conferred by by Clause V of the afore-
mentioned deed of lease, the Governor of Assam
is pleased to resume the said plot of land and
to direct the Deputy Commissioner United K.J.
Hills to summarily re-enter and take
possession of the said plot of land on giving
7 days’ notice in writing to the lessee and
thereafter pay such compensation, as may be
payable in accordance with the provisions of
clause V of the deed of lease or any other
clause or clauses, as may be found applicable.
SCHEDULE
North: The public aqueduct running
alongside the Jowai Road and nulla running
from the aqueduct into the Umshyrpi
River near the Lachaumiere Estate
South, East and West: The Umashyrpi River".
200
The forwarding note of the Deputy Commissioner reads as
follows:
L 14/7/2/62/24
Shri Md. Haniff,
Police Bazar, Shillong
Sub: Resumption of properties known as
Cryptomaria, Eldorado. and Cedar Lodge in
Shillong.
I am to forward herewith a copy of order by
the Government of Assam for resumption of
Cryptomaria, Eldorado and Cedar Lodge
properties for public purpose and to state
that as ordered therein, possession of the
land along with buildings and improvements
made thereon, if any, will be taken over by me
on the expiry of the period of 7 (seven) days
from the date of receipt of this notice.
Sd. Illegible
Deputy Commissioner
You are offered an amount of Rs. 5,09,965.00
(Rupees five lakhs, nine thousand, nine
hundred and sixty five) only being the total
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cost of resumption in respect of the above
mentioned properties and the said amount
will be paid to you within 31-3-63."
The appellant thereafter filed another writ petition No.
35 of 1963 in the Assam High Court challenging the validity
of the order of resumption on the ground that the land did
not vest in the State of Assam and the Deputy Commissioner
had no right to issue a notice under CL. V of the lease. It
was also said that the public purpose had not been mentioned
in the notice itself and, therefore, the notice was invalid.
In the counter-affidavit the respondent contended that the
petition was barred by the principle of res judicata in
view of the previous judgment of the High Court dated
February 26, 1960. It was urged that in any event a
petition under Art. 226 of the Constitution was not
competent. It was said that the property had been resumed
lawfully in terms of CL. V of the lease and the Government
of Assam was competent to resume the land and the Deputy
Commissioner was competent to issue a notice of resumption
and the compensation offered was the proper compensation
under the terms of the lease. On April 22, 1966 the High
Court dismissed the writ petition of the appellant holding
that the case involved disputed questions of title, that the
remedy of the appellant was to file a suit
201
in a civil court and a petition under Art. 226 of the
Constitution was not maintainable.
On behalf of the appellant Mr. B. Sen stressed the
argument that there was no disputed question of title
involved in this case. The title of the appellant as a
grantee was not questioned on behalf of the respondent. The
only question at issue is whether the respondent was
entitled to. resume the land by virtue of C1. V of the lease
dated April 1, 1907 by the Secretary of State for India in
favour of Capt. Manley. In our opinion there is
justification for the argument put forward on behalf of the
appellant. On behalf of the respondent, however, the
Attorney General referred to the decision of this Court in
State of Orissa v. Ramchandra(1). The material facts of that
case are not parallel to those of the present case. The
question at issue in that case was whether the Maliahs
having been granted by the ex-Zamindars by virtue of the
office they held under sanads and whether the grant was
intended to serve as remuneration for services rendered by
them by virtue of the said office. The case of the State of
Orissa was that the land was held by the ex-Zamindars on
service tenures which were resumable at the will of the
grantor. The contention of the ex-Zamindars was that they
had proprietary rights in the Maliahs and the State of
Orissa had no right to resume the lands granted to them and
were not entitled to recover possession from them. It would
thus be seen that the main dispute of the parties w*as in
regard to the nature of the grant. The distinction between
grants 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, the
grant may not be resumable while in the second category of
cases, with the abolition of the office the land can be
resumed. The parties in that case were at issue on the
question about the character of the grants under which the
predecessors of the ex-Zamindars were originally granted the
areas in question. The material facts in the present case
are quite different. The title of the appellant as lessee
under the lease executed by the Secretary of State for India
on December 19, 1907 is not disputed and the High Court had,
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therefore, no justification in dismissing the writ petition
of the appellant in limine on the ground that a disputed
question of title was involved. It is also not right to
contend that the appellant was trying to enforce a mere
contractual right by way of a writ petition under Art. 226
of the Constitution. Several important issues of. public
law have been raised on behalf of the appellant. In the
first place it was argued that the State of Assam had no
right to resume the property in dispute under C1. V of the
lease dated December 19, 1907 because the right of the
British Government in respect of the lease has not devolved
on or vested in the State, of
(1) A.I.R. 1964 S.C. 685.
202
Assam under the relevant constitutional provision. It was
contended that even on the assumption that the right of the
British Government under the lease of 1907 had devolved on
the State of Assam the latter could only enforce its rights
under the contract of lease and had no power to forcibly
turn out the appellant from the property by mere executive
action. It was stressed on behalf of the appellant that the
Executive authorities can only act in pursuance of the power
given to them by law and cannot interfere with the liberty
or property of the subject except on condition that they can
support the legality of their action before a court of law.
It cannot be urged, therefore, that the appellant was merely
attempting to enforce a contractual right by taking recourse
to the machinery provided by Art. 226 of the Constitution.
It is true that the jurisdiction of the High Court under
Art. 226 is an extraordinary jurisdiction vested in the High
Court not for the purpose of declaring the private rights of
the parties but for the purpose of ensuring that the law of
the land is implicitly obeyed and that the various tribunals
and public authorities are kept within the limits of their
jurisdiction. In other words, the jurisdiction of the High
Court under Art. 226 is a supervisory jurisdiction, a
jurisdiction meant to. supervise the work of the tribunals
and public authorities and to see that they act within the
limits of their respective jurisdiction. In a proceeding
under Art. 226 the High Court is not concerned merely with
the determination of the private rights of the parties; the
only object of such a proceeding under Art. 226 is to ensure
that the law of the land is implicitly obeyed and that
various authorities and tribunals act within the limits of
their respective jurisdiction. Article 226 states that the
High Court shall have power to issue to any person or
authority, including in appropriate cases any Government,
directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and
certiorari. All these writs are known in English law as
prerogative writs, the reason being that they are specially
associated with the King’s name. These writs were always
granted for the protection of public interest and primarily
by the Court of the King’s Bench. As a matter of history
the Court of the King’s Bench was held to be coram rege ipso
and was required to perform quasi-governmental functions.
The theory of the English law is that the King himself
superintends the due course of justice through his own Court
--preventing cases of usurpation of Jurisdiction and
insisting on vindication of public rights and protecting the
liberty of the subjects by speedy and summary interposition.
That is the theory of the English law and as pointed out by
this Court in Basappa v. Nagappa(1) our Constitution makers
have borrowed the concep-
(1) [1955] 2 S.C.R. 250.
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203
tion of prerogative writs from the English law and the
essential principles relating to such prerogative writs are
applicable in Indian law. It is obvious that the remedy
provided under Art. 226 is a remedy against the violation of
the rights of a citizen by the State or statutory authority.
In other words, it is a remedy in public law. But as
already pointed out the appellant in the present case is not
merely attempting to enforce his contractual right but
important constitutional issues have been raised on behalf
of he appellant.
For these reasons we hold that this appeal should be
allowed and the judgment of the High Court dated April 22,
1966 in Civil Rule No. 30 of 1966 should be set aside and
the case should be remanded to the High Court to be dealt
with and disposed of in accordance with law. It is
desirable that the High Court should implead the Union of
India as respondent to the writ petition. It is also.
desirable that the High Court should give an opportunity to
the parties to file further affidavits before finally
disposing of the writ petition. The parties will bear their
own costs upto this stage.
Y.P. Appeal allowed.
204