http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

             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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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