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PETITIONER: SAHODARA DEVI & ORS.

       Vs.

RESPONDENT: GOVERNMENT OF INDIA & ANR.

DATE OF JUDGMENT26/03/1971

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SHELAT, J.M. DUA, I.D.

CITATION:  1971 AIR 1599            1971 SCR  230

ACT: Cantonment  Land  Administration Rules,  1937,  r.  27-Power under rule to grant lease whether discretionary-Use of  word ’May’, effect of.

HEADNOTE: The  appellant  filed  a petition under  Art.  226  of.  the Constitution against the refusal of the Defence Ministry  to ‘execute  a  lease  under  r.  27  of  the  Cantonment  Land Administration Rules, 1937 in respect of a bungalow situated in a cantonment area, on occupancy land held on ’old  grants lease’.   The  single  Judge  directed  the  respondents  to execute the lease but the Division Bench held that the power to  grant  a  lease  under r.  27  was  discretionary.   The Division Bench therefore set aside the orders of the  single Judge and issued orders to the respondents to reconsider the request of the appellants for grant of lease under r. 27 and Sch.   VII  of  the  Rules in  accordance  with  law..  With certificate the present appeal was filed in this Court.  The only  question for consideration was whether the  appellants were  entitled  to a direction against  the  respondents  to issue a lease to them under r. 27 and Sch.  VIl of the  1937 Rules. HELD:Rule 27 only confers a power in general on the Military Estates  Officer  to  grant leases and, by  using  the  word ’may’,  it clearly gives, him discretion to grant leases  in suitable cases.  There is the further circumstance that  the exercise  of  the power by the Military Estate  Officer  has been made subject to the approval of the Central  Government or  such  other  authority as  the  Central  Government  may appoint for that purpose.  The power of the Military Estates Officer  being  subject to such  discretionary  approval  or disapproval of another authority cannot possibly be held  to be  required  to  be  exercised in  all  cases  without  any discretion. [234G235A] In the present case therefore the High Court in directing  a reconsideration of the case in accordance with law was quite correct,  so that the application of the appellants must  be decided afresh after keeping in view the principle that  the power to grant a lease under r. 27 is discretionary, but the refusal  should only be in suitable cases  where  sufficient reasons exist for the purpose. [235C]

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Sardar Govindrao & Ors. v. State of Madhya Pradesh, [1965] 1 S.C.R. 678, distinguished.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2246  of 1969. Appeal from the judgment and decree dated April 11, 1969  of the Allahabad High Court in Special Appeal No. 469 of 1968. Yogeshwar  Prasad,  S.  K.  Bagga  and  S.  Bagga,  for  the appellants. V.   A. Seyid Muhammad and S. P. Nayar, for the respondents. 231 The Judgment of the Court was delivered by Bhargava, J--The appellants are admittedly the joint  owners of  Bungalow  No.  45, situated along Tagore  Road,  in  the Cantonment  of Kanpur.  These premises are recorded  in  the General Land Register of the Cantonment as occupancy land on old  grant  terms.   It appears that the  words  "old  grant terms"  referred to rants made by the Government under  the General Order of the Governor-General in Council dated  12th September,  1836.  Subsequently, the first Act to be  passed in respect of these lands was the Cantonments Act No. 13  of 1889.   This was followed by Cantonments Act No. 15 of  1910 and   Cantonments  Code,  .1912.  These  were   amended   by Cantonments Act No. 2 of 1924 which still continues to be in force.   On the 26th June, 1925, Rules were framed  for  the first time under section 280 of the Cantonments Act of 1924, regulating administration of Cantonment lands.  These  Rules were,  however,  superseded  by fresh  Rules  by  Government notification  dated 23rd November, 1937.  The new Rules  are described  as "Cantonment Land Administration Rules,  1937". Under  these  Rules,  a provision was made in  rule  27  for regularisation of old grants by issue of fresh leases.   The appellants  did  not  have any documents  to  show  how  the original title of their predecessors was acquired in respect of   these  lands.   The  earliest  document,   which,   the appellants  could produce, was a sale-deed executed  by  Ram Nath  and  others, sons of Roop Kishore, in favour  of  Dost Mohammad Estate, on the 8th September, 1943.  This  document recited  that Roop Kishore, the father of vendors  Ram  Nath and  others, purchased the property in various  installments by documents executed between the years 1901 and 1908.   The appellants  acquired the rights to the Bungalow by  a  sale- deed  executed  in their favour by Dost Mohammad  Estate  on 30th April, 1958.  After taking this sale-deed, they applied for mutation to Cantonment authorities; but objections  were raised and the authorities did not agree to mutate the names of  the  appellants until the appellants agreed to  give  an undertaking  to  be  bound by the  terms  of  the  Governor- Generals Order of September 12, 1936.  Their names were then mutated  on 13th September, 1961, which. had to be  followed by  a deed of admission executed by the appellants  on  15th September,  1961.  Subsequently, the  appellants  approached the  authorities  to get their rights defined  and  to  have their  possession regularised under r. 27 of the  Rules  of 1937.  The request not having been granted, the  appellants, on  12th  April, 1966, moved the Military  Estates  Officer, Lucknow  for  the  same,  purpose  and,  according  to   the appellants.  no  attention  was paid  lo this  request  of theirs.  On 15th ’October, 1966, they sent a reminder to the Military   Estates  Officer,  Lucknow  and,   in   addition, requested  him  to  supply them with a  form  prescribed  by Schedule V of the Rules of 1937.  It may be mentioned

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232 that  the lease under r. 27 was required to be  executed  in the  form  in Schedule VII and not in Schedule  V.  On  25th October,  1966,  the Military Estates Officer wrote  to  the appellants   to  collect  the  form  from,  the   Cantonment Executive  Officer, Kanpur Cantonment, who was the Agent  of the  Military  Estates  Officer  and  to  submit  it,  after completion, to the Military Estates Officer, Lucknow,  along with  a  site  plan.  The  letter  contained  an  additional sentence  that this reply sent also disposed of the  earlier letter of the appellants dated 12th April, 1966. The appellants had also, in the meantime, moved the  Defence Ministry by a letter dated 27th, August, 1966, for grant  of a  lease under r. 27 read with Schedule VII of the Rules  of 1937,  quoting an instance of one Mr. Packwood, resident  of Kanpur Cantonment, in whose case a similar lease had already been  issued.  By the letter dated 25th October,  1966,  the Joint  Secretary  to  the  Defence  Ministry  informed   the appellants that a lease under r. 27 and Sch.  VII could  not be   granted;  but,  if  the  appellants  so  desired,   the Government  were  prepared to consider their case  under  r. 28(1) and Schedule VIII of those Rules.  The appellants made a  representation against this letter by a letter dated  1st November, 1966; but, when no reply was received, they gave a notice to the Government on 28th February, 1967, to  execute the  lease in two months under r. 27 and Sch.  VII.   Again, there  was no reply and, thereupon, the appellants  moved  a petition  under  Art. 226 of the Constitution  in  the  High Court  of Allahabad on 18th, March, 1967, seeking a writ  of mandwnus directing the Military authorities to issue a lease to  them under r. 27 and Sch.  VII.  The petition was  heard by  a  single  Judge  of the High  Court  and  he  issued  a direction to the respondents to grant a lease as prayed.  He rejected  the  plea of the respondents that  the  case  fell within  Rules  16 to 26 and 28 and not under Rule  27.   The respondents  appealed to a Division Bench which agreed  with the  learned  single  Judge that rules  16-26  and  28  were inapplicable  to  the  case  of  the  appellants.   It  was, however,  of the view that, though, the case was covered  by r.  27,  that rule did not contain any  mandatory  provision requiring a lease to be given in all cases of old grants and that there was a discretion vested in the authorities acting under  that rule not to give a lease in suitable cases.   It was also held that the appellants had no right to claim such a  lease under that rule.  Consequently, the Division  Bench set  aside  the  direction of the single  Judge  and  issued orders  to the respondents to reconsider the request of  the appellants  for grant of lease under r. 27 and Sch.  VII  of the Rules in accordance with. law.  It is against this order that   the  appellants  have  come  up  to  this  Court   by certificate under Art. 133(1)(b). of the Constitution. In this appeal, we are concerned with only one single  point relating to the nature of the direction contained- in r.  27 of the 233 Rules  of 1937 The concurrent decision of the  single  Judge and the Division Bench, holding that rules 16-26 and 28  are inapplicable,  has not been challenged in this  case  before us.   The only point that has been canvassed is whether  the appellants   are  entitled  to  a  direction   against   the respondents  to issue a lease to them under r. 27  and  Sch. VII of the Rules of 1937.               Rule 27 of the Rules of 1937 is as follows:-               "27.  Special Lease for the Regularisation  of               Old Grants.Notwithstanding anything  contained

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             in rules 16 to 26 the Military Officer in  any               case  where a site is held without  a  regular               lease,  may,  on application  by  the  holder,               grant,  with  the  approval  of  the   Central               Government  or  such other  authority  as  the               Central   Government  may  appoint  for   this               purpose, a lease of the said land in the  form               set out in Schedule VII." In  this  Rule,  thus,  the  power  to  grant  a  lease  for regularisation of old grants has been given to the  Military Estates  Officer by using the word "may", and the  power  is further subject to the approval of the Central Government or such  other authority as the Central Government may  appoint for  the purpose.  In view of this language used,  we  think that  the  High Court was quite fight in holding  that  this rule does not envisage a mandatory direction to the Military Estates  Officer  to grant a lease in all  cases  where  the question of regularisation of old grants arises.   Normally, the,  word  "may" is used to grant a discretion and  not  to indicate  a  mandatory direction.  Had the,  intention  been that the Military Estates Officer must grant a lease in  all cases,  the  word used would have been  "shall"  instead  of "may".  It is true that the word "may", in some context, has been interpreted as containing a mandatory direction and the authority given the power has to exercise that power  unless there  be  special reasons.  Such a case  came  before  this Court  in  Sardar Govindrao and Others v.  State  of  Madhya Pradesh (1).  That was a case where a rule relating to grant of  money or pension was sought to be enforced.  This  Court held:-               "This  is an instance where, on the  existence               of the condition precedent, the grant of money               or   pension   becomes   obligatory   on   the               Government notwithstanding that in s. 5(2) the               Government  has been given the power  to  pass               such orders as it deems fit and in sub-s.  (3)               the  word  "may" is used.- The word  "may"  is               often read as "shall" or "must" when there  is               something  in the nature of the thing to’  be               done which makes it the duty of the               (1)   [1965] S.C.R. 678 34 Person on Whom the power is conferred to exercise the Power. Section 5(2) is discretionary because it takes into  account all  cases  which may be brought before  the  Government  of persons c raising to be adversely affected by the  provision of s. 3 of the Act.  Many such persons may have no claims at all although they may in a general way be said to have  been adversely  affected  by  s.  3.  if  the  power  was  to  be discretionary  in  every  case there was no  need  to  enact further  than sub-s. (2).  The reason why  two  sub-sections were  enacted is not far to seek.  That Government may  have to  select some for consideration under sub-s. (3) and  some under s. 7 and may have to dismiss the claims of some others requires the conferment of a discretion and sub-s. (2)  does no  more than to give that discretion to Government and  the word  "may" in that sub-section bears its ordinary  meaning. The  word  "may"  in sub-s. (3) has,  however,  a  different purport.  Under that sub-section, Government must, if it  is satisfied  that an institution or service must be  continued or  that  there is a descendant of a  former  ruling  chief, grant money or pension to the institution or service or  to, the  descendant of the former ruling chief, as the case  may be.  of  course,  it need not make a  grant  if  the  person claiming  is  not a descendant of a former ruling  chief  or

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there  is  other  reasonable ground not to  grant  money  or pension..  But, except in those cases where there  are  good grounds for not granting the pension, Government is bound to make a grant to those who fulfill the required condition and the  word "may" in the third sub-section  though  apparently discretionary has to be read as "must". It may be noticed that, in that case, the word "may" as used in  the  general  sub-s.  (2) was not  held  to  indicate  a mandatory direction.  It was only in sub-s. (3), because  of the  special  context, that ’the Court held  that  the  word "may"  was equivalent to "  shall" or "must".  In  the  case before  us, rule 27 only confers a power in general  on  the Military  Estates Officer to grant leases and, by using  the word  "may", it clearly gives him discretion to grant it  in suitable cases.  There is further the circumstance that  the exercise  of the power by the Military Estates  Officer  has been made subject to the approval of the Central  Government or  such  other  authority as  the  Central  Government  may appoint for that purpose.  If the power had to be  exercised by the Military Estates Officer in all cases, its being made subject  to  the  approval of  another  authority  would  be meaningless.  When a rule envisages approval of the proposed action of the Military Estates Officer, it also implies that his action can be disapproved.  This approval or disapproval will necessarily be at the discretion of the Central 235 Government  or  the  authority  appointed  by  it  for  that purpose.   The power of the Military Estates  Officer  being subject  to  such discretionary approval or  disapproval  of another authority cannot possibly be held to be required  to be  exercised  in  all cases without  any  discretion.   The Division Bench was, therefore, perfectly correct in  holding that  the  power under r. 27 is a discretionary  power,  and both  the  Military Estates Officer as well as  the  Central Government  or the other authority appointed by it for  that purpose  in  exercising their power have the  discretion  in suitable  cases  not to proceed under this rule.   The  High Court,  in  directing  a  reconsideration  of  the  case  in accordance with law, was, therefore, quite correct, so  that the  application of the appellants must be  decided  afresh, after keeping in view the principle that the power to  grant a  lease  under rule 27 is discretionary ; but  the  refusal should  only be in suitable cases where  sufficient  reasons exist for that purpose. The appeal fails and ’is dismissed.  In the circumstances of this case, we make no order as to costs. G. C.                                 Appeal dismissed. 236