Govindrao Krishnarao Bhuskute and Others vs State of Madhya Pradesh

Bhutt, C.J.

This order shall also dispose of Letters Patent Appeal No. 133 of 1956. Both these cases arise under the G. P. and Berar Revocation of Land

Revenue Exemption Act, 1948, hereinafter called the Revocation Act. The facts alleged are as below.

M. P. No. 325 of 1955: The petitioners are descendants of Ramchandrarao son of Ballal, who had a brother by name Naro alias Narayanrao.

The two brothers took service under the Peshwas about the year 1744 A. D. and subjugated the country west of the Ganjal, which was then

called the Handia Sarkar. In reward for their services, they received in 1751 A. D. a hereditary office of Sir Mandloi and Sir Kanungo in the

Sirkars of Bijagarh and Handia, and the title of Bhuskute was also conferred on diem for having cleared the jungles and cultivated waste lands

(Hoshangabad Gazette and pp. 97-98, Annexure XIV).

In the same year, they were granted 5 villages in Nimar and 2 villages in Hoshangabad, districts, rent-free in perpetuity. Similar grants of other

villages were also made in the years 1754, 1759 and 1767 A. D. In the year 1777 A. D. the Peshwas made a further grant of Jagir rights in village

Timarni in Hoshangtbad district along with the fort situate therein. Similar rights in 2 more villages in Hoshan gabad district along with the fort

situate therein; Similar rights in 2 more villages in Hoshangabad district were also conferred on them in the year 1800 A. D.

With the disintegration of the power of the Peshwas, Handia and Nimar tracts were claimed by the Scindias who held suzerainty over them by

virtue of a treaty with the British Government, dated 13-1-1844. Later, by another treaty dated 12-12-1860, Maharaja Scindia of Gwalior

transferred the two districts of Handia and Nimar to the British Government in exchange for the territory to the north of Barbuda. In Article 3(4) of

the treaty, it was agreed mutually that each Government shall give to its new subjects Sanads in perpetuity for the rent-free lands, the Jagirs, the

perquisites and the hereditary claims (Huqs and Wuttuns) which they enjoyed under the other Government. The rent-free grants to the Bhuskutes

were accordingly recognized and maintained by the British Government.

Under the terms of the Revocation Act, the State Government withdrew the petitioners'' privilege of exemption from liability to pay land revenue

and by an order dated 26-4-1955 rejected their claim for grant of pension. This petition has been filed for quashing the said order and for directing

the State Government to award a grant of money or pension u/s 5(3) of the Revocation Act.

L. P. A. No. 133 of 1956: The petitioner is a descendant of Raja Jatwa Shah, who was Raja of Debgarh till the year 1602 A. D. In the year 1809

,A. D. mouza Bamhangaon Kalan and Randbal in the tahsil and district Hoshangabad were granted as Jagir for the maintenance of Raja Keshri

Shah, a descendant of Raja Jatwa Shah, by Raja Raghuji Bhonsle of Nagpur. He continued in possession of the Jagir till the time of cession when it

was confirmed by the British Government in 1829 A. D. for his life.

In the year 1844 A. D. the British Government confirmed the grant in favour of his son Raja Mangal Shah for his life. On 6-10-1860 the

Governor-General in Council sanctioned the perpetual maintenance of the muafi to Raja Kamran Shah, son of Raja Mangal Shah, and his male

heirs in perpetuity. On the death of Raja Kamran Shah in the year 1923 A. D. the muafi devolved on his grandson Raja Mubarak Shah, on whose

demise the petitioner, his brother, succeeded to his right, title and interest in the year 1938 A. D,

On the Revocation Act coming into force, the muafi was resumed by the State Government. Thereupon the petitioner made an application to the

Deputy Commissioner, Hoshangabad, for a grant of money or pension for the suitable maintenance of his family. The State Government rejected

his request by an order dated 13-5-1955. He accordingly moved this Court under Article 226 of the Constitution for quashing the said order and

for directing the State Government to make a suitable provision for his maintenance. The petition was heard by Naik J., who dismissed it on the

ground that the matter was not justiciable. This appeal is against the order of the learned Single Judge.

The State Government in reply denied that the petitioners were descendants from the Ruling Chiefs and contended that they had no legal right to

exemption from payment of land revenue and accordingly could not maintain an action in Courts of law against the resumption of the muafi grants.

Section 3 of the Revocation Act provides that every estate, mahal, village or land, to whatever purpose applied and wherever situate which was

heretofore exempted from payment of the whole or part of land revenue by special grant of, or contract with the Government, or under the

provision of any law or rule for the time being in force or in pursuance of any other instrument shall, notwithstanding anything contained in any such

grant, contract, law, rule or instrument, be liable to the payment of land revenue from the agricultural year 1948-49. Section :5 provides for award

of money or pension and is in these terms:

''(1) Any person adversely affected by the provisions of Section 3 may apply to the Deputy Commissioner of the district for the award of a grant of

money or pension.

(2) The'' Deputy Commissioner shall forward the application to the State Government which may pass such orders as it deems fit.

(3) The State Government may make a grant of money or pension -

(i) for the maintenance or upkeep of any religious, charitable or public institution or service of a like nature, or,

(ii) for suitable maintenance of any family of a descendant from a former ruling Chief.

(4) Any amount sanctioned by way of grant of money or pension under this section shall be a charge on the revenues of the State'',

Under Section 6 a civil Court is precluded from entertaining any suit instituted or application made to obtain decision or order on any matter

provided by the Revocation Act.

A writ of certiorari is issued when any body of persons having legal authority to determine question affecting the rights of subjects, and having the

duty to act judicially, act in excess of their legal) authority: Per Atkin L. J. in Rex v. Electricity Commissioners 1924 1 KB 171. In order that a

body may satisfy the required test, it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there

must be superadded to .that characteristic the further characteristic that the body has the duty to act judicially: Per Lord Hewart C. J. in Rex v.

Legislative Committee of the Church Assembly 1928 1 KB 411. These principles were cited with approval by the Judicial Committee in Nakkuda

All v. M. F. De S. Jayaratne 1951 AC 66 : see also Rex v. Manchester Legal Aid Committee 1952 1 ALL ER 480 . The basic requirement,

therefore, is the existence of a right in the petitioner, which is the subject of adjudication by an inferior tribunal. This requirement is equally

applicable to a writ of mandamus: see The State of Madhya Pradesh Vs. G.C. Mandawar,

The vires of the Revocation Act was not contested before us, although in the petition it was urged that it offended Articles 14 and 19(1)(f) of the

Constitution. It was, however, contended that the word ''may'' in Section 5(3) of the Revocation Act must be read as meaning ''shall'', so far as the

grant of money or pension is concerned, and all that the word ''may'' denotes is that the State Government has been given a choice to determine

whether the grant should be of money or of pension.

It was also contended that the proceedings u/s 5 of the Revocation Act are of a judicial or quasi-judicial character and consequently it was

obligatory on the State Government to hear the petitioners and pass an order giving reasons for the rejection of their claims.

The first question to consider is if the muafi grants created in the petitioners a legal right to enjoy exemption from payment of land revenue. It was

contended in this connexion that exemption from liability to pay land revenue was an integral part of the right to enjoy the villages in perpetuity and

consequently created a legal right in the petitioners to hold them revenue-free.

It was admitted that exemption from liability to pay land revenue is not a corporeal right, but it was contended that it was enough that a legally

recognized interest was created, whether it corresponded to a legal duty or not: Salmond''s Jurisprudence, 11th Edition, page 270. Our attention

was drawn in this connexion to Section 73 of the C. P. Land Revenue Act, 1881, and to the corresponding Section 74, of the Act of 1917, and it

was contended that the claim to hold any estate, mahal or land wholly or partially free of land revenue, if based on title as in the case of Crown

grants, must be held to be a legal right enforceable in Courts of law.

In AIR 1944 62 (Federal Court) similar contentions were raised but were repelled. In that case, the vires of the Central Provinces Revision of the

Land Revenue of Estates Act, 1939 (subsequently repealed by Act XXV of 1947), by which the land revenue payable in respect of certain estates

mentioned in the Schedule was increased, was challenged on the grounds that (i) the appellant had a contractual and statutory right to hold the

estates on the old amount of the land revenue under the terms of the earlier settlement until a new settlement was made and he could not be

deprived of this right by the Legislature, and (ii) the enhancement of the assessment involved compulsory acquisition of his rights in the land and u/s

299(2) of the Constitution Act, 1935, the Legislature had no power to make a law authorising such compulsory acquisition without providing for

payment of compensation.

Both these contentions were negatived, and it was held that (i) there was nothing in the Central Provinces Land Revenue Act, 1917, or in the

kabuli-yats under which the appellant held the estates, which amounted to any contractual or statutory right that could not at any time be varied,

suspended or repealed by an enactment of the competent Legislature, and as the Legislature of the Central Provinces and Berar had the power to

legislate in regard to land revenue under item 39 of List II of the Seventh Schedule to the Government of India Act, 1935, there was nothing to

prevent that Legislature from acting directly in the matter and enacting in respect or all or some existing assessments that the same should be

increased as from a specified date to a specified amount, and (ii) the increase in the land revenue did not involve any acquisition of land or any

rights in or over it, and the impugned Act did not in any way contravene Section 299(2) of the Government of India Act.

These principles also apply to resumption of muafi-grants. Such a resumption without an award of compensation does not offend Section 299(2)

of the Constitution Act, since there was no transfer to the State of the ownership or right to possession of any property. It is the prerogative of the

State to assess and collect land revenue and its Legislature had under item 39 of List II of the Seventh Schedule to the Government of India Act,

the power to make a law on the subject.

There was thus no obligation on the State to make any compensation for resumption of muafi- grants. Accordingly, unless the word ''may'' in

Section 5(3) of the Revocation Act must be construed as ''shall'' or ''must'' in the sense that is urged, the provision for a grant of money or pension

to persons adversely affected by the Revocation Act must be deemed to vest the State with a discretion and not burden it with any obligation.

Dealing with .the subject ''May'', ''Must'', Maxwell in his book on Interpretation of Statutes, 10th Edition, has, at pages 239-240, observed:

''Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice,

have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they ""may"", or

shall, if they think fit"", or, ""shall have power"", or that ""it shall be lawful"" for them to do such acts, a statute appears to use the language of mere

permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have to say the least a

compulsory force, and so would seem to be modified by judicial exposition. On the other hand, in some cases, the authorised person is invested

with a discretion, and then these expressions seem divested of that compulsory force, and probably that is the prima facie meaning.'' I Julius v.

Lord Bishop of Oxford. 1879 5 AC 214, it was observed that the words in a statute ''it shall be lawful'' of themselves merely make that legal and

possible which there would, otherwise, be no right or authority to do, and thus their meaming is permissive and enabling only, but there may be

circumstances which may couple the power with a duty to exercise it, and it lies upon those who call for the exercise of the power ''to shew that

there is an obligation to exercise it''. In In re Baker; Nichols v, Baker (1890) 44 Ch D 262 at p. 270 Cotton L. J. expressed the same matter thus:

7 think that great misconception is caused by saying that in some cases ""may"" means ""must"". It never can mean ""must"", so long as the English

language retains its meaning; but it gives a power, and men it may be a question in what cases, where a Judge has a power given him by the word

may"", it becomes his duty to exercise it''.

Similar are the observations in Halsbury''s Laws of England, 2nd Edition, Volume 31, in paragraph 692, where it is said that it is in deciding

whether a provision in a statute is imperative or permissive that the intention of Parliament has most strictly to be regarded, and that the distinctions

are often fine.

Since the advent of the British rule in India, there has been a progressive equalization of property and a gradual elimination of privileges. An

attempt was first made in these parts to regulate muafi-grants by the Central Provinces Land Revenue Act, 1881. In the subsequent Act of 1917

the muafi-grants were brought under the executive authority of Government.

Thus, u/s 73 the Settlement Officer was given power to enquire into the case of any estate, mahal or land released, conditionally or for a term, from

the payment of the whole or part of the land revenue, and report for orders to the Commissioner cases in which the conditions of the grant were

transgressed. Section 74 provided that any person who claimed to hold wholly or partially free of land revenue as against the Government, any

estate, mahal or land was bound to prove his title to the satisfaction of the Settlement Officer, and if he so proved his title, the case was to be

reported to the State Government for orders.

Again, if a person in possession of any estate, mahal or land claimed to hold it on conditions which required that the whole or any part of the land

revenue thereof was to be paid by any other person the Settlement Officer was given the power u/s 75 to negative the claim'' even if it was made

under an agreement entered into before the fourth day of November, 1881 (i.e. the date when the C. P. Land Revenue Act, 1881, came into

force), or under any order recorded at settlement or under a decree of a Civil Court. Subsequently, after the reforms of 1935, when the fiscal

responsibilities of the provinces increased, sovereign powers were given to the State Legislatures to legislate on subjects enumerated in List II of

the Seventh Schedule of the Government of India Act.

One of these subjects was land revenue under item 39. It was by virtue of this power of legislation that the State Legislature enacted the Central

Provinces Revision of the Land Revenue of Estates Act, 1939, and the repealing Act No. XXV of 1947, and also enacted Act No. XXVI of

1947 in respect of mahals. This legislative power was supreme within its own sphere and was not trammelled by any previous commitments,

including the Crown grants see State of Madhya Pradesh v. Laxmiprasad F. A. No. 10 of 1952 D/- 10-9-1957 (MPJ).

It is in the background of this progressive legislation that the Revocation Act has to be scrutinized. It will be observed that u/s 3 of the said Act

muafi-grants were eliminated unconditionally and irrevocably. As already observed, this could be done without making provision for compensation.

Accordingly, the intention of the Legislature in enacting Section 5 could not be to make a provision for compensation.

It cannot, therefore, be urged that this section only gives a discretion to the State Government to determine the nature of the grant and not a

discretion. to make a grant at all. Even if the word ''may'' in Section 5(3) is read as ''shall'' or ''must'', it would only cast a duty oil the State

Government to consider every application made unnder Section 5(1). However, even this Interpretation is not permissible in view of the fact that

the State Government is invested with a discretion, and accordingly the word ''may'' is divested of any compulsory force: Maxwell on

Interpretation of Statutes, 10th Edition, pages 239-40 (cited supra).

This brings us to the question whether the State Government should have decided the claims of the petitioners judicially. In this connexion, attention

was invited to the rules made under the Revocation Act. These rules prescribe an application to be made under Sub-section (1) of Section 5 or the

Act to the Deputy Cbmmissioner; rule 2. Rule 3 provides for an enquiry by the Deputy Commissioner or by a revenue officer not below the rank

of Extra-Assistant Commissioner, to whom the Deputy Commissioner may transfer the application.

Rule 4 details the points on which the enquiry has to be made. Under rule 5 the enquiry has to be submitted to the Provincial (State) Government

with the recommendations which may be made by the reporting officer. Rule 6 prescribes that in making his recommendations the Deputy

Commissioner shall also consider if it would be desirable to exempt any land from liability to pay land revenue, in whola or part, instead of making

a money grant. This is all the ambit of the rules. It would, therefore, appear that the enquiry that is prescribed is only for the subjective satisfaction

of the State Government and does not create any right in the claimant for the grant of money or pension.

This is not, therefore, a case to which the decision of their Lordships of the Supreme Court in Nagendra Nath Bora and Another Vs. The

Commissioner of Hills Division and Appeals, Assam and Others, is attracted. In the cited case the rules under the Eastern Bengal and Assam

Excise Act (I of 1910) provided for appeals and revisions. That was, therefore, clearly a case in which the legislature had intended the orders to be

of a judicial or quasi-judicial nature. Here, there is no lis, because there is no right in the petitioners to exemption from liability to pay land revenue,

and the matter has to be decided from the view point of policy nnd expediency.

In such matters, the adjudicating body is not subject to any duty to act judicially at any stage: 1952 1 All ER 480 (cited supra) at p. 490.

Accordingly, even though the rules provide for an application and prescribe the scope of the enquiry that has to be made, the proceedings u/s 5 of

the Revocation Act cannot be said to be of a judicial or quasi-judicial nature. In this view, the cases under consideration fall within the dictum of

Lord Hewart C. ''J. in 1928 1 KB 411 (cited supra), and consequently do not warrant the issue of any writ.

The result is that the petition as well as the Letters Patent appeal fail and are dismissed with costs. Hearing fee Rs. 100/- for the petition and Rs.

50/- for the Letters Patent appeal, which shall be paid out of the security amounts, The balance shall be returned to the petitioners.

Tare, J.

I agree.

K.L. Pandey, J.

I agree.