Saurashtra State vs Memon Abdul Karim Abdulgani Marfani

Baxi, J.—The State has preferred this appeal against the decree of the Civil Judge, Senior Division, Junagadh, dated 26-2-1951 in Civil Suit No. 313 of 1949, ordering the Appellant State to deliver possession of the suit property to the Plaintiff-Respondent within two months and to pay costs of the suit.

The Junagadh State sold land measuring acres 20 and 28 gunthas lying in the sim of the Junagadh City forming part of survey No. 44 and bearing new survey No. 423 to the Nawab''s Begum Amanbibi Saheba at the rate of Rs. 75/- per acre under the Secretariat Order No. 10233 dated 27-6-42 and a rukka or Sanad dated 24-9-1942 was issued to her by the Junagadh State. The Begum sold 10 acres from this land to a certain Abdul Jatif Haji Ismail Fulara of Upleta for Rs. 30,000/- and executed a registered conveyance in his favour dated 28-8-1947. The Plaintiff in his turn purchased this land from Abdul Latif for Rs. 24.000/- under a registered sale deed dated 28-9-1947. A copy of the rukka issued to the Begum and the conveyance passed by the Begum were handed over to the Plaintiff by the vendor along with the conveyance and the Plaintiff was put in possession of the property. In November 1947 the administration of Junagadh State was taken over by the Regional Commissioner, Western India and Gujarat States'' Region under the orders of the Central Government and an Administrator was appointed by him to carry on the affairs of the Junagadh State. By his order No. R. 291 of 1948-49 dated 29-11-1948 the Administrator passed a comprehensive order resuming lands, gardens, buildings, etc. mentioned in the order granted under various Farmans and orders to the members of his Highness the Nawab''s family and palace servants. The suit property is mentioned as one of the properties which was so resumed. The Plaintiff was, there after, dispossessed of this property and filed the present suit against the Saurashtra State for recovery of the suit property or in the alternative for payment of Rs. 24,000/- which was the price paid by him for the property with interest thereon at the rate of 9 per cent per annum.

The Plaintiff contended in the plaint that the order of the Administrator was illegal, unjust and opposed to principles of natural justice on the ground that the Junagadh State Government meaning thereby the Administrator, had no authority to pass the order and that it was not binding on him as he was not given an opportunity of being heard against the order before it was passed. He also contended that he was a bona fide purchaser and on that ground also the order was not binding on him. In the written statement, which was filed on behalf of the Appellant State, it was contended that the property was sold to the Begum at a very nominal price against the interest of the State and the then Nawab had no right to effect such sale and consequently his successor Government was entitled to cancel the sale and resume the property. It was contended that the Administrator''s order of resumption was a sovereign act of resumption by the State and the civil Court had no jurisdiction to entertain a suit questioning the order. The Court''s jurisdiction was further questioned on the ground that it was barred under Ordinance 72 of 1949. The allegation that the order was against the principles of natural justice was denied and the written statement further denied that the Plaintiff-Respondent had any cause of action as no rights had been created in his favour by the various documents upon which he relied. The learned Civil Judge disallowed these objections and decreed the Plaintiff-Respondent''s suit and the present appeal has been preferred against that decree.

During the appeal, the learned Advocate-General mentioned that the Administrator''s order of resumption was an act of State and could not on that ground be questioned by a civil Court. He also referred to Section 4(2) of Ordinance 72 of 1949 as a bar to the suit. Both these paints have been decided against the Appellant State in-State of Saurashtra v. Memon Haji Ismail Haji Valimamed AIR 1953 Sau 180 (A) decided by us in which the Administrator''s order of resumption on Anr. property was questioned. We do not propose to cover the same ground over again but following our previous decision we hold that the Administrator''s order of resumption is neither an act of State nor is the suit governed by the provisions of Ordinance 72 of 1949 and therefore both these grounds of objection against the Court''s jurisdiction fail. The learned Advocate-General, however, laid emphasis on the Extra Provincial Jurisdiction Act, 1947, as excluding the Civil Court''s jurisdiction and on the sovereign right of resumption which the Nawab had in respect of every grant of State land, which he could exercise at any time and which could not be affected by any length of time or by any terms of the grant however absolute they might be. He argued that the Administrator who stood in the shoes of the Nawab, could exercise this right as the latter''s successor and the civil Courts had no jurisdiction to question the validity of the Administrator''s order of resumption.

Before we take up the discussion of these points it will be convenient to state briefly the circumstances under which the administration of the Junagadh State came to be taken over by the Central Government. After the passing of the Indian Independence Act 1947, there was a complete break down of the administration of the Junagadh State resulting in chaotic conditions and at the request of the Junagadh State Council supported by the people of the Junagadh State, the Regional Commissioner, Western India and Gujarat States Region, assumed charge of the administration of the State under orders of the Government of India. A proclamation to this effect dated 9-11-1947 was issued by him from Junagadh and has been republished for general information in the Western India and Gujarat States Regional Gazette dated 20-11-1947. The assumption of the administration was therefore made at the request of the people of Junagadh and of the State Council under the circumstances mentioned above.

We have next to see whether there is any legal sanction under which the Central Government functioned after taking over the administration. This sanction is to be found in Sub-section (1) of Section 3. Extra Provincial Jurisdiction Act, 1947, which declares that it shall be lawful for the Central Government to exercise extra provincial jurisdiction in such manner as it thinks fit. Sub-section (2) empowers the Central Government to delegate its jurisdiction to any Officer or authority in such manner and to such extent as it thinks fit. This sub-section clearly shows that the Central Government while delegating the exercise of its extra provincial jurisdiction to an officer, can define the manner in which and the extent to which such officer is to exercise that jurisdiction. Section 4(1) authorises the Central Government to make such orders as may seem to it expedient for the effective exercise of its extra provincial jurisdiction and Section 4(2) enacts that without prejudice to the generality of these powers the Central Government may among other things determine the law and procedure to be observed whether by applying with or without modification all or any of the laws in force in any province or otherwise and the persons who have to exercise jurisdiction and the powers to be exercised by them. Section 5 declares that every act or thing done in pursuance of extra provincial jurisdiction of the Central Government in any area outside the provinces shall be as valid as if it had been done according to the local law then in force in that area. Section 6 provides that if in a proceeding, civil or criminal, in a Court established in the province or by the authority of the Central Government any question arises as to the existence or extent of any extra provincial jurisdiction of the Central Government, the Secretary of the appropriate department of the Government of India shall send to the Court, on a reference to be made by it for the purpose, the decision of the Central Government on the question and such decision shall be declared conclusive evidence of the matter contained therein.

The learned Advocate-General''s contention was that the Act gave exclusive jurisdiction to the Central Government to determine the extent and existence of its extra provincial jurisdiction and the decision of the Central Government on the point is declared to be final and thus the jurisdiction of the Court to determine the extent or existence of the Central Government''s extra provincial jurisdiction was barred by the Act. He further argued that every act of an officer appointed in any area by the Central Government to exercise its extra provincial jurisdiction in that area was an act of the Central Government and could not be questioned in a civil Court. He urged that however arbitrary his act might be or other wise be ever divorced it might be from the functions assigned to him it cannot be questioned in a Court of law by reason of the mere fact that the Central Government has been exercising extra provincial jurisdiction under the Act and the officer in question had been appointed by the Central Government for exercising that jurisdiction We have however held in-AIR 1953 Sau 180 (A) that an officer of the Central Government acts under delegated authority and so long as his act is within the scope of that authority, it should be considered as the act of the Central Government and, as such, entitled to the protection of the Extra Provincial Jurisdiction Act; but if his act is shown to be beyond that authority it ceases to be the act of the Central Government and loses all legal sanction and is open to correction by a civil Court. This view is strengthened by the provisions of Section 4 of the Act which clearly contemplates the setting up of a hierarchy of officials with defined powers and duties according to law and procedure determined by the Government and the act of every official of the Central Government must be within the limits of the powers conferred upon him. A Police Officer, for instance, will be allowed to exercise only such powers as are conferred upon him by law or rules made under the section for the exercise of his powers but if he exceeds his powers, his act can be called into question and corrected by a civil Court. To state the same argument in other words, officers appointed to exercise the Central Government''s extra provincial jurisdiction do not receive ''carte blanche'' to do anything they like but must justify their acts by the law or rules made by the Central Government and in the absence of any such law or rules, by orders duly notified u/s 4(1). It is, therefore, clear that it is quite insufficient to plead merely the Extra Provincial Jurisdiction Act in defence of an official act, but it is also necessary to show that the particular act falls within the purview of the officer''s powers and even then he will get only such immunity as the law or procedure made for the exercise of his powers may allow. If the learned Advocate-General''s argument, that an officer can do anything he likes with impunity under the purported exercise of his powers without reference to his competency, is admitted as a valid argument it would lead to disastrous consequences. The rule of executive officers would be substituted for the rule of law and this cannot be permitted unless such powers are conferred on them plainly and in clear terms under the Act. In- AIR 1940 105 (Privy Council) ), the Privy Council observed that (p. 110):

It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have hot been complied with, xx xx

We therefore reject the very wide proposition advanced by the learned Advocate-General that the acts of a Central Government''s officer in the purported exercise of the Extra Provincial Jurisdiction Act can under no circumstances be questioned by the Court and hold that no act of the officer of the Central Government, however highly placed he may be, can be upheld unless it is shown that it is within the scope of his delegated authority.

In-AIR 1953 Sau 180 (A), we held that an order of resumption of an inam of his private property by the Nawab was beyond the scope of the Administrator''s authority and could not be sustained. That decision was based on the principles that the grant of his personal property by the Nawab was the private property of the grantee and the Administrator had no jurisdiction to resume any private property. In this appeal the resumption is of State ''sim'' land sold to a subject near an urban area and the question is whether the Administrator''s powers to resume are in any way enlarged in respect of grants of State lands. This leads us to an examination of the nature of the right of resumption of State lands by a ruler as it was understood in Kathiawar.

The learned Advocate-General argued that the right of resumption of a grant by a ruler of State property was the sovereign right of the ruler and was inherent in every grant of State property whether by sale or otherwise. A ruler, he argued, could not alienate State property so as to divest himself of that sovereign right and referred to-Dhrangadhra State v. Nawanagar state 15 KLR 194 (C). The incidents attaching to grants of State lands by rulers have been discussed in Webb''s Political Practice and it appears that the Ruler''s right of resumption is in essence the right to revoke the grant which may be exercised at any time at his sweet will. This right of resumption in the case of inams or gifts of State lands has been admitted by Political Practice and usage, but the question whether the same right can be admitted in cases of sales of ''sim'' land to the ruler''s subjects near urban areas, which is the case here, introduces other considerations and it is a question whether the ruler has the same unlimited right of resumption of a grant in the form of sale of such holdings. It is however unnecessary to go into the question of resumability of such grants in this appeal. It is perhaps sufficient to say that the ruler''s right of resumption whether of inams or gifts pure and simple or of grants by sales of small holdings, near urban areas if it existed, was regarded as a high personal prerogative of the ruler and could be only exercised by him personally and this prerogative had been recognised as a matter of political usage and expediency. Its ultimate sanction lay in the exercise of the despotic and uncontrolled power of an absolute monarch.

The extent of the Administrator''s powers have been discussed by us in-AIR 1953 Sau 180 (A), and we have held that in the absence of other materials showing the extent of his powers, they must be deemed to be circumscribed by the objects contained in the Regional Commissioner''s proclamation and that any act of the Administrator which is not conducive to these objects is outside the scope of his authority and cannot be sustained. The material portion of the Proclamation is in the following terms:

The first task of myself and my officers will be to ensure complete peace and order throughout Junagadh State territory, and to give even justice to all communities.

The Administrator was therefore sent out to introduce rule of law in Junagadh State and to give justice to the people. We do not think that the exercise of the ruler''s high prerogative of resumption of State land duly granted by him can be deemed to have been intended to fall within the purview of the Administrator''s authority. The Administrator exercises statutory powers and it must be shown that this prerogative was expressly conferred upon him.

We hold therefore that the Administrator had no authority to resume grants of State lands and his order cannot be sustained. In the result, the appeal fails and is ordered to be dismissed. In view of the questions involved in the appeal, we make no order as to the costs of the appeal.

Shah, C.J.

I agree.