Thakur Jagannath Baksh Singh vs United Provinces

Gwyer, C.J.—In this case the appellant, who is the talukdar of Bhawanshahpur in Oudh, appeals against the decree of a Single Judge of the

Chief Court of Oudh dismissing his claim for a declaration of right Under Section 42, Specific Relief Act. The plaintiff had asked for a declaration

that the U.P. Tenancy Act, 1939 (Act 17 of 1939) in its entirety, or at least certain specified parts of the Act, was beyond the competence of the

Legislature of the United Provinces to enact and was also otherwise void, invalid and inoperative. The respondents denied that any part of the Act

was beyond the competence of the Legislature to enact. They alleged also that a suit challenging the validity of an Act of the Legislature was not

maintainable against them and that in any case a suit for a mere declaration that an Act is invalid is barred Under Section 42, Specific Relief Act. In

order that the issues in the case may be properly understood, it will be convenient to give a brief account of the manner in which the talukdars of

Oudh came to occupy the position which they now enjoy.

The Kingdom of Oudh was annexed by the East India Company in 1856. It had long been the scene of misgovernment and disorder; and in

those lawless times powerful men were able to establish themselves on the soil or to extend their possessions at the expense of their weaker

neighbours. Among those who were thus dispossessed or reduced to the status of sub-proprietors were no doubt a number of proprietary village

communities and village zamindars; but the belief of Lord Dalhousie, the then Governor-General, and his advisers that the greater part of the land in

Oudh was held by proprietary village communities and village zemindars seems to have been without justification. Nevertheless, the first step taken

by Government after the annexation, ""perhaps with more of chivalrous justice than political prudence"" (papers relating to Oudh presented to

Parliament in 1859, 62) was to make arrangements for a summary settlement of the land revenue of the province for a period of three years, the

settlement being made with the actual occupants of the soil, that is the village communities and zamindars, without any recognition of proprietary

right claimed by others. ""Only those talukdars,"" we are told,

who could prove very antiquated title as village proprietors to the estates they held were allowed to retain their tenure, and even then they were

settled with, not under the superior title of talukdars, but as owners by prescriptive right of the villages

and were

not only excluded in favour of village proprietors of really independent origin, but often deprived of their own hereditary villages, which their

ancestors had actually founded. (Papers relating to Oudh presented to Parliament in 1859, Montgomery''s Report, para. 330).

It is, therefore, scarcely a matter of surprise, that when the mutiny broke out at Lucknow in May 1857, the talukdars and their associates, with

only a few exceptions, ranged themselves against the Government, and the work in connexion with the settlement begun in the previous year was

completely undone. Few, if any, of the village zamindars and communities with whom, as occupants of the soil, the settlement had been made, had

the power even if they had the will to withstand the resumption by the talukdars of their former power and influence. It was in these circumstances

that Lord Canning, the then Governor-General, issued his famous proclamation on 15th March 1858, after the fall of Lucknow. The Governor-

General stated that he deemed it right to make known ""the mode in which the British Government will deal with the talukdars, chiefs, landholders of

Oudh and their followers;"" and after declaring that six named persons (afterwards reduced to five) who had given support and assistance to British

officers were to be henceforward the sole hereditary proprietors of the land which they held when Oudh came under British rule, ""subject only to

such moderate assessment as may be imposed upon them,"" continued as follows:

The Governor-General further proclaims to the people of Oudh that, with the abovementioned exceptions, the proprietary right in the soil in the

province is confiscated to the British Government, which will dispose of that right in such manner as to it may seem fitting.

Taluqdars, chiefs, landholders, with their followers who made immediate submission to the Chief Commissioner of Oudh, surrendering their

arms and obeying his orders were promised that their lives and honour would be safe, provided that they had not been guilty of murder, but as

regards any further indulgence which might be extended to them they were required to throw themselves upon the justice and mercy of the British

Government. Lastly, this assurance was given:

To those amongst them who shall promptly come forward and give to the Chief Commissioner their support in the restoration of peace and order,

this indulgence will be large and the Governor-General will be ready to view liberally the claim which they may thus acquire to a restitution of their

former rights.

The last paragraph was inserted by Lord Canning at the instance of the Chief Commissioner, Sir James Outram, who had urged that the

proposed confiscation was highly impolitic, and that it was advisable to secure the support of the landholders and chiefs by restoring their former

possessions to them, subject to certain restrictions; but it will be seen that Lord Canning, though mitigating the rigour of the earlier part of the

proclamation, was unwilling to go beyond a promise of indulgence. Sir James Outram however must have been well informed as to Lord

Canning''s further intentions when he wrote to the landholders of Oudh with a copy of the proclamation, that

if you at once come in ready to obey his orders, provided you have taken no part in the atrocities committed on helpless Europeans, none of your

lands will be confiscated and your claims to lands held by you prior to annexation will:be heard: Nawab Malka Jahan Sahiba v. Deputy

Commissioner of Lucknow (''81) 6 IA 63 at p. 67.

The outcry which Lord Canning''s proclamation caused in the United Kingdom and elsewhere is well-known, but it was based upon a complete

misunderstanding of Lord Canning''s true purpose. This is set out very clearly in his despatch written a few months later and dated 17th June 1858

(Oudh Papers 1859, p. 62), in his letter of 6th October 1858, to the Chief Commissioner of Oudh (Oudh Papers Cal. 1865) and in his despatch

to the Secretary of State, dated 25th November 1859 (Oudh Papers 426, 1861, pp. 22-24).

From these documents, which are all on record and which we have not therefore thought it necessary to set out in full, it appears that Lord

Canning''s first and main pre-occupation was to secure the pacification of the province as speedily as possible; and this he did not feel able to do

so long as the taluqdars and other landholders continued to be bitterly opposed to him. He was not disposed to take too harsh a view of their

attitude during the mutiny, since they had become subjects of the Crown only a few months before it broke out and by the introduction of British

rule many ""had suffered a loss of property and all had experienced a diminution of the importance and arbitrary power that they had hitherto

enjoyed:"" (Oudh Papers 289, 1858, p. 3.) He was disappointed that the proprietary village communities and the village zamindars had not taken

the side of the Government during the mutiny and in spite of the policy which had instigated the first summary settlement in 1856. He had also

begun to feel doubts about the views held by Lord Dal housie''s Government on the subject of land tenures in Oudh; and he recognized that many

real injustices had been committed in the course of the settlement, which were calculated to alienate the taluqdars still further. Lastly, he had the

predilection of an English nobleman of his generation for a territorial aristocracy of great families, who, subject to safeguards and restrictions which

had been absent during the time of the nawabi, would form a stable and conservative element in a province henceforward at peace. The

confiscation proclamation was therefore only a means to an end. It gave the Government a tabula rasa for the initiation of a new land policy. It

enabled them to restore dispossessed proprietors and thus enlist their sympathy and support, but also to remove some of the more glaring evils of

the former system. It enabled them to establish the taluqdars as a powerful territorial aristocracy, but at the same time to recognize rights formerly

enjoyed by under-proprietors. It was in other words an important part of Lord Canning''s policy of pacification; and if the strict legal rights of

individuals had to yield in some measure to more practical considerations of administrative convenience and expediency, there can be no doubt that

the immediate effect was to bring peace and order to a distracted province. And it may well be that even those who suffered diminution in their

legal rights have benefited in the long run by the restoration of the rule of law and a more settled system of Government.

The proclamation and the letter of Sir James Outram were followed by a further letter from the new Chief Commissioner, Sir Robert

Montgomery, in which the taluqdars were informed that provided they presented themselves at Lucknow and tendered their allegiance, all their

offences would be forgiven. Many taluqdars, they were told, had already presented themselves and had been pardoned and their estates re-settled

with them for three years; but some were still at large in rebellion. Those who had not yet tendered their allegiance were assured that the

Government would preserve to them their lives and property and confirm them in the estates possessed by them during the nawabi. This letter had

the desired result and a second summary settlement which had already been taken in hand was completed in the following year. This settlement

was on a wholly different basis from that of 1856-57, and most of the taluqdars found themselves reinstated in the estates which they held at the

date of the annexation. The settlement was however only for three years, and the talukdars appear to have harboured doubts about the ultimate

intentions of the British Government. Representations were made by Sir Charles Wingfield, who had succeeded Sir Robert Montgomery as Chief

Commissioner of Oudh; and the following letter was sent to him on 10th October 1859:

His Excellency in Council, agreeing with you as to the expediency of removing all doubts as to the intention of the Government to maintain the

taluqdars in possession of the taluqas for which they have been permitted to engage, is pleased to declare that every taluqdar with whom a

summary settlement had been made since the re-occupation of the province, has thereby acquired a permanent herditary and transferable

proprietary right, namely in the taluqa for which he has engaged, including the per-petual privilege of engaging with the Government for the revenue

of the taluqa. This right is however conceded subject to any measure which the Government may think proper to take for the purpose of protecting

the inferior zamindars and village occupants from extortion, and of upholding their rights in the soil in subordination to the taluqdars. The Governor-

General in Council desires that you will have ready, by His Excellency''s arrival in Lucknow, a list of the taluqdars upon whom a permanent

proprietary right has now been conferred; and that you will prepare sanads to be issued to those taluqdars at that time. The sanads will be given

by, and will run in the name of, the Chief Commissioner, acting under the authority of the Governor-General. I am directed to add that, as regards

zamindars and others, not being taluqdars, with whom a summary settlement has been made, the orders conveyed in the Limitation Circular No. 31

of 28th January 1859, must not be strictly observed. Opportunity must be allowed at the next settlement to all disappointed claimants to bring

forward their claims, and all such claims must be heard and disposed of in the usual manner. (Oudh Estates Act 1869, Schedule 1).

Thereupon a form of sanad was prepared and received the approval of the Government in a further letter dated 19th October 1859, in which

the following passage occurs:

The sanads declare that while, on the one hand, the Govornment has conferred on the taluqdars and on their heirs for ever the full proprietary right

in their respective estates, subject only to the payment of the annual revenue that may be imposed from time to time, and to certain conditions of

loyalty and good service on the other hand, all persons holding an interest in the land under the taluqdars will be secured in the possession of the

subordinate rights, which they have heretofore enjoyed. The meaning of this is that, when a regular settlement of the province is made, wherever it

is found that zemindars or other persons have held an interest in the soil intermediate between the raiyat and the taluqdar, the amount or proportion

payable by the intermediate holder to the taluqdar and, the net jama finally payable by the taluqdar to the Government, will be fixed and recorded

after careful and detailed survey and inquiry into each case, and will remain unchanged during the currency of the settlement, the taluqdar being, of

course, free to improve his income and the value of his property by the reclamation of waste lands (unless in cases where usage has given the

liberty of reclamation to the zamindar), and by other measures of which he will receive the full benefit at the end of the settlement. Where leases

(pattas) are given to the subordinate zamindars they will be given by the taluqdar, not by the Government. This being the position in which the the

taluqdars will be placed, they cannot, with any show of reason, complain if the Government takes effectual steps to re-establish and maintain in

subordination to them the former rights, as those existed in 1855, of other persons whose connexion with the soil is in many cases more intimate

and more ancient than theirs; and it is obvious that the only effectual protection, which the Government can extend to these inferior holders, is to

define and record their rights, and to limit the demand of the taluqdar as against such person during the currency of the settlement to the amount

fixed by the Government as the basis of its own revenue demand. (Oudh Estates Act, 1869, Schedule 1.)

Among these sanads was one granted to Babu Sitla Bakhsh the predecessor in title of the appellant, in the following terms:

Know all men that whereas by the Proclamation of March 1858 by His Excellency the Rt. Hon''ble the Viceroy and the Governor-General of

India, all proprietary rights in the soil of Oudh, with a few special exceptions, were confiscated and passed to the British Government, which

became free to dispose of them as it pleased, I, George Udny Yule, Officiating Chief Commissioner of Oudh, under the authority of His Excellency

the Governor-General of India in Council, do hereby confer on you the full proprietary right, title and possession of the Estate of Bhawan-shahpur

in zilla Sultanpur consisting of the villages as per list attached to the kabooliyat you have executed, of which the present Government revenue is Rs.

3,913. Therefore this sunad is given you in order that it may be known to all whom it may concern that the above estate has been conferred upon

you and your heirs for ever, subject to the payment of such annual revenue as may from time to time be imposed, and to the conditions of

surrendering all arms, destroying all forts, preventing and reporting crime, rendering any service you may be called upon to perform, and of

showing constant good faith, loyalty, zeal and attachment to the British Government according to the provisions of the engagement which you have

executed, the breach of any one of which at any time shall be held to annul the right and title now conferred on you and your heirs. It is another

condition of this grant that in the event of your dying intestate or of any of your successors dying intestate the estate shall descend to the nearest

male heir, according to the rule of primogeniture, but you and all your successors shall have full power to alienate the estate either in whole or in

part by sale, mortgage, gift, bequest or adoption to whomsoever you please. It is also a condition of this grant that you will so far as is in your

power promote the agricultural prosperity of your estate, and that all holding under you shall be secured in the possession of all the subordinate

rights they formerly enjoyed. As long as the above obligations are observed by you and your heirs in good faith, so long will the British

Government maintain you and your rights as proprietors of the above mentioned estate, in confirmation of which I herewith attach my seal and

signature.

This sanad, to complete the history of the taluka, was confirmed with all other sanads granted at the same time by the Oudh Estates Act, 1869,

an Act passed (inter alia) for the purpose, as stated in its preamble, of preventing any doubts as to the nature of the rights of talukdars and others in

the estates granted by the sanads and as to the course of succession thereto. It may be added that the two letters of 10th and 19th October 1859,

quoted above, are set out in the schedule to the Act and thereby given statutory force. In 1939 the United Provinces Tenancy Act was passed, the

preamble to the Act reciting that it was expedient to consolidate and amend the law relating to agricultural tenancies and other matters connected

therewith in Agra and Oudh. It was the latest of a series of Acts dealing with the same subject, and we are happily relieved from the task of

analysing its provisions in detail, because the Advocate-General of the United Provinces, in answer to a question put to him by the Court, admitted

that some of those provisions did undoubtedly cut down the absolute rights claimed by the talukdars to be comprised in the grant of their estates,

as evidenced by sanads such as that which we have set out above. In these circumstances, it is not necessary for us to consider the precise scope

of the condition in the sanad, which was much debated in the Court below, that ""all holding under you shall be secured in the possession of all the

subordinate rights which they formerly enjoyed,"" or to decide whether or not the Act now in question gave rights to persons who (to use the

learned Judge''s words) had no right or title whatsoever from the beginning, and by doing so was expropriating the rights of the talukdars who held

absolute titles subject only to under--and ex-proprietary rights. We prefer to deal with the question on broader grounds.

There can be no doubt at all, and we so hold, that the provisions of the Act fall within entry No. 21 of the Provincial Legislative List, and that it

was prima facie within the competence of the Provincial Legislature to enact it. If therefore the appellant''s contentions are to prevail, it is necessary

to see whether there are any other provisions in the Constitution Act which prohibit a Legislature from passing legislation of this kind, at any rate so

far as the talukdars are concerned, or limits in any way its power to do so. First it is said that the provisions of the Act which are complained about

in this case fall within Section 299 (2), Constitution Act, which provides that a Provincial Legislature has no power to pass a law authorising the

compulsory acquisition for public purposes of any land, unless the law provides for the payment of compensation for the property acquired. The

answer to this is that a law which regulates the relations of landlord and tenant and thereby diminishes the rights which the landlord has hitherto

exercised in connexion with his land does not authorize the compulsory acquisition of the land for public or any other purposes; and therefore the

question of compensation does not arise. Next, it is said that Section 300(1) affects the matter. That sub-section enacts that the executive authority

of a Province shall not be exercised, except on an order of the Governor in the exercise of his individual judgment, so as to derogate from any

grant or confirmation of title of or to land, or of or to any right or privilege in respect of land or land revenue. We are quite unable to appreciate the

relevance of this enactment to the circumstances now before us. It is not the executive, but the legislative, authority of the Province which has

derogated from the grant embodied in the sanad, if derogation there be. It was attempted to base an argument on the fact that the executive

authority of the Province is not to be exercised in this particular class of case except on an order of the Governor given in the exercise of his

individual judgment; and various other provisions in the Act were cited to us which contained references to the individual judgment of the

Governor, particularly Section 60(3), which provides that the validity of anything done by a Governor shall not be called in question on the ground

that he ought or ought not to have exercised his individual judgment. From these it was sought to establish that there was some peculiar sanctity

about acts of the Governor done in the exercise of his individual judgment; and that where powers of this kind existed for any particular purpose,

the powers of the Legislature in that sphere were excluded. So at least we understood counsel for the appellant to argue.

The purpose of Section 300(1) is, we should have thought, reasonably plain. There is power in certain circumstances to derogate from a

Crown grant by mere executive act, without the intervention of the Legislature at all. Thus, to take a familiar example, it is a common practice in

India to make grants of Crown lands with a condition that the land may be resumed at any time, if required for some public purpose. There would

therefore be nothing illegal in the Governor of an autonomous province by a stroke of the pen resuming possession of lands so granted. This he

would ordinarily do on the advice of the Minister concerned; but the effect of Section 300 (1) is that a Governor who received such advice from a

Minister in connexion with the grants of land which are mentioned in that subsection would be doing nothing unconstitutional if he declined to

accept the advice. The holder of a Crown grant would therefore be protected against possible injustice, if (to take an extreme case) a Minister

desired to carry out a confiscatory policy by means of his executive powers and without parliamentary debate or authority. The provisions of

Section 50(3) speak for themselves and need no further comment from us.

The doctrine that a grantor may not derogate from his own grant cannot be applied in such a way as to limit legislative powers. For this

proposition The North Charterland Exploration Co. (1910) v. The King (1931) 1 Ch. 169 is an authority, if authority be needed; and it is a

particularly strong case, because there the executive and the legislative power were both vested in the Crown, the grant being one of Crown lands

in the territory of a Crown Protectorate, where the legislative as well as the executive authority belongs to the Crown. Still less then can an Act of a

properly constituted Legislature be held to be incapable of derogating from a Crown grant, assuming that the subject-matter of the grant was

otherwise within the competence of the Legislature. It is true that the Crown, represented by the Governor, is a part of every Provincial

Legislature; but it is to be observed that the Governor''s power to refuse his assent to a bill is under the Constitution Act a discretionary power,

whereas his ""order"" Under Section 300(1) is to be given in his individual ''judgment. Nothing could more clearly show the distinction between

executive and legislative action in that particular case.

Some observations of Lord Mersey, delivering the judgment of the Privy Council in Burrard Power Co. v. Rex (1911) 1911 AC 87 at p. 94

were cited to us as authority for saying that a subordinate Legislature (in that case the Legislature of a Canadian Province) cannot by legislation

derogate from a grant previously made by the Government of the Province. The facts of the case, when carefully examined, do not support the

contention. By Section 146, British North America Act, the King in Council was given power, on addresses from the Houses of the Dominion

Parliament and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island and British

Columbia, to admit those Colonies or Provinces, or any of them, into the Dominion, on such terms and conditions in each case as might be

expressed in the addresses and as the Crown might think fit to approve, subject to the provisions of the British North America Act; and the

provisions of any Order in Council in that behalf were to have effect as if enacted by Parliament. In 1871 British Columbia was admitted into the

Dominion, subject to certain Terms of Union between the Dominion and the Province which, in accordance with the section just quoted, took

effect as if they had been enacted by Parliament. By one of the Articles of the Terms of Union, the Dominion Government undertook to secure the

construction of a railway communication between the Canadian railway system and the British Columbia seaboard and the Government of British

Columbia agreed to convey to the Dominion Government for the purposes of the construction of the railway certain public lands along the line of

railway throughout its entire length in British Columbia. The conveyance of this land, known as the railway belt, was duly effected by later statutes

of the Provincial Legislature. It was admitted that the grant of ""public lands"" to the Dominion Government passed the water rights incidental to

those lands; and therefore when by a later Act the Provincial Legislature attempted to assign certain of those rights to the appellants, the Privy

Council had no difficulty in holding the assignment to be ultra vires. But it will be seen, firstly, that the original grant of the lands was effected by

means of a Provincial Statute, and secondly, that the undertaking to convey them had effect, by reason of Section 146, British North America Act,

as though it had been contained in an Act of Parliament. The Provincial Government''s assignment was therefore of something with which they had

already parted and was also inconsistent with an Act of Parliament which was as much part of the constitutional arrangements of the province as

the British North America Act itself. In these circumstances, Lord Mersey''s words were clearly used in a popular and general, rather than in a

strictly legal sense.

Counsel for the appellant laid great stress on the Crown Grants Act, 1895, Section 3. The preamble to that Act recites that doubts had arisen

as to the extent and operation of the Transfer of Property Act, 1882, and as to the power of the Crown to impose limitations and restrictions upon

grants and other transfers of land made by it or under its authority, which it was expedient to remove. Certain provisions of general application in

the Act of 1882 had been found to conflict with provisions in the sanads, and the power of the Crown to impose limitations and restrictions other

than those known to the general law had been challenged. Accordingly, the Act first provided that every grant or transfer of land by or on behalf of

the Crown should be construed and take effect as if the Act of 1882 had not been passed, and, secondly, that all provisions, restrictions conditions

and limitations over contained in any such grants or transfers should be valid and take effect according to their tenor, any rule of law, statute or

enactment of the Legislature notwithstanding. The words ""provisions, restrictions, conditions and limitations over"" must be construed with reference

to the purpose of the Act, and plainly refer to the course of descent, inheritance, devolution and the like. They cannot refer to such matteres as the

relations between a sanad-holder and his tenants: see Sheo Singh v. Raghubana Kunwar (''05) 27 All. 634 and Lakshmiprasad v. Purushottam

(''32) 19 AIR 1932 Nag. 75. Nor could anything in the Crown Grants Act limit the power of a Legislature to pass such legislation as it thought fit

thereafter.

If once it be found that the subject matter of a Crown grant is within the competence of a Provincial Legislature, nothing can prevent that

Legislature from legislating about it, unless the Constitution Act itself expressly prohibits legislation on the subject, either absolutely or conditionally.

Safeguards may be found in the Constitution Act against hasty or improvident legislation on some matters, as for instance, the prohibition against

the introduction of certain legislative proposals without the prior sanction of the Governor; or the clause in the Governor''s Instrument of

Instructions to which our attention was drawn in a recent appeal requiring him to reserve for the signification of His Majesty''s pleasure any bill

which affects the permanent settlement. In the appeal now before us, we are concerned with the question of legislative competence only; and we

decline to extract from delaying or safeguarding provisions of the Constitution Act anything which would prohibit a Legislature from legislating at

all. Such a prohibition must be express and specific, since as we have observed in another case, every intendment ought to be made in favour of a

Provincial Legislature which is exercising its legislative powers.

It was admitted before us that there had been earlier tenancy legislation in the United Provinces no less open to objection from the taluqdars''

point of view as derogating from their sanads than the Act of 1939; but it was urged that in some cases the extent or importance of the Act had not

been suc has tomerit serious criticism, and that in others the Act embodied a compromise arrived at between the taluqdars and the Government of

the day. The taluqdars were under no obligation to protest against:an Act, if they did not think it worth their while to do so; and our decision in the

present appeal is not in any way influenced by their acquiescence in earlier legislation. We desire, however, to point out that what they are now

claiming is that no Legislature in India has any right to alter the arrangements embodied in their sanads nearly a century ago; and, for all we know

they would deny the right of Parliament itself to do so. We hope that no responsible Legislature or Government would ever treat as of no account

solemn pledges given by their predecessors; but the readjustment of rights and duties is an inevitable process, and one of the functions of the

Legislature in a modern State is to effect that re-adjustment, where circumstances have made it necessary, with justice to all concerned. It is,

however, not for this Court to pronounce upon the wisdom or the justice, in the broader sense, of legislative Acts; it can only say whether they

were validly enacted, and in the present case we are satisfied that neither the U.P. Tenancy Act, 1939, as a whole, nor any of those provisions of it

which are set out in the schedule to the plaint, are open to challenge on any of the grounds which have been argued before us. We therefore

dismiss the appeal with costs.

We have not thought it necessary, since we are dismissing the appeal upon the merits to express any opinion on two points raised by the

Advocate-General of the United Provinces, that is, whether any suit lies Under Section 42, Specific Relief Act, against a Provincial Government

for a declaration that a provincial statute is ultra vires, and whether an appeal will lie to this Court from the judgment of a single Judge of a High

Court when the judgment is appealable to a Division Bench of the same High Court. Both points seem to us to be of some difficulty and we should

be unwilling to decide them except after full argument; but we mention them now that it may not be assumed hereafter that we have by our silence

tacitly accepted either of them.