Md. Hanif Vs. The State of Assam
 INSC 218 (3 September 1969)
Constitution of India, Art. 226-Jurisdiction
of High Court.
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
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
[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,  2
S.C.R. 250, referred to. ,
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
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 filed
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, 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
"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
Now, therefore, in exercise of powers
conferred 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
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 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, 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
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
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 conception - (1)  2 S.C.R. 250.
203 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
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.