Sardar Govindrao & Ors Vs. State of
Madhya Pradesh [1964] INSC 218 (6 October 1964)
06/10/1964 HIDAYATULLAH, M.
HIDAYATULLAH, M.
SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1965 AIR 1222 1965 SCR (1) 678
CITATOR INFO :
R 1967 SC1606 (12) F 1971 SC1599 (4) D 1977
SC 567 (23) F 1977 SC 740 (10) RF 1982 SC1201 (2,3)
ACT:
The C.P. and Berar Revocation of Land Revenue
Exemptions Act, 1948, s. 5(3)-Descendants of former Chiefs losing exemption
entitled to apply for money grant or pension- Granting of pension, if
conditions satisfied, whether discretionary.
HEADNOTE:
The appellants who were descendants of a
former ruling chief and had lost their exemption from land revenue as a result
of the operation of s. 3 of the C.P. & Berar Revocation of Land Revenue
Exemptions Act, 1948, applied for a pension or money grant under the provisions
of s. 5 of the Act. their petition was rejected by the State Government without
reasons being recorded. They filed a writ petition under Art. 226 but the High
Court held that the granting of a pension was completely within the discretion
of the Government and the petition was therefore incompetent.
In appeal before the Supreme Court the
appellants contended that rejection of their petition without any reasons being
given amounted to no decision at all, and that once the conditions for the
grant of a pension were satisfied it was obligatory on the State Government to
make a grant of money or pension. On behalf of the State Government reliance
was placed on the words of s. 5(2) that after enquiry in respect of the
applications the Government 'may pass such orders as it deems fit' and the
directory word 'may' used in s. 5(3) itself.
HELD: (i) Sub-section (2) and (3) of s. 5
must be considered separately. Under sub-s. (2) all the applications for grant
of money or pension had to be considered and Government could deal with them in
several ways. Notwithstanding its apparent discretion s. 5(2) only enabled
Government to pass orders as fit the occasion. [683 E-H].
In sub-s. (3) special classes namely
religious and charitable institutions etc. and descendants of ruling chiefs had
to be dealt with and therefore the discretion stood modified. The rules
highlighted the distinction between the two sub-sections because they provided
for special enquiries in cases falling under sub-s. (3) [683 A- D].
Enabling provisions sometimes acquire a
compulsory force and in the present instance on the existence of the condition
precedent, the grant of money or pension became obligatory on the Government
notwithstanding that in sub-s. (2) the Government had power to pass such orders
as it thought fit and in sub-s. (3) the word 'may' was used. Except in those
cases where there were good grounds for not granting the pension, Government
was bound to make a grant to those who fulfilled the desired conditions and the
word 'may' in the third sub-section though apparently discretionary had to be
read as 'must'. [684 B-H].
Maxwell on Interpretation of Statutes,
referred to.
(ii)In passing orders on the appellants'
application Government had to act in a quasi-judicial manner. The appellants
had to be given an 679 opportunity to state their case and were also entitled
to know why their claim had been rejected. [685 B-D].
M/s. Hari Nagar Sugar Mills Ltd. v. Shyam
Sundar Jhunjhunwala and Others [1962] 2 S.C.R. 339, referred to.
Order of the State Government set aside.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 182 of 1964.
Appeal by special leave from the judgment and
order dated April 20, 1959, of the Madhya Pradesh High Court in Misc. Petition
No. 325 of 1955.
S. V. Gupte, Solicitor-General, W. S.
Barlingay, S. T. Khirwarkar and A. G. Ratnaparkhi, for the appellants.
M. S. K. Sastri and M. S. Narasimhan for I.
N. Shroff, for the, respondent.
The Judgment of the Court was delivered by
Hidayatullah J. The appellants claiming to be the descen- dants of former
ruling chiefs in the Hoshangabad and Nimar Districts of Madhya Pradesh applied
under the Central Provinces and Berar Revocation of Land Revenue Exemptions
Act, 1948, for grant of money or pension as suitable maintenance for
themselves. By that Act, every estate, mahal, village or land which was
exempted from the payment of the whole or part of land revenue by special grant
of, or contract with the Crown, or under the provision of any law or rule for
the time being in force or in pursuance of any other instrument was after the
appointed date made liable to land revenue from the year 1948-49,
notwithstanding anything contained in the grant, contract, law, rule or
instrument.
The appellants held estates in the two
districts on favourable terms as Jahgirdars Maufidars and Ubaridars, and
enjoyed an exemption from payment of land revenue amounting in the aggregate to
Rs. 27,828-5-0 yearly. On the passing of the Act the exemption was lost and
they claimed to be entitled to grant of money or pension under the provisions
of the Act about to be set out. They applied to the Deputy Commissioner, who
forwarded their application to the State Government. The State Government by
its order No. 993 /XVI- 4, dated April 26, 1955 rejected their petition. No
reasons are contained in that order.
The appellants thereupon filed a petition in
the High Court of Madhya Pradesh under Art. 226 of the Constitution for a writ
of certiorari to quash the order of the State Government. In that LlSup./65-18
680 petition they contended that the, rejection of their petition by the State
Government without giving any reasons amounted to no decision at all and was an
improper and illegal exercise of the power vested in the State Government by s.
5 of the Act. The State Government resisted the petition by contending that the
appellants were not descendants of any former ruling chief and further that the
exercise of the power by the State Government was proper and legal.
The petition in the High Court was heard and
disposed of by a Full Bench. The learned Chief Justice, who delivered the
judgment on behalf of the Full Bench held that the State Government was not
compelled to grant either money or pension because the exercise of the power
under s. 5 was discretionary and the petition, therefore was incompetent.
No other question was gone into by the High
Court even though a suit is barred under the provisions of the Act and a
petition under Art. 226 would appear to be the only remedy in case the State
Government failed to comply with the terms of the Act, or acted in an illegal
manner.
The Act consists of eight sections. The
revocation of exemption from liability for land revenue is laid down by s.
3, the purport of which has already appeared
in this judgment. It is not necessary to refer to that section in detail
because in addition it speaks of lands in Berar governed by the Berar Land
Revenue Code and of lands in Madhya Pradesh governed by the Central Provinces
Land Revenue Act, 1917 and lays down the classes of such lands and the special
rules applicable to them. In the present appeal we are not concerned with these
details and they may, therefore, be put aside. Section 4 of the Act makes
suitable amendments in the Central Provinces Land Revenue Act, 1917 and the
Berar Land Revenue Code consequent upon the provisions of s. 3 of the Act. We
need not attempt to set out these amendments. Section 5 then provides as
follows :- "5. Awards of money grants or pension.
(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 or money or pension.
(2) The Deputy Commissioner shall forward the
application to the Provincial Government, which may pass such orders as it
deems fit.
(3) The Provincial Government may make a
grant of money or pension- 681.
(i) for the maintenance or upkeep of any
religious, charitable or public institution or service of.& like nature; or
(ii) for suitable maintenance of any family of at 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
Province." Section 6 bars the jurisdiction of civil courts. Section 8
enables the Provincial Government to make rules for carrying out the purposes
of the Act. Section 7 grants power to the:
State Government to grant exemptions from
payment of land revenue under the Central Provinces Land Revenue Act, 1917 and
the Berar Land Revenue Code in whole or in part, as it may deem fit.
The short question in this appeal is whether
the provisions of s. 5(3) make it obligatory upon the State Government to make
a suitable grant of money or pension in case it is proved that the applicant
has lost the exemption under the Act and is a descendant from a former ruling
chief? The Full Bench of the High Court was of the view that there was no
obligation on the State Government to make such a grant inasmuch as S. 5 (3)
was discretionary. The appellants contend that the view of the High Court of S.
5 (3) is erroneous and the section is mandatory notwithstanding the use of
language which appears to confer a discretion, provided the other conditions of
the sub-section are fulfilled.
Before we deal with this question we may also
refer to the rules which have been framed under S. 8 of the Act. These rules,
were made for dealing with applications received under S. 5(1) of the Act. They
are six in number. After defining the terms 'maufi', 'inane, 'maufidar' and
'inamdar, rule 3 says that on receipt of the application the Deputy
Commissioner may enquire into it personally or may transfer it to a Revenue
Officer not below the rank of Extra Assistant Commissioner for enquiry and
report. Rule 4 then provides what the enquiry should cover. Though the rule is
divided into sub-rules (a) to (g), under sub-rules (a) to (e) the enquiry is
directed to ascertain the lands held by the applicant, his income, class of
maufi or inam and the details of the maufi and inam. There were many maufidars,
ubaridars, who were holding lands under diverse titles and concessions.
Sub-rules (a) to (e) seem to apply to all the applicants. When, however, a
maufi is held by any religious, charitable or public institution or for any
service as stated in S. 5 (3) (i) quoted above or is held for maintenance
Sup./65- 19 682 by a descendant of a former ruling chief as mentioned in s.
5 (3) (id), sub-rules (f) and (g) apply in
addition to sub- rules (a) to (e). Under sub-rule (f) some special enquiry is
required to be made in respect of religious, charitable or public institutions
or service, such as, whether the institution should be continued to be
maintained or service continued to be rendered and the minimum annual
expenditure required for the maintenance of the institution or the service.
Sub-rule (g) then says -- "In the case of maufi or inam for the
maintenance of a descendant of a former ruling chief the following further information
should also be furnished This is followed by four sub-rules the first lays down
that the minimum amount required to ensure suitable maintenance of the family
should be stated after enquiry; the second requires that any other source of
income should be specified; the third requires the enquiring officer to state
the extent to which such a person is dependent on maufi income and the fourth
requires that his loyalty to Government should be ascertained. Rule 5 then
enjoins that after completing the enquiry the Deputy Commissioner should make
his report and his recommendation. Rule 6 provides that the Deputy Commissioner
should also consider whether it would be desirable to exempt some land from
liability to pay land revenue in whole or part under S. 7 instead of making a
money grant under S. 5(3).
It is contended on behalf of the State of
Madhya Pradesh that the powers exercisable under the Act are in the discretion
of the Government and there can be no remedy by way of a writ under Art. 226 of
the Constitution. It is pointed out in support of the submission that sub-s.
(2) of S. 5 confers on the Government complete discretion because it says
"that the Provincial (State) Government". . .. .... ..." may
pass such orders as it deems fit" in respect of every application
forwarded by the Deputy Commissioner, and that sub-s. (3) is also worded in
language which is directory where it says "The Provincial (State)
Government may make a grant of money or pension etc." This view, appears
to have been accepted in the High Court.
In our opinion, this contention cannot be
supported if the scheme of the fifth section is closely examined. No doubt, the
Deputy Commissioner is required to make enquiries and to forward all
applications to Government and Government has been 683 given the power to pass
such orders as it deems fit but the operation of sub-s. (2) and the discretion
in it relates to applications in general while in respect of some of the
applications the order has to be made under the third sub- section where the
discretion is to a considerable extent modified. The rules here help in the
understanding of the third sub section.
In all cases an enquiry has to be made which
generally follows a pattern disclosed by rule 4, sub-rules (a) to (e).
But in cases of maufi or inam held by
religious, charitable or public institutions or service or in case of a maufi
or inam for the maintenance of a descendant of a former ruling chief additional
enquiries have to be made. File rules highlight the distinction between
revocation of exemption in the case of persons belonging to two special
categories and the revocation of exemption in the case of others. It will be
noticed presently that S. 5 of the Act also follows the same scheme and the
rules do no more than emphasise the special character of sub-s. (3) of S. 5.
Power has been conferred on Government to make some other lands free from land
revenue so that sometimes a grant of money or pension and sometimes exemption
from land revenue may be ordered.
It could hardly have been intended that
sub-s. (3) of s. (5) was to be rendered nugatory in its purpose by the
operation of the discretion conferred by sub-s. (2). The two sub- sections have
to be read separately because though the word "may" appears in both
of them that word in sub-s. (3) takes its meaning from an obligation which is
laid upon Government in respect of certain institutions and persons if the
stated conditions are fulfilled. It is impossible to think that in the case of
a religious, charitable or public institution which must be continued or in the
case of descendants of former ruling chiefs, Government possessed an absolute
discretion to refuse to make a grant of money or pension for their maintenance
or upkeep even though they satisfied all the conditions for such a grant and
were deserving of a grant of money or pension. The word "may" in s.
5(3) must be interpreted as mandatory when the conditions precedent, namely,
the existence of a religious, charitable or public institutions which ought to
be continued or of the descendants of a ruling chief, is established. The words
"may pass such orders as it deems fit" in sub-s. (2) mean no more
than that Government must make its orders to fit the occasion, the kind of
order to be made being determined by the necessity of the occasion. As stated
in Maxwell on the Interpretation of Statutes ( 11th edn. p. 23 1 "Statutes
which authorise persons to do acts for the benefit of others, or, as it is
sometimes said. for the 684 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 compulsory force, and so would seem to be modified by judicial
exposition." 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 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 claiming to be adversely
affected by the provisions of s. 3 of the Act. Many such persons may have no
claims at 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 subsection bears its ordinary meaning.
The word "may" in sub-s. (3) ha,-,,
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 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". File 685
High Court was in error in thinking that the third sub- section also like the
second conferred an absolute discretion.
The next question is whether Government was
justified in making the order of April 26, 1955 ? That order gives no reasons
at all. The Act lays upon the Government a duty which obviously must be
performed in a judicial manner. The appellants do not seem to have been heard
at all. The Act bars a suit and there is all the more reason that Government
must deal with such case in a quasi-judicial manner giving an opportunity to
the claimants to state their case in the light of the-report of the Deputy
Commissioner. The appellants were also entitled to know the reason why their
claim for the grant of money or a pension was rejected by Government and how
they were considered as not falling within the class of persons who it was
clearly intended by the Act to be compensated in this manner. Even in those
cases where the order of the Government is based upon confidential material
this Court has insisted that reasons should appear when Government performs
curial or quasi- judicial functions (see Messrs Hari Nagar Sugar Mills Ltd.
v. Shyam Sunder Jhunjhunwala & Others(1).
The High Court did not go into any other question at all because it rejected
the petition at the threshold on its interpretation of S. 5(3). That
interpretation has been found by us to be erroneous and the order of the High
Court must be set aside.
As the order of Government does not fulfill
the elementary requirements of a quasi-judicial process we do not consider it
necessary to order a remit to the High Court. The order of the State Government
must be set aside and the Government directed to dispose of the case in the
light of our remarks and we order accordingly. The respondents shall pay the
costs of the appellants in this Court and the High Court.
Appeal allowed.
[1962] 2 S.C.R. 339.
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