Sahodara Devi & Ors Vs. Government
of India & ANR [1971] INSC 96 (26 March 1971)
BHARGAVA, VISHISHTHA BHARGAVA, VISHISHTHA
SHELAT, J.M.
DUA, I.D.
CITATION: 1971 AIR 1599 1971 SCR 230
ACT:
Cantonment Land Administration Rules, 1937,
r. 27-Power under rule to grant lease whether discretionary-Use of word 'May',
effect of.
HEADNOTE:
The appellant filed a petition under Art. 226
of. the Constitution against the refusal of the Defence Ministry to `execute a
lease under r. 27 of the Cantonment Land Administration Rules, 1937 in respect
of a bungalow situated in a cantonment area, on occupancy land held on 'old
grants lease'. The single Judge directed the respondents to execute the lease
but the Division Bench held that the power to grant a lease under r. 27 was discretionary.
The Division Bench therefore set aside the orders of the single Judge and
issued orders to the respondents to reconsider the request of the appellants
for grant of lease under r. 27 and Sch. VII of the Rules in accordance with
law.. With certificate the present appeal was filed in this Court. The only
question for consideration was whether the appellants were entitled to a
direction against the respondents to issue a lease to them under r. 27 and Sch.
VIl of the 1937 Rules.
HELD:Rule 27 only confers a power in general
on the Military Estates Officer to grant leases and, by using the word 'may',
it clearly gives, him discretion to grant leases in suitable cases. There is
the further circumstance that the exercise of the power by the Military Estate
Officer has been made subject to the approval of the Central Government or such
other authority as the Central Government may appoint for that purpose. The
power of the Military Estates Officer being subject to such discretionary
approval or disapproval of another authority cannot possibly be held to be
required to be exercised in all cases without any discretion. [234G235A] In the
present case therefore the High Court in directing a reconsideration of the
case in accordance with law was quite correct, so that the application of the
appellants must be decided afresh after keeping in view the principle that the
power to grant a lease under r. 27 is discretionary, but the refusal should
only be in suitable cases where sufficient reasons exist for the purpose.
[235C] Sardar Govindrao & Ors. v. State of Madhya Pradesh, [1965] 1 S.C.R.
678, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2246 of 1969.
Appeal from the judgment and decree dated
April 11, 1969 of the Allahabad High Court in Special Appeal No. 469 of 1968.
Yogeshwar Prasad, S. K. Bagga and S. Bagga,
for the appellants.
V. A. Seyid Muhammad and S. P. Nayar, for the
respondents.
231 The Judgment of the Court was delivered
by Bhargava, J--The appellants are admittedly the joint owners of Bungalow No.
45, situated along Tagore Road, in the Cantonment of Kanpur. These premises are
recorded in the General Land Register of the Cantonment as occupancy land on
old grant terms. It appears that the words "old grant terms" referred
to rants made by the Government under the General Order of the Governor-General
in Council dated 12th September, 1836. Subsequently, the first Act to be passed
in respect of these lands was the Cantonments Act No. 13 of 1889. This was
followed by Cantonments Act No. 15 of 1910 and Cantonments Code, .1912. These
were amended by Cantonments Act No. 2 of 1924 which still continues to be in
force. On the 26th June, 1925, Rules were framed for the first time under
section 280 of the Cantonments Act of 1924, regulating administration of
Cantonment lands. These Rules were, however, superseded by fresh Rules by
Government notification dated 23rd November, 1937. The new Rules are described
as "Cantonment Land Administration Rules, 1937".
Under these Rules, a provision was made in rule
27 for regularisation of old grants by issue of fresh leases. The appellants
did not have any documents to show how the original title of their predecessors
was acquired in respect of these lands. The earliest document, which, the
appellants could produce, was a sale-deed executed by Ram Nath and others, sons
of Roop Kishore, in favour of Dost Mohammad Estate, on the 8th September, 1943.
This document recited that Roop Kishore, the father of vendors Ram Nath and
others, purchased the property in various installments by documents executed
between the years 1901 and 1908. The appellants acquired the rights to the
Bungalow by a sale- deed executed in their favour by Dost Mohammad Estate on
30th April, 1958. After taking this sale-deed, they applied for mutation to
Cantonment authorities; but objections were raised and the authorities did not
agree to mutate the names of the appellants until the appellants agreed to give
an undertaking to be bound by the terms of the Governor- Generals Order of
September 12, 1936. Their names were then mutated on 13th September, 1961,
which. had to be followed by a deed of admission executed by the appellants on
15th September, 1961. Subsequently, the appellants approached the authorities
to get their rights defined and to have their possession regularised under r.
27 of the Rules of 1937. The request not having been granted, the appellants,
on 12th April, 1966, moved the Military Estates Officer, Lucknow for the same,
purpose and, according to the appellants. no attention was paid lo this request
of theirs. On 15th 'October, 1966, they sent a reminder to the Military Estates
Officer, Lucknow and, in addition, requested him to supply them with a form
prescribed by Schedule V of the Rules of 1937. It may be mentioned 232 that the
lease under r. 27 was required to be executed in the form in Schedule VII and
not in Schedule V. On 25th October, 1966, the Military Estates Officer wrote to
the appellants to collect the form from, the Cantonment Executive Officer,
Kanpur Cantonment, who was the Agent of the Military Estates Officer and to
submit it, after completion, to the Military Estates Officer, Lucknow, along
with a site plan. The letter contained an additional sentence that this reply
sent also disposed of the earlier letter of the appellants dated 12th April,
1966.
The appellants had also, in the meantime,
moved the Defence Ministry by a letter dated 27th, August, 1966, for grant of a
lease under r. 27 read with Schedule VII of the Rules of 1937, quoting an
instance of one Mr. Packwood, resident of Kanpur Cantonment, in whose case a
similar lease had already been issued. By the letter dated 25th October, 1966,
the Joint Secretary to the Defence Ministry informed the appellants that a
lease under r. 27 and Sch. VII could not be granted; but, if the appellants so
desired, the Government were prepared to consider their case under r.
28(1) and Schedule VIII of those Rules. The
appellants made a representation against this letter by a letter dated 1st
November, 1966; but, when no reply was received, they gave a notice to the
Government on 28th February, 1967, to execute the lease in two months under r.
27 and Sch. VII. Again, there was no reply and, thereupon, the appellants moved
a petition under Art. 226 of the Constitution in the High Court of Allahabad on
18th, March, 1967, seeking a writ of mandwnus directing the Military
authorities to issue a lease to them under r. 27 and Sch. VII. The petition was
heard by a single Judge of the High Court and he issued a direction to the
respondents to grant a lease as prayed. He rejected the plea of the respondents
that the case fell within Rules 16 to 26 and 28 and not under Rule 27. The
respondents appealed to a Division Bench which agreed with the learned single
Judge that rules 16-26 and 28 were inapplicable to the case of the appellants.
It was, however, of the view that, though, the case was covered by r. 27, that
rule did not contain any mandatory provision requiring a lease to be given in
all cases of old grants and that there was a discretion vested in the
authorities acting under that rule not to give a lease in suitable cases. It
was also held that the appellants had no right to claim such a lease under that
rule. Consequently, the Division Bench set aside the direction of the single
Judge and issued orders to the respondents to reconsider the request of the
appellants for grant of lease under r. 27 and Sch. VII of the Rules in
accordance with. law. It is against this order that the appellants have come up
to this Court by certificate under Art. 133(1)(b). of the Constitution.
In this appeal, we are concerned with only
one single point relating to the nature of the direction contained- in r. 27 of
the 233 Rules of 1937 The concurrent decision of the single Judge and the
Division Bench, holding that rules 16-26 and 28 are inapplicable, has not been
challenged in this case before us. The only point that has been canvassed is
whether the appellants are entitled to a direction against the respondents to
issue a lease to them under r. 27 and Sch. VII of the Rules of 1937.
Rule 27 of the Rules of 1937 is as follows:-
"27. Special Lease for the Regularisation of Old Grants.Notwithstanding
anything contained in rules 16 to 26 the Military Officer in any case where a
site is held without a regular lease, may, on application by the holder, grant,
with the approval of the Central Government or such other authority as the
Central Government may appoint for this purpose, a lease of the said land in
the form set out in Schedule VII." In this Rule, thus, the power to grant
a lease for regularisation of old grants has been given to the Military Estates
Officer by using the word "may", and the power is further subject to
the approval of the Central Government or such other authority as the Central
Government may appoint for the purpose. In view of this language used, we think
that the High Court was quite fight in holding that this rule does not envisage
a mandatory direction to the Military Estates Officer to grant a lease in all
cases where the question of regularisation of old grants arises. Normally, the,
word "may" is used to grant a discretion and not to indicate a
mandatory direction. Had the, intention been that the Military Estates Officer
must grant a lease in all cases, the word used would have been "shall"
instead of "may". It is true that the word "may", in some
context, has been interpreted as containing a mandatory direction and the
authority given the power has to exercise that power unless there be special
reasons. Such a case came before this Court in Sardar Govindrao and Others v.
State of Madhya Pradesh (1). That was a case where a rule relating to grant of
money or pension was sought to be enforced. This Court held:- "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 (1) [1965]
S.C.R. 678 34 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 c raising to be adversely affected by the provision of s. 3 of the Act.
Many such persons may have no claims at all 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 sub-section bears
its ordinary meaning.
The word "may" in sub-s. (3) has,
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".
It may be noticed that, in that case, the
word "may" as used in the general sub-s. (2) was not held to indicate
a mandatory direction. It was only in sub-s. (3), because of the special
context, that 'the Court held that the word "may" was equivalent to
" shall" or "must". In the case before us, rule 27 only
confers a power in general on the Military Estates Officer to grant leases and,
by using the word "may", it clearly gives him discretion to grant it
in suitable cases. There is further the circumstance that the exercise of the
power by the Military Estates Officer has been made subject to the approval of
the Central Government or such other authority as the Central Government may
appoint for that purpose. If the power had to be exercised by the Military Estates
Officer in all cases, its being made subject to the approval of another
authority would be meaningless. When a rule envisages approval of the proposed
action of the Military Estates Officer, it also implies that his action can be
disapproved. This approval or disapproval will necessarily be at the discretion
of the Central 235 Government or the authority appointed by it for that
purpose. The power of the Military Estates Officer being subject to such
discretionary approval or disapproval of another authority cannot possibly be
held to be required to be exercised in all cases without any discretion. The
Division Bench was, therefore, perfectly correct in holding that the power
under r. 27 is a discretionary power, and both the Military Estates Officer as
well as the Central Government or the other authority appointed by it for that
purpose in exercising their power have the discretion in suitable cases not to
proceed under this rule. The High Court, in directing a reconsideration of the
case in accordance with law, was, therefore, quite correct, so that the
application of the appellants must be decided afresh, after keeping in view the
principle that the power to grant a lease under rule 27 is discretionary ; but
the refusal should only be in suitable cases where sufficient reasons exist for
that purpose.
The appeal fails and 'is dismissed. In the
circumstances of this case, we make no order as to costs.
G. C. Appeal dismissed.
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