# MD. HANIF v. THE STATE OF ASSAM

- **Citation:** [1970] 2 S.C.R. 197
- **Court:** Supreme Court of India
- **Decided:** 1969-09-03
- **Case number:** Civil Appeal No. 1378 of 1966
- **Bench:** J. C. Shah, V. Ramaswam1, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/md-hanif-v-the-state-of-assam-4775
- **Pages:** 7

## Headnote

Constitution of India, Art. 226-lwisdiction of High Court.
197
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 tho
appellant, he filed a petition under Art. 226 of the Constitution challenghg
t)le 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
inYolved 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 Crown.
HELD : The judgment of the High Court bad to be set aside.
The jurisdiction of the High Court under Art. 226 is an extraordinary
jurisdiction vested not for the purpo;e 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 pujlic authorities are kept within
the limits of their jurisdiction. The remedy provided under Art. 226 is a
remedy againsf the violation of the rights of a citizen by the State or
statutory authority.
In other words, it is a remedy in public law. [202
C-E]
In the present case, the appellant was not merely attempting to enforce
his contractual right but important constitutional issues were raised on
his behalf. [203 Bl
State of OrL<~a v. Ramchandra, A.1.R. 1964 S.C. 865, distinguished.
Basappa v. Nagappa, [1955] 2 S.C.R. 250, referred to.

## Text

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MD. HANIF
v.
THE STATE OF ASSAM
September 3, 1969
[J. C. SHAH, V. RAMASWAM1 AND A. N. GROVER, JJ.)
Constitution of India, Art. 226-lwisdiction of High Court.
197
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 tho
appellant, he filed a petition under Art. 226 of the Constitution challenghg
t)le 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
inYolved 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 Crown.
HELD : The judgment of the High Court bad to be set aside.
The jurisdiction of the High Court under Art. 226 is an extraordinary
jurisdiction vested not for the purpo;e 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 pujlic authorities are kept within
the limits of their jurisdiction. The remedy provided under Art. 226 is a
remedy againsf the violation of the rights of a citizen by the State or
statutory authority.
In other words, it is a remedy in public law. [202
C-E]
In the present case, the appellant was not merely attempting to enforce
his contractual right but important constitutional issues were raised on
his behalf. [203 Bl
State of OrL<~a v. Ramchandra, A.1.R. 1964 S.C. 865, distinguished.
Basappa v. Nagappa, [1955] 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 1963.
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 wa> delivered by
Ramaswami, J.
This appeal is brought by certificate from
the judgment of the High Court of Assam and Nagaland, dated
198
SUPREME COURT REPORTS
[l 970] 2 S.C.R.
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 rev.enue 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 Jamatu!Jah & 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 on.e 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 subj.eci to an appeal to the Comn1issioner."
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 Rul.e No. 119 of 1959 challenging the validity ,_,f
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 iis 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
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HANIF v. ASSAM STATE (Ramaswami, J.)
I 99
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 following effect :
;'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 acr.es within the boundaries specifie'.l
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 mutaied in the
name of Sri Md. Haniff of Police Bazar, Shillong subiect to the terms and conditions specified in the said
deed of lease :
AND WHEREAS the Governor of Assam is satisfied that it is necessary :o resume th.e 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 purpose.
Now, thereforP,, in exercise of powers conferred by
by Clause V of the afore-mentioned d.eed of lease, the
Governor of Assam is pleased to resume the said plot
0£ land and to direct the Deputy Commissioner United
K. J. Hills to summa~ly 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 com11ensation, 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 River".
200
SUPREME COURT REPORTS
[1970] 2 S.C.R.
The forwarding note of the Deputy Commissioner reads
as
·A
follows :
Shri Md. Haniff,
Police Bazar, Shillong
L 14/7 /2/62/24
dt. 22-3-63
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,
C
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 (Rnpees
five Jakhs, nine thousand, :nine hundred and sixtyfive)
only being the total cost of resumption in respect of
the abovementicined properties and the
said
8'llOunt
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, ther.efore, the notice was invalid.
In the counter-a!fidavit
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 netition of the appellant holding that the case involved disputed questions of titfo, that the remedy of the appellant was to file a suit
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HANIF v. ASSAM STATE (Ramaswami, J.)
2 0 I
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 wi\ether the
respondent was entitled to resume the land by virtue of Cl. 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(').
The material facts of that case are not para!lel 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 virtu.~ 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
was 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 maierial 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 tit:e was involved. Ii 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 Cl. 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
(I) A.l.R. 1964 S.C. 685.
202
SUPREME COURT REPORTS
[1970] 2 S.C.R.
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 artion before a court of
law. 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 Con;titution.
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 concl'rned 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 cor1ms, 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 Kinl!'s
name. These writs were always granted for the protection of public inierest 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 bv sp.o..edy and summary interposition. That is the theory
of the English ·law and as pointed out by this Court in Basappa v.
Nagappa(') our Constitution makers have borrowed the concep-
(1) [1955] 2 S.C.R. 250.
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HANIF v. ASSAM STATE (Ramaswami, l.)
203
ti on of; prerogative writs from the English law and t)l.e essential
principles relating to such prerogative writs are applicable in
Tudian 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 statutory authority. In other words, it is a remedy
in public law. But as already pointed out the appellant in the
present ci1se 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 nold 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
co:rts upto this stage.
Y.P .
Appeal allowed.