1. This application raises an important question as to the interpretation of Section 150 of the Madhya Pradesh Land Revenue Code, 1954 (No. II of 1955), which shall hereafter be referred to as 'the Code'. The point arises in this way:
2. The petitioner is the Bhumidhari of five survey numbers, viz. S. Nos. 3, 4, 5, 6 and 11, admeasuring in area 37 acres and 15 gunthas, assessed athis. 7, and situate at mouza Kambalpetta Chak, Tahsil Sironcha, District Chanda. On January 3, 1957, the petitioner made an application to the Tahsildar, Sironcha, under Section 150(1) of the Code for obtaining Bhumiswami rights in these fields and deposited three times the revenue assessed on his fields as required by that section. The application was for a declaration in his favour that he became a Bhumiswami of the lands comprised in the holding. His application was rejected by the Tahsildar on August 27, 1957, on the ground that no rules had been framed under Section 150 of the Code and since there were 303 timber trees yarned at Rs. 900 on the lands, if the applicant was declared a Bhumiswami he would get the rights of ownership of those trees as provided in Section 162(1) of the Code, and that this would mean that he had acquired the right of ownership of the timber trees valued at Rs. 900 by paying Rs. 21 into the State treasury. And as there was a discretion vested in the revenue officer under Section 150 to grant a declaration or not, the Tahsildar felt that it would not be proper for him Jo issue a declaration under Section 150 as prayed for by the petitioner. That was why he rejected the petitioner's application. This decision of the Tahsildar was upheld in appeal by the Sub-Divisional Officer, Sironcha/Chanda, by his order dated December 21, 1957. There was a further appeal against this order to the Deputy Commissioner, Chanda, who upheld the decision of the, two lower authorities on February 22, 1958. The petitioner then preferred a revision to the Additional Commissioner, Nagpur Division. But that revision came to be dismissed by him on February 19, 1959. It seems that this decision has been published in (1959) N.L.J. 145. It is against this dismissal of his application that the petitioner has filed the present application on the ground that the respondents were in error in holding that Section 150(1) of the Code did not impose on the revenue officers an obligation to declare the petitioner to be a Bhumiswami in respect of his holding, as he had paid three times the revenue assessed on the holding as required by Section 150.
3. Now, the argument in support of this petition urged on behalf of the petitioner by Mrs. Chandke is that Section 150 of the Code confers a right on aBhumidhari to get a declaration in his favour that he is a Bhumiswami of the land comprised in the holding, provided he deposits three times the revenue assessed on the holding and his application satisfies the other requirements of that section. It is contended that the lower authorities were in error in holding that because rules were not framed under the Code with reference in applications under Section 150 and because timber trees existed on the land, therefore, they had the discretion to reject the application of the petitioner. In support of her contention, Mrs. Chandke has referred to some relevant sections of the Code. But before we go to these other sections, it is necessary to quote Section 150 of the Code, the interpretation of which falls to be considered in the present application. Section 150 runs as follows:-
150. (1) Subject to rules made under this Code, a Revenue Officer may, except in such areas as the State Government may, by notification, exclude from the operation of this section, on an application made by a Bhumidhari and on his deposing three times the revenue for the time being assessed on the holding, declare such Bhumidhari to be a Bhumiswami of the land comprised in the holding:
Provided that no such application shall lie in respect of a part of a holding.
(2) A declaration made under Sub-section (1) shall take effect from the commencement of the agricultural year next following the date of suchdeclaration.
Now, it has to be mentioned that the Code came into force on October 1, 1955, and it repealed, amongst other Acts, the Central Provinces Tenancy Act, 1920 (I of 1920), which shall hereafter be referred to as 'the Tenancy Act', and the Central Provinces Land Revenue Act, 1917 (II of 1917), which shall hereafter be referred to as 'the Land Revenue Act.
4. The question in the present case is whether by the use of the word 'may' in Section 150(1) it was intended merely to confer a discretion on the Revenue Officer or whether it was contemplated that the power conferred on the revenue officer under Section 150 of the Code east on him also a duty to implement the provisions of that section. This question as to the interpretation to be put on the word'may' will have to be decided in the light of principles which have been now well settled by judicial decisions. It has been observed by their Lordships of the Privy Council in Alcock Ashdoum &Co. v. Chief Revenue Authority, Bombay : (1923)25BOMLR920 , that when a capacity or power is given to a public authority, there may be, circumstances which couple with the power a duty to exercise it. The leading case on this subject is Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214. In that case, the House of Lords had to consider whether the words 'it shall be lawful' were merely permissive and enabling or were compulsory. The Lord Chancellor Earl Cairns observed in that case that these words were plain and unambiguous and merely made that legal and possible which there would otherwise be no right or authority to do..They confer a faculty or power', he proceeded to observe (p. 222), 'and they do pot of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is empowered to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to doso.
He, however, made it clear that it lies upon those who contend that an obligation exists to exercise this power, to show in the circumstances of the case something which, according to these principles, creates this obligation. According to Lord Penzance in the same case (p. 229) :.The words 'it shall be lawful' are enabling and empowering words. They confer a legislative right and power on the individual named to do a particular thing, and the true question is not whether they mean something different, but whether, repard being had to the person so enabled to the subject-matter, to the general objects of the statute, and to the person or class of persons for whose benefit the power may be intended to have been conferred-they do, or do not, create a duty in the person on whom it is conferred, to exercise it.
According to Lord Selborne in that case, the words 'it shall be lawful' are (p. 235).potential, and never (in themselves) significant of any obligation. The question whether a Judge, or a public officer, to whom a power is given by such words, is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde, and, in general, it is to be solved from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power.
According to Lord Blackburn in the same case (p. 241),.If the object for which the power is conferred is for the purpose of enforcing a right, there may be a duty cast on the donee of the power, to exercise it for the benefit of those who have that right, when required on their behalf. Where there is such a duty, it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it. It by no means follows that because there is a duty cast upon the donee of a power to exercise it, that mandamus lies to enforce it: that depends on the nature of the duty and the position of the donee.
At page 244 of this report, this is what Lord Blackburn has further said:
In The Queen v. Tithe Commissioners3' Justice Coleridge, in delivering the considered judgment of the Court, says: 'The words undoubtedly are only empowering; but it has been so often decided as to have become an axiom that in public statutes words only directory, permissory, or enabling, may have a compulsory force where the thing to be done is for the public benefit or in advancement of public justice.' The only part of this to which exception can be taken is the use of the 'word 'public'; if by that it is to be understood either that enabling words are always compulsory where the public are concerned, or are never compulsory except where the public are concerned, I do not think either was meant. The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right. It is far more easy to shew that there is a right where private interests are concerned than where the alleged right is in the public only, and in fact, in every case cited, and in every case that I know of (where the words conferring a power are enabling only, and yet it has been held that the power must be exercised), it has been on the application of those whose private rights required the exercise of the power.
5. Now, the principles underlying the several observations quoted from this case have been invariably followed in judicial decisions. It has also been laid down that the person, on whom a power is conferred or in whom a discretion is vested, is not at liberty to refuse to exercise it on a mistaken view of his duty or on any extraneous or extra-judicial considerations, such as if the power is exercised it might prove inexpedient or it would operate unjustly in any particular case. See Maxwell on Interpretation of Statutes, 10th cdn., pp. 240-241, and The Queen v. Adamson (1875) I Q.B.D. 201, and Beg. v. Fawcett (1868) 11 Cox C.C. 305,
6. Apart from these decisions, Mrs. Chandke relied in support of her contention upon three more cases. In Chief Contr. Rev. Auth. v. Mah. Sugar Mills (1947) 49 Bom.L.R., 893, the question that this Court had to consider was as to the interpretation to be put on Section 57(1) of the Indian Stamp Act and it was held by this Court, on looking to the scheme and object of the Stamp Act, that Section 57(1) gave the subject definitely a right in certain cases and that right made it obligatory upon the revenue authority to exercise the power given to it for the benefit of the subject. The duty, however, only arises when a serious point of law is to be considered, and the breach of duty lies in a failure to appreciate that there is a serious point of law involved. The word 'may' in the section had, therefore, imperative force. Reliance 'was also placed on Kurban Hussen v.Ratikant (1956) 59 Bom. L.R. 158, where this Court was considering the question of the interpretation to be placed on the word 'may' in Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act (LVII of 1947), and it was held that taking into consideration the scheme of Section 12 in the context in which the word 'may' was used in Section 12, Sub-section (3)(a), it must be held that the said word introduces an element of obligation or compulsion and in effect means 'must' or 'shall'. The third case cited by Mrs. Chandke was Gabdoo v. Board of Revenue  Nag. 305. That case is of some importance because therein the Nagpur High Court had to construe Section 40 of the Tenancy Act. Now, Section 40 dealt with the power to declare sub-tenants of tenancy land as occupancy tenants, whereas Section 41 dealt with the power to declare sub-tenants of malik-makbuza lands or of sir-lands as occupancy tenants. Section 40(1), in so far as it is material, provided that subject to rules made under Section 109, a Revenue Officer may, either on his own motion or on an application made by a sub-tenant holding land from a tenant, declare such tenant to be an occupancy tenant, of such land on the ground that the land is habitually sublet and fix the rent payable by him for the land to the landlord of the village, mahal or patti in which the land is situate, and thereupon the right of the original tenant in the land' shall be extinguished: Provided that no such declaration shall be made in the case of a sub-tenant holding land from a charitable or religious endowment. Now, what had happened in the Nagpur case was that the sub-tenant had filed an application before the Sub-Divisional Officer, Jabalpur, for a declaration being made in his favour that he was an occupancy tenant of certain lands on the ground that the absolute occupancy tenant had been habitually sub-letting the same. The Sub-Divisional Officer made a, declaration in his favour. This decision was confirmed by the Additional Deputy Commissioner of Jabalpur in an appeal. But in the second appeal that was brought before the Board of Revenue by the absolute occupancy tenant it was held that the grant of occupancy tenancy status to a sub-tenant was discretionary under Section 40. In the Explanation to Section 40 it was provided that it was not necessary to make the presumption in the case of a minor or any other person subject to a legal disability or physical infirmity or a woman. After referring to this Explanation, the Board of Revenue held that it was not necessary to confer the occupancy tenancy status on sub-tenants merely if habitual subletting was proved. According to the Board, the discretionary power was unfettered. Thereafter, taking into consideration certain extraneous circumstances, viz. that the sub-letting was by a person who was holding a post under Government like that of 'patwari' who may be expected to be out of the village where the land in question was situate, it was held that the declaration in favour of the sub-tenant could not be made. It was against this decision of the Board of Revenue that the original applicant sub-tenant filed an application under Article 226 of the Constitution for a writ of certiorari, and it was held by the Nagpur High Court that the word 'may' used in Section 40 of the Tenancy Act was an enabling one which had to be used where the person clothed with a right establishes his claim to the relief sought by him, and that Section 40 did not provide any exception in favour of a person who is holding a post under the Government such as a patwari or such other functionary as was the view of the Board of Revenue. This case is certainly in favour of the contention urged by Mrs. Chandke before us, because, as we have already indicated, the Tenancy Act has been now repealed by the Code and it would appear that the provisions of Sections 40 and 41 of that Act have now been incorporated in Section 169 of the Code.
7. Now, the question is whether in the light of the principles which have been stated above we would be justified in construing Section 150 of the Code as conferring on the revenue officer a power coupled with a duty to make a declaration in favour of a Bhumidhari that he has become a Bhumiswami of the land comprised in his holding. Several reasons were given by the revenue authorities in support of their view that the power conferred under Section 150 of the Code was a discretionary power. It was stated that the provisions of Section 150 were contemplated to be subject to the rules to be made under the Code and no such rules were framed. Under Section 237(2)(xxxv), the State Government has power to make rules for the manner in which a Bhumidhari shall be declared a Bhumiswami in respect of his holding under Section 150. Such rules admittedly have not been made. But, under Section 239 of the Code, in so far as is material, all rules issued under any of the enactments repealed by the Code were to be deemed to have been made tinder this Code. The section corresponding to Section 150 of the Code in the Tenancy Act was Section 36-A and there is no dispute that rules were framed under Section 36-A of the Tenancy Act, In our judgment, till rules as contemplated under Section 237(2)(xxxv) are made, the old rules would continue to govern the procedure under Section 150 also. Then it appears to have been held by the lower Courts that the word 'may' in Section 150 of the Code would not have imperative force but would confer a purely discretionary power, because in the other sections of the Code the Legislature has used the imperative word 'shall', and in this connection reference was made to Section 193 of the Code. Now, Section 193 is one of the sections in Chapter XVI of the Code dealing with the consolidation of holdings. Section 187(i) and (ii) defines 'Consolidation of holdings' and 'Consolidation Officer'. Section 188(1) specifies who may apply for consolidation of holdings. It provides that any two or more tenure-holders in a village, holding together not less than the minimum area of land prescribed by rules made under Section 204, may apply to the Consolidation Officer for the consolidation of their holdings. Section 189 says that an application for consolidation of holdings has to be made in writing and must contain certain particulars. Under Section 190(1) and (2) the Consolidation Officer may submit the application to the Deputy Commissioner with a recommendation that the application may be rejected in whole or in part, or that the proceedings be quashed, and the Deputy Commissioner, on receipt of the recommendation, may accept it and pass orders accordingly or may order further inquiry. This power has to be used either on receipt of any such application or at any stage of the proceedings thereon. Section 191 comes into operation when the Consolidation Officer admits the application and then he has to proceed to deal with the same in accordance with the procedure laid down by or under the Code. Section 192 deals with the subject of preparation of a scheme for consolidation of holdings. Section 193(1) provides that if the Deputy Commissioner succeeds in removing any objection still remaining, or if there is no such objection, he shall confirm the scheme of consolidation; and under Sub-section (2), if he fails to remove such objections, he shall submit the scheme with his recommendations for the decision of the Settlement Commissioner, which, subject to any order that may be passed by the Board under Section 46, shall be final.
8. Now, the argument seems to be that where the Deputy Commissioner is given the power to confirm the scheme of consolidation, the word 'shall' has been used by the Legislature and, therefore, when the Legislature used the word 'may' in Section 150 of the Code it must be held that what was intended was to confer on the revenue officer merely a discretionary power. In our opinion, this argument, which found favour with the lower authorities, does not appear to be sound. Merely because an imperative word 'shall' is used in the other sections of the Code and the word 'may' is used in Section 150, we do not think that the Court is bound to interpret that word as conferring a power without being coupled with a duty. As we have already indicated, the question has to be decided in accordance with the well-known principles deducible from the case law on the subject, and that principle seems to be that enabling words like 'may' or 'it shall be lawful' are always compulsory when they are employed in relation to a power conferred to effectuate a legal right. 'What the Court has to do in such cases is to look to the scheme and object of the legislation, to examine the nature of the thing empowered to be done therein, the object for which it is to be done, the conditions under which it is to be done and the person for whose benefit the power is to be exercised, and ininterpreting these words extraneous or extra-judicial considerations are not to be applied. Now, the object in enacting the Code was to consolidate and amend the law relating to land revenue, the powers of Revenue Officers, rights and liabilities of holders of land from the State Government, agricultural tenures and other matters relating to land and the liabilities incidental thereto in Madhya Pradesh. As we have already stated, amongst other Acts the Code repealed the Tenancy Act as well as the Land Revenue Act. The Tenancy Act conferred certain rights on the tenants just as it imposed certain disabilities on them, and the Code, it appears to us, has retained theseprovisions. Under Section 36-A of the Tenancy Act, which admittedly corresponds to Section 150 of the Code, power was given to a Revenue Officer to declare occupancy tenants asmalikmakbuzas. Now, a malikmakbuza under the Tenancy Act corresponds to a Bhumiswami under the Code, whereas an occupancy tenant or rayat or rayat sarkar corresponds to a Bhumidhari under the Code. Section 36-A of the Tenancy Act provided as follows:
36-A. (1) Subject to rules made under Section 109, a Revenue Officer, may, except in such areas as the Provincial Government may, by notification, exclude from the operation of this section, on an application made by an occupancy tenant and on his depositing twelve and half times the rent of the holding for being paid to the landlord of whom he holds the holding, declare such tenant to be athalikmakbuza of the land comprised in the holding, fix the amount of land revenue payable for such land andplay the landlord the amount deposited by the tenant;
Provided that no such application shall lie in respect of a part of a holding.
(2) A declaration made under Sub-section (1) shall take effect from the commencement of the agricultural year next following the date of such declaration.
(3) A declaration made under Sub-section (1) of an occupancy tenant as amalikmakbuza of the land comprised in his holding shall not affect the rights in trees standing in such land on the date on which the declaration takes effect.' Now, it will be noticed that under Sub-section (3) of Section 36-A, a declaration made under ;Sub-section (1) did not affect the rights to trees standing on the land on the date on which the declaration took effect. It has to be mentioned that while enacting Section 150 of the Code corresponding to Section 36-A of the Tenancy Act, the provisions contained in Sub-section (3) of Section 36-A of the Tenancy Act have not been incorporated in Section 150 of the Code. The argument, therefore, on behalf of the petitioner that this omission indicates the intention of the Legislature to confer ownership of the timber trees also on a Bhumidhari when he is declared to be a Bhumiswami has, in our judgment, considerable force.
9. Section 95 of the Tenancy Act dealt with the tenant's right to trees in his holding, and it would appear from Sub-section (1) that a tenant, other than a subtenant, under that section, had during the period of his tenancy the same right to all trees in his holding as he had in the holding itself, provided that notwithstanding any contract to the contrary he was entitled to fell, and take the timber of, any babul (Acacia Arabica) tree in his holding or to clear his land of scrub jungle. There was a further proviso that with the permission of a revenue officer and subject to the condition that the landlord shall be entitled to the timber of the tree, he shall be entitled to fell any other tree which hindered the cultivation of the holding. The section corresponding to Section 95 of the Tenancy Act is Section 162 of the Code. It provides under Sub-section (1) that all trees standing in a holding held by a person in Bhumiswami rights and all trees other than timber trees standing in a holding held by a person in Bhumidhari rights shall belong to such person. Under Sub-section (2) of Section 162 of the Code, a Bhumidhari shall be entitled to appropriate the produce including leaves of timber trees in his holding and to propagate lac on such timber trees, but he shall not be entitled to fell or take the timber of any such tree in his holding. There is a proviso to this Sub-section which states that with the permission of a Revenue Officer a Bhumidhari shall be entitled to fell any timber tree which hinders the cultivation of the holding and the timber of such tree shall belong to the State Government, unless on an application made by the Bhumidhari, the Revenue Officer allows such timber to be appropriated by the Bhumidhari for such purposes and on such terms and conditions as may be prescribed. Now, it is contended on behalf of the respondents that under Section 162 of the Code, a Bhumiswami is the owner of all trees including timber trees, whereas a Bhumidhari under the Code is the owner of all trees, other than timber trees, standing on the holding; and the argument is that if a Bhumidhari were to be declared a Bhumiswami on his merely depositing three times the revenue for the time being assessed on the holding, then virtually a gift is being made of the timber trees standing on his land to him for a very inadequate consideration. Therefore, it is argued, the lower Courts were right in construing Section 150 as conferring on them merely a discretionary power on the ground that otherwise valuable rights vesting in the State are liable to be lost in favour of a Bhumidhari who is declared to be a Bhumiswami. As we have already indicated, the argument of convenience, hardship or inexpediency cannot be invoked in construing a statute with a view to seeing whether the power conferred on a public officer was intended to be discretionary or compulsory. It may be that in the present case the petitioner by being declared a Bhumiswami would be entitled on payment of Rs. 21, which is three times the land revenue assessed on his holding, to become a Bhumiswami and as such the owner of the timber trees worth Rs. 900 on the holding. But if the Legislature did not want this result, it would have specifically provided for an exception being made as regards the ownership of trees, which it does not appear to have done. The argument that if the rules contemplated to be framed under Section 237(2)(xxxv) of the Code had been framed, the necessary safeguard would have been provided for, does not appeal to us because it is well settled that rules cannot be framed so as to nullify the provisions of the Act. The only conditions which appear to be relevant under Section 150 of the Code are that the land must not be situated in any area, which the State Government may, by notification exclude from the operation of the section, that the application must be made by a Bhumidhari, that he must deposit three times the revenue for the time being assessed on his holding and that the application must be made in respect of the entire holding and not in respect of a part of the holding. There is no dispute that the Land Reforms Department Notification No. 2142-3439-XXVIII, dated October 13, 1955, which was issued by the Madhya Pradesh Government and which is referred to in the judgment of the Additional Commissioner, Nagpur Division, has not excluded the area in which the present lands are situated from the operation of Section 150 of the Code. It is not disputed also that the present petitioner is a raiyat sarkar and as such would be a Bhumidhari under Section 147(6) of the Code. He has made an application in respect of the whole of his holding and he has deposited Rs. 21 representing three times the revenue assessed on his holding. If that be so, it is really difficult to appreciate how the Revenue Officer can refuse to exercise the power vested in him under Section 150 of the Code to declare the present petitioner to be a Bhumiswami of the lands comprised in his holding. Under Section 150, the declaration that a Bhumidhari is to be a Bhumiswami is made with regard to the land comprised in his holding. The word 'land' has been defined in Section 2(9) of the Code as meaning a portion of the earth's surface, whether or not under water, and where land is referred to in the Code, it shall be deemed to include all things attached to or permanently fastened to anything attached to such land. It has to be mentioned that the word 'land' was not defined by the Land Revenue Act, while under the Tenancy Act 'land' was defined in Section 2(6) as meaning land which is let or occupied for agricultural purposes or for purposes subservient thereto, and includes the sites of buildings appurtenant to such land. It is obvious, therefore, that the definition of 'land' under the Code has a wider connotation and when the Legislature provided that a Bhumidhari was entitled to be declared a Bhumiswami in respect of the land comprised in his holding, it must have contemplated that the Bhumidhari by being declared a Bhumiswami was also to become the owner of the timber trees on his holding, of which he was not the owner when he was a Bhumidhari. As already indicated, the provisions of Sub-section (3) of Section 36-A of the Tenancy Act were not incorporated in Section 150 of the Code, and Sub-section (3) of Section 36-A of the Tenancy Act had specifically provided that the declaration contemplated therein would not affect the rights to trees standing on such land. That also is an additional reason why, in our view, the Legislature appears to have intended under Section 150 that when a Bhumidhari is declared to be a Bbumiswami he should become the owner of all the trees including timber trees on the land. As already stated, when it is contended that a power conferred by a statute is not merely discretionary but it is coupled with a duty to exercise it, it lies upon those who contend that an obligation exists to exercise the power to show that there is an obligation to exercise it. In our view, this burden has been sufficiently discharged by the petitioner and the lower Courts were not right in putting a narrowinterpretation upon Section 150 of the Code as conferring only a discretionary power, on grounds which, in our judgment, were extraneous.
10. The result is that we must hold that respondents Nos. 2 to 4 were wrong in their interpretation of Section 150 of the Code and should have exercised their power to enforce the legal right which vests in the petitioner under Section 150. A writ of certiorari will, therefore, issue quashing the orders of the lower authorities and the case will be remanded to the Tahsildar of Sironcha or any other appropriate officer competent to exercise the power under Section 150, with a direction that he will exercise the power conferred upon him under that section in the light of this decision. As the question raised in this special civil application was an important question, we direct that there will be no order as to costs of this application.