1. The petitioner-Association, a registered society under the Societies Registration Act, is a non-trading body, serving the needs of the merchant community, 'welfare and their good name' at Suryapet.
2. On 2nd February, 1949, the Association approached the Civil Administrator of Nalgonda District for the grant of land measuring 4506 square yards, lying in between the Hospital and Traveller's Bungalow at Suryapet. This land was 'then used as a public latrine and found to be in absolute insanitary condition.' The Court Administrator having been satisfied that the public at Suryapet needed a public hall and library, and as the Merchants' Association collected Rs. 15,000 for that purpose, granted the vacant land as 'there was no objection from any quarter for laying a park and a town-hall'. The then Municipal Body of Suryapet, a local authority constituted under 'Ain' (law then in operation) had no objection for the grant. The land was handed over to the petitioner-Association in 1949 (the date and month are not clear from the record). The land was granted in Exchange for an equal area on the right side of the Bungalow, belonging to the Municipality which was (in Ac. 18-80 Guntas against the land in Ac. 41-20 Guntas). The Public Works Department agreed for the exchange but raised a claim for Rs. 10,14 (OS) the difference other cost of the land. The petitioner Association was not in a position to pay this amount. However, the Government waived this claim.
3. The Civil Administrator approved the plan. The grant was subject to one condition (whether there were other conditions, is not clear from the record) 'that the park, well, town-hall etc., constructed therein, shall be open to all communities including Scheduled classes-Harijans.'
4. In 1952, the District Collector, Nalgonda, requested the Divisional Engineer, P.W.D. (R & B) :
'............ to take necessary action in regularising the matter as already in a part was constructed (with) a town-hall for the benefit of the public.'
5. Two years later, on 3-12-1954, the Rajapramukh notified: 'Raj Pramaukh has been pleased to allow sanction to the above transaction and occupying the available lane measuring Ac. 18-80 guntas in exchange for Ac. 41-20 guntas.'
6. In 1967, the petitioner-Association applied for construction of six tenements and, without waiting for the Municipal sanction, constructed the tenements and let out to private individuals for establishing shops at Rs. 60 per month.
7. The construction of these tenements became the subject-matter of a complaint and the Government after a prolonged enquiry, in Memorandum No. 4231/JI/60-10 Municipal Administration, Dept., dated 20-2-1970, passed the following order :
'(i) as it is stated by the Collector, Nalgonda that Gandhi Park is owned by the Merchants' Association as per the documents produced by them, an interference of the Government is called for on the question of ownership of the land
(ii) as regards the construction of shops without the permission of the Municipal Council Suryapet, the Municipal Council is advised to take necessary further action immediately after obtaining the opinion of the Municipal Standing Counsel.'
On 29-11-1973, again the District Revenue Officer issued notice :
'Since the Merchants' Association has failed to construct the park and town-hall for the purpose of public use and violated the condition of grant for the land in question, they have utilised the land for non-public purposes it is proposed to resume possession of Government land.'
and asked the petitioner to show cause. The petitioner submitted their explanation. On 31-5-1974, the District Revenue Officer held the petitioner 'failed to fulfill the conditions laid in the grant as'---
'The Association undertook the construction of rooms unauthorisedly and against the plans contemplated at the time of original grant made by the Civil Administrator. It failed to produce any permission from the Collector or the Government of such construction and failed to fulfill the conditions laid down in the original grant. The Merchants' Association has been given due show cause notice which was served on 4-12-1973 and it filed a written statement in this office on 21-1-1974 which also does not disclose any authority for raising the construction. In view of the above the breach of condition is apparent and therefore, I hereby order resumption of Ac. 1-26 sq. yards land allotted to Merchants' Association by the then Civil Administrator vide L. Dis. No. 3637/49 dated 2-2-1952, by the Government.
The Tahsildar, Suraypet should take possession of the land in question immediately and report compliance.'
This order, the petitioner seeks to quash in certiorari in these proceedings.
8. The learned Government Pleader in the course of his arguments, submitted the order of the District Revenue Officer, is not made with reference to any statute. According to him, the order is passed by the respondents 'pursuant to their right under executive power.'
9. The short question, thus, is whether the Government can resume land in the circumstances, after satisfying themselves that the petitioner violated the conditions in the grant without reference to a civil court in their exercise of executive power. It is at this stage relevant to refer to the oft quoted observation of the Privy Council in Eshughayi Eleko v. Government of Nigeria (Officer Administering), 1931 AC 662 at p. 670 = (AIR 1931 PC 248). The case arose in the following circumstances:
10. In 1861, the Ruling Chief Docemo of Lagos by Treaty ceded to Her Majesty Queen Victoria, the territory of Lagos. After the death of Docemo in 1920 Eshugbayi, known as Eleko was recognized in 1920 as successor chief of Lagos, as against the claims of his rival, Oyekan. On 6-8-1925, the Governor of Lagos deposed Eleoka and ordered him to leave the Province of Abeoketa Ijebu and Ondo and when he neglected to comply, Eleoka was deported to Oye Province. The question arose, 'the Chief-taincy' either, or both Ordinarily these questions the courts (had to decide) after hearing the relevant evidence tendered by either side.' In that connection Lord Atkin observed :
'The Governor acting under the Ordinance acts only under the executive powers, and in no sense as a Court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice.'
and such a principle was (held) a well established principle' in common law in England and in Nigeria. These observations were followed as a principle in common law and applied in India first in the case of Gopalan v. State of Madras, : 1950CriLJ1383 and in many other cases later.
11. Applying the principle to the present case, the petitioner cannot in law, be evicted from the land by the Government in their executive power without recourse to civil court. If the land is to be resumed, it is the civil court that has to be satisfied and adjudicate whether the conditions were violated. This procedure is, in the words of Lord Atkin 'well-established principle' and that principle applies with the same vigour and force in this country. The State of its Officer, therefore, cannot resume the land without recourse to the Court in exercise of their executive power and evict the petitioner.
12. The Writ Petition is therefore allowed with costs. Advocate's fee Rs. 100.
13. Petition allowed.