M.M. Ismail, J.
1. Admittedly an extent of 9-72 acres of land belonged to the Secretary of State for India in Council and it was granted on lease in Form B of the Cantonment Code, 1899, under a lease deed dated 3rd August, 1901 in favour of one Malik Mohideen Hossain Khan Sahib son of Malik Mahomed Tecky Ali Khan Sahib, The petitioner herein claims to be an assignee of the interest of the lessee in respect of the land in question. The Government of India, in the Ministry of Defence, by an order dated 5th May, 1971 resumed the leasehold interest in respect of an extent of 5-32, acres of land under Condition XXVII of the lease and offered a sum of Rs. 507 as the value of the erections standing on the land. The Writ Petition has been filed praying for the issue of a writ of certiorari to quash this order of the Government of India.
2. The principal question that is urged before me by the learned Counsel for the petitioner is that under the lease dated 3rd August, 1901 resumption can be effected only by the local Government and not by the Government of India-Condition XXVII is that
the local Government may resume the land or any portion thereof at any time after giving one month's notice in writing and on payment of compensation for such buildings standing on the land or portion thereof as shall have been erected under proper authority. If there shall be any dispute as to the amount of such compensation the same shall be referred to a committee of arbitration which shall be constituted as provided m Chapter XX of the Cantonment Code, 1899, and the lessee, his heirs, executors, administrators, representatives and assigns shall be bound by the decision of the committee of arbitration.
Mr. R.G. Rajan, learned Counsel for the petitioner contends that the local Government referred to in Condition XXVII will not include the Central Government and it will mean only the State Government and the power of resumption not having been exercised by the State Government but only by the Central Government, the said order of resumption is illegal.
3. In my opinion, the above said argument is misconceived. As I pointed out already, the lease is dated 3rd August, 1901 and the lease admittedly was entered into by the Secretary of State for India in Council being the owner of the land. At the time when the lease was entered into the form of Government in this country was unitary in character and all the powers were exercised in relation to the administration of India only by the Secretary of State for India in Council and the concept of local Government with reference to the Government of Provinces was only in terms of the devolution rules and not on the basis of any Constitutional arrangement. Therefore, what exactly the connotation of local Government occurring in Condition XXVII is has to be gathered with reference to the subsequent changes that took place in the Constitutional set up in the governance of the country. By Section 2 (1) of the Government of India Act, 1935
all rights, authority and jurisdiction heretofore belonging to His Majesty the King-Emperor of India, which appertain or are incidental to the Government of the territories in India for the time being vested in him, and all rights, authority and jurisdiction exercisable by him in or in relation to any other territories in India, are exercisable by His Majesty, except in so far as may be otherwise provided by or under this Act, or as may be otherwise directed by his Majesty.
Sub-section (2) of this section stated:
The said rights, authority and jurisdiction shall include any rights, authority or jurisdiction heretofore exercisable in or in relation to any territories in India by the Secretary of State, the Secretary of State in Council, the Governor-General, the Governor-General in Council, any Governor or any Local Government, whether by delegation from His Majesty or otherwise.
Thus the effect of Sub-section (1) of Section 2 read with Sub-section (2) thereof, of the Government of India Act, 1935 was to transfer all the powers of the Local Government also to His Majesty except in so far as the same was directed to be exercised under the provisions of the Government of India Act, 1935. Admittedly, the land in question is situate in the cantonment area of St. Thomas Mount which belonged to the Secretary of State for India in Council at the time when the lease was entered into and belonged to the Government of the Federation as contemplated by the Government of India Act, 1935. Section 177 of the Government of India Act, 1935 provided for the performance of the existing contracts. In Sub-section (1) of that section it is stated:
Without prejudice to the special provisions of the next succeeding section relating to loans, guarantees and other financial obligations, any contract made before the commencement of Part III of this Act by, or on behalf of, the Secretary of State in Council shall, as from that date--
(a) if it was made for purposes which will after the commencement of Part III of this Act be purpose of the Government of a Province, have effect as if it had been made on behalf of that Province and
(b) in any other case have effect as if it had been made on behalf of the Federation.
Having regard to the admitted fact that the lands in question are in cantonment area it is indisputable that the lands were used for the purpose of the Federation of India and consequently under the terms of Section 177 (1) (b) of the Government of India Act, 1935 the Central Government must be deemed to be the party to the contract as far as the present lease is concerned.
4. Part III of the Government of India Act, 1935 dealing with the Governors' Provinces came into force with effect from 1st April, 1037 under Government of India (Commencement and Transitory Provisions) Order, 1936 and Section 312 provided that the provisions in that part shall apply in respect to the period elapsing between the commencement of Part III of this Act and the establishment of the Federation. Under Section 313 (1) of the Act
Subject to the provisions of this Act for the time being in force, such executive authority as is hereinafter mentioned shall be exercised on behalf of His Majesty by the Governor-General in Council, either directly or through officers subordinate to him, but nothing in this section shall prevent the Indian Legislature from conferring functions upon subordinate authorities, or be deemed to transfer to the Governor-General in Council any functions conferred by any existing Indian law on any Court, Judge or officer, or on any local or other authority.
Sub-section (2) of this section stated:
Subject to the provisions of this Act for the time being in force, the said executive authority extends--
(a) to the matters with respect to which the Indian Legislature has under the said provisions power to make laws;
(b) to the raising in British India on behalf of His Majesty of naval, military or air forces, and to the governance of His Majesty's forces borne on the Indian establishment;
(c) to the exercise of such rights, authority and jurisdiction as arc exercisable by His Majesty by treaty, grant, usage, sufferance or otherwise in and in relation to the tribal areas;
It is not disputed that the cantonment nth the lands therein, is a matter within he exclusive legislative competence of he Indian Legislature under the Government of India Act, 1935. Consequently conjoint reading of Sub-sections (1) and (2) of Section 313 clearly postulates tat after the coming into force of Part III of the Government of India Act, 935 on and with effect from 1st April, 937 it was the Governor-General in Council who had the executive authority over the land in question. That was he position till the coming into force of he Constitution of India. The only Joint for consideration is whether there s anything in the Constitution of India to change that position and substitute the State Government in the place of Governor-General in Council. The Union Government has taken the place of the Governor-General in Council under the provisions of the Constitution and therefore now, it is the Central Government which can exercise the powers of the local Government as contemplated by Condition XXVII of the lease in question. Hence the Central Government was competent to resume the leasehold right as it has done pursuant to its powers under Condition XXVII of the agreement.
5. Mr. R.G. Rajan then contended that identical extent of land has been requisitioned by the Collector on 17th October, 1964 in exercise of his powers under Section 29 (1) of the Defence of India Act, 1962 for the use of the Defence Department and consequently without derequisitioning it, the Government of India, cannot exercise its power of resumption under Condition XXVII of the lease. I am of the opinion that there is absolutely no substance in this contention. The resumption of the interest conveyed to the petitioner herein by way of assignment in his favour by the original lessee, is not dependent upon the derequisitioning and the two are separate and independent acts and the fact that the lands continued to be requisitioned under that Act will not affect the power or the authority of Central Government to resume the land under Condition XXVII of the lease in question.
6. Under these circumstances, no case has been made out for interference with the impugned order and, therefore, the writ petition fails and is dismissed. No costs.