1. This is a second appeal by three of the nine plaintiffs, the rest being im-pleaded as 'pro forma' respondents. The suit related to land, 52 bighas and 5 biswas in area, of which the last male holders were Sitlu and Haria, and the last female holder Mst. Sakki, the widow of the former. On her death, it was taken by escheat by the former Jubbal State. The plaintiff's case was that out of the said land 47 bighas were granted, after the escheat, to defendants 2 to 7 by the Raja. The trial Court found that grants were made only to defendants 2 (Sita Ram), 4 (Kan-thu) and 6 (Mandas, who died during the pendency of the suit in the trial Court and was substituted by Sher Singh). The correctness of this finding was conceded in this Court, sothat the grants in favour of only these 3 defendants are now in question. The grants made to these defendants were separate and of spe-cine areas. Claiming to be reversioners to the estates of the last male holders on the death of Mst. Sakki, the plaintiffs contended that under the law prevalent in the former State of Jubbal, as contained in paragraph 10 of the State Wajib-ul-arz, the grants Should have been made to them and not to the defendants, who were strangers residing in another village. They therefore prayed for a declaration that the grants were illegal, and for possession on payment of nazarana. Besides the said six defendants, the State of Himachal Pradesh was also impleaded as defendant as successor to the former Jubbal State.
2. The suit was contested by all the defendants. The trial Court found in favour of the plaintiffs that, though not within 5 degrees, they were collaterals of the last male holders, toeing descended from the common ancestor ;Nakta. It further held that as the plaintiffs were not collaterals within 5 degrees, the land had rightly escheated to the Jubbal State under paragraph 10 of the Wajib-ul-arz. On an interpretation of the same paragraph of the Wajib-ul-arz, it further held however that it was discretionary with the Raja to make the grants to whomsoever he pleased and therefore he was not bound to grant the land to the plaintiffs, and that the grants were made by the Raja in exercise of sovereign powers which could not be questioned in a Court of law. On a plea raised by a defendant other than the State of Himachal Pradesh, the trial Court further held that the suit was bad for want of a proper notice under Section 80 Civil P. C. In the result, that Court dismissed the suit.
3. On an appeal by the plaintiffs, who are the appellants in this Court, the learned District Judge upheld the findings of the trial Court except on the question of notice under Section 80, Civil P. C. About the notice he held it was debatable whether, in the absence of anobjection by the State, it was open to any other defendant to raise the plea, and that, in any case, the objection will be deemed to have been waived by the particular defendant whoraised it. It appears that defendant No. 4 (Kanthu) was not made a respondent when the appeal was filed in the lower appellate Court, and a subsequent application to implead Mm was rejected. The appeal was dismissed.
4. There was no argument before me on the question of the notice under Section 80, Civil P. C. The order of the District Judge rejecting the plaintiffs appellants' application to implead Kanthu defendant as respondent in that Court was questioned in the grounds of appeal filed here, but there was no argument advanced in respect of it. The legality of the escheat was also not questioned by the learned counsel for the plaintiffs appellants in this Court. It was however reiterated that the Raja was bound to grant the land to the plaintiffs. The two questions that were argued were : (1) Whether the act of the Raja in making the grants to the defendants 2, 4 and 6 was an act done in the exercise of sovereign powers which could not be questioned in a Court of law? and (2) Whether, in any case, it was discretionary with the Raja to make the grants to whomsoever he liked, and he was not bound to grant the land to the plain-tiffs?
5. The only argument put forward in the judgment of the trial Court, and dittoed in that of the lower appellate Court, was that the Raja enjoyed absolute and sovereign powers and therefore the Courts had no jurisdiction to question the validity of any act of the Raja. That, in effect, is an enunciation of the Austinian and Hobbesian theory of sovereignty which, however, has long since been exploded. It was further refuted, for instance, in the early twenties of the present century by the French Jurist Ernst Roguih in his La Science Juridique Pure, as pointed out by Julius Stone in his 'The Province and Function of Law', second (1950) edition, at page 86. Roguin took to task Austin for his assertion that the sovereign cannot have rights and duties. The argument adopted by Austin and others belonging to his school of thought, pointed out Roguin, was this : (1) He who is all powerful cannot bind himself; (2) the sovereign is all powerful, and therefore (3) the sovereign cannot bind himself and always retains the right to resume his liberty. That the opposite was equally demonstrable, namely, that the sovereign could have rights and duties, could be done, said Roguin, by arguing that (1) he who is all powerful can bind himself precisely because lie is all powerful; (2) the sovereign is all powerful, and therefore (3) the legislator can bind himself. In other words, the sovereign power can bind itself by legislation. And, as pointed out by Sir John Salmond in his work on Jurisprudence, tenth (1947) edition, at page 493, as neither physical force at the command of the sovereign power, nor the disposition of the members of the body politic to submit to the exercise of this force -- the two things on which the power of a sovereign depends -- is unlimited in extent, the sovereign power does in fact so bind itself and is therefore not Unlimited. There may, of course, be circumstances which do not admit of any delimitation of sovereign powers, e.g., in times of war or insurrection. Such exceptional circumstances apart, however, if and when the sovereignty does bind itself, or is bound, by legislation, any act done by it in transgression of the legislation would be beyond its de facto competence.
6. The same point has been brought out by Wade and Philips in Part IV, Chapter 1 of their Constitutional Law. In dealing with the subject of the Royal Prerogative, they divided acts done by the King in exercise of that prerogative into two categories : those done in the sphere of foreign affairs, and those done in relation to his subjects. They described the former as acts of State and the latter as prerogative powers. And with regard to the prerogative powers they stated that the living meaning of prerogative today is that group of powers of the Crown not conferred by statute but recognised by law as belonging to the Crown, e.g., the power to summon, prorogue and dissolve Parliament, the power to create peers, the power to assent or refuse to assent to Bills. They reiterated the point by saying that where statutory powers are conferred covering the sphere of a prerogative power, the Crown must proceed under the; statutory powers and cannot rely upon the prerogative. They then referred in the following terms to -- 'Attorney-General v. De Keyser's RoyalHotel Ltd.', (1920) AC 508 (A), where the relationship between prerogative and statutory powers was clearly laid down by the House of Lords :
'An hotel was required for the purpose of housing the administrative staff of the Royal Flying Corps during the First World War. The Army Council offered to hire the hotel at a rent, but, negotiations having broken down, possession was taken of the premises under the Defence of the Realm Acts and Regulations made thereunder. A. petition of right was brought against the Crown claiming compensation as a matter of right for the use of the hotel by the army authorities.
It was argued for the Crown that there was a prerogative to take the lands of the subject in case of emergency in time of war, and that no compensation was payable as of right for land so taken. This argument overlooked the provisions of the Defence Act, 1842, which had been incorporated into the Defence of the Realm Acts. These provisions imposed conditions upon the compulsory acquisition of land and provided for payment of compensation as a matter of right to persons whose land had been taken.
The argument on behalf of the owners of the hotel was that in fact the Crown had taken possession under the statutes and regulations and so could not fall back on the prerogative right, under which no compensation could be claimed, except as a matter of grace.
Both the Court of Appeal and the House of Lords rejected the argument of the Crown, and held that the prerogative had been superseded for the time being by the statute, and therefore the Crown was not in any event entitled to act under the prerogative. There can be no excuse for reverting to prerogative powers when the Legislature has given to the Crown statutory powers which cover all that can be necessary for the defence of the nation, and which are moreover accompanied by safeguards to the individual which are in agreement with the demands of justice.'
The case of -- 'The Secy. of State v. Hari Bhanji', 5 Mad 273 (B), is illustrative of the same principle. That was a suit instituted to recover sums of money which the plaintiffs were compelled to pay as difference between the excise and the import auty under certain Statutes in respect of salt despatched by sea from Bombay to certain ports in the Presidency. It was pleaded by the Secretary of State, inter alia, that the realisation of the amount in question amounted to an act of State of which the Municipal Courts were debarred from taking cognizance. The contention was repelled and, relying upon the decision of the Privy Council in -- 'Secy. of State v. Kamakshi Saheba', 7 Moo Ind App 476 (PC) (C), it was laid down that the acts of State at which the Municipal Courts were debarred from taking cognizance were only acts done in the exercise of sovereign powers which do not profess to be justified by Municipal law. It was further held that as the act complained of in that case was professedly done under the sanction of Municipal law, and in the exercise of powers conferred by that law, the fact that it was done by the sovereign power aad was not an act which could possibly be done by a private individual, did not oust the ju- risdiction of the Civil Courts.
7. It will suffice to examine one more, and a recent decision on the point, -- 'P. V. Rao v. Khushaldas S. Advani', AIR 1949 Born 277 (D). The Province of Bombay having requisitioned a flat under the relevant provision of the Bombay Land Requisitioning Ordinance, 1947, the petitioner filed a petition for a writ of certiorari. One of the pleas taken by the Advocate General on behalf of the Province was that the Government could only be sued in respect of such acts as could be performed by an individual or by a trading corporation, and that when the Government acts as a sovereign authority its acts are outside the purview of Municipal Courts. Repelling this contention, Chagla C. J. observed as follows:
'An act of State operates extra-territorially. Its legal title is not any municipal law but the overriding sovereignty of the State. It does not deal with the subjects of the State but deals with aliens or foreigners who cannot seek the protection of the municipal law. It is difficult to conceive of an act of State as between a sovereign and his subjects. If Government justifies its act under colour of title and that title arises from a municipal law, that act can never be an act of State. Its legality and validity must be tested by the municipal law and in municipal Courts. In this case the Province of Bombay is justifying its requisition order under the Ordinance which is a municipal law, and therefore it cannot claim as a sovereign authority to be exempt from a municipal Court and cannot claim immunity from having to justify its act in a municipal Court.'
The case went up in appeal to their Lordships of the Supreme Court. The decision of the Bombay High Court was reversed on another ground by the majority of the Judges, who did not touch the above view expressed by the Bombay High Court, but that view was upheld by the minority. Incidentally, they also agreed with that view as expressed in the aforesaid Madras case -- '5 Mad 273 (B)'. It is well established then that where an act of the State is clearly referable to some municipal law, the sanction for the act is not that of sovereign power but that of the particular law, and consequently immunity from having to justify such an act in a municipal Court cannot be claimed by the State.
8. As remarked by Wade and Phillips at page 127 of the third edition of their Constitutional Law, 'If an individual disputes the validity of an act purporting to be done under the prerogative, the Courts will investigate whether or not the alleged prerogative power exists' The act the validity of which is disputed by the plaintiffs in the present case was the act of the then Raja of Jubbal in making the grants to defendants 2, 4 and 6. So far as the present appeal is concerned, it is only the grants to defendants 2 and 6 that fall to be considered for, as adverted to above, defendant 4 (Kanthu) was not made respondent in the lower appellate Court, and no argument was advanced in this Court against the order of that Court rejecting a subsequent application of the appellants to implead him. The question therefore is whether or not the alleged prerogative power existed in respect of that act. The answer to this question will be in the affirmative or the negative according as the act was not, or it was, referable to some municipal law.
9. After the land had been taken by escheat by the Jubbal State, some of the plaintiffs applied to the State for its being granted to them. There are on record several reports of the State Officials on these applications. Three of these, one dated 24-5-1946, another dated 19-6-1946 and the third dated 21 Jeth 2003, may here be referred to. The last one also bears an order of the Ruler dated 28-8-1946. In all these reports, cl. 10 of the State Wajib-ul-arz was referred to both with regard to the escheat and the subsequent grant. It is clear therefore that the entry in the Wajib-ul-arz constituted the law of the State on the two matters. Indeed, that fact was specifically mentioned in the first of the said three reports, the particular sentence being the following : 'Inasmuch as the Wajib-ul-arz has the force of law in this State, it is incumbent on the State to come to a decision with regard to the property left by issueless owners in accordance with that law'. This position was, in fact, not controverted on behalf of the respondents, including the State of Himachal Pradesh, the controversy centering round only the interpretation of the terms of the said clause of the Wajib-ul-arz, as I shall show presently. The clause, headed 'Haquq Warasat lawaldan', or rights respecting property left by issueless proprietors, runs as follows :
'If any one dies issueless, or voluntarily abandons his land, and there is no rightful heir to him within 5 degrees, such heir less estate shall escheat to the State. If there be a near heir, 'which, in view of the next following term, must mean a lineal descendant beyond 5 degrees', the land and other property should be granted to him without charging any nazarana. If there be no lineal descendant beyond 5 degrees, the property should be granted on realisation of nazarana, first to those collaterals of the issueless proprietor who are descended from a common ancestor and failing such to the nearest family in the village. If the latter be not willing, (the property should be granted) to other residents of the village or trie pargana. If they also refuse, the State may make the grant to whomsoever it pleases on realisation of nazarana fixed according to the schedule given below.'
10. In the matter of making a grant of escheated land as well as of escheat, the former Jubbal State had therefore framed law which was embodied in the above quoted clause of the State Wajib-ul-arz. In other words, in regard to both the matters the State had imposed upon itself a rule of law, so that sanction for any act of the State regarding either was that law and not the sovereign power of the State. I hold that no prerogative or sovereign power existed in the matter of the Raja of Jubbal making the grants in question, but, on the contrary, that he was bound by the said provisions of the Wajib-ul-arz which imposed conditions upon his power of making the grants. For the same reason, I further hold that the legality and validity of his act of making the grants could be tested in the light of that law in municipal Courts. This disposes of the first of the aforesaid two questions which were argued in this Court.
11. The second question is whether, in view of the terms of the Wajib-ul-arz, it was discretionary with the Raja to make the grants to whomsoever he pleased, and he was therefore not bound to grant the land to the plaintiffs. The trial Court answered the first portion of this composite question in the affirmative and the second in the negative. The District Judge, on appeal, came to the same conclusion, and he also adopted the reasoning of the trial Court. In fact, the District Judge's judgment is, except for certain verbal alterations, a mere replica of the judgment of the trial Court. It will be noticed that the above quoted clause of the Wajib-ul-arz deals with two subjects, (1) escheat of an estate to the State on failure of lineal descendants within 5 degrees, and (2) grant of such escheated estate by the State. The Trial Court was of the view that the portion of the clause dealing with the former subject was mandatory, and that with the latter only directory. Accordingly, it held that while, on the one hand, the land left by Sitlu & Hari went to the Jubbal State by escheat under the mandatory portion of the clause by reason of their leaving no heir within 5 degrees, the State was not bound, on the other hand, to grant the escheated land in accordance with the other portion of the clause since that portion was only directory. The learned counsel for the-defendants respondents also argued in Ihis Court that it was optional with the State to make the grant to whomsoever it liked. In my opinion, this contention is only partially correct: it was certainly optional with the State to make a grant of the escheated estate or not, but, once it did elect to do so, it was bound to follow the order of precedence contained in the aforesaid clause. And this for the following reasons.
12. Leaving aside the first portion of the aforesaid clause of the Wajib-ul-arz which lays down the rule regarding escheat, namely, that on failure of lineal descendants of a proprietor within 5 degrees his estate shall on his death or voluntary abandonment vest in the State, the rest of the clause goes on to provide for the making of a grant of the escheated estate by the State in a certain order. The grant was first to be made to the male lineal descendants beyond 5 degrees, then to collaterals descended from a common ancestor, failing them to the nearest family in the village, and if these refuse then to other residents of the village or the Pargana. There is an additional privilege attached to the first named, viz., to descendants beyond 5 degrees, and that is that, whereas a grant to any one belonging to the other categories is conditional on payment of nazarana, they are exempt from the charge. It is only in the event of refusal by those belonging to the last category that the making of grant is left to the pleasure of the State. Now, it is conceded in this case that the plaintiffs are collaterals descended from a common ancestor and the defendant grantees are strangers not residing in the village. The action of the Raja in making grants to the latter and rejecting the application of the former was therefore clearly in contravention of the aforesaid provisions of the Wajib-ul-arz. If these provi-sions were merely directory, the neglect of them)did not affect the validity of the Raja's action; tout if, on the contrary, those provisions be regarded as essential to the act their omission must be held fatal to its validity. Maxwellon Interpretation of Statutes, ninth (1946) edition, page 373, and -- 'Dharendra Krishna v. Nihar Ganguly', AIR 1943 Cal 268 (E). The question then arises: To which of these two categories do the aforesaid provisions of the Wajib-ul-arz belong
13. Where a statute declares the consequences that are to ensue by reason of non-compliance with its provisions, there is no difficulty. The present provisions are not of that nature. The locus classicus for interpretation of such provisions is the following dictum of Lord Campbell in -- 'Liverpool Borough Bank v. Turner, (1861) 2 De G. F. & J. 502 at p. 507 (F):
'It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequences in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment.'
14. What then is the scope and object of the aforesaid provisions of the Wajib-ul-arz? There is, of course, nothing there which made it incumbent on the State to make a grant of an escheated estate. The State might well have appropriated the estate. But once itelected to make a grant of the estate, the provisions laid down a graded classification of persons to whom the grant was to be made, the interposition between succeeding classes of such persons of such words as 'if there be no such', 'first to those', 'failing such', 'if the latter be not willing' and 'if they also refuse', making it further clear that the various classes were enumerated in a descending order, the preceding excluding the one following it. Inother words, the event of the State making a grant, the clause laid down a rule whereunder one belonging to a superior class had the right, so to say, to pre-empt the grant if made to another belonging to an inferior class. It was only on the exhaustion of the enumerated classes, and not till then, that it was left to the State to make the grant to whomsoever it pleased. The whole aim and object of theprovisions in question would therefore be plainlydefeated if the State were to make the grant,as it did in the present case, to outsiderswhen there existed persons belonging to oneor the other of the enumerated classes andwilling to take the land. The command to makea grant in the manner laid down in the Wajib-ul-arz, therefore, implied a prohibition to doit in any other. In other words, the commandwas imperative and its disobedience had thenatural consequence of nullifying the grants toithe defendants-respondents in question.
15. The same is the conclusion arrived at byapplying the canon of interpretation applicableto statutes which confer powers on publicauthorities for the benefit of specified persons.It is expressed as follows in the said edition ofMaxwell at pages 249 and 250:
'Following the decision of the House of Lordsin -- 'Julius v. Oxford' (Bp.) (1880) 5 AC214 (G), it was said that from the nature ofthe English language the word 'may' cannever mean 'must', that it is only potential, and when it is employed there is another question to be decided, viz., whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power. If not, the exercise is discretionary. But when the power is coupled with a duty of the person to whom it is given to exercise it, then it is imperative.
Accordingly, when a statute enacts that a candidate at an election 'may' be present at the polling place, or that a clergyman accused of an ecclesiastical offence 'may' attend the proceedings of the commission appointed to inquire into the accusation, or that a company 'may' construct a railway, or that a plaintiff 'may' sue in one action for injury done to his wife as well as himself, cases in which the donee of the power has only his own interests or convenience to consult, the word 'may' is plainly permissive only, and a mere privilege or licence is conferred which he may exercise or not at pleasure. But an enactment that churchwardens 'may' make a rate for the reimbursement of constables, or the Chancellor 'may' issue a commission in a case of bankruptcy, or one conferring power on the Courts to direct that a person entitled to costs should recover them, is no mere permission to do such acts, with a corresponding liberty to abstain from doing them. A duty is at the same time cast upon the persons empowered. For these are cases where a power is deposited with public officers, to be used for the benefit of persons having rights in the matter.'
The rule has reference to English statutes using the word 'may', but the underlying principle is equally applicable in the present case. There is no doubt that the Wajib-ul-arz in this case conferred power on the State for the benefit of the persons enumerated therein. The donee of the power, the State, had not, therefore, its own interests or convenience to consult, but it had to use the power for the benefit of the persons having rights in the matter of grant. There inhered such a right in these latter persons as to make it the duty of the State to exercise the power in the manner laid down in the Wajib-ul-arz.
16. In the result, therefore, this appeal must be allowed in respect of the grants to defendants 2 and 6, Sita Ram and Mandas (the latter being now represented by Sher Singh). As already stated, it was conceded that no grants were made to defendants 3 (Bajloo), 5 (Mst. Noori) and 7 (Haridas, now represented by Dularam), and, although defendant No. 4 (Kanthu) stood in the same category as defendants 2 and 6, the plaintiffs appellants are not entitled to the benefit of this appeal against him (defendant No. 4) inasmuch as, by reason of his not being a party to the proceedings in the lower appellate Court, the dismissal of the suit as against him by the trial Court became final. As regards nazarana, the State of Hima-chal Pradesh is not entitled to any from the plaintiffs because the same has already been paid to its predecessor-in-interest, the Jubbal State. But the plaintiffs will certainly have to reimburse the defendants 2 and 6. There was however no issue on the point, and no evidence was pointed out in this Court from which the amounts paid by them as nazarana to the Jubbal State could be ascertained. The ascertain-ment of the amounts will therefore have to be left to the execution proceedings, and recovery of possession by the plaintiffs of the lands granted to these two defendants will be made conditional on payment of those amounts.
17. Before I conclude it must be stated that defendants respondents 3 and 5 (Bajloo and Mst. Noori) have not been impleaded in this appeal, and that the present appeal proceeded ex parte against the defendant respondent 7 (Dularam). The remaining four defendants respondents were represented.
18. The appeal is allowed to this extent thatthe judgments and decrees of the two Courtsbelow dismissing the suit in respect of the landsgranted to defendants 2 and 6, Sitaram andMandas (the latter being now represented bySher Singh), are set aside and the suit ishereby decreed for possession of the landsgranted to these two defendants 2 and 6, Sitaram and Mandas (the latter being now represented by Sher Singh) on condition of the plaintiffs paying to them respectively the amountswhich they (Sitaram and Mandas) had paid asNazarana to the Jubbal State in respect of thegrants, which amounts, if not otherwise agreedto by the plaintiffs and these two defendants,will be ascertained in execution proceedings.The plaintiffs appellants are allowed costs ofall the Courts proportionate to their partialsuccess as against defendant No. 1, the State ofHimachal Pradesh,, and defendants 2 and 6(Sitaram and Sher Singh). For the rest, theappeal is dismissed, so that the judgments anddecrees of the Courts below dismissing the suitas against defendants 3 (Bajloo), 4 (Kanthu),5 (Mst. Noori) and 7 (Dularam) remain unaffected. The defendant-respondent No. 4Kanthu will have his costs of this appeal fromthe appellants.