dedol-hf/india-case-legal-rag huggingface dataset:
equity  was  a  "right" in limitation of the  right  of  the
Provincial Government to assess.
    I  am unable to share that view.  There is, in my  opin-
ion,  no room here for the application of the  principle  of
Ramsden  v. Dyson(1).  That decision has been  explained  by
the  Privy Council in Ariff v. Jadunath(2) as based  on  the
equitable  doctrine of part performance which,  their  Lord-
ships  held, could not be applied so as to nullify  the  ex-
press provisions of the Transfer of Property Act relating to
the creation of leases. They observed :-
    Whether  an  English equitable doctrine should,  in  any
case,  be  applied so as to modify the effect of  an  Indian
statute may well be doubted;  but that an English  equitable
doctrine,  affecting  the provisions of an  English  statute
relating  to  the right to sue upon a  contract,  should  be
applied,  by analogy, to such a statute as the  Transfer  of
Property Act and with such a result as to create without any
writing  an  interest  which the statute says  can  only  be
created  by  means of a registered  instrument,  appears  to
their Lordships, in the absence of some binding authority to
that effect, to be impossible."
    After quoting the well-known passage in the judgment  of
Lord Kingsdown, their Lordships commented thus :--
    "It will be noticed that Lord Kingsdown is dealing  with
the  case  of express verbal contract  or  something  'which
amounts  to  the same thing.' He nowhere puts  the  case  of
estoppel; the word is not mentioned.  He would appear to  be
dealing simply with the equitable doctrine of part  perform-
ance.  His reference to Gregory v. Mighall  [(1811) 18  Ves.
3281 confirms this view, for that case was simply an earlier
instance  of the application of the doctrine.  Even if  Lord
Kingsdown's language was intended to cover something  beyond
the  equitable doctrine of part performance in  relation  to
the Statute of Frauds, and was intended to refer to  circum-
stances in which a court of equity will enforce
(1)  (1866) L.R. 1 H.L. 129.             (2)  (1931)58  I.A.
91.
57
a  title to land against the person who at law is the  owner
thereof,  the title must, nevertheless, in their  Lordships'
view,  be based either upon contract express or implied,  or
upon some statement of fact grounding an estoppel."
    In  the  later decision in Mian Pir Bux  v.  Sardar  Ma-
horned(1) their Lordships reiterated the same view and  held
that  English equitable doctrines did not afford in India  a
valid defence to an action in ejectment based on title.
    After  these decisions of the Privy Council  elucidating
the  principles underlying Ramsden v. Dyson(2) and  Maddison
v.  Alderson(3),  it  seems to me clear that  they  have  no
application  to the facts of the present case. They  can  no
more prevail against the statutory provisions regarding  the
disposition  of property or the making of contracts by  Gov-
ernment  than  against  the provisions of  the  Transfer  of
Property Act requiring registered instruments for  effecting
certain classes of transactions.  No question of estoppel by
representation arises, for the Government made no  represen-
tation of fact which it now seeks to deny.  Nor can any case
of  estoppel by acquiescence be rounded on the facts of  the
case.   Both parties knew the facts and neither was  misled.
There  was no lying by and letting another run into  a  trap
[per Cotton L.J. in Russell v. Watts(4)]. The conduct of the
parties was referable to the express agreement evidenced  by
the Government Resolution of 19th December, 1865, to make  a
grant  of  the land free of rent (which,  in  such  context,
means and includes revenue). No question, therefore, of  any
implied contract could arise. Unfortunately for the respond-
ent,  the express agreement was unenforceable owing to  non-
observance  of the prescribed statutory formalities,  though
it was acted upon by both sides.  No question arises here as
to  the respondent's title to the land which apparently  has
been  perfected  by lapse of time. But it is clear  that  no
right of exemption has been established either on the  basis
of express or implied
 (1)  (1878)  6 I.A. 388.                (3) (1883)  8  App.
Cas. 467.
 (2)  (1866) L.R. 1 H.L. 129.          (4) (1884) 25 Ch.  D.
559.
       8
58
contract or on the basis of the equitable principles of part
performance or estoppel by acquiescence.
    It  was next contended that, on the analogy of the  line
of  cases holding that a limited interest in land  could  be
acquired by adverse possession for over the statutory  peri-
od,  the respondent's   possession of the  land  in  dispute
without  payment  of  any quit rent or revenue for  over  70
years to the     knowledge of the. Government perfected  its
title  to  hold  the land free from liability  to  pay  land
revenue.  It is difficult to appreciate the argument so  far
as the claim to exemption is concerned. There is no question
here of acquisition of a limited interest in land by adverse
possession.  The respondent was asserting full ownership and
a  right  of exemption from assessment  and  the  Government
agreed  with that view as shown by their letter  dated  26th
June, 1921, to the Land Acquisition Officer for the City  of
Bombay  wherein  they stated that "no  Government  claim  in
respect of the land under acquisition (a portion of the land
here in question) in the above mentioned case is made as the
land  vests  in  the Municipality."  Be it  noted  that  the
Government made no claim even to a portion of the  compensa-
tion  on  the basis of any right of resumption  reserved  to
them,  the Resolution of 1865 having made no such   reserva-
tion.   The position then was that throughout the period  of
adverse  possession,  the respondent  Municipality  regarded
itself and was regarded by the Government as absolute  owner
of  the  land with the additional right  of  exemption  from
assessment to land revenue with the result that the  Govern-
ment's  "right  to such property" (the  subject  of  adverse
possession)  was  "extinguished"  under section  28  of  the
Limitation  Act.  But the right to levy land revenue was  no
part  of  the Government's right to the property.  It  is  a
prerogative right of the Crown which was placed' on a statu-
tory  basis under the Bombay City Land Revenue Act of  1876,
and  could  be exercised in respect of a land only.  on  the
footing that it belonged to another, the "superior  holder",
for, the claim to levy assessment itself implies a  recogni-
tion of ownership in
59
another.   It  is, therefore, difficult to see  how  adverse
possession  of  the  land could entitle  the  respondent  to
exemption from assessment of land revenue.
    It was said that the Government having intended to grant
the  land on the terms that it was to be held free  of  quit
rent  or revenue and the respondent having held the land  on
such terms claiming it to be exempt from assessment, a title
to  hold  it  on those terms was perfected  by  the  adverse
possession,  the  covenant  for  exemption  from  assessment
forming  part and parcel of the title. In other  words,  the
respondent should be placed in the same position as if   the
Government had made a valid revenue free grant. The argument
is,  to  my mind, fallacious.  If the Government  had  given
effect to their expressed intention by executing an  instru-
ment in writing observing the due formalities, the  respond-
ent  would,  no  doubt, have secured a valid  title  to  the
property  with  a  contract binding the  Government  not  to
charge revenue, supported as it was by consideration.   But,
as  already stated, the Government's promise not  to  charge
land  revenue was unenforceable from the inception, and  the
respondent's adverse possession of the land, though accompa-
nied by a claim to exemption from revenue, could not destroy
the  Crown's prerogative right to impose assessment  on  the
land. A somewhat analogous question arose in Goswamini  Shri
Kamala  Vahooji v. Collector of Bombay(1).   The  Government
admitted  that  no  land revenue had ever  been  charged  in
respect  of  the land which was enjoyed by the  holders  for
more  than a century without payment of revenue and  it  was
urged  that in virtue of such a long enjoyment a lost  grant
of  the land on the terms that it should be held  free  from
liability  to pay revenue must be presumed.  Rejecting  that
contention, their Lordships observed :--
    "The appellant submits that in the circumstances a  lost
grant should be presumed, and that this lost grant should be
presumed to have contained an exemption from land revenue or
a 'right in limitation of the right
(1) (1937) 64 I.A. 334.
60
of  Government to assess the property.  The law may  presume
the  existence  of a grant which has been lost where  it  is
sought  to disturb a person in the enjoyment of right  which
he and his predecessors have immemorially enjoyed, but it is
a  different thing to seek to presume that the Crown has  by
some lost grant deprived 'itself of the prerogative power to
tax the property of its subjects, and their Lordships are of
opinion that this plea is untenable."  (italics mine).
    The  decision  shows that exemption from   land  revenue
does  not form part and parcel of the title to land  but  is
collateral to it.  If a presumed lost grant could not  cover
it neither could title by adverse possession.
    I would allow the appeal but make no order as to costs.
CHANDRASEKHARA AIYAR J.--I had the advantage of  reading
the  judgment  prepared by my learned brother;  Mr.  Justice
Das,  and  1 agree in the conclusion he has reached;  but  i
wish to add a few words of my own on some of the points that
have been discussed during the course of the hearing.
    In  the first place, there can be little doubt that  the
word   "rent"  in paragraph 2 of the  Government  Resolution
of   the 19th  December.  1865, means "assessment ".  It  is
true that this word  is used generally in cases of  landlord
and tenant, but when it is remembered that here the  Govern-
ment was parting with the land vested in the Crown in favour
of  the  Municipal Corporation of Bombay, it can  safely  be
assumed  or presumed that they were thinking not  merely  of
their rights as landlord but also of their prerogative right
as well.  That the land was going to be used for the  build-
ing  of markets for the benefit of the whole community  and,
therefore,  should not be charged with rent is a  considera-
tion more relevant and appropriate to the prerogative  right
to  assess than to a right to collect rent in respect  of  a
transaction of lease. Moreover, it is well-known that  when-
ever we speak of
61
a  rent-free  grant of an inam by the  Government,  what  is
meant is land revenue or assessment.
    The  Resolution in question authorized the grant of  the
site.   There is apparently no grant in writing,  conforming
to  the  formalities prescribed by the law  then  in  force.
Part of the site was wanted for the erection of stables  and
the  question  of title to that portion was  considered  and
decided  in The Municipal Corporation of the City of  Bombay
v.  The Secretary of State for India in Council  (1),  where
the  Government  gave the Municipality notice  to  quit  and
brought a suit for rent on the alleged determination of  the
tenancy.  It is part of the same transaction with  which  we
are  concerned  now, and it seems to me that  there  was  no
valid grant.  The grant having been authorized, the Corpora-
tion  went  into possession and it is not denied  that  they
have built the Crawford Market at enormous cost.  Though the
grant was invalid, the Corporation has now acquired a  title
by adverse possession to the site; this, however, is not the
case with reference to the stable site covered by the afore-
said Bombay decision.  There the question was brought before
the Court, well within the 60 years' period.
    The  Crawford Market site has been in the possession  of
the Municipal Corporation for over 60 years under an invalid
grant,  a term of which was that no rent should be  charged.
We  are not concerned now with any question of ejectment  or
determination of tenancy. Could it be said that the right to
levy assessment on the land, enjoyed without any payment  of
any kind so far, was lost by adverse possession ?  I find it
difficult  to  give an affirmative answer.  Before  a  right
could be said to be acquired or lost by adverse  possession,
it must have been the subject of possession by a man without
title as against the person with the rightful title.   Right
to levy assessment is a prerogative right of the  Government
and it is hard to conceive of a case where it could be  said
to be lost by adverse possession. True, there can be adverse
possession of a limited
(1) (1904) I.L.R. 29 Bom. 580.
62
right like that of a mortgagee or a lessee or even a  perma-
nent tenant, but still a right must have been enjoyed by the
possessor  adversely to the claim of the true owner.  It  is
unnecessary to go into the wider question whether the denial
of  the right to levy assessment and possession of  property
coupled with this denial for over a period of 60 years  will
negative  that right; it is sufficient to say that no  right
to  levy  assessment  was exercised in the  case  before  us
before March, 1938, and the denial was only afterwards.
    This,  however, does not determine  the  case in  favour
of  the appellant, as there is a question of equity to  con-
sider and on which the appellant failed in the court  below.
In  fact, it is the crucial point for  determination.   When
the Architectural  Improvement Committee proposed to levy  a
nominal  rent,  the Government stated that no rent  need  be
charged, as the markets to be built were for the benefit  of
the whole community.  This was a representation made by  the
Government when the site was given and possession was taken.
How  far  this representation was taken  into  consideration
when  the Corporation of Bombay took possession of the  site
under  the  grant is not necessary to be considered  at  any
great length. It is just possible that they would have taken
the  site  even  with the nominal rent, but  it  is  equally
possible that had they known that the rent was in the nature
of assessment and liable to enhancement from time to time or
periodically,  they  would have insisted on getting  a  site
free from assessment in consideration of the sites they gave
up  for  forming  the  eastern  Boulevard.  The   allegation
in.paragraph  7 of the plaint that the Corporation acted  on
the  faith of the terms contained in the grant has not  been
denied by the Government.
   The accident that the grant was invalid does not wipe out
the existence of the representation of the fact that it  was
acted  upon by the Corporation.  Even if the suit  had  been
brought  within 60 years for ejectment and  the  Corporation
had no answer to such a claim, the right to levy  assessment
might have conceivably stood on a different footing.  In any
event,
63
there can be no doubt that it would have been competent  for
a  Court of equity to give compensation for the  expenditure
and  protect the possession in the meantime. Lord  Kingsdown
refers to this aspect of the matter in Ramsden v. Dyson (1).
In  the present case, the Corporation stands on much  firmer
ground.   They have acquired a title to the land  which  the
Government  cannot upset or challenge.  This acquisition  of
title  is  as  a result of the law of  limitation.   It  has
nothing  to do with any conduct on the part of the  Corpora-
tion  which can be said to have rendered the  representation
about  non-liability  to assessment of no  legal  effect  or
consequence.  The invalidity of the grant does not  lead  to
the obliteration of the representation.
    Can  the  Government be now allowed to go  back  on  the
representation, and ,if we do so, would it not amount to our
countenancing the perpetration of what can be  compendiously
described  as legal fraud which a court of equity must  pre-
vent  being   committed?  If the resolution can be  read  as
meaning that the grant was of rent-free land, the case would
come strictly within the doctrine of estoppel enunciated  in
section 115 of the Indian Evidence Act. But even  otherwise,
that  is, if there was merely the holding out of  a  promise
that  no rent will be charged in the future, the  Government
must  be  deemed in the circumstances of this case  to  have
bound  themselves  to fulfil it.  Whether it is  the  equity
recognised in Ramsden's case(1), or it is some other form of
equity, is not of much importance. Courts must do justice by
the  promotion of honesty and good faith, as far as it  lies
in  their power.  As pointed out by Jenkins C.J.  in  Dadoba
Janardhan's  case  (2),  a  different  conclusion  would  be
"opposed to what is reasonable, to what is probable, and  to
what is fair."
    I  am  of  the opinion that the decision  of  the  Privy
Council  in Ariff v. Jadunath (3) is not applicable  to  the
facts before us, as the doctrine of part performance
(1) (1866) L.R. 1 H.L. 129.
(2) Dadoba Janardan v.    The.  Collector of Bombay   (1901)
I.L.R,.  25
Born. 714.
(3) (1931) 58 I.A. 91.
64
is  not  being  invoked here as in that case,  to  clothe  a
person  with  title which he cannot acquire  except  by  the
pursuit of or in conformity with certain legal forms.  Here,
as pointed out already, the Corporation became the full  and
absolute owner of the site on the lapse of SO years from the
date of the grant.
      Appeal dismissed.
Agent for the appellant: P.A. Mehta.
Agent for the respondent: R.A. GoDind.
PETITIONER:
JOYLAL AGARWALA
        Vs.
RESPONDENT:
THE STATEUNION OF INDIA-- Intervener.BICH
DATE OF JUDGMENT:
04/10/1951
BENCH:
AIYAR, N. CHANDRASEKHARA
BENCH:
AIYAR, N. CHANDRASEKHARA
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION:
 1951 AIR  484            1952 SCR  127
 CITATOR INFO :
 RF         1953 SC  63  (4,7)
 RF         1956 SC 269  (42)
ACT:
Essential  Supplies  (Temporary  Powers)  Act  (XXIV  of
1946),  ss.  1  (3),  7--Applicability  to  "excluded  areas
"--Duration  of Act extended in British India  by  Governor-
General, and by Constituent Assembly after Indian  Independ-
ence   Act,  1947--Whether Act continues to be in  force  in
excluded  areas--Necessity of fresh  notification-Delegation
of legislative powers--Government of India Act, 1935, s.  92
(1).
HEADNOTE:
    The  Essential Supplies (Temporary Powers) Act (XXIV  Of
1946) came into force on 19th November, 1946. By a notifica-
tion
128
of 14th December, 1946, under s. 92 (1) of the Government of
India  Act, 1935, the Governor of Bengal directed  that  the
Act  shall apply to the District of Darjeeling which was  an
"excluded  area".  Section 1 (3) of the  Essential  Supplies
Act  provided  that  it shall cease to have  effect  on  the
expiration  of  the period mentioned in s. 4  of  the  India
(Central Government and Legislature) Act, 1946.  By a  noti-
fication  issued  by  the Governor General under  s.  4  the
operation  of the Essential Supplies Act was extended up  to
31st  March,  1948. The Constituent Assembly  in  which  the
powers  of the Houses of Parliament under s. 4 of the  above
said  India Act of 1946 became vested after the  passing  of
the  Indian Independence Act, 1947, passed  resolutions  ex-
tending  the operation of the Essential Supplies Act  up  to
31st March, 1950.  The appellant, who was convicted under s.
7  of  the Act in respect of an act committed  on  the  14th
October, 1949, within Darjeeling, contended that the Act was
not  validly extended to the District of Darjeeling and  was
not  therefore  in force there on the date  of  the  alleged
offence.  Held, that, as the Governor's notification extend-
ed the Act to the District of Darjeeling without  specifying
any  particular period for its applicability, the Act  would
remain  in force in this district as long as it remained  in
force  in the rest of India and a fresh notification of  the
Governor  under  s. 92 (1) of the Government of  India  Act,
1935,  was not necessary. Under the adaptations  made  under
ss.  9  and  19 of the Indian Independence  Act  the  powers
conferred  on the Houses of Parliament became vested in  the
Constituent  Assembly and the Act was in force in  the  dis-
trict of Darjeeling on the date of the alleged contravention
of the Act.
    Held  further, that there was no question of  delegation
of  legislative  power in this case as the  Legislature  had
itself  applied its mind and fixed the duration of the  Act,
leaving only the machinery to reach the maximum period to be
worked out in a particular manner.
JUDGMENT:
CRIMINAL APPELLATE  JURISDICTION:  Criminal Appeals No. 7 of
1950 and No. 25 of 1951.
Criminal  Appeal No. 7 of 1950 was an appeal under  Art.
134 (1) (c) from the Judgment and Order of the High Court of
Calcutta dated 23rd May, 1950, in Government Appeal No. 2 of
1950  and  Criminal Appeal No. 25 of 1951 was an  appeal  by
special leave from the Judgment and Order of the same  Court
dated 4th May, 1950, in Criminal Revision No. 132 of 1950.
     Ajit  Kumar Datta and S.N. Mukherjee for the  appellant
in both the appeals.
B.  Sen for the respondent in both appeals.
G.N. Joshi for  the Intervener.
129
    1951. October 4. The Judgment of the Court was delivered
by
CHANDRASEKHARA AIYAR J.--These two criminal appeals are from
convictions of the appellants by the High Court at Calcutta.
In the first case, leave to appeal to this Court was granted
by  the High Court under article 134(1)(c) of the  Constitu-
tion  of India. In the second case, special leave to  appeal
was  granted by this Court under article 136(1) of the  Con-
stitution. The appeals were heard together, but as they  are
by  different  parties and the facts are  different,  it  is
desirable to have two separate judgments.
Criminal Appeal No. 7 of 1950.
  The  appellant, Joylal Agarwala, who was a salesman  in  a
retail shop in Pulbazar in the district of Darjeeling in the
State  of West Bengal, was charged with having sold a  piece
of  textile  cloth at a price in excess  of  the  controlled
price. For this contravention of the provisions of clause 24
(1)  of  the  Cotton Textiles Control Order,  1948,  he  was
convicted  by  the Sub-Divisional Magistrate  of  Darjeeling
under section 7 of the Essential Supplies (Temporary Powers)
Act  (Act  XXIV) of 1946 (herein after referred  to  as  the
Essential Supplies Act), and sentenced to six months' rigor-
ous  imprisonment.  On  appeal to the  Sessions  Judge,  the
appellant  was acquitted on two grounds, viz., (1)  that  no
sanction  was  previously obtained for  the  prosecution  as
required by clause 36 of the Cotton Textiles Control  Order,
and (2) that the Essential Supplies Act was not in force  in
the district of Darjeeling on the date of the occurrence. On
appeal  to the High Court by the State of West  Bengal,  the
point  about the absence of sanction under clause 36 of  the
Control  Order was given up by the present appellant as  its
necessity had been abolished by a later Notification of  the
Central Government. On the second point, the learned  Judges
of the High Court held that the Act was validly extended  to
the district of Darjeeling and was in force in that area  on
the date of the occurrence, viz., 14-10-1949. The  acquittal
of the appellant
130
was  set  aside,  the  order of  conviction  passed  by  the
Magistrate was restored, and the appellant was sentenced  to
four months' rigorous imprisonment.
     To understand the main legal argument as to whether the
Essential  Supplies Act of 1946 was in force at the time  of
the  alleged commission of the offence, it is  necessary  to
set out the relevant provisions of a few Acts and Orders and
their  dates. The Essential Supplies Act came into force  on
19-11-1946.  Section 92(1) of the Government of  India  Act,
1935, provided as follows :--
     "  ......  no Act of the Federal Legislature or of  the
Provincial Legislature, shall apply to an excluded area or a