PETITIONER: SAHODARA DEVI & ORS. Vs. RESPONDENT: GOVERNMENT OF INDIA & ANR. DATE OF JUDGMENT26/03/1971 BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SHELAT, J.M. DUA, I.D. CITATION: 1971 AIR 1599 1971 SCR 230 ACT: Cantonment Land Administration Rules, 1937, r. 27-Power under rule to grant lease whether discretionary-Use of word 'May', effect of. HEADNOTE: The appellant filed a petition under Art. 226 of. the Constitution against the refusal of the Defence Ministry to `execute a lease under r. 27 of the Cantonment Land Administration Rules, 1937 in respect of a bungalow situated in a cantonment area, on occupancy land held on 'old grants lease'. The single Judge directed the respondents to execute the lease but the Division Bench held that the power to grant a lease under r. 27 was discretionary. The Division Bench therefore set aside the orders of the single Judge and issued orders to the respondents to reconsider the request of the appellants for grant of lease under r. 27 and Sch. VII of the Rules in accordance with law.. With certificate the present appeal was filed in this Court. The only question for consideration was whether the appellants were entitled to a direction against the respondents to issue a lease to them under r. 27 and Sch. VIl of the 1937 Rules. HELD:Rule 27 only confers a power in general on the Military Estates Officer to grant leases and, by using the word 'may', it clearly gives, him discretion to grant leases in suitable cases. There is the further circumstance that the exercise of the power by the Military Estate Officer has been made subject to the approval of the Central Government or such other authority as the Central Government may appoint for that purpose. The power of the Military Estates Officer being subject to such discretionary approval or disapproval of another authority cannot possibly be held to be required to be exercised in all cases without any discretion. [234G235A] In the present case therefore the High Court in directing a reconsideration of the case in accordance with law was quite correct, so that the application of the appellants must be decided afresh after keeping in view the principle that the power to grant a lease under r. 27 is discretionary, but the refusal should only be in suitable cases where sufficient reasons exist for the purpose. [235C] Sardar Govindrao & Ors. v. State of Madhya Pradesh, [1965] 1 S.C.R. 678, distinguished. JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2246 of
1969.
Appeal from the judgment and decree dated April 11, 1969 of
the Allahabad High Court in Special Appeal No. 469 of 1968.
Yogeshwar Prasad, S. K. Bagga and S. Bagga, for the
appellants.
V. A. Seyid Muhammad and S. P. Nayar, for the respondents.
231
The Judgment of the Court was delivered by
Bhargava, J–The appellants are admittedly the joint owners
of Bungalow No. 45, situated along Tagore Road, in the
Cantonment of Kanpur. These premises are recorded in the
General Land Register of the Cantonment as occupancy land on
old grant terms. It appears that the words “old grant
terms” referred to rants made by the Government under the
General Order of the Governor-General in Council dated 12th
September, 1836. Subsequently, the first Act to be passed
in respect of these lands was the Cantonments Act No. 13 of
1889. This was followed by Cantonments Act No. 15 of 1910
and Cantonments Code, .1912. These were amended by
Cantonments Act No. 2 of 1924 which still continues to be in
force. On the 26th June, 1925, Rules were framed for the
first time under section 280 of the Cantonments Act of 1924,
regulating administration of Cantonment lands. These Rules
were, however, superseded by fresh Rules by Government
notification dated 23rd November, 1937. The new Rules are
described as “Cantonment Land Administration Rules, 1937”.
Under these Rules, a provision was made in rule 27 for
regularisation of old grants by issue of fresh leases. The
appellants did not have any documents to show how the
original title of their predecessors was acquired in respect
of these lands. The earliest document, which, the
appellants could produce, was a sale-deed executed by Ram
Nath and others, sons of Roop Kishore, in favour of Dost
Mohammad Estate, on the 8th September, 1943. This document
recited that Roop Kishore, the father of vendors Ram Nath
and others, purchased the property in various installments
by documents executed between the years 1901 and 1908. The
appellants acquired the rights to the Bungalow by a sale-
deed executed in their favour by Dost Mohammad Estate on
30th April, 1958. After taking this sale-deed, they applied
for mutation to Cantonment authorities; but objections were
raised and the authorities did not agree to mutate the names
of the appellants until the appellants agreed to give an
undertaking to be bound by the terms of the Governor-
Generals Order of September 12, 1936. Their names were then
mutated on 13th September, 1961, which. had to be followed
by a deed of admission executed by the appellants on 15th
September, 1961. Subsequently, the appellants approached
the authorities to get their rights defined and to have
their possession regularised under r. 27 of the Rules of
1937. The request not having been granted, the appellants,
on 12th April, 1966, moved the Military Estates Officer,
Lucknow for the same, purpose and, according to the
appellants. no attention was paid lo this request of
theirs. On 15th ‘October, 1966, they sent a reminder to the
Military Estates Officer, Lucknow and, in addition,
requested him to supply them with a form prescribed by
Schedule V of the Rules of 1937. It may be mentioned
232
that the lease under r. 27 was required to be executed in
the form in Schedule VII and not in Schedule V. On 25th
October, 1966, the Military Estates Officer wrote to the
appellants to collect the form from, the Cantonment
Executive Officer, Kanpur Cantonment, who was the Agent of
the Military Estates Officer and to submit it, after
completion, to the Military Estates Officer, Lucknow, along
with a site plan. The letter contained an additional
sentence that this reply sent also disposed of the earlier
letter of the appellants dated 12th April, 1966.
The appellants had also, in the meantime, moved the Defence
Ministry by a letter dated 27th, August, 1966, for grant of
a lease under r. 27 read with Schedule VII of the Rules of
1937, quoting an instance of one Mr. Packwood, resident of
Kanpur Cantonment, in whose case a similar lease had already
been issued. By the letter dated 25th October, 1966, the
Joint Secretary to the Defence Ministry informed the
appellants that a lease under r. 27 and Sch. VII could not
be granted; but, if the appellants so desired, the
Government were prepared to consider their case under r.
28(1) and Schedule VIII of those Rules. The appellants made
a representation against this letter by a letter dated 1st
November, 1966; but, when no reply was received, they gave a
notice to the Government on 28th February, 1967, to execute
the lease in two months under r. 27 and Sch. VII. Again,
there was no reply and, thereupon, the appellants moved a
petition under Art. 226 of the Constitution in the High
Court of Allahabad on 18th, March, 1967, seeking a writ of
mandwnus directing the Military authorities to issue a lease
to them under r. 27 and Sch. VII. The petition was heard
by a single Judge of the High Court and he issued a
direction to the respondents to grant a lease as prayed. He
rejected the plea of the respondents that the case fell
within Rules 16 to 26 and 28 and not under Rule 27. The
respondents appealed to a Division Bench which agreed with
the learned single Judge that rules 16-26 and 28 were
inapplicable to the case of the appellants. It was,
however, of the view that, though, the case was covered by
r. 27, that rule did not contain any mandatory provision
requiring a lease to be given in all cases of old grants and
that there was a discretion vested in the authorities acting
under that rule not to give a lease in suitable cases. It
was also held that the appellants had no right to claim such
a lease under that rule. Consequently, the Division Bench
set aside the direction of the single Judge and issued
orders to the respondents to reconsider the request of the
appellants for grant of lease under r. 27 and Sch. VII of
the Rules in accordance with. law. It is against this order
that the appellants have come up to this Court by
certificate under Art. 133(1)(b). of the Constitution.
In this appeal, we are concerned with only one single point
relating to the nature of the direction contained- in r. 27
of the
233
Rules of 1937 The concurrent decision of the single Judge
and the Division Bench, holding that rules 16-26 and 28 are
inapplicable, has not been challenged in this case before
us. The only point that has been canvassed is whether the
appellants are entitled to a direction against the
respondents to issue a lease to them under r. 27 and Sch.
VII of the Rules of 1937.
Rule 27 of the Rules of 1937 is as follows:-
“27. Special Lease for the Regularisation of
Old Grants.Notwithstanding anything contained
in rules 16 to 26 the Military Officer in any
case where a site is held without a regular
lease, may, on application by the holder,
grant, with the approval of the Central
Government or such other authority as the
Central Government may appoint for this
purpose, a lease of the said land in the form
set out in Schedule VII.”
In this Rule, thus, the power to grant a lease for
regularisation of old grants has been given to the Military
Estates Officer by using the word “may”, and the power is
further subject to the approval of the Central Government or
such other authority as the Central Government may appoint
for the purpose. In view of this language used, we think
that the High Court was quite fight in holding that this
rule does not envisage a mandatory direction to the Military
Estates Officer to grant a lease in all cases where the
question of regularisation of old grants arises. Normally,
the, word “may” is used to grant a discretion and not to
indicate a mandatory direction. Had the, intention been
that the Military Estates Officer must grant a lease in all
cases, the word used would have been “shall” instead of
“may”. It is true that the word “may”, in some context, has
been interpreted as containing a mandatory direction and the
authority given the power has to exercise that power unless
there be special reasons. Such a case came before this
Court in Sardar Govindrao and Others v. State of Madhya
Pradesh (1). That was a case where a rule relating to grant
of money or pension was sought to be enforced. This Court
held:-
“This is an instance where, on the existence
of the condition precedent, the grant of money
or pension becomes obligatory on the
Government notwithstanding that in s. 5(2) the
Government has been given the power to pass
such orders as it deems fit and in sub-s. (3)
the word “may” is used.- The word “may” is
often read as “shall” or “must” when there is
something in the nature of the thing to’ be
done which makes it the duty of the
(1) [1965] S.C.R. 678
34
Person on Whom the power is conferred to exercise the Power.
Section 5(2) is discretionary because it takes into account
all cases which may be brought before the Government of
persons c raising to be adversely affected by the provision
of s. 3 of the Act. Many such persons may have no claims at
all although they may in a general way be said to have been
adversely affected by s. 3. if the power was to be
discretionary in every case there was no need to enact
further than sub-s. (2). The reason why two sub-sections
were enacted is not far to seek. That Government may have
to select some for consideration under sub-s. (3) and some
under s. 7 and may have to dismiss the claims of some others
requires the conferment of a discretion and sub-s. (2) does
no more than to give that discretion to Government and the
word “may” in that sub-section bears its ordinary meaning.
The word “may” in sub-s. (3) has, however, a different
purport. Under that sub-section, Government must, if it is
satisfied that an institution or service must be continued
or that there is a descendant of a former ruling chief,
grant money or pension to the institution or service or to,
the descendant of the former ruling chief, as the case may
be. of course, it need not make a grant if the person
claiming is not a descendant of a former ruling chief or
there is other reasonable ground not to grant money or
pension.. But, except in those cases where there are good
grounds for not granting the pension, Government is bound to
make a grant to those who fulfill the required condition and
the word “may” in the third sub-section though apparently
discretionary has to be read as “must”.
It may be noticed that, in that case, the word “may” as used
in the general sub-s. (2) was not held to indicate a
mandatory direction. It was only in sub-s. (3), because of
the special context, that ‘the Court held that the word
“may” was equivalent to ” shall” or “must”. In the case
before us, rule 27 only confers a power in general on the
Military Estates Officer to grant leases and, by using the
word “may”, it clearly gives him discretion to grant it in
suitable cases. There is further the circumstance that the
exercise of the power by the Military Estates Officer has
been made subject to the approval of the Central Government
or such other authority as the Central Government may
appoint for that purpose. If the power had to be exercised
by the Military Estates Officer in all cases, its being made
subject to the approval of another authority would be
meaningless. When a rule envisages approval of the proposed
action of the Military Estates Officer, it also implies that
his action can be disapproved. This approval or disapproval
will necessarily be at the discretion of the Central
235
Government or the authority appointed by it for that
purpose. The power of the Military Estates Officer being
subject to such discretionary approval or disapproval of
another authority cannot possibly be held to be required to
be exercised in all cases without any discretion. The
Division Bench was, therefore, perfectly correct in holding
that the power under r. 27 is a discretionary power, and
both the Military Estates Officer as well as the Central
Government or the other authority appointed by it for that
purpose in exercising their power have the discretion in
suitable cases not to proceed under this rule. The High
Court, in directing a reconsideration of the case in
accordance with law, was, therefore, quite correct, so that
the application of the appellants must be decided afresh,
after keeping in view the principle that the power to grant
a lease under rule 27 is discretionary ; but the refusal
should only be in suitable cases where sufficient reasons
exist for that purpose.
The appeal fails and ‘is dismissed. In the circumstances of
this case, we make no order as to costs.
G. C. Appeal dismissed.
236
