Judgement

Appeal (No. 51 of 1929) from a decree of the Court of the Judicial Commissioner, Central Provinces (March 10, 1927), affirming a decree of the District Judge, Amraoti (April 23, 1924).

The question for determination in the appeal was whether the Berar Alienated Villages Tenancy Law, which was promulgated by the Governor-General in Council on November 24, 1921, was, as the appellant contended, ultra vires.

The law in question related to the Hyderabad Assigned Districts (known as the Berars), which, as appears more fully from the judgment, were territory of H. H. the Nizam, leased in perpetuity to the British Government with powers of administration. The notification stated "In exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1902, and of all other powers enabling him in this behalf, the Governor-General in Council is pleased to issue the following provisions regulating the relations of landlords and tenants of agricultural land in certain alienated villages of Berar." By s. 1, sub-s. 2, the provisions were to extend to all alienated villages leased under the Waste Land Rules of 1865.

The appellant was joint owner of a village of which a lease had been granted under the Rules of 1865. He brought the present suit on behalf of himself and an association whose members were also joint owners. By his plaint he alleged that the law of 1921 affected existing rights and vested interests of the owners of the villages, and infringed provisions of the Rules of 1865, which he contended alone governed their relations with the Government of India. He prayed for a declaration that the extension of the law of 1921 to the villages leased under the Waste Land Rules of 1865 was ultra vires, and that the rights of the appellant and his joint owners under the said Rules were unaffected by the law.

The Court of the Judicial Commissioner, affirming a decree of the District Judge of Amraoti, dismissed the suit.

1930. June 30 ; July 1. Dunne K.C. and Colombos for the appellant.

De Gruyther K.C. and Wallach, who were not called upon, for the respondent.

The argument for the appellant appears from the judgment of the Judicial Committee. The terms of the Foreign Jurisdiction Act, 1890, ss. 1, 12, which were material to the argument, also so appear. Reference was made also to the Interpretation Act, 1889, s. 38, sub-s. 2, and to the Government of India (Amendment) Act, 1916, s. 5, removing doubts as to the validity of the delegation of powers by the Order in Council of 1902.

The judgment of their Lordships was delivered by

LORD ATKIN. This action is brought by the plaintiff, on behalf of himself and other izardars and inamdars who hold land in the territory known as the Berar, against the Secretary of State for India in Council, to have it declared that the Act passed in 1921, which one may call shortly the Berar Tenancy Act, is invalid. It is said to be invalid because it is in conflict with and purports to take away rights which the plaintiff and those whom he represents allege were given to them by grant from the Government of India.

The position as it exists is due, in the first instance, to the treaties that were made between the Crown and His Highness the Nizam of Hyderabad. The first treaty was made in 1853, and by the terms of that treaty His Highness the Nizam assigned the districts mentioned in the schedule, which include the territory of the Berar, to the exclusive management of the British Resident for the time being at Hyderabad, and to such other officers acting under his orders as might from time to time be appointed by the Government of India. That was for the purpose of paying the Hyderabad Contingent and certain other expenses. On November 26, 1860, a further treaty was made between Her Majesty Queen Victoria, and His Highness the Nizam by which the Nizam agreed to forgo all demands for an account of the rents and expenditure of the assigned districts, and by article 6 it was provided as fol