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1947 Supreme(SC) 5
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD WRIGHT, LORD PORTER, LORD UTHWATT, SIR MADHAVAN NAIR AND SIR JOHN BEAUMONT
MEGH RAJ - Appellant
Versus
ALLAH RAKHIA - Respondents
On Appeal from the Federal Court of India.
Decided On : Feb. 5, 1947.
Solicitors for appellants: Linklaters & Paines.
Solicitor for the Punjab Province: Solicitor, India Office.
The term "land" in a provincial legislative list encompasses all rights in or over land, including mortgages, as they are ancillary to land ownership. Consequently, legislation regarding mortgaged agricultural land falls within provincial competence, regardless of concurrent powers over contracts or property transfers.
Headnote:(A) Government of India Act, 1935 - Section 100, 107, 311 and 104 - Seventh Schedule, List II (Provincial Legislative List) Item 2 and 21, List III (Concurrent Legislative List) Item 4, 7, 8 and 10 - Restitution of Mortgaged Lands Act - Section 3, 4, 7 and 12 - Validity of provincial legislation - Whether an Act providing for restitution of mortgaged agricultural lands is ultra vires the provincial legislature - Interpretation of "land" and "rights in or over land" - Mortgages as ancillary to land rights.
(B) Legislative competence - The term "land" in the Provincial Legislative List is sufficient to include every form of land, whether agricultural or not - "Rights in or over land" is a general concept including ownership, leasehold, easements, and other collateral rights - Mortgages of land, while involving elements of contract and transfer of property, are sui generis transactions incidental to land and fall within the provincial power to legislate on land.
(C) Repugnancy - Where a provincial law is acting wholly within its powers under the Provincial List and not relying on the Concurrent List, the question of repugnancy with existing laws under the Constitution Act does not arise.
Facts of the case:
Mortgagees filed a suit for a declaration that they were in possession of certain lands and that mortgagors were not entitled to redeem without payment of the debt. They sought an injunction to restrain the mortgagors from seeking restitution of the lands before the Collector under a provincial Act which allowed for restitution of mortgaged premises on conditions more favorable than those under the mortgage deeds and provided for a summary procedure.
Findings of Court:
The impugned Act is intra vires the provincial legislature as it falls within the scope of "land" and "rights in or over land" under the Provincial Legislative List. The Act is limited to agricultural land, which is expressly reserved for provincial legislation.
Issues: Whether the provincial Act providing for the restitution of mortgaged lands was void as being ultra vires the provincial legislature, and whether it was repugnant to existing laws under the Concurrent Legislative List.
Ratio Decidendi: The court held that the word "land" in the Provincial List should receive the widest construction. Mortgages of land are incidental and ancillary to the subject of land. Since the Act specifically dealt with agricultural land, it fell squarely within the provincial list, making the Concurrent List and the doctrine of repugnancy inapplicable.
Result: Appeal dismissed.
Legal Category Hierarchy
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constitutional law
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legislative competence
- provincial list
- concurrent list
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legislative competence
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property law
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mortgages
- agricultural land
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mortgages
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practice and procedure
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jurisdiction
- revenue courts
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jurisdiction
Judgement
Appeal (No. 13 of 1946), by special leave, from a judgment and order of the Federal Court (April 10, 1942) dismissing an appeal from a judgment of a Full Bench of the High Court at Lahore (February 27, 1941).
The following facts and statutory provisions are taken from the judgment of the Judicial Committee. The question in this appeal was whether Punjab Act No. IV of 1938, entitled the Punjab Restitution of Mortgaged Lands Act, was void as being ultra vires of the Punjab legislature. The action was commenced by the appellants as mortgagees claiming a declaration that they were mortgagees in possession of certain lands therein specified, and that the defendants were not entitled to redeem without payment of the mortgage debt due under the mortgage deeds, and also an injunction to restrain the defen dants as mortgagors from prosecuting their petition for redemption of the lands in the Court of the Collector under the Punjab Act IV. of 1938 (hereinafter called the impugned Act) and for restitution of the lands under the provisions of the Act.
The object of the impugned Act was the relief of mortgagors by giving them restitution of the mortgaged premises on conditions more favourable than those under the mortgage deed, and by providing for a procedure before the Collector, which was more summary than that before the ordinary courts. The relevant sections of the impugned Act were as follows—
"3. (1) The expression land means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes—
"(a) the sites of buildings and other structures on such land;
"(b) a share in the profits of an estate or holding;
“(c) any dues or any fixed percentage of the land revenue payable by an inferior landowner to a superior landowner;
"(d) a right to receive rent;
"(e) any right to water enjoyed by the owner or occupier of land as such;
"(f) any right of occupancy; and
"(g) all trees standing on such land."
"4. A mortgagor to whose land the provisions of this Act apply, may at any time present a petition to the Collector praying for restitution of possession of the land mortgaged. The petition shall be duly verified in the manner prescribed for such petitions.”
"7. (1) If the Collector finds that the mortgage is one to which this Act applies he shall, notwithstanding anything contained in any other enactment for the time being in force in cases where he finds that the value of the benefits enjoyed by the mortgagee, while in possession, equal or exceed twice the amount of the principal sum originally advanced under the mortgage, order in writing—
"(a) that the mortgage be extinguished, and, “(b) where the mortgagee is still in possession, that the mortgagor be put into possession of the mortgaged land as against the mortgagee and that the title deeds, if any, be restored to the mortgagor.
"(2.) If in cases to which this Act applies, the Collector finds that the value of the benefits enjoyed by the mortgagee while in possession is less than twice the amount of the principal sum originally advanced and some payment is still due to the mortgagee according to the terms of the mortgage, the Collector shall, by order in writing, and notwithstanding anything contained in any other enactment for the time being in force direct that the land be restored to the mortgagor and he be put into possession subject, however, to the payment of compensation by the mortgagor to the mortgagee at rates not exceeding the following scales—
"(i.) thirty times the land revenue assessed on the land at the time when it was mortgaged if the mortgagee has been in possession for a period exceeding thirty years but not exceeding forty years;
"(ii.) fifteen times the land revenue assessed on the land at the time when it was mortgaged if the mortgagee has been in possession for a period exceeding forty years but not exceeding fifty years;
"(iii.
