Judgement

Appeal (No. 70 of 1944) by leave of the Federal Court of India from a judgment and order of that court (April 22, 1943), which had affirmed a decree of the Chief Court of Oudh at Lucknow (April 9, 1942).

The appellant was a taluqdar of Oudh whose predecessor, Babu Sitla Baksh Singh, after the Indian Mutiny of 1857 had obtained a sanad from the Governor-General conferring oh him " the full proprietary rights, title and possession of the estate " of Bhawanshapur " in the taluqa Bhawanshapur in the Province of Oudh. In the action out of which this appeal arose the appellant claimed a declaration that the United Provinces Tenancy Act (U. P. Act XVII of 1939), which legislated in respect of agricultural tenancies on matters within the competence of the Provincial legislature under item 21 of list II of the 7th sch. to the Government of India Act, 1935, and which it was conceded did undoubtedly cut down the absolute rights of the taluqdars of Oudh comprised in the grants evidenced by the sanads given by the Crown to their predecessors in title, was ultra vires the Provincial legislature. The respondent contended that the impugned Act was validly enacted.

The Chief Court of Oudh (Madeley J.) (to whom the suit was transferred for trial from the Court of the Civil Judge, Sultanpur), and, on appeal, the Federal Court of India (Gwyer C.J., Varadachariar and Zafrulla Khan JJ.), were of opinion that the United Provinces Tenancy Act was intra vires the Provincial legislature.

1946. March 26. Rewcastle K.C. and Khambatta for the appellant, traced through the relevant documents and statutory provisions how the title of the appellant arose [see judgment of the Judicial Committee]. The point for determination is the question of the power of the Province to affect the title to the lands of the taluqdars of Oudh by virtue of the authority of the Province to make laws regulating the relation of landlord and tenant within the Province. It is conceded by the respondent that the United Provinces Tenancy Act, 1939, creates rights and interests in land in favour of other persons contrary to the sanad granted to the appellants predecessor by the Crown and thus derogates from the terms of the Crown grant. It is submitted, as stated in one of the grounds in the plaint, that " the grant by the Crown being an act of State, the Provincial " legislature had no right, authority or jurisdiction to. " extinguish, modify, or in any other manner curtail the rights " conferred thereby/ When the powers conferred on Provincial legislatures by the provisions of the Government of India Act, 1935, are examined, the terms in which they are conferred are not wide enough to enable them to pass a statute such as this impugned Act. The position in which these Crown grants had stood before the Act of 1935 was that there had been no interference of any sort until the passing of the Transfer of Property Act in 1882, which undoubtedly would have interfered with the position under the grants. There was then passed, however, the Crown Grants Act, 1895, which provided in s. 3 that " all provisions, restrictions, conditions and limitations " over contained in any such grant or transfer as aforesaid shall " be valid and take effect according their tenor, any rule of " law, statute or enactment of the legislature to the contrary " notwithstanding." Thus, the policy was that these Crown grants were not to be interfered with, and that was the situation up to 1935, and the question is whether, looking at the terms of the Constitution Act of 1935, there can necessarily be spelt into them an expression of the intention of Parliament to change that policy and interfere with these grants. Section 300 of the Act of 1935, which provides that " The executive authority " of the Federation or of a Province shall not be exercised, " save on an order of the Governor-General or Governor .... “ so as to derogate from any grant or confirmation of title of or to land . . . . " shows that this