- (1.) This appeal is brought by certificate from the judgment of the High court of Assam and Nagaland, dated 22/04/1966, in Civil Rule No. 36 of 1963, whereby the High court by majority judgment dismissed the writ petition filed by the appellant.
(2.) The land in dispute was originally located in the State of Hyllien in the Khasi and Jaintia Hills. This land was leased out in perpetuity to the British government by Khasi land owners Thholyomawrie and U. Mongermawrio by a deed of lease executed on November 4, 1874. On 1/04/1907, the secretary of State for India on behalf of the British Crown made a settlement of the land with Captain S. M. Manley for 99 years on a premium of Rs. 716-8-0. and annual revenue of Rs. 35-13-8. The document of lease was executed, by the Deputy Commissioner, Khasi and Jaintia Hills. On March 18, 1907) , Captain Manley sold his right and title in the land to Messrs. Jarnatuliah Sons. Subsequent to the sale Messrs. Jamatullah and Sons constructed three houses on the land, known as 'cedar Lodge', 'cryptomaria' and 'eldorado'. The appellant is the successor of Messrs. Jamatullah and Sons. Out of the three buildings, the appellant has been living in 'eldorado' 'and the other two buildings have been given on rent to the government of Assam. 'cryptomaria' is occupied by one of the Ministers of the government of Assam and Cedar Lodge has been occupied by the offices of the Electricity Board. Clause V of the lease in favour of Captain Manley reads as follows : "If the site, or any part of it, is required for public purposes (including the maintenance or alteration of public aqueducts) , it may be resumed by government. In this case the lessee will be entitled to receive such compensation, calculated according to the spirit of the Land Acquisition Act, as fairly represents the actual value of the land and the buildings upon it. The amount of the compensation shall be determined by the Deputy Commissioner subject to an appeal to the Commissioner. "on 18/09/1959 the Deputy Commissioner of Khasi and Jainlia Hills served notice of resumption on the appellant purporting to exercise the right of the government under Clause V of the lease. The appellant thereafter moved the High court of Assam in Civil Rule No. 1 19 of 1969 challenging the validity of the order of resumption. By majority the High court dismissed the writ petition filed by the appellant holding that the rights and obligations springing from the contract of lease should be decided by the ordinary Civil courts and it is not proper for the High court to exercise its power under Article 226 of the Constitution. Soon after the decision of the High court there was a proposal for a compromise between the parties and the government agreed to drop the resumption proceedings on certain terms and conditions. But it was alleged that the appellant did not comply with the terms and conditions of the compromise proposal and a fresh order of resumption was,. therefore, made by the Government on 15/03/1963 and a sum of Rs. 59,965. 00 was determined as compensation payable to the appellant. The notice of resumption, dated 15/03/1963 is to the following effect: "Orders OF THE GOVERMENT OF ASSAM REVENUE (settlement) department settlement BRANCH. Dated : Shillong the 15/03/1963. Whereas a plot of land in Shillong measuring more or less 4.77 acres within the boundaries specified in the Schedule below was originally leased by the secretary of State for India to Chaplain S. N. Manley by a deed of lease, dated 9/12/1907 and mutated in the name of Sri Mulid. Haniffof Police Bazar, Shillong, subject to the terms and conditions specified in inc said deed of lease ; And whereas the governor of Assam is satisfied that it is necessary to resume the aforesaid plot of land with houses standing thereon for providing. suitable accommodation to the government offices and the Minister of government, which are hereby declared to be a public purpose. Now, therefore, in exercise of powers conferred by Clause V of the aforementioned deed of lease, the governor of Assam is pleased to resume the said plot of land and to direct the Deputy Commissioner United K. J. Hills to summarily re-enter and take possession of the said plot of land on giving 7 days' notice in writing to the lessee and thereafter pay such compensation, as may be payable in accordance with the provisions of Clause V of the deed of lease or any other clause or clauses, as may be found applicable.
(3.) On behalf of the appellant Mr. B. Sen stressed the argument that there was no disputed question of title involved in this case. The title of the appellant as a grantee was n6t questioned on behalf of the respondent. The only question at issue is whether the respondent was entitled to resume the land by virtue of Clause V of the lease, dated 1/04/1907 by the secretary of State for India in favour of Capt. Monley. In our opinion there is justification for the argument put forward on behalf of the appellant. On behalf of the respondent, however, the Attorney General referred to the decision of this court in State of orissa v. Ramchandra.;