CITY OF JABALPUR CORPORATION Vs. STATE

JUDGEMENT

(1.) THE petitioner in this case is the Chief Executive Officer of the City of Jabalpur Corporation. He prays that a writ of certiorari be issued for quashing an order of the State Government dated the 29th February 1956 granting certain Nazul land situated in Jabalpur free of premium to the opponent Hitkarini Sabha, Jabalpur. The land was specified in the memorandum which the Government issued on 29th February 1956 about the grant of land.

(2.) THE petitioner's case is that the land in question is a part of the land which once belonged to the Government of India in 1930 and which was transferred to the Municipal Committee, Jabalpur by the Government of the Central Province under Section 38 (1) (f) of the C. P. and Berar Municipalities Act, 1922, with the previous sanction of the Government of India; that under the terms of transfer the land could be used only for the purpose of a garden and for no other purpose without the previous sanction of the Government and it could be resumed by the Government only if this condition of user were to be broken; that the land was accordingly used by the then Municipal Committee of Jabalpur; that this property of the City Municipality Jabalpur, vested in the Jabalpur Corporation under Section 71 of the City of Jabalpur Corporation Act, 1948; and that the land in question could not, therefore, be transferred by the State Government either under the terms of the grant of 1930 or under Section 81 of the City of Jabalpur Corporation Act, 1948, which had no applicability.

(3.) THERE is no justification for such an assumption. The grant of the land to the City Municipality in 1930 was under Section 38 (1) (f). That being so, it was subject to all the rights and obligations of the grantor and the grantee as well under Section 38 of the Act of 1922. Under Section 38 (1) all property of the nature specified therein and situated within the limits of the Municipality vests in the Municipal Committee subject to any special reservation made or to any special conditions imposed by the State Government. Sub -section (2) of that Section gives to the Government power to direct that any property which has vested in a Committee under sub -section (1) shall cease to be so vested and to pass such orders as it thinks fit regarding the disposal and management of such property after the Municipal Committee has been divested of it. Sub -section (3) speaks of the compensation payable in respect of any immovsable property which was transferred to the Committee otherwise than by sale for public purposes and which may subsequently be resumed by the Government The City Municipal Committee thus took the land subject to the above conditions also. It is erroneous to suppose that the grant was subjected only to the conditions specifically mentioned in the letter of the 5th April 1930 of the Government to the Commissioner, Jabalpur Division and to think that those conditions put a limitation on the power of the Government to resume the land under sub -section (2) at any time, The power given to the Government under Section 38(1)to make any ''special reservation" or to impose ''any special conditions'' with regard to the vesting of any property in the Committee does not contemplate 'waiver' by the Government of its wide power to resume the land whenever it likes. 'Reservation' does not mean waiver of a right. It is the withholding by the grantor of some right or privilege for his own use out of or in connection with the estate conveyed. The conditions that can be imposed are similarly on the grantee in regard to the land vested in it. It is a burden on the property vested and not a restriction on the right or privilege of the grantor. That being so, Government could not under Section 38 of the Act of 1922 make any grant putting a limitation on its own power to resume it at any time under sub -section (2). Such a condition in any grant would be contrary to the provisions of the Act and would be invalid. The grant made to the City Municipal Committee, Jabalpur, in 1930, did not in fact curtail the power of the Government to resume the land under subsection (2) of Section 38. Even if such a condition had been inserted in the grant, its validity could not have been sustained on the ground that it was open to the Government to waive the advantage of the provisions of sub -section (2). It is no doubt true that any one may waive the advantage of law made solely for the benefit or protection of an individual in his private capacity. But under that principle Government could not divest itself of the right given and reserved to it under sub -section (2) of Section 38. The reason is that Government is not an individual and the waiver would infringe the public right and would be opposed to the general policy of the specific power given under Section 38 (2).