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Judgment
Gwyer, C.J.—This is a reference by His Excellency the Governor-General Under Section 213, Constitution Act. The questions referred for
our opinion are as follows:
(1) Does Sub-section (1) of Section 172, Government of India Act, 1935, and in particular Clause (b) thereof, make provision for the allocation of
lands and buildings situate in a Chief Commissioner''s Province which, immediately, before the commencement of Part 3, of the said Act, were
vested in His Majesty for the purposes of the Government of India and were used either wholly or in part for purposes which thereafter became
purposes of the Government of a Governor''s Province, and, if so, in what manner?
(2) If the said sub-section has failed to make provision for the allocation of such lands and buildings does Section 173 of the said Act govern the
allocation, and, if so, in what manner?
(3) If the answers to the first part of question 1 and the first part of question 2 are both in the negative, is any provision made for the allocation of
such lands and buildings?
It appears that the questions have arisen in connexion with a difference of opinion between the Government of India and the Government of the
Punjab with regard to the vesting of certain lands and buildings situate in the Chief Commissioner''s Province of Delhi. These lands and buildings
were once situate in the Province of the Punjab, but have been in the Chief Commissioner''s Province of Delhi ever since the latter was carved out
of the Punjab in 1912, when the city of Delhi was made the capital of India. The lands and buildings are (1) A Reformatory School which was at
the material time, viz., immediately before the commencement of Part 3 of the Act, used jointly by the Punjab Government and the Central
Government. (2) A canal, with lands appertaining thereto, described as the Delhi Tail Distributory of the Western Jumna Canal. This is part of the
Punjab irrigation system, but the Distributory serves the Province of Delhi only, so far as it is still in operation; but a part of it is apparently derelict
and insanitary, and the health authorities are anxious that it should be filled up. (3) The central offices of the Western Jumna Canal. It appears that,
when the Province of Delhi was created, it was agreed between the Government of India and the Punjab Government that the irrigation
arrangements in force should be continued and that the Punjab Government should continue to administer the Distributory as part of the Western
Jumna Canal system, an arrangement which still exists. The central offices are also still used for their original purposes by the Punjab Government.
So far as it may be material, we should add that the Reformatory School, the canal and the central offices, were all constructed with funds
provided by the then Local Government of the Punjab.
On considering the papers submitted with the case, we felt some doubt whether any useful purpose would be served by the giving of an opinion
Under Section 213 of the Act. The terms of that section do not impose an obligation on the Court, though we should always be unwilling to decline
to accept a reference, except for good reason; and two difficulties presented themselves. First, it seemed that questions of title might sooner or
later be involved, if the Government whose contentions found favour with the Court desired, as the papers show might be the case, to dispose of
some of the lands in question to private individuals, and plainly no advisory opinion Under Section 213 would furnish a good root of title such as
might spring from a declaration of this Court in proceedings taken Under Section 204(1) of the Act by one Government against the other.
Secondly, Section 172(5) of the Act appeared to contemplate the reference of disputes arising under that section to His Majesty in Council. The
Court was however informed by counsel that the matter had already been submitted to the Secretary of State in order that it might be referred to
His Majesty in Council, but that the Secretary of State, when he learned that the Government of the Punjab disputed the interpretation which the
Government of India put upon Section 172, desired that the question of the interpretation of the section might first be referred to this Court for its
opinion, in order that the reference to His Majesty in Council, if it became necessary to make it hereafter, might not proceed upon an erroneous
assumption of law. In these circumstances, it appeared to us that the reference Under Section 213 was one which the Court might properly
entertain, and arguments were heard accordingly on behalf of the Government of India and of the Government of the Punjab.
The reason for such a section as Section 172 in the new Constitution Act is obvious. Up to 1st April 1937, when the greater part of the Act
came into force, the Government of India was a unitary Government, to which all the Provincial Governments were subordinate; and hence all
lands and buildings belonging to Government or used for governmental purposes were vested in His Majesty ""for the purposes of the Government
of India."" This had been the legal position ever since the Government of India Act 1858: see'' Section 39 of that Act and Section 28 (1) and (3),
Government of India Act, which immediately preceded the Act of 1935. But the setting up of a number of autonomous Provinces, independent of
the Central Government and dividing with the latter the totality of executive and legislative powers in British India, and the separation of the powers
connected with the exercise of the functions of the Crown in its relations with the Indian States (which were to be thenceforward exercised
exclusively by His Majesty''s Representative appointed for that purpose) made an allocation necessary among these three authorities of the lands
and buildings which had hitherto been vested in His Majesty for the purposes of the Government of India alone. It is this allocation which was
effected, or attempted to be effected by the provisions of Section 172, Sub-section (1), paras. (a), (b) and (c). It will be observed that the section
purports to regulate the vesting of
all lands and buildings which immediately before the commencement of Part 3 of the Act were vested in His Majesty tor the purposes of the
Government of India.
There is no mention of any exception: and the intention of Parliament is therefore clear, though that does not exclude the possibility that
Parliament (or the draftsman) may have failed to carry that intention out. The section deals with these lands and buildings under three categories:
Category (a) consists of lands and buildings situate in a Province [that is, a Governor''s Province: see Section 46(3) of the Act]. These, with the
exception of those which have been used for the purposes of the Central Government, are declared to vest in His Majesty for the purposes of the
Government of the Province. It may be mentioned here that certain other lands and buildings are also excepted from category (a), viz., lands and
buildings formerly used for purposes which will now be Central Government or Crown Representative purposes and are certified by the
Governor-General or by the Crown Representative, as the case may be, to have been retained for future use for such purposes, or have been
retained temporarily for the more advantageous disposal by sale or otherwise. The existence of this small class however does not appear to have
any bearing upon the question now to be determined.
Category (b) covers two kinds of lands and buildings; first those which though situate in a Province, have not, for the reasons above given, been
allocated to the Provincial Government; secondly, lands and buildings which are situate in India but not in any Governor''s Province, that is, in
Indian States or in Chief Commissioner''s Provinces, since these, with the Governor''s Provinces, make up the whole of ''India'' as defined by the
Act [see Sections 46(3), 94 and 311(1)]. Both kinds are declared to vest in His Majesty for purposes which may be concisely described as either
Central Government purposes or Crown Representative purposes, ""according to the purposes for which they were used immediately before the
commencement of Part 3 of the Act.
Category (c) relates to lands and buildings situate elsewhere than in India, and the present case is not concerned with them.
It is the provision in Section 172 that the lands and buildings in category (b) which are situate in Indian States or in Chief Commissioner''s
Provinces are to vest in His Majesty for the purposes of the Government of India or of the Crown representative ""according to the purposes for
which they were used immediately before the commencement of Part 3 of the Act"" which has caused the difficulty out of which the present
reference arises. The Advocate-General of India argued that Section 172 was comprehensive and complete, that the lands and buildings about
which the dispute has arisen are certainly situate in India elsewhere than in a Governor''s Province, and that the clear language of Section 172(1)(b)
makes it impossible to hold that they vest in His Majesty for any other purposes than Central Government purposes, since no one could contend
that they were used immediately before the commencement of Part 3 of the Act for anything remotely resembling Crown representative purposes.
The Advocate-General of the Punjab, on the other hand, argued that, since lands and buildings in India but outside a Governor''s Province
were to be allocated between the Central Government and the Crown representative alone ""according to the purposes for which they were used
immediately before the commencement of Part 3 of the Act,"" such lands and buildings as were, immediately before the commencement of Part 3 of
the Act, used for provincial purposes were necessarily excluded; for, he said, there is neither rhyme nor reason for allocating such lands and
buildings to the Central Government. His contention was that Parliament had either forgotten this particular class of lands and buildings when
enacting para. (b), or had supposed that no lands and buildings used for provincial purposes were to be found in any Indian States or Chief
Commissioner''s Province. Nevertheless, he did not say that as a result of this construction such lands and buildings remained unallocated
altogether; his suggestion was that they would be covered by the word ""property"" in Section 178, which would mean that they were allocated
either under Sub-section (1) or Sub-section (2) of that section to the Provincial Government, as he contended that they ought to be. Mr. Sleem''s
argument would, we think, have been strengthened if he had referred by way of contrast to the phrasing of Section 172(1)(c), the paragraph which
deals with lands and buildings situate elsewhere than in India. These are declared to
vest in His Majesty for the purposes of the Government of the Federation or, if they were immediately before the commencement of Part 3 of this
Act used for the purposes of the department of the Secretary of State in Council, for the purposes of His Majesty''s Government in the United
Kingdom.
If para. (b) had been similarly phrased and had declared that the lands and buildings there dealt with vest in His Majesty for the purposes of
the Government of the Federation or, if they were immediately before the commencement of Part 3 of this Act used for the purposes of the
exercise of the functions of the Crown in its relations, with Indian States, then for the purposes of the Crown Repre-sentative, the paragraph would
have been clear beyond question, and no difficulty could have arisen. The fact that it is phrased in a different way altogether does suggest that
Parliament assumed that the lands with which it was dealing had only been used before the Act for purposes which thereafter became Central
Government or Crown Representative purposes, and that when it declared that the vesting should be determined ""according to the purpose for
which they were used immediately before the commencement of part 3 of the Act,"" Parliament had in mind an allocation between these two
authorities and no other. That is to say, it defined the authorities for whose benefit the land was to vest in His Majesty according to the purposes
for which it had been previously used reddendo singula singulis: so that when it now appears that there was a third kind of purpose, the definition of
the authorities between whom the allocation is to take place is defective, and the particular kind of land and buildings with which this reference
deals is not covered by the vesting provisions in category (b) at all. Mr. Sleem might have argued thus very forcibly, and he might also have pointed
out that category (b) deals not only with lands and buildings situate outside a Governor''s Province altogether but also with lands and buildings
situate in a province, but expressly declared to have been used for Central Government purposes in that province. It certainly does look as if
Parliament had, as Mr. Sleem suggested, either forgotten the existence of the other class or had supposed that lands and buildings used for
provincial purposes were not to be found outside the Governor''s Provinces.
It is also to be observed that throughout Chapter 3 of this Part of the Act the same trichotomy is found, central purposes and Central
Government, provincial purposes and Provincial Government, Crown representative purposes and Crown representative. Only in Section 172(1)
(b) is the reference to Central purposes and Crown representative purposes alone (in para. (c) of the same sub-section the reference is to the
Central Government and His Majesty''s Government in the United Kingdom, but that is because the paragraph is dealing with lands not situate in
India at all.) There must be some reason for this, and it is difficult to think of reasons other than those suggested by Mr. Sleem. The arrangement of
the sections in this chapter seems to indicate that the intention of Parliament was first to deal with immovables, secondly, with moveables, and
thirdly, with choses in action; and, so far as can be seen, these groups were intended, generally speaking, to be selfcontained and mutually
exclusive. It is however plain that the word ""property"" in Section 173 cannot on a strict construction of the section be limited to moveable property
only, and Sections 177 and 180 would cover the case of a lease as well as that of a bare chose in action.
We may take as an example of what we have just said the case of lands and buildings situate in an Indian State which, by virtue of some lease
or contract, were immediately before the Act used for a provincial purpose. Two such cases were mentioned in the course of the argument the
hydro-electric works in the State of Mandi from which electricity is distributed in the Punjab and the Periar lake in the State of Travancore which
supplies a considerable area in the Province of Madras with irrigation water. Before the new Act, a lease or contract for such purposes would be
made by the Secretary of State in Council for or on behalf of the Central or Local Government, as the case might be; but by Section 177 the
Provincial Government is now substituted for the Secretary of State in Council in every such contract, where the purposes of the contract are
provincial purposes. It would certainly be a singular thing if the effect of Section 172 (1)(b) was to vest the lands and buildings comprised in such a
lease or contract in His Majesty for the purposes of the Central Government, who have not any concern in the matter, though the Central
Legislature may still have power to legislate, concurrently, with the Provincial Legislature, on the subject of electricity. The result would be no less
singular, as it seems to us, if the central offices of one of the Punjab Irrigation Canals had to be allocated to the Central Government, merely
because the offices are situate in the Chief Commissioner''s Province of Delhi.
The fact that a particular interpretation of an Act of Parliament produces anomalous results is not however a decisive reason for rejecting the
interpretation, if it is the result of construing the words which Parliament has used in their natural and grammatical sense. In the present case
however we are unable to say that the natural and grammatical sense of the words forces us to adopt the construction for which the Advocate-
General of India contended. On the contrary, this construction seems to us to do violence to the language of Section 172(1)(b), when read in the
light of the earlier part of the subsection and in the light of the other sections which follow in the same Chapter. We agree with the Advocate-
General of the Punjab that if an allocation is to be made exclusively between the Central Government and the Crown Representative according
only to the purposes for which the lands and buildings allocated were used before the Act, it is scarcely possible without straining the language of
the section to assume that these pre-Act purposes could include provincial purposes as well as central purposes. When we consider the
consequences to which we have already drawn attention and which necessarily follow from the adoption of the construction contended for by the
Advocate-General of India, we find even greater difficulty in accepting it.
It would be idle to speculate whether the omission to deal with lands and buildings used for provincial purposes though situate outside the
Governor''s Provinces was deliberate or due to an oversight; but, assuming that there is a casus omissus in Section 172(1)(b), it then becomes
necessary to determine whether it is covered by any other section in the Act. In our opinion the language of Section 178 is wide enough to cover
the case, though we are by no means sure that Parliament intended in that section to deal with lands and buildings at all. Sub-section (3) of Section
178 only enacts that the expression ""property"" in the section ""includes"" money, securities, bank balances and moveable property of any
description. It does not define the word as meaning those things and none other; and therefore it is legitimate to give the expression ""property"" a
wider meaning, if it becomes necessary to do so. We think that lands and buildings situate in India but outside a Governor''s Province and used for
provincial purposes before the Act may be brought within the ambit of Section 178(1), or if not within the ambit of Section 178(1), then of Section
173(2), without doing violence to the language used, with the result that such lands and buildings will vest in His Majesty for the purposes of the
Provincial Government; we may point out that ''in the possession of,'' ''under the control of,'' held on account of are wider than ''used for the
purposes of.''
We have already stated that of the lands and buildings which have given rise to the present reference, the Reformatory School appears to have
been used jointly by the Provincial and Central Governments immediately before the commencement of the Act. If this be so, this particular
building presents no difficulty, since it was in fact being used for what are now Central Government purposes, even if the user was a joint one; for
there is no provision in the Act for a vesting for joint purposes. We were also told in the course of the argument that part of the canal which has
given rise to a difference of opinion between the two Governments had been derelict for some time before the commencement of the Act, and
indeed that it still is. Whether this be so or not we have no means of knowing, but lands and buildings in fact derelict, in the sense that they are
being used neither for a Central nor for a provincial purpose, may, nevertheless, as it seems to us, be lands or buildings in the possession or under
the control of or held on account of a Government, within the meaning of Section 173, where these things and not user are the governing factors. In
the absence of anything else, it may even be that derelict property is to be regarded as under the control of the Government which has territorial
jurisdiction in the area where the property is situate. The determination of these matters, however, involves questions of fact on which we express
no opinion. That part of the canal which was, immediately before the commencement of the Act, still used for irrigation purposes in the Province of
Delhi must, we think, be held to have been used at that date for purposes which thereafter became Central Government purposes, since irrigation
and canals are a provincial subject, and the Central Government has all the powers of a Province in the centrally administered areas [Sections 8(1)
(a) and 100(4)]. It seems an irrelevant consideration that the Central Government may have found it convenient to request or permit the Punjab
Government to continue to administer so much of the canal as, after the separation of the Province of Delhi, was situate in that Province; and it
seems equally irrelevant that the canal forms part of the Punjab irrigation system and that the water in it comes from the Punjab.
We desire in conclusion to draw attention to entry No. 10 in List 1 of Schedule 7 and to entry No. 8 in List 2. The entry in List 1 gives the
Central Legislature the power to legislate with respect to works, lands and buildings vested in, or in possession of His Majesty for the purposes of
the Federation, but, as regards property situate in a Province, subject always to provincial legislation save in so far as a federal law otherwise
provides. It can legislate with respect to property situate in a Province because by virtue of Section 99(1) the Central Legislature may make laws
for the whole or any part of British India with respect to any of the matters enumerated in List 1. A Provincial Legislature however has, by virtue of
the same enactment, power to make laws for the Province only or for any part thereof, that is its legislative power is strictly confined to the territory
in the Province. Hence its power to legislate with respect to ""work, lands and buildings vested in or in the possession of His Majesty for the
purposes of the Province"" (List 2, entry No. 8) is restricted to works, lands and buildings situate in the Province itself. If, by reason of any
provisions of Section 172 or Section 178, lands or buildings are vested in His Majesty for the purposes of a Province outside the territorial limits of
the Province, the rights of the Provincial Government over them are analogous to those of a private owner. Accordingly we propose to report to
His Excellency that our opinion ion the questions submitted to us is as follows:
(1) Section 172 (1)(b), Government of India Act, 1935, does not make provision for the allocation of lands and buildings situate in a Chief
Commissioner''s Province which, immediately before the commencement of part 3 of the said Act, were vested in His Majesty for the purpose of
the Government of India and were at that date used wholly for purposes which thereafter became purposes of the Government of a Governor''s
Province.
It is not possible to give a general answer to the question whether Section 172(1)(b) of the said Act makes provision for the allocation of lands
and buildings so situate which, immediately before the commencement of Part 3 of the said Act, were vested in His Majesty for the purposes of the
Government of India and were used in part for purposes which thereafter became purposes of the Government of a Governor''s Province, since
this must depend on the question whether the lands and buildings were also used in part for purposes which thereafter became purposes of the
Central Government or for other purposes.
(2) The allocation of lands and buildings situate in a Chief Commissioner''s Province which immediately before the commencement of part 3 of the
said Act, were vested in His Majesty for the purposes of the Government of India but were used wholly for purposes which thereafter became
purposes of the Government of a Governor''s Province is governed by Section 173(1) of the said Act, if and so far as the said lands and buildings
were in the possession or under the control, or held on account of a Local Government; or if not by Section 178(1) then by Section 173(2), if and
so far as the said lands and buildings were under the control of the Secretary of State in Council.
(3) This question does not arise.