JUDGMENT <NAME>, J.

1. Shorn of details that are no longer relevant the facts of this case are as follows: The respondent was appointed Sub-Inspector of Police by <NAME>, Punjab, on January 2, 1911. On March 19, 1938, the Superintendent of Police, Amritsar, an officer subordinate to <NAME>, recorded an order purporting to dismiss the respondent from service. After exhausting his remedies by way of departmental appeal the respondent instituted a suit on April 14, 1942, against the Punjab Province claiming a declaration that the order of the Superintendent of Police of March 19, 1938, was void and of no effect inasmuch as it was made by an officer subordinate to the authority by which the respondent had been appointed and thus contravened the direction laid down in Section 240(2) of the Constitution Act. He also claimed arrears of pay from March 20, 1938, till January 2, 1941, the date on which he was normally due to retire from service. <ORG> gave the respondent the declaration prayed for but dismissed his claim for arrears of pay as not maintainable. On appeal, a division bench of <ORG> reversed the trial Court's finding on the last point but holding that by virtue of Article 102 of Schedule I to the Indian Limitation Act respondent was entitled to recover arrears of pay only in respect of such period of his service as fell within three years immediately preceding the institution of the suit, gave him a decree for Rs. 2,860 a sum representing 22 months' salary at the rate of Rs. 130 per mensem. A certificate under Section 205(1) of the Constitution Act was granted by <ORG>. The defendant has come up on appeal to this Court. The respondent has filed cross-objections claiming arrears of pay for the whole period from March 20, 1938, till January 2, 1941.

2. In view of the judgment of this Court in <NAME> v. The North-West Frontier Province [1941] F.C.R. 37 counsel for the appellant conceded that the purported order of dismissal made by the Superintendent of Police on March 19, 1938, was void and of no effect. His contention was that the plaintiff had no right to maintain a suit against the <ORG> or its representative for recovery of arrears of pay.

3. It is necessary to point out that this is not a case for recovery of damages for wrongful dismissal as was sought to be contended at one stage by counsel for the appellant. The order of March 19, 1938, purporting to dismiss the respondent having been made by an authority that had been expressly debarred by Section 240(5) of the Constitution Act from making it was utterly void of all effect. It was in the eye of the law no more than a piece of wastepaper. The position is that the respondent was never legally dismissed from service and continued in law to be a Sub-Inspector of Police till the date on which he was under the conditions of his service due to retire. He was thus entitled to draw his salary for the period of his service after March 19, 1938. The only question on this part of the case is whether he could recover the amount of that salary by means of a suit.

4. In <NAME> v. The North West Frontier Province this <ORG> made certain observations as to the nature of the relief to which a plaintiff would be entitled in a case like the one before us. It was there said (p. 52):-

It remains to consider what relief the plaintiff is entitled to, on the footing that the order of dismissal was void and inoperative. The plaintiff claims that he is entitled to a declaration to that effect. The decision in <NAME>'s Case seems to us to support this contention, though a declaration was in fact refused in that case on other grounds. The plaintiff is obviously not entitled to any relief by way of damages for wrongful dismissal. As the case has been diposed of by the <ORG> below on the preliminary issue, we are not in a position to say what other questions remain to be tried before the nature of the reliefs to be awarded to the plaintiff can be finally determined. It seems to us best in the circumtances to say that the plaintiff was at least entitled to a declaration that the order of dismissal passed against him was void and inoperative, and that the <ORG> below were not justified in dismissing the suit as wholly unsustainable.

We accordingly set aside the decree of <ORG> and remit the case with a declaration that there shall be substituted for the decree appealed against a declaration in the terms above stated, with such further directions as the circumstances of the case may require in the light of the observations in this Judgment....

5. On receipt of this Court's judgment, <ORG> remanded the case to the trial Court to hear and determine the plaintiff's claim to arrears of pay. The trial Court passed a decree in favour of the plaintiff for a certain sum in respect of arrears of pay. The plaintiff being dissatisfied with the amount of the decree carried the matter again on appeal to <ORG>. That Court increased the amount awarded to the plaintiff by a certain sum. Against the decree of the Judicial Commissioner the plaintiff sought to move this Court by application which was dismissed on the ground that he could only come up by way of appeal under Section 205 of the Constitution Act  F.C.R. 118. The Court went on, however, to observe (p. 114):-

There appears to be some force in his complaint that arrears of pay should have been awarded to him not merely up to the date of the institution of the suit, but to the date of a valid order of dismissal. We are, however, not in a position to say whether this point was urged before the Judicial Commissioner or why the award has been so limited. As the claim relates to a period subsequent to the institution of the suit the petitioner may have a separate remedy in respect of the same. But this involves no constitutional question and we do not sec how this Court is entitled to deal with it at this stage.

6. In Secretary of <ORG> for <CITATION>  F.C.R. 103 this Court was called upon to deal with a case in which it found (by a majority) that the plaintiff had been dismissed from the service of the Crown without having been given a reasonable opportunity of showing cause within the meaning of Sub-section (3) of Section 240 of the Constitution Act. On the question of the relief to be granted in such a case the majority observed (p. 141):-

That leaves only the actual remedy to be considered. As indicated earlier, Mr. <NAME> is not in our judgment entitled to a declaration that he has never been dismissed or that he still remains a member of the <ORG>. His proper remedy was in our judgment damages for wrongful dismissal in breach of the statutory obligations imposed by Sub-section (3) of Section 240 .

7. A consideration of these two judgments shows that this <ORG> has been of the opinion that in cases where a servant of the <ORG> is dismissed in contravention of the directions laid down in Sub-section (2) or Sub-section (3) of Section 240 , he has a remedy against the <ORG> which he can enforce by suit. In <NAME> v. <ORG>  F.C.R. 37 the <ORG> held that where the direction contained in Sub-section (2) of Section 240 had been contravened, the servant of the <ORG> was entitled to a declaration that the order of dismissal was void and inoperative, but it did not go on to determine whether he would be entitled to any further and, if so, what relief. The observation set out above from the order of the <ORG> in <NAME>'s case  F.C.R. 113 appears to indicate that the <ORG> assumed, though without debate, that the plaintiff would in such a case be entitled to recover arrears of pay. Where a servant of the <ORG> had been dismissed in contravention of the provisions of Sub-section (3) of Section 240 the <ORG> held that his remedy was damages for wrongful dismissal.

8. In <NAME> v. <NAME> for India in Council (1943) I.L.R. 19 Luck. 163 a case very similar to the one before us, <ORG>, of Oudh gave the plaintiff a decree for arrears of pay and the same course was adopted by <ORG> in <NAME> v. <ORG> [1945] A.I.R. Nag. 190.

9. It was, however, contended on behalf of the appellant that a servant of the <ORG> held office during His Majesty's pleasure and could be dismissed at will and that consequently he had no right to maintain a suit to recover arrears of pay. It was further contended that even if salary had been earned and had become payable in respect of any period, no suit could be maintained for its recovery inasmuch as the payment of salary by the <ORG> was a matter of bounty and was not a matter of legal right vesting in the public servant. It was urged that the <ORG> was by prerogative exempt from liability to be sued by its servants for recovery of pay and that the prerogative could not be derogated from by any contract express or implied between the <ORG> and its servants providing for payment of salary. The only manner in which the prerogative could be limited or modified was by statute.

10. This last proposition appears to us to run counter to the observations of their Lordships of <ORG> in <NAME> v. The King [1934] A.C. 176. Lord <NAME>, delivering the judgment of <ORG> in that case, observed (p. 178):-

The petition of right is founded on averments that there was a contract between the suppliant and the <ORG> and that the contract had been broken. Both Courts in Canada have decided that by reason of the statutory abolition of the office Mr. <NAME> was not entitled to any remedy, but apparently on different grounds. <NAME> that the relation between the holder of a public office and the <ORG> was not contractual. There never had been a contract: and the foundation of the petition failed. <NAME> judgment in <ORG> seems to admit hat the relation might be at any rate partly contractual; but he holds that any such contract must be subject to the necessary term that the <ORG> could dismiss at pleasure. If so, there could have been no breach.

Their Lordships are not prepared to accede to this view of the contract, if contract there be. If the terms of the appointment definitely prescribe a term and expressly provide for a power to determine 'for cause' it appears necessarily to follow that any implication of a power to dismiss at pleasure is excluded, This appears to follow from the reasoning of the <ORG> in <NAME> v. <NAME> [1896] A.C. 575. That was not the case of a public office, but in this connection the distinction between an office and other service is immaterial. The contrary view to that here expressed would defeat the security given to numerous servants of the <ORG> in judicial and quasi-judicial and other offices throughout the Empire, where one of the terms of their appointment has been expressed to be dismissal for cause.

11. It may be conceded that in the absence of express limitation a public servant in India holds office during His Majesty's pleasure. This has been recognised and given statutory effect in Sub-section (1) of Section 240 of the Constitution Act. It has, however, been made subject to the express provisions of the Constitution Act some of which are set out in the remaining sub-sections of Section 240 . These provisions operate as limitations upon the applicability of the doctrine of tenure during His Majesty's pleasure. It seems to us very doubtful whether the doctrine itself imports anything more than that the period of tenure of office of a servant of the <ORG> is liable to be terminated at His Majesty's pleasure and that in the absence of any express provision binding upon the <ORG> guaranteeing to a public servant a tenure terminable on other conditions a public servant may be dismissed from office at will. It follows, of course, that where office is held during pleasure and is terminated at pleasure, no claim can possibly arise to salary or remuneration in respect of a period subsequent to such termination. It is only in this sense that it may be said that where office is terminable at pleasure no claim to payment of salary or remuneration can arise after the pleasure has been exercised.

12. Section 240 runs as follows:-

(1) Except as expressly provided by this Act, every person who is a member of a civil service of the <ORG> in India, or holds any civil post under the <ORG> in India, holds office during His Majesty's pleasure.

(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

(3) No such person as aforesaid shall be dismissed reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him:

Provided that this subsection shall not apply-

(a) where a person is dismissed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where an authority empowered to dismiss a person or reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to give to that person an opportunity of showing cause.

(4) Notwithstanding that a person holding a civil post under the <ORG> in India holds office during His Majesty's pleasure, any contract under which a person, not being a member of a civil service of the <ORG> in India, is appointed under this Act to hold such a post may, if the Governor-General, or, as the case may be, the Governor, deems it necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.

13. Sub-sections (2) (3) and (4) are statutory limitations upon the right of the <ORG> to dismiss its servants at will. To the extent to which they go they are designed to confer security of tenure upon public servants. Sub-section (4) deals with a special class of case. Counsel for the appellant was constrained to admit that a person entitled to receive compensation under that sub-section could recover the amount of the compensation by suit, if payment was withheld; though no right of suit is expressly conferred by that sub-section. It was also conceded that a public servant dismissed in contravention of the direction contained in Sub-section (2) of Section 240 was entitled to maintain a suit for a declaration that the purported dismissal was void. It was contended, however, that in such a case no further relief could be given. There is nothing in the language of the section that compels us so to limit the relief that ought to follow upon contravention of its provisions.

14. It is useful to recall that while Sub-sections (1) and (2) of Section 240 reproduce the provisions of Section 96B of the Government of India Act, 1915, Sub-section (3) enacts in the form of a statutory provision that which theretofore had been only a matter of statutory rule. Sub-section (4) is new. We are of the view that <ORG> enshrined these provisions in the body of the Act deliberately in order to provide public servants with safeguards the contravention of which should give them a right of action for appropriate relief. The distinction between the consequences flowing from the contravention of a statutory rule, such as the provision corresponding to Section 240(3) then was and the contravention of a statutory provision itself, such as the provision corresponding to Section 240(2) contained in Section 96B of the Government of India Act, 1915, is well brought out in the judgments of <ORG> in <CITATION> for India (1936) L.R. 64 I.A. 55, s.c. 39 Bom. L.R. 699 and <CITATION> for India (1936) L.R. 64 I.A. 40, s.c. 39 Bom. L.R. 688. In the last case their Lordships observed (p. 53):-

...It is manifest that the stipulation or proviso as to dismissal is itself of statutory force and stands on a footing quite other than any matters of rule which are of infinite variety and can be changed from time to time. It is plainly necessary that this statutory safeguard should be observed with the utmost care and that a deprivation of pension based upon a dismissal purporting to be made by an official who is prohibited by statute from making it rests upon an illegal and improper foundation.

15. In Attorney-General v. De Keysers Royal Hotel [1920] A.C. 508 Lord Atkinson in the course of his speech quoted with approval a passage from a judgment of the Master of the Rolls to the following effect (p. 538):-

Those powers which the executive exercises without <ORG>ary authority are comprised under the comprehensive term of the prerogative. Where, however, <ORG> has intervened and has provided by statute for powers, previously within the prerogative, being exercised in a particular manner and subject to the limitations and provisions contained in the statute, they can only be so exercised. Otherwise, what use would there be in imposing limitations, if the <ORG> could at its pleasure disregard them and fall back on prerogative ?

16. Lord Atkinson went on to observe (p. 539):-

I further concur with him in his analysis of the provisions of the Acts passed in 1803, 1804, 1819, dealing with the public service. I agree that in all this legislation there is not a trace of a suggestion that the <ORG> was left free to ignore these statutory provisions, and by its unfettered prerogative do the very things the statutes empowered the <ORG> to do, but free from the conditions and restrictions imposed by the statutes.

It is quite obvious that it would be useless and meaningless for the <ORG> to impose restrictions and limitations upon, and to attach conditions to, the exercise by the <ORG> of the powers conferred by a statute, if the <ORG> were free at its pleasure to disregard these provisions, and by virtue of its prerogative do the very thing the statutes empowered it to do. One cannot in the construction of a statute attribute to the <ORG> (in the absence of compelling words) an intention so absurd. It was suggested that when a statute is passed empowering the <ORG> to do a certain thing which it might theretofore have done by virtue of its prerogative, the prerogative is merged in the satute. I confess I do not think the word 'merged' is happily chosen. I should prefer to say that when such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the <ORG> can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same-namely, that after the statute has been passed, and while it is in force, the thing it empowers the <ORG> to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.

17. It is thus obvious that the prerogative right of the <ORG> to dismiss its servants at will having been given statutory form in Sub-section (1) of Section 240 it can only be exercised subject to the limitations imposed by the remaining sub-sections of that section and it must follow as a necessary consequence that if any of those limitations is contravened the public servant concerned has a right to maintain an action against the <ORG> for appropriate relief. There is in our judgment no warrant for the proposition that that relief must be limited to a declaration and should not go beyond it.

18. It was urged that apart from the prerogative of the <ORG> to terminate the service of any of its servants at will there was the further prerogative that no servant of the <ORG> could maintain an action against the <ORG> to recover arrears of pay even after the pay had been earned and had become due and that this prerogative had been preserved in the case of India by Section 2 of the Constitution Act. In support of the first part of this proposition reliance was placed upon <CITATION> for India  P. 68 and the observations of Lord <NAME> in Mulvenna v. The Admiralty  S.C. 842 quoted therein.

19. The short answer to the argument based on Section 2 of the Constitution Act is that assuming, but by no means admitting, that such a prerogative obtains or did obtain in England and assuming further that the language of the opening part of the section is intended to include prerogatives of the <ORG>, it must be presumed that this prerogative had been abandoned in the case of India. That the will of the <ORG> to abandon a particular branch of its prerogative in respect of any territories may be collected from Treaties, Charters, Regulations, Statutes or other circumstances was recognised in the Mayor of the City of Lyons v. The Hon. East India Co. (1836) 1 M.I.A. 175, 285, et seq..

20. <CITATION> for India, Pilcher J. had to consider the question whether the sterling overseas pay of an Indian Civil Servant was a debt owing or accruing within the meaning of Rule 1 of Order XLV of the Rules of <ORG> which could be attached in satisfaction of an order for the payment of alimony, The learned Judge relying mainly upon the dictum of Lord <NAME> in <NAME> v. The <ORG> that public policy forbids a servant of the <ORG> successfully prosecuting any action against the <ORG> in respect of unpaid salary answered the question in the negative. In the course of his judgment he observed (p. 73):-

...The real point for decision in this case is this. If for any reason Mr. <NAME>, while continuing to hold his appointment in the Indian civil service and to discharge his duties, failed to receive the salary appropriate to his rank, or any salary, could he maintain an action in respect of the salary so unpaid against the <ORG> through its appropriate officer ? If no such action could successfully be maintained by Mr. <NAME>, it cannot be successfully argued by his wife that this is, even in the words of Order XLV., Rule 1, a debt owing or accruing from the <ORG> through the appropriate officer to Mr. <NAME> in respect of salary unpaid. While a study of the material sections of the various Government of India Acts might leave an Indian civil servant who was minded to take action against the <ORG> in respect of salary unpaid in very considerable doubt as to the appropriate officer to name as a defendant, there is, in my view, nothing in any of those Acts which lends any colour to the suggestions that Indian civil servants have been placed in a more privileged position than other servants of the <ORG> in respect of rights of action arising out of their appointment or their conditions of service against the <ORG> through its appropriate officer or department. While it would, no doubt, be competent to His Majesty by appropriate legislation to confer on his servant a right of action against his appropriate minister or department, the conference of such a right would be unusual, and one would expect to find it provided for in the most explicit terms. To discuss the sections of the Acts to which I was referred would merely be tedious, and it is sufficient for me to say that, in my view, the position of Mr. <NAME> and other members of the Indian civil service in regard to actions against the <ORG> or its appropriate officer arising out of their employment as servants of His Majesty is quite unaffected by the various provisions of the Government of India Act.

21. The point that the learned Judge had to decide was a very narrow one, namely, whether the whole or any portion of the salary of a member of <ORG> was liable to attachment in England in satisfaction of a judgment debt. If the learned Judge was seeking to discover how the law stood with regard to that matter in India, he would have found it set out in Section 60 and the other relevant provisions of the Civil Procedure Code. To these, it appears, the learned Judge's attention was, unfortunately, not invited. So far as this country is concerned, the salary of a public servant once it has become payable has always been treated as a debt due to him which is liable to attachment in satisfaction of a decree against him: see <NAME> v. <NAME> et al (1870) 7 B.H.C.R. (A.C.J.) 110. That was a case decided under the provisions of Act VIII of 1859.

22. The relevant portions of Section 60 of the Civil Procedure Code of 1908 run as follows:-

(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses, or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and, save as hereinafter mentioned, all other saleable property, moveable or immovcable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf:

Provided that the following particulars shall not be liable to such attachment or sale, namely:-

(i) salary to the extent of the first hundred rupees and one-half the remainder;

Provided that where such salary is the salary of a servant of the <ORG> or a servant of a railway company or local authority, and the whole or any part of the portion of such salary liable to attachment has been under attachment, whether continuously or intermittently for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months and, where such attachment has been made in execution of one and the same decree, shall be finally exempt from attachment in execution of that decree;

(j) the pay and allowances of persons to whom the Indian Army Act , 1911, or the Burma Army Act applies, or of persons other than commissioned officers to whom the Naval Discipline Act as modified by the Indian Navy (Discipline) Act, 1934, applies;

(k) * * *

(l) any allowance forming part of the emoluments of any servant of the <ORG> or of any servant of a railway company or local authority which the appropriate Government may by notification in the Official Gazette declare to be exempt from attachment, and any subsistence grant or allowance made to any such servant while under suspension;

* * * Explanation 1.-The particulars mentioned in Clauses (g) (h) (i) (j) (l) and (o) are exempt from attachment or sale whether before or after they are actually payable, and in the case of salary other than salary of a servant of the <ORG> or a servant of a railway company or local authority the attachable portion thereof is exempt from attachment until it is actually payable.

Explanation 2.-In Clauses (h) and (i) 'salary' means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of Clause (1) derived by a person from his employment whether on duty or on leave.

23. It is clear that this section treats all salaries including salaries of servants of the <ORG> as debts and as such liable to attachment. If the section had no proviso or explanation attached to it, its effect would have been merely to continue the law as it had stood under Act VIII of 1859, that is to say that the whole of the salary of a public servant was liable to attachment but could be attached only after it had become payable. The effect of Clause (i) of the proviso is that the salary of a servant of the <ORG> is exempt from attachment to the extent of the first hundred rupees and one-half the remainder, subject to the further proviso set out in the clause. The inference from Explanation 1 is that the attachable portion of the salary of a servant of the <ORG> may be attached before or after it becomes actually payable.

24. Attention may also be drawn to Order XXI, Rule 48, of the First Schedule to the Civil Procedure Code which prescribes the procedure for the attachment of the salary of a public servant. It runs as follows:-

(1) Where the property to be attached is the salary or allowances of a servant of the <ORG> or of a servant of a railway company or local authority, the <ORG>, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the <ORG>'s jurisdiction, may order that the amount shall, subject to the provisions of Section 60 , be withheld from such salary or allowances either in one payment or by monthly instalments as the <ORG> may direct; and, upon notice of the order to such officer as the appropriate <ORG> may by notification in the official Gazette appoint in this behalf,-

(a) where such salary or allowances are to be disbursed within the local limits to which this Code for the time being extends, the officer or other person whose duty it is to disburse the same shall withhold and remit to the Court the amount due under the order, or the monthly instalments, as the case may be;

(b) where such salary or allowances are to be disbursed beyond the said limits, the officer or or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to be disbursed shall remit to the <ORG> the amount due under the order, or the monthly instalments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time to be disbursed by the aggregate of the amounts from time to time remitted to the <ORG>.

(2) Where the attachable proportion of such salary or allowances is already being withheld and remitted to a <ORG> in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the appropriate <ORG> in this behalf shall forthwith return the subsequent order to the <ORG> issuing it with a full statement of all the particulars of the existing attachment.

(3) Every order made under this rule, unless it is returned in accordance with the provisions of Sub-rule (2), shall, without further notice or other process, bind the appropriate Government or the railway company or local authority, as the case may be, while the judgment-debtor is within the local limits to which this Code for the time being extends and while he is beyond those limits if he is in receipt of any salary or allowances payable out of His Majesty's Indian revenues or the funds of a railway company carrying on business in any part of British India or local authority in British India; and the appropriate Government or the railway company or local authority, as the case may be, shall be liable for any sum paid in contravention of this rule.

25. Sub-rule (3) is significant. Its effect is that save where an attachment order is returned in accordance with the provisions of Sub-rule (2), not only is the order binding on <ORG> but failure to obey it renders <ORG> liable for the amount which could have been stopped out of the judgment-debtor's pay. By virtue of these provisions of the Civil Procedure Code the disbursing officer is bound in obedience to a proper order of attachment to remit the attached amount to the <ORG> issuing the attachment for payment to the judgment-creditor. If he fails to do so and the amount is paid out to the judgment-debtor, <ORG> is liable to make the amount good to the decree-holder. Surely all this is utterly inconsistent with any notion of a public servant's salary being a matter of the bounty of the <ORG>.

26. For us to hold that while a creditor of a servant of the Crown was entitled as of right to compel the Crown to pay to him a substantial portion of the salary of such servant in satisfaction of a decree obtained against him the servant himself had no right to sue the Crown for recovery of arrears of pay, would be to lend our authority to an absurd proposition against which we must guard ourselves.

27. It may also be desirable to mention that by Section 292 of the Constitution Act it is expressly provided that all the law in force in British India immediately before the commencement of Part III of the Act is to continue in force until altered or repealed or amended by a competent <ORG> or other competent authority. Part of the law so in force in British India was the Civil Procedure Code of 1908. The result is that the very Act containing Section 240 itself confirms the provisions of the Civil Procedure Code above referred to. Section 240(1) must therefore be read not only with the sub-sections following but also with the relevant provisions of the Civil Procedure Code.

28. We must accordingly conclude that a servant of the <ORG> in India has the right to maintain a suit for recovery of arrears of pay which have become due to him. We agree with the learned Judges of <ORG> that the respondent was in this case entitled to a decree for arrears of pay.

29. Both sides asked our leave to raise the question of limitation and leave was granted. It was urged on behalf of the appellant that the claim for arrears of pay was governed by Article 115 and not by Article 102 of Schedule I to the Limitation Act . On behalf of the respondent it was contended that Article 131 or failing that Article 120 was applicable. We do not consider that either of these contentions is sustainable. Article 102 applies to suits for wages not otherwise provided for by the Schedule and covers in our judgment a suit to recover arrears of pay. For the respondent it was sought to be argued that pay or salary was not included in the term "wages". We do not see any warrant for placing so narrow a construction upon the word "wages" used in Article 102. The word occurs in Article 7 but that article is limited in its operation to suits for the wages of household servants, artisans or labourers. It occurs again in Article 101 which is a specific article governing suits for seaman's wages. In Article 102 it is intended in our judgment to cover all claims for wages, pay or salary, not otherwise expressly provided for in any other article of the schedule.

30. Article 115 is applicable to suits "for compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for." The period of limitation under this article is the same as under Article 102 , namely, three years and it begins to run "when the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases." We do not consider that on the face of it this article is applicable to this suit, but if it were, we fail to see how the appellant would be better off under this article than under Article 102. It is obvious that if this was a case of breach of contract, there were successive breaches at the end of each month and the respondent would still be entitled to recover arrears of pay which fell due within a period of three years before the institution of the suit. On this being pointed out counsel conceded that that was so and the point was not further pressed.

31. Article 131 applies to suits to establish a periodically recurring right. The period of limitation provided by the art. is 12 years and begins to run when the plaintiff is first refused the enjoyment of the right. A claim to recover arrears of pay is manifestly not one to establish a periodically recurring right.

32. Article 120 is applicable to suits for which no period of limitation is provided elsewhere in the Schedule. In our judgment the period of limitation for a suit to recover arrears of pay is provided for in Article 102 and Article 120 is thus not applicable.

33. In <NAME> v. <NAME> for India in Council (1943) I.L.R. 19 Luck. 163 the learned Judges of <ORG> applied Article 120 to a claim for arrears of pay. They relied upon <NAME>" for India in Council v. <NAME> (1892) I.L.R. 20 Cal. 51, F.B., <NAME> of Vizianagram v. <NAME>  Mad. 498, F.B. and Secretary of <ORG> for India in Council v. <ORG> (1935) I.L.R. 15 Pat. 510. In none of these cases the claim was for the recovery of arrears of pay.

34. We agree with the learned Judges of <ORG> that the claim to recover arrears of pay is governed by Article 102.

35. The appeal fails and is dismissed with costs.

Kania, J.

36. I agree. As the rights of a civil servant under the <ORG> have been discussed at length in the light of Section 240 of the Constitution Act, I desire to express my views on the point.

37. In <NAME> v. The North West Frontier Province [1941] F.C.R. 37 this Court held that if a person holding a civil post under the <ORG> in India was ordered to be dismissed by any authority subordinate to that by which he was appointed, the order was inoperative and of no effect so far as the civil servant was concerned. That decision is regarded as binding on this Court. The question therefore is whether in the present case after such an inoperative order was served on the respondent he had a right to claim any salary in a Court of law against the <ORG>.

38. It was contended for the appellant that every civil servant, except in special eases where it is otherwise provided by law, held office under the <ORG> during His Majesty's pleasure. It was urged that under the Common Law of England this has been accepted without any question: De Doshe v. <NAME> (not reported) decided by <ORG> on November 25, 1886, and referred to in <NAME> v. The Queen [1896] I.Q.B. 110. Strong reliance in this connection was placed on <CITATION> for India  P. 68 where Mr. Justice <NAME>, following the observations of Lord <NAME> in <NAME> v. The Admiralty  S.C. 842 held that it was an implied term of the employment of a civil servant that he could be dismissed at His Majesty's pleasure and that he had no right to claim through a <ORG> of law the salary during the period he had served the <ORG>. In that case the question arose in England on an attempt by the wife of the civil servant to attach money alleged to be payable to him for salary for the period he had worked under the <ORG>. That application for attachment was dismissed. On behalf of the appellant it was argued that Section 240(1) of the Constitution Act recognizes the principle that a civil servant holds office during His Majesty's pleasure and that is a prerogative of the <ORG>. It was urged that the question of salary was either a part of the same prerogative or was an independent prerogative of the <ORG>. If it formed part of the same prerogative, Section 240(1) recognised it and the <ORG> should therefore give effect to it. If it formed part of a separate prerogative, the same remained unaffected because of Section 2 of the Government of India Act, 1985. Omitting words which are not material to the present discussion, that section runs as follows:-

All rights...belonging to His Majesty the King, Emperor of India, which appertain or are incidental to the Government of the territories in India for the time being vested in him..., are exerciseable by His Majesty, except in so far as may be otherwise provided by or under this Act, or as may be otherwise directed by His Majesty.

39. It was contended that Section 240(2) and (3) limited the right of dismissal but did not give any remedy to the civil servant.

40. In my opinion these contentions cannot be accepted. The decided cases to which our attention has been drawn have nowhere held that this alleged prerogative of the <ORG> in respect of non-liability to pay salary has been extended to India. In <NAME> v. <NAME> [1895] A.C. 229, Lord <NAME> at page 235 expressly pointed out that this was not any special prerogative of the <ORG> but an implied or understood term of public service. The salary is described in some English decisions as a bounty, but I do not find any decision to support the contention that the option not to pay the salary is a prerogative of the <ORG>. If it is not a prerogative of the <ORG>, it is not saved by Section 2(1) of the Government of India Act, 1935. Moreover, in order to succeed, the appellant has to show not merely that it was a prerogative of His Majesty the King as recognised in England or by the English Courts. He has further to show that it is a prerogative which appertains or is incidental to the Government of the territories in India for the time being vested in His Majesty and was in existence before the Constitution Act came into force. Nothing is shown to that effect, With the exception of <CITATION> for India  P. 68 no decision or statute is pointed out which recognises such right as existing in respect of territories in India for the time being vested in His Majesty. According to Keith's Constitution of England (1940 edition) Volume 2, page 867, the question of the liability of the <ORG> to pay salary is not settled in England. In <NAME> v. The King  A.C. 176, Lord <NAME> observed as follows (p. 179):-

In this particular case their Lordships do not find it necessary to express a final opinion of the theory accepted in <ORG> that the relations between the <ORG> and the holder of a public office are in no degree constituted by contract. They content themselves with remarking that in some offices at least it is difficult to negative some contractual relations. Whether it be us to salary or terras of employment, on the one hand, and duty to serve faithfully and with reasonable care and skill on the other and in this connection it will be important to bear in mind that a power to determine a contract at will is not inconsistent with the existence of a contract until so determined.

These observations support the view that the right to dismiss at pleasure is only an implied term of service under the <ORG>, and not a special prerogative.

41. If this right is treated as a part of the right which is embodied in Section 240(1) , the question is one of construction. In Attorney General v. De <NAME>'s <ORG>A.C. 508 it has been pointed out by Lord <NAME> that when a prerogative is embodied in a statute the question is whether the field of the prerogative is intended to be taken by the statute. If so, nothing of the prerogative recognised under the Common Law remains to support the claim; the same must be based on the wording of the statute alone. It is a question of abridgment of the privilege and the statute alone has to be looked into to find out what remains of the common law doctrine. The prerogative power to do that thing is in abeyance. It is therefore necessary to ascertain from the words used in Section 240 what the <ORG> intended to do. Sub-section (1) records the common law doctrine that service under the <ORG> is during His Majesty's pleasure. The matter does not end there however. Sub-section (2) puts one limitation on the power to dismiss and provides who can dismiss a civil servant. Sub-section (3) contains a statutory provision of what steps should be taken before a civil servant could be dismissed. It may be noted that under the <ORG> of India Act of 1915 there was no such provision in the Act itself. The rules which were framed under the Act contained a similar provision. That, however, was construed by <ORG> in <CITATION> for India in Council (1936) L.R. 64 I.A. 40, s.c. 39 Bom. L.R. 688 as standing on a different footing, because the rules could be altered by the Governor General. When enacting the <ORG> of India Act of 1935 the <ORG> thought fit to include Sub-section (3) as a part of the statute itself. That creates another limitation on the right to dismiss. Sub-section (4) is new. In England it has been held that even if there was an express contract made by a representative of the <ORG> with the servant to employ him for a fixed number of years, that provision was against public policy and the right to dismiss at His Majesty's pleasure remained unaffected. It has been further held there that after the civil servant was employed under such a contract if he was dismissed he can have no claim for damages or compensation. Bearing in mind this state of the law in England, Sub-section (4) of Section 240 should be carefully noted. It permits the employment of a civil servant by the Governor General under a contract to hold such post for a certain period and further permits the contract that if the employment was terminated before the agreed period, for reasons not connected with any misconduct on his part, he should be paid compensation. It should be noted, that this sub-section also does not expressly provide for a right to sue the <ORG>. On a plain reading of the sub-section, however, it is clear that a right to sue under those circumstances must be considered as given to the civil servant, The word contract means an enforceable agreement. Enforceable must be at law. The stipulation about payment of compensation further supports that view. It will be meaningless to permit a contract for payment of compensation without there exising any remedy to enforce it. Such an intention cannot be imputed to the Imperial <ORG>. If, therefore, under Sub-section (4) a suit is permissible there is no reason why a suit cannot be permitted to enforce the rights given under Sub-sections (2) and (3). It was argued that the aggrieved person may file a suit to obtain a declaration that the provisions of Sub-section (2) and/or (3) were not complied with. Apart from the difficulty created by the words used in Section 42 of the Specific Relief Act, under which declaratory decrees are granted, such view is poor satisfaction to the aggrieved employee. It was argued that on such declaration being obtained the administrative side of the <ORG> are expected to respect the <ORG>'s decision and make payment. If the <ORG>, instead of leaving the provision in Sub-section (3) in the realm of rules only, as had been done under the <ORG> of India Act of 1915 and also in the case of <ORG> (see <NAME> v. The King  A.C. 176) thought fit to include that in the Constitution Act itself, it is difficult to assume that the <ORG> left the question of payment to the administrative side of the <ORG> and therefore made no provision for payment. A more rational reading of the whole section is that in all the three cases such remedy as the law under the circumstances permitted was left to the aggrieved civil servant. The argument that the privilege to the extent of the expressed words used in Sub-sections (2) and (3) only was waived cannot be accepted because the same argument would prevent a suit being filed by the civil servant under Sub-section (4), as it does not expressly provide for enforcing the payment of compensation by a civil suit. Neither in England nor in the <ORG> any legislation like Sub-section (2) (3) or (4) of Section 24O of the Constitution Act has been pointed out. No decision of the English <ORG>s showing the effect of such provisions in a statute has been cited at the bar.

42. The question whether the law in England and India is the same on this point should be further considered having regard particularly to the provisions found in the Civil Procedure Code. In this connection, Section 60(1) and Clause (i) and (j) of the proviso, and Expl. (2) should be noted. Under Section 60 , all property belonging to the judgment-debtor is liable to be attached. In stating the particulars of what may not be attached and sold, exemption, to a limited extent, is given in respect of the salary of a public servant. These provisions of the Civil Procedure Code were not noticed in <CITATION> for India  P. 68 as the application was made in England and the Civil Procedure Code of 1908 did not apply there. The provisions of Section 60 of the Civil Procedure Code give a right to the creditor to attach the salary of a servant of the <ORG>. There can be no dispute about that. If the contention of the appellant was accepted, the result will be that while the civil servant cannot recover the money in a suit against the <ORG>, his creditor can recover the same in execution of a decree against the civil servant. This right of the creditor to receive money in that manner has been recognised in innumerable decisions of all High Courts. There were similar provisions in the Civil Procedure Code of 1882 also. By reason of Section 292 of the Constitution Act, the Code of Civil Procedure of 1908 continues in force, in spite of the repeal of the Government of India Act of 1915. Could <ORG> in enacting Section 240 and being deemed aware of the provisions of Section 60 of the Civil Procedure Code, have thought it proper to give this privilege to a creditor, while denying it to the officer himself ? To hold so, the words of Section 240 of the Constitution Act will have to be unduly and unnaturally strained. Moreover in Expl. (2) of Section 60 the word 'salary' is defined. In the proviso to Section 60 , Clause (i), the word 'salary' is used as applicable to private employees and to Government servants also. The word 'salary' in respect of a private employee must mean an enforceable right to receive the periodical payments mentioned in the Explanation. In that connection it is not used in the sense of a bounty. It will therefore be improper to give the same word, when, used with regard to a civil servant under the <ORG>, a different meaning in the same clause. It seems to me therefore that <ORG> has not accepted the principle that the <ORG> is not liable to pay its servant salary for the period he was in service, as applicable to British India or as forming part of the doctrine that service under the <ORG> is at His Majesty's pleasure.

43. On the remaining points I have nothing to add. I agree that the appeal should be dismissed with costs.


JUDGMENT <NAME>, J.

1. This is an application directed against an order pasted by the <ORG> at <NAME> setting aside a sale in execution of a rent-decree under Order XXI, Rules 90 and 92 of the Civil Procedure Code.

2. It appears that the petitioner, <NAME> obtained a rent-decree, brought the holding to sale on the 16th February 1920, and purchased it himself. The sale was confirmed on the 22nd March, and possession was delivered on the 25th May. Thereafter, the petitioner sold the holding to one Punit, for about double the amount he had paid for it at the auction-sale. The opposite party applied on the nth September 1920 under Order XXI, Rule 90 to have the sale set aside on the ground of material irregularity in the service of notices and in the sale proclamation, and of fraud, He asserted that, by reason of the irregularities and fraud, an altogether inadequate amount had been paid for the holding, and that, owing to want of notice and fraud and his absence from the village by reason of illness, he had no knowledge, of the sale proceedings until the 26th August 1920.

3. The <NAME> held that notices had not been, properly issued, that an inadequte value was entered in the sale proclamation, that owing to this a wholly inadequate price had keen paid at the auction, that there had been fraudulent collusion between the decree-holder and judgment-debtor, and that notices had not been issued under Section 158-B to the co-sharer landlords of whom the opposite party was one. He, therefore, set aside the sale, holding that the opposite party's application was within time, since he had been kept out of knowledge of the proceedings by the petitioners until 26th August 1920. The District Judge has upheld the <NAME>'s findings and dismissed the petitioner's appeal.

4. The opposite party claimed to have purchased part of the holding and to have possession of another portion under a mortgage, the kabala and mortgage-deed having been executed before the suit of the decree-holder.

5. It is contended now before me that an application under Order XXI, Rule 90, to set aside a sale on the ground of fraud can only be made prior to confirmation of the sale, and that, therefore, the <ORG> had no jurisdiction to entertain the application of the opposite party.

6. I do not think that this contention can be supported. I have been referred to a decision by <ORG>, of <ORG>, <CITATION> 51 Ind. Cas. 447 but am not able to follow the reasoning given therein. Where the sale or an irregularity affecting the sale has, by the fraud of the decree-holder or other parties to the sale, teen kept concealed from the judgment-debtor, he is entitled to apply under Rule 90 whether the sale has been, confirmed or not, and. the time for making the application is to be computed from the date when the fraud first became known to him, <NAME> v. <NAME> 17 C. (sic) : 8 Ind. Dec. (N.S.) 1056; Gulam Ahad v. <NAME> 30 C. 142 at p. 153 : 7 C.W.N. 305. There is nothing iii Order XXL, Rule 90 which limits the filing of an application to the period prior to confirmation of the sale.

7. It is next contended that, in order to enable the opposite party to plead extension of time for his application to the date of knowledge, he must show that he was kept ignorant through fraud, and that there is no finding that in this case the petitioner, was aware of the opposite party's purchase and mortgage, or that he fraudulently withheld knowledge from him, the case being that the opposite party was away through illness. It has been found, however, that notices at various stages were not served, especially the notice required under Section 158-B, and the whole tenor of the decisions of the lower <ORG> is, that the petitioner purposely prevented service of notices.

8. The third ground taken is that the opposite party being a pun baser of only a portion of the holding and mortgagee of another portion, the landlord decree-holder was not bound to recognise him, end he had no right to file an application under Order XXI, Rule 90. This point was not taken in the lower Courts and I have not material before me to show whether the kobala and mortgage covered the whole of the holding so as to effect a transfer of the whole.

9. On the findings of the lower <ORG>, I can see no good ground to interfere. The application is rejected. Hearing fee three gold mohurs.


PETITIONER: COLLECTOR OF BOMBAY Vs. RESPONDENT: MUNICIPAL CORPORATION OF THE CITY OF BOMBAY AND OTHERS. DATE OF JUDGMENT: 05/10/1951 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> KANIA, <NAME>, M. PATANJALI AIYAR, N. CHANDRASEKHARA BOSE, VIVIAN CITATION: 1951 AIR 469 1952 SCR 43 CITATOR INFO : D 1955 SC 298 (22) RF 1968 SC 718 (22) F 1970 SC1778 (16) D 1971 SC2399 (8) R 1979 SC 621 (21,24) RF 1980 SC1285 (11) RF 1981 SC1937 (31) F 1985 SC 941 (4) ACT: Bombay City Land Revenue Act (II of 1876), s. 8--Resolu- tion of <ORG> granting land to <ORG> free of rent--Statutory formalities not complied with--<ORG> in possession for over 70 years and erecting costly struc- tures--Assessment to land revenue --Legality--Equitable estoppel--Part-performance--Acquisition of right to exemp- tion from assessment--Prerogative of <ORG>. HEADNOTE: In 1865, <ORG> called upon the prede- cessor in title of the <ORG> of Bombay to remove some markets from a certain site and vacate it, and on the appli- cation of the then Municipal Commissioner the <ORG> passed a resolution approving and authorising the grant of another site to the Municipality. The resolution stated further that "the <ORG> do not consider that any rent should be charged to the Municipality as the markets will be, like other public buildings, for the benefit of the whole community." The <ORG> gave up the sites on which the old markets were situated and spent a sum of over 17 lacs in erecting and maintaining markets on the new site. In 1940 the Collector of Bombay, overruling the objection of the <ORG>, assessed the new site under s. 8 of the Bombay City Land Revenue Act to land revenue rising from Rs. 7,500 to Rs. 30,000 in 50 years. The <ORG> sued for a declaration that the order of assessment was ultra vires and that it was entitled to hold the land for ever without payment of any assessment. <ORG> held applying the principle of <NAME> v. <NAME>(1) that the <ORG> had lost its right to assess the land in question by reason of the equity arising on the facts of the case in favour of the <ORG> and there was thus a limitation on the right of the <ORG> to assess under s. 8 of the said Act: Held per <NAME>, <NAME>, <NAME> and <NAME>. (<NAME> dissenting)--that the Govern- ment was not, under the circumstances of the case, entitled to assess land revenue on the land in question. Per <NAME>, <NAME> and <NAME> there was no effectual grant by the <ORG> passing title in the land to the <ORG> by reason of non-compliance with the statutory formalities, yet, inasmuch as the <ORG> had never-the-less taken possession of the land in terms of the <ORG> resolution and continued in such possession openly, uninterruptedly and as of right for over 70 years, the <ORG> had acquired the (1) (1866)L.R. 1 H.L. 129. 44 limited title it had been prescribing for during the period, that is to say, the right to hold the land in perpetuity free of rent, but only for the purposes of a market and for no other purposes. The right acquired included as part of it an immunity from payment of rent which constituted a right in limitation of the <ORG>'s right to assess in excess of the specific limit established and preserved by the <ORG> Resolution within the meaning of s. 8 of the Bombay City Land Revenue Act (II of 1876) there being for the purposes of this case no distinction between rent and revenue. Per <NAME> J.--If the Resolution of 1865 can be read as meaning that the grant was of rent-free land the case would come strictly within the doctrine of estoppel enunciated in s. 115 of the Indian Evidence Act. Even otherwise, if there was merely the holding out of a promise that no rent will be charged in the future the <ORG> must be deemed to have bound themselves to fulfil it. The right to levy assessment is a prerogative right of the <ORG> and it is hard to conceive of a ease where it could be said to be lost by adverse possession. A court of equity must prevent the perpetration of a legal fraud. <NAME> (contra)--The principle of <NAME> v. <NAME> cannot prevail against statutory requirements regarding disposition of property or making of contracts by <ORG>. No question of estoppel by representation arises, as the <ORG> made no representation of fact which it now seeks to deny. Nor can any case of estoppel by acquiescence be rounded on the facts of the case as there was no lying by and letting another run into a trap. No right of exemption has been established either on the basis of express or implied contract or on the basis of equitable principles of part-performance or estoppel by acquiescence. The right to levy land revenue is no part of the Govern- ment's right to property but a prerogative of the <ORG> and adverse possession of the land could not destroy the <ORG>'s prerogative to impose assessment on the land. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 44 of 1950. Appeal from a judgment and decree of <ORG> (<NAME> and <NAME>) dated 21st February, 1947, in First Appeal No. 64 of 1943.

<NAME>, Solicitor-General (<NAME>, with him) for the appellant.

<NAME> (<NAME>, with him) for the re- spondents.

1951. October 5. The Judgment of <NAME> <NAME>., <NAME> and <NAME> was read by <NAME> J. Patanjali Sastri and <NAME> delivered separate Judgments.

DAS J.--This is an appeal from the judgment of a Bench of <ORG> (<NAME> and <NAME>.) delivered on February 2, 1947, in an appeal filed under section 18 of the Bombay City Land Revenue Act 11 of 1876 against the judgment of the Revenue Judge at Bombay delivered on October 27, 1942, in a suit filed by the respondents, <ORG>, and <NAME>, the then Municipal Commissioner for the City of Bom- bay, against the Collector of Bombay.

There is no substantial dispute as to the facts leading up to this litigation and they may be shortly stated. In 1865, <ORG>, having decided to construct an Eastern Boulevard, called upon <ORG> for the City of Bombay, the predecessor in title of the respondent <ORG>, to remove its then existing fish and vegetable markets from the site required for the construction of the Boulevard. The then Municipal Commissioner Mr. <NAME>, after whom the present municipal market was named, applied for the site set aside for the exhibition buildings on the Esplanades for the pur- pose of constructing new markets as the existing markets could not be removed until new markets had been provided. On December 5, 1865, <ORG> informed the Government that it had no objection to the proposed she measuring about 7 acres being "rented to the Municipal Commissioner" and suggested that "the annual charge of one pie per square yard be levied in consideration of the expense of filling in the ground." Computed at this rate, the annual rental would have amounted to about Rs.

176. On December 19, 1865, the Government passed the fol- lowing resolution :--

"(1) Government approve of the site and authorise its grant.

(2) The plans should be submitted for approval; but Government do not consider any rent should be charged to the Municipality as the markets will be, like other public buildings, for the benefit of the whole community."

Pursuant to the aforesaid Resolution, possession of the site was made over to the then Municipal Commis- sioner, but no formal grant was executed as required by Statute 22 & 23 Vic. C. 41. It has nowhere been con- tended that even if the statutory formalities had been complied with the grant upon the terms mentioned in the Resolution would nevertheless have been invalid being in excess of the powers of the <ORG>. The Municipal Com- missioner had the site filled up and leveled at the expense of the <ORG>. The plans were approved by the Govern- ment and the market buildings were erected by the Corpora- tion at considerable expense. The respondent <ORG> was incorporated in 1888 as the successor of the <ORG> of the Justices of the Peace for the City of Bombay and it continued in possession of the land and the buildings with- out paying any rent to the <ORG> according to the <ORG> Resolution of 1865. Indeed, it is pleaded in paragraph 7 of the plaint and it is not denied in the writ- ten statement that acting upon the said grant contained in the Resolution and the terms contained therein the respond- ent <ORG> and its predecessor spent considerable sums of money in building and improving the market and have been in possession of the land and the buildings thereon for over 70 years in accordance with the terms of the Resolution and that no land revenue or rent had been paid to the <ORG> ever since the grant was made. It is in evidence that besides giving up the sites on which the old markets had been situate, a total sum of Rs. 17,65,980-12-1 has been spent by the <ORG> up to March 31,1940, in filling up and leveling the site and erecting. and maintaining the new market buildings on this site. In 1911, a portion of the market site was acquired by the <ORG> for the widening of the Palton Road. Upon the Collector of Bombay being called upon to put in ,his claim, if any, to any part of the compensation money awarded by the Land Acquisition Officer, the Superintendent,, City Survey, on behalf of <ORG>, replied that <ORG> had no claim in respect of the said land. The respondent <ORG>, therefore, received the whole of the compen- sation money and it continued in possession of the rest of the land and the buildings thereon without payment of any rent. On March 18, 1938, the appellant Collector of Bombay informed the respondent Municipal Commissioner that it was proposed to assess the land occupied by the Crawford Market under section 8 of the Bombay City Land Revenue Act II of 1876 and asked for certain information to enable him to do so. In his reply, the Municipal Commissioner wrote to say that the site of the market had been given to the Municipal- ity as a gift for the construction of the market and that, therefore. the question of assessment did not arise. The appellant Collector of Bombay having insisted that in spite of the <ORG> Resolution of 1865 the <ORG> had the right to assess the site, the Mayor of Bombay on March 23, 1939, wrote a letter to the <ORG> stating, inter alia, as follows :--

"The <ORG> have been advised that there can be no doubt that it was the intention of <ORG> to make a permanent grant of the land to the Municipality, and, fur- ther, that it was also the intention that permanent grant should be free from rent and from assessment to land reve- nue. I am to point out that the word 'rent' was. used in official documents with the greatest frequency with refer- ence to the land revenue leviable by <ORG> and later by <ORG> in the City of Bombay and in the Presidency. It is, therefore, clear that it was the inten- tion of <ORG> in 1865 that this grant should be free from any form of rent or assessment. The <ORG> were put into possession for a period of over 70 years, during which period the land has without interruption been devoted to the purpose for which the grant was made. Throughout this long period there has been no suggestion from Govern- ment that the grant was other than a permanent one, free of revenue, or that the terms of the grant were in any way subject to revision,"

The above contentions were repudiated by <ORG> in its letter of January 1, 1940, in the following terms:-

" As regards the contention that the land has been held by the Municipality uninterruptedly for over 70 years with- out any suggestion from Government that it was liable to assessment, I am to state the right to levy the assessment is the prerogative of the <ORG> and a mere non-user of this prerogative cannot destroy it. Besides, conditions have considerably altered since the land was originally allotted to the Municipality without charging any ground rent or assessment; the Municipality has been recovering substantial rents by letting out stalls in the market and should now be in a position to pay the assessment. Under the circum- stances, the levy of assessment in this case can no longer be foregone or postponed."

On January 31, 1940, the appellant Collector assessed the land under section 8 of the Bombay Act II of 1876 with a guarantee of 50 years as under :--

"Assessment Rs. 7,500 per annum for the first 10 years from 1st April, 1940.

Assessment Rs. 15,000 per annum for the next 10 years. Assessment Rs. 30,000 per annum for the remaining 30 years."

The assessment was to begin to run from I st April, 1940, and the first payment of the assessment was to become due on 1st April, 1941. The present suit was thereupon filed in <ORG> in accordance with the provisions of the Bombay City Land Revenue Act, 1876, for the following reliefs, inter alia :---

"(a) that it may be declared that there is a right on the part of the plaintiff <ORG> in limitation of the right of Government to assess the said land and that the plaintiff <ORG> is entitled to hold the said land for ever without payment of any assessment and that the Govern- ment has no right to assess the said premises,

(b) That the said assessment may be declared ultra vires, invalid and may be ordered to be set aside."

By his judgment dated October 27, 1942, the learned Revenue Judge dismissed the suit with costs. The Corpora- tion appealed to <ORG>. Before <ORG>, as before us, two of the learned Revenue Judge's conclusions were not challenged. namely, (1) that the Government Resolu- tion of 1865 was-bad in law either as a grant or even as a contract and could not by itself operate to give any inter- est in the land to the respondent <ORG> because of the non-compliance with the formalities required to be observed by Statute 22 & 23 Vic. C. 41 in the matter of disposition of all real and personal estate vested in the <ORG> under Statute 21 & 22 Vic. C. 106, and (2) that the <ORG>'s right to levy assessment on property was a prerogative right to which the ordinary presumption that rights to property which had not been asserted or exercised for a long period of years had been granted away did not apply- What was urged before and accepted by <ORG> was that the right of the Government to levy any assessment on the land in ques- tion had been lost and could not be asserted or exercised by the Government by reason of the equity arising on the facts and circumstances of the case in favour of the respondent <ORG> on the principle established by the decision in <NAME> v. Dyson(1) which was adopted by Jenkins C.J. in <CITATION> (2) and which equity was, on the authorities, bind- ing on the <ORG>. After dealing with the cases of <NAME> v. The Collector of Bombay(3) and <NAME> v. The Collector of Bombay(4) <ORG> observed :--

"We think, on a reading of the language of the Govern- ment Resolution dated the 19th December, 1865, that we should be justified in holding (within the meaning of the rule in <NAME> v. <NAME>) that an expectation was created or encouraged by the landlord (1) (1866) L.R. 1 H.L. 129. (3) (1901) I.L.R. 25 Bom.

714. (2) (1905) I.L.R. 29 Bom. 580. (4) (1901) I.L.R. 25 Bom.

752.  that the Municipality was to get possession of the land rent-free and that the latter took possession of the land with the consent of the landlord, and upon such expectation, with the knowledge of the landlord and without objection by him, laid out money upon the land."

According to <ORG> the rule of equity enunciat- ed in <NAME> v. <NAME> (supra) was not, as pointed out by <NAME> in <CITATION> (supra), dependent on the validity of the disposition and could be asserted even where the statutory formalities relating to the disposition of the property had not been observed and performed, and that this equity constituted a right on the part of the respondent <ORG> in limitation of the right of the <ORG> in consequence of a specific limit to assessment having been established and preserved within the meaning of section 8 of the Act II of 1876 so as to disentitle the <ORG> from assessing the land in question. <ORG> relied on the decision in <CITATION> (1) in support of their view that section 8 of the Bombay Act II of 1876 would apply even where the specific limit was nil. In the result, <ORG> reversed the decision of the learned Revenue Judge, allowed the appeal and passed a decree declaring the rights of the respondent <ORG> and awarding to it the costs in both Courts. The Collector of Bombay appealed to <ORG> and the appeal has now come up for hearing before us. There has been considerable discussion before us as to the precise scope and effect of the principle of equity enunciated in <NAME> v. <NAME> (supra), as to whether such principle should be extended to the facts of the present case, whether the facts 'of this case attract the applica- tion of the equity established in <NAME> v. <NAME> (supra)or attract the equity established in <NAME> v. <NAME> (2) and <NAME> v. Lonsdale(3) and finally as to whether, in view of the decision (1) (1937) 39 Bom. L.R. 1046. (3) (1882) L.R. 21 Ch. D. 9.

(2) (1883) L.R. 8 App. Cas. 417.

of <ORG> in <CITATION> (1), the equity in <NAME> v. <NAME> (supra) can prevail against the requirement of formalities laid down in the Victorian Statute referred to above any more than the equity in Maddison v. <NAME> (supra)can do against the requirements of the Transfer of Property Act and whether the decision in <CITATION> (2) requires reconsideration in the light of the deci- sion in <NAME>'s case (supra). In the view we have taken, it is not necessary to go into, and to express any opinion on, any of these questions, for this appeal can, in our opinion, be disposed of on a narrower and shorter ground. The Government claims to assess the lands in terms of section 8 of the Bombay Act II of 1876 which runs thus :--

"8. It shall be the duty of the Collector, subject to the orders of <ORG>, to fix and to levy the assessment for land revenue.

Where there is no right on the part of the superior holder in limitation of the right of <ORG> to assess, the assessment shall be fixed at the discre- tion of the Collector subject to the control of <ORG>.

When there is a right on the part of the superior holder in limitation of the right of <ORG>, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit."

The sole question for our consideration is whether, on the facts of this case, the respondent <ORG> has succeeded in establishing in itself a right in limitation of the right of the <ORG> to assess the land in conse- quence of a specific limit to assessment having been estab- lished and preserved. There is no dispute that by reason of the non-compliance with the statutory formalities the Gov- ernment Resolution of 1865 is not an effectual grant passing title in the land to the respondent <ORG> and is not also an enforceable (1) (1931) L.R. 58 I.A. 91. (2) (1905)I.L.R. 29 Bom.

580. contract. On the other hand, there is no doubt as to the existence of an intention on the part of the <ORG> to make and on the part of the <ORG> to take a grant of the land in terms of the Resolution of 1865 including an undertaking by the <ORG> not to charge any rent. Both parties acted on the basis of that Resolution and the prede- cessor in title of the respondent <ORG> went into possession of the land in question pursuant to the Govern- ment Resolution of 1865 and, acting upon the said Resolution and the terms contained therein, the respondent <ORG> and its predecessor in title spent considerable sums of money in leveling the site and erecting and maintaining the market buildings and have been in possession of the land for over 70 years. What, in the circumstances was the legal position of the respondent <ORG> and its predecessor in title in relation to the land in question ? They were in possession of the land to which they had no legal title at all. Therefore, the position of the respondent <ORG> and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under color of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such pos- session not being referable to any legal title it was prima facie adverse to the legal title of the <ORG> as owner of the land from the very moment the predecessor in title of the respondent <ORG> took possession of the land under the invalid grant. This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent <ORG> has acquired the limited title it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the <ORG> Resolution of 1865. The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose. There is no question of acquisition by adverse possession of the <ORG>'s prerogative right to levy assessment. What the respondent <ORG> has acquired is the legal right to hold the land in perpetuity free of rent for the specific purpose of erecting and maintaining a market upon the terms of the <ORG> Resolution as if a legal grant had been made to it. The right thus acquired includes, as part of it, an immunity from payment of rent which must necessarily consti- tute a right in limitation of the <ORG>'s right to assess in excess of the specific limit established and preserved by the <ORG> Resolution within the meaning of section 8 of the Bombay Act II of 1876. It is true, as pointed out by <ORG> in <CITATION> (supra) that the words of the section would appear to apply rather to the case of a limitation on the right to assess than to the case of a complete exemption from assessment but such a construction would not protect the cases of total exemption which, as conceded in that very case, did in fact exist and were recognised and protected by virtue of the words of section 8 of the Bombay Act II of 1876. It has not been suggested before us that there are no cases of total exemption or that those cases are protected by any provision of law other than that of this very sec- tion. There is, therefore, no escape from the conclusion arrived at by <ORG>, with which we concur, that the words of section 8 would apply to a case where total exemp- tion from assessment was granted. In other words, specific limit may be nil for the purposes of section 8 of the Act. It was sought to be argued that even if the <ORG> be precluded from enhancing the "rent" in view of the terms of the <ORG> Resolution, it cannot be held to have disentitled itself from its prerogative right to assess "land revenue". This contention is sought to be rounded on a distinction between "rent" and" land revenue". This conten- tion, however, was not raised in the written statement and was not made the subjectmatter of any issue on which the parties went to trial and was never put forward before either of the Courts below. Indeed, in the letter of the Mayor of Bombay dated March 22, 1939, to which reference has been made, it was clearly alleged that the word "rent" was used in official documents with the greatest frequency with reference to the land revenue leviable by <ORG> and later by the <ORG> in the City of Bombay and in the Presidency." In the <ORG>'s reply dated January 24, 1940, also quoted above this assertion was never repudiated or denied. In the premises, the appellant cannot be permit- ted at this stage to raise this contention rounded on the supposed distinction, if any, between "rent" and "land revenue" and for the purpose of this case we must proceed on the basis that the word "rent" in the <ORG> Resolution of 1865 was synonymous with or included" land revenue."

In our opinion, for reasons stated above, the actual decision of <ORG> was correct and this appeal should be dismissed with costs, and we order accordingly.

<NAME> of opinion that this appeal should be allowed and I will briefly indicate my reasons without recapitulating the facts which have been fully stated in the judgment of my learned brother <NAME> which I have had the advantage of reading.

The appeal concerns a claim by <ORG> Bombay to charge land revenue on a plot of land on which the predecessors of the respondent Municipality erect- ed the buildings known as the Crawford Market in the City of Bombay. It is common ground that the land in question would be assessable to land revenue under section 8 of the Bombay City Land Revenue Act (No. II of 1876) unless the respondent established "a right in limitation of the right of <ORG> in consequence of a specific limit to assessment having been established and preserved", in which case, the assessment must not exceed such specific limit. It has been held, and it is not now disputed, that the words quoted above cover a right of total exemption from assessment, the "specific limit" in such a case being nil (see <NAME> v. Collector of Bombay (1). The only question, therefore, is whether the respondent has established a right to such exemption.

The resolution of the Government dated 19th December, 1865, authorising the grant of the land without "any rent being charged to the Municipality as the market will be like other buildings for the benefit of the whole community" did not by itself purport to pass title to the land in question or to confer on the Municipality a right to exemp- tion from land revenue. Admittedly no formal instrument was executed either granting the land or exempting it from assessment. Nor could the resolution be regarded as a valid disposition of property or an enforceable contract not to charge revenue on the land, as it did not comply with the requirements of the statute 22& 23 Vic. C. 41 which pre- scribed certain formalities to be observed for such transac- tions. As pointed out by <NAME> in Municipal Corpora- tion of the City of Bombay v. The Secretary of <ORG> (2) all land in British India having been vested in the <ORG> by 21 & 22 Vic. C. 106, the Governor-in-Council in Bombay could not dispose of property or enter into a contract on behalf of the <ORG> except in exercise of the power bestowed on them for the purpose under 22 & 23 Vic. C. 41, and that power could be exercised only by observing the formalities prescribed by that statute. The learned Judges of <ORG>, while recognising this difficulty in the way of the respondent establishing a legal right to exemption from assessment, held that the conduct of <ORG> in allowing and, indeed, encouraging the respondent to erect the buildings at great cost on the faith of the prom- ise not to charge land revenue contained in the Resolution of 19th December, 1865, precluded the respondent on the equitable principle recognised in <NAME> v. <NAME> from assessing the land in question, and that this (1) L.R. 64 I.A. 334. (3) (1866) L.R. 1 H.L. 129.

(2) (1905) I.L.R. 29 Bom. 580.

equity was a "right" in limitation of the right of <ORG> to assess.

I am unable to share that view. There is, in my opin- ion, no room here for the application of the principle of <NAME> v. Dyson(1). That decision has been explained by <ORG> in <CITATION> (2) as based on the equitable doctrine of part performance which, their Lord- ships held, could not be applied so as to nullify the ex- press provisions of the Transfer of Property Act relating to the creation of leases. They observed :-

Whether an English equitable doctrine should, in any case, be applied so as to modify the effect of an Indian statute may well be doubted; but that an English equitable doctrine, affecting the provisions of an English statute relating to the right to sue upon a contract, should be applied, by analogy, to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only be created by means of a registered instrument, appears to their Lordships, in the absence of some binding authority to that effect, to be impossible."

After quoting the well-known passage in the judgment of Lord Kingsdown, their Lordships commented thus :--

"It will be noticed that Lord <NAME> is dealing with the case of express verbal contract or something 'which amounts to the same thing.' He nowhere puts the case of estoppel; the word is not mentioned. He would appear to be dealing simply with the equitable doctrine of part perform- ance. His reference to <NAME> v. <NAME> [(1811) 18 Ves. 3281 confirms this view, for that case was simply an earlier instance of the application of the doctrine. Even if Lord <NAME>'s language was intended to cover something beyond the equitable doctrine of part performance in relation to the Statute of Frauds, and was intended to refer to circum- stances in which a court of equity will enforce (1) (1866) L.R. 1 H.L. 129. (2) (1931)58 I.A.

91. a title to land against the person who at law is the owner thereof, the title must, nevertheless, in their Lordships' view, be based either upon contract express or implied, or upon some statement of fact grounding an estoppel."

In the later decision in <CITATION> - horned(1) their Lordships reiterated the same view and held that English equitable doctrines did not afford in India a valid defence to an action in ejectment based on title. After these decisions of <ORG> elucidating the principles underlying Ramsden v. Dyson(2) and <NAME> v. Alderson(3), it seems to me clear that they have no application to the facts of the present case. They can no more prevail against the statutory provisions regarding the disposition of property or the making of contracts by Gov- ernment than against the provisions of the Transfer of Property Act requiring registered instruments for effecting certain classes of transactions. No question of estoppel by representation arises, for the Government made no represen- tation of fact which it now seeks to deny. Nor can any case of estoppel by acquiescence be rounded on the facts of the case. Both parties knew the facts and neither was misled. There was no lying by and letting another run into a trap [per Cotton L.J. in <NAME> v. Watts(4)]. The conduct of the parties was referable to the express agreement evidenced by the Government Resolution of 19th December, 1865, to make a grant of the land free of rent (which, in such context, means and includes revenue). No question, therefore, of any implied contract could arise. Unfortunately for the respond- ent, the express agreement was unenforceable owing to non- observance of the prescribed statutory formalities, though it was acted upon by both sides. No question arises here as to the respondent's title to the land which apparently has been perfected by lapse of time. But it is clear that no right of exemption has been established either on the basis of express or implied (1) (1878) 6 I.A. 388. (3) (1883) 8 App.

Cas. 467.

(2) (1866) L.R. 1 H.L. 129. (4) (1884) 25 Ch. D.

559.  contract or on the basis of the equitable principles of part performance or estoppel by acquiescence. It was next contended that, on the analogy of the line of cases holding that a limited interest in land could be acquired by adverse possession for over the statutory peri- od, the respondent's possession of the land in dispute without payment of any quit rent or revenue for over 70 years to the knowledge of the. <ORG> perfected its title to hold the land free from liability to pay land revenue. It is difficult to appreciate the argument so far as the claim to exemption is concerned. There is no question here of acquisition of a limited interest in land by adverse possession. The respondent was asserting full ownership and a right of exemption from assessment and the <ORG> agreed with that view as shown by their letter dated 26th June, 1921, to the Land Acquisition Officer for the City of Bombay wherein they stated that "no <ORG> claim in respect of the land under acquisition (a portion of the land here in question) in the above mentioned case is made as the land vests in the Municipality." Be it noted that the <ORG> made no claim even to a portion of the compensa- tion on the basis of any right of resumption reserved to them, the Resolution of 1865 having made no such reserva- tion. The position then was that throughout the period of adverse possession, the respondent Municipality regarded itself and was regarded by the <ORG> as absolute owner of the land with the additional right of exemption from assessment to land revenue with the result that the Govern- ment's "right to such property" (the subject of adverse possession) was "extinguished" under section 28 of the Limitation Act. But the right to levy land revenue was no part of the <ORG>'s right to the property. It is a prerogative right of the <ORG> which was placed' on a statu- tory basis under the Bombay City Land Revenue Act of 1876, and could be exercised in respect of a land only. on the footing that it belonged to another, the "superior holder", for, the claim to levy assessment itself implies a recogni- tion of ownership in another. It is, therefore, difficult to see how adverse possession of the land could entitle the respondent to exemption from assessment of land revenue. It was said that the <ORG> having intended to grant the land on the terms that it was to be held free of quit rent or revenue and the respondent having held the land on such terms claiming it to be exempt from assessment, a title to hold it on those terms was perfected by the adverse possession, the covenant for exemption from assessment forming part and parcel of the title. In other words, the respondent should be placed in the same position as if the <ORG> had made a valid revenue free grant. The argument is, to my mind, fallacious. If the <ORG> had given effect to their expressed intention by executing an instru- ment in writing observing the due formalities, the respond- ent would, no doubt, have secured a valid title to the property with a contract binding the <ORG> not to charge revenue, supported as it was by consideration. But, as already stated, the <ORG>'s promise not to charge land revenue was unenforceable from the inception, and the respondent's adverse possession of the land, though accompa- nied by a claim to exemption from revenue, could not destroy the <ORG>'s prerogative right to impose assessment on the land. A somewhat analogous question arose in <NAME> v. Collector of Bombay(1). The <ORG> admitted that no land revenue had ever been charged in respect of the land which was enjoyed by the holders for more than a century without payment of revenue and it was urged that in virtue of such a long enjoyment a lost grant of the land on the terms that it should be held free from liability to pay revenue must be presumed. Rejecting that contention, their Lordships observed :--

"The appellant submits that in the circumstances a lost grant should be presumed, and that this lost grant should be presumed to have contained an exemption from land revenue or a 'right in limitation of the right (1) (1937) 64 I.A. 334.

of Government to assess the property. The law may presume the existence of a grant which has been lost where it is sought to disturb a person in the enjoyment of right which he and his predecessors have immemorially enjoyed, but it is a different thing to seek to presume that the <ORG> has by some lost grant deprived 'itself of the prerogative power to tax the property of its subjects, and their Lordships are of opinion that this plea is untenable." (italics mine). The decision shows that exemption from land revenue does not form part and parcel of the title to land but is collateral to it. If a presumed lost grant could not cover it neither could title by adverse possession. I would allow the appeal but make no order as to costs. <NAME> had the advantage of reading the judgment prepared by my learned brother; Mr. Justice <NAME>, and 1 agree in the conclusion he has reached; but i wish to add a few words of my own on some of the points that have been discussed during the course of the hearing. In the first place, there can be little doubt that the word "rent" in paragraph 2 of the Government Resolution of the 19th December. 1865, means "assessment ". It is true that this word is used generally in cases of landlord and tenant, but when it is remembered that here the Govern- ment was parting with the land vested in the <ORG> in favour of <ORG>, it can safely be assumed or presumed that they were thinking not merely of their rights as landlord but also of their prerogative right as well. That the land was going to be used for the build- ing of markets for the benefit of the whole community and, therefore, should not be charged with rent is a considera- tion more relevant and appropriate to the prerogative right to assess than to a right to collect rent in respect of a transaction of lease. Moreover, it is well-known that when- ever we speak of a rent-free grant of an inam by the Government, what is meant is land revenue or assessment.

The Resolution in question authorized the grant of the site. There is apparently no grant in writing, conforming to the formalities prescribed by the law then in force. Part of the site was wanted for the erection of stables and the question of title to that portion was considered and decided in <CITATION> for India in Council (1), where the Government gave the Municipality notice to quit and brought a suit for rent on the alleged determination of the tenancy. It is part of the same transaction with which we are concerned now, and it seems to me that there was no valid grant. The grant having been authorized, the Corpora- tion went into possession and it is not denied that they have built the Crawford Market at enormous cost. Though the grant was invalid, the <ORG> has now acquired a title by adverse possession to the site; this, however, is not the case with reference to the stable site covered by the afore- said Bombay decision. There the question was brought before the Court, well within the 60 years' period. The Crawford Market site has been in the possession of the Municipal <ORG> for over 60 years under an invalid grant, a term of which was that no rent should be charged. We are not concerned now with any question of ejectment or determination of tenancy. Could it be said that the right to levy assessment on the land, enjoyed without any payment of any kind so far, was lost by adverse possession ? I find it difficult to give an affirmative answer. Before a right could be said to be acquired or lost by adverse possession, it must have been the subject of possession by a man without title as against the person with the rightful title. Right to levy assessment is a prerogative right of the Government and it is hard to conceive of a case where it could be said to be lost by adverse possession. True, there can be adverse possession of a limited (1) (1904) I.L.R. 29 Bom. 580.

right like that of a mortgagee or a lessee or even a perma- nent tenant, but still a right must have been enjoyed by the possessor adversely to the claim of the true owner. It is unnecessary to go into the wider question whether the denial of the right to levy assessment and possession of property coupled with this denial for over a period of 60 years will negative that right; it is sufficient to say that no right to levy assessment was exercised in the case before us before March, 1938, and the denial was only afterwards. This, however, does not determine the case in favour of the appellant, as there is a question of equity to con- sider and on which the appellant failed in the court below. In fact, it is the crucial point for determination. When <ORG> proposed to levy a nominal rent, the Government stated that no rent need be charged, as the markets to be built were for the benefit of the whole community. This was a representation made by the Government when the site was given and possession was taken. How far this representation was taken into consideration when <ORG> took possession of the site under the grant is not necessary to be considered at any great length. It is just possible that they would have taken the site even with the nominal rent, but it is equally possible that had they known that the rent was in the nature of assessment and liable to enhancement from time to time or periodically, they would have insisted on getting a site free from assessment in consideration of the sites they gave up for forming the eastern Boulevard. The allegation in.paragraph 7 of the plaint that the <ORG> acted on the faith of the terms contained in the grant has not been denied by the Government.

The accident that the grant was invalid does not wipe out the existence of the representation of the fact that it was acted upon by the <ORG>. Even if the suit had been brought within 60 years for ejectment and the <ORG> had no answer to such a claim, the right to levy assessment might have conceivably stood on a different footing. In any event, there can be no doubt that it would have been competent for <ORG> to give compensation for the expenditure and protect the possession in the meantime. Lord <NAME> refers to this aspect of the matter in <NAME> v. <NAME> (1). In the present case, the <ORG> stands on much firmer ground. They have acquired a title to the land which the <ORG> cannot upset or challenge. This acquisition of title is as a result of the law of limitation. It has nothing to do with any conduct on the part of the Corpora- tion which can be said to have rendered the representation about non-liability to assessment of no legal effect or consequence. The invalidity of the grant does not lead to the obliteration of the representation.

Can the Government be now allowed to go back on the representation, and ,if we do so, would it not amount to our countenancing the perpetration of what can be compendiously described as legal fraud which a court of equity must pre- vent being committed? If the resolution can be read as meaning that the grant was of rent-free land, the case would come strictly within the doctrine of estoppel enunciated in section 115 of the Indian Evidence Act. But even otherwise, that is, if there was merely the holding out of a promise that no rent will be charged in the future, the Government must be deemed in the circumstances of this case to have bound themselves to fulfil it. Whether it is the equity recognised in <NAME>'s case(1), or it is some other form of equity, is not of much importance. Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power. As pointed out by <NAME> in <NAME> case (2), a different conclusion would be "opposed to what is reasonable, to what is probable, and to what is fair."

I am of the opinion that the decision of <ORG> in <CITATION> (3) is not applicable to the facts before us, as the doctrine of part performance (1) (1866) L.R. 1 H.L. 129.

(2) <NAME> v. The. Collector of Bombay (1901) I.L.R,. 25 Born. 714.

(3) (1931) 58 I.A. 91.

is not being invoked here as in that case, to clothe a person with title which he cannot acquire except by the pursuit of or in conformity with certain legal forms. Here, as pointed out already, the <ORG> became the full and absolute owner of the site on the lapse of SO years from the date of the grant.

Appeal dismissed.

Agent for the appellant: <NAME>.

Agent for the respondent: <NAME>.