3. The General Orders by the Governor General in Council (1836)
The General Orders by the Governor General In Council-Regulations Orders Relating to the grant of Sites of Lands In Cantonments-General
Order by the Governor General in Council No.179,dated 12th September, 1836, is the repeatedly cited Order when the Army wants to take away lands In Mhow. This totally ignores the very fact that Mhow was never in the Bengal Presidency or in British for that matter.
A true copy of the Govt of India, Defence Department, letter N015/45/L/ CEL/44, Dated the 18 April 1944 to the GOC-In -Chief, central command, Mhow Cantt, Amendment of General Land Record /GLR/. Rearls:
"Reference your memorandum no. W - 5027-LC-1, dated the 31st march 1944 on the above subject. The Cantonment of Mhow is situated in the Holkar territory. Neither the Military authorities nor Crown representative possess any rights in land more than those of user. The proprietary rights in the land vest In the State Darbar. who are the real lord".
The proposed amendment viz the substitute the word Crown representa- tive in Column 8/ land lord/of the G.L.R. is therefore incorrect. It is considered in the circumstances that the Column be kept blank. as the word "Govern- ment of India". which at present as entered there on in many cases is also not correct.
Issued under the authority of the Crown Representative."
No such record has ever been produced as proof by the
Union of India
Next in importance is the fact that despite the elaborate rules of procedure and for keeping records, as per the quotes that follow, in the case of Mhow, no such record has ever been produced as proof by the Union of India, despite repeated requests on offers of payment, when they have tried to resume properties belonging to civilians.
This Governor General's Order clearly lays down in paragraphs 2, 3, 4 and 5 the procedure for grant of land, its registration and the maintenance of land records. Paragraphs 6 and 7 pertain to the power of Resumption i.e., taking back, without payment, what the government claims to be its own, from people who were said to have been just permitted the use of the same.
Citing the above Order 179/1836 (Applies to Bengal only).
The Order rescinds all previous Orders in force in the Bengal Presidency in relation to the occupation of ground and the disposal of premises situated in the limits of the military cantonments and replaces these by the above mentioned Order.
1. "Applications for land - Alteration of boundaries of sites and closing or opening of roads - All applications for unoccupied ground for the purpose of being enclosed, built upon or in any way appropriated to private purposes, such ground being within the limits of a military Cantonment are, in the first instance, to be made to the Commanding Officer of the Station through the usual channel and in no case are the boundaries of compounds to be changed , old roads or new ones opened without the sanction of the Commanding Officer.
2. Certificate by Commanding Officer - As the health and comfort of the troops are of paramount considerations, "to which all other must give way, the Commanding Officer will be held responsible that no ground is occupied in any way calculated to be injurious to either, or to the appearance of the cantonment: and, in forwarding any application for a grant, he must certify that it is not objectionable in those or any other respects.
3. Orders of Government required - when no objection occurs, the application is to be forwarded through the prescribed channel, by the Commanding Officer of the Station, to the Quarter Master General of the Army, who, if the Commander - in -Chief approves, will submit it for the orders of Government.
4. Form of Application - All such applications are to be in the annexed form Marked 'A'.
5. Grants to be Registered and Noted on Plan - All grants are to be registered by the Officer of the Quarter Master General's Department attached to the division, and, at stations where no such officer may be present, by the Executive Officer of Public Works, to whom also in such cases, applications for ground are to be addressed: and all grants are to be Immediately noted upon the plan of the cantonment in the Quarter Master General's Office.
6. Conditions of Occupancy - No ground will be granted except on the following conditions, which are to be subscribed by every grantee as well as
by those to whom his grant may subsequently be transferred :-
1st Resumption of Land - The Government to retain the power of resumption at any time on giving one month's notice and paying the value of such buildings as may have been authorized to be erected.
2nd Land belongs to Government. Land cannot be sold by grantee. Transfer of houses between military officers - the ground, being in every case the property of the Government, cannot be sold by the grantee: but houses or other property thereon situated may be transferred by one Military or Medical Officer to another without restriction except in the case of reliefs, when, if required, terms of sale or transfer are to be adjusted by a Committee of Arbitration.
3rd Arbitration in case of Transfer on Relief - transfer of house to civilian .
If the ground has been built upon, the buildings are not to be disposed of to any person, of whatever description, who does not be- long to the army, until the consent of the Officer Commanding the Station shall have beer. previously obtained under his hand.
4th Transfer to Native - When it is proposed, with the consent of the General Officer, to transfer possession to a Native, should the value of the house, buildings or property to be so transferred exceed Rs. 5000/ -,the sale must not be effected until sanction of the Government shall have been obtained through His Excellency the Commander-in-Chief.
7. Power to require owner to let house to Military Officer - The owner of any house in a Military Cantonment not occupied by a person be- longing to the Army on duty at the station, or by a person in the service of Government directed or authorized by Government to reside therein ,may be required to rent the same to any military officer belonging to the Station who may require it to reside in if the officer Commanding the Station is satisfied that there is no other suitable house available with due regard to the rank of the claimant and to the duties he may have to perform.
Vacation of house on sale to another Military Officer - in every such case, however, if the owner shall have formally intimated to the Officer who has so obtained the house his desire to sell rather than let it, and the offer have not been accepted, the officer shall at any time be required to vacate it within a week of his receiving notice, through the Brigade Major or Station Staff Officer, that the house has been sold, with the consent of the Commanding Officer of the Station, to another Military Officer on duty at the station who requires it for his own residence.
Committee of Arbitration - The rent to be paid in such cases, or the price to be paid for the house when the claimant accedes to the owner's desire that he shall purchase it, shall be fixed in the event of the parties disagreeing to the amount, by a Committee of Arbitration constituted as follows ....."
Despite the British having passed this Order. it must be noted that there is no known case of this Order having been implemented by the British dur- ing their entire tenure In India. Just because there is an enabling provision. there is no compulsion to exercise it.
The British governed Mhow under the Indian Foreign Jurisdiction Acts. When the British left in 1947. they retro ceded to the Indore State the canton- ment of Mhow. All British laws ceased to apply except those that the state chose to continue to apply.
4. The Mhow Cantonment fell into the
Presidency of Bombay (1874)
The second crucial thing to note is that even though the Bengal army was posted in Mhow, the Mhow Cantonment fell into the Presidency of Bombay.
Orders under the Administrator General's
Act, II of 1874, as to Presidencies within which Native States should be included, provides alphabetical lists:
The Presidency of Bombay included: 'Barvai, Barwani, Bhopal, Dewas, Dhar, Indore - the whole state, excepting the district of Alampur, Jaora" and so on and on.
In the Presidency of Bengal, one sees a long list starting with Ajaigarh and ending with "Holkar's district of Alarnpur".
The Gazette of India, New Delhi, Saturday, April 17,1937, Part 1-A- notification relating to Crown Representative and Authorities subordinate to him further corroborates, ' In exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1937, and of all other powers enabling him in that behalf, the Crown Representative is please to make the following order :-
"this Order may be cited as the Central India Administered Areas (Application of laws) Order, 1937 .... 'Administered Areas' means the cantonments of Mhow and Neemuch. the Indore Residency area. the Bhopal Agency Area and the Civilian lines of Nowgong".
It is also clear from the preamble of the Cantonments Act. 1924 that it has been enacted for the administration of Cantonments. Section 110 of the Act provides that any land required by a Cantonment Board can be acquired under the provisions of the Land Acquisition Act 1894. i.e. .. through the agency of the State Government.
Merely stationing of the troops in a place does not take away property rights of the owner. A cantonment can be established on private property- as in the cases mentioned above. And there is absolutely no basis on which to presume that lands comprised in a cantonment. ipso facto belong to the Central Government.
5. Mhow Cantonment is not British India
(The Cantonments Act of 1924)
The Bye Laws under The Cantonments Act of 1924, having force of law in the Cantonment of Mhow and published under the authority of the Mhow Cantonment Board have a preface which starts "Mhow Cantonment Is not British India". In exercise of the Foreign Jurisdiction powers, the Cantonments Act, 1924 has been applied to the Cantonment with modifications. These modifications and the subsequent changes made by the Amending Acts subject to which the Act has been applied should be noted when reading the Act. ..... 'Therefore any changes made in the Rules applicable to British India do riot apply to Mhow but when it is intended to apply them to Mhow a special notification is issued by the Foreign Department of 40rnment of India to that effect" .
6. The Indore Land Revenue and Tenancy Act No.1 of 1931
In Chapter IV, S.27 the Indore Land Revenue and Tenancy Act No.1 of 1931 (Section 57 of M P and Revenue Code 1959), relates to the General Conditions regarding Land. The entire land of the State and all water standing on, or flowing over, any part of it is the property of the Maharaja, no person may occupy any portion of such land or water without lawful authority'.
The Holkar State promulgated the Nazul Law in 1870. According to it, the land being used by private persons for municipal purposes, including residence and commercial activities was given over to them. They became "Bhumiswamis"
7. The Gazette of India - Extra Ordinary,
New Delhi, Tuesday, August 12, 1947
The Gazette of India - Extra Ordinary, New Delhi, Tuesday, August 12, 1947 carries the Notification of the Political Department.
New Delhi, the 9th, August, 1947, No, 219-P:-
"Whereas the jurisdiction heretofore exercised by the Crown representative in the area known as the Mhow Cantonment will, with the effect from the 14th day of August, 1947, be restored to His Highness tl1 Maharaja Holkar of Indore.
Now therefore, in exercise of the powers conferred by the Indian (Foreign Jurisdiction) Order in Council, 1937 and of all other powers enabling him in that behalf the Crown Representative is pleased to direct that with effect from the said 14th day of August, 1947.
All Notifications issued under the Indian (Foreign Jurisdiction) Order in Council, 1937, whereby specific provision was made for the said area whether by the making of laws for or the application of laws to the said area or for the administration of justice therein, or otherwise, shall be cancelled".
According to the Holkar Government Gazette Extraordinary, Indore, Thurs- day 14th August 1947, Government of His Highness The Maharaja of Holkar Foreign Department, notifies:
"Government of His Highness the Maharaja Holkar are pleased to announce that His Excellency the Crown Representative has been pleased to
retrocede to them with effect from the 14th August 1947, the jurisdiction exercised by him in the area now comprising the cantonment of Mhow".
Signed by the R. A. Horton, Prime Minister and K.B.Wag1e, Foreign Secretary .
Fresh Orders that followed included:
"1. That the Cantonment of Mhow for the purposes of this Order shall be called the Cantonment.
2. That all the laws of Holkar State shall apply to the Cantonment. Only such of the existing laws in force in the Cantonment as are hereinafter specified shall continue in force temporarily in the Cantonment after retrocession."
The Cantonments Act No.11 of 1924 as amended up-to date would remain in force subject to certain modifications such as:
1. References to Crown shall be construed as references to His Highness the Maharaja Holkar;
2. References to Central Government, Crown representative or Resident shall be construed as references to the Government of his Highness the Maharaja Holkar' etc.
By a Holkar State Cabinet Resolution No.1216, dated 14th August 1947, it decided:
a) To allow the Defence Department to remain temporarily in occupation of any buildings and land which they may occupy .
b) To extend to Military Units any facilities in regard to training which they now enjoy.
c) To exempt Military equipment from Holkar State import and export duties and to extend to Military personnel the same exemption from Holkar State taxation and import and export duties which they now enjoy,
That as regards to the question of leases etc. it should be treated in the same way as in the case of the retrocession of the Indore Residency Area".
The Indore Land Revenue and Tenancy Act No. I of 1931 of the govt. of His Highness the Maharaja Holkar applied to Mhow and it was made abundantly clear-that Mhow would be treated at par with Indore in all land related Issues.
8. The Holkar Government Gazette-Extraordinary-
Published by Authority - Indore,
Thursday 14" August, 1947
The Holkar Government Gazette -Extraordinary - Published by Authority -Indore, Thursday 14" August, 1947, Government of His Highness the Maharaja Holkar- carries His Highness' Message to his People in Hindi and in English .
"My beloved people,
I have this day signed the revised Instrument of Accession to the Dominaion of India for the purposes of the Defence of the Motherland against external aggression and for control of external affairs and of communications. I have also accepted the Stand Still Agreement for the continuance of the existing arrangements regarding such matters as Posts and Telegraphs, Railways, Currency and Coinage and other such subjects which are obviously of mutual benefit to us all.
As you are aware, it has always been my earnest wish to preserve the essential unity of our country and to this end I have striven hard over many years. Unfortunately, it has been found necessary to divide the country in order to secure independence for its people. More unfortunately still, this division has been caused by communal and religious differences. As you know, in my State and what is known as Indian India we ARE a united people.
I an
d my government have been entirely non-sectarian so that all my people feel that, whatever their caste or creed, everyone was assured complete equality socially, in my judgment and before the law. It has been in order to secure the continuance of these essentials for the happiness of my people that I have striven, during recent months, to preserve the rights and powers I have hitherto exercised and by means of which we have for so long enjoyed peace denied to our brethren in what was known as British India.
I am happy to Inform you that, under the Instrument of Accession as now agreed to, it is specifically provided that nothing shall affect the continuance
of my Sovereignty in and over the State or the exercise of the powers and authority and Rights now enjoyed by me as Ruler save as provided by the Instrument in respect of the three subjects I have mentioned above. I know that you, my people, will in future, as in the past, continue to assist me in my task and will give to me that unswerving loyalty and devotion which has enabled me to serve you. I, on my part, again assure you of my firm intention to associate you, my people, more and more in the governance of my State so that it shall be truly representative. of the interests and desires of all of you. To this end, I have instructed my Government this day to acquaint you with the further immediate reforms which I am at once introducing under the Constitution, as it now stands, and with the steps which I am taking to revise the present Constitution so as further to advance the object I have in view at the earliest possible moment.