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1955 (4) TMI 42 - SUPREME COURT

1955 (4) TMI 42 - SUPREME COURT - 1955 AIR 540, 1955 (2) SCR 164 - W.P.(C) 337 of 1954 - Dated:- 6-4-1955 - BHAGWATI, NATWARLAL H., MUKHERJEE, BIJAN KR. (CJ), DAS, SUDHI RANJAN, AIYYAR, T.L. VENKATARAMA AND IMAM, SYED JAFFER. Rajni Patel and I. N. Shroff, J.B. Dadachanji and Rajinder Narain, for the Petitioners. M.C. Setalvad, Attorney-General for India, C. K. Daphtary, Solicitor-General for India (P. A. Mehta, R. H. Dhebar for P. G. Gokhale, with them), for the Respondents. JUDGMENT: The Judgme .....

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President gave his assent to it on the 13th June 1954 and by a notification dated the 15th July 1954 it was brought into effect from the 1st August 1954. In view of the notification the Petitioners filed these petitions on the 30th July 1954 challenging the vires of the Act (hereinafter called the impugned Act) and asking for the issue of appropriate writs restraining inter alia the State of Bombay from giving effect to its provisions. On applications made to this Court on the 31st July 1954 th .....

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343 of 1954 is a relation of the Ruler of the erstwhile State of Rajpipla. The Petitioners in Petition No. 340 of 1954 are jagirdars of the erstwhile State of Rajpipla. The Petitioner in Petition No. 348 of 1954 is a relation of the Ruler of the erstwhile State of Bansda. The Petitioners in Petitions Nos. 365 and 366 of 1954 are jagirdars of the erstwhile States of Idar and Lunawada respectively. The Petitioner in Petition No. 481 of 1954 is a relation of the Ruler of the erstwhile State of Moha .....

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agirdar" being holders of agir villages within the meaning of the definition thereof contained in the impugned Act. The Petitioner in Petition No. 364 of 1954 claims to be the owner of 60 villages in the patta or territory of Moti More comprised in the erstwhile State of Idar as the Bhumia or under-lord and contends that his holding does not fall within the definition of jagir as given in the impugned Act and that therefore in any event the State of Bombay is not entitled to enforce -the im .....

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re in the form given in Appendix XIII to the White Paper at page 183: "FORM OF MERGER AGREEMENT SIGNED BY RULERS OF GUJARAT AND DECCAN STATES AGREEMENT MADE THIS day of between the Governor-General of India and the of Whereas in the immediate interests of is desirous that the administration of the State should be integrated as early as possible with that of the Province of in such manner as the Government of the Dominion of India may think fit; It is hereby agreed as follows:- ARTICLE 1. Th .....

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shall with effect from the said day be entitled to receive from the revenues of the State annually for his privy purse the sum of rupees free of taxes. This amount is intended to cover all the expenses of the Ruler and his family, including expenses on account of his personal staff, maintenance-of his residences, marriages and other ceremonies, etc. and will neither be increased nor reduced for any reason whatsoever. The said sum may be drawn by the in four equal instalments in advance at the be .....

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If any dispute arises as to whether any item of property is the private property of the or State property, it shall be referred to such officer with judicial experience as the Dominion Government may nominate and the decision of that officer shall be final and binding on both parties. ARTICLE 4. The shall be entitled to all personal privileges enjoyed by them whether within or outside the territories of the State, immediately before the 15th day of August 1947. ARTICLE 5. The Dominion Governmen .....

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t;. The letters of guarantee subsequently executed by the Ministry of States in favour of the respective Rulers contained the following guarantees:- "(1) Your privy purse will be fixed in accordance with the formula applied in relation to the fixation of the privy purse of the Deccan States Rulers whose States have merged into the Bombay Province. The amount will be fixed in perpetuity to you, your heirs and successors, and will neither be increased nor reduced for any reason whatsoever. It .....

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bari or private properties (as distinct from State Properties) belonging to you on the date of your making over the administration of your State to the Dominion Government. Darbari properties will include palaces, houses, residences, guest houses, stables, garages, quarters, outhouses, etc. which are at the date of transfer of administration in bonafide personal use or occupation of the Ruler or members of his family or personal staff, irrespective of whether the property is situated in the Capi .....

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of its public services who have retired or have proceeded on leave preparatory to retirement before 1st April 1948 as also the enjoyment of the ownership of Khangi villages, lands, jagir, grants, etc. existing on 1st April 1948 are hereby Guaranteed. This guarantee is without prejudice -Co -the right of Government of Bombay to issue any legislation which does, not discriminate against the states and their subjects. (6) All emblems, insignia, articles and other Paraphernalia of the Ruler will be .....

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urt in India against you, whether in a personal capacity or otherwise, in respect of anything done or omitted to be done by you or under your authority during the period of your administration of the State. (9) Every question of disputed succession in regard to a Gujarat State which has signed an agreement integrating the administration of the State with that of the Province of Bombay shall be decided by a Council of Rulers of Gujarat States after referring it to the High Court of Bombay and in .....

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of its members to be the President of the Council. The President and the members of the Council will hold office for a term of five years from the date on which they enter upon the duties of their respective offices. 2.The contents of this letter will be regarded as part of the merger agreement entered into by you with the Governor- General of India". The contention which has been urged before us by the Petitioners relying upon clause 5 of the Letters of Guarantee aforesaid is that the enj .....

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discriminate against the states and their subjects, the impugned Act was ultra vires in as much as no legislation could be undertaken which would have the effect of depriving the holders of the jagirs of their ownership over the same and the provisions of the impugned Act were in any event discriminatory against the States and their subjects or in other words the impugned Act was confiscatory and also discriminatory. It was contended on the other hand on behalf of the State of Bombay that the a .....

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the Rulers of the respective states and to which the Government of Dominion of India was a party and that therefore this Court had no jurisdiction to interfere in the said disputes by virtue of the provisions of article 363 of the Constitution, that the State Legislature had plenary powers of legislation within the ambit of its sphere unless the Constitution itself expressly prohibited legislation on the subject either absolutely or conditionally, that no such prohibition could be spelt out of t .....

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ication of the same could not be challenged as void on the ground that it was inconsistent with or abridged any of the rights conferred by any provisions of Part III of the Constitution, and that therefore the impugned Act could not be challenged as violative of any of the fundamental rights of the Petitioners. It was also urged that none of the provisions of the impugned Act were confiscatory or in any manner whatever discriminatory, fair and adequate compensation having been provided for the a .....

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inion Government devolved upon the Province of Bombay when the erstwhile States which were parties to the agreements of merger and the letters of guarantee became merged in the Province of Bombay, under clause 8 of the States' Merger (Governors' Provinces) Order, 1949 (Appendix XLIV, White Paper, Page 297), that these obligations were thus deemed to have been undertaken by the Dominion Government on behalf of the absorbing Province, viz., the Province of Bombay and were binding upon the .....

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er urged that the State of Bombay was thus bound by all the obligations which bad been undertaken by the Dominion Government under the agreements of merger and letters of guarantee above referred to, and it could not lie in the mouth of the State of Bombay to repudiate the same. This argument is not without force, but we do not consider it necessary to decide this question because even assuming that the State of Bombay was bound by these obligations, the question still remains how far the Petiti .....

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matter of obtaining the same and the subject of these States were therefore represented by the Rulers and were entitled to the benefit of whatever obligations were undertaken by the Dominion of India qua the States and their subjects. It is therefore arguable that the Rulers of the erstwhile States as also their subjects would be in a position to enforce these obligations. This position was however sought to be negatived by relying upon the following observation of their Lordships of the Privy .....

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abitant of the territory can make good in the municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of predecessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts. The right to enforce remains only with the .....

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r otherwise of these contentions also for the simple reason that the Petitioners would be out of Court either way. If they were deemed to be parties to the agreements of merger and letters of guarantee they would be faced with the bar to the maintainability of the petitions under article 363 of the Constitution which lays down that neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad .....

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he provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which the Government of the Dominion of India was a party. According to the Petitioners they merely challenged the vires of the impugned Act and relied upon clause 5 of the letters of guarantee in order to establish the position that the State Legislature had no legislative competence to legislate on the subject of the abolition of jagirs. That .....

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tee. The Petitioners relied upon clause 5 of the letters of guarantee which had been obtained by the Rulers of the erstwhile State from the Dominion Government and complained that the State Legislature had enacted the impugned Act which it had no power to enact having regard to clause 5 of the said letters of guarantee and were wrongfully depriving the Petitioners of the jagirs, the ownership of which had been guaranteed thereunder. The whole of the petitions were nothing else except the claim t .....

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ument of Accession through its Ruler. The State next complains that, acting beyond the powers given over under the Instrument of Accession, the Dominion of India and the State of Bihar are trespassing wrongfully on its legislative and executive functions, that the Dominion of India and the State of Bihar are making laws which they have no power to make, having regard to the Instrument of Accession, and are wrongfully interfering with the administration of the State beyond the rights given to the .....

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ould not therefore be urged that what the Petitioners were doing was not to enforce the obligations undertaken by the Dominion Government under the agreements of merger and the letters of guarantee, or that the disputes between the parties did not arise out of the provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which the Government of Dominion of India was a party within the meaning of Article 3 .....

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tate Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists II & III of the Seventh Schedule to the Constitution. It was conceded on behalf of the Petitioners that .....

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of the letters of guarantee. It was contended that under the terms of clause 5 an absolute guarantee had been given by the Dominion Government in regard to the enjoyment of the ownership of jagirs and that the Dominion Government and therefore the State of Bombay were precluded from enacting any legislation which had the effect of destroying that ownership. This contention however could not be supported by the terms of clause 5 which embodied in the first part thereof the terms of the guarantee, .....

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covered the whole of the guarantee embodied in the first part of the clause and there was nothing in these terms which would go to show that the ownership of the jagirs could not be touched and the legislation, if any, was to be enacted in regard to certain incidents of enjoyment of such ownership. The right of the Government of Bombay to issue any legislation with regard to the enjoyment of the ownership of jagir lands was expressly reserved and this right covered also legislation in regard to .....

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te Legislature the Petitioners would have had a right to challenge the impugned Act on the ground that it discriminated against the States and their subjects. The fetter or limitation upon the legislative power of the State Legislature which had plenary powers of legislation within the ambit of the legislative heads specified in the Lists II & III of the Seventh Schedule to the Constitution could only be imposed by the Constitution itself and not by any obligation which bad been undertaken b .....

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came to the conclusion that the Constitution itself had expressly prohibited legislation on the subject either absolutely or conditionally the power of the State Legislature to enact legislation within its legislative competence was plenary. Once the topic of legislation was comprised within any of the entries in the Lists II & III of the Seventh Schedule to the Constitution the fetter or limitation on such legislative power had to be found within the Constitution itself and if there was no .....

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they would not be able to have their grievance redressed by this Court for the simple reason that the State Legisla- ture was at all events competent to enact the impugned Act not being fettered at all by the terms of clause 5 of the letters of guarantee. The provisions of article 294(b) of the Constitution which is said to have transferred the obligations of the Government of the Province to the State of Bombay would not by involving the transference of the obligation undertaken by the Dominion .....

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Tenancy Act XVII of 1939 in Thakur Jagannath Baksh Singh v. The United Provinces 1943 F.C.R. 72 at page 87:- "We desire, however, to point out that what they are now claiming is that no Legislature in India has any right to alter the arrangements embodied in their sanads nearly a century ago; and, for all we know, they would deny the right of Parliament itself to do so. We hope that no responsible Legislature or Government would ever treat as of no account solemn pledges given by their pred .....

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e Privy Council in Thakur Jagannath Baksh Singh v. The United Provinces 1943 F.C.R. 72 at page 122 and we also would observe in the same strain that we are not concerned with the policy of the State Legislature in enacting the impugned Act for abolition of jagirs but we are only concerned with the question whether the impugned Act was validly enacted. No argument has been advanced before us which would enable us to hold that the impugned Act was ultra vires the State Legislature, the only ground .....

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ovisions of the impugned Act were discriminatory against the States and their subjects within the meaning of clause 5 of the letters of guarantee. We have not thought it necessary to refer to the same in view of the conclusion which we have reached above that the impugned Act was intra vires the powers of the State Legislature and the State Legislature was quite competent to enact the same. Even if it could be demonstrated that the provisions of the impugned Act were confiscatory as well as disc .....

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r abridged any of the fundamental rights conferred by Part 11I of the Constitution. Any challenge therefore on the ground of the impugned Act violating the fundamental rights of the Petitioners under article 14 or article 19(1)(f) or article 31(2) of the Constitution was not available to the Petitioners. On the other hand if the grievance was that the impugned Act had brought about dis- crimination in breach of clause 5 of the letters of guarantee then the dispute clearly arose out of the letter .....

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prised in the erstwhile State of Idar as the Bhumia or underlord and contends that his holding does not fall within the definition of jagir as given in the impugned Act. In support of his contention he has traced the history of Moti More since 1250 A.D. and in any event since 1800 A.D when the then Chieftain of Moti More entered into a treaty with the Maharaja Zalimsinh of Modasa whereby in consideration of payment of ₹ 361 annually the said Zalimsinh agreed to protect Moti More against th .....

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ing to pay ₹ 361 annually for protection. He further contends that they were enjoying the rights of excise and customs and revenue, that they did not pay any revenue to the State of Idar and enjoyed and continued to enjoy rights over all lands, forests, minerals, river beds, village sites, etc. and that when the Ruler of Idar wanted that there should be uniform customs levy throughout the State, the said Ruler had to give compensation to the Petitioner and had also similarly negotiated wit .....

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ised by the erstwhile State of Idar and also by the State of Bombay constituted him a Thakur or underlord of Moti More and he contends that his estate of Moti More is not a jagir within the definition of the term given in the impugned Act. Our attention has also been drawn in this behalf to Bombay Gazetteer, Vol. 5 (1880), page 398, where Mori (Meghraj) is described as the estate of the original landlords Bhumias otherwise described as petty chiefs and underlords and to page 409 where the underl .....

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Kamdar Mathurlaji was appointed as Japtidar, that in 1910 the management was lifted as a special case and the arrears of Nazrana were ordered to be recovered in installments by the erstwhile State of Idar that in several documents Moti More was described as Bhomia Jagir within the definition of the term Jagir as given in the impugned Act and that the sum of ₹ 361 was still being regularly paid even after merger as "Kichari hak". It therefore contends that the Thakore of Moti More .....

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oner go far enough to make it probable that Moti More was neither held by the Petitioner and his ancestors under a grant or was not recognised as a grant by the Ruler of the erstwhile State of Idar, that would not be enough to enable us to grant him the relief prayed for by him. The question requires to be completely thrashed out and adjudicated upon by a Court of law after going into the evidence adduced before it by both the parties. The learned Attorney-General appearing for the State of Bomb .....

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