9911796707
TMI Blog1961 (10) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution, or other laws hereinafter to be referred to, are common, the cases have been heard together. But in order to appreciate the points arising in these cases, it is necessary to state the facts of each case separately. I. Writ Petition No. 79 of 1957. In Writ Petition 79 of 1957, the petitioner is the younger brother of the present Raja of Talcher, which was an independent sovereign State before its merger. It was later incorporated in the State of Orissa. The Talcher State was a sovereign State of the Rajabahadur of Talcher, under the paramountcy of the British Government, before India attained Independence. As such a sovereign, the Rajah had absolute powers of disposal of the properties comprised in the State. The succession to the Rulership of the State is governed by the Mitakshara law, according to the rule of lineal primogeniture. The petitioner is a citizen of India and is the only younger brother of the present Raja to Talcher. The petitioner's father, the previous Ruler of Talcher, died in 1945 and was succeeded by the petitioner's elder brother, the present Raja of Talcher. According to immemorial and long established custom of the State, as also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary to complete the narrative of events by stating that in August 1947, the present Raja of Talcher, the petitioner's elder brother, entered into an agreement with the Dominion of India after its formation after the Independence Act of 1947, and executed an Instrument of Accession, which was in the form as it appears in Appendix VIII at page 169 of the White Paper on Indian States. Another agreement, in form appearing in Appendix IX at page 173 of the White paper, was also entered into between the Ruler of Talcher and the Dominion of India. On December 14, 1947, an agreement, called the 'Merger Agreement', in the same form as Appendix XI at page 178 of the White Paper, was entered into between the Governor-General of India and the Raja of Talcher. The terms and effect of these transactions will have to be examined in detail later. On January 1, 1948, the State of Talcher merged in the Dominion of India in accordance with the Merger Agreement aforesaid. The petitioner claims that the Khorposh grant made to him, as aforesaid, was fully and unequivocally recognized by the State and that even without such recognition his rights before the merger of the State of Talcher i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and law contained in the letter aforesaid of the Government of India is challenged by this petition on the grounds that that Government's order aforesaid amount to an infringement of the petitioner's fundamental rights under Arts. 19(1)(f) and 31 of the Constitution and are also discriminatory, thus violating Art. 14 of the Constitution inasmuch as the other Khorposh grantees have been allowed to continue enjoying their similar rights. It was on these allegations that the petitioner moved this Court and obtained the Rule. II. Writ Petition No. 167 of 1958. The Petitioner in this case is the younger brother of the Raja of what was previously known as the State of Bamra, one of the native Sates in Orissa. The Ruler of Bamra possessed and exercised absolute rights - legislative, executive and judicial - in his territory, subject to the paramountcy of the British Government. The Ruler of Bamra also, like the other ruler similarly situated, acceded to the Dominion of India by an Instrument of Accession executed between him and the Governor-General of India on or about the 15th of August, 1947, in terms similar to the form appearing in Appendix VII of the White Paper, at page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Government to annual their Order of June 8, 1949, aforesaid had proved unavailing, as would appear from the Government's letter dated June 26, 1957, the petitioner had no option left but to move this Court. The Orders aforesaid of the Government are challenged as null and void and ultra vires the powers of the Government, as violative of Arts. 19 and 31 of the Constitution. III. Writ Petition 168 of 1958. The petitioner in this case is the same as the petitioner in the Writ Petition 167 of 1958. After making allegations similar to those in the previous petition, he goes on to state that the Ruler of the Bamra State made the following Order on December 8, 1947. "Bamra Darbar Order As my brother Barakumar Pratap Ganga Deb is going to marry soon and as the present maintenance grant will be insufficient to maintain himself and his family befitting his status and position, the present maintenance grant of ₹ 600 p.m. is increased to ₹ 1000 (one thousand) per month with effect from the 1st of December 1947. 8th Dec., 1947. Sd- B.C. Tribhuban Deb Raja & Ruler, Bamra State." The petitioner goes on to state that, not withstanding the protest of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for the first petitioner by the Political Department of the Government of India. She continued to get the allowance even after the merger of the State of Kalahandi with the Province of Orissa. The petitioner No. 2, as the younger brother of the Ruler of Kalahandi and in accordance with the law and custom prevailing in that area, was granted by the then Ruler, his brother, H. H. Maharaja P. K. Deo a maintenance allowance of ₹ 1200 per month. After the merger of the State in the State of Orissa and on the recommendation of Shri Rege, I.C.S., a maintenance allowance of ₹ 1000 per month was fixed for the petitioner in consultation with the Government of India. As a result of the statement made by the then Chief Minister of Orissa, dated June 28, 1957, quoted above, the petitioners have been deprived of their just claims to maintenance in accordance with the law. The petitioners' memorials to the State Government and to the authorities of the Central Government have produced no results; hence the Writ Petition against the stopping of the payment of allowances to the petitioners with effect from July 1, 1957. In support of these petitions, three separate arguments hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther contended that in respect of some of the grants at least, the Government of India had recognised the rights of the grantees and had been making payments through the State of Orissa, in pursuance of those recognised rights. In the case of the petitioners in Writ Petition 168 of 1958 and 4 of 1959, it was further argued that the payments had been made to the grantees until June 1957. It was only in July, 1957, that the payments were stopped arbitrarily as a result of the statement made by the Chief Minister of Orissa, as stated above. The learned Solicitor General, who appeared on behalf of the respondents, first raised a preliminary objection in respect of the first case (Writ Petition 79 of 1957) relating to the grant by the Ruler of Talcher. His contention was that it was the admitted case of the parties that the payment to the petitioner was stopped in April, 1949, and the petitioner was informed by the Government's order dated June 22, 1949 that the Government's decision to stop the payment was final and could not be reconsidered. That being so, the rights guaranteed by the Constitution could not be founded upon, in respect of a cause of action which arose before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. Before dealing with the arguments on the merits of the controversy, it is convenient first to deal with the preliminary objection raised with reference to the first two petitions, on behalf of the respondents, to the effect that the orders passed before the coming into effect of the Constitution could not be challenged in a writ petition because no writ could be issued in respect of orders passed before the Constitution came into force. If the grants were in the shape of land, and if the Government had deprived the petitioners of those lands, it could have been argued with a good deal of force that the dispossession from the lands took place at a time when the Constitution was not in force. But it appears that in these cases the grants ultimately assumed the shape of money allowances payable at regular intervals. They were to be paid periodically. Hence, every periodic deprivation of the money allowance would give the petitioners a right to approach this Court for relief. It appears from the pleadings of the parties that the petitioners entered into prolonged correspondence insisting upon their rights under the grants by the former Rulers and trying to impress upon the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elation to the States.... such functions as may be vested in them by or under the Government of India Act, 1935, as in force in the Dominion of India on the 15th day of August, 1947". This accession did not affect the continuance of the sovereignty of the Rulers entering into the agreement, save as provided by or under the Instrument of Accession. It, however, provided that in respect of such matters as are specified in the Schedule annexed to the Instrument, which may be compendiously described as "Defence, External Affairs and Communications", the Dominion Legislature may make laws which shall apply to the acceding States also. It is not necessary to notice the difference between the Instrument of Accession as contained in Appendix VII and that contained in Appendix VIII for the purposes of these cases. The second step was the signing of what has been termed "Standstill Agreement", the form of which appears in Appendix IX at pages 173-74 of the White Paper. The acceding States signed this "Standstill Agreement" which provided for the continuance for the time being of all subsisting agreements and administrative arrangements in matters of common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate before that day, including Orders made under s. 3 or s. 4 of the Extra Provincial Jurisdiction Act, 1947, shall continue in force until repealed, modified or amended by a competent legislature or other competent authority. Hence, any orders passed by the Central Government or its delegate, the Government of Orissa, under Act XLVII of 1947, shall have the effect of law, even though until the 1st of August, 1949, these States did not form part of the Province of Orissa. It will, thus, appear that the sovereignty, whatever it was, of the Rules of the States in question ceased on the execution of the Merger Agreement on or after the 14th of December, 1947, and before the 1st of January, 1948. Thereafter, on the 1st of January, 1948, the sovereignty in those States vested in the Central Government. The question, therefore, arises : How far the Central Government or its delegate, the Government of Orissa, until the merger of the territories in the Province of Orissa, as aforesaid, were bound by the laws prevailing in those States during the regime of the Rulers, who had gone out. It has been strenuously argued on behalf of the respondents that the acts complained of by the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h some portions of his property, termed his private property, will go to one set of heirs, and the Raj with that portion of the property which is called public, will go to the succeeding Rajah. It is very probable that this may be so; the general rule of Hindoo inheritance is partibility, the succession of one heir, as in the case of a Raj, is the exception. But assuming this, if the Company, in the exercise of their Sovereign power, have thought fit to seize the whole property of the late Rajah, private as well as public, does that circumstance give any jurisdiction over their acts to the Court at Madras ? If the Court cannot enquire into the acts at all because it is in act of State, how can it inquire into any part of it, or afford relief on the ground that the Sovereign power had been exercised to an extent which Municipal law will not sanction ?". This decision of the Privy Council was followed in the case of Cook v. Sir James Gordon Sprigg [1899] A.C. 572. That was a case in which the appellant claimed right to certain concessions relating to minerals, forests, trading and other rights, etc., in Eastern Pondoland, granted to them by the paramount chief of Pondoland. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights they enjoyed under them, are, save in one respect, entirely irrelevant matters. They could not carry in under the new regime the legal rights, if any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new sovereign were those, and only those, which that new sovereign, by agreement expressed or implied, or by legislation, chose to confer upon them. Of course this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with them which the new sovereign adopted, his recognition of their old rights, and express or implied election to respect them and be bound by them, and it is only for the purpose of determining whether and to what extent the new sovereign has recognised those anti-cession rights of the kasbatis, and has elected or agreed to be bound by them, that the consideration of the existence, nature, or extent of these rights becomes a relevant subject for inquiry in this case. This principles is well established, though it scarcely seems to have been kept steadily in view in the lower Courts in the present case. It is only necessary to refer to two authorities on the point, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, which were in the domain of the Scindia of Gwalior until December 12, 1860, when the Ruler ceded that territory to the British Government by a treaty. The plaintiffs in that case claimed proprietary rights in the Taluqs, whereas the Secretary of State for India, who was the contesting respondent, asserted that they were ordinary lessees holding their lands at the pleasure of the Government. In that case it had been argued before the Judicial Committee that the plea of act of State not having been specifically taken in the Courts below, that plea should not have been given effect to. This argument was met by their Lordships of the Privy Council by observing that no such specific plea using the words 'act of State' was necessary inasmuch as the plaintiffs themselves had admitted in the plaint that the territory had been ceded by the previous Ruler, the Scindia of Gwalior, to the British Government. The plaintiff had the onus cast on them of showing the acts of acknowledgment of their rights, which they claimed, by the new sovereign. Another argument raised on behalf of the plaintiffs was that one of the terms of the treaty was that old rights shall be recognised and that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, promulgated by the Governor-General in Council, was a valid piece of legislation and was effective to interfere with pre-existing rights. The still later decision of their Lordships of the Judicial Committee in the case of Secretary of State v. Sardar Rustam Khan [1941] L.R. 68 IndAp 109 is also very instructive in so far as it reviewed the older decisions and reiterated the law as summarised by Lord Dunedin in the decisions just noticed in the case of Vajesingji Joravarsingji v. Secretary of State [1924] L.R. 51 IndAp 357. In that case their Lordships had to consider the effect of the Treaty of 1903 between the Khan of Kalat and the Government of India whereby the former ceded in perpetuity to the latter, in consideration of the payment of an annual rent, a certain territory. It was held that the transaction was, in fact, a perpetual lease of the territory at a quit rent and that the territory itself did not become part of the British Dominions, though the Khan of Kalat had made over the whole of his sovereign rights. In this case, their Lordships had also to consider the effect of the provisions of the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37). Their Lordships held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-existing laws of the newly acquired territory continue, and that according to ordinary principles of International Law private property of the citizens is respected by the new sovereign, but Municipal Courts have no jurisdiction to enforce such international obligations. (7) Similarly, by virtue of the treaty by which the new territory has been acquired it may have been stipulated that the pre-cession rights of old inhabitants shall be respected, but such stipulations cannot be enforced by individual citizens because they are no parties to those stipulations. (8) The Municipal Courts recognised by the new sovereign have the power and the jurisdiction to investigate and ascertain only such right as the new sovereign has chosen to recognise or acknowledge by legislation, agreement or otherwise. (9) Such an agreement or recognition may be either express or may be implied from circumstances and evidence appearing from the mode of dealing with those rights by the new sovereign. Hence, the Municipal Courts have the jurisdiction to find out whether the new sovereign has or has not recognised or acknowledged the rights in question, either expressly or by implication, as aforesaid. (10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave by authority of law". He relied upon the decision of the House of Lords in the case of Johnstone v. Pedlar (1921) L.R. 2 A.C. 262 in which the plaintiff's claim for damages brought by a friendly alien, resident in the United Kingdom against an officer of the Crown in respect of wrongful seizure and detention of his property was decreed. It was further held that the defendant's plea that the property had been detained by direction of the Crown as an act of State was not a good defence to the action. In that case Viscount Cave stated the proposition of law and his opinion on that proposition in these words :- "My Lords, counsel for the appellant contended for the broad proposition that, where the personal property of an alien friend resident in this country in seized and detained by an officer of the Crown, and his act is adopted and ratified by the Crown as an act of State, the alien is without legal remedy. In my opinion this proposition cannot be sustained. When a wrong has been done by the King's officer to a British subject, the person wronged has no legal remedy against the Sovereign, for 'the King can do no wrong'; but he may sue the King& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case as respondents before the Privy Council in Walker v. Baird (1892) A.C. 491 : "Because between Her Majesty and one of her subjects there can be no such thing as an act of State". And this proposition was finally accepted in the case of Walker v. Baird". Lord Phillimore, after discussing a number of authorities and the propositions laid down by them, concluded his opinion in these words :- "From these propositions it would seem to follow that an alien ami complaining of a tort is in the position of an ordinary subject, and that no more against him than against any other subject, can it be pleaded that the wrong complained of was, if a wrong, done by command of the King or was a so-called act of State." Relying upon those observations, the learned counsel for the petitioner contended, in the first instance, that when the Government of India, or its delegate the Government of Orissa, deprived the petitioner of his allowance in 1949, as aforesaid, it infringed the constitutional guarantee contained in s. 299(1) of the Constitution Act of 1935, and that the reliance upon act of State by way of defence was not tenable because, it was further argued, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment" shall be construed as references to "all the provinces of India and Orissa States" and "the Provincial Government" respectively. (b) As respects to those matters which are not covered by the enactments applied to the Orissa States under sub-paragraph (a), all laws in force in any of the Orissa States prior to the commencement of this Order, whether substantive or procedural and whether based on custom and usage of statutes, shall, subject to the provisions of this Order, continue to remain in force until altered or amended by an Order under the Extra-Provincial Jurisdiction Act, 1947 (XLVII of 1947). Provided that the powers that were exercised by the Ruler of each such State under any of those laws prior to the commencement of this order shall be exercised by the Provincial Government or any other officer specially empowered in this behalf by that Government. Explanation - In this sub-paragraph the expression "laws" includes rules, regulations, bye-laws and orders. (c) As respects those matters regarding which the enactments applied under sub-paragraph (a) or the laws continued in force under sub-paragraph (b) are inapplicable, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already pointed out, while tracing the relationship between the people of the Indian States and the Dominion of India, and later the Union of India, that as a result of the Merger Agreements, referred to above, those States, including the State of Talcher, completely merged in the Dominion of India on the 1st of January 1948. But then it was argued by the learned Solicitor-General that, alternatively, assuming that Talcher had become a part of the Dominion of India in January, 1948, the grant made in favour of the petitioner was not a law, and was neither recognised nor continued in force by virtue of sub-para. (b) of paragraph 4 of the Order of 1948. It is, therefore, necessary to consider whether the grant in favour of the petitioner had itself the force of law in the State of Talcher. In our opinion, the decisions of this Court, particularly (1) Thakur Amar Singhji v. State of Rajasthan [1955] 2 SCR 303 : (2) M/s. Dalmia Dadri Cement Co., Ltd. v. The Commissioner of Income-Tax [1958] 34 ITR 514(SC) and Madharao Phalke v. The State of Madhya Bharat [1961] 1 SCR 957 fully support the conclusion that whether the act of the former rulers in making the grant partook of the character ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sections 3(1) and 4, have to be read harmoniously so as not to make the provisions of s. 4 nugatory. Sub-section (2) of s. 4 enables the Central Government to make any "order" in respect of matters specified in cls. (a), (b), (c) and (d) therein; and where an "order" has already been made by a competent authority under s. 4 of the Act, that order can be superseded only by another valid order under that very section. Section 3(1) cannot, therefore, be construed so as to override the provisions of s. 4. With reference to the provisions of s. 5 of the Act, which reads, "Every act and thing done whether before or after the commencement of this Act, in pursuance of any extra provincial jurisdiction of the Central Government in an area outside the Provinces shall be as valid as if it had been done according to the local law then in force in that area", it has to be remembered that the Act was enacted with a view to arming the Central Government with powers to make provision for the administration of such areas as came into the Dominion of India as a result of the process of integration as discussed above, and which areas were not within the ambit of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention of annulling the grant. The Order passed under the Act has in terms been characterised as of a legislative character; hence it has the effect of abrogating the grant so far as the petitioner was concerned. Whether that order of annulment was proper or improper, just or unjust, is not a matter which this Court can investigate and pronounce upon. It has not been contended before us that the order annulling the grant was ultra vires the provisions of the Act, and, therefore, of no effect. It must, therefore, be held that the rights claimed by the petitioner in this case have been validly terminated by the respondents. This application must, therefore, be dismissed, but, in the circumstances, without costs. In the third case (Writ Petition No. 168 of 1958) in which the petitioner is the same as in the second case, the position is different, because by the order dated June 11, 1949, the Government recognised the right to a maintenance at ₹ 800 per month, in modification of the previous grant. Not only was this grant recognised, but the right thus recognised was given effect to, because it is common ground that payment continued to be made till July 1, 1957. The payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lternative argument of Mr. Viswanatha Sastri and also agree with what My Lord has said with regard to the other writ petitions, we would like to state our view on the first point urged by Mr. Viswanatha Sastri. In our opinion s. 299(1) of the Constitution Act of 1935 did not help grantees from the former rules whose rights had not been recognized by his new sovereign in the matter of establishing their rights in the municipal courts of the new sovereign because that provision only protected such rights as the new citizen had at the moment of his becoming a citizen of the Indian Dominion. It did not enlarge his rights nor did it cure any infirmity in the rights of that citizen : This is the view which we have taken in our judgment in State of Gujarat v. Jamadar Mahomed Abdulla [1962] 3 SCR 970 . In that case the rights of the grantees from the former ruler of Junagadh were not recognised at any time by the Dominion of India and so we held that even after becoming citizens of the Indian Dominion they could not assert those rights in the municipal courts of the Dominion of India. We adhere to that view and reject the first argument of Mr. Viswanatha Sastri. Since we agree with the res ..... 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