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Promod Chandra Deb and ors. Versus State of Orissa and ors.

1961 (10) TMI 93 - SUPREME COURT OF INDIA

Petitions Nos. 79 of 1957, 167 and 168 of 1958 and 4 of 1959 - Dated:- 16-10-1961 - B. P. Sinha (CJ), A. K. Sarkar, J. R. Mudholkar, N. Rajagopala Ayyangar and S. K. Das, JJ. For the Petitioner : A. V. Viswanatha Sastri, K. R. Choudhri, Purushottam Trikamdas, R. Patnaik, N. C. Chatterjee, R. Patnaik For the Respondent : C. K. Daphtary, Solicitor-General of India, B. R. L. Iyengar, T. M. Sen JUDGMENT B. P. Sinha, CJ. The Petitioners in these Writ Petitions, under Art. 32 of the Constitution, comp .....

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ion, 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 Stat .....

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f 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 according to the Hindu Law of lineal primogeniture, the junior members of the family of the Rules, for the time being, were entitled to and were provided with suitable maintenance, either land or in money, to enable them to maintain themselves in accordance with their status as members of the Ruler's family. Th .....

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, for the time being, became the absolute private property of the grantee, being a male or a female member of the family of the grantor. The petitioner was born in 1903, and in the same year the petitioner's father, who was then Ruler of the State of Talcher, made a grant in perpetuity to the petitioner of 5 villages specified in the Schedule to the petition. The said grant conveyed to the petitioner full proprietary rights in the villages aforesaid. By an order, dated March 31, 1912, the Ru .....

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ant yielding a cash income of ₹ 5926 odd intact, to be enjoyed by the petitioner "in perpetuity under hereditary rights". The Ruler of the State, after making the necessary enquiries, directed, by his Order dated March 16, 1944, that the petitioner should be paid ₹ 6200 a year, as a cash allowance out of the State Treasury in lieu of the income from the villages granted to the petitioner, as aforesaid. Since then the petitioner was being paid regularly the allowance at the .....

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m 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 Domi .....

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entered into correspondence with the Government of Orissa. In answer he received a letter, dated May 26, 1949, from the Sub-Divisional Magistrate of Talcher informing him that the payment of allowance in question could not be made until further instructions were received from the Government. As a result of further correspondent between the petitioner and the Government of Orissa, the petitioner received a letter, on June 22, 1949, to the following effect : "With reference to your letter No .....

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ndia, the petitioner received on September 7, 1956, a copy of the letter dated March 26, 1955, to the following effect : "The Government of India are advised that the alleged grant of maintenance allowance to you by the Ruler of Talcher was never recognized by the Govt. of India or the State Govt. of Orissa. After the merger therefore no claim for payment of the said allowance can be enforced against either the State Govt. of Orissa or the Central Govt. The Govt. of India are further advise .....

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a do not consider that these have the effect of placing on obligation on the Government to continue your allowance." The correctness and validity of the statements of fact 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. .....

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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 165. There are similar allegations, as in the previous case, about the law and custom governing the grant of Khorposh to the m .....

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-45. 3. Forest grant of Panguli and Prabhasuni reserve forests for reclaiming 1500 acres granted by Ruler on 27th December, 1947. 4. Tank at Deogarh granted by Ruler on 22-9-1947. All these properties have been duly recorded in Revenue registers." After the grants aforesaid had been made in favour of the petitioner, who is the only surviving younger brother of the Ruler, the latter executed, on the December 30, 1947, the Agreement of Merger by which he transferred to the Dominion Government .....

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e not reasonable and bonafide in the opinion of the Provisional Government and were declared null and void and not binding on them, and shall stand annulled as from the date of the said commitments and that no Court shall have jurisdiction to call into question the validity of the Order. The Schedule to the Notification aforesaid also made reference to the grants made in favour of the petitioner. Then the petition goes to make allegations as to why the petitioner was discriminated against on gro .....

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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 .....

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at ₹ 1000 per month, as granted by the Ruler, as aforesaid, was reduced by Mr. D. V. Rege, the Adviser to the Orissa State, by his letter dated June 11, 1949 to the following effect :- "Dear Bara Kumar Sahib, With the approval of Government of India your allowance has been increased from ₹ 7200 to ₹ 9600 per annum from 1-4-1948. Your sincerely, Sd. D. V. Rege" This reduced amount of maintenance at the rate of ₹ 800 per month continued be to paid to the petition .....

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and the fact should be communicated to the Government of India, subject to the following conditions :- (1) The existing allowances should be continued in respect of widowed Rajmatas and other widows subject to a maximum limit of ₹ 500 per month. (2) If, as a result of annulment of these allowances, any hardship is caused to anybody, he or she may represent to Government for consideration of his or her case and Government after proper enquiry about the actual conditions and income of the re .....

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ners in this case are the mother and younger brother of the present Maharaja of the State of Kalahandi, previously known as the State of Kalahandi, one of the native States in Orissa. After the death of the late Maharaja Braja Mohan Deo of Kalahandi in 1939 at the age of 43, the maintenance allowance of ₹ 1200 per month was fixed 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 Kalahand .....

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ment 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 petit .....

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grants made by the Rulers in each case were in respect of the khorposh rights of the members of their family, which the Rulers, under the law both statutory and customary, recognised as the rights of the junior members of the family which is governed by the rule of Lineal Primogeniture. Generally the grants took the shape of landed property but very often the usufruct of the property was taken over by the State in lieu of a cash allowance. Whether the Khorposh grant took the form of land or of .....

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ers' sovereign powers, the succeeding power, whether it was the Government of India or the Province, and later the State of Orissa, was not competent to abrogate the orders granting maintenance to the junior members of the family, according to the law of the land, without recourse to legislation by a competent body. In this connection reliance was placed on the decisions in the case of Director of Endowments, Government of Hyderabad v. Akram Ali AIR 1956 SC 60 and Madhaorao Phalke v. The Sta .....

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e 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 .....

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at being so, the rights guaranteed by the Constitution could not be founded upon, in respect of a cause of action which arose before the Constitution. In the second case, namely Writ Petition 167 of 1958, the right, if any, has been abrogated by the Government's Notification dated June 8, 1949, hence in this case also the preliminary objection, if it has any force, applies. The other arguments, of the Solicitor General, which apply to all the cases, were to the effect that the grant, if any, .....

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er or not the making of a grant was enacting a law, and whatever its nature, it could be abrogated by the succeeding sovereign power, without recourse to legislation. It was further argued that the matter in controversy would be governed by the provisions of the Extra Provisional Jurisdiction Act (XLVII of 1947), which came into effect on December 24, 1947. Reliance was placed upon s. 3 of the Act which laws down that it "shall be lawful for the Central Government to exercise extra provinci .....

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ority for cancelling the Khorposh allowance in favour of the petitioners made by the ex-Rules. It was further contended that s. 5 of the Act validated the impugned orders of the Government, and whether or not they were legal, they "shall be valid as if they had been done according to the local law then in force in that area". And lastly, it was urged that, in any view of the matter, the orders impugned by the petitioners in these cases were acts of State, the legality of which could no .....

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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 .....

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e overruled. In order to determine the controversy on its merits, it is necessary to trace the history of the relationship between the Rulers and the Government of India before the territories concerned became a part of the territory of India. During the British regime, the Rulers of the Indian States (then called native States) enjoyed certain amount of sovereign powers, which were not uniform. The extent of their sovereignty under the suzerainty or the paramount authority of the British Govern .....

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the same time he was, in relation to British India, the head of the Government as Governor-General. The Indian Independence Act, 1947, released the States from all their obligations to the Crown". After the coming into effect of the Indian Independence Act and the establishment of the Indian Dominion, as a result of negotiation between the Dominion of India and the Indian States, certain steps were taken towards the integration of those States with India. The first step was the accession of .....

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f this Instrument of Accession but subject always to the terms thereof, and for the purposes only of the Dominion, exercise in relation 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, prov .....

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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 concern between the States and the Dominion of India. The first phase of the process of integration of the Indian States into the Indian Dominion was the accession of the S .....

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to transfer the administration of the State to the Domination Government on the 1st day of January 1948". As a result of the 'Merger Agreement' signed by the Rules of these States on or after the 14th of December, 1947, but before the 1st of January, 1948, the Dominion of India was vested with sovereign authority and the ex-Rulers were left only with their private property and their annual Privy Purse. As these States which merged with the Dominion of India, as aforesaid, did not be .....

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e to the Act. In pursuance of the powers given to the Central Government under s. 3(2) of this Act, the Central Government delegated its power to the Government of Orissa to administer the territories which had acceded, as aforesaid, including the three States with which we are now concerned. This state of affairs continued until the coming into effect of the States' Merger (Governors' Provinces) Order, 1949, which came into effect on the first of August, 1949. Section 3 of the Order pro .....

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rnment 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 Sta .....

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ad no jurisdiction to examine. The question of the nature and effect of what are characterised as acts of State has been discussed in a number of cases, which went up to the Privy Council, and later in cases which came up to this Court. In the case of the Secretary of State of India v. Kamachee Boye Sahaba (1859) 7 M.I.A. 476, their Lordships of the Privy Council stated the law in these terms : "The transactions of independent States between each other are governed by other laws than those .....

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r want of male heir. It was held by the Privy Council that as the seizure was made by the British Government, acting as a sovereign power, through its delegate the East India Company, it was an act of State, and that, therefore, a Municipal Court had no jurisdiction to enquire into the property or legality of the transaction. In the course of the judgment, Lord Kingsdown further observed "that acts done in the execution of these sovereign powers were not subject to the control of the Munici .....

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their Lordships of the Privy Council made the following very significant observations : "But then, it is contended, that there is a distinction between the public and private property of a Hindoo Sovereign, and that although during his life, if he be an absolute Monarch, he may dispose of all alike, yet on his death 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 su .....

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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 ch .....

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ent Sovereign - which the appellants are compelled to do in deriving title from him. It is a well-established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal courts administer. It is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to suc .....

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se, the plaintiffs sued for a declaration of their rights to certain property and they questioned the orders of the Government of Bombay to the effect that they had no indefeasible rights in the property as claimed by them. The property was situate in the District of Ahmedabad, which was ceded by the Gaekwar to the British Government in the year 1817. The plaintiffs (respondents before the Privy Council) claimed the title to the property in the right of a grantee from the Mogul Emperors. While e .....

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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 t .....

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in view in the lower Courts in the present case. It is only necessary to refer to two authorities on the point, namely, the case of Secretary of State for India v. Kamachee Boye Sahaba, decided in the year 1859, and Cook v. Sprigg, decided in the year 1899." Their Lordships also observed that in deciding the question as to whether or not the new Government had recognised the pre-existing rights and, if so, to what extent, the burden of proof rested upon those who made such claims. In a late .....

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e questions, he made the following observations, which put in a nutshell the entire legal position. "But a summary of the matter is this : when a territory is acquired by a sovereign state for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all cases the result is the same. Any inhabitant of the .....

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ing parties. This is made quite clear by Lord Atkinson when, citing the Pongoland case of Cook v. Sprigg he says : "It was held that the annexation of territory made an act of state and that any obligation assured under the treaty with the ceding state either to the sovereign or the individuals is not one which municipal Courts are authorised to enforce." In that case the Privy Council was called upon to determine the rights of the plaintiffs as Taluqdars in respect of land in the Panc .....

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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 acknowled .....

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ed. The new Government had not thereby renounced its right to recognise only such titles as it considered fit and proper to recognise, and the Municipal Courts were not thereby empowered to investigate the rights claimed. Where territory has been annexed to a new sovereign by treaty, conquest, cession or otherwise, the position in law is clear. But where there is no complete cession of territory but only the grant of power and jurisdiction whereby sovereign authority is vested in another State, .....

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the districts collectively called the Berar, in lieu of certain expenses relating to the army, etc. As a result of the arrangement, H.H. the Nizam leased in perpetuity to the British Government that territory. The territory formed the subject matter of subsequent treaties in 1860 and 1920, whereby full sovereignty over the assigned districts was reaffirmed in favour of the British Government. The British Government was to continue to have full and exclusive jurisdiction and authority over the as .....

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lling the appellant's contention that the enactment of 1921 was ultra vires that the Law of 1921, aforesaid, 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 su .....

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d 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 that by virtue of the Treaty and the provisions of the Foreign Jurisdiction Act, the Government of India had acquired full sovereign rights and had, therefore, the right to recognise or .....

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la v. State of Orissa [1962] 1 SCR 205 . On an examination of the authorities discussed or referred to above, the following propositions emerge. (1) 'Act of State' is the taking over of sovereign powers by a State in respect of territory which was not till then a part of its territory, either by conquest, treaty of cession, or otherwise, and may be said to have taken place on a particular date, if there is a proclamation or other public declaration of such taking over. (2) But the taking .....

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ct of that territory may be obtained by a legislation of the nature of Foreign Jurisdiction Act. (5) As an act of State derives its authority not from a municipal law but from ultra-legal or supra-legal means, Municipal Courts have no power to examine the propriety or legality of an act which comes within the ambit of 'act of State'. (6) Whether the act of State has reference to public rights or to private rights, the result is the same, namely, that it is beyond the jurisdiction of Muni .....

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y, 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, agre .....

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the burden of proof lies on the claimant to establish that the new sovereign had recognised or acknowledged the right in question. Applying those principles to each of the cases in hand, the position appears to be as follows. In Writ Petition 79 of 1957, the Talcher State merged in the territory of India with effect from January, 1, 1948. Whatever rights the ex-Ruler of Talcher may have conferred upon the petitioner those rights could be enforced against the respondents only in so far as they ha .....

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of Talcher in favour of the petitioner continued to be effective until the Merger. The nature and conditions of such grant of Khorposh are governed by the provisions of the laws of that State as embodied in order 31 of the "Rules and Regulations of Talcher, 1937". Under the laws of Talcher, the petitioner had been enjoying his Khorposh rights until the cash grant, as it became converted in 1943-44 as aforesaid, was stopped by the State of Orissa, in April, 1949. On the first of Januar .....

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hen in force (Government of India Act 1935 as amended by the Indian Independence Act) became applicable to the inhabitants of Talcher also. That being so, they also became entitled to the benefit of s. 299(1) of the Constitution Act of 1935, which reads that "no person shall be deprived of his property save 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 brou .....

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e 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 .....

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the Government of this country cannot assert as a defence against one of their own subjects that an act done to the letter's injury was an act of State, since such a subject clearly could not rely on his own sovereign bringing diplomatic pressure against himself to right the subject's wrong. In conformity with this principle it was held in Walker v. Baird (1892) A.C. 491 that where the plaintiffs are British subject in an action for trespass committed within British territory in time of .....

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n is interesting but, as I think, fallacius. Buron v. Denman 2 Ex. 167 is a case rather of the inability of the Court than of the disability of the suitor. Municipal Courts do not take it upon themselves to review the dealings of State with state of or Sovereign with Sovereign. They do not control the acts of a foreign State done within its own territory, in the execution of sovereign powers so as to criticise their legality or to require their justification.......". Lord Phillimore, in the .....

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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 sub .....

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nce upon act of State by way of defence was not tenable because, it was further argued, the sovereign cannot exercise an act of State against his own subject. The argument is very plausible and attractive, but we need not pronounce upon it in view of our conclusion, as will presently appear, with reference to his alternative argument based upon recognition. The argument is that the inhabitants of a territory acquired by a new by a new sovereign by conquest, cession or otherwise can make good in .....

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ncial Jurisdiction Act, 1947, as a delegate of the Government of India. Paragraph 4 of the Order of 1948 read as follows :- "4. Laws to be applied - (a) The enactments specified in the first column of the Schedule hereto annexed shall, so far as circumstances admit and subject to any amendments to which the enactments are for the time being generally subject, in the territories to which they extend, apply to all Orissa states and any provision of any law in force, whether substantive or pro .....

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sdiction in the Orissa States may construe the provisions thereof and notifications, orders, rules, regulations, forms or bye-laws made or issued thereunder, with such alterations not affecting the substance as may be necessary or proper to adopt them to the matter before the Court : Provided further that in the enactments as so applied (except where the context or modifications hereinbefore referred to otherwise require), reference to "British India" and "Central Government" .....

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tinue 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 .....

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er, subject to certain amendments not material in this connection. The enactments so specified in the Schedule did not in any way affect the custom or the law under which the grant in favour of the petitioner had been made, and under sub-para (b) the law of the State of Talcher, as contained in the Regulations aforesaid 1937 continued in operation, subject, of course, to the provisions of the order until altered or amended by an order under the Extra Provincial Jurisdiction Act, 1947. It is cont .....

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he petitioner, and that such a change-over could not be deemed to have taken place until July 27, 1949, when, as a result of the promulgation of the Order know as the States' Merger (Governor's Provinces) Order, 1949 (Appendix XLIV, page 297 of the White Paper), the Orissa States, including Talcher, were integrated in the Province of Orissa. In our opinion there is no substance in this contention for the simple reason that the question is not whether or when Talcher became a part of the .....

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inion of India in the manner hereinafter provided" (s. 5(c)). We have 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 Talche .....

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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 of legislative, or executive action, it had the effect of law, and, secondly, that the rulers contained in Order 31 of the Rules and Regulations of the State of Talcher, 1937, had the effect of law and had been continued in f .....

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e provisions of sub-para. (b) of para. 4 of the Order of 1948, therefore, clearly applied and the Regulations of 1937 continued in force. The explanation to the sub-paragraph (b) says in express terms that the expression "laws" includes rules, regulations, bye-laws and orders. In view of the width and amplitude of the provisions of sub-para. (b) of paragraph 4, the conclusion is irresistible that the new sovereign, by the legislative Order of 1948, had recognised the customary grant in .....

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f paragraph 4 of the Order of 1948, the impugned order stopping the grant could be supported with reference to the provisions of Sections 3(1) and (5) of the Extra Provincial Jurisdiction Act of 1947. Section 3(1) is in general terms and provides that "it shall be lawful for the Central Government to exercise extra provincial jurisdiction in such manner as it thinks fit". This provision, which is in general terms, authorises the Central Government to exercise extra provincial jurisdict .....

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thority 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 .....

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passed to regularise every act and thing done even before the enactment, as if it had been done according to the local law then in force in that area. Anything could be done in such a local area according to the laws of that area by authorities empowered to do so, but the functionaries of the Government of India or of its delegate, would have no jurisdiction so to function except by virtue of the provisions of s. 5. The section, thus, clothed such functionaries with legal authority in respect of .....

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st be repeated, in a harmonious way so as to give full effect to each one of the provisions of the Act. It must, therefore, be held that s. 5 did not authorise the functionaries of the Government of India, or of its delegate, to infringe the laws which had been continued in force by virtue of s. 4, using the word "laws" in their most comprehensive sense, in accordance with the provisions of the Act itself. As a result of these considerations, it must be held that the respondents have n .....

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of the Extra Provincial Jurisdiction Act of 1947. Such an order has the effect of law and was not a mere executive flat, as contended on behalf of the petitioner. By an order made under the provisions of the Act aforesaid, the Central Government clearly indicated its 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 ord .....

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ird 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 was stopped only as a result of t .....

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. In this case also, the petitioners' rights were recognised in respects of maintenance allowance of ₹ 1200 per mensem for the first petitioner and the reduced maintenance allowance of ₹ 1000 per mensem for the second petitioner. These allowances continued to be paid until they were stopped as a result of the statement aforesaid. The petitioners, therefore, are entitled to the same relief as in the previous case (Writ Petition 168 of 1958). The petitioners in Writ Petition 168 of .....

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he petitioner in W.P. 79 of 1957 of his maintenance grant in the year 1949 was in violation of that provision and that consequently the order made in that behalf was unconstitutional. He also contended that the action of the Orissa Government could not be regarded as an act of State because there can be no act of state by sovereign against his own subject. Referring to this argument My Lord the Chief Justice in his judgment has observed : "The argument is very plausible and attractive, but .....

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