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Sarwarlal and others Versus State of Hyderabad

1960 (3) TMI 58 - SUPREME COURT OF INDIA

Civil Appeals Nos. 392 of 1956 & 686 of 1957 - Dated:- 16-3-1960 - Bhuvneshwar P. Sinha (CJ), Syed Jaffer Imam, A. K. Sarkar, K. C. Das Gupta And J. C. Shah, JJ. For the Appellant : S. P. Varma, S. Mohammed and S. R. Borgaouker For the Respondent : A. V. Viswanatha Sastri, P. V. R. Tatachari and T. M. Sen JUDGMENT J. C. Shah, J. This is an appeal filed with a certificate granted under Art. 133(1)(c) of the Constitution by the High Court of Judicature of the State, of Hyderabad. The appellant was .....

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ng in Chief Southern Army has appointed Major General J. N. Chaudary, O.B.E., to be the Military Governor for the Hyderabad State and whereas all authority for the administration of the State now vests in him, I hereby enjoin all the subjects of the State to carry out such orders as he may deem fit to issue from time to time. I appeal to all officers of the State administration and subjects of the State to render faithful and unflinching obedience to the Military Governor and conduct themselves .....

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, 1949, the Military Governor promulgated The Hyderabad (Abolition of Jagirs) Regulation of 1358 Fasli, which will hereinafter be referred to as the Abolition Regulation. This Regulation was brought into force on August 15, 1949, the date of its publication in the Official Gazette. Section 5 of the Regulation directed that from a date to be notified for the transfer of the administrations of the jagirs in the State to the Government, the jagirdars shall make over the management of the jagirs to .....

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o jagirdar shall recover or receive any customary or other dues from any tenant or resident of the jagir. By s. 14, it was declared that the jagirdars were to receive certain interim maintenance allowances until such time as the terms of the commutation of the jagirs were determined. Pursuant to the authority reserved by a. 6 of the Abolition Regulation, possession of the jagirs was taken over sometime in September 1949 by the Jagir Administrator acting on behalf of the State of Hyderabad. On De .....

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Vellodi, C.I.E., I.C.S., to be my Chief Minister and ... I further direct that all the powers of administration, vested in the Military Governor before the said date are exercisable by the Chief Minister ". In exercise of the powers vested in him, the Chief Minister promulgated the Hyderabad Jagirs (Commutation) Regulation No. XXV of 1359 Fasli which will hereinafter be referred to as the Commutation Regulation. This Regulation was brought into operation on January 25, 1950. By s. 3 of the .....

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ment) Act of 1951 whereby, inter alia, Arts. 31(A) and 31(B) and Sch. IX were incorporated in the Constitution. The Abolition Regulation and the Commutation Regulation were included in Schedule IX and by virtue of Art. 31(B), neither the Regulations nor any of the provisions thereof were to be deemed to be void or ever to have become void on the ground that the Regulations were inconsistent with or -took away or abridged any of the rights conferred by any of the provisions of Part III of the Con .....

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1952. By this petition, the appellant claimed that ss. 4(1)(c) and 4(2) of the Commutation Regulation and s. 6(4) of the Abolition Regulation were invalid because by these provisions, there was " naked confiscation of the property " of the appellant and that they amounted to " colourable and fraudulent exercise of legislative power ". The High Court of Hyderabad rejected the petition filed by the appellant, but certified the case under Art. 133(1)(c) as a fit one for appeal t .....

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H.E.H. the Nizam or was he merely invested with the executive authority ? By the plain words used in the Farman, " all authority for the administration of the State was conferred upon the Military Governor" and there is nothing in the text of the Farman which warrants the view that only executive authority was intended to be delegated thereby. Within the expression, " all administrative authority " is encompassed the entirety of the authority of the sovereign, and by the del .....

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delegated to the Military Governor. The expression, " orders " would include every order made in exercise of authority for the administration of the State; and the object intended to be achieved, viz., the speedy restoration of law and order in the State by His Exalted Highness the Nizam as expressed in the appeal was not restrictive of that authority. That His Exalted Highness the Nizam in and before the month of September, 1948, was an absolute ruler invested with all authority, exe .....

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August 7, 1949, was issued. It was declared in express terms by that Farman that the authority of the Military Governor -to; included and has always included the authority to make Regulations ". In the clearest terms, the author of the Farman proclaimed the content of the authority delegated by him to the Military Governor. The plea rather faintly urged by Mr. Varma that the Farman merely recited that the Military Governor had been invested with authority for administration and did not by .....

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s the Nizam was, by this act of delegation, undoubtedly not extinguished. It was open to him, notwithstanding the delegation, to issue orders or Regulations contrary to those which were issued by the Military Governor, and also to withdraw the authority of the Military Governor. There is, however, no evidence on the record to show that after September 19, 1948, and before the Abolition Regulation was promulgated, the authority of the Military Governor was withdrawn or that His Exalted Highness t .....

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terests of the jagirdars being by delegation vested in the Military Governor, the legality of the action of the latter was not open to challenge on any test of legislative competence. Assuming that no opportunity had arisen for exercise of the sovereign authority in the matter of resumption of jagirs or extinction of the jagirdars' interests before the promulgation of the Abolition Regulation, an inference cannot therefrom arise that His Exalted Highness the Nizam had irrevocably placed a re .....

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of legislative provisions enacted in colourable exercise of authority applies to legislatures whose powers are subject to constitutional restrictions. When such a legislative body seeks, under the guise or pretence of complying with the restrictions, in enacting a statute, to evade or elude them, it is but a fraud on the Constitution, and the statute is liable to be declared invalid on the ground that the enactment is in colourable exercise of authority, the statute being in truth beyond the co .....

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