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TMI Blog1964 (1) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent in Civil Appeals Nos. 182 and 184 of 1963. Vora Hakimuddin Tayabali Amthaniwala is the respondent in Civil Appeal No. 183 of 1963. Mehta Kantilal Chandulal is the respondent in Civil Appeal No. 185 of 1963, and Pathan Abbaskhan Ahmedkhan is the respondent in Civil Appeal No. 186 of 1963. In all these Appeals the State of Gujarat is the appellant. The course these litigations have taken in the courts below may briefly be stated as follows: The respondent in Civil Appeal No. 182 of 1963, is the assignee of the rights of one Vora Hatimbhai Badruddin and was brought on a record as plaintiff during the pendency of the suit in the trial court, namely, the court of the Civil Judge (Senior Division) at Godhra, being Civil Suit No. 115 of 1950, for an injunction and ancillary reliefs to restrain the appellant and its officers from interfering with the plaintiff's alleged rights to cut and carry away timber etc., from the Gotimada jungle, rasing his rights under a contract dated August 21, 1948, for a period of three years on payment of a consideration of ₹ 9,501 to the Jagirdar of the village, Thakore Sardar Singh Gajesingh. Civil Suit No. 134 of 1950, giving rise to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Gujarat. The appeals were heard together and were allowed on January 24, 1961 with the result that the suits were decreed and the appellant was restrained by an injunction from interfering with the plaintiffs' enjoyment of the rights in the forests, as claimed by them. As the State failed to obtain the necessary certificate of fitness from the High Court, it moved this Court and obtained special leave to appeal. And that is how these appeals have come up to this Court. These appeals were first heard by a Bench of five Judges, and it was directed that the matter be placed for hearing by a larger Bench, as the Bench was of the opinion that the decision of this Court in Virendra Singh v. The State of Uttar Pradesh([1955] 1 S.C.R. 415) required reconsideration. That is how these appeals have been placed before this special Bench. Before dealing with the questions that arise for deter- mination in these appeals, it is necessary and convenient at this stage to set out the course of events leading up to the institution of the suits aforesaid, giving rise to these appeals. The several villages, the forest rights in which are in dispute in these cases, formed part of the State of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the date of making over the administration to the Dominion Government will be questioned un- less the order was passed or action taken after the 1st day of April, 1948, and it is considered by the Government of India to be palpably unjust or unreasonable. The decision of the Government of India in their respect will be final." In view of the forthcoming integration of (,lie territory of Indian States into the Dominion of India, the Government of India Act, 1935, was amended and s. 290-A was inserted. In exercise of the powers conferred by that section, the Governor-General of India promulgated the States Merger (Governor Provinces) Order, 1949, on July 27 1949 which came into force on August 1, 1949. As a result of that order the integration of Indian States, including the Sant State with that of the province of Bombay, was completed with effect from that date, namely August 1, 1949. In the meantime, the ruler of the Sant State passed or issued "a resolution" or Tharao on March 12, 1948, which has given rise to the present series of litigations. Under this "'instrument" marked as Ex. 192, to use a neutral expression in view of the controversy a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained rights over the forests in the Sant State under the Tharao of the ruler, dated March 12, 1948. He, however, pointed out that until the question of the rights of the grantees over private forests was finally settled by the Government an undertaking should be taken from the, persons concerned that they would abide by the orders passed by the Government in respect of their rights. This, as stated al- ready had been obtained by the District Officers even earlier. On July 8, 1949, the Government of Bombay passed an order in which they stated "Government considers that the order passed by the ruler of the Sant State under his No. 371, dated March 12, 1948, transferring forest rights to all the Jagirdars of the Jagir villages, are mala fide and that they should be cancelled........ This decision or order was, however, not communicated to the jagirdars or their contractors though effect was given to it by the Forest Authorities by stopping all further fellings. Some time thereafter the respondents issued notices under s. 80 of the Civil Procedure Code to the Government of Bombay seeking respect for their rights under the Tharao of March, 1948 and after waiting for two months fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 1948, to the ruler could be referred to and relied on for the purpose of drawing an inference that the right of the Government to repudiate the grant by the ruler had been waived. This submission was accepted and it was on this reasoning that the learned Judges have decreed the suits of the several plaintiffs. It is the correctness of these two conclusions that are being challenged before us, the first by the respondente and the other by the appellant State. Arising from the submissions of the learned Attorney-General the points that require examination are as to the legal effect of the acces- sion, integration and merger of the Sant State in the Indian Union, on the rights that the plaintiffs acquired under the Tharao, dated March 12, 1948 and secondly whether the provisions in s. 299 of the Government of India Act, 1935, or those contained in Part III of the Constitution affect the nature or enforceability of those rights. 'Me questions to be considered under the first head in particular are:- (a) Whether the rights acquired under the previous ruler are enforceable against the Governments of the Union and the States without those rights being recognised by the appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;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 territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has through his officers, recognized. Such rights as he had under the rule of prede- cessors avail him nothing. Nay more, even if in a treaty of cession it is stipulated that certain inhabitants could 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 high contracting parties." (italics ours). This has been accepted as expressing the constitutional law of the United Kingdom and the same has been.applied tot merely to claims or titles which were sought to be enforced against the Indian Government but also in other parts of the British Empire-See Cook v. Spring([1899] A.C. 572). This was the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "whether the Union Government had the right and the power to revoke these grants as an act of State?", pointed out that jurists had held divergent views on this matter. At one extreme, he said, was the view expressed by the Privy Council in a series of cases to which reference was made and as summarising their effect the passage from the judgment of Lord Dunedin we have extracted already was cited. At the other extreme was the view of Marshall C.J., in United States v. Percheman(32 U.S. 51 at pp. 86-87) from which he quoted the following: "It may not be, unworthy of remark that it is very unusual, even in case of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; by their relations to each other, and their rights of property, remain undisturbed. If this be th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory rights could have been asserted and enforced against all persons except the rulers who granted the lands, and except possibly the succeeding State. Considering it unnecessary to pronounce whether these rights could be enforced against the rulers as well as the Dominion of India as the succeeding sovereign, he observed that as these rights were factually in existence at the date of the Constitution and as by that date the subjects of the rulers of Charkari and Sarila had become the subjects of the Union, there could be no question of the Union Government claiming to exercise an " act of State" operating to deprive the petitioners of their property following in this respect the well-known decisions of Walker v. Baird(1892) A.C. 491) and Johnstone v. Pedlar(1921) 2 A.C. 262). He further explained that "the Constitution by reason of the authority derived from and conferred by the peoples of this land blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold." The passage extracted and indeed the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als against the succeeding sovereign. At one end of the scale were the decisions of the Privy Council which proceeded on the acceptance of the principle, that rights enforceable against the previous ruler or sovereign ceased to be enforceable by the Municipal Courts of the succeeding sovereign unless and until a competent authority or organ of the succeeding sovereign recognised those rights. The passage in the judgment of Lord Dunedin in Vajesingjis case(51 I. A. 357) was typical of this view. On the other hand, there was another and, if one might say so, an opposite view expressed in the decisions of the Supreme Court of the United States of which the classic exposition by Chief Justice Marshall in Percheman's case(32 U.S. 51 at pp. 86-87) was typical, that the proper and just rule of Public International Law which should be given effect to by municipal courts was that the changes in sovereignty over a territory did not or should not have any effect on the rights of the private individuals even as regards the enforceability of their claims as against the State and that it was the obligation certainly moral, if not also legal, of the succeeding sovereign to give effect to such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for four reasons: (i) The constitution emerged as a result of the conjoint action of the subjects of the former Indian rulers and the people of former British India. When as a result of this joint effort the Constitution was brought into existence there was no question of conquest or cession so as to attract those doctrines of Public International Law relating to the effects of rights arising out of changes in sovereignty brought about by conquest, cession, treaty etc. (ii) The subjects of the former Indian rulers became, when the Constitution emerged, Indian citizens, and as against its own subjects or citizens there was no question of any "Act of State" by any Indian Government. (iii) Even if the previous rulers had vested in them autocratic powers to revoke grants made by them in favour of their subjects, the Government of the Union and the States which were functioning under a Constitution which contained fundamental rights guaranteeing protection of property rights against arbitrary executive action could'not claim to exercise those arbitrary powers which they might have inherited from the previous rulers, and (iv) The petitioners had at the commencement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent's title to the village was ultimately based on rights claimed to have been granted by the Gaekwar of Baroda. The territory in which the village was situated was ceded by the Gaekwar to the British Government in 1817. The claim of the respondent to full ownership of the property was not recognised by the Indian Government after the cession and Government held that the respondent had no more than a leasehold interest. The question before the Privy Council was whether the respondent was entitled to assert in municipal courts rights more extensive, than what had been recognised by the authorities. Dealing with this Lord Atkinson delivering the judgment of the Board stated: "....It is essential to consider what was the precise relation in which the kasbatis (respondents) stood to the Bombay Government the moment the cession of their territory took effect, and what were the legal rights enforceable in the tribunals of their new sovereign, of which they were thereafter possessed. The relation in which they stood to their native sovereigns before this cession, and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters. They could n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rries with him a voidable title to property which inheres in him until by some positive act of the new sovereign he is divested of that right. Coming nearer to the present times we have the decision in Secretary of State v. Rustam Khan(68 I.A. 109) which related to the enforceability of the right to certain land claimed to have been acquired under the Khan of Kalat against the British Government after the cession by the Khan of the territory which included the villages in which the lands of the respondent were situate. For the appellant the plea raised was 'Act of State' and the decisions of the Board in Bai Rajbai's case(42 I.A. 229) and Vijayesingji's case (51 LA. 357) were relied on. Among the submissions made to the Board on behalf of the respondent we would refer to two as of some relevance to the points under consideration in these appeals. The two contentions were: (1) that a mere change in sovereignty was not to be presumed to disturb the rights of private owners, and the terms of the cession by which full sovereignty was transferred were to be construed as passing only public property-relying for this proposition on Amodu Tijani v. Secretary Southern Niger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Government except so far as they had been recognised by the new sovereign power. Recognition may be by legislation or by agreement express or im- plied. This well-established rule of law for which reference may be made to 42 I.A. 229 at p. 237 and 51 I.A. 357 at p. 360, appears to their Lordships to be peculiarly applicable to an office, to which material benefits apper- tain and which, so far the records show, had consistently been regarded as within the dis- position of the sovereign power." As we have already pointed out, these decisions of the Privy Council have been referred to and followed by this Court in Dalmia Dadri Cement Co.( [1959] S.C.R. 729) and the other decisions already referred. The statement of the law therefore in Virendra's case([1955] 1 S.C.R. 415) that if the doctrine of Public International Law enunciated by the Privy Council were applied, the petitioners in that case had a voidable title, which inhered in them even after the change of sovereignty, is not seen to be correct. If the view expressed by the Privy Council was to be adopted there is no escape from the conclusion, that the grantees under the previous rulers did not carry with them, on- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... territories under the rulers of the former Indian Princes undoubtedly passed from one sovereign to another when as a result of the 'unionisation' by the Government of India, they became integral parts first of the Dominion of India and later of the Union of India. A transfer of territory from under one sovereign to another may be effected in a variety of ways-conquest, annexation, by cession under a treaty after a war or without a war, by revolution by emancipation of subject peoples and by territorial resettlements. These changes possess one common feature viz., that one sovereign ceases to rule a territory and another takes its place. For the application of the rules which have been evolved in connection with the problems arising from such succession, little turns for the purpose of British Constitutional Law on either the manner in which the change of sovereignty was brought about or whether the absorption was partial or complete in the sense of a total extinction of the previous sovereignty of the absorbed State, leaving no trace of survival after the merger. In passing we might mention that, in fact. it was in most cases the rulers of the Indian States who ejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on recognition by the succeeding sovereign, it would be manifest that the refusal of the succeeding sovereign to recognise preexisting rights could in no sense be an act of State. No doubt, that refusal is in the exercise of sovereign power but by such exercise it neither annihilates nor affects any enforceable right which its subjects had against it. We consider, therefore, that if the doctrine of Public International Law expounded by the Privy Council were held applicable to the termination of the rights arising on the change of sovereignty in India, as the learned Judges in Virendra Singh's case(1) did, the power of the Government of India as at present constituted to refuse to recognise titles originating in executive grants by former Indian rulers cannot be negatived by resort to the rule of law laid down in Walker v. Baird(2) and Johnstone v. Pedlar(3). The next proposition of law which underlies the decision in Virendra Singh's case(1) is that the arbitrary and absolute powers which the former Indian rulers possessed to revoke grants made by them did not survive the change in sove- reignty brought about by the Constitution, when as a result of the setting up of a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .C-32 Act, 1935) proceeds on the basis that the petitioners had brought with them from their previous rulers into the Indian Union certain rights in the property granted to them, enforceable against the Government in regard to which they were entitled to the protection of Arts. 19 and 31. This question has to be approached from two points of view arising from the two stages through which the territory of the former Indian rulers became part of the territory of India under the Constitution. The first stage is concerned with the effect of the changes which took place from the accession of the States to the Dominion of India followed by the merger agreement executed by the rulers all of which were governed by the provisions of the Government of India as it stood from time to time and the second stage with the complete 'unionization' of these territories so as to form part of an unified polity, the Union of India. So far as the first stage is concerned, there was certainly a transfer of sovereignty over the territory of the former Indian rulers to the Government of India for the purposes of the exercise by the latter of sovereignty with plenary powers of administration. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he capacity of these grantees to assert rights as against the Government which is totally different from their right to possession as to the rest of the world. Digressing a little it may be pointed out that s. 299 of the Government of India Act, 1935 as well as Arts. 19 and 31 which are referred to in this connection deal exclusively with the inference with proprietary rights by the State and have nothing to do with rights inter se between the grantee and his fellow subjects or citizens. If, therefore, we are correct in our understanding of the decisions of the Privy Council that on a change of sover- reignty no scintilla of right inhered in the grantee quoad his right to assert or enforce his rights under the grants against the rulers survived the change of sovereignty, the guarantee against deprivation of property contained in s. 299 of the Government of India Act, 1935, availed him nothing, for when the succeeding sovereign refused to recognise the rights obtained by him under the previous sovereign its action deprived him of no right to property; because he brought with him no rights from the previous ruler which he could assert against the new sovereign. The position, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered this matter carefully we are clearly of the opinion that there is no justification or reason to dis- card the British view as regards the jurisdiction of municipal courts to enforce rights against succeeding sovereigns on a change of sovereignty. In the first place, Percheman's case(32 U.S. 51 at pp. 86-87) itself came before the courts for ascertaining the proper construction of the treaty under which Florida was surrendered to the United States by Spain under the Florida treaty dated February 22, 1819, on the terms of which the respondent contended that his title to the property claimed by him had been recognised and confirmed. The place of a treaty entered into by the United States and the provisions contained in it, in the Constitutional Law of the United States, we shall be referring to later, but that apart the Florida treaty was followed by an Act of Congress of 1828 ,entitled "an Act supplementary to the several Acts providing for the settlement of confirmation of private land claims in Florida." Under the terms of this Act of the Congress, ,Commissioners were set up to investigate claims by private individuals to lands and in cases where the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpire, by virtue of the treaty alone have the force of law" It was in recognition of this constitutional position that s. 106 of the Government of India Act, 1935 was enacted. Its terms are in substance re-enacted in Art. 253 of the Constitution which reads: "253. Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty' agreement or convention with any other country or countries or any decision made at any international conference, association or other body." and to reinforce this position we have Art. 363 by which municipal courts are deprived of jurisdiction to enforce any rights arising from certain treaties. It would be apparent that in the context of the different constitutional position regarding treaties in the two countries, the rule of law which was enunciated by the American Supreme Court, cannot automatically be applied here. For in ultimate analysis the court in Percheman's case (32 U.S. 51 at pp. 86-87) was giving effect to provisions of the treaty with Spain which was the law of the land, and if the treaty provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in Percheman's case(32 U.S. 1 at pp. 86-87) and those which allowed it adds: "Acknowledgement of the principle that a change of sovereignty does not in itself serve to impair rights of private property validly acquired in areas subjected to a change, does not, of course, touch the question whether the new sovereign is obliged to respect those rights when vested in the nationals of foreign States, such as those of its predecessor." Similarly George Schwarzenberger in his International Law(32 U. S. 51 at Pp. 86-87) after referring to a passage in the decision of the Permanent Court of International Justice in the case of German Settlers in Poland reading: "Private rights acquired under existing law do not cease on a change of sovereignty. No one denies that the German Civil Law, both sub- stantive and adjective, has continued without interruption to operate in the territory in question. It can hardly be maintained that, although the law survives, private rights acquired under it have perished. Such a contention is based on no principle and would be contrary to an almost universal opinion and practice" adds that though the Permanent Court of Interna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eignty. It is in recognition of such a position that successor States give effect to laws which regulate rights inter se between the subjects which theretofore applied, save in so far as either its constitution or its legislation has made other provision. We are, however, here concerned with rights possessed by individuals in the predecessor's territory enforceable against the previous rulers and even as regards these we are concerned with a very limited range of rights-rights arising out of grants of immovable property or concessions of rights in relation thereto and enforceable against the predecessor State. We made this Reservation because in the Dalmia Dadri Cement case([1959] 729) which dealt with the continued enforceability of a concession regarding the levy of income -tax, even Bose J. agreed that such rights did not survive and in a separate judgment confined the operation of the principle that he enunciated in Virendra Singh's case([1955] 1 S.C.R. 415) to rights of immovable property. If the theory that rights and duties or rather the bundle of them pass ipso jure from the predecessor to the successor State is discarded and at the same time it is recognised that I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of view the British practice that has prevailed in this country has not proved in actual practice to lead to injustice, but has proceeded on a just balance between the acquired rights of the private indivi- dual and the economic interests of the community, and therefore there is nothing in it so out of tune with notions of propriety or justice to call for its rejection. It is undoubted that the British doctrine was part of the jurisprudence and the constitutional practice that prevailed in pre-Constitution India. Most certainly it does not need to be stated that the British Parliament when it enacted the Government of India Act as the constitutional framework by which this country should be governed, could not have had in contemplation any other rule by which the rights of the inhabitants newly brought into the political set up by other territories becoming part of India. With this historical background it would not be a violent presumption if we assume that the framers of the Constitution should also be taken to have proceeded on the basis of the acceptance of this doctrine and this state of the law, unless one found some provision or indication in the Constitution repugnant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , even in the case of Virendra Singh([1955] 1 S C.R. 415), though the divergent views of the jurists on this question of Public International Law were set out the court did not express any decisive opinion in favour of accepting the observations in Percheman's case(32 U.S. at pp. 86-87) as proper to be applied by the municipal courts in India. In the face of these circumstances we would not be justified in departing from the decisions of the Privy Council which have been accepted and applied by this Court. These decisions both of the Privy Council as well as the earlier ones of this Court were reviewed and the propositions laid down in them were examined and summarised by this Court in Promod Chandra Deb and Ors. v. The State of Orissa and Ors.( [1962] 1 Supp. S.C.R. 405) as laying down the following propositions: "(1) 'Act of State' is the taking over of sovereign power by a State in respect of territory which was not till then a part of its territory, either by conquest, treaty or 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 over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication, as aforesaid. (10) In any controversy as to the existence of the right claimed against the new sovereign, the burden of proof lies on the claimant to establish that the new sovereign had recognised or acknowledged the right in question." We consider this summary succinctly expressed the rule to be applied in this country as regards the, enforceability against the Governments in India of private rights originating in executive or administrative orders of the former Indian rulers. The next matter to be considered is the correctness of the view expressed by the High Court, that even though the treaty be an Act of State, and the merger agreement executed by the ruler a document on which no rights enforceable in municipal courts could be based, still cl. (7) of the letter of Shri V. P. Menon dated October 1, 1948 could be referred to and relied upon for founding an argument that the Government waived their right to repudiate the grant made by the previous ruler. We consider that the submission of the learned Attorney-General that the learned Judges were in error in this respect is well-founded. If the treaty or its provisions cannot be looked at to spell out any right. a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as rested on the ground that the law of the Wadhwan State was continued by express provisions contained, first, in statutes of the Saurashtra State and, again, by Art. 372 of the Constitution when the latter merged in the Dominion of India. On this it followed that without a valid change in the law the rights of the appellant could not be restricted. In stating this position, however, the following words were used: "The Covenant (between the ruler of the Wadhwan State and the State of Saurashtra) could be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign." We do not understand this passage to mean that the covenant which under Art. 363 could itself not be looked at for founding any right, could be used indirectly for inferring that rights were recognised, without anything more. The true position appears to us to be that where the new sove- reign assumes jurisdiction and it does some Act and there is ambiguity as to whether the same amounts to a recognition of a pre-existing right or not, the covenant and the treaty might be looked at in order to ascertain the intention and purpose of that equi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still the distinction between the two is of vital importance for the purpose of determining their continued efficacy after the coming into force of the Constitution. Under Art. 372 of the Constitution-"all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority". The expression "existing law" is defined in Art. 366(10): "Existing law means any law, Ordinance, Order bye-law, rule or regulation passed or made before the commencement of this Constitution by any legislature, authority or person having power to make such a law, Ordinance, Order, bye-law, rule or regulation." This definition would include only laws passed by a competent authority as well as rules, bye-laws and regulations made by virtue of statutory power. It would therefore not include administrative orders which are traceable not to any law made by the Legislature but derive their force from executive authority and made either for the convenience of the administration or for the benefit of individuals, though the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sd/- in English Maharana, Santrampur State." There are a few matters to which it is necessary to advert in this document : The first of them is that it is not a grant to any individual, that is, treating him as an individual or as one of a number of individuals or to a group treating them merely as separate individuals, but to the holders of five specified tenures in the State-Jivak, Patavat, Inami, Chakariyat and Dharmada villages. Next, it states that the rights in the forests of the villages of the several kinds of tenure-holders are-being given to them in response to the representations made in regard to the villages in the possession and enjoyment of the Jagirdars as regards this matter. Lastly, the tenure-holders were directed to manage and administer the forest according to the policy and administration of the State. The learned Judges of the High Court have treated the 'Tharav' as merely an administrative order treating it as if consisted of as many grants of forest rights to the tenure-holders as there were such holders and this was the view that was stressed upon us strongly by the, learned Attorney-General. We are, however, not impressed by this argument. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 is law and that it continued in force after the making of the Constitution. This conclusion would be enough to dispose of the appeals. But, Rajagopala Ayyangar J., further expressed his disagreement with the unanimous view propounded by this Court in Virendra Singh v. The State of Uttar Pradesh([1955] 1 S.C.R. 415). As I regret my inability to share his view, I shall state the reasons for my agreement with the decision in Virendra Singh's case. As the question raised is common to all the appeals, it is enough if I take up Civil Appeal No. 182 of 1963 for consideration. The facts necessary to appreciate the alternative contention may now be briefly stated. In the year 1947, the then ruler of the Sant State made a grant of the village Gotimada to the predecessor-in-interest of Thakor Sardarsingh Gajesing. On August 15, 1947, India obtained independence. Under s. 7 of the Indian Indepen- dence Act, 1947, the suzerainty of the British Crown over the Indian States lapsed, with the result the Sant State became a full sovereign State. On March 12, 1948, the Maharana of Sant State issued an order conferring full rights over forests to the holders of villages in the State, which incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spected. A combined reading of the paragraphs of this letter makes it clear that the Dominion of India declared in clear and unambiguous terms that no grants made or orders issued by the Maharana before April 1, 1948 would be questioned by it. It may be mentioned that in the last paragraph of this letter it was stated that the contents of the letter would be regarded as part of the Merger Agreement entered into by the Maharana with the Governor-General of India. It may be recalled that this letter was written months after the merger and after the citizens of the extinct State became the citizens of the absorbing State. The effect of the last paragraph of the said letter will be considered in due course. On July 8, 1949 the Government of Bombay sent a communication to the Commissioner, Northern Division, stating that the Government considered that the order passed by the ruler of Sant State on March 12, 1948 transferring forest rights to all the Jagirdars of the Jagir villages was mala fide and that it should be cancelled. It was suggested that the Commissioner should do some other preliminary acts before taking further action in the matter. It would be seen from this communication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d indeed its binding force was weakened by later decisions of this Court. As the correctness of the decision in Virendra Singh's case(1) is questioned, it is necessary to consider the scope of that decision in some detail and also to ascertain whether later decisions of this Court had in any way weakened its authority. The facts in that case were as follows. The petitioners in that case were granted in January, 1948,Jagirs and Muafis by the Ruler of Sarila State in one village and by the Ruler of Charkhari State in three villages. In March, 1948, a Union of 35 States, including the States of Sarila and Charkhari. was formed into the United States of Vindhya Pradesh. The Vindhya Pradesh Government confirmed these grants in December, 1948, when its Revenue Officers interfered with them questioning their validity. The integration of the States however did not work well and the same 35 Rulers entered into an agreement in December 1949, and dissolve the newly created State as from January 1, 1950, each Ruler acceding to the Government of India all authority and jurisdiction in relation to the Government of that State. After the Constitution came into force, the Government of Uttar P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State, Unity of Possession, Unity of Interest, Unity of Title and Unity of Time." Then the learned Judge proceeded to state: "All the citizens of India, whether residing in States or Provinces, will enjoy the same fundamental rights and the same legal remedies to enforce them." This decision struck a new and refreshing note. It pleaded for a departure from imperialistic traditions and to adopt the American traditions, which are in consonance with the realities of the situation created by our Constitution. It gave new orientation to the doctrine of the act of State to reflect the modern liberal thought embodied in our Consti- tution. It held that citizens of a ceding State have a title to their property against all except possibly the ruler. Though it inclined to go further and hold that the change of sovereignty does not affect the title of the citizens of the ceding State even against the new sovereign, it did not think fit to decide that question finally, as it found ample justification to sustain the title of the petitioners therein against the sovereign under our Constitution. It pointed out that the concept of ceding and absorbing States is foreign to our C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade grants of property before he fled the State, it was held in State of Saurashtra v. Jamadar Mohamad Abdullah([1962] 3 S.C.R. 970) that the cancellation of the said grants by the Regional Commissioner, who assumed charge of the administration of the State before the said State was integrated with the United States of Saurashtra, was an act of State. The question now raised did not arise for consideration in those cases. This Court accepted the English doctrine of Act of State and acted on the principle that till the right of an erstwhile citizen of a ceding State was recognized by the absorbing State, he has no enforceable right against the State. The scope and extent of the title to immovable property of a citizen of a ceding State was not examined in those decisions. Nor the impact of the Constitution on such rights was considered therein. In M/s. Dalimia Dadri Cement Co. Ltd. v. The Commissioner of Income-tax([1959] S.C.R. 720) the following observations are found at D. 741, which may have some bearing on the first aspect of the question: "It is also well-established that in the new set-up these residents do not carry with them the rights which they possessed as subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey did not possess any legally enforceable rights against the Dominion of India, and, therefore, s. 299(1) of the Constitution Act, 1935, avails them nothing. As already stated s. 299(1) did not enlarge anyone's right to property but only protected the one which a person already had. Any right to property which in its very nature is not legally enforceable was clearly incapable of being protected by that section." The same view was restated by the learned Judge in Promod Chandra Deb v. The State of Orissa([1962] Supp. 1 S.C.R. 405). It may be stated that the said question did not arise for consideration in either of those two decisions, for in the former the cancel- lation of the order issued by the Ruler of the ceding State was made before the merger and in the latter, the Court held that the laws whereunder the grants were made continued to have legal force after the merger of the concerned States with the Dominion of India. It may be pointed out that Das J., in the earlier decision and Sinha C.J., in the later decision, who delivered the leading judgments in those cases, had specifically left open that question. It may, therefore, be stated without contradiction that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Rights" the learned author points out, at pp. 78- 79: "........ only sovereignty and its incidents expired with the personality of a State. The relationships of the inhabitants one to another, and their rights of property were recognized to remain undisturbed." He observes at p. 104: The doctrine of acquired rights is perhaps one of the few principles firmly established in the law of State succession, and the one which admits of least dispute." In Hyde's International Law, second revised edition, Vol. 1, at p. 433, the following extract from the Sixth Advisory Opinion of September 10, 1923 of the Court of International Justice is quoted: "Private rights acquired under existing law do not cease on a change of sovereignty. No one denies that the German Civil Law, both subs- tantive and adjective, has continued without interruption to operate in the territory in question. It can hardly be maintained that, although the law survives, private rights acquired under it have perished. Such a contention is based on no principle and would be contrary to an almost universal opinion and practice......" In Oppenheim's International Law, 8th edit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endering, at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property." This principle has been accepted and followed by the American Courts in -other decisions. But it is said that the view of the American Courts is really based upon the circumstance that international treaties are part of the supreme law of the land. Article VI of the Constitution of the United States declares that all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Chief Justice Marshall in Foster v. Neilson((1829) 2 Pet. 253. 134-159 S.C.-34) said: "Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." A treaty in America may be deemed to be a law of the land; but the American view is not solely based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 high contracting parties............". The sentence in the said passage, namely, "such rights as he had under the rule of predecessors avail him nothing", cannot be, in the context in which it appears, interpreted as a denial of the doctrine of acquired rights evolved by International ]Law, but it only refers to the question of enforceability of such an acquired right in a municipal court. The same view has been expressed in a number of English decision. Therefore, the law in England is that the municipal courts cannot enforce the acquired rights of the erstwhile citizens of the ceding State against the absorbing State unless the said State has recognized or acknowledged their title. This Court accepted the English. doctrine of act of State in a series of decisions noticed by me earlier. What does the word "recognize" signify? It means "to admit, to acknowledge, something existing before." By r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived of his property save by authority of law. That is, the Constitution recognized the title of the citizens of the erstwhile State of Sant, and issued an injunction against the soveriegn created by it not to interfere with that right except in accordance with law. A recognition by the supreme law of the land must be in a higher position than that of an executive authority of a conquering State. I would, therefore, hold that the title to immovable property of the respondent was recognized by the Constitution itself and therefore, necessarily by the sovereign which is bound by it. 1, therefore, respectfully hold that Virendra Singh's case([1955] 1 S.C.R. 415) has been correctly decided. Apart from the recognition of the title of the respondent by the Constitution, in this case the letter written by the Government of India, dated October 1, 1948, clearly recognized the title of persons situated in the position of the respondent to their properties. But the learned AttorneyGeneral contends that the letter shall be regarded as part of the merger agreement and therefore its terms cannot be relied upon for the purpose of recognition of the respondent's title or of evidence of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The forests in respect of which the declaration and injunction were sought are situated in the former State of Santrampur (also called Sant State). Santrampur Was an Indian State and the Ruler attained independence and sovereignty on August 15, 1947 on the ceasing of the para- mountcy of the British Crown. The Ruler at first ceded his sovereignty on three subjects to the Government. of India but on March 19, 1948, ceded the territory of the State to the Government of India by an agreement which came into force from June 10, 1948. The Central Government, by virtue of powers vested in it by the Extra-Provincial Jurisdiction Act, 1947, delegated its functions to the Provincial Government of Bombay and on June 2, 1948, the Administration of the Indian States Order was passed and it was applied to Sant State from June 10, 1948. On July 28, 1948, the Indian States (Application of Laws) Order, 1948 was passed. Certain enactments in force in the Province of Bombay were extended to Sant State and then under the States' Merger (Governor's Provinces) Order, 1949, Sant State became a part of the Province of Bombay from August 1, 1949. On October 1, 1948, a letter of guarantee was wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1950. The agreements which were made with the contractors are on the file of the appeals. The Thakores and the contractors then began to take forest produce but they were stopped in April 1949. The present five suits were then filed. Four of the suits were instituted by the contractors and the fifth by one of the Thakores in the capacity as inamdar. After merger, a question arose whether these contracts should be approved or not. On January 1949, on the application of one of the Thakores, an order was passed by the Divisional Forests Officer. It was as follows: .lm15 "Gothimada village of santrampur State. Application of the owner requesting to grant authorization to the Contractor and states that he has no objection if the authorization is issued. Is the authorization up to Lunawada and Signally only, time-limit up to 31-3-1949. No export outside to be permitted, pending receipt of orders from Government. Written undertaking to be taken from the purchaser that he will abide by the decision and orders passed by Government and then the authorization handed over. Send copy to F.O. Lunawada." Similar orders were passed in respect of other villages and undertakings were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on February 6, 1953 as follows: "On the eve of the merger of the Sant State in the State of Bombay, the Ruler of that State issued Tharav No. 371 on 12th March, 1948, under which Jiwai, Patawat, Inami, Chakriat and Dhannada Jagirdars and inamdars were given full forest rights over the villages in their charge. The Government of Bombay, after considering the implication of the Tharav, decided that the order was mala fide and cancelled it on 8th July, 1949 vide Government Letter, Revenue Department No. 2103-M 49 dated the 8th July, 1949. By the time these orders were issued, the tree growth in the Jagiri forests concerned was already sold by some of the Jagirdars and the trees cut. Further cutting of trees and export of trees cut was however stopped by the Forest Department after receipt of the orders of 8th July, 1949. On representation being made to Government, however, agreed to allow to release the material felled from the forest under dispute, pending decision on the settlement of forest rights, subject to the condition that the contractor furnished two sureties solvent for the material removed or deposited with the Divisional Forest Officer certain amount per wagon loa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been done in this case. They referred to the permission which had been given by the officers of the Forest Department to the plaintiffs in this suit to cut and carry away the timber and regarded the letter of Mr. V. P. Menon as evidence of waiver and relinquishment. They held on the authority of Virendra Singh and Others v. The State of Uttar Pradesh([1955] 1 S.C.R. 415) and Bholanath J. Thakar v. State of Saurashtra (A.I.R. (1954) S.C. 680) and the judgment of the Bombay High Court in Bhoirajji v. Saurashtra State(61 Bom. L.R. 20) that the Government must, in these circumstances, be held to have waived or relinquished its rights to enforce the Act of State against the plaintiffs. On behalf of the appellant, it is urged (a) that the Act of State continued till the resolutions were passed and there was no waiver or relinquishment in favour of the appellants, and (b) that the action of the subordinate officers of the Forest Department did not bind Government and the res- pondents cannot take advantage of the letter of Mr. V. P. Menon. On behalf of the respondents, in addition to meeting the above arguments, it is contended that the Tharao was a law and could only be revoked by anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State in Council for India v. Kamachee Boye Saheba(1859) 13 Moore P.C. 22) and ending with Secretary of State v. Sardar Rustam Khan and Other(1941) 68 I.A. 109). The cases on this point need not be cited. Reference may be made to M/s. Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax([1959] S.C.R. 729), The State of Saurashtra v. Menon Haji Ismali Haji(1960] 1 S.C.R. 537), jaganath Agarwala v. State of Orissa([1962] 3 S.C.R. 970) and State of Saurashtra v. Jamadar Mohamed Abdulla and Others([1962] 1 S.C.R. 205). In these cases of this Court, it has been laid down that the essence of an Act of State is an arbitrary exercise of sovereign power on principles which are paramount to the Municipal Law, against an alien and the exercise of the power is neither intended nor purports to be legally founded. A defence that the injury is by an Act of State does not seek justification for the Act by reference to any law, but questions the jurisdiction of the court to decide upon the legality or justice of the action. The Act of State comes to an end only when the new sovereign recognises either expressly or impliedly the rights of the aliens. It does not come to an end by any action of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India...... was a party. If on the other hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations." It would, therefore, appear that the present respondents who were not parties to the Merger agreement or to the letter written by Mr. Menon which was made expressly a part of the Agreement cannot take advantage of cl. 7. If they were parties, Art. 363 would bar such a plea. It is next contended that the Act of State had come to an end after the Government of India Act, 1935 was applied to the State and the State became a part of the territories of the Government of India. This argument was raised to claim the benefit of s. 299 (1) of the Government of India Act 1935. The interference with the rights in forests conferred by the Tharao and the agreements with the contractors based on the Tharao took, place in April, 1949. It was contended that on J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights. In the present case, the subordinate officers of the Forest Department allowed the forests to be worked, making it quite clear that Government was considering the matter and took undertakings from the respondents that they would abide by the decision of Government. Government passed an order declining to accept the Tharao. The order so passed was not communicated to the respondents but later it was reiterated as a resolution which was communicated. To avoid this result, there are two arguments upon which the respondents rely and they are the main contentions in these appeals. The respondents seek support for the judgment by challenging the decision on some of the points decided against them. The first is that the Tharao was a law which could only be rescinded by another law. In this connection, the respondents rely upon the observations made by this Court in Madhaorao Phalke v. The State of Madhya Bharat([1961] 1 S.C.R. 957. 964). These observations were based upon the earlier case in Ameer-un-nissa Begum and Others v. Mehboob Begum and Others(A.T.R. 1955 S.C. 352). In these cases, it was pointed out that the distinction between legislative, executive and judicial acts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which was made in accordance with the traditional mode of making laws in the territory or in accordance with some procedure which was expressly devised for tile occasion. It was pointed out that law is the result of a legislative process and the result must be intended to bind as a rule of conduct; it must not for example be a contract or a grant or a gift etc. Viewed from this angle, it is quite obvious that the Tharao was not a law. It was a grant made to the jagirdars mentioned in the Tharao. It is contended that it is made applicable to persons belonging to five different tenures and that the 'management' of the forests was to be done according to the policy and administration of the State. No doubt, the Tharao is applicable to a large number of persons enjoying different tenures but it is stated therein that orders were to be issued individually to all of them. The Tharao was issued only 8 days before the Merger. It is surprising that the Maharaja thought of the complaints of the grantees on the eve of the Merger. The fact that the Maharana's Tharao was passed to benefit a large number of persons en bloc does not make it any the more a law if it did not possess a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te because of a State succession on January 26, 1950, and as this was before the Resolutions of 1951 and 1953, the respondents were protected. The first question to consider is whether there took place in 1950 a State succession. State succession takes place either in law or in fact. It takes place in law when there is a juridical substitution of one State for another. It take place in-fact when there is (a) annexation (2) or (b) cession(2) (2) e.g. Algiers by France (1831) or South African Republic by Great Britain (1901). (3) e.g. the Ionian Islands by Britain to Greece (1864) or territory to Poland by Germany. or (c) fusion of one State with another into a federal Union (2) or (e) partition ration of secession(3). It will be seen that on the 26th January, 1950, there was no succession in fact because none of these events took place. As Oppenheim defined "succession"--- "A succession of International Persons occurs when one or more International Persons take the place of another International Person in consequence of certain changes in the latter's position International Law, 5th edn. p. 151." In this sense, though the people of India gave themselve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this judgment. It may be summarized in the words of Fletcher Moulton, L. J. in Salaman v. Secretary of State for India(1906] 1 K. B. 613): "An Act of State is essentially an exercise of sovereign power, and hence cannot be challenged, controlled or interfered with by municipal courts. Its sanction is not that of law, but that of sovereign power, and, whatever it be, municipal courts must accept it, as it is without question. But it may, and often must, be part of their duty to take cognizance of it. For instance, if an act is relied on as being an act of State, and as thus affording an answer to claims made by a subject, the courts must decide whether it was in truth an act of State, and what was its nature and extent". The Courts in England have also acted on the further principle which may be shortly stated in the words of Lord McNair(International Law Opinions (1956) Vol 1. P. 1129; See also O'Connel Y. B. (1950) P. 93): "The term 'Act of State' is used, not only narrowly to describe the defence explained above, but also, perhaps somewhat loosely, to denote a rule which is wider and more fundamental namely, that 'those acts of the Crown which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. As regards the principles of International Law, it may be pointed out that after the Report of the Transvaal Concessions Commission and Professor Keith's theories in his book, the attention of the world communities has indeed been drawn to the preservation of economic concessions and acquired rights by the annexing or cessionary State. When the Indian Islands were ceded to Greece the Law Officers (Sir Robert Phillimore was one of them) advised: "Both according to the principles of International Law and the practice of all civilised States, ceded territories pass, cum onere to the new sovereign.' (Opinion of 15th August, 1863, F. 0. 83/2287.) McNair International Opinions, Vol. 1 p. 156. Similar advice was given on the occasion of annexation of Peruvian territory by Chile (1884), of Madagascar by France (1896), cession of Cuba and the Philipines by Spain (1898). McNair ibid pp. 157 et seq. Again at the annexation of the Boer Republics between 1900 and 1909 what should be the attitude of Britain led to domestic controversy. The legal advisor to the High Commissioner advised that responsibility arising from obligations incurred by the South African Republic and Ora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 99] A.C. 572). Concessions "in consequence of the general principles of International Law." In the case of Settlers of German origin in territory ceded by Germany to Poland and German interest in Upper Silesia case (P.C.I.J. series B No. 6 and series A No. 7) the doctrine of acquired rights was accepted, in respect of private rights. The term "acquired rights" has not received a consistent meaning in this connection. It is not the notion of ius quaesitum which was the result of juristic activity following upon the social contract theory. In International Law, it has different meanings. At one extreme is the view that it must be "a grant to an individual of rights under municipal law which touch public interest" and at the other end "every economic concession" is held included. Of course even International Law does not recognise,a universal succession. The term economic concessions" must involve a contract between the State or a public authority on the one hand and a concessionaire on the other and must also involve an investment of capital by the latter for erection of public works or exploitation in the public sector. Such cases are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al opinions and have influenced international opinion. The question has been raised that we must accent this as the exposition of the law to be applied by municipal courts here. The doctrine in the United States is not unlimited. Limitations were pointed out by Chief Justice John Marshall himself in the case of Foster v. Nielson([1829] 2 Pet. 253). That case involved the effect upon private land titles of a phrase in an Article of a treaty with Spain. That phrase was "shall be ratified and confirmed to those in possession". It was, as the Chief Justice said, in the "language of contract" and. it required legislative implementation before titles could be claimed. This has led to a differentiation between self executing treaties and non-self-executing treaties. Says Chief Justice John Marshall:- "A treaty is in its nature a contract between two nations, not a Legislative Act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra-territorial; but is carried into execution by the sovereign powers of the respective parties to the instrument. In the United States a different principle is established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a concessionary right such as he has received the support of international writers. It is more of the nature of a gift by the ruler at the expense of the State. It lacks bona fides which is one of the things to look for. There is no treaty involved and whatever guarantee there is, the Constitution precludes the municipal courts from considering. Politically and ethically there might have been some reason to accept and respect such concessions but neither is a reason for the municipal courts to intervene. The position of the municipal courts according to English Jurisriudence has been noticed in earlier cases. To them may be added the following considerations. In Amodu Tijani v. Secretary, Southern Nigeria (3) it was said: "a mere change in sovereignty is not to be presumed as meant to disturb rights of private owners, and (1) 7. Pet. 61 (2) 331 U.S. 503. (3) [1921] 2, A.C. 399. the general terms of a cession are prima facie to be construed accordingly." (p. 407). Again, in West Rand Central Gold Mining Co. v. Regem((1905) 2 K.B. 391), it was said: "It must not be forgotten that the obligations of conquering states with regard to private property of private ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat any government which de facto succeeds to any other government, whether by revolution or restoration, conquest or reconquest, succeeds to all the public property, to everything in the nature of public (property, and to all rights in respect of the public property, of the displaced power, whatever may be the nature or origin of the title of such displaced powers". But the rule that the Act of State can be questioned in a Municipal Court has been adopted and it has been considered that it is a matter for the political departments of the State. To quote from Cook v. Sprigg([1899] A.C. 572). ".... if there is either an express or a well- understood bargain, between the ceding potentate and the Government to which the cession is made, that private property shall be respected, that is only a bargain which can be enforced by sovereign against sovereign in the ordinary course of diplomatic pressure." I do not, therefore, accept the contention that a change of opinion is necessary. Even Bose J., did not decide in Virendra Singh's case([1955] 1 S.C.R. 415), on the basis of international law or the opinion of the Supreme Court of the United States. In my opinion, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re into the propriety of which a Municipal Court had no Jurisdiction. Lord Kingsdown observed at p. 529: "The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer: Such Courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make." In Vajesingji joravarsingji v. Secretary of State for India Council(L.R. 51 I.A. 357. 184-159 s.c.- 476) the Board observed (at p. 360): "...... 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 recognized ruler. In all cases the result is the same. Any inhabitant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e should be the one which has been recognized by the Supreme Court of the United States that of the accession of a State to another, private rights of the citizens enforceable against their sovereign are not affected, and may be enforced in the Courts of the new sovereign. In support of this argument Mr. Purshottam relied upon the observations made by Marshall, C. J., in United States v. Percheman(1833] 32 U.S. 51, at 86, 87): "The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory ? A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could consider itself as attending a wrong to individuals, condemned by the practice of the whole civilised world. The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition in treaties of cession concluded by the United States. But as observed by Lord Halsbury in cook v. Sprigg([1899] A.C. 572) "It is a well-established principle of law that the transactions of independent States between each other are governed by the others, 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 such private property within the ceded territory. All that can be properly meant by such, a proposition is that according to the well-understood rules of international law a change of sovereignty by cession ought not to affect private property, but no municipal tribunal has autho- rity to enforce such an obligation." It was then urged that by cl. 7 of the letter of guarantee written by Mr. V. P. Menon on behalf of the Government of India on October 1, 1948, which was to be regarded as expressly stated in that letter, as part of the merger agreement dated March 19, 1948, the Government of India had undertaken to accept all orders pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore did not allow the forests to be worked unconditionally. Cutting of trees in the forests by the contractors was permitted subject to certain terms and conditions and on the clear undertaking that the question as to the right and the terms under which they could cut the forests would be decided by the Government. The Government of Bombay on July 8, 1949, resolved that the order passed by the Ruler of the Sant State dated March 12, 1948, transferring forest rights to holders of the jagirs villages were mala fide and that they should be can- celled, but before taking further action in the matter, the Commissioner should ascertain whether the possession of the forests in question was with the Government or was with the jagirdars. The order proceeded to state: "It the possession is still with Government please ask the Officer of the Forest Department to retain the same and to refuse to issue passes, etc., to private contractors and purchasers'. A copy of this order was forwarded to the Forest Officers, Santrampur for information and guidance and it is found endorsed on that order that no transit passes be issued-to the jagirdars to whom rights over forests were conceded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that the powers that were exercised by the Ruler of an Indian State in respect of or in relation to such Indian State under any such provisions of law immediately before the appointed day, shall be exercised by the Provincial Government or any officer specially empowered in this behalf by the Provincial Government." It was urged that the order issued by the Ruler of Sant State was either "law" or an "order made or prescribed under any law" in force immediately before the appointed day and by virtue of cl. 4 of the Administration of the Indian States Order, it must be deemed to have remained in operation and any action taken in contravention thereof by executive action was unjustified. Our attention has not been invited to any statutory provisions relating to forests in the State of Sant, nor does the order dated March 12, 1948, purport to be issued in exercise of any statutory power. On the face of it the order grants certain rights in forests which had not been previously granted to the jagirdars by the Ruler. It is urged that the Ruler of Sant was an absolute Ruler in whom were vested all authority legislative, executive and judicial, and whatever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er you have to reach the source of autho- rity in the power of the previous autocratic sovereign, the true nature of the function exercised may become important, when the laws of the former State are by express enactment continued by the new sovereign. The order dated March 12, 1948, conveys to the jagirdars rights which had been previously excluded from the grants. The form of the order is of course not decisive. An important, test for determining the character of the sovereign function is whether the order expressly or by clear implication prescribes a rule of conduct governing the subject which may be complied with a sanction demanding compliance therewith. The order dated March 12, 1948, is expressly in the form of a grant of the rights which were not previously granted and does not either expressly or by implication seek to lay down any binding rule of conduct. I am therefore unable to hold that the order issued on March 12, 1948, by the Ruler of Sant State was "law" or an order made under any law within the meaning of cl. 4 of the Administration of the Indian States Order. 1948. Cases which have come before this Court in which the question as to the binding effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into and adjudicated upon by a civil court fell to be determined. The Court in that case held that the right of Akram Ali who claimed to be hereditary Sajjad Nashin and Mutwalli was subject to the order of the Nizam which had been passed before the Hyderabad State merged with the Union of India and the applicant having no rights it could be enforced at the date of the Constitution and the Courts were incompetent to grant him relief till the rights were determined by the Constitution. The effect of the 'Firman' was to deprive the respondent Akram Ali and all 'other claimants of all rights to possession pending enquiry into the case. It is clear from the observations made in that judgment that the only decision of the Court was that by the 'Firman' the rights of the Sajjad Nashin and Mutwalli was suspended till determination by the civil court of his right to possession. The 'Firman' was given effect not because it was regarded as the expression of the legislative will but because it had become effective before the Constitution came into effect suspending the rights of the applicant. In Madhorao Phalke v. The State of Madhya Bharat([1961] S.C.R. 957) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner was annulled before Bamra became part of the Union of India and the right created by the grant had on that account ceased to exist. In two other petitions Nos. 168 of 1958 and 4 of 1959 it was found by the Court that the maintenance grants in favour of certain members of the family of the Ruler were recognised by the Government of India 'and the right thus recognised was given effect to and payments pursuant thereto were continued for nearly eight years after the merger of the State. This Court held that the State having recognized its obligation to pay the maintenance grants which were -agreed to be granted under the statutory law and the custom of the State, the grants could not be annulled by executive action. In the principal writ petition No. 79 of 1957 the grants by the Ruler of Talcher was made subject to the -terms and conditions laid down under Order 31 of the Rules and Regulations of the State of Talcher of 1937. These Rules and Regulations of Talcher of 1937 were regarded as the law of the State and it was in accordance with the law that the 'Khor Posh' grants were made by the Ruler. If was held that these grants had the effect of law. Sinha C.J., d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the shrine during the minority of the Tilkayat Maharaj and by the last clause it was provided that in accordance with the law of Udaipur the Maharana had declared Shri Damodarlalji-the then Tilkayat Maharajunfit to occupy the Gaddi and had approved of the succession of Goswami Govindlalji to the Gaddi of Tilkayat Maharaj. This 'Firman' declared the character of the trust relating to the Shrinathji temple, laid down rules as to the succession and provided for the management during the minority of the Tilkayat, and declared the right of the State to remove the Tilkayat and for enforcement of that right by declaring that the then Tilkayat was unfit to occupy the Gaddi. This was in substance though not in form exercise of the legislative will of the sovereign. Its operation was not exhausted by its enforcement during the regime of the Maharana of Udaipur. Devolution of the Gaddi, and declaration about the power of the Ruler over the shrine were intended to govern the administration of the shrine for all times. It is true that in that case in paragraph-32 it was observed after referring to Madhorao Phalke's ease([1961] S.C.R. 957), Ameer-un-Nissa Begum's case (A.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cteristics of law. The Court in that case observed that every order of an absolute Ruler who combines in himself all functions cannot be treated as "law" irrespective of the nature or character of the order passed. There is, it was observed, a valid distinction between an agreement between two or more parties even if one of the parties is the sovereign Ruler, and the law relating generally to agreements; the former rests on consensus of mind, the latter expresses the will of the sovereign. This case supports the proposition that every act done or order passed by an absolute Ruler of an Indian State cannot have the force of law or be regarded as "law" since the merger of his territory with the 'Union of India'. To have the vitality of law after merger, it must be the expression of the legislative will of the Ruler, There is yet another judgment of this Court in The Bengal Nagpur Cotton Mills Ltd. v. The Board of Revenue, Madhya Pradesh and Others(A.I.R. 1964 S.C. 888) in which also the question whether an agreement between the Ruler of Rajnandgaon and M/s. Shaw Wallace and Company in connection with the setting up of a textile factory on certain concessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... property rights of persons against any executive action not supported by law. To attract the clause, there must, however, exist a right to property which is sought to be protected. If for reasons which we have already stated in considering the first question, the subjects of the acceding State are entitled only to such rights as the new sovereign chooses to recognize, in the absence of any recognition of the rights of the respondents or their predecessor jagirdars, there was no right to property of which protection could be claimed. As held by this Court in State of Saurashtra v. Jamadar Mohamad Abdulla and others(1962] 3 S.C.R. 970) orders passed by the Administrator of the State of Junagadh appointed on behalf of the Government of India (which had assumed charge of the administration of the State after the Nawab of Junagadh fled the country) on various dates between November 9, 1947 and January 20, 1949, cancelling grants in favour of certain persons in whose favour the grants had previously been made by the Nawab of Junagadh were not liable to be challenged in suits filed by the grantees in the Civil Courts of the Dominion, on the plea that the properties had been taken away wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nception of the nature of the fundamental right conferred by Art. 31(1) of the Constitution. In terms, the Article confers a right to claim protection against deprivation of property otherwise than by authority of law. A right to property is undoubtedly pro- tected against all actions otherwise than under the authority of law. But the clause postulates a right to property which is protected. It does not purport to invest a person with a right to property which has not been recognized by the Dominion of India or the Union. Even if the right to property was recognized by the Indian State of which the claimant was subject, so long as it is not recognized by the Dominion or the Union it is not enforceable by the Courts in India. On the merger of the State of Sant with the Dominion of India, undoubtedly the respondents became citizens of the Dominion and they were entitled like any other citizen to the protection of the rights which the Dominion recognized. It has also to be remembered that promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union. It was merely change in the form of Government. By the Constitution, the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Pradesh was dissolved, and the covenanting States separately acceded to the Dominion of India, and surrendered all authority and jurisdiction in relation to the governance of the States and executed instrument called 'The Vindhya Pradesh Merger Agreement'. The States which formed the Vindhya Pradesh were transformed into a Chief Commissioner's Province on January 23, 1950. The grants of the four villages made in favour of the petitioners Were revoked in August 1952 by the Government of the State of Uttar Pradesh to which State those villages being enclaves within its territory were transferred. The grantees of the villages then petitioned this Court under Art. 32 of the Constitution challenging the validity of the orders revoking the grant of jagirs and maufis in the four villages as violative of Arts. 31 (1) and 19 (1 ) (f ) of the Constitution. This Court observed that the properties in question were the properties over which the Rulers had right of disposition at the date of the grants, and the grants were absolute in character and would under any civilised system of law pass an absolute and indefeasible title to the grantees and that assuming that the titles were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction, but of evolution. For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January, 1950, could be regarded as enforceable against any one. Till the Dominion of India recognised the right, expressly or by implication there was no right to property which the Courts in India could enforce. There is nothing in the Constitution which transformed the claims which till January 25, 1950, had not been recognized into property rights so as to prevent all further exercise of the act of State, and extinguish the powers of the Union to refuse to recognize the claims. The order passed in August 1952 revoking the grants by the Rulers of Sarila and Charkhari was in my view in substance an act of State. It is true that there can be no act of State by a sovereign against his own subjects. But the State was seeking to refuse to recognize the claims made by the grantees from the former Rulers, and the fact that the act of State operated to the prejudice of persons who were at the date of refusal of recognition citizens, did not deprive the act of State of either its character or efficacy. These appeals must therefore be allowed and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the date on which the merger became effective. The Ruler of the State passed a Tharao (which is translated as 'Order) on March 12, 1948 in the following terms:- "S. Ta. Mu Outward Register No. 371. The Jivak, Patavat, Inami, Chakariyat, Dharmada villages in Sant State are being given (granted) to Jagirdars and the holders of the said villages are not given rights over forests. Hence after considering the complaints of certain Jagirs, they, are being given full rights and authority over the forests in the villages under their vahivat. So, they should manage the vahivat of the forest according to the policy and administration of the State. Orders in this regard to be issued." Taking advantage of the Tharao several Jagirdars entered into contracts pertaining to the exploitation of the forests in their Jagirs. The respondents in these appeals are some of the forest contractors. The Government of the Province of Bombay through the officers of its Forest Department did not allow the respondents to exercise their rights under the contracts entered into with them by the Jagirdars on the ground that the grant of forest rights by the former Ruler to the Jagirdars was not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivy Council's view and adopt the modem view inasmuch as the latter is considered by common consent to be just and fair and finally (6) that the Jagirdars could not be deprived of the forest rights deprived by them from the Ruler of Sant State before the Constitution, without ,complying with the provisions of s. 299 of the Government of India Act, 1935, and after the coming into force of the Constitution without complying with the provisions of Art. 31 of the Constitution. I agree with my brother Ayyangar J., that the fact that some officers of the forest department had permitted the respondents to carry on operations in the forests leased out to them by the Jagirdars does not amount to recognition of the right conferred upon the latter by the Tharao of March 12, 1948. In the first place, it was not open to the officers of the forest department to grant recognition to the Jagirdars' rights for the simple reason that the right of granting recognition could be exercised only by the Government acting through its appropriate agency. Moreover the permission which was accorded to the respondents was only tentative and expressly subject to the final decision of the Government on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to exist. It follows therefore that a right which has, ceased to exist does not require repudiation. As regards the argument that the Government has waived its right to with old recognition, I agree with all that has been said by my brother Ayyangar J. Indeed, if the inhabitants of a ceded territory have ceased to have a right against the new sovereign there is nothing for the sovereign to waive. I also agree with my learned brother that if the letter of the Secretary to the States Department wpon which reliance is placed by the respondents is regarded as part of the agreement of merger the municipal courts are precluded by Art. 363 of the Constitution from enforcing any rights arising thereunder. The argument that there can be no Act of State against its citizens is based upon the supposition that the rights claimed by the Jagirdars from their former Ruler would be available to them against the new sovereign unless they were repudiated and that here, as the resolution of the Government of Bombay dated February 6, 1953 stating that Jagirdars' rights have already been repudiated amounts to an Act of State against persons who had long before this date become the citizens of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the municipal courts subject to the modification. Would the position be different where a particular rule of international law has been incorporated into the common law by decisions ,of courts? So far as the municipal courts are concerned that would be the law of the land which alone it has the power and the duty to enforce. Where Parliament does not modify or abrogate a rule of international law which has become part of the common law, is it open to a municipal court to abrogate it or to enforce it in a modified form on the ground that the opinion of civilized States has undergone a change and instead of the old rule a more just and fair rule has been accepted ? Surely the law of a State can only be modified or repealed by a competent legislature of theState and not by international opinion however weighty that Opinion may be. Now, a rule of international law on which the several Privy Council decisions as to the effect of conquest or cession on the private rights of the inhabitants. of the conquered or ceded territory is founded has become a part of the common law of this country. This is 'law in force and is saved by Art. 372 of the Constitution. The courts in India are, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be a long and laborious process and may be rendered onerous or by reason of constitutional provisions such as those contained in Part III of our Constitution, even impossible. It would also not be reasonable to regard the new sovereign as being bound by duties and obligations created by the ex-sovereign till such time as the new sovereign was able to show that they were incurred by the ex-sovereign mala fide. It is apparently for such reasons that the law as found by the Privy Council deprives the grantees under the former ruler completely of their rights as against a new sovereign by making those rights unenforceable in a municipal court. It, however, also envisages the recognition of those rights by the new sovereign. This means that the new sovereign is expected to examine all the grants and find out for himself whether any of the grants are vitiated by mala fides or were against his legitimate interests so that he can give recognition to those grants only which were not vitiated by mala fides or which were not against his interests. That this is how the rule was applied would be clear from what happened in this country when time and again territories were ceded by former In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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