Marnnelal J ain v.
The State of Assam
Sarkor J.
Mudholkar 7.
—_—_—
October 3.
societies is not open to any objection. In my viow athat was a fair Order to havo been made in the circumstances of this case. [ would for these roasons dismiss this petition. MvupHoLKak, J.—I agree with the judgment delivered by Sarkar, J. By Cotrt—In accordance with the opinion of the majority this Writ Petition is allowed with costa.
Petition allowed.
STATE OF SAURASHTRA v. JAMADAR MOHAMAD ABDULLA AND ORS. (B.P. Srna, C. J., 8. K. Das, A. K. Sarkar,
N. RaJAGOPALA AYYANGAR and J. R. Mupnoikar, JJ.)
Act of State—Junagadh State---When integrated into India— Political Queation— Reference to Government for opinton—Grants by Nairab—Resumption by Administrator—lf can be challenged
‘in Municipal courts Government of India Act 1935 (26 Geo v.
Ch, .2}, 8. 5, 6, 299{1).
The Nawab of Junagadh State made giants of properties in favour of the respondents before 1947. After India attained independence the Nawab fled the country. At the request of the Nawab’s Council the Government of India took over the administration of the State and on November 9, 1947, the Regional Commissioner assumed charge of the administration on behalf of the Government of India. The Regional Commissioner appointed an Adiministrator of Junagadh State. In December 1948, the elected representatives of Junagadh and certain other neighbouring States recommended to the Government of India and to the United State that of Saurashtra that the States be integrated. Thereafter, the administration of Junagadh State was integrated with the United State of Saurashtra on January 20, 1949. On different dates between © November 9, 1947, and January 20, 1949, the Administrator passed ordess cancelling the grants in favour of the respondents and took pessession of the properties. The respondents filed civil suits for the recovery of the properties on the ground that vi
3 8.C.R. SUPREME. COURT REPORTS 971.
they had been taken away without the authority of law. The appellant contended that the orders made by the Administrator arose out of and during an act of State and were not justiciable in the municipal courts. The respondent contended that the question as to when the change over of sovereignty took place was a political question which should be referred to the Government of India for its opinion and the Court should abide by that opinion and that the facts of this case showed that there was complete change over of sovereignty on November 9, 1947, and the act of State was complete.
Held, (per C. J., Das and Ayyangar, JJ.) that the impugned orders arose out of and during an act of State and they could not be questioned before municipal tribunals. There was no change over of de jure sovereignty on November 9,1947 when the administration was taken over and Junagadh continued to exist as such even after this date. Junagadh was not a State which acceded to the Dominion nor was its territory included within the territory of the Dominion as from November 9, 1947, It was only on January 20, 1949, that the Dominion of India assumed de jure sovereignty over Junagadh by its integration into the United State of Saurashtra and the act of State came to an end. It was not necessary to seek information from the Government of India as to the date of the change over as there was no uncertainty about it and also as the Government of India had spoken with sufficient clarity in the White Paper on Indian States.
State of Saurashtra v. Memon Haji Ismail Haji, (1960) 1S.C.R. 537 and M/s. Dalmia Dadri Cement Co., Lid. v. The Commissioner of Income-tax, (1959) S.C.R. 729, followed.
In re: SouthernRhodesia, (1919) A.C. 211 and Samuaut v. Strickland (1938) A.C. 678, referred to.
Per Sarkar and Mudholkar, JJ. Even, if it be accepted that Junagadh was annexed on November 9, 1947, and the respondents became citizens of India, they could assert and establish in the municipal courts ofthe new sovereign-only such rights as were recognised by the Indian Dominion. The burden of showing that they were so recognised lay on the respondents. The orders passed by the Administrator show that far from recognizing the: grants in favour of the respondents they were repudiated. The respondents could not claim the benefit of s. 299 (1) of the Government of India.Act,.1935, as they had to.establish that on or after November 9, 1947, they possessed a legally enforceable right against the Dominion of India, which they could only do by showing that’ their pre-existing rights had been recognized by the Dominion of India; 8.299(1) ‘did not'enlarge any rights to property but only protected. those which a person already had.
State of Saxrashira vs Famadar Mohamad Abdulla
State af Saurashiva v. Jamodar Muhanad alla
S,&, Das J.
972 SUPREME COURTREPORTS [1962]
M;8 Dabnia Dadri Cement Co., Lid. v. The Commissioner of Income-tax, (1958) §.C.R. 729, In Ke: Southern Rhodesia, (1919) A.C. 211. Samaut v. Strickland, (1938) A.C.-678, United States v. Percheman, (1833) 32 U.S. 51, Cook v. Sprig, (1899) AC. 572, Thacker v. State of Saurashtra, A.I.R. 1954 S.C, 680 and Virendra Singh v. State of Uttar Pradesh, (1955) 1 S.C.R. 415.
CiviL APPELLATE JURISDICTION: Civil Appeals Nos. 220, 221, 349 and 497 of 58.
Appeals from the judgment and decrees dated 1955 March 24,1956 Septomber 15 and 1956 April 12 of the former Saurashtra High Court at Rajkot in Civil Second Appeals Nos. 123 of 1953 & 104 of 1955 and Civil Appeals Nos. 42 of 1953 and 50 of 195-4.
M. C. Selahud, Allorney-General for India, C.K. Daphtary, Solicitor-General of India, B. Sen and R.H. Dhebar, for the Appellant (In all the Appeals).
I. N. Shroff for the Respondents (In C. As. Noa. 220 and 221 of 1958).
G. S. Pathak, N. P. Nathnwni and K. L. Hathi for the Respondents (In C.A. No. 349 uf 1958).
J. P. Mehta, J. B. Dadochanji, Onkar Chard Mathur and Ravinder Narain, for the Respondents (fn C.A. No. 497 of 1958).
1961. October 3. The Judgment of Sinha, C.J., S. Kk. Das and N. Rajagopala Ayyangar, JJ. was delivered by S. K. Das, J. The Judgment of A.\. Sarkar and J. R. Mudholkar, JJ., was delivered by J. R. Mudholkar, J.
S. K. Das, J.—Thesc four appeals which have been brought to this Court on certificates granted by the then High Court of Saurashtra under Art. 1383 of the Constitution fall into three groups, and have been heard together. The essential facta relating to these appeals are the same, and a common question of law now falls for determination on those facta.
af
“Ma
3.8.C.R. SUPREME COURT REPORTS 973
The State of Gujarat, within whose territories the disputed properties are now situate, is the appellant in the appeals. The respondents and in some cases their ancestors, obtained grants from the then Nawab of Junagadh, which was then a ruling State, in respect of lands and, in one case, of a building known as ‘Datar Manzil’. ‘These grants were repudiated or cancelled and the property, subject of the grant, was resumed by the Administrator who took over charge of the administration of Junagadh on behalf of the Dominion of India in 1947 in circumstances which we shall presently state. The respondents brought suite challenging the validity of the orders made by the Administrator. These suits were decreed by the lower court and the decrees were substantially upheld by the High Court of Saurashtra. The principal point for decision in these appeals is whether the impugned orders made by the Administrator arose out of and during an act of State which was not justiciable in the municipal courts. This is the only point which has been agitated before us on behalf of the appellant-State and very strong reliance has been placed on the decision of this Court in the State of Saurashtra v. Memon Haji Ismail Haji (1) where, in circumstances sime as those of the appeals before us, it was held that the act of the Dominion of India in assuming the administration of Junagadh was an act of State pure and simple and the resumption of the grant in question therein having been made by the Administrator before that act was completed and at a time when the people of Junagadh were aliens outside the State, the act of resumption, however arbitrary, was an act of State on behalf of the Government of India and was not, therefore, justiciable in the municipal courts. It may be here noted that by that decision this Court over-ruled the earlier decision of the Saurashtra High Court in Stale of Saurashtra v. Memon Haji Ismail Haji Valimamad(’),
(1) [1960] 1 S.C.R. 537. (2) AAR. 1953 Saurashira 180.
v. Janador Mohamad Abdulla
S.K. Das Ff.
196}
State of Sawashtra ¥, Jamedar Mohamad Abdalla
S.K. Das J.
a decision on the basis of which the High Court decided the cases under considcration in these appeals.
The learnnd Attorney-General has submitted that the decision of this Court in the Stale of Saurachira v. Memon Haji Ismail Haji!) completely covers and concludes the present appeals. On behalf of the respondents it has becn contended that the decision aforesaid proceeded on a finding that the actof State was-not completed before the impugned orders were made and that finding being a finding of fact does not bind the respondents who were not parties to the case in which the decision was rendered. In the appeals before us the main contention on behalf of the respondents has been that the impugned orders were made after the assumption of sovereignty by the Dominion of India was completed, and.therefore the decision of this Court in. the State of Saurashira v. Memon Haji Ismail Haji(4) is not determinative of the problem which arisos in these appeals. It has been further argued that after full sovereignty had been assumed by tho Dominion of India, the petition of the people of Junagadh including the respondents was not that of aliens outside the State, but their position on such assumption of sovoreignty was that of citizens of India against whom there could be no act of State and they had rights as such citizens in respect of which they could ask for relief in the municipal courts.
We have set out above, in brief outline, the principal point which falls for decision in these appeals and the respective contentions of the parties relating thereto in order to high-light the main problem presented for solution in these appeals.
But we must first set out the essential facts which are relevant for the solution of the problem. We have already stated that the essential facts aro the same in these appeals, though the facts relating
(1. [1960] 1S. C. R. $37.
to each of the grants made in favour of the respondents are different. We shall state the essential facts bearing upon the main problem and then briefly refer to the grants made in each of the cases.
India attained independence in 1947, As from the 15th day of August, 1947, two independent Dominions were set up known respectively as India and Pakistan under the Indian Independence Act, 1947 (10 & 11 Geo. VI. C. 30). Under s. 7 of the said Act, the suzerainty of His Majesty over the Indian States including Junagadh lapsed. It released those States from all their obligations to the Crown. The White Paper on Indian States said (at page 32):
“Tt was evident that if in consequence the Indian States became separate independent entities, there would beaserious vacuum not only with regard to the political relationship between the Central Government and the States, but also in respect of the co-ordination of all-India policies in the economic and other fields. All that the Dominion Government
‘ inherited from the Paramount Power was the proviso to section 7 of the Indian Independence Act, which provided for the continuance, until denounced by either of .the parties, of agreements between the Indian States and the Central and Provincial Governments in regard to specified matters, such as Customs,
Posts and Telegraphs, etc. (Appendix IV).”
A process of accession was therefore begun and by August 15, 1947 all the States in the geographical limits of India barring Hyderabad, Kashmir and Junagadh had acceded to the Indian Dominion. The Nawab of Junagadh, however, did not accede to the new Dominion of India by executing an Instrument of Accession as did the other Rulers in Saurashtra. He fled the country and the affairs of Junagadh State fell into disorder and chaos. At the request y. Jamadar M chamad Abdulla
S.K. Das 7.
State of Saurasht:a v. Jamader Mohamad Abdulia
S.K. Das J.
of the Nawab’s Council, the Government of India decided to take over the administration of the State. On November 9, 1947, the Regional Commissioner, Western India and Gujarat States Region, assumed charge of the administration of the State on behalf of the Government of India. A proclamation was issued on that date which said that the Regional Commissioner had assumed chargo of the administration of the Junagadh State at 18-00 hours on November 9, 1947. On November 14, 1947 the Regional Commissioner appointed Shri §. W. Shiveshwarkar as Administrator of Junagadh State. The Administrator passed certain orders which are the orders impugned im these appeals and to which we shall presently refer, but we must first complete the general picture of political changes that took place in Junagadh. In February, 1948 the Government of India held a referendum in Junagadh State to ascertain the choice of the people in regard to accession and the people voted by a large majority in favour of accession to the Dominion of India. The Administrator then decided with the approval of the Government of India to appoint on Executive Council with himself as President and three other persons as members thereof. 1n December, 1948 the elected representatives of the people of Junagadh resolved that the administration of the State be made over to the Government of Saurashtra and that the representatives of Junagadh bo enabled to participate in the Constituent Assembly of Saurashtra State with a view to framing a common Constitution for Saurashtra and tho Junagadh State. I[t is necessary to state now how this integration took place. On January 23, 1948, thirty rulers of the principal States of Kathiawar signed a covenant bringing into existence thie United State of Kathiawar (later known as the United State of Saurashtra) comprising the territories of their States for the welfare of the peoplo and entrusted to a Constituent Assembly the task
Ar
3S.C.R. SUPREME COURT REPORTS 977 of drawing up a democratic Constitution for that State within the frame-work of the Constitution of India to which they had already acceded. On that date Junagadh State had no Ruler nor was any Covenant signed on behalf of the Junagadh State. Later, in December, 1948, the elected representatives of the people of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh recommended to the Government of India and the Government of the United State of Saurashtra, as it was then called, that the administration of the States mentioned above be integrated with the United State of Saurashtra. The Rulers of the Covenanting States thereupon entered inio a Supplementary Covenant with the concurrence of the Government of India to provide for such integration and for the participation of the elected representatives of the people of these States into the Saurashtra Constituent Assembly. Article 3 of the Supplementary Covenant was in these terms : (See White Paper on Indian States, page 249) :
“From a date to be agreed upon between the Government of the said States and the Government of the United State of Saurashtra, with the concurrence of the Government of India, the administration of the said States shall be integrated with that of the United State of Saurashtra and thereafter the legislative and executive authority, powers and jurisdiction of the United State of Saurashtra shall extend to the said States
_to the same extent as it extends to the territory of any Covenanting State............ ”
The administration of the Junagadh State was_ thereafter integrated with that of the United State of Saurashtra on January 20, 1949. Therefore, as from that date the legislative and executive authority and jurisdiction ofthe United State of Saurashtra extended to the Junagadh State to the same extent.as it extended to the rest of the territories of the Covenanting States.
e
State of Saurashira v. Jamadar Mohamad Abdulla
S.K. Das}.
v. Jamadar Mohamad Abdulla
S.A. Das J.
Further political changes tcok place after January 20, 1949, but with thosc changes we are not concerned in the present appeals. The two dates which are important for our purpose are November 9, 1947, when tho Regional Commissioner first took over charge of the administration of Junagadh and January 20, 1949 when Junagadh merged into the United State of Saurashtra.
Now, as to the impugned orders mado by the Administrator. In Civil Appeal No. 349 of 1958 the ancestor of tho respondents had obtained grants from the then Nawab of Junagadh of two villages called Handla and Venderwad some time between the years 1865 and 1868. A detailed history of the grants so made is not necessary for our purpose. On December 6, 1947, the Administrator made the following order :
“It has come to the Administrator's notice that Aba Salem Bin Aba Mahmed Hindi the alience of Handla village,
(i) was maintaining many Arab employees of Timbdi at his house in Junagadh, .
(ii) was uttering threats to massacre all Hindus of Handla village,
(iii) was keeping in Handla fifty animals at the expense of the poor villago people,
(iv) did not pay any remuneration to Dhedh employees of his garden and was exacting Veth from them,
(v) was buying exhorbitant cesses from the village people,
(vi) had converted into Islam three Hindus, and
(vii) had taken the following arms from Handla to Junagadh about a month ago:
®
2h
(a) 12 bore guus and (b) one M. I. gun.
It is, therefore, ordered that the village of Handla should be taken under the State management. The Revenue Commissioner should make necessary arrangements for the game and report compliance.
By that order the management of Handla_ was taken over by the State. Though there is no reference to the other village Venderwad in the order, the admitted position is that the management of both the villages was taken over. Then on January 8, 1949, the Administrator passed the following order :
“The Junagadh State Government is pleased to order that the land and villages comprising the Handla estate which is an Inam grant be resumed by the State forthwith.”
This order also refers only to the Handla estate, but the admitted position is that both the villages were resumed by the order of the Administrator. It is the order dated January 8, 1949, which is impugned by the respondents in this appeal.
In Civil Appeal No 497 of 1958 the grant was in respect of a bungalow or building known as ‘Datar Manzil’. On March 9, 1948 the Administrator made the following order:
“The State buildingsituated near Gadhrup Wada at Junagadh, was granted to Khan Shri Abdullakanmiyan Mahomedkhanmiyan, hereditarily by way of gift, under Dewan Daftar Tharav No. 3379 dated Ist August, 1930.
The said Tharav is hereby cancelled and itis hereby ordered in the interest of the State that the said building along with all ‘the superstructures thereon should be resumed and managed by the State as State property.”
State of Saurashtra v. Jamadar Mohamad Abdulla
S.R. Das J.
Vv. Jamadar Mohamad
S. 4. Das 7.
980 SUPREMECOURTREPORTS [1962]
In Civil Appeals Nos. 220 and 221 of 1958 the impugned order is dated July 27, 1948, and is in these terms:
“Twenty five Santis of land from the village of Khokharda under Vanthali Mahal was granted as a gift hereditarily to Mr. Mohamed Abdulla, son of late Jamadar Abdulla Moosa under Hazur Farman No. 279 dated 30th April, 1943.
In view of the principles of Alienation scttlement of 1897 no grant can bo wantonly favoured to anybody in contravention of the well ostablished principles of resumption attaching to such grants.
It is hereby ordered that Hazur Farman No. 279 dated 30th April, 1943, is cancelled and the land in question should be resumed by the State forthwith by setting aside tho settlement made thereon.”
Tt will be noticed from what has been stated above that the impugned orders were all made after November 9, 1947, but before January 20, 1949. The question before us is whether the orders were made in pursuance of acts of State not justiciablo in the municipal courts.
There can be no doubt that if the decision of this Court in State of Saurashtra v. Memon Hajt Ismail Haji (1) applies, then these appeals must be allowed. Learned counsel for the respondents has however sought to distinguish that decision on the ground that the decision proceeded on the footing that the Dominion of India assumed sovercignty over Junagadh on January 20, 1949. His contention is that when tho Dominion of India assumed charge of the administration of Junagadh State on November 9, 1947, through the Regional Commissioner, Western India and Gujarat States Region, there was a complete change-over of sovercignty, the act of Stato was complete, and the Dominion of India became the new sovereign; thereafter,
(1) [1960] I.S.C.R. 587.
~ the people of Junagadh including the respondents, so the argument proceeded, became citizens of the Dominion of India and had rights as such citizens in respect of which they could ask for relief in the municipal courts. It would be apparent that this ‘argument consists of two steps: the first step in ‘the argument is that there was a complete changeover of sovereignty on November 9, 1947 and the act of State was complete; the second step in tho argument which is really based on the correctness of the first step is that on such a change-over of ‘sovereignty the people of, Junagadh, including the respondents, became citizens of the Dominion of India and were no longer aliens outside the Dominion. We shall now consider the validity of the first step in the argument. In doing so we must make it clear that we must not be understood to have assented to the submission of learned counsel for the respondents that a finding as to _ change-over of sovereignty or completion of an -act of State, is a finding of fact pure and simple. In our view, the question essentially is what inference in law should be drawn from the fact proved or admitted relating to the change-over of sovereignty. As the matter was not argued from this stand point in the State of Saurashtra v. Memon Haji Ismail Haji(), we have allowed learned counsel for the respondents to address us on this question.
Learned counsel for the respondents has made a two-fold submission: firstly, he has submitted that the question as to when the change-over of sovereignty took place is a political question and must or should be referred to the Government of India for opinion and the Court should abide by that opinion; secondly, he has submitted that on ‘the facts admitted in this case, it should be held that there was a complete change-over of sovereignty on November 9, 1947, and the act of State was ‘complete. We do not think that cither of these two submissions of learned counsel for the respondents is correct. On the. first snbmission he has (1) [1960] 1 $.C.R! 537:
¥. Jamadar M ohamad Abdulla —
S.K. Das J,
“988° SUPREME COURT REPORTS [1962]
i961 drawn our attention to.para. 603 -at-pages 285-286, State of Sawashtra WOl. 7 of ‘Halsbury’s Laws of England, 3rd “Ed. That paragraph is in these terms :
Jamaday. Mohamad Abdullah a « There is a-class of facts which are con- S.KeDasJ.~-~ ~~. -yeniently termed “facts of State”. It consists of matters and questions the determination of —— which is solely in the hands of the Crown or oo ‘the government, of which the following are exarnples: ; mo coy (1) Whether a state of war exists between. a f the British Government and any other State, ; and if so, when it:began; the municipal courts mo shave no power of inquiring into.the validity _ of a declaration .by the Crown: whether :a state of war exists, or whether.it has ended; -(2)~-whether a ‘particular — territory «is hostile, or foreign, or within ‘the: boundaries of a particular state; . . (3) whether and when a particular govern- ‘‘ ment is to be recognised as the. government of an independent state; 7 (4).The status of.a person claiming immu- ‘nity.from judicial process .on the ground of diplomatic privilege. . an
‘
The court :takes :judicial. notice of such facts of state, and for -this :purpose, in any case of uncertainty, seeks information from a
Secretary of State; and the information so received is. conclusive. -
{.earned counsel has also referred us to some of the
English: decisions on ‘which the statements .in the paragraph quoted above are based. We consider it unnecessary to examine those decisions. It appears to us that the question :with-which we are concerned in.the present appeals is not a:question on w hich ‘it _
-ig necessary to seek:infe. .ation from: ithe -relevant
_. department of the Gove-ament ° of .India;. for -one thing, it does not appear :to us that there is .any
2 uncertainty in‘the matter; -: secondly, as we-shall
38.C.R. SUPREME COURT REPORTS _ 983 presently show, the Government of India in the relevant department has already spoken with sufficient clarity in the White Paper on Indian States with regard to the political changes in Junagadh and what the Government of India has stated therein shows clearly enough that there was no changeover of assumption of sovereignty on November 9, 1947 in the sense which learned counsel for. the respondents has contended for; lastly, it appears to us that the question with which we are concerned in these appeals is not essentially a question as to any disputed “facts of State” the determination of which is solely in the hands of government; rather ve Jamadiay Mohamad Abdulla
' S. E Dae j.
it is a question which must be determined by the - court. What we have to determine in these appeals is not the status or boundaries of a particular State territory, but ths validity or otherwise of the plea taken on behalf of the appellant-State that the impugned orders made by the administrator were acts of State not justiciable in the municipal courts. There is a long line of decisions in which such a ‘ plea has been determined by courts of law without the necessity of obtaining the opinion of Govern- ment. The plea is really a plea with regard to the.
maintainability of the suits brought by the respondents and must be determined by the courts concerned. At one stage of the arguments learned counsel for the respondents referred us to s.6 of the Extra ‘Provincial Jurisdiction Act, 1947 (XLVI of 1947) and contended that under that section it was obligatory on this court to refer the question to the Centtal Government. When however it was brought to . his notice that s. 6 in terms did not apply to the proceedings out of which these appeals have arisen he submitted that even if it be not _ obligatory to refer the question to the Central Government, it is expedient that it should be so referred inasmuch asthe answer to the question depends on “the extent of the jurisdiction” which the Dominion of
India assumed in Junagadh on November: 9, 1947... This, according to learned counsel, is'a “fact of
State” which only Government can determine.
* 7962 State of Saurashira v, Jamadar Mohamad ‘ u Abdullah
S.K.Das J. :
984 . SUPREME COURT REPORTS [1962]
.. We have already stated there is no uncertainty about the facts on which the plea of the appellant- State is based, and Government has already spoken
_about them with sufficient clarity. What are these ~ facts and how has Government spoken? We refer .
to para. 223 at pages 113 and 114 of the White Paper. on Indian States issued by the Government
’ of India, Ministry of States, a publication to which _this Court has referred in several earlier decisions as - containing the authentic opinion of Government on _the political questions involved. oS
-“The position of Junagadh and certain other adjoining States in Kathiawar may also ‘pe briefly stated here. After the Nawab of _ Junagadh had left the State for Pakistan, the administration of the State was taken over by the Government of India on November -9, 1947, at the request. of the Nawab’s Council. Obviously, the action taken by the Government of India had the fullest approval of the "people of Junagadh in that the results of the _referendum held in Junagadh and the adjoin- _. ing smaller States in February 1948, showed that voting in favour of accession to India was ’. virtually unanimous. During the -period the . Government of India held charge of the State an Administrator appointed by the Government of India assisted by three popular representatives conducted the administration of . the State. In. December 1948, the elected “. representatives of the people of Junagadh resolved that the administration of the State * be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent .. Assembly of Saurashtra State with a view to _' framing a common Constitution for Saurashtra -and the Junagadh State. Similar resolutions were adopted by the representatives of Manavadar, Mangrol, Bantwa, Babariawad _ and Sardargarh. Accordingly a Supplemen- ‘tary. Covenant (Appendix... XXXVI). was
3 S.C.R. SUPREME COURT REPORTS 985 executed by the Rulers of Kathiawar States with a view to giving effect to the aforemen- tioned resolutions. The administration of
Junagadh was taken over by the Saurashtra
Government on J anuary 20, 1949, andof the other States some time calling. Accordingly the Constitution. treats Junagadh and these States as part of Saurashtra.”
It would be clear from the aforesaid paragraph that the various steps in the assumption of sovereignty over Junagadh by the Dominion of India, between the dates November 9, 1947, and January 20, 1949, .
were these:
(1) The administration of Junagadh was taken over by the Government of “India on November 9, 1947 at the request of the Nawah’s Council;
(2) during the period the Government of India held charge of ‘the State, an Administrator appointed by the Government of India assisted by three popular representatives conducted the administration of the State; ae
(3) in February, 1948 there was a roferendum and the people of Junagadh voted in favour of acces- sion to India; butno actual accession took place by the execution of any Instrument of Accession;
. . (4) in December, 1948 the elected representatives of the people of Junagadh resolved that the Administration of the State be made over to the Government of Saurashtra and the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State;
_ (5) a Supplementary - Covenant (Appendix XXXVI of the White Paper) was executed by the Rulers of Kathiawar States with a view to giving effect to the resolutions aforesaid; and” —
(6) lastly, the administration of Junagadh was v. Jamader Mohamad Abdullah
S. Kk. Das je taken over by the’ Government of Saurashtra on -:
January 20, 1949.
. we ee ree ao
- *
986 | SUPREME COURT REPORTS [1962,; 1961 - ‘In M/s. Dalmia Dadri Cement Co., Lid. v. The ‘Stat: of Sanashtra Commissioner of Income-tax (*) this Court observed. : We : : rs . See . : ee Jamadar Mohamad “In law, therefore, the process of acquisi-
Abdulla tion of new territories is one continuous act of ¥ "'S.K. Das 7. . State terminating on the assumption of sove-
_ reign powers de jure over them by the new “sovereign and it is only thereafter that rights accrue to the residents of those territories as subjects of that'sovercign. In other words under the dominion of a new sovereign, the right of citizenship commences when the act * of State terminates-.and the two therefore cannot co-exist.” oS
.-There may be cases where by a treaty or an agreement there is a change-over of de jure sovereignty at one . and the same time and insuch a circumstance the change-over may not be a process, but that is not > what happened in the-case of J unagadh. The administration of Junagadh fell into chaos and disorder and the Government of India stepped in at the request of the: Nawab’s Council and took charge of the administration through an Administrator on November 9, 1947,.the Ruler having fled the country before that date. It is clear to us that there was no change-over of de jure sovereignty on > that date. Junagadh State still continued assuch — and did not cease to exist; otherwise there would ‘ be no mesning in the referendum held in February, 1948, or the resolutions passed in December, 1948, by the elected representatives of the people of: Junagadh. ‘ Nor, would: there be any meaning in the Supplementary Covenant executed by the Rulers of Kathiawar States. It is also worthy of note
- that there was no accession to India by the Junagadh State by the execution of any Instrument of Accession. We may in this connection ‘refer to ss. 5 and 6 of the Government of India Act, 1933,
"as they stood at the relevant time. Section
.. 0 stated inter alia that the Dominion of India shall,
(1) [1959]. C. R, 729, 74],
3 $.C.R. SUPREME COURT REPORTS 987 as from the 15th day of August, 1947, be a Union comprising (a) the Governors’ Provinces, (b) the Chief Commissioners’ Provinces, (c) the Indian States acceding to the Dominion in the manner provided by s. 6, and (d) any other areas that may with the consent of the Dominion -be included in the Dominion. Junagadh was neither a Governor's nora Chief Commissioner’s Province. It did not accede in the manner laid down in s. 6. It was not, therefore, a State acceding to the Dominion, Nor do we think that the territory of Junagadh State was included within the territory of the Dominion in the sense of cl. (d) of s. 5 as from November 9, 1947. The pruress of assumption of sovereignty was not yet complete and the Dominion of India did not treat the territory of Junagadh as part of its own territory. The Dominion Government gave its concurrence to the Supplementary Covenant executed by the Rulers of Kathiawar by which the States of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh were to be integrated with Saurashtra. It is significant that in this Supplementary Covenant Junagadh was mentioned as a separate State, the administration of which was to be integrated with the United State of Saurashtra. It was only when this integration took place that Junagadh ceased to be a separate State. This position appears to us to be beyond any doubt and has been made sufficiently clear by the statements wade in para, 223 of the White Paper on Indian tates.
Learned Counsel for the respondents has relied on certain observations made in well-known text-books on International Law and has contended that State sovereignty and State jurisdiction are complementary and co-extensive; and a right of property and control exercised by the State is really a right of territorial severeignty and therefore the acquisition of territory by a State can mean nothing else than the acquisition of sovereignty over such territory. (See Schwarzenberger: International v. Jamadar Mohamad Abdulla
S.K. Das F.
196!
State of Seurashira v. Jamadar M chamad Abdulie
§.K. Das 3.
Law, 1945, Vol. 1, page 79: Charles Cheney Hyde: International Law, 2nd revised edition, Vol. I, page 319; Oppenheim’s International Law, 8th Edn. Vol. I, page 645). He has contended that in view of the aforesaid observations, it must be held that the Dominion of India assumed sovereignty over Junagadh on November 9, 1947; because, so learned counsel contends, exercising control over a particular territory is exercising sovereignty over it. We do not think that the observations to which learned counsel has referred help in the solution of the problem before us. In cases where tho acquisition of new territory is a continuous process, a distinction must be made botween de facto exercise of control and de jure assumption of sovereignty. The problem before us is, as was stated in M/s. Dalmia Dadri Cement Co., Lid. v. The Commissioner of Income-taz (1), as to when the act of State was complete; in other words, when did the assumption of sovercign powers de gure by the now sovereign over territories acquired by it take place? The problem is really one of State succession; namely succession to International Persons as understood in International law. Such a succession takes place when one or more International Persons take the place of another International Person in consequence of certain changes in the latter’s condition; thero may be universal succession or partial succession. In the case before us, as long as Junagadh State continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagadh and oxercised control thorein, it did not assume de jure sovereignty over it. Therefore, the act of State did not terminate till January 20, 1949, when the Dominion of India assumed de jure sovereignty over Junagadh by its integration into the United State of Saurashtra.
It is perhaps necessary here to refer to two decisions on which learned counsel for the (1) (1959) S- C. R. 729, 741.
i¥
3 S.C.R. SUPREME COURT REPORTS ‘989 respondents hasrelied: In re: Southern Rhodesia(!) and Sammut v. Strickland (*). In the first decision it was observed in connection with the conquest of certain territories in Southern Rhodesia, that a proclamation of annexation is not essential to constitute the Crown owner of the territory as completely as any sovereign can be owner of lands publics juris; a manifestation of the Crown’s intention to that effect by Orders in Council dealing with the lands and their administration, is sufficient for the purpose. These observations were made in the context of a question not between State and State but between sovereign and subject. Lord Sumner said:
“No doubt a Proclamation annexing a conquered territory is a well-understood mode in which a conquering Power announces its will urbi et ori. It has all the advantages (and the disadvantages) of publicity and precision. But it is only declaratory of a state of fact. In itself it is no more indispensable than is a declaration of war at the commencement of hostilities. As between State and State special authority may attach to this formal manner of announcing the exercise of sovereign rights, but the present question does not arise between State and State. It is one between sovereign and subject. The Crown has not assented to any legislative act by which the declaration of its will has been restricted to one definite form or confined within particular limits of ceremonial or occasion. The Crown has not bound itself towards its subjects to determine its choice upon a conquest either out of hand or once and forall. If her Majesty Queen Victoria was pleased to exercise her rights, when Lobengula was defeated by her and her subjects, as to one part of the dominions in 1894 and as to another part not until 1898,
(1) (1919) A. C. 211, (2) [1938] A. C. 678,
State of Saurashtra v. Jamadar Mohamad Abdulla
S. K. Das 7,
£961
————
State of Saurashtra v
Jamadar Mohamad
S.K. Das 7.
if she was pleased to do so by public acts of State which indicate the same election and confer the same supreme rights of disposition over his conqucred realm as annexation would have done, it is not for one of her subjects to challeage her policy or to dispute her manner of giving effect to it.”
We do not think that these observations help to establish the contention of learned counsel for the respondents that any exercise of administrative control in acquired territory must mean at once that there is an assumption of sovereignty by tho in-coming State so as to terminate the act of State. The observations made by Lord Sumner merely show that with regard to territory which the Crown has conquered, ‘the Crown’s intention can be manifested in more than one way, and not necessarily by a proclamation. In the case before us @ proclamation was issued by the Administrator, but that merely announced that he had assumed charge of the administration of Junagadh State under orders of the Government of India. It made no announcement as to assumption of sovercignty.
In the second decision one of the questions raisod was tho true nature of the title of the Crown to the sovereignty of Malta, and a distinction was sought to be drawn between ceded territories, those acquired by an act ef cession from some sovereign power, and those ceded by the general consent or desire of the inhabitants. It was held that so far as concerned the prerogative right of the Crown to legislate by Letters Patent or Orders in Council for the ceded colony, the distinction was of no materiality. It is difficult to see how this decision affords any assistance to the respondents. It is indeed true that the people of Junagadh voted for accession to the Dominion of India; but no accession actually took place, and later there was @ merger in the United State of Saurashtra with the consent of the people of Junagadh and the Government of r¢
38.0.R. SUPREME COURT REPORTS 991
India. Till such merger there was no “cession” of territory in the legal sense either with or without the consent of the people.
In our view, the only conclusion which follows from the facts which we have earlier stated is that there was no assumption of sovereignty by the Dominion of India over Junagadh before January 20, 1949.
This disposes of the main argument advanced on behalf of the respondents, and it is unnecessary in these appeals to consider the further argument as to what rights the subjects of the ex-sovereign in the acquired territory carried with them as against the new sovereign. At one stage of his arguments, learned counsel for the respondents commended for our acceptance the view of Chief Justice John Marshall in United States v. Percheman (?) that when the inhabitants of the acquired territory change their allegiance and their relation to the old sovereign is dissolved, their rights of property remain undisturbed, and he suggested that this view was consistent with modern usage of nations and was accepted by the Permanent Court of International Justice. (See the Advisory Opinion of the Permanent Court on the Seéilers of German Origin in Territory ceded by Germany to Poland, Series B, No. 6, particularly pp. 35-36). He conceded, however, that this Court has accepted the view expressed by the English Courts in Cook v. Sprigg (*) and the decisions which followed it. That view proceeds on the doctrine that acquisition of territory by conquest, cession or annexation being an ‘act of State’, municipal tribunals have no authority to give a remedy in respect of any actions arising therefrom. (See M/s. Dalmia Dadri Cement Co., Lid. v. The Commissioner of Income-tax (*) and State of Saurashtra v. Memon Haji Ismail Haji (+). Therefore
. Jearned counsel was at great pains to establish that che act of State was complete on November 9, 1947, (1) (1833) 32 U.S. 51, 86-87, (2) [1899] A. C, 572.
(3) [1959] S. C. R. 729, 741. (4) [1960] S. C. R. 537,
_ 1961
Vv. Jamaday Mohamad ulla
S.R. Das J.
1961 4 _—— and he argued that thereafter the respondents be- tale of Saurashira =~ came citizens of the Dominion of India and under . Janadar Mohamad &- 299 of the Government of India Act, 1935, they . Abdulla could not be deprived of property save by authority s.k.bsjz flaw. He relied on two decisions of this Court: Thacker v. State of Saurashtra (1) and Virendra Singh v. State of Uttar Pradesh (?). In viow of our finding rf that the act of State did not terminate till tho process of acquisition was complete on January 20, 1949, it becomes unnecessary to consider this seoond step in the argument of learned counsel. But per- — haps it is necessary to add that the decision in Virendra Singh v. State of Uttar Pradehs (?) was based on the special circumstances mentioned theroin which led to the making of the Constitution of r India. The learned Attorney-General appearing for the appellant-State has submitted that the principle of Virendra Singh's case (*) cannot be extended to the entirely different set of circumstances in which the Government of India Act, 1935, was made and a. 299 thereof did not affect the doctrine that municipal tribunals have no authority to give a remedy in respect of actions arising from an act of State. He also drew our attention to a decision of this Court in Jagannath Agarwala v. The State of Orissa (*) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Governmont after the coming into force of the Constitution, it was hold that unless the new sovereign had ’ expressly or impliedly admitted the claims, the r¢ municipal courts had no jurisdiction in the matter, ™ We consider it unnecessary to give our decision on these submissions, because it is obvious that before the Dominion of India assumed de jure _ sovereignty over Junagadh, the respondents were ‘te not in » position to call to their aid the provisions 4, = of 8. 299 of the Government of India Act, 1935. —
(1) ALR, 1954S.C. 680. (2) [1955] 1 S.C.R. 415. (3) [1962}1 S.GR. 205.
In the appeals before us we are dealing with orders made by the Administrator before the act of State was complete. The action taken by the impugned orders arose out of and daring an act of State. That being the position, it is clear that the municipal tribunals had no authority to give a remedy in respect of such action.
It remains now to consider the last argument advanced on behalf of the respondents. As was observed in State of Saurashtra v. Mzmon Haji Ismail Haji (:) an act of State is an exercise of sovereign power against an alien and is neither intended nor purports to be legally founded. On behalf of the respondents it has been contended that the Administrator purported to cancel or resume the grants under consideration in these appeals in pursuance of law; therefore, it was not open to the appellant-State to take up the plea of an act of State. We do not think that there is any substance in this argument. Learned counsel for the respondents in Civil Appeal No. 349 of 1958 has drawn our attention to the pleadings, particularly to para. 8 of the written statement filed on behalf of the appellant-State. In that paragraph it was stated the order of resumption dated January 8, 1949 was legal and the Administrator had authority to resume such inam grant. On the basis of this paragraph it has been contended that inasmuch as the Administrator purported to act under authority of law, it was not open to the appellant-State to raise the plea of an act of State. In this connection we must also refer to para. 17 of the written statement where the appellant-State specifically pleaded that the plaintiff-respondent had no right to bring the suit against Government. In the trial court a specific issue was struck on the question as to whether the court had jurisdiction to hear and determine the suit, and under this issue the argument * advanced was that the order of resumption was an aot of State not justiciable in the municipal courts. It appears, however, that the appellant-State
(i) (1960) 1S. C. R, 537:
196]
ee
¥. Jamadar Mohamad Abdutia
S.K. Das F.
—_—— v. Jamaiar Mohamad Abdulla
§. &. Das 7.
994 SUPREME COURT REPORTS [1962)
also took a plea in the alternative that the order c.f resumption was justified under the rules in furce in the Junagadh State. The trial court held that the order of resumption was not an act of State. It further held that the order of resumption was not justified by the rules in force in the Junagadh State. In these circumstances it cannot be said that the appellant-State did not plead an act of State; nor can it be said that it was not open to the appollant-State to raise that plea. In the High Court also the same plea of act of State was urged on behalf of the appellant-State but was rejected by the High Court on the basis of its decision in State of Saurashtra v. Memon Haji Ismail Hajt Valuemamad('). That decision, we have stated carlier, was overruled by this Court in State of Saurashtra vy. Memon Hajt Ismatl Haji (?).
Learned counsel for the respondents then referred us to an order dated February 9, 1949, in which it was stated that inam grants were resumable at the pleasure of Government and therefore the orders passed on January, 8, 1949,could not be cancelled. Apparently the orders dated February, 9, 1949 was passed on some representation made at the instance of the plaintiffs-respondents. We have to read the two orders, one dated January 8, 1949, and the other dated February 9, 1949, together. If so read, it is clear that the order dated January &, 1949, was maae by the Administrator not under the authority of any law but as an act of State.
earned counsel for the respondents relied on the decision in Forester v. The Secretary of State for India (*). In that case, the Privy Council, upon a construction of the treaty or agreement made by the British Government in August, 1805, wit’: Begum Sumroo, held that the Begum was not a sovereign princess but a mere
Jagirdar under obligation to keep up # body of -.
troops to be employed when called upon in the
(t) A.T.R. 1953 Sausasbtra 180. (2) (1960) 18. C. R. 537. (3) (1872) 18 W. R. 349 (P. C.).
service of the sovereign. On that finding it was held that the resumption of the lands by the British Government upon the death of the Begum was not an act of State but an act done under legal title, We do not think that the principle of that decision applies to the facts of these cases. In Vejesingjt Joravarsingjt v. Secretary of State for India (‘) Lord Dunedin said that no plea specifically using the words “‘act of State” was required and the moment cession of territory was admitted, the onus was on the plaintiffs-respondents to prove that the right which they claim had been expressly or tacitly recognised by the new sovereign. If there was no such recognition and none was pleaded in these cases the municipal courts would have no jurisdiction to give any relief. In this view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents. The action being an act of State was not justiciable in the municipal courts, even if the same were arbitrary.
We have, therefore, come to the conclusion that the courts below were wrong in holding that the suits were maintainable and in enquiring into the merits of the cases. The appellant-State is entitled to succeed on the plea that the orders of resumption made by the Administrator arose out of and during an act of State and were not, therefore, justiciable in the municipal courts.
We would accordingly allow these appeals and the suits will stand dismissed with costs throughout. ‘There will be one hearing fee for the hearing in this court.
MupHoLKar, J.—We also agree that the appeals be allowed but we wish to say a few words. To appreciate the points which arise in these cases certain broad facts common to all appeals may well
(4) (1924) L.R. SLL: A. 357.
State of Saurashira ¥. Jamadar Mohamad Abdulla
S. Ks Das 7,
Mudhotkar J.
ist
State of Sewashira
¥. Jamadar Af chanad Abdulla
Mudhetker J.
996 SUPREME COURT REFORTS [1962 } be stated. The respondents held certain properties in that part of the present State of Gujarat which was formerly the ruling State of Junagadh, by virtue of grante from its Ruler. After India attained independence on August 15, 1947, the suzerainty which the British Crown held over the State of Junagadh lapsed and that State became completely sovereiyn. That was the effect of the Indian Independence Act. Shortly thereafter, the Ruler of Junagadh went to Pakistan leaving the State to its fate, with tho result that the affaire of that State fell into disorder. At the invitation of the people of the State the Government of India decided to
- step in and accordingly took over its administration through the Regional Commissioner, Western India and Gujarat States Region on November 9, 19#7. A proclamation was issued by him to the effect that he had assumed the administration of Junagadh as from that date. On November 14, 1947, he appointed an Administrator for administering the territory. The Administrator passed orders on different dates resuming the grants in favour of the respondents and dispossessed them. Thereafter on January 20, 1949, the territory of Junagadh was with the approval of the Government of India integrated with the United States of Saurashtra and the Administrator ceased to exercise any functions as from that date.
The resumption of the grants and the validity of their dispossession were challenged by tho respondents by instituting suits for possession of the property after tke integration of Junagadh with the United State of Saurashtra upon the ground that they could not be deprived of their properties by executive action. Aecording to them the act of the Dominion of India in taking over the administration of Junagadh territory on November 9, 1947, amounts to assumption of sovereignty over it, that thereby its residents became citizens of the Dominion of India as from that date and, therefore, no act of state q
38.0R. SUPREME COURT REPORTS 997
-such as resumption of their properties could -be committed against them by the Indian Dominion. According to the appellants no municipal court could grant the relief claimed by the respondents because the act complained of was an act of state.
The plea of the respondents was accepted by ‘the High Court of Saurashtra following the decision. in the State of Saurashtra v. Memon Haji Ismail Haji Valimamad(:). The present appeals are from its judgment.
The Attorney-General who appeared for the appellants stated that this Court has reversed that decision in State of Saurashtra v. Memon Haji Tsmail Haji (*) and that, therefore, these appeals should be allowed. In that case this Court held that the Indian Dominion merely assumed the administration of Junagadh State on November 9, 1947 at the request of the Ruler’s Council but did not formally annex it till January 20, 1949. Mr. Pathak’s contention is that as the respondents were not parties to the decision in Jfemon Haji’s case (7) they are not bound by the finding of this Court that the Junagadh State was annexed by the Indian Dominion on January 20, 1949.
It seems to us, however, that the question whether Junagadh was annexed on January 20, 1949, or earlier would make little difference to the result of the appeals before us. Nor again would the question whether the Extra-Provincial Jurisdiction Act was applicable to the orders made by the Administrator and this was a display of sovereignty, as contended for by Mr. Pathak, would make any difference.
In along catena of cases beginning from Cook v. Spriggs (*) and going upto Asrar Ahmed v. Durgah Committee, Ajmer (*) the Privy Council has stated the legal position of the subject of a displaced sovereign vis-a-vis the new sovereign. In the words
(1) A.I. R. 1953 Saurashtra 180. (2) [19691 1S. CL R.537. (3) [1999] A. C. 572. (4) ATR. 1947P. C1.
196]
v. Jamadar M chamad Abdulla
Mudhothar J,
State of Saurashiva ve Janadar Mohamad Abdulla
Mudholhar 7.
998 SUPREME COURT REPORTS [1962} of Lord Dunedin in Vajesinghjt vy. Secretary of
State for India (‘), it is as follows :
“When a territory is acquired by a sovereign State for the first time that is an act of State. Tt 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 territorv hitherto unoeceupied by a _ recognised ruler. In all cases the result is the same. Anv 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 predecessors avail him nothing. Nav more, even if in a treaty of cession it is stipulated that certain inhabitants should enjov certain rights, that does not give a title to thase inhabitants to enforce those stipulations in the municipal courts. The right to enforce remains only with the high contracting parties.”
This statement of the law has been accepted by this Court in M/s. Dalmia Dadri Cement Co., Ltd. v. Commissioner of Income tax (*) upon which reliance has been placed in State of Saurashtra v. Memon Haji Ismail Haji (*) and recent}]y also in Jagannath Aggarwela v. The State of Orissa (*) .
Thus even if on the respondents’ own showing that the Junagadh territory must be deemed to have been annexed by the Indian Dominion by assuming administration over it and thereupon its residents beeame citizens of India, they could assert and establish in the municipal courts of the new sovereign only such rights as were recognized by the Indian Dominion. The respondents claim to be grantees from the Ruler of Junagadh but their grants avail them nothing in the courts of the new sovereign unless they were recognized by that sovereign. The burden of showing that they were so recognized lay on the respondents.
(li (1924) L.R. S11. A. 357, (2) [1959] S.C. R. 739. i$) :396021S.C. R. 537. 14) (1962! 1§. C. R. 205.
3 $.C.R. SUPREME COURT REPORTS 999
A perusal of the orders passed by the administrator would clearly show that far from recognizing those grants they were in effect repudiated by him. The administrator in fact resumed the grants but whatever the form his orders took in truth and in substance they were no more than a clear and unequivoca! declaration of the fact that the right claimed by the respondents to the properties in question by virtue of the grants made in their favour by the former Ruler were not recognized by the new sovereign. Recognition or refusal of recognition of rights of erstwhile aliens who had no legal enforceable rights cannot. be said to be an act of state because the choice to do one or the other had already vested in the Indian Dominion at the moment it occupied Junagadh territory.
The right to retain possession was also dependent upon recognition. by the Dominion of India and by dispossessitig the respondents the former exercised its choice and refused to recognise their rights. On the principle accepted by this Court in the decisions already referred to, the respondents. were disentitled from obtaining any redress from a court in the Indian Dominion, and after the coming into force of the constitution, from a court in the Union of India, in the absence of recognition of their rights by it or by the Union of India.
We may now advert to another point urged by Mr. Pathak. According to him, if we understood him correctly, the Extra Provincial Jurisdiction Act was applied to Junagadh, that thereunder the local laws prevailing therein were continued and that the Alienation Settlement Act which was one of such laws, conferred on the grantees of rights against the Ruler. By continuing this law the Dominion of India, according to him, must be deemed to have recognized the respondents’ rights under the grants. For enabling us to consider the point it was necessary for the respondents to place before us the Order of the Dominion of India under
¥. Jamadar Mohamad Abduila’ ~
Mudhoikar 7. ©
Tn ete haeeee
NR ATE ER irs pe nin tad weenie
‘1961
Adudhethar Fo yy soda tte Ee ~. 3 See eee xB. F
1000 :.- SUPREME .COURT REPORTS’ [1962]
- 3.4 of the Extra Provincial J urisdiction . Act, 1947 Sta of Sawashtvae -Whichalone empowered it to prescribe the laws which ee . aay ve fohamad ” of the Indian Dominion, over which it had assumed would prevail in territories other than the provinces sovereignty .or administrative control. Similarly they had to place the Alienation Settlement Act of
Junagadh before us, In the absence of this materia] .— we'cannot consider the argument at all...) ,
“i Mr: Pathak, “however, contended’. that «if sovereignty was assumed’on Novemtecr 9,' 1947, the ‘residents of Junagadh’ became: the citizens of ‘the
“Indian: Dominion ‘and : were, - therefore; entitled to the protection ‘of s. 299(1) of Constitution Act, 1935.
‘This provision-runs thus: (2) 98 5 08 ek 1 ois <4No -person™ shall be ‘deprived: of his “ property save by authority of Jaw?s be es ’ What s. 299(1) ‘protects are the rights of a
‘pergon.'to ‘property’ which he had “whens. 299(1) came into force or applied to him, : It does not add to, any,: pro
‘action.. For ascertaining whether .the provision has been: violated we. must first examine the, existence ‘and the nature of the rights possessed “by ‘the respondents on November 9,. 1947, that is, at the moment: of assumption of administration ‘by the ‘Dominion’ of ‘, India’. over» Junagadh territory (assuming ~ of course that this amounted to assumption’ of sovereignty over. Junagadh). ‘Their . rights
Were as grantees from the former Ruler and although it may be that according to the principles of international law’ their rights as grantees ought not to
_ ‘be affected, no municipal ‘court, has the right to~
‘enforce the obligation of the new ‘sovereign to
-. espect them. For, as‘pointed out by Venkatarama °~
‘Tyer J., who 'delivered the judgment of this Court
‘in’ Dalmia Dadri Cement Co:, Ltd... v. “Commissioner _ eg of Income-tax(')r Eats
(LJ) [1959] S.C.R. 729, 741. | perty, right of any person’ though it contains an admonition to the State against depriv- - ‘ing any person of his ‘property , by--mere executive
~> ay
Ls
“It is also well established that in the new Set-up these residents do not carry with them the rights which they possessed as subjects of the ex-sovereign, and that as subjects of the new sovereign, they have only such rights a3 are granted or recognised by him”.
One of the decisions relied on by this Court in that case is that of the Privy Council in Secretary of State for India v. Bai Rajbai(!) in which they have observed: 7: .
“The relation in which they stood to their native sovereign before this cession, and the legal rights they enjoyed under them, are, save in onerespect, entirely irrelevant matters. They could not carry on under the new regime the legal rights, if any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new sovereign, were those, and only those, which that new sovereign by
' agreement express or implied, or by legislation, chose to confer upon them.”
Thus, before the respondents could claim the benefit of s. 299(1) of the Constitution Act, 1935 they had to establish that on November 9, 1947, or thereafter they possessed legally enforceable rights with respect to the properties in question as against
‘the Dominion of India. ‘hey could establish this only by showing that their pre-existing rights, such as they were, were recognized by the Dominion of
. India. If they couldnot establish this fact, then wy >see it must be held that they 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 arleady stated 8, 299(1) did not enlarge anyone’s right to property but only protected the one which a person alresdy ~ had. Any right to property which in its very (1) (1915) LER: 42 LA, 229, v. Jamadar Mohamad Abdulla ~
Mudholker 3.
State of Sarrashira ve Jamadar Mohamed Abdulia
Mudholker J.
nature is not legally enforceable was clearly incapable of being protected by that section.
Upon the view taken in Ifemon Hoji’s cause by this Court as to the date of annexation it held that the resumption of grants by the administrator were acts of state. That must be so because if sovereignty had not been assumed by the Indian Dominion over the Junagadh territory at the time of the dispossession of the reapondents consequent on the non-recognizition of their grants its acts were those of a sovereign state against aliens within alien territory and were, therefore, acts of state. A municipal court of the sovereign which commits such acts of state has no right to question such acts or to give any relief to the persons who complain of them.
Thus, upon either view the respondents were not entitled to the reliefs claimed by them in our courts. As Mr. Pathak does not contend that the Dominion of India could be said to have assumed sovereignty over Junagadh State earlier than November 9, 1947, or Jater than January 20, 1949 his plea that we should refer to the Government of India the question as to the date on which soverei- gnty was assumed over it does not arise for consideration.
The decisions of the High Court are not in accordance with the rule laid down by the Privy Council] and accepted by this Court and are erroneous. We, therefore, agree that they should be set aside and the suits dismissed with costs throught.
Since the appeals were argucd together there will only be one hearing fee.
Appeals allowed.