State of Madhya Pradesh & ANR Vs.
Lal Bhargavendra Singh  INSC 204 (7 October 1965)
07/10/1965 SARKAR, A.K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1966 AIR 704 1966 SCR (2) 56
RF 1966 SC 820 (1) R 1971 SC 846 (9) RF 1972
SC1004 (82) F 1987 SC 82 (7)
Constitution of India, 1950, Art. 372-Order
of former Indian Ruler granting allowance to member of family out, of bountyIf
On 7th March 1948, the Ruler of a former
Indian State, out of his bounty and in discharge of his moral obligation,
passed an order providing for an allowance to his brotherrespondent herein. He
directed the Chief Minister of the State to do, certain things, and the various
parts of the order were sent to the different departments of the State
Administration for carrying them out. The order also granted to the respondent
a house, conveyance etc. On 18th March 1948, the State along with other States
formed the United State of Vindhya Pradesh, the component States losing their
sovereign status. Later, the United State merged in India, and on the
promulgation of the Constitution, the State became a Part of the Indian Union.
On 24th September, 1951, the President of India, in his executive capacity
reduced the amount of allowance. The respondent thereupon filed a suit for a
declaration, against 'the State and Central Governments, that the allowance
could not be reduced Because it was granted to him by a law passed by the
former Ruler, which law was continued in force by the covenant constituting the
United State, by certain statutory orders made from time to time and lastly by
Art. 372 of the Constitution. The trial court dismissed the suit, but the High
Court, on appeal, decreed it.
In the appeal to this Court by the State and
Central Governments, the question was whether the order of the former Ruler was
HELD : It wag not a law and was not continued
in force after the State lost its sovereignty. The order was an executive act
of the Ruler and it was competent to the President, in his executive capacity.,
to reduce the amount. [66 H] The nature of the order shows it cannot be a law
according to notions of modern jurisprudence. It was a mere directive or grant,
and even if the money was paid out of the State Exchequer, that fact would not
turn the order into a law. [60 C; F] Narsing Pratap Deo v. State of Orissa,
A.I.R. 1964 S.C. 1793, referred to.
Promod Chandra Dev v. State of Orissa, 
Supp. 1 S.C.R. 405, explained.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 738 of 1963.
Appeal by special leave from the judgment and
decree, dated December 16, 1960 of the Madhya Pradesh High Court in First
Appeal No. 105 of 1957.
57 B. Sen. M. N. Shroff and I. N. Shroff, for
G. S. Pathak and C. P. Lal, for respondents 1
K. L. Hathi and R. N. Sachthey, for
respondents No. 2.
The Judgment of the Court was delivered by
Sarkar, J. This appeal arises out of a suit filed on August 10, 1956 by Shri
Lal Saheb Bhargavendra Singh, now deceased and represented by his legal
representatives, against the Union of India, the State of Vindhya Pradesh, now
merged in the State of Madhya Pradesh, and the Collector of Satna, for a
declaration that he was entitled to receive an allowance of Rs. 650 per month
from the Union of India. There was another claim but that depended on the
declaratory relief claimed and need not, therefore, be referred to further.
Shri Lal Saheb was the brother of the Ruler
of the former Indian State of Nagod and he contended that the Ruler had by a
law passed on March 7, 1948 provided for an allowance for him at the rate of
Rs. 650 per month and that law was binding on the defendants who had by an
executive order illegally altered the amount of the maintenance. It was on this
basis that the claim was made. The suit was dismissed by the trial Court but
was decreed by the High Court of Madhya Pradesh on appeal by the plaintiff.
Hence this appeal.
Certain events that took place after March 7,
1948 when the allowance was fixed have now to be stated. On March 18, 1948, the
Ruler of Nagod along with the Rulers of various neighbouring ruling States
formed a new State called the United State of Vindhya Pradesh into which the
component States were merged thereby losing their sovereign status.
Thereafter the United State merged in India
by an agreement and pursuant thereto the Government of India took over its
administration on January 1, 1950. Its territories then became the Indian
province of Vindhya Pradesh The United State ceased to exist. On the
promulgation of the Constitution on January 26, 1950 the Province of Vindhya
Pradesh became a Part C State of Independent India and later from November 1,
1956 it was merged with the State of Madhya Pradesh.
By the agreement constituting the United
State all laws in force in the constituent States were continued in force and
likewise, the laws of the United State were by a statutory order continued in
force when it merged in India. Article 372 of the Constitution continued in force
all laws which were in force in the territories of India immediately before the
commencement of the Constitution.
58 Each succeeding State could, of course,
alter the laws which were so continued in force in spite of the change of
sovereignty, by a law duly made by it. Neither the United State nor the Indian
Province or States which successively administered the territories of the State
of Nagod had made any law concerning any allowance to be paid to Shri Lal
Saheb. The Rajpramukh (the head) of the United State and the President of India
had passed orders 'from time to time fixing his allowance at amounts lower than
that at which it had been fixed by the Ruler of Nagod on March 7, 1948.
These were, however, executive orders and not
laws. They could not reduce the amount of allowance to Shri Lal Saheb fixed by
the Ruler of Nagod on March 7, 1948, if he had done so by a law. All this is
not in controversy.
The only question in this appeal is whether
the order of the --Ruler of Nagod of March 7, 1948 was a law. If it was, it is
not in dispute that the claim made in the suit must be upheld. The -High Court
observed that this Court had in various cases ending with the case of Madhaorao
State of Madhya Pradesh (1) '.held that the
line between the legislative, executive and judicial functions of absolute
Rulers like the Ruler of Nagod was not at all clear-cut and an attempt to place
an order of such a Ruler in -one class or the other was of no practical
importance. In this view of the judgments of this Court, the High Court said
that it was futile to contend that the order of March 7, 1948 was an executive
act of the Ruler and had not the force of law.
The High Court, therefore, held that the
allowance had been fixed by law and decreed the suit.
The question whether, an order of a Ruler is
law or not arises because an absolute Ruler combined in himself the capacities
of the supreme executive, judicial and legislative authorities in the State;
any particular action of his might have been in one or other of these
Therefore, it becomes necessary to decide,
when the question arises as it has done. in the present case, in what capacity
the Ruler acted when he made a particular order. At times, the question has
presented some difficulty. This Court had -to discuss this question in many
cases but, with respect, we think the High Court was under a misconception
about the effect of the decisions in those cases. It would be unprofitable to
discuss these cases for their result may be quoted from the judgment in the
recent case of Narsing Pratap Deo v. State of Orissa (2) : "The true legal
position is that whenever a dispute arises as to whether an Orders passed by an
absolute monarch represents a legislative (1)  1 S. C. R. 957.
(2) A. I. R. 1964 S. C. 1793,1798.
59 act........ all relevant factors must be
considered before the question is answered; the nature of the order, the scope
and effect of its provisions, its general setting and context, the method
adopted by the Ruler in promulgating legislative as distinguished from
executive orders, these and other allied matters win have to be examined before
the character of the order is judicially determined." It is, therefore,
not correct to say as the High Court did, that this Court has held that every
order of the Ruler is a law made by him. The question whether it is so or not,
has to be determined in each case independently.
We then proceed to discuss whether the order
of the Ruler of Nagod was law. The question arises because, as earlier stated,
the covenant constituting the United State, certain statutory orders made from
time to time and lastly Art. 372 of the Constitution said that the existing
laws would be so continued. Now, these are instruments dealing with sovereign
States and rights. They are instruments based on legal ideas and notions
founded on modern jurisprudence. It would, therefore, be legitimate to hold
that the word "law" was used in them in a sense acceptable, to modern
jurisprudence. The contention that the order of March 7, 1947 being a law could
be set aside only by a law duly passed by the succeeding States, emphasises
this view. A law made by these succeeding States, the last of which is the
Union of India, is fully a law as understood in modem jurisprudence. A law
which is to be set aside by such a law must, therefore, have been contemplated
as a law of the same kind. This aspect of the matter has to be kept in mind in
approaching the question.
Many tests may be suggested for determining
whether a particular thing would be considered law in modem jurisprudence.
In the decisions of this Court on the point,
several of them have been referred to. It may be that they are not all
applicable, to every case. It may also be that it is not possible to give an
exhaustive list of all these tests.
None the less however the question is capable
of decision in each case.
The order of the Ruler of Nagod which is said
to be a law, is addressed to the Chief Minister of the State and directs him to
do certain things. It starts by reciting that Shri Lal Saheb's financial
position was deplorable and the Ruler felt it to be his duty to see that Shri
Lal Saheb did not experience difficulties in his advancing years and as no
permanent arrangement had been made for him till then, the ruler was making the
order. Then follows the operative part of the order which is in these terms
SUP. C.I/66-5 60 "Hence, I order that (the Kothi) (in which he is at
present residing) be given to Shri Lal Saheb for generation to generation and
an allowance of Rs' 650 (Rupees six hundred and fifty), per month be granted,
in addition to the same a tonga and a horse be given, the expenses for which
shall be borne by himself and Rs. 5,000 (Rupees five thousand), be granted to
him so that he may be able to make improvements in agriculture and satisfy his
debts (partly)." We think it quite impossible that this order was a law.
First, it is a direction to the Chief
Minister. It is an order by which the Ruler required the Chief Minister to do
certain things. It has not been shown to us, that a direction to an officer to
be carried out by him, has ever been held to be a law or can be such. It cannot
be so according to notions of modem jurisprudence. Then we find that a copy of
the order was sent under the, direction of the Revenue Minister to Shri Lal
Saheb and various parts of it, to the different departments of the Nagod
Administration respectively concerned with them, obviously with the object that
they might be carried out. This would indicate that even the Administration was
not treating it as law for it would be difficult to imagine different parts of
a law being communicated to different branches of the Administration.
Further, it appears that the Revenue Minister
directed the Accounts Officer to make a report regarding the provision to be
made for the sum of Rs. 5,000 mentioned in the order.
This is not how a law is carried out.
The order was also an instrument granting
something to Shri Lal Saheb. Under it a kothi (house), a tonga (carriage) and
horse and Rs. 5,000 in a lump were to be made available to Shri Lal Saheb. In
regard to these the order was only a grant; it gave him these things. A grant
is, of course, not a law. That would follow from the decisions of this Court in
Narsing Pratap Deo's case(1) and State of Gujarat v. Vora Fiddali(2). Now if
the rest of the order was a grant, it would be strange that one part of it
only, namely, the part providing for the monthly allowance only, was a law.
Obviously this was also intended to be a
grant; the fact that the order provided for future payments cannot make it a
law. The context is overwhelmingly against the view that it was a law.
Again, the recitals in the order put it
beyond doubt that the Ruler was only discharging what he considered his moral
obligation. After referring to Shri Lal Saheb's deplorable financial (1) A.T.R.
1964 S. C. 1793.
(2)  6 S. C. R. 461.
61 position, he said, "I take it to be
my duty to, see that Shri Lal should not experience difficulties in his old
days". The Ruler was, therefore, providing for something out of his bounty
and in discharge of his moral obligation.
A law is never made for these reasons.
It was said that the money was to be paid out
of the State Exchequer. There is nothing to show, however, that it was so or
that in Nagod the private funds of the Ruler were separate from the State
Exchequer. But assume that the payment was to come from the State Exchequer.
That cannot turn a directive or a grant into a law.
Our attention was drawn to the decision of
this Court in Promod Chandra Dev v. The State of Orissa(1) where a grant of an
allowance was held to be law. That case is clearly distinguishable. There the
nature and condition of allowances to be granted to persons entitled to them
from the State had been laid down in Order 31 of the Rules, Regulations and
Privileges of Khanjadars and Khorposhdars.
It was held that "those rules,
regulations of Talcher etc.
(1937)" were the laws of the State and
that the grants made by the Ruler in accordance with those laws became the absolute
property of the grantee. What bad happened there was that earlier lands had
been granted to a certain Khorposhdar (maintenance holder) under Order 31
aforesaid and Subsequently these were commuted into payments of monthly
amounts. It was in those circumstances that it was held that the maintenance
was payable under a law. No such circumstances exist in the present case.
We should *fore concluding state that the
Ruler of Nagod who made the order of March 7, 1948 himself gave evidence
stating that lie had passed the order "under his legislative powers".
This statement obviously does not conclude the matter. It was not relied upon
in any of the Courts below.
The internal evidence to which we have
earlier referred shows that the order was not a Legislative act.
For all these reasons we have come to the
conclusion that the order of the Ruler of Nagod of March 7, 1948 was not a law. It was not continued in force after the State of Nagod lost its sovereignty in
the circumstances earlier mentioned.
The order was an executive act of the Ruler
providing for certain allowance to Shri Lal Saheb. It was, therefore, competent
to the President (1) (1962] Supp. 1 S. C. R. 405 62 acting in his executive
capacity to reduce it to a sum of Rs. 530 per month as he did by his order of
September 24, 1951 which was challenged in the, suit.
In the result, we hold that the appeal must
be allowed and we direct accordingly. There will be no 'order as to costs.