Virendra Singh & Ors Vs. The State
of Uttar Pradesh [1954] INSC 55 (29 April 1954)
BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ)
MUKHERJEA, B.K.
BHAGWATI, NATWARLAL H.
AIYYAR, T.L. VENKATARAMA
CITATION: 1954 AIR 447 1955 SCR 415
CITATOR INFO :
RF 1955 SC 817 (11) R 1958 SC 228 (16) F 1958
SC 816 (25,27) R 1960 SC1355 (33) R 1962 SC 445 (21) R 1962 SC1737 (11,13) D
1963 SC 222 (16) O 1964 SC1043 (3,13,15,16,19,20,21,26,32,33, RF 1967 SC 750
(5) MV 1971 SC 530 (364) RF 1973 SC1461 (1953) E&R 1978 SC 68 (99) RF 1981
SC1946 (18) R 1990 SC 522 (11)
ACT:
Constitution of India, arts. 5,19(f), 31(1),
proviso to art. 131 and art. 363-Effect of the Constitution-Erst-while Indian
States-Forming part of India-Any State GovernmentWhether can do anything in the
nature of act of StateSovereign-whether can plead act of State against the
citizen -Jagirs and Muafis by Rulers of Indian States having full autonomy and
sovereignty prior to the Constitution-Whether can be avoided after the
Constitution when not challenged up to the date of the Constitution-Courts
Jurisdiction ofTo question the accessions and such grants.
HEADNOTE:
The petitioners 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
State 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 States however did not work well and the
same 35 Rulers entered into an agreement in December, 1949, and dissolved the
newly-created State as from 1st January, 1950, each Ruler acceding to the
Government of India all authority and jurisdiction in relation to the
Government of that State, the Instrument being called the Vindhya Pradesh
Merger agreement. Article VIII of the Instrument stated:"No enquiry shall
be made by or under the authority of the Government of India, and no proceeding
shall be taken in' any Court against the Ruler of any covenanting State,
whether in a personal capacity or otherwise in respect of anything done or
omitted to be done by him or under his authority during the period of his
administration of that State." The States which formed Vindhya Pradesh
were transformed into a Chief Commissioner's Province on 23rd January, 1950. The four villages (called enclaves) were taken out of this Province on 25th January, 1950, and absorbed into the-United Provinces (now Uttar Pradesh) by an Order
of the Governor-General under the provisions of the Government of India Act,
1935. The grant of the four villages made in favour of the petitioners in
January, 1948, was revoked in August, 1952, by the Government of Uttar Pradesh
in consultation with the Government of India, the operative part of the
revocation order being made by the Governor of Uttar Pradesh.
Held (i) that the petitioners were entitled
to a writ under art. 32(2) of the Constitution inasmuch as the order revoking
the grant of Jagirs and Muafis in the four villages violated art. 31(1) and
art. 19(f) of the Constitution.
(ii) No State Government has the right to do
anything in the nature of an act of State.
(iii) The accessions by the Rulers of States
and their acceptance by the Dominion of India were acts of State and no
Municipal Court could question their competency.
Article 363 and the proviso to art. 131 of
the Constitution bars the jurisdiction of Courts in India after the
Constitutional to settle any dispute arising out of the accessions and their
acceptance. All that the Courts can do is to register the factum of such
accessions.
(iv)The properties in question were
properties over which the Rulers had absolute right of disposition at the date
of the grants. The grants were absolute in character and would under any
civilised system of law pass an absolute and indefeasible title to the
grantees. Assuming (but not deciding) that they were defeasible at the were
will of the sovereign the fact remained that 417 they were neither resumed by
the Former Rulers nor confiscated by the Dominion of India as an act of State
and up to the 26th of January, 1950, the right and title of the petitioners to
continue in possession was good. The Constitution by reason of the authority
derived from and conferred by the people of India destroyed 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 in the
present case was seeking to uphold. The Dominion of India and all those who
were invited there sat in the Constituent Assembly not as conquerors and
conquered, not as those who ceded and as those who absorbed but as the
sovereign peoples of India, free democratic equals. Every vestige of
sovereignty was abandoned by the Dominion of India and the States and
surrendered to the peoples of the land who framed the new Constitution of
India.
(v) Under art. 5 of the Constitution all the
residents of the then Indian States including the Rulers and people of Sarila
and Charkhari, viz., those who made the grants and those who received them and
those who were seeking to make the confiscation as an act of State, became
citizens of India.
(vi) No sovereign can exercise an act of
State against its own subjects and an act of State can never be exercised
against one who has always been a citizen from the beginning in territory which
has from its inception belonged to the State seeking to exercise that right.
Case law reviewed.
ORIGINAL JURISDICTION: Petition No.37 of
1953.
Under article 32 of the Constitution of
India, praying that the Order of the Governor of Uttar Pradesh dated the 29th
August, 1952, revoking the grants made by the Rulers of Charkhari and Sarila in
favour of the petitioners be declared void.
K. S. Krishna Swamy Iyengar, and S. P. Sinha
(Bishan Singh and S. S. Shukla, with them) for the petitioners.
Gopalji Mehrotra and C. P. Lal for the
respondent.
C. K. Daphtary, Solicitor-General for India
(G. N. Joshi, Porus -A. Mehta and P. G. Gokhale, with him) for the Intervener.
1954. April 29. The Order of the Court was
pronounced by BosE J.-This is a petition under article 32 of the the
Constitution. It raises an important question about the post-Constitutional
rights to property situate in 418 Indian States that were not part of British
India before the Constitution but which acceded to the Dominion of India
shortly before the Constitution and became an integral part of the Indian
Republic after it.
The States in question here are Charkhari and
Sarila.
In British days they were independent States
under the paramountcy of the British Crown. They acknowledged the British Crown
as the suzerain power and owed a modified allegiance to it, but none to the
Government of India.
In 1947 India obtained Independence and
became a Dominion by reason of the Indian Independence Act of 1947.
The suzerainty of the British Crown over the
Indian States lapsed at the same time because of section 7 of that Act.
Immediately after, all but three of the
Indian States acceded to the new Dominion by executing Instruments of
Accession. Among them were the two States with which we are concerned. The new
Dominion of India was empowered to accept these accessions by a suitable
amendment in the Government of India Act, 1935. The sovereignty of the acceding
States was expressly recognised and safeguarded.
The operative words of the Instrument of
Accession which each Ruler signed were" Now Therefore I............ Ruler
of..................
in the exercise of my sovereignty in and over
my said State do hereby execute this my Instrument of Accession." And
clause 8 provided that"Nothing in this Instrument affects the continuance
of my sovereignty in and over this State, or, save as provided by or under this
Instrument, the exercise of any powers, authority and rights now enjoyed by me
as Ruler of this State or the validity of any law at present in force in this
State." Broadly speaking, the effect of the accession was to retain to the
Rulers their full autonomy and sovereignty except on three subjects: Defence,
External Affairs and Communications. These were transferred to the Central
Government of the new Dominion.
419 One other clause is important, clause 6,
which provided that"Nothing in this Instrument shall empower the Dominion
Legislature to make any law for the State authorising the compulsory
acquisition of land for any' purpose...........
About the same time, each acceding Ruler
entered into a standstill agreement with the Dominion of India. The following
clause is relevant:
"Nothing in this agreement includes the
exercise of any paramountcy functions." The alienations now in question
were made in January, 1948. On 5th January, 1948, the Ruler of Sarila granted
the village Rigwara to the petitioners and on 28th January, 1948, the Ruler of
Charkhari granted the villages Patha, Kua and Aichana, also to the petitioners.
After this, on 13th March, 1948, thirty five
States in Bundelkhand and Baghelkhand (including Charkhari and Sarila) agreed
to unite themselves into one State which was to be called the, United State of
Vindhya Pradesh. In pursuance of this agreement each of the thirty five Rulers
signed a covenant on 18th March, 1948, which brought the new State into being.
It is important to note that this was a purely domestic arrangement between
themselves and not a treaty with the Dominion of India. Each Ruler necessarily
surrendered a fraction of his sovereignty to the whole but there was no further
surrender of sovereign powers to the Dominion of India beyond those already
surrendered in 1947, namely Defence, External Affairs and Communications.
Despite the readjustment, the sum total of
the sovereignties which had resided in each before the covenant now resided in
the whole and its component parts: none of it was lost to the Dominion of
India.
Soon after this, the Revenue Officers of the
newly formed Vindhya Pradesh Union tried to interfere with the grants made by
certain Rulers of the integrating States before the integration; among them
were the grants in question here. This occasioned complaints to the Vindhya
Pradesh Government and that 420 Government decided on 7th December, 1948, to
respect the impugned grants. The Revenue Minister's order of that date runs"After
considering over the whole question it has ,been decided that such grants made
by the Rulers before signing the covenant should be respected, because
constitutionally the V.P. Government should not refuse recognition to such
grants unless they are directed otherwise by the State Ministry." Orders
were accordingly issued to the Revenue Officers concerned to "abstain from
interfering in such grants." This decision was communicated to the Rulers of
Charkhari and Sarila on 13th March, 1949. They were told that their grants
would be respected.
The integration did not work satisfactorily,
so, on 26th December, 1949, the same thirty five Rulers entered into another
agreement abrogating their covenant and dissolving the newly created State as
from 1ST January, 1950. By the same instrument each Ruler ceded to the
Government of the Indian Dominion as from the same date "full and
exclusive authority, jurisdiction and powers for, and in relation to, the
governance of that State." Article II provided that "As from the
aforesaid day, the United State of Vindhya Pradesh shall cease to exist, and
all the property, assets and liabilities of that State, as well as its rights,
duties and obligations, shall be those of the Government of India." This
Instrument was called the Vindhya Pradesh Merger Agreement. The Government of
the Indian Dominion was also a party and its Secretary in the Ministry of
States appended his signature to the document. Each Ruler was guaranteed a privy
parse and all the personal privileges, dignities and titles enjoyed by him at
the date of the Agreement. Immediately after the clause guaranteeing the privy
purse comes the following Article IV (2) The said amount is intended to cover
all the expenses of the Ruler and his family............ and shall 421 neither
be increased nor reduced for any reason what so ever. " The following
clauses are also relevant:
Article VI "The Government of India
guarantees the succession, according to law and custom, to the gaddi of each
Covenanting State, and to the personal rights, privileges dignities and titles
of the Ruler thereof.
Article VII (1)The Ruler of each Covenanting
State shall be entitled to the full ownership, use and enjoyment of all private
properties (as distinct from State properties) belonging to him on the date of
his making over the administration of that State to the Raj Pramukh in
pursuance of the Covenant.
(2)If any dispute arises as to whether any
item of property is the private property of the Ruler or State property, it
shall be referred to a judicial officer to be nominated by the Government of
India, and the decision of that officer shall be final and binding on all
parties concerned.
Article VIII No enquiry shall be made by or
under the authority of the Government of India, and no proceeding shall lie in
any Court, against the Ruler of any Covenanting State, whether in a personal
capacity or otherwise, in respect of anything done or omitted to be done by him
or under his authority during the period of his administration of that
State." The Dominion Government took over the administration of the States
which formed Vindhya Pradesh on 1st January, 1950, and decided to form them
into a Chief Commissioner's Province. It did this by a Notification of the
Governor General dated 22nd January, 1950, and brought the new Province into
being on 23rd January, 1950. But the four villages we are concerned with
(called enclaves) were taken out of this Province on 25th January, 1950, and
absorbed into the United Provinces (now Uttar Pradesh) by an Order of the
Governor-General entitled 422 the Provinces and States (Absorption of Enclaves)
Order, 1950. This Order was made under sections 290, 290-A and 290-B of the
Government of India Act, 1935.
The portions of that Order relevant for the
present purpose are these:
" 3 (1) As from the appointed day, every
enclave specified in the First Schedule. shall cease to form part of the
surrendering unit, and shall be included in, and form part of, the absorbing
unit.................
"6. All property and assets within an
enclave which, immediately before the appointed day, vested in the Government
of the surrendering unit shall, as from that day, vest in the Government of the
absorbing unit.
7.All rights, liabilities and obligations,
whether arising out of contract or otherwise, of the Government of a surrounding
unit in relation to an enclave shall, as from the appointed day, be the rights,
liabilities and obligations, respectively, of the Government of the absorbing
unit.
8.All laws in force in an enclave immediately
before the appointed day shall, as from that day, cease to be in force in that
enclave, and all laws in force in the absorbing unit shall, as from that day,
extend to, and be in force in, that enclave." The Constitution came into
force on 26th January, decided to reopen the question of revocation which the
Vindhya Pradesh Government had settled on 7th December, 1948, and on 29th
August, 1952, more than two and a half years after the Constitution and four and
a half years after the grants, the Uttar Pradesh Government in consultation
with the Government of India, revoked the grants with which we are concerned.
The Governor of Uttar Pradesh issued the
following order on 29th August, 1952 :
" Subject : Voidable grants of Jagirs
and Muafis made by the Rulers of Charkhari and Sarila before the integration.
423 With reference to your endorsement No.
3885/XV 110-1950 dated September 30, 1950, on the above subject, I am directed
to say that, in consultation with the Government of India, the Governor has
decided to revoke the grants made by the rulers of Charkhari and Sarila on or
after January.1, 1948, to the members of their families relations and others
Copies of this order were forwarded to the Rulers of Charkhari and Sarila on
29th January, 1953.
This occasioned the present petition under
article 32 of the Constitution against the State of Uttar Pradesh. The Union
Government was allowed to intervene. The State of Uttar Pradesh made the
following affidavit in reply:
"(3) That immediately before or after
the signing of the agreement some Rulers of the Indian States constituting the
Vindhya Pradesh Union, whose territories were subsequently absorbed in the
Uttar Pradesh, had granted jagirs and muafis of land to their near relations
mala fide and thereby indirectly increased their privy purse.
(4) That it appears that Vindhya Pradesh
Government opened the case of mala fide grants made by the rulers of
integrating States and at their instance the Government of India issued
instructions to the Uttar Pradesh Government to do the same.
(9)...... The effect of these grants is to
increase the privy purse of the ruler...... whose responsibility it was to
support the grantees." The operative order of revocation was made by the
Governor of Uttar Pradesh, and under the Constitution it is clear that no State
Government has the right to do anything in the nature of an act of State, but
in view of the fact that the revocation was made in consultation with the
Government of India, we were I asked to treat the Uttar Pradesh Governor as a
delegate of the sovereign authority whose act has been approved and ratified by
that authority, along the 424 lines of Buron v. Denman(1), The Secretary of
State in Council of India v. Kamachee Boye Sahaba(2) and Johnstone v. Pedlar(3),
and to decide on that basis whether the Union Government had the right and
power to revoke these grants as an act of State.
Jurists hold divergent views on this matter.
Atone extreme is the view of the Privy Council in a series of cases. Their
effect was summarised in Vajesingji Joravarsingji v. Secretary of State for
India in Council(1) and again in Secretary of State v. Sardar Rustam Khan(5) in
the following words:
"A summary of the matter is this : when
a territory is acquired by a sovereign State for the first time that is an act
of State. It matters not how the acquisition has been brought about. It may be
by conquest, it may be by cession following on treaty, it may be by occupation
of territory hitherto unoccupied by a recognised ruler. In all cases the result
is the same. Any inhabitant of the 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 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;" also in the Secretary of State in Council of India v. Kamachee
Boye Sahaba (2) and in Johnstone v. Pedlar(6 ) as follows:
" Of the propriety or justice of that
act, neither the Court below nor the Judicial Committee have the means of
forming, or the right of expressing, if they had formed, any opinion. It may
have been just or unjust politic or impolitic, beneficial or injurious, taken
as a whole, to those whose interests are affected. These are considerations
into which their Lordships cannot enter. It is sufficient to say that; even if
a wrong has (1) 2 Exch. Rep. 167.
(2) 7 M. I. A. 476 at 540.
(3) [1921] 2 A. C. 262 at 279.
(4)51 1. A. 357 at 36o.
(5)68 I. A. 1o9 at 124.
(6)[1921] 2 A.C. 262 at 280, 425 been done,
it is a wrong for which no Municipal Court of justice can afford a
remedy.".
According to the Privy Council in Secretary
of State for India in Council v. Bai Rajbai (1) and also in Vajesingji
Joravarsingji v. Secretary of State for India in Council (9), the burden of
proving that the new sovereign has recognised the old rights lies on the party
asserting it.
The learned Solicitor-General relies on these
cases.
At the other extreme is the view of Chief Justice
John Marshall of the United States Supreme Court. He said in the United States
v. Percheman (3) in the year 1833:
"It may not be unworthy of remark that
it is very unusual, even in cases 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; but their relations to 'each other,
and their rights of property, remain undisturbed. If this be the modern rule
even in cases of con-' quest, who can doubt its application to the case of an
amicable cession of territory ?......... A cession of territory is never
understood to be a session 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 so understand the cession. Neither
party could consider itself as attempting 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
at the same time the lands and the people who inhabit them, would be
necessarily understood to pass (1)42 I.A. 229 at 239.
(2)51 I.A. 357 at 361.
(3) 32 U.S, 51 at 86, 87, 55 426 the
sovereignty only, and not to interfere with private property." This view
was followed by Cardozo J. in 1937 in Shapleigh v. Mier (1). He said :"Sovereignty
was thus transferred, but private ownership remained the same To find the the
title to the land today we must know where title stood while the land was yet
in Mexico." We gather from Hyde's International Law, Volume I, second
edition, page 433, that the came principle was laid down by the Permanent Court
of International Justice. The learned author quotes the Court as saying in its
Sixth Advisory Opinion of September 10, 1923, on certain questions relating to
settlers of German origin in the territory ceded by Germany to Poland"
Private rights acquired under existing law do not cease on a change of
sovereignty. No one denies that the German Civil Law, both substantive 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 It
suffices for the purposes of the present opinion to say that even those who
contest the existence in international law of a general principle of State
succession do not go so far as to maintain that private rights including those
acquired from the State as the owner of the property are invalid as against a
successor in sovereignty." The learned counsel for the petitioners relies
on this class of case and derives this much support for it from the Privy
Council in Mayor of Lyons v. East India Company (2) where Lord Brougham said: "
It is agreed, on all hands, that (when) a foreign settlement (is) obtained in
an inhabited country, by conquest, or by cession the law of the country
continues until the Crown, or the Legislature, change it." (1) 299 U.S.
468 at 470. (2) I M.I.A, 175 at 270, 271, 427 It is right however to point out
that Hyde places limitations on the doctrine at page 432 and that the learned
authors of Corpus Juris: International Law, Volume 33, page 415, place the
limitation that in the absence of express understanding a conqueror assumes no
obligations of the conquered state. This distinction was also drawn by Lord
Alverstone C.J. in West Rand Central Gold Mining Company v. Rex (1) where,
commenting on the American cases, he said that there is a difference between
the private rights of individuals in private property and contractual rights
which are sought to be enforced against the new sovereign. He said :" It
must not be forgotten that the obligations of conquering States with regard to
private property of private individuals, particularly land as to which the
title had already been perfected before the conquest or annexation, are
altogether different from the obligations which arise in respect of personal
rights by contract. As is said in more cases than one, cession of territory
does not mean the confiscation of the property of individuals in that
territory. If a particular piece of property has been conveyed to a private
owner or has been pledged, or a lien has been created upon it, considerations
arise which are different from those which have to be considered when the question
is whether the contractual obligation of the conquered State towards
individuals is to be undertaken by the conquering State." Lord Alverstone
also pointed out that in the American cases, on which the international jurists
have based their views, the treaties of cession as well as the subsequent
legislation of the United States protected the rights of owners of private
property as they existed at the time of cession and so the only question for
decision in each of those cases was whether any private rights of property
actually existed at the relevant date. Now that is also the English law, for
the Privy Council and the House of Lords have also held that the new sovereign
can choose to waive his rights and recognise titles and rights as they existed
at the date of cession.
(1) [T905] 2 K.B. 391 at 411.
428 This recognition can be given either by
legislation or by proclamation and it can even be inferred from the mode of
dealing with the property after the cession: Forester v.
Secretary of State for India in Council ( )
(legislation);
Secretary of State v. Bai Rajbai (2)
(agreement, legislation and mode of dealing); Mayor of Lyons v. East India
Company (3) (waiver) and at page 285 (relinquishment) ; also Vajesinghji
Joravarsinghji v. Secretary of State for India(1) and Secretary of State v.
Sardar Rustam Khan (5).
In dealing with the views of international
jurists, Lord Halsbury insisted that they were only enunciations of what in
their opinion the law ought to be and had no binding force. He said in the
House of Lords in Cook v. Sorigg (6):
" 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 authority to enforce such an obligation. And 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." His view was endorsed by the
Privy Council in Secretary of State v. Sardar Rustam Khan(5) and again in the
House of Lords in Johnstone v. Pedlar(7). Lord Alverstone C. J.
analysed in detail how far international law
can be accepted and applied in municipal (1) 1872-73 I.A. Supplt. Io at 17.
(2) 42 I.A. 229 at 237.
(3) I M.I.A. 175 at 281.
(4) 51 I.A. 357 at 361.
(5)681 I.A. 109 at 123.
(6) [1899] A.C. 572 at 578.
(7) [1921] 2 A.C. 262 at 281.
429 Courts of justice in West Rand Central
Gold Mining Company v. Rex(1) and set out reasons for the above conclusion.
The learned counsel for the petitioners also
relies on another limitation which the English Courts have placed on an act of
State. He says that even if the right to confiscate be conceded it must be
taken to have been waived if either the Crown or its officers purport to act
under colour of a legal title and not arbitrarily. He contended that
arbitrariness was of the essence in a', act of State. He relied on Secretary of
State in Council of India v. Kamachee Boye Sehaba(2),Forester v. Secretary of
State for India in Council (3) and Johnstone v. Pedlar(4). He pointed out that
the affidavit of the respondent shows that Government decided to confirm all
grants except those which were mala fide. Therefore, this was no arbitrary act
of annexation but an attempt to exercise what was thought to be a legal right.
We do not intend to discuss any of this
because, in our opinion, none of these decisions has any bearing on the problem
which confronts us, namely, the impact of the Constitution on the peoples and
territories which joined the Indian Union and brought the Constitution into
being. The flow of events up to the date of final accession, 1st January, 1950,
are only of historical interest in the present matter. The Rulers of Charkhari
and Sarila retained, at the moment of final cession, whatever measure of
sovereignty they had when paramountly lapsed, less the portion given to the
Indian Dominion by their Instruments of Accession in 1947; they lost none of it
during the interlude when they toyed with the experiment of integration. There
was then redistribution of some of its aspects but the whole of whatever they
possessed before the integration returned to each when the United State of
Vindhya Pradesh was brought to an end and ceased to exist. Thereafter each
acceded to the Dominion of India in his own right.
Now it is undoubted that the accessions and
the acceptance of them by the Dominion of India were (1)[19O5] 2 K B 391 at
401-408. (3) 1872-73 I.A. Supplt. 10 at 17. (2) 7 M.I.A. 476 at 53I. (4) [1921]
2 A.C. 262 at 281.
430 acts of State into whose competency no
municipal Court could enquire; nor can any Court in India, after the
Constitution, accept jurisdiction to settle any dispute arising out of them
because of article 363 and the proviso to article 131;
all they can do is to register the fact of
accession; see section 6 of the Government of India Act, 1935, relating to the
Accession of States. But what then? Whether the Privy Council view is correct
or that put forward by Chief Justice Marshall its broadest outlines is more
proper, all authoritiesd re-agreed that it is within the competence of the new
sovereign to accord recognition to existing rights in the conquered or ceded
territories and, by legislation or otherwise, to apply its own laws to them;
and these laws can, and indeed when the occasion arises must, be examined and
interpreted by the municipal Courts of the absorbing State.
Now in the present case, what happened after
the final accession? There was already in existence in 1949 section 290-A of
the Government of India Act, 1935, which provided as follows:
"Administration of certain Acceding
States as a Chief Commissioner's Province.........
(1)Where full and exclusive authority,
jurisdiction and powers for and in relation to the Government of any Indian
State or of any group of such States are for the time being exercisable by the
Dominion Government, the Governor-General may by Order direct (a)that the State
or the group of States shall be administered in all respects as if the State or
the group of States were a Chief Commissioner's Province.........
(2) Upon the issue of an Order under clause
(a) of sub-section (1) of this section, all the provisions of this Act
applicable to the Chief Commissioner's Province of Delhi shall apply to the
State or the group of States in respect of which the Order is made.
The final Instrument of Accession complies
with subsection (1) above. The necessary Order was made and the Chief
Commissioner's Province of Vindhya 431 Pradesh, which at that date included the
property in dispute, came into being on 23rd January. 1950. Now it is beyond
dispute that there neither can, nor could, be confiscation of property, as an
act of State in the Chief Commissioner's Province of Delhi. It is difficult to
see how there could be in an area which was being administered by the Dominion Government
in all respects as a Chief Commissioner's Province even if the person in
possession was not, at the time, a national of the country, an assumption which
is by no means indisputable; indeed that is the effect of the decision of the
Privy Council in Mayor of Lyons v.
East India Company(1). There would appear to
have been a clear election by the sovereign authority expressed in its own
legislation to waive its rights of confiscation even if they were there (a
point we do not decide); and the same consequences followed when the properties
in dispute were incorporated into the State of Uttar Pradesh, two days later,
on 25th January, 1950. The Privy Council go even further in Mayor of Lyons v.
East India Company at page 285 and say that the waiver or relinquishment can be
established from the treaty itself.
"...... it cannot be denied that the
Crown may relinquish its prerogative; indeed, whenever the inhabitants of
conquered provinces are held to obtain the rights of subjects by treaty, (and
even Sir F. Norton has no doubt of this being possible) those who hold the
doctrine the most vigorously must say that the treaty is a voluntary
abandonment of a right of the Crown. It evidences the will of the sovereign to
exempt the conquered territory from this branch of his prerogative. But the
same will of the sovereign may be collected from other circumstances, and the
like abandonment of the prerogative be thus evidenced." But however that
may be, the fact remains that the titles of these petitioners to the disputed
lands had not been repudiated tip to the 26th of January, 1950. It is
immaterial whether or not the right of the Dominion Government to do so
remained in abeyance till exercised despite the agreement embodied in the (1) I
M. I.A. 175 at 274, 275 432 Instruments of Accession and the legislation and
notification quoted above because, in fact, it was not exercised.
Now what was the effect of the non-exercise
of those rights ? Even on the English view, the, person in de facto possession
is not without rights in the land, nor is he altogether without remedy. It is
just a question of the means of redress. In Johnstone v. Pedlar(1) Lord
Atkinson, speaking in the House of Lords, said:"It is on the authorities
quite clear that the injury inflicted upon an individual by the act of State of
a sovereign authority does not by reason of the nature of the act by which the
injury is inflicted cease to be a wrong.
What these authorities do establish is that a
remedy for the wrong cannot be sought for in the Courts of the sovereign
authority which inflicts the injury, and that the aggrieved party must depend
for redress upon the diplomatic action of the State, of which he is a
subject." So also in Forester v. Secretary of State for India(9), the
Begum, whose estate Government sought to confiscate as an act of State, was
only in de facto possession: see page
16. The Privy Council held that the
Government had purported to act under colour of a legal title, so its attempt
at resumption was not an act of State and consequently could be reviewed in the
Courts. Their Lordships thereupon proceeded to investigate the Begum's title,
not under the British Government, but as derived from the sovereign power which
preceded it (page 18). So also in Mayor of Lyons v. East India Company(3), the
title of a foreign alien to land was upheld, not under the English law (because
if that had applied there would have been an escheat), but under the law in
India derived from nonBritish sources, that is to say, under the laws of the
land before cession. It was held that those laws continued until changed and
for that reason a title which would have been bad under the English law was
upheld. At page 274 their Lordships say:(1) [1921] 2 A.C. 262 at 278. (3)
M.I.A. 175 at 274, 275.
(2) 1872-73 I.A. Supplt. 10.
433 "It follows from what has been
observed, not only that Calcutta was a district acquired in a country peopled,
and having a Government of its own, but that, for a long course of time no such
law as that which incapacitates aliens, could be introduced, any more than it
could now be introduced into such part of the Asiatic. or Portuguese
territory..." and at page 271 they had already said "In the former
case, it is allowed, that the law of the country continues until the Crown, or
the Legislature, change it." Lord Atkinson's view in Johnstone v.
Pedlar(1) at page 281 appears to point to the same conclusion. He said: "And
even where the person aggrieved was an independent rajah, against Whom the East
India Company made war, -and having made him prisoner, seized his property, it
was apparently considered by Sir John Romilly M. R. in Ex-Rajah of Coorg v.
East India Company(2) that the company notwithstanding that this act was an act
of State' could have been sued in respect of any property seized by them which
belonged to the rajah in his private capacity as his personal property and not
in his character of rajah." We think it is clear on a review of these
authorities ,that whichever view be taken, that of the Privy Council and the House
of Lords, or that of Chief Justice Marshall, these petitioners, who were in de
facto possession of the disputed lands, had rights in them which they could
have enforced up to 26th January, 1950, in the Dominion Courts against all
persons except possibly the Rulers who granted the land and except possibly the
State. We do not by 'any means intend to suggest that they could not have
enforced them against the Rulers and the Dominion of India as well, but for
reasons which we shall presently disclose it is not necessary to enter into
that particular controversy. It is enough for the purposes of this case to hold
that the petitioners had, at any rate, the rights defined above.
(1) [1921] 2 A. C. 262, (2) (1860) 29 Beav.
300, 56 434 Now what was the extent of the petitioners' rights? These
properties were not State properties in the sense of public buildings and so
forth. They were indisputably properties over which the Rulers bad absolute
rights of disposition at the date of the grants. The grants are absolute in character
and would under any civilised system of, law pass an absolute and indefeasible
title to the grantee. Let it be conceded, as was argued (though we do not so
decide), that they were defensible at the mere will of a sovereign who held
absolute and despotic sway over his subjects in all domestic concerns. The fact
remains that up till that time they were neither resumed by the former rulers
nor confiscated by the Dominion of India as an act of State. Therefore, up to
the 25th of January, 1950, the right and title of the petitioners to continue
in possession was good, at any rate, against all but the Rulers and the
Dominion of India.
Now what effect did the Constitution have on
that? In our opinion, 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. Let it be conceded (without admitting
or deciding the point) that the Dominion of India once had the powers for which
the Union Government now contends. The self-same authorities which appear to
concede that power also admit that it can be waived or relinquished. What then
was the attitude of the Dominion towards those States which it sought to draw
into the Republic of India which was yet to be free, sovereign, democratic, as
its Constitution later proclaimed it to be? We quote from the mouthpiece of
that Government as disclosed in the White Paper on Indian States published by
official authority. Sardar Vallabhbhai Patel's statement (he was then in charge
of the States Department) 5th July, 1947, is reproduced at page 157. He said at
page 158:"This country with its institutions is the proud heritage of the
people who inhabit it, It is an accident 435 that some live in the States and
some in British India but all alike partake of its culture and character. We are
all knit together by bonds of blood and feeling. no less than of self-interest'
None can segregate us into segments; no impassable barriers can be set up
between us. I suggest that it is therefore better for us to make laws sitting
together as friends than to make treaties as aliens. I invite my friends the
Rulers of States and their people to the Councils of Constituent Assembly in
this spirit of friendliness and co-operation in a joint endeavour, inspired by
common allegiance to our motherland for the common good of us all." This invitation
was accepted on 19th May, 1949. Page 109 of the White Paper says "As the
States came closer to the Centre it became clear that the idea of separate
Constitutions being framed for different constituent units of the Indian Union
was a legacy from the Rulers' polity which could have no place in a democratic
set-up. The matter was, therefore, further discussed by the Ministry of States
with the Premiers of Unions and States on May 19, 1949, and it was decided,
with their concurrence, that the Constitution of the States should also be
framed by the Constituent Assembly of India and should form part of the
Constitution of India." It is impossible to think of those who -sat down
together -in the Constituent Assembly, and of those who sent representatives there,
as conqueror and conquered, as those who ceded and as those who absorbed, as
sovereigns or their plenipotentiaries, contracting alliances and entering into
treaties as high contracting parties to an act of State.
They were not there as sovereign and subject
as citizen and alien, but as the sovereign peoples of India, free democratic
equals, forging the pattern of a new life for the common weal. Every vestige of
sovereignty was abandoned by the Dominion of India and by the States and
surrendered to the peoples of the land who through their representatives in the
Constituent Assembly hammered out for themselves a new Constitution in which
all were citizens in a new order having but one 436 ie, and owing but one
allegiance: devotion, loyalty, idelity, to the Sovereign Democratic Republic
that is India.
At one stroke all other territorial
allegiances were wiped out and the past was obliterated except where expressly
preserved; at one moment of time the new order was born with its new allegiance
springing from the same source for all, grounded on the same basis: the
sovereign will of the, peoples of India with no class, no caste, no race, no
creed, no distinction, no reservation.
The Preamble to the Constitution recites in
its magnificent prelude "We, The People of India, having solemnly resolved
to constitute India into a Sovereign Democratic Republic and to secure to all
its citizens:
Justice, Liberty, Equality, Fraternity;
In our Constituent Assembly this 26th day of
November 1949, do hereby Adopt, Enact and Give to Ourselves This
Constitution." Article 1(1) sets out that India shall be a Union of States
and clauses (2) and (3) define the territories of which India shall be
composed. They include the territories in which the disputed lands are situate.
Article 5 defines Indian citizens. They include in their wide embrace the
Rulers of Charkhari and Sarila who made the grants, the petitioners who
received them and those who now seek as an act of State to make the
confiscation. It is impossible for a sovereign to exercise an act of State
against its own subjects. However disputable the proposition may be. that an
act of State can be exercised against a citizen who was once an alien the right
being only in abeyance till exercised, there has never been any doubt that it
can never be exercised against one who has always been a citizen from the
beginning in territory which has from its inception belonged to the State
seeking to exercise the right. This is so even on the English authorities which
claim 437 far higher rights for the State than other laws seem to allow. Lord
Atkinson said in Johnstone v. Pedlar(1) at page 281 :The last words of Lord
Halsburv's judgment clearly suggest that the Government of this country cannot
assert as a defence against one of their own subjects that an act done to the
latter's injury was an act of State, since such a subject clearly could not
rely on his own sovereign bringing diplomatic pressure against himself to right
the subject's wrong. In conformity with this Principle it -was held in Walker
v. Baird (2), that where the plaintiffs are British subjects in an action for
trespass committed within British territory in time of peace it is no answer
that the trespass was an act of State, and that thereby the jurisdiction of the
municipal Courts was ousted." And so Lord Phillimore said at page 295:"
Because between Her Majesty and one of her subjects there can be no such thing
as an act of State." Lord Brougham went further in Mayor of Lyon8 v. East
India Company(3), and extended the principle to aliens who later became
citizens. He said at pages 284 and 285:" But this position seems wholly
untenable, for all the authorities lay it down that upon a conquest the
inhabitants ante nati, as well as post nati, of the conquered country become
denizens of the conqueror's country; and to maintain that the conquered people
become aliens to their new sovereignty upon his accession to the dominion over
them, seems extremely absurd.........The Court below, it must be observed,
distinctly admit that conquest operates what they term a virtual
naturalization." But however that may be, there is no question of conquest
or cession here., The new Republic was born on 26th January, 1950, and all
derived their rights of citizenship from the same source and from the same
moment of time; so also, at the same instant and for the same reason, all
territory within its boundaries (1) [19211 2 A.C. 262. (3) 1 M.I.A. 175.
(2) [1892]A A.C. 491.
438 became the territory of India. There is,
as it were from the point of view of the new State, Unity of Possession, Unity
of Interest, Unity of Title and Unity of Time.
This was also quite clearly the will of the
Union Government as expressed in its White Paper, so even if the case was still
one of cession there is clear evidence of relinquishment and waiver. At page
115 it is said :" With the inauguration of the new Constitution, the
merged States have lost all vestiges of existence as separate entities ";
and at page 130:The new Constitution of India
gives expression to the changed conception of Indian unity brought about by the
'unionisation' of states and at page 131 " Unlike the scheme of 1935 the
new Constitution is not an alliance between democracies and dynasties but a
real union of the Indian people built on the concept of the sovereignty of the
people 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.
In the matter of their constitutional relationship with the Centre and in their
internal set-up, the States will be on a par with the Provinces. The new
Constitution therefore finally eradicates all artificial barriers which
separated the States from Provinces and achieves for the first time the
objective of a strong, united and democratic India built on the true
foundations of a co-operative enterprise on the part of the peoples of the
Provinces and the States alike." But we do not found on the will of the
Government. We are no longer concerned with principalities, and powers.
"We have upon us the whole armour of the
Constitution and walk from henceforth in its enlightened ways, wearing the
breastplate of its protecting provisions and flashing the flaming sword of its
inspiration.
439 It was not denied that if the present
action of the State cannot be defended as an act of State it cannot be saved
under any provision of law. Whether the State would have the right to set aside
these grants in the ordinary Courts of the land, or whether it can deprive the petitioners
of these properties by legislative process, is a matter on which we express no
opinion. It is enough to say that its present action cannot be defended.
Article 31(1) of the Constitution is attracted as also article 19(f). The
petitioners are accordingly entitled to a writ under article 32(2). A writ will
accordingly issue restraining the State of Uttar Pradesh from giving effect to
the orders complained of and directing it to restore possession to the
petitioners if possession has been taken, The petitioners will be paid their
costs by the State of Uttar Pradesh. The intervener will bear its own.
Writ allowed.
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