Raj Rajendra Malojirao Shitole Vs. The
State of Madhya Bharat [1954] INSC 7 (2 February 1954)
MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K.
DAS, SUDHI RANJAN BOSE, VIVIAN HASAN, GHULAM
CITATION: 1954 AIR 259 1954 SCR 748
CITATOR INFO :
R 1955 SC 817 (16)
ACT:
Constitution of India, art. 385--Madhya
Bharat Abolition of Jagirs Act (XXVIII of 1951)--Whether void as not passed by
a validly constituted legislature.
HEADNOTE:
The decision of the Madhya Bharat High Court
declaring section 4 (1) (g) and sub-cls. (iv) and (v) of cl. 4 of Schedule I of
Madhya Bharat Abolition of Jagirs Act (XXVIII of 1951) as illegal and
inoperative was not questioned by either of the parties.
It was however, contended that the impugned
Act (XXVIII of 1951) was void as it was not passed by a validly constituted
legislature within the meaning of the covenant entered into by the Rulers of
Madhya Bharat as the provisions of cl. 1(c) of Schedule IV of the covenant for
the election of 20 members were not complied with.
Held, that as the Madhya Bharat Legislative
Assembly actually functioning on the 26th January, 1950, the validity of the
Acts passed by it could not be questioned in view of art. 385 of the
Constitution irrespective of the fact whether it had been properly constituted
in accordance with the terms of the covenant or not Scope of articles 379, 382
and 385 discussed.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 4 and 6 of 1953.
Appeals under article 132(1) of the
Constitution of India from the judgment and Order dated the 4th December, 1952,
of the High Court of Judicature of the State of Madhya Bharat at Gwalior in
Civil Miscellaneous Cases Nos. 614 of 1951 and 1 of 1952.
P.R. Das (B. Sen, with him) for the appellant
in C.A. No. 4 of 1953.
749 Rameshwar Nath for the appellant in C.A.
No. 6 of 1953.
M.C. Setalvad, Attorney-General for India,
and K. A. Chitale, Advocate-General of Madhya Bharat (Shiv Dayal, with them)
for the respondent.
1954. February 2. The Judgment of the Court
was delivered by MAHAJAN C.J.--These appeals preferred on behalf of three
zamindars of the State of Madhya Bharat against the judgment of the High Court
of Judicature of that State dated the 4th December, 1952, raise common
constitutional questions and can be disposed of by one judgment. The State also
preferred cross appeals against the same judgment. During the pendency of these
appeals, two petitions under article 32 of the Constitution of India were also
made to this court to obtain the same relief as was claimed by the appellants
in their respective appeals. During the course of the arguments, the counsel
appearing for the appellant in Civil Appeal No. 5 of 1953 asked leave to
withdraw the appeal. This was granted and the appeal was dismissed as having
been withdrawn.
Petitioner. Nos. 116 and 117 of 1953
preferred under article 3 were also withdrawn and were accordingly dismissed.
Civil Appeals Nos. 4 and 6 of 1953 were argued before us and this judgment
concerns them alone.
The appellant in Civil Appeal No. 4 of 1953,
Rajendra Maloji Rao Shitole, is the proprietor of extensive landed properties
in the State of Madhya Bharat comprising 260 villages under different Sanads
granted to his ancestors by the Rulers of Gwalior from time to time. It was alleged
by him that his income from these properties was in the sum of Rs. 2,61,637 and
that the State of Madhya Bharat, under purported exercise of its powers under
section 3 of the Madhya Bharat Abolition of Jagirs Act, was about to issue a
Notification for resumption of all his land. By a petition dated the 7th
December, 1951, preferred to the High Court he asked for a mandamus to restrain
the State from issuing any Notification under section 3(1) of the Act in
respect of his properties and from 750 interfering with rights in the said
property. The appellant in Civil Appeal No. 6 of 1953 is another Jagirdar of
the same State. He preferred a similar petition to the High Court praying for
the same relief. These two petitions, along with a number of other petitions
preferred under article 226 of the Constitution challenging the validity of the
Madhya Bharat Abolition of Jagirs Act and praying for the issue of a mandamus
restraining the State from issuing the Notification under section 3(1) of the
said Act, were heard by a Bench of three Judges of the High Court of Madhya
Bharat. The court, by a majority judgment, declared that the Madhya Bharat
Abolition of Jagirs Act No. XXVIII of 1951 was valid except as regards section
4(1)(g) and sub-clauses (iv) and (v) of clause 4 of Schedule I which were held
illegal and inoperative. A writ of mandamus was directed to be issued to the
State Government directing it not to give effect to the procisions of the
impugned Act stated above. Leave to appeal to the Supreme Court was granted to
the paries and in pursuance of the leave the appellants referred the appeal
above mentioned and the State referred the two cross appeals. The cross appeals
were not pressed by the learned Attorney-General and nothing more need be said
about them. They are therefore dismissed with costs.
As regards Civil Appeals . Nos. 4 and 6 of
1953, the facts are: That in April, 1948, after the partition of India, and the
formation of two Dominions, India and Pakistan, the Rulers of the States of
Gwalior, Indore and certain other States in Central India being convinced that
the welfare of the people of that region could best be secured by the
establishment of a State comprising the territories of' their respective States
with a common Executive, Legislature and Judiciary entered into an agreement
for the formation of a United State of Gwalior, Indore and Malwa (Madhya
Bharat). It was resolved by them to entrust to a Constituent Assembly
consisting of elected representatives of the people the drawing up of a democratic
Constitution for the State within the framework of the Constitution of India to
which the Rulers of these 751 States had acceded. The covenant entered into by
these Rulers was published on the 7th October, 1948. The Rulers agreed, under
article III of the covenant, to elect a Rajpramukh of the United State, and by
article VI the Ruler of each Covenanting State agreed to make over the
administration of the State to the Rajpramukh not later than the first day of
July, 1948, and it was agreed that thereupon all rights, authority and
jurisdiction belonging to the Ruler which appertain, or are incidental to, the
Government of the Covenanting States shall vest in the United State and were
thereafter to be exercisable only as provided by the covenant or by the
Constitution to be framed there under. By article X it was agreed that as soon
as practicable a Constituent Assembly, for the purpose of framing a
Constitution for the United State within the framework of the covenant and the
Constitution of India, was to be formed and clause (2) of the said article
provided:
"The Rajpramukh shall constitute not
later than the first day of August, 1948, an interim Legislative Assembly for
the United State in the manner indicated in Schedule IV." Schedule IV laid
down the following procedure for the constitution of the Legislative Assembly:
"1. The Legislative Assembly shall
consist of-- (a) forty members elected by the members of the Gwalior
Legislative Assembly;
(b) fifteen members elected by the members of
the Indore Legislative Assembly; and (c) twenty members elected by an electoral
college to be constituted by the Rajpramukh in consultation with the Government
of India to represent Covenanting States other than Gwalior and Indore.
2. The election shall be by proportional
representation by means of the single transferable vote.
3. The Rajpramukh may make rules for carrying
into effect the foregoing provisions of this Schedule and securing the due
constitution of the interim Legislative Assembly." 752 In pursuance of
this covenant the Rajpramukh took the oath of office on the 28th of May, 1948.
In the meantime 40 members representing the Indore group were elected to the
interim legislative-assembly on the 8th and 9th of May, 1948, respectively. As
regards the election of 20 members that had to be elected by an electoral
college, what happened was this. The Ministry of States, Government of India,
on the 5th July, 1948, informed the Rajpramukh that there were many practical
difficulties in setting up an electoral college consisting of elected
representatives of the various States, because in many of the smaller States
there were no elected bodies of any kind. After considering the various
difficulties it was suggested to the Rajpramukh that the twenty seats may be
allocated between the different States in a certain manner mentioned in the
latter and out of these, fourteen may be allotted to the nominees of the Praja
Mandal and the remaining six may be nominated by the Rajpramukh himself.
This suggestion was modified by a letter of
the 19th of November, 1948, and it was finally agreed upon that the Madhya
Bharat Provincial Congress Committee may be asked to elect six persons 'to
represent the smaller States in the Madhya Bharat interim legislative assembly.
This suggestion was not exactly in accord
with what had been indicated in clause 1 (c) of Schedule IV. These
representatives were elected in the manner suggested in the two letters, on the
19th October, 1948, and they were declared to be validly elected in terms of the
covenant.
On the 30th of October, 1948, the Rajpramukh
promulgated an Ordinance entitled "The Interim Legislative Assembly
Ordinance Samvat 2005", Ordinance No. 18 of 1948. In the preamble to the
Ordinance it was declared that in accordance with the provisions of the
covenant the legislative assembly had already been duly constituted. The
various sections of the Ordinance provided for the working of the interim
legislative assembly, i.e., the manner in which it could be summoned and
dissolved or prorogued, how its President and Deputy President were to be
elected and how it was to exercise the power of 753 voting and what number of
members would constitute the quorum. On the 6th of December, 1948, the
Ordinance was repealed and Act XXIII of 1949 took its place. The legislative
assembly thus constituted was actually functioning on the 26th of January,
1950, when the Constitution of India: came into force. In the meantime, by
subsequent covenants, the Rulers of the Covenanting States had agreed to accept
the Constitution of India as the Constitution of the United State of Madhya
Bharat and had abandoned their covenant of forming a separate Constituent
Assembly for framing a Constitution for the United State of Madhya Bharat.
After the coming into force of the Constitution of India the interim
legislative assembly constituted by the Rajpramukh and which was functioning on
the 26th of January, 1950, continued to function till some time in the year
1952 when new elections took place and a legislative assembly in conformity
with the provisions of the Constitution of India was duly constituted.
On the 30th of November, 1949, the Government
of the State of Madhya Bharat introduced a Bill entitled the "Madhya
Bharat Abolition of Jagirs Bill' before the interim legislative assembly and
the Bill was passed into an Act on the 28th of August, 1951, and having been
reserved for the consideration of the President received his assent on the 27th
November, 1951. It was published in the Madhya Bharat Gazette Extraordinary on
the 7th of December, 1951. The said Act, by section 3, provided for a date
to-be appointed by the Government by notification for resumption of all jagir
lands in the- State and by section 4 it provided that as from such a date, the
right, title and interest of every jagirdar and of every other person claiming
through him in his jagir lands including forests, trees, fisheries, wells,
tanks, ponds, water-channels, ferries, pathways, village-sites, huts, bazaars
and mela grounds and mines and minerals whether being worked or not, 'shall
stand resumed to the State free from all encumbrances. The Act also provided a
scheme for assessment of compensation m respect of jagirs thus resumed.
754 The appellants contested the validity of
this law on a number of grounds, and, inter alia, on the following :-- (1) That
the so-called legislature which passed the Act was not a legislature within the
meaning of the covenant entered into by the Rulers of Gwalior, Indore and
certain other States in Central India for the formation of the United State of
Gwalior, Indore and Malwa (Madhya Bharat) or_within the meaning of Schedule IV
of the said covenant.
(2) That the legislature of Madhya Bharat
was, not competent to enact the said Act and the said acquisition or resumption
of jagirs was not for a public. purpose and there was no provision for payment
of compensation as understood in law, the compensation provided for being
wholly illusory and the Act was a fraud on the Constitution.
Before the High Court, Mr. P.R. Das who
appeared for most of the petitioners, confined his arguments some of the
grounds mentioned in clause (2)above. His first contention that the impugned
Act was passed by a legislature not validly constituted, he reserved for
arguing before this court as the Madhya Bharat High Court by a Full Bench
decision in Shree Ram Dubey v. The State of Madhya Bharat(1), had already
repelled that contention. The two points argued by him before the High Court
were:
(1) That there was no public purpose behind
the acquisition for the resumption of jagir lands and therefore the Act was
unconstitutional and illegal.
(2) That some of the provisions of the
impugned Act were ultra vires in so far as they constituted a fraud on the
Constitution. Both these points which, were urged before the High Court were
not argued before us by the learned counsel. The point that there was no public
purpose behind the acquisition was abandoned because it was concluded by the
decision of this court in the Orissa Zamindari appeals, K.C. Gajapati Narayan Deo
and Others v. The State of Orissa(2).
A.I.R. 1952 M.B. 57-178.
A.I.R. 1953 S.C. 375; [1954] S.C.R. 1.
755 As regards the second point, as already
indicated, three provisions of the impugned Act had been declared void by the
High Court and Mr. Das contented himself by accepting that decision. The 'State
Government had impugned the correctness of the decision of the High Court
declaring these three provisions of the Act to be void but it also did not
press that point. The result of these concessions in this court is that the
arguments in the two appeals were limited to the first point urged in the
petition, namely, whether the impugned Act was passed by a Legislature not
validly constituted under the covenant entered into by the Rulers of Madhya
Bharat.
Mr. P.R. Das contended that as the Interim
Legislative Assembly was not constituted according to the provisions of
Schedule IV of the covenant it was a body of usurpers and therefore any laws
made by it were wholly void and of no effect whatsoever. It was urged that the
two bodies, viz. Praja Mandal and the Provincial Congress Committee who, in two
separate divisions, elected fourteen and six members, did not constitute' an
electoral college to fulfill the requirement of clause 1 (c) of Schedule IV,
and the members elected could not be said to have been elected in the manner
prescribed by the Schedule and that the Rajpramukh and the Government of India,
in the absence of an amending covenant, had no power to vary the provisions of
the Schedule. It was said that the object of clause 1 (c) of Schedule IV was
that the election of 20 members should be by an electoral college constituted
by the Rajpramukh in consultation with the Government of India to represent the
Covenanting States other than Gwalior and Indore and that the election by the
Praja Mandal and the Congress Committee of 14 and 6 members was in clear breach
of the terms of the covenant and that in this manner no representation was
given to the minorities and full effect was not given to the rule that the
election should be by proportional representation by means of single
transferable vote. The learned Attorney-General met these contentions by
urging, (1) that the question was not open having regard to the provisions of
article 385 of the Constitution of India 756 (2) that the election of 20
members representing the eighteen States took place in literal compliance of
the covenant, (3) that in any event there was substantial compliance with the
covenant, and lastly (4) that the declarations made in the Ordinance by the
Rajpramukh and the provisions contained in the Ordinance were conclusive and
were accepted by all the States concerned and could no longer be challenged.
After a careful consideration of the
respective arguments addressed by Mr. P.R. Das and the learned Attorney-General
we have reached the conclusion that it is not necessary to consider in detail
all the points discussed by the learned counsel, as in our judgment the
question seems to be concluded by the provisions of article 385 of the Constitution
of India. There is no gainsaying the fact that the election of 20 members to
represent the 18 States was not made strictly in the manner indicated in
Schedule IV of the covenant, but it also cannot be disputed, and in fact was
not disputed before the High Court, that the Legislative Assembly which passed
the impugned Act was on the 26th of January, 1950, in spite of its defective
constitution, in fact functioning as the Legislature of the State of Madhya
Bharat. It had been declared to have come into existence by an Ordinance
promulgated by the Rajpramukh and its factual existence is apparent from the
laws that it made subsequent to its formation.
Part XXI of the Constitution of India deals
with "Temporary and Transitional Provisions". About two dozen
articles in this Part concern themselves with the solution of the problems of
their interval in between the repeal of the Government of India Act and the
coming into being of bodies and authorities formed by the Constitution. Until
the House or Houses of Legislature or bodies and authorities formed by the
Constitution could be duly formed it was necessary to say with certain
definiteness as to what bodies or authorities would exercise and perform the
duties conferred by the different provisions of the Constitution in the
meantime. When a silent revolution was taking place and Princely kingdoms were
fast 757 disappearing and a new democratic Constitution was being set up and a
provision had to be made for the interval between the switch-over from one Constitution
to another, there was hardly any time to enquire and consider whether the
bodies or authorities or House or Houses of Legislature formed under the old
Constitutions which were being scrapped had been formed in strict compliance
with the provisions of those Constitutions or whether there were any defects in
their formation. The Constitution-makers therefore took notice of their factual
existence and gave them recognition under the Constitution and invested the
bodies that were actually functioning as such, whether regularly or
irregularly, with the authority to exercise the powers and perform the duties
conferred by the provisions of the Constitution. That is clearly the scheme of
all the articles mentioned in Part XXI of the Constitution.
Particular reference may be made to articles
379, 382 and to article 385 which specifically governs the present case.
Article 379 is in these terms:
"(1) Until both Houses of Parliament
have been duly constituted and summoned to meet for the first session under the
provisions of this Constitution, the body functioning as the Constituent
Assembly of the Dominion of India immediately before the commencement of this
Constitution shall be the provisional Parliament and shall exercise all the
powers and perform all the duties conferred by the provisions of this
Constitution on Parliament.
Explanation.--For the purposes of this
clause.
the Constituent Assembly of the Dominion of
India includes-- (i) the members chosen to represent any State or other
territory for which representation is provided under clause (2), and (ii) the
members chosen to fill casual vacancies in the said Assembly." The
provision made in this article in unambiguous terms makes the body. functioning
as the Constituent Assembly, whether constituted perfectly or 758 imperfectly
and whatever its membership on the date immediately before the commencement of
the Constitution, as the provisional Parliament and vests it with all the
functions and duties conferred by the provisions of the Constitution on the
Parliament. The President was given power under the provisions of this article
to add members to this body to give representation to certain States who were
not previously represented, and it was specifically prescribed that if there
are any vacancies then the vacancies could be filled up and the members
returned to fill these vacancies will be considered members of the provisional
Parliament. These specific provisions are indicative of the fact that the
Constitution-makers, in enacting this article, took notice of the factual
existence of certain bodies without concerning themselves with the question
whether they had been validly constituted under the Constitution that brought
them into being. Article 382 of the Constitution is similarly worded. It provides
that until the House or Houses of the Legislature of each State specified in
Part A of the First Schedule has or have been duly constituted and summoned to
meet for the first session under the provisions of this Constitution, the House
or Houses of the Legislature of the corresponding Province functioning
immediately before the commencement of this Constitution shall exercise the
powers and perform the duties conferred by the provisions of this Constitution
on the House or Houses of the Legislature of such State. Article 385 is in
exact conformity with the two earlier articles. It provides that- "Until
the House or Houses of the Legislature of a State specified in Part B of the
First Schedule has or have been duly constituted and summoned to meet for the first
session under the provisions of this Constitution, the body or authority
functioning immediately before the commencement of this Constitution as the
Legislature of the corresponding Indian State shall exercise the powers and
perform the duties conferred by the provisions of this Constitution on the
House or Houses of the Legislature of the State so specified." 759 The
whole intent and purpose of these articles was to give recognition to those
bodies or authorities or House or Houses of Legislature which were actually
functioning before the 26th of January, 1950, and to invest them with the
powers conferred by the provisions of this Constitution. The
Constitution-makers wanted to indicate the arrangements made by them for the
interval with certain amount of definiteness in order to avoid any disputes
during the interim period as to who the body or authority was, to exercise the
powers conferred by the provisions of the Constitution. They therefore chose
the formula that whichever body or authority or House or Houses of Legislature
was actually functioning immediately before the commencement of the
Constitution would be the body or authority or the House that would exercise
the powers and perform the duties conferred by the provisions of this
Constitution on the House, body or authority specified in the Constitution.
They did not take any risk on this question and the bodies actually functioning
were, like persona designata, invested with powers conferred by the
Constitution. That being the scheme of this Part and that being also the clear
and unambiguous language of article 385 it follows that the Madhya Bharat .
Interim Legislative Assembly that was actually functioning on the 26h January,
1950, was invested by the Constitution of India with powers conferred by the
provisions of the Constitution, irrespective of the fact whether it had been
properly constituted in accordance with the terms of the covenant or not. The
inquiry into this question thus became barred by adopting this procedure.
Such a procedure was fully justified and was
rounded upon considerations of policy and necessity for, the protection of the
public and individuals whose interests may be affected thereby. It is manifest
that endless confusion would have resulted if the Constitution had not adopted
that formula and had not barred an inquiry into all questions as to the
original formation of such bodies by giving validity and recognition to those
bodies or authorities as were actually functioning on the 26th of January,
1950. Not only did it give 760 validity and recognition to those bodies which
were in fact functioning. then but it also invested these designated bodies and
authorities with powers conferred by the provisions of the Constitution itself.
That being our view as to the true meaning and 'intent of the language employed
in article 385 of the Constitution it follows that the contention raised by Mr.
P.R. Das as to the defective formation of the Interim Legislative Assembly of
Madhya Bharat has no validity. Even if that body was not formed in strict
compliance with the provisions indicated in Schedule IV of the covenant its
defective formation does not affect the constitutionality of the impugned
statute. The impugned statute was passed in the year 1951 after the
Constitution of India had given recognition to, and conferred powers on, the
Assembly under article 385 of the Constitution. When it made this law it was
exercising its powers under the Constitution of India and not under the
covenant which brought it into existence. The result therefore is that the only
contention that Mr. P.R. Das argued before us cannot be sustained and it must
be held that it is not well founded.
For the reasons given above we see no force
in these two appeals and they are therefore dismissed with costs.
Appeals dismissed.
Agent for the appellant in C.A. No. 4: 1. N.
Shroff.
Agent for the appellant in C.A. No. 6
:Rajinder Narain.
Agent for the respondent: R.H.
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