The State of Saurashtra Vs. Memon Haji
Ismail Haji  INSC 100 (4 August 1959)
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
CITATION: 1959 AIR 1383 1960 SCR (1) 537
Act of State--Taking over of administration
of Junagadh State by Dominon of lndia-Resumption of Property by Administrator
before completion of such act-If an act of State not justiciable in municipal
The suit, out of which the present appeal
arose, was one originally brought by the respondent against the State of
junagadh, later on substituted by the State of Saurashtra, for a declaration
that the Administrator's order dated October i, 1948, resuming the immoveable
property in suit was illegal, unjust and against all canons of natural justice.
The suit was decreed by the Civil judge and the decree was affirmed by the High
Court in appeal. The only point for determination in this appeal was whether
the act of Resumption by the Administrator was an act of State performed on
behalf of the Government of India and involved an alien outside the State and
was not, therefore, justiciable in the municipal Courts. With the passing of
the Indian Independence Act 1947, and lapse of paramountcy by -reason Of S. 7
thereof, the Nawab of junagadh became sovereign, but instead of acceding to the
new Dominion he left for Pakistan. It appeared from the White Paper on Indian
States that the Government of India took over the administration of the State
on November 9, 1947, at the request of the Nawab's Council, but did not
formally annex it till January 2o, 1949, and during that period the
Administrator maintained law and order and carried on the administration.
Held, that there could be no, doubt that the
act of the Dominion of India in assuming the administration of junagadh State
was an act of State pure and simple and the resumption in 538 question having
been made by the Administrator before that act was completed and at a time when
the people of junagadh, including the respondent, 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
The test in such cases must be whether the
State or its agents purported to act " catastrophically " or subject
to the ordinary course of law.
Salaman v. Secretary of State for India, (1906) i K.B. 6I3, Johnstone v. Pedlar, (192I) 2 A.C. 262, Secretary of State in
Council for India v. Kamachee Boye Sahaba, (1859) 13 Moore P.C. 22, Vaje Singh
Ji joravar Singh & Ors. v. Secretary of State for India, (1924) L.R. 51
I.A. 357, Dalmia Dadri Cement Co. v. Commissioner of Income-tax,  S.C.R.
729, relied on.
Forester and Others v. Secretary of State for
India, 18 W.R.
349 P.C., considered.
The essence of an act of State was the
arbitrary exercise of sovereign power, on principles other than or paramount to
the municipal law. Although the sovereign might allow the inhabitants to retain
their old laws and customs, it could not itself be bound by them until it
purported to act within them, thus bringing to an end the act of State.
Campbell v. Hall, 1 Comp. 204; 98 E.R. 1045, Ruding
v. Smith, 2 Hag. Con. 384; 161 E.R. 774 and E.I. Co. v. Syed Ali, 7 M.I.A. 555,
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 185 of 1955.
Appeal from the judgment and decree dated the
February 19, 1953, of the former Saurashtra High Court in Civil First Appeal
No. 16 of 1952, arising out of the judgment and decree dated December 15 , 1951, of the Civil Judge, Senior Division, Junagadh in Civil Suit No. 470 of
G. K. Daphtary, Solicitor -General of India,
B. Ganapathy lyer and D. Gupta for the appellant.
I. N. Shroff, for the respondent.
H. J. Umrigar and K. L. Hathi, for the Interveners.
1959. August 4. The Judgment of the Court was
delivered by HIDAYATULLAH J.-This appeal with a certificate from the former
High Court of Saurashtra under Art.133 of the Constitution read with Ss. 109
and 110 of 539 the Code of Civil Procedure, has been brought against the
judgment of that Court dated February 19, 1953, in Civil First Appeal No. 16 of
The appellant is the State of Saurashtra, which stood substituted for the State of Junagadh, against which the suit was
originally filed. The respondent, Memon Haji Ismail Haji Valimahomed of
Junagadh, (hereinafter referred to as the respondent, brought this suit
originally against two defendants, the State of Junagadh and one Jamadar Abu
Umar Bin Abdulla Abu Panch (hereafter referred to as Abu Panch), for a
declaration that the Secretariat Order No.
2/3289 dated October 1, 1948, was " illegal, unjust and against all canons of natural justice ". He also asked
for an alternative relief that the second defendant do return to him a sum of
Rs. 30,000 plus Rs. 541-2-0, being the consideration and expenses of a transfer
of immovable property resumed under the said Order. The suit was decreed by the
Civil Judge, to whom after integration the case was transferred, and the decree
was confirmed by the High Court by the judgment under appeal. It may be pointed
out that during the course of this suit, a third defendant, namely, the
Mamlatdar, Viswadar was also impleaded, because the property of Abu Panch had
passed into the management of the Saurashtra Government under what is described
in the case as the Gharkhod Ordinance. It may further be pointed out that the
two defendants other than the State of Saurashtra were discharged from the
suit, and it proceeded only against the State of Saurashtra for the relief of
declaration above described.
The facts of the case areas follows: One
Ameer Ismail Khokhar Kayam Khokhar purchased a plot of land in Junagadh town
from the State of Junagadh, and built a house on it. A Rukka was issued to him
on December 2, 1939, which is plaintiff s Exhibit No. 34. In the year 1941, the
Nawab of Junagadh purchased the property from Khokhar, though the document by
which this purchase took place has not been produced in the case. On November 17,1941, the Nawab gave this property by gift to Abu Panch. Abu 540 Panch in his
turn sold on November 24, 1943 the property to the respondent for Rs. 30,000.
In the original gift deed (described in plaintiff's Exhibit dated May 18, 1942) there does not appear to have been any mention of a power to transfer the
property. Indeed, in the said document of May 18, 1942, it was stated that the house was given for the " use and enjoyment " of Abu Panch.
Subsequently, on February 12, 1944, the Nawab ordered certain amendments in the
Palace Order by making it possible for Abu Panch to sell the house.
It was stated as follows:
" ... you are hereby granted from the
date of gift i.e. 17- 11-41 the title to sell the house as defined in this
Rukka and as per directions received." It appears that this additional
Shera was issued to validate the sale which had been effected by Abu Panch
However, the matters stood thus when after
Independence the affairs of Junagadh State fell into a chaos, and at the
invitation of the State Council the Government of India ordered the Regional
Commissioner, Western India and Gujerat States Region to assume charge of the
administration of the State on behalf of the Government of India. The Regional
Commissioner on November 9, 1947, issued a Proclamation which was published in
the Destural Amal Sarkar Junagadh of November 10, 1947, stating that he had assumed charge of the administration of the Junagadh State at 18-00 hours under the
orders of the Government of India. The Proclamation which is brief, may be
" 1, N. M. Buch, Barrister-at-law
O.B.E., I.C.S., Regional Commissioner, Western India & Gujarat States
Region, have this day assumed charge of the administration of the Junagadh
State at 18.00 Hours under the orders of the Government of India, at the request
of the Junagadh State Council supported by the people of Junagadh in view of
the complete breakdown of administration resulting in chaotic condition in the
State. The first task of myself and my officers will be to ensure complete
peace and order throughout Junagadh State territory, and to give even justice
to all communities. The majority 541 community of the State has a special
responsibility for the protection of the minorities. All the Junagadh State
Officials and subjects are, therefore, invited to offer unconditional and loyal
support and cooperation to the new Administration. Any act of non-cooperation
and disloyalty must in the interest of the people and for the preservation of
" peace and order " be dealt with and shall be dealt with firmly.
Junagadh, N. M. Buch, 9th November, 1947. Regional Commissioner, Western India & Gujarat States Region." On November 14, 1947,the Regional Commissioner by a Notification (No. 6 of 1947), appointed
Shri S. W. Shiveshwarkar as Administrator of Junagadh State. That Notification
was as follows:
" Mr. S. W. Shiveshwarkar M.B.E., I.C.S.
on being relieved as Secretary to the Regional Commissioner, Western India and
Gujarat States Region, is appointed Administrator of the Junagadh State vice
Rao Saheb T. L. Shah, B.A. Under my general guidance and supervision the
Administrator will have full authority to pass all orders and to take all
action necessary to carry on the affairs of the Junagadh State.
Junagadh, N. M. Buch, 14th November, 1947. Regional Commissioner, Western India & Gujarat States Region." On October 13, 1948,Shri Shiveshwarkar passed Secretariat Order No. R/3289 of 1948, which was
impugned in the suit.
"Land measuring Sq. Yds. 1,846-9-12 with
the building thereon, situated outside Majevdi Gate opposite workshop was given
as a gift by way of Inam to Abu Umar Bin Abdulla Abu Panch of Junagadh under
Private Secretary's Office No. P158 dated 17th November, 1941. The donee had no right to sell the said land and building under Rukka No. 32/98 and the
vendor Sheth Haji Ismail Haji 69 542 Valimahomed had purchased the same with
the full knowledge of the contents hereof.
The. grant being a wanton and unauthorised
gift of Public property the above-said order is hereby cancelled and as
the-subsequent purchaser does not get any right, title or interest higher than
that possessed by the donee, Mr. Abu Panch, it is ordered that the said land
with the superstructures thereon should be resumed forthwith by the State as
Sd. S. W. Shiveshwarkar Administrator
President's Executive Council, Junagadh State." It appears that
immediately afterwards the Administrator took this property in his possession,
and the plaintiff- respondent after serving a notice under s. 423 of the
Junagadh State Civil Procedure Code (corresponding to s. 80 of the Civil
Procedure Code, 1908) filed the suit for the above declaration in the High
Court of the State. As pointed out above, the suit was transferred subsequently
to the Civil Judge, Senior Division, Junagadh, who decreed it granting the
declaration on December 15, 1951. He held that the Administrator's order was
illegal and inoperative and also against " all canons of natural
justice." An appeal was filed b the State of Saurashtra pleading, as was
done in the suit itself, that the action of Shri Shiveshwarkar who was a
de-legate of the Government of India appointed under s. 3(2) of the
Extra-Provincial. Jurisdiction Act, was not justiciable being an act of State,
that the Civil Court's jurisdiction was barred under s. 5 of the Extra
Provincial Jurisdiction Act and s. 4(2) of Ordinance No. 72 of 1949 and that
the grant was always resumable by the Ruler and Shri Shiveshwarkar as the
successor could also resume the same.
The High Court of Saurashtra referred in
detail to a minute prepared by Sir Raymond West in Col. Webb's Political
Practice, wherein the author had stated what the rights of Rulers were to-
resume grants made by them and stated that such resumption was not possible by
the Rulers. The High Court also 548 stated that this action could not be
regarded as an act of State and further that the jurisdiction of the Courts was
neither barred by s. 5 of the Extra-Provincial Jurisdiction Act nor by s. 4(2)
of Ordinance No. 72 of 1949.
In this appeal, the learned Solicitor-General
on behalf of the State of Saurashtra abandoned three of the contentions which
were raised in the Courts below. He said that the State was not relying upon
the power of Shri Shiveshwarkar as successor to the Ruler of Junagadh to resume
this property, and no reference to Sir Raymond West's minute was therefore
necessary. He also said that the State Government did not seek to justify the
resumption nor question the jurisdiction of the Court under the
Extra-Provincial Juris- diction Act and the above-mentioned Ordinance. He
pleaded that the action of Shri Shiveshwarkar was an act of State performed on
behalf of the Government of India, and was therefore not justiciable in
The term 'act of State' has many uses and
meanings. In France and some Continental countries the acts of the State and
its officers acting in their official capacity are not cognizable by the
ordinary courts nor are they subject to the ordinary law of the land. The
reason of the rule is stated to be that the State as the fount of all law
cannot be subordinate to it. In our system of law which is inherited from
English Jurisprudence this is not accepted and save some acts of a special
kind, all other official acts must be justified as having a legal foundation.
In this sense act of State' means not all governmental acts as it does in the
French and Continental Systems but only some of them. The term is next used to
designate immunities and prohibitions sometimes created by statutes. The term
is also extended to include certain prerogatives and special immunities enjoyed
by the sovereign and its agents in the business of internal government. The
term is even used to indicate all acts into which, by reason that they are
official in character, the Courts may not inquire, or in respect of which an
official declaration is binding on the Courts.
544 We are not concerned With these and such
The defence is founded on an act of State
involving an alien outside the State. Such an act of State was described in elegant
phrase by Fletcher Moulton, L. J., in Salman v. Secretary of State for India (1) as 'a catastrophic change constituting a new departure.' It is a sovereign act
which is neither grounded in law nor does it pretend to be so.
Examples of such 'catastrophic changes' are
to be found in declarations of war, treaties, dealings with foreign countries
and aliens outside the State. On the desirability or the justice of such
actions the Municipal Courts cannot form any judgment. In Civil commotion, or
even in war or peace, the State cannot act catastrophically' outside the
ordinary law and there is legal remedy for its wrongful acts against its own
subjects or even a friendly alien within the State. See Johnstone v. Pedlar
(2). But there is immunity from courts' interference in respect of acts done by
the State against an alien outside the State. The question thus is always: Did
the State or its agents purport to act 'catastrophically' or subject to the
ordinary course of the law? This question was posed in Secretary of State in
Council for India v. Kamachee Boye Sahaba (3) by Lord Kingsdown in these
words:- " What was the real character of the act done in this case? Was it
a seizure by arbitrary power on behalf of the Crown of Great Britain, of the
dominions and property of a neighbouring State, an act not affecting to justify
itself on grounds of Municipal Law ? Or was it, in, whole or in part, a
possession taken by the Crown under colour of legal title of the property of
the late Raja of Tanjore, in trust for those who, by law, might be entitled to
it on the death of the last possessor? If it were the latter, the defence set
up, of course, has no foundation." In that case the Supreme Court of
Madras was moved by a bill to claim certain properties seized on the death of
Raja Sivaji of Tanjore without heirs. The (1) (1906) i K.B. 6I3 at 640. (2)
(192I) 2 A.C. 262.
(1859) 13 Moore P. C. 22.
545 claim was accepted by the Supreme Court
of Madras but was rejected by the Privy Council. Lord Kingsdown observed in the
case:- " The general principle of law could not, with any colour of
reason, be disputed. The transactions of independent States between each other
are governed by other laws than those which Municipal Courts administer. Such
Courts have neither the means of deciding what is right nor the power of
enforcing any decision which they make." After deciding that there was an
act of State, Lord Kingsdown further observed:
" 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 been done, it is a wrong for
which no Municipal Court of justice can afford a remedy." Similar view was
expressed also in Raja of Coory v. East India Company (1), Raja Saligram v.
Secretary of State for India in Council (2) ; and Sardar Bhagwan Singh v.
Secretary of State (3 ), and Secretary of State v. Sardar Rustam Khan (4). The
principle of these cases has been extended to all new territories whether
acquired by conquest, or annexation or cession or otherwise and also to rights,
contracts, concessions, immunities and privileges erected by the previous
paramount power. These are held to be not binding on the succeeding power even
though before annexation it was agreed between the two powers, that they 'would
be respected. Lord Dunedin in Vaje Singh Ji Joravar Singh & Others v.
Secretary of State for India (5) summed up the law in these words:- " When
a territory is acquired by a sovereign. State for the first time that is an act
of State. It (1) (1860) 29 Beav. 300.
(2) (1872) L.R. Ind. App. Suppl. Vol. 119.
(3) (1874) L.R. 2 A.I. Cas. 38.
(4) (1941) L.R. 68 I.A. 109.
(5) (1924) L.R. 511 I.A. 357, 360.
546 matters not how the acquisition has been
brought about. It may be by conquest, it may be by cession following on treaty,
it may be by occupation of territory hitherto unoccupied by a recognized ruler.
In all cases the result is the same. Any inhabitant of the territory can make
good in municipal courts established by the new sovereign any such rights, as
that sovereign has, through his officers, recognized. Such rights as he had
under the rule of predecessors avail him nothing. May 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." These cases and others like Cook v. Sprigg
(1), Hoani Te Heuheu Tukino v. Aotea District Maori Land Board (9) were
approved and applied by this Court in Dalmia Dadri Cement Co. v. Commissioner
of Income-tax (3) in which an agreement with the ex-Ruler of Jhind for tax
concessions was held not binding upon the Income-tax authorities after the
merger of the State with the Union of India and the defence of an act of State
was upheld. Venkatarama Aiyar, J., then observed:- " When the sovereign of
a State-meaning by that expression, the authority in which the sovereignty of the
State is vested, enacts a law which creates, declares or recognizes rights in
the subjects, any infraction of those rights would be actionable in the courts
of that State even when the infraction is by the State acting through its
officers. It would be no defence to that action that the act complained ,of is
an act of State, because as between the sovereign and his subjects there is no
such thing as an act of State, and it is incumbent on his officers to show that
their action which is under challenge is within the authority conferred on them
by law. Altogether different considerations arise when the act of the sovereign
has reference not to the rights (1) (1899) A.C. 572. (2) (1941) A.C. 308.
(3)  S.C.R. 729, 740-41.
547 of his subjects but to acquisition of
territories belonging to another sovereign. That is a matter between
independent sovereigns, and any dispute arising therefrom must be settled by
recourse not to municipal law of either State but to diplomatic action, and
that failing, to force. That is an act of State pure and simple, and that is
its character until the process of acquisition is completed by conquest or
cession. Now, the status of the residents of the territories which are thus
acquired is that until acquisition is completed as aforesaid they are the
subjects of the ex-sovereign of those territories and thereafter they become
the subjects of the new sovereign. 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 as are granted or recognized by him; vide Secretary
of State for India v. Bai Rajbai (1), Vajesingji Joravar Singhji and Others v.
Secretary of State (2), Secretary of State v.
Sardar Rustam Khan (3) and Asrar Ahmed v. Durgah Committee, Ajmer (4). In law,
therefore, the process of acquisition of new territories is one continuous act
of State terminating on the assumption of sovereign 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 sovereign. In other words, as regards
the residents of territories which come 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.
It follows from this that no act done or
declaration made by the new sovereign prior to his assumption of sovereign
powers over acquired territories can quoad the residents of those territories
be regarded as having the character of a law conferring on them rights such as
could be agitated in his courts." (1) L.R. 42 I.A. 229. (3) (1941) L.R 68
(2)(1924) L.R. 51 I.A. 357, 360.
(4) (1947) A.I.R. 1947 P.C. I.
548 It is, however, otherwise if the act of
the new sovereign is meant to be within the law and is not a concomitant of an
act of State. One such case was Forester and Others v.
Secretary of State for India (1). In that case one of the questions was whether there was an act of State at
all,--a question which the Courts can legitimately consider. It was held that
the Begum, whose estate was seized by the East India Company after her death,
was not a sovereign princess but a mere Jaidadar and the resumption of her
jagir upon her death was not an act of State but an act done under a legal
title. It was observed :- " The act of Government in this case was not the
seizure by arbitrary power of territories which upto that time had belonged to
another sovereign State; it was the resumption of lands previously held from
the government under a particular tenure, upon the alleged determination of
that tenure. The possession was taken under colour of legal title, that title
being the undoubted right of the sovereign power to resume, and retain or
assess to the public revenue, all lands within its territories upon the
determination of the tenure, under which they may have been exceptionally held
rent free. If by means of the continuance of the tenure or for other cause, a
right be claimed in derogation of this title of the government, that claim,
like any other arising between the government and its subjects would prima
facie be cognizable by the Municipal Courts of India." From these cases it
is manifest that an act of State is an exercise of sovereign power against an
alien and neither intended nor purporting to be legally founded. A defence of
this kind does not seek to justify the action with reference to the law but
questions the very jurisdiction of the Courts to pronounce upon the legality or
justice of the action.
We have now to consider whether the necessary
facts to support the plea in defence existed in this case. We must determine
what was the status of the respondent on the date the impugned Order was passed
against him. The position of the ex-Rulers of the former Indian States has, on
more than one occasion, (1) 18 W.R. 349 P.C.
549 been analysed by this Court and need not
detain us for long.
After the lapse of paramountcy by reason of
s. 7 of the Indian Independence Act. 1947, the Nawab of Junagadh became a
sovereign but he did not accede to the new Dominion by executing an Instrument
of Accession as did the other Rulers in Saurashtra. He left the country. The
position of Junagadh was thus unique and what subsequently happened is
described in the White Paper on Indian States which it has become customary to
rely upon as a constitutional document, without proof.
" After the Nawab of Junagadh had left
the State for Pakistan, the administration of this 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 adjoining 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 re- presentatives 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 Supplementary
Covenant (Appendix XXXVI) was executed by the Rulers of Kathiawar States with a
view to giving effect to the aforementioned resolutions. The administration of
Junagadh was taken over by the Saurashtra Government on January 20, 1949,. .. .. .
Accordingly the Constitution treats Junagadh
and these States as part of Saurashtra," 70 550 It would appear from this
that between November 9, 1947 and January 20, 1949, there was no formal
annexation of the State by the Dominion of India, though the Central Government
through its Regional Commissioner, Western India and Gujrat States Region was
maintaining law and order and carrying on the administration. On November 16, 1947, the following Notification was issued by the Administrator:-
"NOTIFICATION No. 9 of 1947.
It is hereby ordered that the Junagadh State
Order No. 568 of 1944 is cancelled. The State Council created by the said order
is hereby dissolved.
Any reference, required by any Enactment,
Rules, Orders, Convention, Usage etc. to be made to the Council shall
henceforth be made to the Administrator, Junagadh State, in whom all the powers
so far exercised by the Council and its Members shall henceforth vest.
Junagadh, S. W. Shiveshwarkar, 16th November,
1947 Administrator, Junagadh State." From that date the administration of
the Junagadh State was centered in the Administrator as the agent of the
Dominion of India. The people of Junagadh did not, strictly speaking, become
the citizens of the Dominion till much later. During the interval they were
aliens even though they desired union with India and had expressed themselves
almost unanimously in the Referendum.
The act of the Dominion in thus assuming the
administration of the Junagadh State was an act of State pure and simple and
the action of the Administrator was taken before the act of State was over.
The respondent contended before us that the
theory of an act of State did not apply to this case. According to him the
State Council was in existence and had invited the Dominion of India to step in
and all the local laws were still applicable. He pointed out that the
Saurashtra Civil Procedure Code was amended by a notification on 7th July,
1948, and that also proved 551 that the local laws were in force and the
Administrator was subject to them in his dealings with private property, under
the general superintendence of the Regional Commissioner.
All this is beside the point and does not
truly interpret the act of State which had taken place. The essence of an act
of State is the exercise. of sovereign power and that is done arbitrarily, on
principles either outside or paramount to the municipal law. The fact that the
sovereign allows the inhabitants to retain their old laws and customs does not
make the sovereign subject to them and all rights under those laws are held at
the pleasure of the sovereign. It is only when the sovereign can be said to
have purported to act within the laws that-the act of State ceases to afford a
plea in defence. Before that stage is reached, government may be influenced by
the existing laws and rights and obligations but is not governed or bound by
them. See Campbell v. Hall (1), Ruding v. Smith (2) two cases of conquest and
E. 1. Co. v. Syed Ali (3). See also Mayne Criminal Law of India (4th Edition)
II pp. 119, 120 where the law is summarised. There is nothing to prove that,
the Dominion had expressly or even tacitly recognized the ,old rights, the
burden of proving which lay upon the respondent Secretary of State for India v.
Bai Rajbai (4) and Vajesingh's case (5) (op. cit.).
In this view of the matter it is not
necessary to determine whether the Nawab could or did confer title on the donee
in respect of this property. Equally fruitless will be an inquiry into the
powers of the Nawab - to resume or derogate from, his grants and whether
similar or identical powers were inherited by the Dominion Government or its
The action of the Dominion Government being
an act of State, the act of the Administrator, however arbitrary, was not
justiciable in the municipal courts and the suit was not well founded.
The appeal is, therefore, allowed. The
respondent's suit shall be dismissed with costs. throughout.
(1) I COMP. 204; 98 E.R. 1045.
(2) 2 Hag. Con. 384; 161 E.R. 774.
(3) 7 M.I.A. 555 at 578.
(4) L.R. 42 I.A. 229.
(5) (1924) L.R. 51 J.A. 357, 360.