Madhaorao Phalke Vs. The State of
Madhya Bharat  INSC 164 (3 October 1960)
SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L.
CITATION: 1961 AIR 298 1961 SCR (1) 957
CITATOR INFO :
R 1962 SC 141 (7) R 1962 SC1288 (8,23) RF
1963 SC 332 (11) D 1963 SC 953 (12) R 1963 SC1638 (32) D 1964 SC 888 (5) R 1964
SC1043 (56,96,130,132,160) R 1964 SC1793 (11,12,13) R 1964 SC1903 (18) R 1966
SC 704 (4) RF 1968 SC1053 (2) R 1971 SC 530 (54,329) RF 1975 SC2299 (581) RF
1977 SC1361 (192) D 1987 SC 82 (11)
Hereditary Military Pension--Bachat--Right to
receive guaranteed by Kalambandis issued by Rulers of Gwalior--If can be
terminated by executive order--Kalambandis: if existing law--Kalambandis of
1912 and 1935 (Gwalior)--Constitution of India, Art. 372.
The appellant was the recipient of a
hereditary military pension called Bachat granted by the Rulers of Gwalior to
his ancestors in recognition of military service. The right to receive the said
pension was recognised by the Kalambandis of 1912 and 1935 issued by the said
When Gwalior integrated with Indore and Malwa
in 1948 to form a union, s. 4 Of 122 958 Act No. 1 of 1948 provided for the
continuance of all laws, ordinances, rules and regulations having the force of
law in the covenanting states. After the formation of the State of Madhya
Bharat under the Constitution, the Government of that State, which remained
liable to pay the said pension, by an executive order, terminated the right.
The appellant moved the High Court against the said order under Art. 226 of the
Constitution. and his case was that the right to receive the said pension,
having been statutorily recognised by the State of Gwalior, could not be extinguished
by an executive order. The Full Bench of the High Court held against him.
The question was whether the Kalambandis of
1912 and 1935, on which the appellant rested his case, were existing law within
the meaning of Art. 372 Of the Constitution.
Held, that the question must be answered in
the affirmative, No distinction could be made between an executive order and a
legislative command made by an absolute monarchy, such as the Rulers of the
Indian State of Gwalior were, since they have the same force of law, passed in
whichever capacity they may be, and govern the rights of the subjects.
Ameer-un-Nissa Begum v. Mahboob Begum, A.I.R.
955 S.C. 352 and Director of Endowments, Government of Hyderabad v. Akram Ali,
A.I.R. 1956 S.C. 6o, referred to.
Consequently, even supposing that the
Kalambandis did not amount to a quanun or law technically so called, they would
nevertheless be orders or regulations having the force of law in the State at
the material time and would be existing law within the meaning of Art. 372 Of
Edward Mills Co., Ltd., Beawar v. State of
Ajmer,  1 S.C.R. 735, referred to.
The contents of the two Kalambandis and the
character of their provisions clearly show that they could not be mere
administrative orders, and if not statutes, must, in any event, be rules and
regulations having the force of law.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 84 of 1954.
Appeal from the judgment and order dated
September 1, 1954, of the former Madhya Bharat High Court in Civil Misc. Case
No. 11 of 1952.
B. Sen, P. V. Sahasrabudhe, B. K. B. Naidu
and I. N. Shroff, for the appellant.
M. Adhikari, Advocate-General for the State
of Madhya Pradesh, H. J. Umrigar and R. H. Dhebar, for the respondents.
959 1960. October 3. The following Judgment
of the Court was delivered by GAJENDERGADKAR. J.-The question of law which
arises for our decision in this appeal is whether the Kalambandis under which
the appellant's right to receive Rs. 21/8/per month by way of Bachat (balance)
is guaranteed constitute an existing law within the meaning of Art. 372 of the
Constitution. This question arises in this way. The appellant Madhaorao Phalke
describes himself as an Ekkan and claims that as such Ekkan he and his
ancestors have been receiving the monthly payment of Rs. 21/8/-from the State
of Madhya Bharat. It appears that the appellant's ancestors had accompanied the
Scindias to Gwalior from Maharashtra about 200 years ago, and had rendered
military service in conquering the territory of Gwalior. In recognition of this
service the appellant's ancestors were granted a fixed amount of money per
month, and this amount has been received by the appellant's family for several
generations past. The right to receive this amount has been' recognised by the Rulers
of Gwalior in several statutes, orders, rules or regulations having the force
of statutes; amongst them are the Kalambandis of 1912 and 1935. On April 18,
1952, the Government of Madhya Bharat issued an executive order terminating the
said payment to the appellant; that is why the appellant had to file the
present petition in the High Court of Madhya Bharat against the State of Madhya
Bharat and the Government of Madhya Bharat, Revenue Department, respondents 1
and 2 respectively under Art. 226 of the Constitution. In this petition the
appellant bad prayed for an order that a writ in the nature of mandamus, or in
the alternative an appropriate direction or order be issued calling upon the
respondents to forbear from giving effect to the said executive order. In his
petition the appellant challenged the said order on two grounds. It was urged
that since the appellant's right to receive the specified amount had been
statutorily recognised by the State of Gwalior it was not open to respondent 1
960 to extinguish that right merely by an executive order. In the alternative
it was contended that the right to receive the said amount from month to month
was property to which the appellant was entitled, and he could not be divested
of that property without the payment of compensation under Art.
31 of the Constitution.
These pleas were denied by the respondents.
The respondents' case was that the payment made to the appellant's ancestors
and to him was by way of emoluments for military service and did not constitute
property, and that the Kalambandis on which the appellant relied did not
constitute an existing law under Art. 372. It appears that along with the
appellant ten other persons had filed similar petitions making prayers for
similar writs or orders against the respondents and their pleas were similarly
challenged by the respondents. All the eleven petitions were accordingly tried
These petitions were heard by a Full Bench of
the Madhya Bharat High Court consisting of Shinde, C.J. and Dixit and Newaskar,
JJ. All the three learned judges agreed in holding that the Kalambandis on
which the petitioners had rested their case were orders issued by the Ruler for
the purpose of reorganising the scheme of administration and that they did not
amount to law or regulation having the force of law. Dixit, J., gave a specific
reason in support of his conclusion that the Kalambandis did not amount to a
statute. He held that in Gwalior there was a well recognised law-making
machinery or custom, and since the Kalambandis in question did not satisfy the
requirements of the forms and solemnities specified in that behalf they could
not claim the status of a statute. In the result all the petitions were
dismissed. The appellant then applied for and obtained a certificate from the
High Court under Art. 133(1)(c) of the Constitution, and it is with the said
certificate that he has come to this Court in the present appeal.
When this appeal was heard by this Court on
March 31, 1958, it was conceded by both the parties that it would be better
that they should be allowed to 961 adduce additional evidence before the
question of law which was undoubtedly one of general importance, was decided by
this Court. In fact an application' bad been made by the appellant before this
Court for leave to adduce additional evidence and no serious objection was
raised to the additional evidence by the respondents. Therefore, by consent the
matter was sent back to the High Court with a direction that parties should be
allowed to adduce additional evidence and the High Court should record its
finding on the issue remitted to it in the light of the said additional
evidence. The issue remitted to the High Court was whether the Kalambandis in
question were statutes or regulations having the force of statutes in the State
of Gwalior at the material time or were they merely administrative orders.
After remand parties have led evidence before
the' High Court, and the High Court has recorded its finding on the issue
remitted to it. Abdul Hakim Khan and Newaskar, JJ., have found in favour of the
appellant and have held that the Kalambandis in question were regulations
having the force of law in the State of Gwalior at the material time; Krishnan,
J., has taken a contrary view. After the finding of the High Court was thus
recorded papers in the case have been submitted to this Court, and the appeal
has now come before us for final disposal; and so we are called upon to decide
the short question of law set out by us at the commencement of this judgment.
At the outset it may be relevant to refer
very briefly to the historical background of the claim made by the appellant
and the other petitioners in all these matters. We have already stated that the
appellant claims to be an Ekkan.
These Ekkans, it appears, were a class of
horsemen who formed part of the Peshwa's Cavalry along with Silledars.
They were single volunteers and they brought
with them their own horses and accoutrements. The other petitioners claimed to
be Silledars whose ancestors formed part of the Maharatta Cavalry. These
Silledars were troopers who brought in their own horses and weapons. They
brought bodies of troops armed and 962 equipped at their own expense. They were
also known as Paigadars. It also appears that later on an account was made as
to the expenses which the Ekkan may have to bear for the maintenance of his
horse, and from the total amount payable to him the amount of expenses thus
determined was deducted, and that presumably left the balance Rs. 21/8/which
was paid to him as Bachat or balance. Broadly stated this appears to be the
position on the pleadings of the parties in the present proceedings. The
question which calls for our decision is whether the right to receive this
amount is a statutory right; in other words, whether the Kalambandis on which
the right is based were rules or regulations having the force of law in the
St-ate of Gwalior? The two Kalambandis in question were issued in 1912 A. D.
and 1935 A. D. respectively. The first
Kalambandi was issued by the Ruler Sir Madhavrao himself, whereas the second
was issued by the Council which was then in charge of the administration of the
State subsequent to the death of Sir Madhavrao which took place in 1925. It is
well-known that the States of Gwalior, Indore and Malwa integrated and formed a
Union in 1948. After the Union was thus formed Act No. 1 of 1948 was passed for
the purpose of taking over the administration of the covenanting States.
Section 4 of this Act provided for the application of local laws, and as a
result all laws, ordinances, rules, regulations, etc., having the force of law
in any of the covenanting States were to continue to remain in force until they
were repealed or amended according to law. Thus the existing laws which were in
force in the State of Gwalior continued even after the union ; and according to
the appellant the operation of the Kalambandis continued under s. 4.
On September 19, 1950, a notification was
issued by the Commissioner, Jagir Inams, Court of Wards, Madhya Bharat,
declaring that in the case of army personnel described in paragraph 1, question
of mutation, adoption. etc., arising in regard to the said personnel would be
dealt with by the office of the Commissioner, and Bachat and other amounts
payable to 963 the said personnel would be distributed by the same office.
Members of the said army, personnel were
accordingly asked to claim payment in respect of their Nemnook from the office
of the Commissioner. Subsequently, under the new set up which came into
existence after the formation of Madhya Bharat the armies of the covenanting
States were amalgamated and reorganised by the Government of India so as to fit
them into the overall plans of the defence of the country. The report of the
general administration of Madhya Bharat shows how this reorganisation was
carried out. As a result of this reorganisation the expenditure on account of
hereditary military pensions of Bachat to Silledars and Ekkans was agreed to be
charged to the Muafi department of the Madhya Bharat Government; that is how
the Madhya Bharat Government continued to be liable to pay the amount to the
appellant from mouth to month.
Then followed the impugned order passed by
respondent 1 on April 18, 1952. Clauses 1 to 4 of this order made provision for
the continued payment to the persons specified thereunder. Clause 5, however,
declared that the distribution of amounts to Silledars and Ekkans not covered
by cls. 1 to 4 would be absolutely stopped from May 1, 1952.
It is this order which has given rise to the
Before dealing with the question as to
whether the Kalambandis constitute an existing law or not it may be useful to
refer very briefly to the constitutional position in regard to the Government
of Gwalior at the material time.
It appears that in 1905 Sir Madhavrao Scindia
set up an advisory council known as Majlis Khas. He was himself the President
of this Council and assumed the title of Mir Majlis. This Council was
constituted as a sort of lawmaking body, but in s. 5 of the Quaid Majlis Khas it
was expressly provided that the acceptance or rejection of any recommendations
made by the majority of the Council would depend entirely on the discretion of
the President. This was followed in 1916 by the establishment of Majlis Quanun
for the purpose of making laws for 964 the State. With this body were
associated some nominated public citizens. Section 4(a) of the Quaid Majlis
Quanun, however, made it clear that its function was merely to advise His
Highness on such matters as would be placed before it, and s. 4(b) left it to
the absolute discretion of His Highness either to accept or not the
recommendations of the body. In 1918 the Constitutional Manual describing the
functions of the members of the Ruler's Cabinet was published and Majlis Am
which was the House of the People was established. It consisted mainly of
nominated members though some members elected from recognised public bodies
also were associated with it. According to s. 31(6) of the relevant law
creating this body, deliberations of the body were ultimately to be submitted
to His Highness for his final orders, and it was his orders which alone could
be executed. It would thus be seen that though Sir Madhavrao was gradually
taking steps to associate the public with the government of the State and with
that object he was establishing institutions consistent with the democratic
form of rule, he had maintained all his powers as a sovereign with himself and
had not delegated any of his powers in favour of any of the said bodies. In
other words, despite the creation of these bodies the Maharaja continued to be
an absolute monarch in whom were vested the supreme power of the legislature,
the executive and the judiciary.
In dealing with the question as to whether
the orders issued by such an absolute monarch amount to a law or regulation
having the force of law, or whether they constitute merely administrative
orders, it is important to bear in mind that the distinction between executive
orders and legislative commands is likely to be merely academic where the Ruler
is the source of all power. There was no constitutional limitation upon the
authority of the Ruler to act in any capacity he liked; he would be the supreme
legislature, the supreme judiciary and the supreme head of the executive, and all
his orders, however issued, would have the force of law and would govern and
regulate the affairs of the State including the rights of 965 its citizens. In
Ameer-un-Nissa Begum v. Mahboob Begum (1), this Court had to deal with the
effect of a Firman issued by the Nizam, and it observed that so long as the
particular Firman issued by the Nizam held the field that alone would govern
and regulate the rights of the parties concerned though it would be annulled or
modified by a later Firman at any time that the Nizam willed. What was held
about the Firman issued by the Nizam would be equally true about all effective
orders issued by the Ruler of Gwalior (Vide also:
Director of Endowments, Government of
Hyderabad v. Akram Ali (2) ).
It is also clear that an order issued by an
absolute monarch in an Indian State which had the force of law would amount to
an existing law under Art. 372 of the Constitution.
Article 372 provides for the continuance in
force of the existing laws which were in force in the territories of India
immediately before the commencement of the Constitution, and Art. 366(10)
defines an existing law, inter alia, as meaning any law, ordinance, order, rule
or regulation passed or made before the commencement of the Constitution by any
person having a power to make such law, ordinance, order, rule or regulation.
In Edward Mills Co., Ltd., Beawar v. State of Ajmer (3), this Court has held
that " there is not any material difference between the expressions
'existing law.' and the 'law in force'. The definition of an, existing law in
Art. 366(10) as well as the definition of an Indian law contained in s. 3(29)
of the General Clauses Act make this position clear ". Therefore, even if
it is held that the Kalambandis in question did not amount to a quanun or law
technically so called, they would nevertheless be orders or regulations which
had the force of law in the State of Gwalior at the material time, and would be
saved under Art. 372. The question which then arises is whether these
Kalambandis were regulations having the force of law at the material time.
In support of the conclusion that they are
merely administrative orders it is urged by the learned (1) A.I.R. 1955 S.C.
352. (2) A.I.R. 1956 S.C. 6o.
(3)  1 S.C.R. 735.
123 966 Advocate-General of Madhya Pradesh
that Sir Madhavrao was an enlightened Ruler and was fully conscious of the
distinction between executive orders and statutory provisions, and so if the
Kalambandis in question did not take the form of a quanun or a statute it would
be safe to infer that they were intended to operate merely as executive orders.
In support of this argument reliance has been placed on the observations made
by Sir Madhavrao, in Volume 7 which deals with Durbar Policy. " Broadly
speaking says Sir Madhavrao, " all orders and directions issued by the
Ruler may be regarded as laws. In the technical sense, however, the latter term
signified only commands whose fulfilment is accompanied by the conferment of a
particular concession and whose contravention spells punishment or the
extinguishment of a right. Orders issued for the purpose of regulating the
working of a department generally take the form of Rules, Manual or Kalambandi
and are superscribed as such ". It may be conceded that this statement does
make a distinction between laws technically socalled and Rules, Manual or
Kalambandi; but it is significant that the very statement on which this
argument is founded ends with the observation that the differentiation in the
Dames is merely intended to indicate the group to which a given set of orders
In other words, the name given to the order
would not be decisive; its character, its content and its purpose must be
Then it is urged that the Kalambandis in
question were not published in the Government Gazette as other laws are; they
were published only in the military gazette, and it is argued that they are not
called quanun or laws as they would have been, if they were intended to operate
as laws. In this connection our attention was also drawn to certain acts passed
in the State of Gwalior which are described as acts or laws. On the other hand,
it is clear that the distinction between Kalambandi and quanun was not always
strictly observed. In regard to the jurisdiction of the High Court and the
functioning of the Civil and Criminal Courts rules were issued and yet they 967
were described as a Manual. There can be no doubt that the rules contained in
this Manual which govern the jurisdiction, powers and authority of Courts in
the State of Gwalior had the force of law, and yet they were included in a
Manual which, judging merely by the description of the document, can be
distinguished from a quanun. Similarly it appears from circulars collected in a
book called Majmua Circulars (1971 to 1993 Samvat) that the notification issued
under the said Circular had the effect of modifying the provisions of the
Customs Law. There is also another instance that amendment of statutory
provisions was made by Sir Madhavrao by giving directions in that behalf though
such directions did not take the form of a quanun. In fact in s. 39 of the
Durbar Policy, Volume 3, Sir Madhavrao has described the Kalambandi of Samvat
1969 as quayada. To the same effect is the Durbar Order No. 5 dated April 14, 1923.
It would thus be clear that the decision of
the question with which we are concerned cannot rest merely on the description
of the order. It would not be possible to accept the argument urged by the
learned Advocate-General that because the Kalambandi is not described as a
quanun or was not published in the government gazette therefore it should be
treated as an executive order. The words used in describing the several orders
issued by the Ruler can afford no material assistance in determining their character.
In this connection it is necessary to recall that all orders issued by the
absolute monarch had the force of law.
Therefore it would be necessary to consider
the character of the orders contained in these Kalambandis. The first
Kalambandi which was issued in 1912 consists of 54 clauses.
No doubt it begins by saying that it has been
issued for the purpose of arranging for the administration of the department of
irregular unit of Shiledari, but the nature of the provisions contained in this
document unambiguouly impresses upon it the character of a statute or a
regulation having the force of a statute. It recognises and confers hereditary
rights, it provides for the adoption of a son by the widow of a deceased
silledar subject to the 968 approval of the State; it also provides for the
maintenance of widows out of funds specially set apart for that purpose;
it contemplates the offering of a substitute
when a Silledar has become old or has other. Wise become unfit to render
service; it makes detailed provisions as to mutation of names after the death
of a Silledar, and it also directs that the Asami being for the Shiledari
service it cannot be mortgaged for a debt of any banker, and it further
provides that if a decree is passed against a Silledar and the decreeholder
seeks to proceed against the amount payable to him the execution has to be
carried out in accordance with the manner and subject to the limitations
prescribed in that behalf. It would thus be seen that the detailed provisions
made by this Kalambandi deal with several aspects of the amount payable to the
recipient, and considered as a whole it cannot be treated as an administrative
order issued merely for the purpose of regulating the working of the
administration of the department of irregular forces.
The second order which was issued by the
Council is substantially on the same lines as the first order. It consists of
39 clauses. Its preamble shows that as per orders of the Durbar the department
of irregulars was governed by the regulations issued in that behalf in 1912
A.D., and it adds that " because the aforesaid Bedas have now been
amalgamated with the regular army and are made subject to all the laws that are
in force in the Gwalior army, the Regulations of 1912 are repealed and orders are
issued as under ". This clearly reads like a statutory provision whereby
the earlier relevant statute is repealed.
The scheme of this order follows the pattern
of the earlier order. It provides for succession, for the regulation of
adoption, for the mutation and heirship enquiry, for a substitute being given
in case the Silledar is unable to work himself, prescribes a disqualification
from service where the Ismdar is convicted, and imposes a similar limitation on
execution against the amount of the Asami.
Clause 22 of this order says that in case
there is no legal heir or the widow of the deceased Ismdar his name will be
struck off and the 969 Asami will at once be given to other person. In no case
will the Asami be abolished. In our opinion,. having regard to the contents of
the two orders and the character of the provisions made by them in such a
detailed manner it is difficult to distinguish them from statutes or laws; in
any event they must be treated as rules or regulations having the force of( law.
That is the finding recorded by Abdul Hakim Khan and Newaskar, JJ., and we
think that the said finding is correct.
After the finding was recorded and submitted
to this Court the appellant has made one more application for permission to
lead another piece of additional evidence. This evidence consists of a book
named " Guide Book Kalambandi " of October 1, 1899. It has been
printed, published and issued under the signature of the Ruler, and it relates
among other things to the administration of the Revenue Department of the State
of Gwalior; it is written in Hindi. It contains a preface and introduction.
According to the appellant the relevant portions of this document would clearly
show that Kalambandi was treated as indistinguishable from quanun or law. This
position in not seriously disputed by the respondents; but they contend that
the appellant should not be allowed any further opportunity to lead additional
evidence because by the order of remand he was given such an opportunity and he
should have produced all the evidence on which he wanted to rely before the
High Court. There is some force in this contention ; on the other hand it is
clear that publications like the one on which the appellant now seeks to rely
would be primarily within the knowledge of respondent I and respondent I should
have produced all relevant and material documents to assist the High Court in
determaining the issue sent to it after remand. However, in view of the
conclusion which we have reached on the material that has already been adduced
on the record we do not think it necessary to consider whether the additional
evidence should be allowed to be adduced.
It is not disputed that if the Kalambandis on
which 970 the appellant's right is based are rules or regulations having the force
of law the impugned executive order issued by respondent 1 would be invalid.
The right guaranteed to the appellant by an existing law cannot be extinguished
by the issue of an executive order. In fact on this point there has never been
a dispute between the parties in the present proceedings. That is why the only
point Of controversy between the parties was whether the Kalambandis in
question amount to an existing law or not. Since we have answered this question
in favour of the appellant we must allow the appeal, set aside the order passed
by the High Court and direct that a proper writ or order should be issued in
favour of the appellant as prayed for by him. The appellant would be entitled
to his costs throughout.