State of Saurashtra Vs. Jamadar
Mohamad Abdulla & Ors  INSC 293 (3 October 1961)
SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1962 AIR 445 1962 SCR Supl. (3) 970
CITATOR INFO :
R 1962 SC1288 (30) R 1964 SC1043
(19,69,70,93,98,117,136,152,15 R 1967 SC 40 (5) RF 1969 SC 370 (8) RF 1981
Act of State-Junagadh State-When integrated
into IndiaPolitical Question-Reference to Government for opinionGrants by
Nawab-Resumption by Administrator-if can be challenged in Municipal
courts-Government of India Act 1935 (26 Geo v. Ch 2), 6, 299 (1).
The Nawab of junagadh State made grants of
properties in favour of the respondents before 1947. After India attained
independence the Nawab fled the country. At the request of the Nawab's Council
the Government of India took over the administration of the State and on
November 9, 1947 the Regional Commissioner assumed charge of the administration
on behalf of the Government of India.The Regional Commissioner appointed an
Administrator of junagadh State. In December 1948, the elected representatives
of Junagadh and certain other neighbouring States recommended to the Government
of India and to the United State that of Saurashtra that the States be
integrated. Thereafter, the administration of junagadh State was integrated
with the United State of Saurashtra on January 20, 1949. On different dates
between November 9, 1947, and january 20, 1949, the Administrator passed orders
cancelling the grants in favour of the respondents and took possession of the
properties. The respondents filed civil suits for the recovery of the
properties on the ground that 971 they had been taken away without the
authority of law. The appellant contended that the orders made by the
Administrator arose out of and during an act of State and were not justiciable
in the municipal courts. The respondent contended that the ,question as to when
the changeover of sovereignty took place was a political question which-should
be referred to the Government of India for its Opinion and the Court should
abide by that opinion and that the facts of this case showed that there was
complete change over of sovereignty on November 9, 1947, and the act of State
I Held, (per C. J., Das and Ayyangar, jj.)
that the impugned orders arose out of and during an act of State and they could
not be questioned before municipal tribunals. There was no change over of de
jure sovereignty on November 9,1947 when the administration was taken over and
junagadh continued to exist as such even after this date. junagadh was not a
State which acceded to the Dominion nor was its territory included within the
territory of the Dominion as from November 9, 1947. It was only on January 20,
1949, that the Dominion of India assumed de jure sovereignty over junagadh by
its integration into the United State of Saurashtra and the act of State came
to an end. It was not necessary to seek information from the Government of India
as to the date of the change over as there was no uncertainty about it and also
as the Government of India had spoken with sufficient clarity in the White
Paper on Indian States.
State of Saurashtra v. Memon Haji Ismail
Haji, (1960) 1 S.C.R. 537 and M/s. Dalmia Dadri Cement Co. Ltd. v. The
Commissioner of lncome-tax, (1959) S.C.R. 729, followed.
In re: Southern Rhodesia,(1919) A.C. 211 and
Samaut v. Strickland (1938) A.C. 678, referred to.
Per Sarkar and Mudholkar JJ. Even if it be
accepted that junagadh was annexed on November 9, 1947, and the respondents
became citizens of India they could assert and establish, in the municipal
courts of the new sovereign only such rights as were recognised by the Indian
Dominion. The burden of showing that they were so recognised lay on the
respondents. The orders passed by the Administrator show that far from
recognizing thegrants in favour of the respondents they were repudiated. The
respondents could not claims the benefit of s. 299 (1) of the Government of India
Act; 1935, as they had to establish that on or after November 9, 1947, they
possessed legally enforceable right against the Dominion of India, which they
could only do by showing that their pre-existing rights had been recognized by
the Dominion of India; s.299(1) did rut enlarge any rights to property but only
protected those which a person already had.
972 M/s Dalmia Dadri Cement Co., Ltd. v. The
Gommissioner of Income-tax, (1959) S.C.R. 729, In Re,.. Southern Rhodesia,
(1919) A.C. 211. Samaut v. Strickland, (1938) A.C. 678, United States v.
Percheman, (1833) 32 U.S. 51, Cook v.
Sprigg, (1899) A.C. 572, Phacker v. State of
Saurashtra, A.I.R. 1954 S.C. 680 and Virendra Singh v. State of Uttar Pradesh,
(1955) 1 S.C.R. 415.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 220, 221, 349 and 497 of 58.
Appeals from the judgment and decrees dated
1955 March 24,1956 September 15 and 1956 April 12 of the former Saurashtra High
Court at Rajkot in Civil Second Appeals Nos.
123 of 1953 & 104 of 1955 and Civil
Appeals Nos. 42 of 1953 and 50 of 1954.
M. C. Setalvad, Attorney-General for India,
C. K. Daphtary, Solicitor-General of India, B. Sen and R. H. Dhebar, for the
Appellant (In all the Appeals).
I. N. Shroff for the Respondents (In C. As.
Nos. 220 and 221 of 1958).
G.S. Pathak, N. P. Nathnwni and K. L. Hathi
for the Respondents (In C.A. No. 349 of 1958).
J.P. Mehta, J. B. Dadachanji, Onkar Chand
Mathur and Ravinder Narain, for the Respondents C.A. No. 497 of 1958).
1961. October 3. The Judgment of Sinha, C.J.,
S. K. Das and N. Rajagopala Ayyangar,, JJ. was, delivered by S. K. Das, J. The
Judgment of Sarkar and J. R. Mudholkar, JJ., was delivered by J. R. Mudholkar,
S. K. DAs, J.-These four appeals which have
been brought to this Court on certificates granted by the then High Court of
Saurashtra under Art. 133 of the Constitution fall into three groups, and have
been heard together. The essential facts relating to these appeals are the
same, and 'a common question of law now falls for determination on those facts.
973 The State of Gujarat., within whose
territories the disputed properties are now situate, is the appellant in the
The respondents and in some cases their.
ancestors, obtained grants from the then Nawab of Junagadh, which was then a
ruling State, in respect of lands and, in one case, of a building known as
"Datar Manzil'. These grants were repudiated or cancelled and the
property, subject of the grant, was resumed by the Administrator who took over
charge of the administration of Junagadh on behalf of the Dominion of India in
1947 in circumstances which we shall presently state. The respondents brought
suits challenging the validity of the orders made by the Administrator. These
suits were decreed by the lower court and the decrees were substantially upheld
by the High Court of Saurashtra. The principal point for decision in these
appeals is whether the impugned orders made by the Administrator arose out of
and during an act of State which was not justiciable in the municipal courts. This
is the only point which has been agitated before us on behalf of the,
appellant-State and very strong reliance has been placed on the decision of
this Court in the State of Saurashtra v. Memon Haji Ismail Haji (1) where, in
circumstances same as those of the appeals before us, it was held that the act
of the Dominion of India in assuming the administration of Junagadh was an act
of State pure and simple and the resumption of the grant in question therein
having been made by the Administrator before that act was completed and at a
time when the people of Junagadh 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 courts. It may be
here noted that by that decision this Court over-ruled the earlier decision of
the Saurashtra High Court in State of Saurashtra v. Memon Haji Ismail Haji
Valimamad(2), (1)  1 S.C.R. 537.
(2) A.I.R. 1953 Saurashtra 180.
974 a decision on the basis of which the High
Court decided the cases under consideration in these appeals.
The learned Attorney-General has submitted
that the decision of this Court in the State of Saurshtra v. Memon, Haji Ismail
Haji completely covers and concludes the present appeals. On behalf of
respondents it has been, contended that the decision aforesaid proceeded on a
finding that the, act of State,. was not completed before the impugned orders
were made and that finding being a finding of fact does, not bind the respondents
who were not parties to the case in which the decision was rendered. In the
appeals before us the main contention on behalf of the respondents has been
that the impugned orders were made after the assumption of sovereignty by the
Dominion of India was completed, and therefore the decision of this Court in
the State of Saurashtra v. Memon Haji Ismail Haji(1) is not determinative of
the problem which arise,% in these, appeals. It has been further argued that,
after full sovereignty, had, been assumed by the Dominion of India, the
petition of the people of Junagadh, including the respondents was not that of.
aliens outside the State, but their position
on such assumption of sovereignty was that of citizens of India against whom
there could be no act of State and they had rights as such citizens in respect
of which they could ask for relief in the municipal courts.
We have set out above, in brief outline, the
principal point which falls for decision in these appeals and the respective
contentions of. the parties relating thereto in order to highlight the main
problem presented for solution in these appeals.
But we must first set out the essential facts
which are relevant for the solution of the problem' We have already stated that
the essential facts , are the same in these appeals, though the facts relating
(1)  I S. C R. 537.
975 to each' of the grants made in favour of
the respondents are, different We shall state the essential facts bearing upon.
the main problem and then briefly refer to the grants made in each of the India
attained independence in 1947. As from the 15th day of August, 1947, two
independent Dominions were set up known respectively as India and Pakistan
under the Indian Independence Act, 1947 (10 & 11 Geo. VI. C. 30). Under s. 7
of the said Act, the suzerainty of Iris Majesty over the Indian States
including Junagadh lapsed. It released those States from all their obligations
to the Crown. The White Paper on Indian States said (at page 32) :
"It was evident that if in consequence
the Indian States became separate independent entities, there would be a
serious vacuum not only with regard to the political relationship between the
Central Government and the States, but also in respect of the co-ordination of
all-India policies in the economic and other fields. All that the Dominion
Government inherited from the Paramount Power was the proviso to section 7 of
the Indian Independence Act, which provided for the continuance, until
denounced by either of the parties, of agreements between the Indian States and
the Central and Provincial Governments in regard to specified matters, such as
Customs, Posts and Telegraphs, etc. (Appendix IV)." A process of accession
was therefore begun and by August 15, 1947 all the States in the geographical
limits of India barring Hyderabad, Kashmir and Junagadh had acceded to the
Indian Dominion. The Nawab of Junagadh however, did not accede to the new
Dominion of India by executing an Instrument of Accession as did theother
Rulers in Saurashtra. He fled the country and the affairs of Junagadh State
fell into disorder and chaos. At the request 976 of the Nawab's Council, the
Government of India decided to take over the administration of the State. On
November 9, 1947, the Regional Commissioner, Western India and Gujarat States
Region, assumed charge of the administration of the State on behalf of the
Government of India. A proclamation was issued on that date which. said that
the Regional Commissioner had assumed charge of the administration of the Junagadh
State at 18-00 hours on November 9, 1947. On November 14, 1947 the Regional
Commissioner appointed Shri S. W. Shiveshwarkar as Administrator of Junagadh
State. The Administrator passed certain orders which are the orders impugned in
these appeals and to which we shall presently refer, but we must first complete
the general picture of political changes that took place in Junagadh. In
February, 1948 the Government of India held a referendum in Junagadh State to
ascertain the choice of the people in regard to accession and the people voted
by a large majority in favour of accession to the Dominion of India. The
Administrator then decided with the approval of the Government of India to
appoint an Executive Council with himself as President and three other persons
as members thereof. 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. It is
necessary to state now how this integration took place. On January 23, 1948,
thirty rulers of the principal States of Kathiawar signed a covenant bringing
into existence the United State of Kathiawar (later I known as the' United
State of Saurashtra) comprising the territories of their States for the welfare
of the people and entrusted to a Constituent, Assembly the. task 977 of drawing
up a democratic Constitution for that State within the frame-work, of the
Constitution of India, to which they had already acceded. On that date Junagadh
State had no Ruler nor was any Covenant signed on behalf of the Junagadh State.
Later, in December, 1948, the elected representatives of the people of
Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh recommended to
the Government of India and the Government of the United State of Saurashtra,
as it was then called, that the administration of the States mentioned above be
integrated with the United State of Saurashtra. The Rulers of the Covenanting
States thereupon entered into a Supplementary Covenant with the concurrence of
the Government of India to provide for such integration and for the
participation of the elected representatives of the people of these States into
the Saurashtra Constituent Assembly. Article 3 of the, Supplementary Covenant
was in these terms (See White Paper on Indian States, page 249) :
"From a date to be agreed upon between
the Government of the said States and the Government of the United State of
Saurashtra, with the concurrence of the Government of India, the administration
of the said States shall be integrated with that of the United State of Saurashtra
and thereafter the legislative and executive authority, powers and jurisdiction
of the United State of Saurashtra shall extend to the said States to the same
extent as it extends to the territory of any Covenanting
State.............." The administration of the Junagadh State was
thereafter integrated with that of the United State of Saurashtra on January
20, 1949. Therefore, as from that date the legislative and executive authority
and jurisdiction of the United State of Saurashtra extended to the Junagadh
State to the same extent as it extended to the rest of the territories of the
978 Further political changes took place
after January 20, 1949, but with those changes we are not concerned in the
present appeals. The two dates which are important for our purpose are November
91 1947, when the Regional Commissioner first took over charge of the
administration of Junagadh and January 20, 1949 when Junagadh merged into the
United State of Saurshtra.
Now, as to the impugned orders made by the,
In Civil Appeal No. 349 of 1958 the ancestor
of the respondents, had obtained grants from the then Nawab of Junagadh of two
villages called Handla and Venderwad some time between the years 1865 and 1868.
A detailed history of the grants so made is not necessary for our purpose. On
December 6, 1947, the Administrator made the following order "It has come
to the Administrator's notice that Aba Salem Bin Abs Mahmed Hindi the alienee
of Handla village, (i) was maintaining many Arab employees of Timbdi it his
house in Junagadh, (ii) was uttering threats to massacre all Hindus of Handla
(iii) was keeping in Hendla fifty animals at
the expense of the poor village people, (iv) did not pay any remuneration to
Dhedh employees of his garden and was exacting Veth from them, (V) was buying
exhorbitant cesses from the village people, (vi) had converted into Islam three
Hindus, and (vii) had taken the, following arms from Hand to Junagadh about a
979 (a) 12 bore guns and (b) one M. I. gun.
It is, therefore, ordered that. The village
J. of Handla should be taken under the State manager. The Revenue Commissioner
should make necessary managements for the same and report compliance.
By that order the management of Kandla was taken
over by the State, Though there is no reference to the other village Venderwad
in the order the admitted position is that the management of both the villages
was taken over. Then on January 8, 1949, the Administrator passed the following
"The Junagadh State Government is
pleased to order that the land and villages comprising the Handla estate which
is an Inam grant be resumed by the State forthwith." This order also
refers only to the Handla estate, but the admitted position is that both the villages
were resumed by the order of the Administrator. It is the order dated January
8, 1949, which is impugned by the respondents in this appeal.
In Civil Appeal No 497 of 1958 the grant was
in respect of a bungalow or building known as 'Datar Manzil'. On 1 March 9,
1948 the Administrator made the following order:
" The State building situated near
Gadhrup Wada at Junagadb, was granted to Khan Shri Abdullkanmiyan
Mahomedkhanmiyan hereditarily by Way of gift, under Dewan "Daftar Tharay
3379 dated lot August, The said Tharay is
hereby cancelled and it is hereby ordered in the interest of the State that the
said building along with all the superstructures thereon should be resumed and
managed by the State as State property." 980 In Civil Appeals Nos. 220 and
221 of 1958 a the impugned order is dated July 27, 1948, and is in these terms:
"Twenty five Santis of land from the
village of Khokhardea under Vanthali, Mahal was granted as a gift 'hereditarily
to Mr. Mohamed Abdulla, son of late. Jamadar Abdulla Moosa under Hazur Farman
No. 279 dated 30th April, 1943.
In view of the principles of Alienation
settlement of 1897 no grant can be wantonly favoured to anybody in
contravention of the well established principles of resumption attaching to
It is hereby ordered that Hazur Farman No.
279 dated 30th April, 1943, is cancelled and the land in question should be
resumed by the State forthwith by setting aside the settlement made thereon.
" It will be noticed, from what has been stated above that the impugned
orders'-were all made after November 9, 1947, but, before January 20, 1949. The
question before us is whether the orders were made in pursuance of acts of
State not justiciable in the municipal courts.
There can, be no doubt that if the decision
of this Court in State of Saurashtra v. Memon Haji Ismail Haji (1) applies,
then these appeals must be allowed. Learned counsel for the respondents has
however sought to distinguish that decision on the ground that the decision
proceeded on the footing that the Dominion of India assumed sovereignty over
Junagadh on January 20, 1949. His contention is that when the Dominion of India
assumed charge of the administration of Junagadh State on November 9, 1947,
through the Regional Commissioner, Western India and Gujarat States Region,
there was a complete changeover of sovereignty, the act of State was complete,
and the. Dominion of India became the new sovereign; thereafter, (1) 
981 the people of Junagadh including the
respondents, so the argument proceeded, became citizens of the Dominion of
India and had rights as. such citizens it in respect of which they could ask
for relief in the municipal courts. It would be apparent that this argument
consists of two steps: the first step in the argument is that there was a
complete changeover of sovereignty on November 9, 1947 and the act of State was
complete; the second step in the argument which is really based on the
correctness of the first step is that on such a change-over of 'sovereignty the
people of Junagadh, including the respondents, became citizens of the Dominion
of India and-were no longer aliens outside the Dominion., We shall now consider
the validity of the first step in the argument. In doing so we must make it
clear that we must not be understood to have assented to the submission of
learned counsel for the respondents that a finding as to change-over of
sovereignty or completion of an of State, is a finding of fact pure and simple.
In our view, the question essentially is what inference in law should be drawn
from the fact proved or admitted relating to the change-over of sovereignty. As
the matter was not argued from this stand point in the State of Saurashtra v.
Memon Haji Ismail Haji(1), we have allowed learned counsel for the respondents
to address us on this question.
Learned counsel for the respondents has made
a two fold submission: firstly, he has submitted that the question as to when
the change-over of ,sovereignty took place is a political question, and must or
should be referred to the Government of India for opinion and the Court should
abide by that opinion; secondly,he has submitted that on the facts admitted in
this case, it should be hold that there. was a complete change-over of
sovereignty on November 9, 1947, and the act of State was complete. We do not
think that either of these two submissions of learned counsel for the respondents
is correct. On the first snbmission he has (1)  1 S.C.R. 537.
982 drawn our attention to para. 603 at pages
285-286, Vol. 7 of Halsbury's Laws. of England, 3rd 'Ed. That paragraph is in
these terms :
.lm15 " There is a class of facts which
are conveniently termed "facts of State". It consists of matters and
questions the, determination of which is solely in the hands of the Crown or
the government, of which the following are examples (1) Whether a state of war
exists between the British Government and any otherState, and if so, When it
the municipal courts have no power of
inquiring into the validity of a declaration by the Crown whether a state of
war exists or whether it has ended:
(2) whether a particular territory is
hostile, or foreign, or within the boundaries of a particular state;
(3) whether and when a particular government
is to be recognised as the, government of an independent state,, (4) The status
of a person claiming, immunity from judicial process on the ground of
The court takes judicial notice of such facts
of state, and for this purpose in any case of uncertainty, seeks information
from a Secretary of State; and the information so received is conclusive.
Learned counsel has also referred us to some
of the English decisions on which the statements in the paragraph quoted above
axe based. We consider it unnecessary to examine those decisions., It appears
to us that the question with which we are concerned in the present appeals is
not a question on which it is necessary to seek information from to relevant
department of the Government of India; for ' one thing, it does not appear to
us that there is any uncertainty in the matter; secondly, as we shall 983
presently show, the Government of India in the relevant department has already
spoken with sufficient clarity in the: White Paper on Indian States with regard
to the political changes in Junagadh and what the Government of India has
stated therein shows clearly enough that there was no changeover of assumption
of sovereignty on 'November 9, 1947 in the sense 'which learned counsel for the
respondents has contendedfor; lastly, it appears to us that the question with
which we are concerned in these appeals is not essentially a question as to any
disputed ""facts of State" the determination of which is solely
in the hands of government; rather it is a question which must be determined by
the court. What we have to determine in these appeals is not; the status or
boundaries of a particular State territory, but the validity or otherwise of
the plea taken on behalf of the appellant-State that the impugned orders made
by the administrator were acts "of State not justiciable in the municipal
courts. There is a long line of decisions in which such a plea has been
determined by courts' of law without the necessity of obtaining the opinion of
Government. The plea is really a plea with regard to the maintainability of the
suits brought by the respondents and must be determined by the courts
At one stage of the arguments learned counsel
for the respondents referred us to s.6 of the Extra Provincial Jurisdiction
Act, 1947 (XLVII of 1947) and contended that under that section it was
obligatory on this court to refer the question to the Ventral Government. When
however it was brought to his notice that s. 6 in terms did not apply to the
proceedings out of which these appeals have arisen he submitted that even if,
it be not obligatory to refer the question to the Central Government, it is
expedient that it should be so referred inasmuch as the answer to the question
depends on "the extent of the jurisdiction" which the Dominion of India,
assumed in Junagadh on November 9, 1947.
This according to learned counsel, is a
"'fact of State" which only; Government can determine.
984 We have already stated there is no
uncertainty about. the facts on which the plea of the appellant State is based,
and Government has already spoken about them with sufficient clarity. What are
these facts and how has Government spoken? We refer to para. 223 at pages 113
and 114 of the White Paper on Indian States issued by the Government of India,
Ministry of States, a publication to which this Court has referred in several
earlier decisions as containing the authentic opinion of Government on the
political questions involved.
"The position of Junagadh and certain
other adjoining States in Kathiawar may also be briefly stated here. After the
Nawab of Junagadh had left the State for Pakistan, the administration of the
State was taken over by the Government of India on November 9, 1647, at the
request of the Nawab's Council.
Obviously, the action taken by the Govern.
ment 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 representatives conducted the administration of
the State. In December 1948, the elected representatives of the people of
Junagadh resolved that the administration of the Stat e 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 Supplement Covenant (Appendix XXXVI)
was 985 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, and of the other States
some time calling. Accordingly the Constitution treats Junagadh and these
States as part of Saurashtra." It would be clear from the aforesaid
paragraph that the various steps in the assumption of sovereignty over Junagadh
by the Dominion of India, between the dates November 9, 1947, and January 20,
1949, were these:
(1) The administration of Junagadh was taken
over by the Government of India on November 9, 1947 at the request of the
(2) during the period the Government of India
held charge of the State, an Administrator appointed by the Government of India
assisted by three popular representatives conducted the administration of the
(3) in February, 1948 there was a referendum
and the people of Junagadh voted in favour of accession to India; but no actual
accession took place by the execution of any Instrument of Accession;
(4) 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 the representatives
of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra
(5)a Supplementary Covenant (Appendix XXXVI
of the White Paper) was executed by the Rulers of Kathiawar States with a: view
to giving effect to the resolutions aforesaid; and (6) lastly, the
administration of Junagadh was taken over by the Government of Saurashtra on
January 20, 1949.
986 In M/s. Dalmia Dadri Cement Co., Ltd. v.
The Commissioner of Income-tax (1) this Court observed.
.lm15 "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 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." There may be cases where by a
treaty or an agreement there is a change,-over of de lure sovereignty at one
and the same time and in such a circumstance the change-over may not be a
process, but that is not what happened in the case of Junagadh. The
administration of Junagadh fell into chaos and disorder and the Government of.
India stepped in at the request of the Nawab's Council and took charge of the
administration through an Administrator, on November 9, 1947, the Ruler having
fled the country before that date.
It is clear to us that there was no changeover
of de jure sovereignty on that date. Junagadh State still continued as such and
did not cease to exist; otherwise there would be no meaning in the referendum
held in February, 1948 or the resolutions passed in December, 1948, by the
elected representatives of the people of Junagadh. Nor, would there be any
meaning in the Supplementary Covenant executed by the Rulers of Kathiawar
States. It is also worthy of note that there was no accession to India by the
Junagadh State by the execution 'of any Instrument of Accession. We may in this
connection refer to ss. 5 and 6 of the Government of India Act, 1935, as they
stood at the relevant time. Section stated inter alia that the Dominion of
India shall, (1)  S. C. R. 729, 741.
987 as from the 15th day of August, 1947, be
a Union, comprising (a) the, Governor is' Provinces, (b) the; Chief
Commissioners' Provinces,(c) the Indian States acceding. to the, Dominion in
the manner provided by s. 6, and (d) any other areas that, may with the consent
of the Dominion be included, in the Dominion. Junagadh was neither a Governor's
nor a Chief Commissioner's Province. It did not accede in the manner laid down
in s. 6. It was not, therefore, a State acceding to, the Dominion. Nor do we
think that the territory of, Junagadh State was included within the territory
of the Dominion in the sense of el. (d) of s. 5 as from November 9, 1917. The
process of assumption of sovereignty was not yet complete and the Dominion of
India did not treat the territory of Junagadh, as part of its own territory.
The Dominion Government gave its concurrence to the Supplementary Covenant
executed by the Rulers of Kathiawar by which the States of Junagadh, Manavadar,
Mangrol, Bantwa, Babariawad and Sardargarh were to be integrated with
Saurashtra. It is significant that in this Supplementary, Covenant Junagadh was
mentioned as a separate State, the administration of which was to be integrated
with the United State of Saurashtra. It was only when, this. integration took
place that Junagadh ceased to be a separate State. This position appears to us
to be beyond any doubt and has been made sufficiently clear by the statements
made in, par&. 223 of the White Paper on Indian States.
Learned Counsel for the respondents has
relied on certain observations made in well-known text-books on International
law and has contended that State sovereignty and., State jurisdiction are
complementary and co-extensive; and a right of property and control exercised
by the State is really a right of territorial severeignty and therefore the
acquisition of territory by a State can mean nothing else than the acquisition
of sovereignty over such territory.
(See Sohwarzenberger: International 988 Law
1945, Vol. 1, page 79: Charles Cheney Hyde:
International Law, 2nd revised edition, Vol.
I, page 319;
Oppenheim's International Law, 8th Edn. Vol.
I, page 545).
He has contended that in view of the
aforesaid observations, it must be, held that the Dominion of India assumed
sovereignty over Junagadh on November 9, 1947; because, so learned counsel
contends, exercising control over a particular territory is exercising
sovereignty over it. We do not think that the observations to which learned
counsel has referred help in the solution of the problem before us. In cases
where the acquisition of new territory is a continuous process, a distinction
must be made between de,facto exercise of control and de jure assumption of
The problem before us is, as was stated in
M/s. Dalmia Dadri Cement Co., Ltd. V. The Commissioner of Income-tax (1), as to
when the act of State was complete; in other words, when did the assumption of
sovereign powers de jure, by the new sovereign over territories acquired by it
take place? The problem is really one of State succession;
namely succession to International Persons as
understood in International law. Such a succession takes place when one or more
International Persons take the place of another International Person in
consequence of certain changes in the latter's condition; there may be
universal succession or partial succession. In the case before us, as long as
Junagadh State' continued as such, there was no such succession and even though
the Dominion of India took over the administration of Junagadh and exercised
control therein, it did not assume de jure sovereignty over it.
Therefore, the act of State did not terminate
till January 20, 1949, when the Dominion of India assumed de, jure sovereignty
over Junagadh by its integration into the United State of Saurashtra.
It is perhaps necessary here to refer to two
decisions on which learned counsel for the (1)  S. C. R. 729, 741.
989 respondents has relied: In re: Southern
Rhodesia(1) and Sammut v. Strickland (2). In the first decision it was observed
in connection with the conquest of certain territories in Southern Rhodesia,
that a proclamation of annexation is not essential to constitute the Crown
owner of the territory as completely as any sovereign can be owner of lands
publici juris; a manifestation of the Crown's intention to that effect by
Orders in Council dealing with the lands and their administration, is
sufficient for the purpose. These observations were made in the context of a
question not between State and State but between sovereign and subject. Lord
" No doubt a Proclamation annexing a
conquered territory is a well-understood mode in which a conquering Power
announces its will urbi et orbi. It has all the advantages (and the
disadvantages) of publicity and precision.
But it is only declaratory of a state of
In itself it is no more indispensable than is
a declaration of war at the commencement of hostilities. As between State and
State special authority may attach to this formal manner of announcing the
exercise of sovereign rights, but the present question does not &rise
between State and State. It is one between sovereign and subject. The Crown has
not assented to any legislative act by which the declaration of its will has
been restricted to one definite form or confined within particular limits of
ceremonial or occasion. The Crown has not bound itself towards its subjects to
determine its choice upon a conquest either out of hand or once and for all. If
her 'Majesty Queen Victoria was pleased to exercise her rights, when Lobengula
was defeated by her and her subjects, as to one part of the dominions in 1894
and as to another. part not until 1898, (1)  A. C. 211.
(2)  A. C. 678.
990 if she was pleased to do so by Public
acts of State which indicate the same election and confer the same supreme
rights of disposition over his conquered realm as annexation would have done it
is not for one of her subjects to challenge her policy or to dispute her,
manner of giving effect to it., We do not think that these observations help to
establish the contention of learned counsel for the respondents that any
exercise of administrative control in acquired territory must mean at once that
there is an assumption of sovereignty' by the incoming State so as to terminate
the act of State. The observations made by Lord Sumner merely show that with
regard to territory which the 'Crown has Conquered the Crown's intention can be
manifested in more than one way, and not necessarily by a proclamation. In the
case before us a proclamation was issued by the Administrator, but that merely
announced that he had assumed charge of the administration of Junagadh State
under orders of the Government of India. It made no announcement as to
assumption of sovereignty.
In the second decision one of the questions
raised was the true nature of the title of the Crown to the sovereignty of
Malta, and a distinction was sought to be drawn between ceded territories those
acquired by an act of cession from some sovereign power, and those ceded by the
general consent or desire of the inhabitants. It was held that so far as concerned
the prerogative right of the crown to legislate by Letters Patent or Orders in
Council for the' ceded colony, the distinction was of no materiality'. It is
difficult to see how this-decision affords any assistance to the respondents.
It is indeed true that the people of Junagadh voted for accession to the Dominion
of India-, but no Accession actually took place and later there was a merger
in' the United State of Saurashtra with the consent of the people of, Junagadh
and the Government of 991 India Till, such merger there was,, no
"cession" of territory in the I sense either with or without the
Consent of the people.
In view, the only conclusions which follows
from the facts which we have earlier stated is that there was no assumption of
sovereignty by the Dominion of India over Junagadh before January 20, 1949.
This disposes of the main argument advanced
on, behalf of the respondents, and it is unnecessary in these appeals to
consider the further argument to what rights the subjects of the ex-sovereign
in the acquired territory carried with them as against the new; sovereign. At
one stage of his argument learned counsel for, the respondents commended for
our acceptances the view of Chief Justice John Marshall in United States v.
Percheman (1) that-when' the inhabitants of the acquired territory change their
allegiance and their relation to the old sovereign is dissolved, their rights
of property, remain undisturbed, and, he suggested that this view was
consistent with modern usage of nations and was accepted by the Permanent Court
of Inter. national Justice.
(See the Advisory Opinion of the Permanent
Court on the Settlers of German Origin in Territory ceded by Germany to Poland,
Series B, No. 6, particularly pp. 35-36). He conceded, however that this Court
has accepted the view expressed by the English Courts in Cook v. Sprigg(2) and
the decisions which followed it. That view proceeds on the doctrine that
acquisition of territory by conquest, cession or; annexation being an act of
State', municipal tribunals have no authority to give a remedy in respect of
any actions arising therefrom (See M/s. Dalmia Dadri Cement Co., Ltd.,V. The
Commissioner of Income-tax(3) and State of Saurashtra v. Memon Haji Ismail
Haji(4) Therefore learned counsel, was at great pains establish that the act of
State was complete on November 9, 1947, (1) (1833) 32 U. S 51, 86-87.
(2)  A. C. 572.
(3)  S. C. R. 729, 741 (4)  S. C.
R. 53 7.
992 and he argued that thereafter the
respondents became citizens of the Dominion of India and under s. 299 of the
Government of India Act, 1935, they could not be deprived of property, save by
authority of law. He relied on two decisions of this Court: Thacker v. State of
Saurashtra (1) and Virendra Singh v. State of Uttar Pradesh (2). In view of our
finding that the act of State did not terminate till the process of acquisition
was complete on January 20, 1949, it becomes unnecessary to consider this
second step in the argument of learned counsel. But perhaps it is necessary to
add that the decision in Virendra Singh v. State of Uttar Pradehe (2) was based
on the special circumstances mentioned there-in which led to the making of the
Constitution of India. The learned Attorney-General appearing for the
appellant-State has submitted that the principle of Virendra Singh's case (2)
cannot be extended to the entirely different set of circumstances in which the
Government of India Act, 1935, was made and a. 299 thereof did not affect the
doctrine that municipal tribunals have no authority to give a remedy in respect
of actions arising from an act of State. He also drew our attention to a
decision of this Court in Jagannath Agarwala v. The State of Orissa (a) in
which in respect of some claims made against the State before the coming into
force of the Constitution but enquired into and rejected by Government after
the coming into force. of the Constitution, it was held that unless the now
sovereign had expressly or impliedly admitted the claims, the municipal courts
bad no jurisdiction in the matter.
We consider it unnecessary to give our
decision on these 'submissions, because it is obvious that before the Dominion
of India assumed de jure sovereignty over Junagadh, the respondents were not in
a position to call to their aid the provisions of s. 299 of the Government of
India Act, 1935.
(1) A.I.R. 1954 S.C.680.
(2)  1 I. C.R. 415.
(3)  1 S.C.R. 205.
993 In the appeals before us we are dealing
with orders made the Administrator before the act of ,State was complete. The
action taken by the impugned orders &rose out of and during an act of
State. That being the position, it is clear that the municipal, tribunals had
no authority to give a remedy in respect of such action.
It remains now to consider the last argument
advanced on behalf of the respondents. As was observed in State of Saurashtra
v. Memon Haji Ismail Haji (1) an act of State is an exercise of sovereign power
against an alien and is neither intended nor purports to be legally founded. On
behalf of the respondents it has been contended that the Administrator
purported to cancel or :resume the grants under consideration in these appeals
in pursuance of law;
therefore, it was not open to the
appellant-State to take up the plea of an act of State. We'do not think that
there is any substance in this argument. Learned counsel for the respondents in
Civil Appeal No. 349 of 1958 has drawn our attention to the pleadings,
particularly to par&. 8 of the written statement filed on behalf of the
In that paragraph it was stated the order of
resumption dated January 8, 1949 was legal and the Administrator had authority
to resume such inam grant. On the basis of this paragraph 'it has been
contended that inasmuch as the Administrator purported to act under authority
of law it was not open to the appellant-State to raise the plea of an act of
State. In this connection we must also refer to para. 17 of the written
statement where the appellant-State specifically pleaded that the plaintiff respondent
had no right to bring the suit against Government. In the trial court a
specific issue was ;struck on the question as to whether the court had
jurisdiction to hear and determine the suit. and under this issue the argument
advanced was that the order of resumption was an acted State not justiciable in
the municipal. courts. It appears, however, that the appellant-State (1) 
994 also took a plea in the alternative that
the order of resumption was justified under the rules in force in the Junagadh
State. The trial, court, held that the order of resumption was not an act of
State It further held that the order of resumption was not justified by the
rules in: force in the Junagadh State. In these circumstances it cannot be said
that the appellant-State did not plead an act of State;
nor can it be said that it was not open to
the appellantState to raise, that plea' , In the High Court also the same plea
of: act of State was urged on behalf of the appellantState but was rejected by
the High Court on the basis of its decision in State of Saurashtra v. Memon
Haji Ismail Haji Valimamad(1). That decision, we have stated earlier, was
overruled by this Court in State of Saurashtra v., Memon Haji Ismail Haii
Learned counsel for the respondents then, referred us to an order dated
February 9, 1949, 'in which it was stated that inam grants were resumable at
the pleasure of Government and therefore the orders passed on January, 8, 1949,
could not be cancelled. Apparently the orders dated February., 9, 1949 was passed
on some representation made, at the instance of the plaintiffs-respondents. We
have to read the two orders, one dated January 8, 1949, and the other dated
February 9, 1949, together. If so read, it is clear that the order dated
January 8, 1949, was, made by the Administrator not under the authority of any
law but as an act of State..
Learned counsel for the respondents relied on
the decision in Forester v. The Secretary. of State for India(3). In that case,
the Privy Council, upon a construction of the treaty, or agreement made by the
British. Government in August, 1805, with Begum Sumroo, held that the Begum was
not a sovereign princess but a mere Jagirdar under obligation to keep up a
body, of troops to be employed when called upon in, the (1) All. R. 1953
(2) (1960) I S. C. R. 537.
(3) (1872) 18 W. R. 319 (P.C.).
995 service of the sovereign. On that finding
it was held that the resumption of the lands by the British Government upon the
death of the Begum was not an act of State but an act done under legal title.
We do not think that the principle of that decision applies to the facts of
these cases. In Vejesingji ji Joravarsingji v. Secretary of State for India (1)
Lord Dunedin said that no plea specifically using the words "'act of State"
was required and the moment cession of territory was admitted., the onus was on
the plaintiffs respondents to prove that the right which they claim had been
expressly or tacitly recognised by the new sovereign.
If there was ,no such recognition and none
was pleaded in these cases the municipal courts would have, no jurisdiction to
give any relief. In this view of the matter it was not open to the courts below
to enquire into the powers of the Nawab to resume or derogate from the grants
made and whether similar powers were inherited by the Dominion Government or
its agents. The action being an act of State was not ;justiciable in the
municipal courts, even if the same were arbitrary.
We have, therefore, come to the conclusion
that the courts below were wrong in holding that the suits were maintainable
and in enquiring into the merits of the cases. The appellant-State is entitled
to succeed on the plea that the orders of resumption made by the Administrator
arose out of and during, an act of State and were not, therefore, justiciable
in the municipal courts.
We would accordingly allow these appeals and
the suits will stand dismissed with costs throughout. There will be one hearing
fee for the hearing in this court.
MUDHOLKAR, J.-We also agree that the appeals
be allowed. but we wish to I say a few words. To appreciate the points which
arise in these cases certain broad facts common to all appeals may well (1)
(1924) L. R. 511 A. 357.
996 be stated. The respondents held certain
properties in that part of the present State of Gujarat which was formerly the
ruling State of Junagadh, by virtue of grants from its Ruler. After India
attained independence on August 15, 1947, the suzerainty which the British
Crown held over the State of Junagadh lapsed and that State became completely
sovereign. That was the effect of the Indian Independence Act. Shortly
thereafter, the Ruler of Junagadh went to Pakistan leaving the State to its
fate, with the result that the affairs of that State fell into disorder. At the
invitation of the people of the State the Government of India decided to step
in and accordingly took over its administration through the Regional
Commissioner, Western India and Gujarat States Region on November 9, 1917. A
proclamation was issued by him to the effect that he had assumed the
administration of Junagadh as from that date.
On November 14, 1947, he appointed an
Administrator for administering the territory. The Administrator passed orders
on different dates resuming the grants in favour of the respondents and
dispossessed them. Thereafter on January 20, 1949, the territory of Junagadh
was with the approval of the Government of India integrated with the United
States of Saurashtra and the Administrator ceased to exercise any functions as
from that date.
The resumption of the grants and the validity
of their dispossession were challenged by the respondents by instituting, suits
for possession of the property after the integration of Junagadh with the
United State of Saurashtra upon the ground that they could not be deprived of
their properties by executive action. According to them the act of the Dominion
of India in taking over the administration of Junagadh territory on November 9,
1947, amounts to assumption of sovereignty over it, that' thereby its residents
became citizens of the Dominion of India as from that date and, therefore, no
not of state 997 such as resumption of their properties could be committed
against them by the Indian Dominion. According to the appellants no municipal
court could-grant the relief claimed by the respondents because the act
complained of was an act of state.
The plea of the respondents was accepted by
the High Court of Saurashtra following the decision in the State of Saurashtra
v. Memon Haji Ismail Haji Valimamd(1). The present appeals are, from its
The Attorney-General who appeared for the
appellants stated that this Court has reversed that decision in State of
Saurashtra v. Memon Haji Ismail Haji (2) and that, therefore, these appeals
should be allowed. In that case this Court held that the Indian Dominion merely
assumed the administration of Junagadh State on November 9, 1947 at the request
of the Ruler's Council but did not formally annex it till January 20, 1949. Mr.
Pathak's contention is that as the respondents were not parties to the decision
in Memon Haji's case (2) they are not bound by the finding of this Court that
the Junagadh State was annexed by the Indian Dominion on January 20, 1949.
It seems to us, however, that the question
whether Junagadh was annexed on January 20, 1949, or. earlier would make
little, difference to the result of the appeals before us.
Nor again would the question whether the, I
Extra-Provincial Jurisdiction Act was applicable to the orders made by the
Administrator and this was a display of sovereignty, as contended for by Mr.
Pathak, would make any difference.
In along catena of cases beginning from Cook
v. Spriggs (3) and going upto Asrar Ahmed v. Durgah Committee, Ajmer(4) the
Privy Council has stated the legal position of the subject of a displaced
sovereign vis-a-vis the now sovereign. In the-words (1) A. I. R. 1953
(2)  1 S. C. R. 537.
(3)  A. C. 572.
(4) A. I. R. 1947 P.C I.
998 of Lord Dunedin in Vajesinghji v.
Secretary of State for India(1), it is as follows When a territory is acquired
by,& 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 municipal courts established
by the new sovereign only such rights as that sovereign has, through his
officers, recognized. Such rights as he had tinder 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 those stipulations in the municipal
courts. The right to enforce remains only with the high contracting
parties." This statement of the law has' been accepted by this Court in
M/s. Dalmia Dadri Cement Co., Ltd. v. Commissioner of Income-tax (2) upon which
;reliance has been placed in State of Saurashtra V. Memon Haji Ismail Haji (3)
and recently also in Jagannath Aggarwala v. The State of Orissa (4).
Thus even if on the respondents' own showing
that the Junagadh territory must be deemed to have been annexed by the Indian
Dominion by assuming administration over it and thereupon its residents became
citizens of India, they could assert and establish in the municipal courts of
the new sovereign only such rights as were recognized by the.
Indian Dominion. The respondents claim to be
grantees from the Ruler of Junagadh but their grants avail them nothing in the
courts of the now sovereign unless they were recognized by that sovereign. The
burden of showing that they were so recognized lay on the respondents.
(1) (1921) L.R. 51 I. A. 357.
(2)  S. C. R. 739.
(3)  1 S. C. R. 537.
(4)  1 S. C. R. 205.
999 A perusal of the orders passed by the
administrator would clearly show that, far from recognizing those grants 'they
Were in effect repudiated by him. The administrator in fact resumed the grants
but whatever the form his orders took in truth and in substance they were
no" more than a clear arid unequivocal declaration of the fact that the
right' claimed by the respondents to the 'properties in question by virtue of
the grants made in their favour by the former Ruler. were not, recognized by
the new sovereign.
Recognition or refusal of recognition of
rights of erstwhile aliens who had no legal enforceable , rights cannot be said
to be an act of state because in the Indian Dominion other had already vested
in the Indian Dominion at the moment it occupied Junagadh territory The right
to retain Possession was also dependent, upon recognition by the Dominion of
India and by dispossessing the respondents the former exercised its choice and
refused to recognise their rights. On the principle accepted by this Court in
the decisions already referred to, the respondents "were disentitled from
obtaining any redress from 'a court in the Indian Dominion, and after the
commit into force 'of the constitution, from a court in the union of India, in
the absence of recognition of their rights by it or by the Union of India.
We may now' advert to another point, urged by
Mr. Pathak, According to him, if we understood him correctly, the Extra
Provincial Jurisdiction Act was applied to Junagadh, that thereunder the local
laws prevailing therein were continued and that the Alienation Settlement Act
which was one of such laws, conferred on the granted of rights against the
By continuing this law the Dominion of India,
accordant, to him,. must be deemed to have recognized the respondents rights
under the grants. For enabling us to consider, the point it was necessary for
the respondents to place before us the Order of the Dominion of India under
1000 S. 4 of the Extra Provincial Jurisdiction Act, 1947 Which alone empowered
it to prescribe the laws which of the Indian Dominion, over-which it had
assumed sovereignty or administrative control. Similarly they had to place the
Alienation Settlement Act of Jungadh before us. In. the absence of this
material we cannot consider the argument at all.
Mr. Pathak, however contended that if
sovereignty was assumed on November 9, 1947, the residents of Junagadh became
the citizens of the Indian Dominion and were therefore, entitled for the
protection of s. 299(1) of the constitution Act, 1935.` This provision runs
"No person shall be deprived of his
property save by authority of law".
What s. 299(1) protects are the rights of a
person to property which he had when s. 299(1) cases into force or applied to
him. It does not add to any property right of any person, though it contains an
admonition to the State against deprive in any person of his property by mere
executive action. For ascertaining whether the provision has been violated we
must first examine the existance and the nature of.the rights possessed by the
respondents on November 9, 1947, that is, at the moment of assumption of
administration by the Dominion of India over Junagadh territory assuming of courge
that this amounted to assumption of sovereignty over Junagadh). Their rights
were as grantees from the former ruler and although it they be that according
to the principles of international law their rights as grantees ought not to be
affected, no municipal court has their right to enforce the obligation of the
new sovereign to respect them. For, as omitted out by Venkatarama Iyer J., who
delivered he judgment of this Court in Dalmia Dadri Cement Co., Ltd. v.
Commissioner of Income tax(1):
(1)  S.C.R. 729, 741.
1001 "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 recognised by him One
of the decisions relied on by this Court in that case is that of the Privy
Council in Secretary of State for India v. Bai Rajbai(1) in which they have
observed "The relation in which they stood to their native sovereign
before this session and the legal rights they enjoyed under them, are, save in
one respect, entirely irrelevant matters.
They could not carry on under the new regime
the legal rights, if any, which they might have enjoyed under the old.
The only legal enforceable rights they could
have as against their new sovereign, were those, and only those, which that new
sovereign by agreement express or implied, or by legislation, chose to confer
upon them." Thus, before the respondents could claim the 'benefit of s.
299(1) of the Constitution Act, 1935 they had
to establish that on November 9, 1947, or thereafter they possessed legally
enforceable rights with respect to the properties in question as against the
Dominion of India. They could establish this only by showing that their
pre-existing rights, such .as they were, were recognized by the Dominion of
India. If they could not establish this fact, then it must be held that they
did not possess any legally enforceable rights against the Dominion of India
and, therefore, s. 299(1) of the Constitution Act, 1935 avails them nothing. As
already stated a. 299(1) did not enlarge anyone's right to property but only
protected the one which a person already had. Any right to property which in
its very (1) (1915) L. R: 42 I.A. 229.