Narottam Kishore Dev Varma & Ors Vs.
Union of India & ANR [1964] INSC 61 (6 March 1964)
06/03/1964 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
SHAH, J.C.
AYYANGAR, N. RAJAGOPALA SIKRI, S.M.
CITATION: 1964 AIR 1590 1964 SCR (7) 55
CITATOR INFO:
F 1964 SC1663 (5,12) RF 1968 SC 658 (12) RF
1980 SC 1 (28) E 1984 SC 121 (21)
ACT:
Suit against Former Ruler-Requirement of
consent of Central Government-Constitutional validity-Code of Civil Procedure,
1908 (Act 5 of 1908), ss. 87B, 86-Constitution of India, Arts. 14. 19(1)(f).
HEADNOTE:
The petitioners applied for the consent of
the Central Government under s. 87B of the Code of Civil Procedure to sue the
Maharaja of Tripura, Ruler of a former Indian State, which has merged with
India. They wanted to implead the Union of India as well, as party to the suit
as their case was that they were entitled, as members of a joint Hindu family
to receive either from the said Ruler or from the Union appropriate maintenance
allowance under the custom of the Ruling family. Consent having been refused,
they applied to this Court under Art. 32 of the Constitution.
Their case was that s. 87B of the Code in
granting exemption to Rulers of former Indian States from being sued except
with the consent of the Central Government contravened Arts.
14 and 19(1)(f) of the Constitution.
Held, that in view of the previous decision
of this Court s. 87B of the Code of Civil Procedure was no longer open to
challenge under Art. 14 of the Constitution.
Mohan Lal Jain v. His Highness Maharaja Shri
Sawai Man Singhji [1962] 1 S.C.R. 702, referred to.
Regard being had to the legislative and
historical back- ground of s. 87B of the Code, it could not be said that, that
section in giving special treatment to ex-Rulers had imposed an unreasonable
restriction on the petitioner's fundamental rights. Motivated as it was by the
sole object of bringing the entire country including the former Indian States
under one Central Government, it must be held to be reasonable and in the interest
of the general public.
But considered in the light of the basic
principle of equality before law it would be odd to allow the section to
continue prospectively for all time to come. It would therefore, be for the
Central Government to consider whether it should not be confined to dealings
and transactions previous to January 26, 1950.
Nor should the section be used to stifle
claims except such as are clearly far-fetched or frivolous and consent should
ordinarily if not as matter of course, be granted in the case of a genuine
dispute which prima facie appears to be triable by a court of law such as the
present one.
ORIGINAL JURISDICTION: Writ Petition No. 87
of 1962.
Petition under Art. 32 of the Constitution of
India for the enforcement of Fundamental Rights.
S. S. Shukla, for the petitioner.
N. S. Bindra and R. H. Dhebar, for respondent
No. 1.
M. C. Setalvad and D. N. Mukherjee, for
respondent No. 2.
March 6, 1964. The Judgment of the Court was
delivered by GAJENDRAGADKAR C. J.-This is a writ petition filed under Art. 32
of the Constitution by which the eight petitioners challenged the validity of
section 87B of the Code of Civil Procedure. These petitioners claim that they
and respondent No. 2, His Highness Maharaja Kirit Vikram Kishore Deb Varman,
are members off a joint Hindu family governed by the Dayabhaga School of Hindu
Law. Under a family custom which, it is alleged, has prevailed in this family
for centuries, the Raj as well as the Zamindari properties belonging to the
family are held by a single individual and the other members of the family are
entitled to maintenance according to the status of the family with the right to
succession to the Raj as well as the Zamindari properties under the general
rule of succession which prevails and which is not inconsistent with the family
custom. The head of the family was, by family custom, called the Chief and he
was chosen from among the members of the Ruling Deb Barman family and used to
be installed on the Gaddi or Throne. The petitioners further alleged that the
Ruler when so chosen and installed held the State and Zamindari as life tenant
subject to the usual charges for maintenance of the members of the Ruling
Family.
In course of time, the maintenance allowance
of the members of the Ruling family came to be fixed arbitrarily by the Rulers
without any regard to their status and their legiti- mate needs, and that led
to discontent among them which re- sulted in a serious agitation raised by them
during the lifetime of the late Maharaja Bir Bikram. In consequence, at the
time of Regency of Her Highness Rajmata during the minority of the last Ruler
Maharaja Kirit Bikram, a Committee was appointed on the 20th June, 1949, to
consider the question of allowances payable to the members of the Ruling
family. However, before the Committee could submit its report, the State of
Tripura merged with and became part of India and was constituted into a
separate Province under the Chief Commissioner.
After merger, the then Chief Commissioner Mr.
Hazra submitted a proposal to the Ministry of States on the 12th April, 1951,
recommending a revision of allowance paid to the 57 maintenance-holders. The
ministry of States did not accept this proposal and refused to make any
increase in the total expenditure on the allowances to the maintenance-holders.
'This order was passed on the 23rd May, 1951.
Later, the then ,officiating Chief Commissioner Maj. Chatterjee stopped the
maintenance allowances paid to some of the maintenance,holders without
justification and that led to the appointment of another Committee to go into
the matter, but the Committee could never function with the result that the
condition of the majority of the maintenance-holders grew worse day by day.
That is why the present eight petitioners desire to file a suit against
respondent No. 2 for appropriate reliefs. They -want to implead the Union of
India also to that suit, because it is their case that either the Ruler or the
Union of India is responsible to pay them appropriate and adequate maintenance
allowance.
Before filing a suit in a competent court of
law against respondent No. 2, the petitioners are required to obtain the
sanction of the Union Government under s. 87B C.P.C., as respondent No. 2 is a
Ruler of a former Indian State within ,the meaning of the said section. A
request made by the petitioners for such sanction was rejected by the Central
Government. That is how the present petition has been filed challenging the
validity of the said section. The petitioners contend that the said section is
ultra vires, because it contravenes Arts. 14 and 19(1)(f) of the Constitution
and as such, the condition precedent prescribed by it which requires the
previous sanction of the Central Government before filing a suit against the
Ruler of an Indian State therein mentioned, is invalid and inoperative.
That is the genesis of the present writ
petition.
At the hearing of this writ petition, Mr.
Shukla for the petitioners fairly conceded that the challenge to the validity
of s. 87B, C.P.C., on the ground that it contravenes Art. 14 has been repelled
by a recent decision of this Court in Mohan Lal Jain v. His Highness Maharaja
Shri Sawai Man Singhji(1). He, however, attempted to argue that some aspects of
the problem had not been pressed before the Court when it decided the case of
Mohan Lal Jain (1), and so, he wanted us to reconsider that question. We have
not allowed Mr. Shukla to raise this contention, because we are satisfied that
the decision in Mohan Lal Jain's case concludes the point and it would not be
reasonable to reconsider it as suggested by him. We ought to add that we are
dealing with Mr. Shukla's argument that s. 87B, C.P.C., is invalid because it
contravenes Art. 19(1)(f), on the basis that the case of Mohan Lal Jain(1) has
correctly repelled the challenge against the said section ,under Art.
(1) [1962] 1 S.C.R. 702.
58 That leaves the challenge under Art. 19(1)
(f) to be considered. In dealing with this point, it will be necessary to
examine the background, both historical and legislative, of s. 87B. Section
87B(1) provides that the provisions of s. 85 and of sub-ss. (1) and (3) of s.
86 shall apply in relation to the Rulers of any former Indian State as they
apply in relation to the Ruler of a foreign State. Section 87B(2) defines a
'former Indian State' and a "Ruler". It is not necessary to refer to
these provisions, because it is common ground that respondent No. 2 is a Ruler
of a former Indian State within the meaning of s. 87B(2).
In appreciating the effect of s. 87B(1), it
is necessary to consider s. 86. Section 86 deals with suits against foreign
Rulers, Ambassadors and Envoys. Section 86(1) provides that no Ruler of a
foreign State may be sued in any court other- wise competent to try the suit,
except with the consent of the Central Government certified in writing by a
Secretary to that Government to that effect. The proviso excepts from the
application of s. 86(1) cases where tenants of immovable property seek to sue
such a Ruler. Section 86(2) lays down that the consent prescribed by s. 86(1)
may be given either with respect to specified suits or to several specified
suits, or with respect to all suits of any specified class or classes, and it
requires that the sanction should specify in the case of any suit or class of
suits the court in which the Ruler may be used. It then adds that such consent
shall not be given unless it appears to the Central Government that the Ruler
satisfies one or the other of the four conditions prescribed by clauses (a) to
(d). Section 86(3) prohibits the arrest of any Ruler of a foreign state under
the Code and provides that except with the consent of the Central Government
certified in writing by a Secretary to that Government, no decree shall be
executed against the property of any such Ruler. Section 86(4) extends the
application of s. 86 to the persons specified in clauses (a) to (c) of that
sub-section. The result of the extension of s. 86(1) and (3) to the cases
falling under s. 87B(1) is that the sanction of the Central Government is a
condition precedent to the institution of a suit against the Ruler of any
former Indian State. It is this requirement which the petitioners have not been
able to comply with in respect of the suit which they intend to file against
respondent No. 2, because the Central Government has refused to accord sanction
to the said intended suit.
Now, the legislative background of the
provisions contained in s. 86 and s. 87B is well known. Prior to the present
Constitution, Part IV of the Code of Civil Procedure contained provisions in
respect of suits in specified cases.
These cases were divided into three parts.
Section 79 to 82 covered cases of suits by or against the Crown or Public
Officers in their official capacity. Sections 83 to 87 dealt with suits by
aliens and by or against foreign Rulers and Rulers of Indian States; and 59 s.
88 had reference to inter pleader suits. After the Constitution came into
force, the President made certain adaptations by the Adaptations of Laws Order,
1950. As a result of Art. 372, the protection afforded to Foreign Rulers and
Rulers of Indian States continued, and that is how s. 87B came to be enacted in
the statute-book. It is in the light of this legislative background that the
plea raised by the petitioners in the present proceedings has to be examined.
The legislative background to which we have
referred cannot be divorced from the historical background which is to be found
for instance, in Art. 362. This Article provides that in the exercise of the
power of Parliament or of any legislature of any State to make laws or in the
exercise of the executive power of the Union or of a State, due regard shall be
had to the guarantee or assurance given under any such covenant or agreement as
is referred to in clause (1) of Art. 291 with respect to the personal rights,
privileges and dignities of a Ruler of an Indian State. This has reference to
the ,covenants and agreements which had been entered into between the Central
Government and the Indian Princes before :all the Indian States were politically
completely assimilated with the rest of India. The privilege conferred on the
Rulers ,of former Indian States has its origin in these agreements and
covenants. One of the privileges is that of extra territoriality and exemption
from civil jurisdiction except with the sanction of the Central Government. It
was thought that the privilege which was claimed by foreign Rulers and Rulers
of Indian States prior to the independence of the country should be continued
even after independence was attained and the States had become part of India,
and that is how in 1951, the Civil Procedure Code was amended and the present
sections 86, 87, 87A and 87B came to be enacted in the present form.
Considered in the light of this background,
it is difficult to see how the petitioners can successfully challenge the
validity of the provisions contained in s. 87B. In the case of Mohan Lai
Jain(1) this Court has held that the ex-Rulers of Indian States form a class by
themselves and the special treatment given to them by the impugned provisions
cannot be said to be based on unconstitutional discrimination. There is, of
course, discrimination between the ex-Rulers and the rest of the citizens of
India, but that discrimination is justified having regard to the historical and
legislative background to which we have just referred. If that be so, it would
follow that the restriction imposed on the petitioners' fundamental right
guaranteed by Art. 19(1)(f) cannot be said to be unreasonable. The restriction
in question is the result of the necessity to treat the agreements entered into
between the Central Government and the ex-Rulers of Indian, States as valid and
the desirability, of giving effect to the assurances given to them during the
(1) [1962] 1 S. C. R. 702.
60 course of negotiations between the Indian
States and the Central Government prior to the merger of the States with India.
We have to take into account the events which occurred with unprecedented
swiftness after the 15th August, 1947, and we have to bear in mind the fact
that the relevant negotiations carried on by the Central Government were
inspired by the sole object of bringing under one Central Government the whole
of this country including the former Indian States. Considered in the context
of these events, we do not think it would be possible to hold that the specific
provision made by s. 87B granting exemption to the Rulers of former Indian
States from being sued except with the sanction of the Central Government, is
not reasonable and is not in the interests of the general public. It is true
that the restriction works a hardship so far as the petitioners are concerned;
but balancing the said hardship against the other considerations to which we
have just referred, it would be difficult to sustain the argument that the
section itself should be treated as unconstitutional.
Before we part with this matter, however, we
would like to invite the Central Government to consider seriously whether it is
necessary to allow s. 87B to operate prospectively for all time. The agreements
made with the Rulers of Indian States, may, no doubt, have to be accepted and
the assurances given to them may have to be observed. But considered broadly in
the light of the basic principle of the equality before law, it seems somewhat
odd that s. 87B should continue to operate for all time. For past dealings and
transactions, protection may justifiably be given to Rulers of former Indian
States; but the Central Government may examine the question as to whether for
transactions subsequent to the 26th of January 1950, this protection need or
should be continued. If under the Constitution all citizens are equal, it may
be desirable to confine the- operation of s. 87B to past transactions and not
to perpetuate the anomaly of the distinction between the rest of the citizens
and Rulers of former Indian States. With the passage of time, the validity of
historical considerations on which s. 87B is founded will wear out and the
continuance of the said section in the Code of Civil Procedure may later be open
to. serious challenge.
There is also another aspect of the matter to
which we must refer in this connection. In considering the question as to
whether sanction should be granted to a person who intends to sue a Ruler of a
former Indian State, it is advisable that the authority concerned should
ordinarily, if not as a matter of course, allow such sanction, because in the
present set-up it does not appear very satisfactory that an intended action
against the Ruler of a former Indian State should be stifled by refusing to
grant the litigant sanction under s. 87B. Where frivolous claims are set up by
intending litigants, refusal to 61 give sanction may be justified ; but where
genuine disputes arise between a citizen and a Ruler of a former Indian State
and these disputes, prima facie, appear to be triable in a court of law, it
would not be fair or just that the said citizen should be prevented from
inviting a court of competent jurisdiction to deal with his dispute. If the
power to grant sanction is exercised in a sensible way and is not used for
stifling claims which, are not far-fetched or frivolous, that may prevent the
growth of discontent in the minds of litigants against the artificial provision
prescribed by s. 87B. In the present proceedings, it does appear, prima facie,
that the petitioners have a genuine grievance against the Central Government's
refusal to, accord sanction to them to get a judicial decision on the dispute
between them and respondent No. 2. That, naturally is a matter for the Central
Government to consider.
However, since it is not possible to accede
to the petitioner's argument that s. 87B is invalid, we see no alternative but
to dismiss the writ petition. In the circumstances, there would be no order as
to costs.
Petition dismissed.
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