Maharaj Dhiraj Himmatsinghji & Ors
Vs. State of Rajasthan & ANR [1986] INSC 232 (12 November 1986)
THAKKAR, M.P. (J) THAKKAR, M.P. (J) KHALID,
V. (J)
CITATION: 1987 AIR 82 1987 SCR (1) 208 1987
SCC (1) 52 JT 1986 851 1986 SCALE (2)762
ACT:
United State of Rajasthan Ordinance I of
1949, section 3(ii)-Meaning of the 'Law' explained therein--Whether the order
(Ex. 1) dated 13.9.1946 passed by the Maharaja granting an annual allowance of
Rs.30,000 to each of his four Maharaj Kumars with respective effect from the
date of their birth, a "law" within the meaning of section 3(ii) of
the Ordinance, so as to bind the State of Rajasthan.
HEADNOTE:
Jodhpur was a sovereign State till April 6, 1949. The said Jodhpur State merged with the other sovereign States to form the
United State of Rajasthan on April 7, 1949. On April 7, 1949, Ordinance No. 1
of 1949 was promulgated which provided for the continuance of the laws of the
covenenting States (which included the Jodhpur State) in the United State of
Rajasthan, by virtue of section 3 which provided, inter alia, that all laws in
force in the aforesaid covenanting States immediately before the commencement
of the Ordinance shall continue to be in force.
On September 13, 1946, some two and a half
years prior to the merger of the then State of Jodhpur with the United States
of Rajasthan, the then Ruler of Jodhpur passed an order CB/7114 (Ex. 1)
granting an annual allowance of Rs.30,000 per annum to each of the four
Maharajkumars from the dates of their birth and for the period of their minority.
The amounts claimed by the sons by filing our different suits in 1955 were
decreed by the Trial Court. The appeals preferred by the State were allowed by
the High Court holding that the order dated 13.9.49 granting the annual allowance
was not a 'law' within the meaning of section 3 of the Ordinance. Hence the
appeals by certificate granted under Article 133(1)(a) of the Constitution.
Dismissing the appeal, the Court,
HELD: 1.1 In substance the amount directed to
be paid as per Order Ex. I was nothing else but "a gift" by the then
Ruler to his. sons, unrelated to any legal rights of the said sons
(appellants). It did not create any legal obligation enforceable against the
State of Rajasthan inasmuch as the order in question was not a 'law' obtaining
in the then State of Jodhpur. And accordingly it cannot be held that the said
order 210 continued to prevail as a 'law' in the State of Rajasthan under the
1949 ordinance or any other law. The order cannot therefore be enforced against
the State of Rajasthan treating it as a 'law' creating a legally enforceable
obligation.
[216C-D, H-217B]
1.2 Having regard to the language of the
order itself, it appeared to be an executive order conferring a grant (or a
gift) on the appellantsplaintiff. It did not have the characteristics of a
legislative measure and did not constitute a law inasmuch as it failed to pass
the tests laid down by the Supreme Court. [215C-D] State of Gujarat v. Vora
Fiddali, AIR 1964 SC 1043 = [1964] 6 SCR 461; Narsingh Pratap Singh Deo v. Sate
of Orissa, AIR [1964] SC 1793 = [1964] 7 SCR 112; State of Madhya Pradesh v.
Bhargavendra Singh, AIR 1966 SC 704 = [1966] 2 SCR 56; and State of Madhya
Pradesh v. Lal Rampal, AIR 1966 SC 821 = [1966] 2 SCR 53, referred to.
1.3 In so far as it relates to the period
anterior to the passing of the order (stretching from 8 to 21 years) the order
cannot be said to be an order passed in connection with his maintenance of the
junior members of the Ruler's family for they had already been maintained at
the expense of the State exchequer as revealed by the evidence, including the
budget estimates. [217D]
1.4 "Jagir" has been associated
with the grant in respect of land revenue. In Thakur Amar Singhji's case, the
Supreme Court construed the term "jagir" in that sense only.
Though the expression "Jagir" would
also be applicable to maintenance grants in favour of persons who were not
cultivators, such as the members of the Ruling family, the grant has been
construed in relation to rights in respect of land revenue recoverable from the
actual tillers by intermediaries known as Jagirdars. Testing the grunt said to
have been made under the order in question by the Ruler of Jodhpur in favour of
the appellants, it cannot be said that it is a grunt of a 'Jagir' in this
sense, for, no question of alienation of land revenue in favour of the
appellants is involved. All that the Ruler has done is to order that a
particular amount of money be paid in respect of a specified period anterior to
the date of the order at the specified rate. Further the order in question
providing for payment of annual allowance for the past years during which the
appellants had already been maintained by the State exchequer lacks in the
essential ingredients which would justify characterising the order as a rule or
a regulation. To put it somewhat crudely, divesting of refinement, the 211
order merely directs payment of a specified sum to the appellants which payment
has no nexus with any services rendered by them or any customary right enjoyed
by them by virtue of their status as junior members of the family, but merely
by reason of the fact that the appellants were the sons of the Ruler on whom
the Ruler intended to confer cash benefit. [217F-G, 218B-D, 219H-220B] Thakur
Amarsinghji v. State of Rajasthan, [1955] 2 SCR p. 303; and Madhaorao Phalke v.
The State of Madhya Bharat, [1961] 1 SCR p. 957. distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeals No.
2290 (N) of 1970 and 97 to 99 of 1972.
From the Judgment and Order dated 6.5.1970 of
the Rajasthan High Court in First Appeal Nos. 134, 119, 120, 121 of 1960.
Harish Salve. Mrs. A.K. Verma and D.N. Mishra
for the Appellants.
V.M. Tarkunde, V.C. Mahajan, S.K. Jain, S,
Atreya, E.K. Gupta and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by
THAKKAR, J. Whether the High Court was justified in reversing the judgment and
decree passed by the trial court in favour of the four sons of the Sovereign
Ruler of the then State of Jodhpur in the context of an order Passed by the
said Ruler, and in dismissing the suits instituted by them against the State of
Rajasthan for the recovery of various amounts under the said order, it the
problem in these appeals2 by the unsuccessful plaintiffs. That order issued by
the Ruler inter alia provided that an annual sum of Rs.30,000 be paid to each
of his aforesaid sons (described as Maharajkumars) by way of an annual
allowance with retrospective effect from the date of their birth till the date
of their attaining majority.
On September 13, 1946, some two-and-a-half
years prior to the merger of the then State of Jodhpur with the United States
of Rajasthan (which event occurred on April 7, 1949), the then Ruler of 1.
Order No. C.B./7114 dated 13th September, 1946. (Ex. 1).
2. By certificate granted under Article
133(1)(a) of the Constitution of India.
212 the said State passed order Ex. 1 which
is the foundation of the suits giving rise to the present group of appeals.
The said order in so far as material reads as
under:-"His Highness the Maharaja Sahib Bahadur has been pleased to order
that with a view to making suitable provision for the maintenance of younger
Maharajkumar and Shri Baiji Lal Sahiba:
(i) XXXXX (ii) xxxxx (iii) An annual allowance
of Rs.30,000 per annum each be granted to all younger Maharajkumars from the
dates of their birth for the period of their minority.
(iv) XXXXXX (v) xxxxxxx." The amounts
claimed by each of the four sons in the suits instituted by them in 1955 was in
respect of the claim for annual allowance by way of grant at Rs.30,000 per
annum computed retrospectively from the dates of their birth till the date of
the passing of the order, that is to say, till September 13, 1946. The
particulars relating to the claim may be tabularized as under:-Appeal No. Name
of the Date of Period or Amount before the appellant. Birth which claimed
Supreme allowance Rs.
Court is claimed C.A. 97(N) Devisinghji
20.9.1933 20.9.1933 of 1972 to 2,34,550 13.9.1946 (13 years & 7 days).
213 C.A. 98(N) Dalipsinghji 20.10.1937
20.10.1937 of 1972 to 1,61,050 13.9.1946 (8 years, 11 months & 11days).
C.A.99(N) Harisinghji 21.9.1929 21.9.1929 of
1972 to 3,06,500 ( 17 years & 10 days) C.A. 2290(1) Himmat21.6.1925
21.6.1925 of 1970 singhji to 4,42,000 13.9.1946 ( 17 years & 10days) The
following facts have been established:-(1) Jodhpur was a sovereign State till
April 6, 1949.
(2) The said Jodhpur State merged with the
other Sovereign States to form the United State of Rajasthan on April 7, 1949.
(3) On April 7, 1949, an ordinance was
promulgated which provided for the continuance of the laws of the covenanting
States (which included Jodhpur State) in the United State of Rajasthan by
virtue of Section 3 which provided inter alia, that all laws in force in the
aforesaid covenanting States immediately before the commencement of the
Ordinance shall continue to be in force.
(4) On April 7, 1949, administrators were
appointed in respect of different States which had merged in the State of Rajasthan.
The High Court allowed the appeals preferred
by the State and dismissed the suits instituted by the sons of the late Ruler
of Jodhpur on the following reasoning:-(1) The Order(Ex. 1), on the basis of
which the claim of 214 the plaintiffs was founded was not passed by the then
Ruler in his capacity as the Head of the State in the discharge of any legal liability
or obligation subsisting in favour of his four sons. It was an ex-gratia
payment ordered to be made by him in his personal capacity as the father of the
four plaintiffs and not in his capacity as the Sovereign Ruler of the State
inasmuch as the order for payment was not supported by any law or custom having
the force of law in the then State of Jodhpur.
(2). The cash allowance ordered to be paid to
the four plaintiffs as per Order (Ex. 1) retrospectively for the past period
preceding the date of making of the order was in substance a gift by the ruler
in his personal capacity to his children and not an enforceable obligation
incurred by the Sovereign Ruler vis-a-vis the plaintiffs.
(3) On the aforesaid premises the amount
which had not yet been recovered in respect of the past period could not be
recovered from the State of Rajasthan as there was no legal and enforceable
obligation against the said State.
It was contended before the High Court that
on taking into account the true nature of the order (Ex. 1) it was a law within
the meaning of Section 3 (ii) of Ordinance No. 1 of 1949, the order had all the
characteristics of law that is to say, of a binding rule of conduct "of
the will of the Sovereign". Since this was a law in the Sovereign State of
Jodhpur, its operation continued on the formation initially of the United State
of Rajasthan and subsequently of the State of Rajasthan. The High Court
negatived this contention relying on the law enunciated by this Court in a
catena of decisions. 2 The view taken in the
1. In this section "Law" means any
Act. Ordinance, regulation, rule, order or bye-law which having been made by a
competent Legislature or other competent authority in a Covenanting State. has
the force of law in that State."
2. A.I.R. 1964 S.C. 1043 = [1964] 6 SCR 461.
(State of Gujarat v. Vora Fiddali ).
A.I.R. 1964 S.C. 1793 = [1964] 7 SCR 112.
(Narsingh Pratap Singh Deo v State of Orissa)
A.I.R. 1966 S.C. 704 = [1966] 2 SCR 56.
(State of Madhya Pradesh v. Bhargavendra
Singh).
A.I.R. 1966 S.C. 820 = [1966] 2 SCR 53.
(State of Madhya Pradesh v. Lal Rampal).
215 aforesaid decisions in substance was that
every order passed by a Sovereign Ruler was not 'law' inasmuch as it was not
necessarily an order passed in the discharge of its legislative function. The
Ruler of the Sovereign State, when he passes an order, may be acting in any one
of the three spheres namely, legislative sphere, executive sphere or the
judicial sphere, though all the three capacities were combined in him. All the
same, only that order would constitute 'law', which was passed in exercise of
the powers of the Sovereign in the legislative. sphere, and none other. An
order passed by the Sovereign in his executive capacity, if it is not the
result of a legislative process, and if it is not calculated or designed to
bind as a rule of conduct, cannot be characterized as a 'law'. If the result of
the order was no more then to bring about a contract, or a grant or a gift, it
would not constitute 'law'. The High Court was right in taking the view that
having regard to the language of the order itself, it appeared to be an
executive order conferring a grant (or a gift) on the plaintiffs appellants.
It did not have the characteristics of a
legislative measure and did not constitute a law inasmuch as it failed to pass
the earlier mentioned tests evolved by this Court in the matter of State of
Gujarat v. Vora Fiddali, (supra) and Narsingh Pratap Singh Deo v. State of
Orissa (supra).
It appears to us that in fact the then Ruler
of Jodhpur was making a gift in favour of the appellants. It is evident from
the fact that the amount ordered to be paid at the rate of Rs.30,000 per annum
is in respect of the preceding years.
The four sons had. admittedly, already been
maintained and brought up with due dignity and decorum, prior to the passing of
the order in question. Since they had already been maintained in a manner and
style befitting their status and dignity, at the expense of the State, there
was no question of granting any allowance in respect of the (past) period
during which they had already been maintained. There is therefore no escape
from the conclusion that it was by way of a gift albeit. without saying so in
so many words. The fact that the expression 'gift' has not been employed did
not detract from this obvious conclusion. It was an amount ordered to be paid
by the Ruler to his sons. It was clearly a gift, inasmuch as it is not shown
that till the date of the order any obligation had been incurred by the grantor
in favour of the grantees either under any law or under 1. As per order Ex.1
dated 13th September.1946.
2. As disclosed by the Budget Estimate of the
State of Jodhpur recorded at Ex. A-10 to Ex. A-12.
216 any custom. It has of course been argued
on behalf of the appellants that under the 'custom' of the State, the Ruler was
bound to maintain his sons. To say that the Ruler was bound to maintain the
appellants is not to say that the Ruler was obliged to make a gift in respect
of the past period during which the appellants had 'already' been maintained.
It is not the case of the appellants, and there is no evidence to that effect,
that there was a custom of making any cash allowance every year besides being
maintained with due dignity and decorum at the cost of the State exchequer. No
such allowance was shown to have been made in the past. What, it may be
wondered, was the occasion for making a retrospective allowance for a period
ranging from 8 years to 17 years by the Order (Ex. 1) at a point of time, just
two-and-a-half years before the merger'? In fact the circumstances might well
give rise to an inference that it was 'gift' being made in anticipation of the
forthcoming merger. Be that as it may, at best it is a gift which has nothing
to do with any customery obligation of the Ruler to maintain the sons, which
obligation was already fulfilled by the Ruler in bringing up the appellants
with due dignity and decorum at the cost of the State for all the past years
till the passing of the said order. A communication addressed by the Chief
Minister of the then State of Jodhpur to the Finance Minister prior to the
passing of the aforesaid order: supports and strengthens the conclusion that
the allowance which was ordered to be paid had nothing to do with the past
maintenance as will be evident from the following extract the refrom:-"His
Highness has expressed a wish that 'his two sons Maharaj Kumars Himmat Singhji
and Hari Singhji should now be placed on an allowance to be granted by the
State as a preliminary to their being given Jagirs later on. His Highness' idea
is that if they receive an allowance and it is carefully husbanded they should accumulate
some surplus to help them when they become Jagirdars. His Highness considers
that an allowance of Rs.5,000 per mensem in each case is the correct
figure." We are therefore satisfied that the High Court was right in
taking the view that the order for paying annual allowance at Rs.30,000 for the
past years was not made in the discharge of any legal liability or obligation
of the Ruler under any law or custom having the force of law. It was merely an
ex-gratia payment in the nature of a gift which could not
1. Ex. A.6 dated
2. Ex.1 217 be enforced against the State.
The relevant part of the order cannot be construed as a 'law' obtaining in the
then State of Jodhpur. And accordingly it cannot be held that the said order
continued to prevail as a 'law' in the State of Rajasthan under the 1949
ordinance or any other law. The order cannot therefore be enforced against the
State of Rajasthan treating it as a 'law' creating a legally enforceable
obligation.
It was contended that the purpose of granting
maintenance allowance in cash to meet the expenditure from the civil list was
to enable the junior members of the Ruler's family to accumulate some surplus
to help them when they become jagirdars in due course on attaining majority. It
was argued that if the allowance had been granted earlier, the allowance could
have been accumulated by the beneficiaries and since it was not granted
earlier, it was granted with retrospective effect. We cannot accede to this
submission.
In so far as it relates to the period
anterior to the passing of the order (stretching from 8 to 21 years) it cannot
be said to be an order passed in connection with the maintenance of the junior
members of the Ruler's family for they had already been maintained at the
expense of the State exchequer as revealed by the evidence, including the
budget estimates.1 Another argument addressed by counsel for the appellants was
that the annual allowance ordered to be paid to the junior members of the
family of the Ruler has the same legal status as a 'Jagir', and that the order
granting such an allowance would have the force of law. The submission is
sought to be buttressed by two decisions of this Court. In the first instance
support is sought from Thakur Amarsinghji v. State of Rajasthan, [1955] 2
S.C.R.p. 303. This Court was concerned with the constitutional validity of
Rajasthan Land Reforms and Resumption of Jagirs Act in Thakur Amarsinghji's
case. In the course of the discussion, the Court had an occasion to consider
the import of the expression 'Jagir'.
What emerges from the discussion is that the
term 'Jagir' originally connoted grants made by Rajput Rulers to their clansmen
in lieu of services rendered or to be rendered.
With passage of time, the term 'Jagir' came
to be applied to grants made for religious and charitable purposes and even to
non-Rajputs. The Court has then proceeded to make it clear that both in its
popular sense and in legislative practice the word 'Jagir' has come to be used
as connoting all grants which conferred on the grantees rights in respect of
land revenue. And it was in this sense that the term 'Jagir' was construed
under Article 31A of the Constitution of India. What is of significance is that
jagir has been
1. Ex. A-11 218 associated with the grant in
respect of land revenue. Accordingly the Court proceeded to observe that
considering the world jagir in that sense it must be held that a jagir was
meant to cover all grants in which the grantees had only rights in respect of
land revenue and were not tillers of the soil. The expression 'Jagir' would
also be applicable to maintenance grants in favour of persons who were not
cultivators such as the members of the ruling family. However, the grant has
been construed in relation to rights in respect of land revenue recoverable
from the actual tillers by intermediaries known as Jagirdars. Testing the grant
said to have been made under the order in question by the Ruler of Jodhpur in
favour of the appellants, it is futile to contend that it is a grant of a 'jagir'
in this sense for no question of alienation of land revenue in favour of the
appellants is involved. All that the Ruler has done is to order that a
particular amount of money be paid in respect of a specified period anterior to
the date of the order at the specified rate. There is nothing in Thakur
Amarsinghji's case which could come to the rescue of the appellants in support
of the contention that the allowance in question would constitute a 'Jagir'. It
was argued as a matter of logical corrollary that since it was a jagir, the
order confering the jagir could be construed as a 'law' even if it was not a
legislative measure promulgated by the Ruler.
Since the first premise that the allowance
constitutes 'Jagir' is found to be lacking in substance the submission urged as
a corrollary of this premise must also fail to the grounds as a-matter of
logical necessity.
Reliance was also placed on Madhaorao Phalke
v. The State of Madhya Bharat, [1961] 1 S.C.R.p. 957 in support of the
contention that the grant made in favour of the appellants would constitute
'law' and that the State of Rajasthan would therefore be under a legal
obligation to make payment of the annual allowance to the appellants as
provided in the order. The submission, in our opinion, is not well founded.
Madhaorao's case is not an authority for the
proposition that any order passed by the sovereign directing payment of an
allowance would constitute law of the State concerned which would have the
force of 'law' in the covenanting States by virtue of the provision made for
continuing the existing laws in the covenanting States. The question which had
arisen before this Court in Madhaorao's case was as regards the kalambandis'
issued by the then Ruler of Gwalior conferring a right to receive Rs.21 and
annas 8 per month in favour of an Ekkan. It may be mentioned that the Ekkans
were a class of horsemen who formed part of the Peshwa's Cavalry.
They were foreigners and they brought with
them their own horses and accountrements. After making an allowance for the
fact that they would have to pay for the 219 maintenance of the horses, a
provision for payment of Rs.21 and annas 8 per month was made, by way of
'Bachat'. Whether the right to receive this amount was a statutory right, in
other words, whether the kalambandis on which the rights were founded,
constituted rules and regulations having the force of law was the problem posed
before the Court in Madhaorao's case. The Court considered the nature of the
provisions contained in the documents and came to the conclusion that the
documents unambiguously bore the imprint of the character of a statute or
regulation having the force of a statute inasmuch as it recognised and
conferred:
(i) hereditary rights;
(ii) it provided for the adoption of a son by
a widow of the deceased holder;
(iii) it provided for the maintenance of
widows out of the funds specially set apart for that purpose;
(iv) it provided for the offering of a
substitute when the holder became old or otherwise became unfit to render services;
and (v) it also provided for protection in respect of the execution of decree
against the amount payable under the kalambandi.
Having taken into account all these features
of the grant, the Court proceeded to observe:
"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..." Far from supporting the claim of the appellants, the decision
in Madhaorao's case highlights the fact that the order in question providing
for payment of annual allowance for the past years during which the appellants
had already been maintained by the State exchequer lacks in the essential
ingredients which would justify characterising the order as a rule or a
regulation. To put it somewhat crudely, divesting of refinement, the order
merely directs payment of a specified sum to 220 the appellants which payment
has no nexus with any services rendered by them or any customary right enjoyed
by them by virtue of their status as junior members of the family, but 'merely
by reason of the fact that the appellants were the sons of the Ruler on whom
the Ruler intended to confer cash benefit. In our opinion, what has been
granted under the aforesaid order is nothing but an ex-gratia payment or a
gift.
Lastly it was contended that the junior
members of the family of the Ruler were entitled to a maintenance allowance
during their minority as per the custom in the State and that they were
entitled to grant of Jagir Upon their attaining majority as per the same
custom. The allowance made to the junior members during their minority was
treated under a separate head of the State Budget. On these premises it ,was
argued that the order in question must of necessity be construed as legislative
in character. We are not impressed by this submission. The allowance made under
the order had no nexus with any right to a jagir. All the appellants were
minors at the relevant point of time and they had not even become entitled to
jagirs. As discussed earlier the expression 'Jagir' is apposite only in the
context of alientation of land revenue recoverable from the tillers. What was
granted by the Ruler to the appellants had nothing to do with a jagir. Even
according to the custom pleaded by the appellants the question of granting a
jagir would have arisen only after they had attained majority. The payment
which was directed to be made to them was not referable either to a jagir or to
any other customary right. It was merely a direction to pay a particular amount
computed on a particular basis referable to a past period commencing from the
date of their birth. We are therefore fully convinced, and firmly of the view,
that in substance the amount directed to be paid as per Order Ex. 1 was nothing
else but a 'gift' by the then Ruler to his sons, unrelated to any legal rights
of the appellants. And that it did not create any legal obligation enforceable
against the State of Rajasthan inasmuch as the order in question was not a
'law'. There is thus no substance in any of the submissions urged on behalf of
the appellants. The view taken by the High Court is unexceptionable and the
appeals are devoid of merit. We accordingly dismiss the appeals. There will be
no order as to costs.
S.R. Appeals dismissed.
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