State of Saurashtra versus Jamadar Mohamad Abdulla and Ors.

•

9i0 SUPREME COl"'RT REPORTS [1962)

1'61 ~ocieties is not open to any objection. In my vi°'" A-fann.Jal .J cin 0^{that was a 1air Ordertoluwo been madeinthe} v. circumstances of thi11 case. Tht Stott nf Assam

¶4

I would for these roasons dismiss this pcti- Smltor .!. ti on.

¶5

M1ulhollcar ]. MuDHOI.KAH, .J.-I agree with the judgment <loliv<'red by Sarkar, J.

¶6

BY CovRT-ln accordance with the opinion of thP- majority thi8 Writ Petition is allowed with costs.

Petition allowed.

IIU

STATE OF SAURASHTRA

October 3.

v.

JA:llADAR i\fOHA~IAD ABDULLA AND ORS.

¶13

(B. P. SINHA, c. J., s. K. DAS, A. K. SAHKAR, N. RAJAGOPALA AYYA~GAR and J. R. l\Iun110LKAH, JJ.)

¶14

Art of Sf(Jte-Junag,zdh State----When integrated into lndia- l'olitical Queation-RPjerence to Government for opinion-Grant& by :Ya.,<W-Re.mmplion hy Adinini•tra/,or-lf en bt challeng•d in Municipal courts Government of India Act J9,J6 (26 Geo v. Ch .. 2;, "· 5, Ii, 2!19(!).

¶15

The Nawab ofjunagadh State made gt ants of properties in favC>ur of the respondents before I 9l7. 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 :\ovember 9, 1947 1 the Rt'gional Commissioner assumed charge of the administration on behalf of the Government of India. The Regional Commissionc1· appointed an Admini>trator of Junagadh State. In December 1948, the elected representatives of Junagadh and certain other neighbouring States recommended to the Govern· ment of India and to the United State that of Saurashtra that the States be integrated. Thereafter, the administration of .Juna~adh 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 passrd ordOJs cancelling the grants in favour of the respondents and took pl'Sleuion of the properties. The respondents filed civil suits for the recovery of the properties on the ground that

¶16

•

¶17

911

¶18

3 s.c.R. SUPRE~ COURT REP0RTS

¶19

l

¶20

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 justioiable in the municipal courts. The respondent contended that the question as to when the change 01•er of sovereignty took place was a political question which should be referred to the Govern· ment of India for its o,>inion and the Court should abide by that opinhn and that the facts of this case showed that there was complete change over of sovereignty on November 9, !9t7, and the act of State was complete.

¶21

Held, (per C. J., Das and Ayyangar, JJ.) that the impug· ned orders arose out of and during an act of State and they could not be questioned before municipal tribunals. There wa• no change over of de jure sovereignty on November 9, 1947 \Vhen the administration was taken over and Junagadh continued to exist as such even after this date. Junagadh \vas not a State which acceded to the Dominion nor was its terri- tory 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 ofSaurashtra and the act of State came to an end. It \vas not necessary to serk 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.

¶22

1061

¶23

State nf Say,rash! ra v. ]amado.r M ~hamatl Abdulla

¶24

State of Saurashtra v. Memon Haji Ismail llaji, ( l 9GO) 1 S.C.R. 537 and M/•· Dalmia Dadri Cement Go., Ltd. v. 1'he Commissioner of lncome-tai:, (1959) S.C.R. 729, fo!Jowed.

¶25

In re: SouthernRhotlesia, ( 1919) A.O. 211 and Sarnaut v. Strickktnd (1938) A.O. 678, referred to.

¶26

Per Sarkar and Mudholkar-, .U· Even, if.it be accepted thatJunagadh was annexed on Ncivi;mber 9 1947 and the respondents became citizens of' India, they'cotild sert and establish in the municipal courts of the new sovereign ·only such rights as were recognised by the Indian Dominion. Tho burden of showing that they were so recognised lay .on the respondents. The orders passed by the Administrator show that far from recogI?izing the- grants in-favour of the ·respondents they \Vere repudiated. The respondents could not claim the benefit of s. 299 (I) of tho Government of India Act, 1935, as they had to.establish that on or a.fter November 9, 1947, they possessed a legally enforceable right agamst the Dominion of India ":'hich they could on!y do by showing thanheir pre-existing rights had been reeog11Zed by the Domm1on of India; s.299(1) :did not· enlarge any rights to property but only protected. those which a perron alrea tly had.

¶27

~72 SUPREME OOURT REPORTS [1062) 1361 ltl;• Dalmia Dadri Cement Cu., Ud. v. The Co,,.,ni81ioner of i..co--ta:r:, \19j9) S.C.R. 729, In Re: Souihem Rhoduia, Sta!t •f SrrwrJJhlls V. (1919) A.C. 2 I. Samaut '" Strickland, (1938) A.C.-678, .7a1'11adar Muham•i United Statea v. l'ercheman, '.1833) 32 U.S. 51, Cook v. Sprigg,

¶28

Ahclt1ll'1 (1899) AC. 572, Tl"1cka v. State of Saura1htra, A.LR. 19j4 S.C, 680 and Virendm Singh'" Stale of r:ttar J'radeah, (19j5) I S.C.R. 415. Cn·1L APPELT.ATE JumsorcTJUN: Civil Appeals Xos. 220, 221, !349 nn<l 49i of 58. Appeals from the ju<lgmcnt an<l decrec•s dated l!J.3fi March 24, 1956 Septombcr 15 ;ind 1!)5G April 12 of the former Sanrnshtra High Ceurt at Rajkot in Ci Yi! Second A ppcals :'.\ os. I :!3 of Hl53 & I 04 of UJ55 and Civil Appeals Nos. 4~ of 1953 and 50 of i!l;)·!. J/. C. Setalmd, Atlomey-Gcnerul for India, C. I. Dr1pht,ary, Solicitor-General of buiici, B. Sen 1111d R. ll. f)h~bar, for the Appellant (In all the Appeals).

¶29

I . . V. Shroff for the Rc~pondents (In C. As. N 08. 220 anrl 221 of 1958 ).

¶30

G. S. f>atlmk, .V. P . .Vathnwni ancl /{. /,, Hatki for the Respondents (In C.A. No. 349 uf 1958).

¶31

J. P • .J!ehu1, .J. JJ. Dadacl1m~ii, Onkar Cha'ld J!a//w,r and Ravinder ll'arain, for the Rospondents (In C.A. No. 497 of 1958).

¶32

October 3. 'l'he Judgment of Sinha, C.J., S. K. Du and N. Rajagopala Ayyangar, JJ. was delivered by S. K. Dae, J. Tho Judgment of A. K. Sarkar and ,J. R. llludholkar, JJ., was delivered In• J. R. Mndholkar, J.

¶33

S.K. Da, ].

¶34

S. K. DAS, J.-Theac four appeal1 which haYe been brought to this Court on certificates granted by the then High Court of Saurashtra. under Art. 133 of tho Constitution fall into three groups, and have been bee.rd together. Tho C88ential facte rel:i.ting to these appeals are the same, and a common question of law now falls for de!Rrmination on those focta.

¶35

3 S.O.R. SUPltEME COURT REPORTS 973

¶36

¶37

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¶38

The State of Gujarat, within whose territories the disputed properties are now situatP, is the appellant in the appeals. The respondents and in some cases their ancestors, obtained grants from the then Nawab of Juuagadh, which was then a ruling State, in respect of lands and, in one case, of a building known as 'Datar M:anzil'. These grants were repudiated or cancelled and the property, subject of the grant, was resumed by tho Administrator who took over charge of the admini~ tration of Junagadh on behalf of the Dominion of India in 194 7 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 a.n 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 Saurashtm v. JJ!emon Hoji Ismail llaji (¹ ) where, in circumstances S'lme 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 tho earlier decision of tho S·rnrashtra High Court in St<1te of Saurashtra v. j11emon Haji Ismail H£1ji Valimamad('), (I) [1960] l S.C.R. 537. (21 A.J,R. 1953 Saurashtra 180.

¶39

1961

¶40

Stale of SauraJhtra v. Jamador Mohamad Abdulla

¶41

S. K. Das J.

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!l74 SUPREME COURT REPORTS [l!J62]

¶43

1961

¶44

St.U of StWJ ashtra v. J•d«r Mohamad .iOJalla

¶45

S. K. v., ].

¶46

a decision on the basis of which the High Court decided the cases under consideration in these appeals.

¶47

The lcarnnd Attorney-Gen.era.I ha8 submitted that tho decision of this Court in the Stale of Sauraehtra v. Memon ll11ji Ismail ffaji(¹ ) completely covers and concludes the present appeals. On behalf of the respondents it has been contended thut tho decision aforesaid proceeded on a finding that the act.of Soote was not completed before the impugned orders were made and that finding being a finding of fact docs not bind the respondents who were not parties to tho case in which the decision was rPndered. In tho appeals before us the main contention on behalf of t11e respondents has been that tho impugned orders wero made after the a.ssumption of sovereignty by the Dominion of Indi(l, was completed, nnd, tJ1erefore tho decision of th is Court in tho State of Saurashtru v. M emon H aji l8mail /faji(') is not determinative of the problem which arisos in these appeals. It has been furth"r argued that after full sovereignty had been aBSumed by tho Dominion of India, the petition of the people of Junagadh including tho rcsp,,udents 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 citizone in respect of which thPy could ask for relief in the municipal courta.

¶48

\Ve havo set out above, in briof outline, the principal 110int which falls for decision in those appeals and the respective contentions of tho parties relating thereto in order to. high: light the main problem presented for solution m these appeals.

¶49

But we must first set out tho essential facts which are relevant for the solution of the problem. We havo already stated that the essential facts aro the same in these appeals, though the facts relating (I. [1960] IS. C.R. 537,

¶50

t

¶51

¶52

SUPRE~IE COURT REPORTS 975

¶53

3 S.C.lt.

¶54

to each of the grants made in favour of the respondents are different. We shall state the essential facts bearing upon the rn ain problem and then briefly refer to the grants made in each of the cases.

¶55

India attained independence in l 947. 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 & ll Geo. VI. C. 30). Under s. 7 of the said Act, the suzerainty of His Majesty over the Indian States including J unagadh lapsed. It released those States from all their obligations to the Crown. The White Paper on Indian States said (at page 32) :

¶56

1961

¶57

State of Saurashtra v.

¶58

J amadar Mohamad Abdulla

¶59

S. K. Das].

¶60

"It was evident that if in consequence the Indian States became separate independent entities, there would beaserious 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 otlrer fields. All that the Dominion Government · inherited from the Paramount Power was tho proviso to section 7 of tho Indian Independence Act, which provided for the continuance, until denounced by either of the parties, of agreements between the Indian States 1111d tho Central and Provincial Governments in regard to specified matters, such as Customs, Posts and Telegraphs, etc. (Appendix IV)."

¶61

A process of accession was therefore begun and by August 15, 1947 all the States in tho geographical limits of India barring Hyderab<>d, Kashmir and Junagadh had acceded to the Indian Dominion. The Nawab ofJunagadh, however, did not accede to the now Dominion of India by executing an Instrument of Accession as did the other Rulers in Saurashtra. He fled the country and the affairs of Junagadh State fell into disorder and chaos. At the request

¶62

lliG SUJ'ltEME COURT REPORTS (19G2)

¶63

1

¶64

1961 of th" Nawab's Council, the Govcrnmt•nt of India State of Sauralht:a decidE·<l to take over the administration of tho v. Jamadar ,\fohamad St<ite. On November 9, 1947_, the Regional Abdzilla Comnii"8ioner, WPstcm Inrlia and Gujarat S. h". lJa, J. Stat<>s Hegion, assumccl charge of the administration of the State on behalf of tho Government of fudia. A proclamation was issued on that date which said that thn Regional Commissioner had assumed charge of lho administration of tho Junagadh State at 18-00 hours on Novorubor !l, 1()47. On November 14, 1()47 the legional Commissioner appointed Shri S. W. Shiveshwarkar as Administrator of Junagadh State" The Administrator pused CPrta.in orders which arc the orders impu;mcd in thPsc appoals and to which we shall presently refer, hut we must first complete tho gonernl picture of political changt•s that took place in Junagadh. In Fcbrnary, 1948 the Government of India held a rcforcndum in Junaga.dh State to asccrt,lin tho choice of the people in regard to accession and tho people votod hy a large majority in favour of acceBSion t-0 the Dominion of India. 'l'hc Adm i11istrator thei1 decided with the appro\·al of the Govcrnmont of India to appoint an Exeeuti>o Council with himself as President and three other person8 as members thoreof. ln December, 1948 the Plcctcd rcpresentu,tives of the people of Junagadh rl•soh-ed that the administration of the State lie ma.de over to the Government of Saura$htra and that the representatives of Junagadh ho enabled to participate in the Constituent Assembly of Saurashtra State with a view to framing a common Constitution for Saurashtra and tho .Tnnaa<lh State. [tis necessary to state now how this i.11tPgration took place. 01; ,Janunry :?:l, l!J48, thirty rulers of tho principal States of Kathiawar signed a covenant bringing into existence tho United State of K.ithiawar (later known as tho l.Jnikd State of Saurashtrai comprising the tNritoricH of their States for tlw welfare of the people and entrusted to a Constituent Assembly the task

¶65

3-S.C.R.

¶66

SUPREME COURT REPORTS 977

¶67

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 ('lected representatives of the people of Junagadh, Manavadar, Mangrol, Bantwa, Babariawacl and Sardargarh recommended to the Government of India and tho Government of the United State of Saurashtra, as it was then called, that the administration of the States mentioned above be integrnted with tho United State of Saurashtra. The Rulers of the Covenanting States thereupon entered imo 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 tho Supplementary Covenant was in these terms : (See White l'aper on Indian States, page 249) :

¶68

W61

¶69

State of Saurashtra v. Jamadar Mohamad Abdulla

¶70

S.K. Da> J.

¶71

"From a elate 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 tho U.u.ituu titate 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 ............ "

¶72

'fhe administration of the Junagadh State was thereafter integrated with that of the United State of Saurashtra on January 20, 1949. 'fherefore, as from that date the legislative and executive authority and jurisdiction of the United State of Saurashtra extended to the Junagadh State to t.he same extent as it extended to the rest of tho territories of the Covenanting States .

¶73

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¶74

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078 SUPREME COUR'l' REPORTS (1D62)

¶76

1161 1-'urther political changee tcok place after Sut1 of Saurajh/ra January 20, I !.149, but with those changes we are •• not concerned in the present appeals. The two )tm1ar1111 Ateh.an1ari Abdulla dates which arc important for our purpose arc S. h'. Das J. Xovemuer 9, 1947, when tho Regional CommiBBi· oner first took over charge of the administration of Junagadh and January 20, 1949 when Junagadh merged into the C'nited State of ~aurashtra..

¶77

!\ow, as to the impugned orders mado by the Administrator. In Civil Appeal N"o. 349 of ID58 the nnccEtor of tho respondents had obtained granU! from the then :N"awab of Junagndh of two villages called Handla and V cndenvad sumo time between the years 1865 and 1868. A detailed history of the grants so made is not necessary for our purpose. On December 6, 1D47, the Administrator mado the following order :

¶78

"It has come to the Administratol.''11 notice that Aba Salem Bin Aba :Mahmed Hindi the alienee of Handla village,

¶79

(i) was maintaining many Arab employees of Timbdi at his house in Junagadh,

¶80

(ii) was uttering threats to maBBacre all Hindus of Handin village,

¶81

...

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(iii) was keeping in Handla fifty animals at the expense of the poor village people,

¶83

(iv) did not pay any rrmuncmtion to Dhc<lh employees of his gardl'n and was exacting Veth from them,

¶84

(') was buying exho~bitant eesses from the village people,

¶85

(\·i) had eom·erted into Islam throe Hindus, and

¶86

(vii) had taken the following arms from Handla to Junngaclh about a month ago:

¶87

3 S.C.R. SUPREME COURT REPORTS 979

¶88

(a} 12 bore guns and (b) one M. I. gun.

¶89

It is, therefore, ordered that the village of Ha.ndla should be taken under the State management. Thf' Revenue Commissioner should make necessary arrangements for the same an<l report compliance.

¶90

1961

¶91

State of Saurashtra

¶92

v.

¶93

J amadar ilJohamad Abd,lla

¶94

S. K. Das J.

¶95

By that order the management of Handla 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. ThAn on January 8, 1949, the Administrator passed the following order :

¶96

"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 Handle. 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 impu"n-0 ed by the respondents in this appeal.

¶97

In Civil Appeal No 497 of 1958 the grant was in respect of a bungalow or building known as 'Datar Manzi!'. On March 9, 1948 the Administrator made the following order:

¶98

"The State building situated near Gadhrup Wada at Junagadh, was granted to Khan Shri Abdullakanmiyan Mahomedkhanmiyan, hereditarily by way of gift, under Dewan Daftar Tharav No. 337:) dated 1st August, 1930.

¶99

The said Tharav 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 proper t y.^,,

¶100

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980 SUPREME COlJHT REPORTS (1962)

¶102

In Civil Appeals Nos. 220 an<l 221 of 1958 State of Sa11rashfra the impugned order is datod July 27, 1948, and v . is in these terms: . Jtll'lllJdtn Mohamad Abdulla "Twentv five Santis of land from tho S. K. Dar J. village of Khokhar<la. undor Vantha.li llfahal was granted as a. gift heroditarily to l[r. l\fohamrd Alxlulla, son of late Jamada.r A hdulla Moosa under Hazur Farm'1n No. 27!) dated 30th April, Hl43.

¶103

In vicY!' of the principles of Alienation S(•ttlement of 18!l7 no grant can be wantonly fovourocl to anybody in contravention of the wnll ostablished principles of r<'sumption atta<'hing to such grants.

¶104

It is hereby ordered that Hazur Farman J\o. 279 datC'd 30th April, 1043, is canrollod and the land in question should be rC1Rumerl by the State forthwith by setting aside tho settll'ment made thereon."

¶105

It will he noticod from what has been stated above thn.t the impugner! orders were all made after No\•ember 9, 1947, but before January 20, 1049. The question before U9 is whether the orders wore made in pursuance of acts of Sta.to not justicia.blo in the municipal courts.

¶106

There can be no <loubt that if the doci8ion of this Court in Stale of Sauraahtm v. Menwn Ilaji Jmnail Haji (') applits, then these appeals must be allowed. Learned counsel for the respondents has however sought to distinguish that decision on tho p-round that the decision proeeede<l on the footing that the Dominion of India assumed sovereignty over .Tunairadh on Jnnunry 20, 1949. His eonten ti on is that when tho Dominion of India assumed charge of the administration of Junngadh State on Novcmlmr 9, 1947, throu!(h tho Rogional Commis· sioncr, \Vestern India and Gujarat States Region, th(re \Vas a eomplote chae-over of sovereignty, the net of Stato wa.~ complete, and the Dominion of India became th<' new sovereign; thereafter, (II [1960] l.S.C.R. 557.

¶107

3 S.C.R. SUPREME COURT REPORTS 981

¶108

the people of Junagadh including the respondents, so the argument proceeded, became citizens of the Dominion of India and had rights as such citizens 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 spvereignty on November 9, J 94 7 and the act of State was complete; the second step in tho argument which is really based on the correctnPss of the first step is that on snch a change-ovt'r of

¶109

·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

¶110

.. change-over of sovereignty or completion of an act 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('J, we have allowed learned counsel for the respondents to address us on this question. Learned counsel for the respondents has made

¶111

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 held that there was a complete change-over of sovereignty on November 9, l 947, 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) [1960J 1 s.c.R: 537,

¶112

1961

¶113

Stat~ of Saurashtra v. J amadar Mohamad Abdulla

¶114

S. K. Das .J,

¶115

.. , I

¶116

SUPREME COURT REPORTS [1962) drawn our attention to.para. 603 at·pages 285-286, ,!<,tote of Sauraslztra Vol. 7 of Halsbury's ·Laws of England, 3rd 'Ed. •• That paragraph is in these terms: Jamadar Mohamad .1!dullah "There is a class of facts which are con- S.J:.-DasJ., -venie~tly 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: · · (I) Whether a state of war exists between I the British Goveq1ment and any other State, and if so, when it began; the municipal courts have no power of inquiring into.the .validity of a .declaration .by the Crown• whether ;a state of war exists, or whetherit has ended; (2) ··whether a particular - territory :is hostile, or foreign, or within •the boundaries of a particular state; _ (3) \vhether and when a particular govern· ·' ment is to be recognised as the. government of an independent state; (4)The status of.a person claiming immu' nity from judicial process . on the ground of diplomatic privilege. . The court :takes·•judiciaJ.motice 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.

¶117

Learned counsel has alsoreferred us to some of the English' decisions on ·which the statements in the paragraph quoted above are based. \Ve consider.it unnecessary to examine those decisions. It appears -to us that the question with which we are concerned in .the present appeals is -iot a: question on "hich it _ ·is necessary to seekinfe ,ation from ,the .relevant department of the Gov<L11ment of India; for one -thing, it does not appear :to us that there is any ~ uncertainty ill' the matter; . secondly, as we. shall

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3 S.C.R.

SUPRE:."IIE COURT REPORTS 983

¶123

· presently show, the· Government of India in the relevant department has already spoken with sufficient chrity 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 \Vas no change- over of assumption of sovereignty on· November 9, 1947 in the sense which learned counsel for · the respondents has c·ontended for; 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 th~ validity or otherwise of the pica 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 Govern· ment. 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 concerned. 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 tl1at under that section it was obligatory on this court to refer the question to the Central 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 tho 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.

¶124

1961

¶125

Slate of Saurashtra. v. J amad'1r JI oh.amrid Abdult".l

¶126

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984 SUPREME COURT REPORTS ,(1962]

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-~------- --

¶129

\ . 1961 . We have already stated there is no uncertainty Stat4 of SaurashlTa about the :racts on which the plea of the appellant- v, State is based, and Government has already spoken Jamaclar Af ohamad . Ahaullah about them with sufficient clarity. What are these facts and how has Government spoken? We refer 8.K.DasJ. 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 tho political questions involved.

¶130

·"Tho position of Junagadh and certain

¶131

other adjoining States in Kathiawar may also

¶132

· 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, 1947, at the request of the Nawab's Council. Obviously, the action taken by tho Government of India had the fullest approval of the people of Junagadh in that the results of the

¶133

. referendum held in Junagadh and the adjoining smaller States in February 1948, showed

¶134

. that voting in favour of accession to India was virtually unanimous. During the period the

¶135

·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, tho elected representatives of the people of Junagadh resolved that tho administration of tho State be made over to the Government ofSaurashtra 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 tho Junag'ldh State. Similar resolutions were adopted by the representatives . of Manavadar, l\Iangrol, Bantwa, Babariawad and Sardargarh. Accordingly a Supplemen-

¶136

·. t~ry Covenant (Appendix 0 , )C:XXVI), _was

¶137

•

¶138

985

¶139

3 S.C.R. SUPREME COURT REPORTS

¶140

executed by the Rulers of Kathiawar States with a view to giving effect to the aforemen· tioned resolutions. The administration of Janagadh was taken over by the Saurashtra Government on January 20, 1949, andof the other States some time calling. Accordingly the Constitution treats Junagadh and these States as part of_ Saurashtra."

¶141

1961

¶142

St1116 •f Sauraslur« v. Jamad•r ~lohamai .Aldullah

¶143

S. K. D" J.

¶144

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, l!J47, and January 20, 1949,' were these:

¶145

(I) The administration of Junagadh was taken over by - the_ Government of India on November 9, 1947 at the re>quest of the Nawab'1 Council; ·

¶146

(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 representatiyes comlucted the administration of the State;

¶147

•

¶148

(3) in February, 1948 there was a referendum and the people of Junagadh Toted in favour of accession to India; hut no actual accession took place by the execution of any Instrument of Accession;

¶149

(4) in December, 1948 the elected representatives of the people of Junagadh resolved that the Admini~tration of the State be made over to the Government of Saurashtr'l and the representatives of Junagadh be enabled to partioipat-0 in_ the Constituent Assembly of Saurashtra State;

¶150

(5) a Supplementary Covenant (Appendix XXXVI of the \Vhite Paper) was executed by the Rulers of Kathiawar StatM with a view to giving - effect to the r<'solutions aforesaid; and -- (6) lastly, the administration of Junagadh was taken over by the - Government of Sauraihtra on ,Tanuary 20, 1949.

¶151

•

¶152

986 SUPREl\IE COURT REPORTS

¶153

19CJ

¶154

'In 111/s. Dalmia Dadri Cement Co., Ltd. v. The Commissioner of Income-tax_ (¹ ) this Court observed.

¶155

8 tat.; of Sauras.htra v. Jarnadar Afohamad Abdull11

¶156

"In law, therefore, the process of acquisi· tion of new territories is one continuous act of State terminating on the assumption of sove- reigri 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 citize11ship commences when the act of State terminates- -and the two therefore cannot co-exist.''

¶157

' s: K'. Da.r J.

¶158

. There rriay be cases where by a treaty or an agreement there is a change' over of de jure rnvcreignty at one and the sanie time and in·s110h 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 change-over 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, l!HS, or the resolutions passed in December, 19-18, by the elected representatives of the people of Junagadh. · Nor, would· there be any meaniJ1g in the Supplementary Covenant executed by the Rulers of Kathiawar States. It is also worthy of not., that ·there was no accession to India by the Junagadh State by the execution of any I••strument of Accession. We may in this connection refer to ss. 5 and 6 of the Government of India Act, 193;;, as they stood at the relevant time. Section 5 stated inter alia that the Dominion of India shall, (I) [1959] S. C.R. 729, 7H.

¶159

•

¶160

•

¶161

:1 S.C.R. SUPREME COURT REPORTS 987

¶162

as from the 15th day of August, 194 7, be a Union comprising (a) the Governors' Provinces, (b) the Chief Commissioners' Provinces, ( c) the Indian States acceding to the Dominion in the manner provided bys. 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 cl. (d) of s. 5 as from November 9, 19-17. The pro,ess 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 tho Rulers of Kathiawar by which the States of Junagadh, Manavadar, J.fangrol, 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 para. 223 of the White Paper on Indian States.

¶163

1981

¶164

State of Saurashlra v. Jamadar Moh11mad Aldutla

¶165

S. K. Das J.

¶166

Learned Counsel for the respondents has relied on certain observations made in well-known text-books on International Law and has contend eel 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 severcignty and therefore the acquisition of territory by a State can mean nothing else than the acquisition of sovereignty over such territory. (See Schwarzenberger: International

¶167

•··

¶168

988 SUl'REME COURT REPORTS [1962]

¶169

1Q61 St.sU tJf S.wa.shlra J-im v. If,,,,,,,,., A.IC/I•

¶170

s. r.. v., ].

¶171

Law, 1945, Vol. I, pa.ge i!J: Cha.rles Cheney Hyde: International Law, 2nd revised t•dition, Viii. I, pa!Ze 319; Oppenheim's International Law, 8th Edn. Vol. I, page 545). Ho has contended that in view of the aforcsa.id observations, it must be held that the Dominion of India. a.ssumed sovereignty over .Junagadh on November !J, I!l47; because, so learned coimscl 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 ue. In cases where the acquisition of new territory is a continuous process, a distinction must be made bot ween def acto exercise of control and de ju.re assumption of sovereignty. The problem before us is, as was stated in M/s. Dalmia Dadri Cement G<'J., Ltd. v. 'l'he Commissioner of lnwme-tax ('),as to when the act of State was complete; in other words, when did the assumption of sovereign powers de jure by the now sovereign over territories acquired by it take place? The problem is really one of State succession; namely succeBsion to International Persons as understood in International law. Such a sucoessiou takes place when one or more International Persons take tho place of another International Person in consequence of cert;dn changes in the latter's condition; there may hn universal succession or partial succession. In the case before us, as long as Junagadh Ste.to continued as such, there was no such succession and even though tho 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 termina.te till January 20, I!J49, when tho Dominion of India assumed de jure sovereignty over Junagadh by its integration into the Unite<! State of Saurashtra.

¶172

It is perhaps necessary here to refer to two decisions on which learned counsel for the ( 1) [1959] S· C.R. i29, 741.

¶173

,..

¶174

¶175

3 S.C.R. SUPREME COURT REPORTS · 989

¶176

¶177

¶178

respondents has relied: In re: Southern Rhodesia(') and Sammut v. Strickland (¹ ). 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 1overeign and subject. Lord Sumner said:

¶179

"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 dis9.dvantages) of publicity and precision. But it is only declaratory of a state or fact. 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 arise 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 cerrmonial or occasion. The Crown has not bound itself towards its subjects to determine its rhoice 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,

¶180

1961

¶181

Stott of Saurashtra v. Jamadar Mohamad Abdulla

¶182

S. K. D!U],

¶183

(l) [1919) A. C. 211. (2) [1938) A. C. 678,

¶184

(

¶185

¶186

SUPREME COURT REPORTS [I \JG2 J

¶187

1161

¶188

S1t111 of ~tuMlsJra ·v, Jamadar MoMmad Abdidla

¶189

S. K. Das}.

¶190

if she ·Was plea.serl to do so by public act8 of State which indicate the same election and confer the same supreme rights of dispositiun over JU conquered realm a.s annexation wou Id have done, it is not for one of her subjects to challeage her policy or to dispute her manner of giving effect to it. "

¶191

\Ve do not think that theae observations help to establish the contention of learnl'd counsel for the respor.dents that any exercise of administrative control in acquired territory must mean at once thi1t there is an assumption of sovereignty by tho in-coming State so as to terminate the act of State. The observations made by Lord Sumner merely show that with r~ard 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 u; a proclamation was issued by the Administrator, but that merely announced that he had al!Bumcd charge of the administration of J unagadh State under orders of the Government of India. It made no announcement as to aRBumption of sovereignty.

¶192

In tho second decision one of the questions raisod wns tho true nature of the title of the Crown to the sovereignty of 1\lalta, and a distinction was sm1ght to be drawn between ceded territories, those :icquircd by an act ef cession from some sovereign power, and those coded by the general consent or desire of the inhabitants. It was hold that so far as conccrnod the prerogative right of the Crown to legislak by Letters Patent or Orders in Council for the ceded colonv, tho distinction was of no materiality. It is difficult to see how this decision affords any 8118iBtanoe to tho respondents. It is indeed true th,~t the people of Junaga.dh voted for a.ccesBion to the Dominion of India; but no accession actually took place, and later there was a merger in the United 8tate of Sauraehtra with the consent of the people of Junagadh and the Government of

¶193

SUPREME COURT REPORTS 991

3 S.C.R.

-f

--

India. Till such merger there was no "cession" of territory in the legal sense either with or without the consent of the people.

¶198

In our view, the only conclusion 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.

¶199

This disposes of the main argument advanced on behalf of the respondents, and it is unnecessary in these appeals to consider the further argument as 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 arguments, learned counsel for the respondents commended for our acceptance the view of Chief Justice John Marshall in United States v. Percheman (¹ } that when the inhabitants of the acquired terri · tory change their allegiance and their relation to the old sovereign is dissol 'Ted, their rights of property remain undisturbed, and he suggested that this view was consistent wi.t.h modern usage of nations and was accepted by the Permanent Court of International Justice. (See the Advisory Opinion of the Permanent Court on the Settlers of German Origin in Territory ceded by Germany to Polwrvl, Series B, No. 6, particularly pp. 35-36). He conceded, however, that this Court has accepted the view expressed by the English Courts in Gook v. Sprigg (') and the decisions which followed it. That view proceeds on the doctrine that acquisition of territmy 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 Go., Ltd. v. The Commissioner of Income-tax ('} and State of Saurashtra v. lffemon Haji Ismail Haji (')- Tnerefore learned counsel was at great pains to establish that ~he act of State was complete on November 9, 1947,

¶200

1961

¶201

State of Saurashlra v. J amadar M ohamal'/ Abdulla

¶202

S. K. Das J.

¶203

(ll (1833) 31 u. s. 51, 86-87. (Zl [1899J A. C. 572. <3J [1939] S. C.R. 729, 741. (4J [1960J s. C. R. 537.

¶204

•

¶205

SUPRE:'liE COURT REPORTS [1962]

¶206

1941

¶207

)'tau •f Saurashtr• v. T tJmaiar M 0Mn10.J .Odidla

¶208

~'. K. D•s ]:

¶209

and he argued that thereafter the respondents became citizens of the Dominion of India and under s. 299 of tho Government of India Act, 1935, they could not be deprived of property savo by authority of law. He relied on two decisions of this Court: Thacker v. State of Saurashtra (') aml Virernlra Singh v. State of Utlar l'raduh (² ). In viow of our finding that the a.ct of State did not terminate till tho process of acquisition was complete on January 20, 194 9, it becotnes unnccessa ry tn consider this seoond step in the argument of learned counsel. But perhaps it is necossl'\ry to add that, the decision in Vfrendra Singh v. State of Utt.ar l'radeh.a (') waa based on the special circumstances mentioned therein whirh led to tho making of the Constitution of India. The lenrnccl Attorney-Gcnoral appo&ring for the appellant-State has submitted that the principle of Virwdra Sinah's f.-l1se (') cannot be extended to the ent ircly different set of circumstances in which the Go,·crnment of India Act, 1935, was made and s. 299 thereof did not affect the doctrine that municipal tribur,als have no :i.uthority 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. Tl~ State of Orista (') in which in respect of 1omo claims made against the State before the coming into force of tho Constitution hut l'nquircd into and rejected by Government after the coming into force of the Constitution, it W&i hold that unl<'.as the new sovereign had expressly or impliedly admitted the claim•, the municipal courts had no jurisdiction in the matter.

¶210

We conaidcr it unnecessary to give our decision on these submissions, because it is obvious that bofore the Dominion uf India a...~sumed de jure 1ovcreignty over Jmiagadh, tl1e respondents were not in u. position to call to their nid the provision1 of s. 299 of the Government of India. Act, 1935. · ·

(

r

-A. -^·-

(I) A.l.R. 19S!S.C. 680. (21 [1955] l S.C.R. 415. (3J [1962) l S.C.R. 205.

¶218

3 s.c.R. !SUPREME COURT 1tEPO:RTS 993

¶219

In the appeals before us vre are dealing with order• made by the Administrator before the act of State was complete. The action taken by the impugned orders arose out of and during an aot of State. That being the position. it is clear that the municipal tribunals had no authority to give a remedy in regpect of such action.

¶220

1861

¶221

State •f Saurashtr• v. J amadar M 1hamai Abdulla

¶222

S. K. D.,J.

¶223

It remains now to consider the last argument ad ..-a.need on behalf of the respondents. Ae was observed in State of Saitrashtra v. M:3mon Haji Ismail Haji (¹ ) an act of State is an exercise of sovereign power against an alien and is neitlwr intended nor purports to be legaIJy founded. On behalf of the respondents it h&a been contended that the Administrator purported to cancel or resume the grants under consideration in these appeals in pursuance of law; therefore, it WM not open to the appellant-State to take up the plea o:f an act of St&te. We do not think that there ia 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 para. 8 of the written statement filed on behalf of the appellant-State. In that paragraph it was 1tated the order of resumption dated January 8, 1949 was legr.l &nd 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 &uthority 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 M 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 vras an aot of State not justiciable in the municipal courts. It appears, however, that the appellant-St&te (1) (1960] I S, C. R, 531:

¶224

SUPREME COURT REPORTS [1002)

¶225

!J!J4

¶226

J!J6l :itatt of S<tW'uJhtra v. Jamu-1111 Muhamad AbdllU1

¶227

also took a pica in the alternative that the order c.f resumption was justified und<'r the rules in force in the Junagadh Stak. The trial court held that the otder of resumpti0n was not an act of State. It further held that the order of resumption was not ju>tific<l by the rulci; in force in the Junagadh State. In these circumstances it cannot I.Jo said that thn appellant-State di<l not plead an act of State; nor can it I.Jo said that it was not open to the appollant-Stato to raise that plea. In the High Court also the same pica of act of State was urged on behalf of tho appellant-State but was rejected by the High Court on the l.Jasis of its decision in State of Samw;/tfra v • • ~lemon llaji Ismail lluji Vulimamad('). That decision, we hitve stated C'arlier, was overruled l.Jy this Court in SMte of Saurashtra v. M C71!0tl Haji 1 smau llaji (').

¶228

Learned counsel for the respondents then rcfrrred us to an order dated February !J, l!l4!J, in which it was stated that inam grants were resumable at the pleasure of Government and therefore the orilcrn pai:sed on ,January, 8, l!J4!J,could not be cancelled. Apparently the orders dated February, 9, 194!! was passed on some representation made at the instance of the plaintiffs-respondents. We have to read the two orders, one dated January 8, l!J49, and the other dated February !J, l!J49, together. If so read, it is clear that the or<lcr dated January 8, l!J49, was mac10 l.Jy tho Administrator not under the authority of any law but as an act of State.

¶229

Learned counsel for tho respondents relied on tho decision in Forester Y. Tlie Suretary of State for lnd·iu. ('). In that c,'l,se, the Privy Council, upon a construction of the treaty or agreement made by the British Government in August, 1805, wit'> .Begum Sumroo, held that the Begum was not a sovereign princess but a mere Jagirdar under ol.Jligation to keep up a I.Jody of troops to he employed when called upon in the (I J A.!. R. I 9S' Sauias~tra 180. \21 (I 960J I S. C. R. 537. 13) (1872) 18 W.R. 3W (P. C.J.

¶230

,•

¶231

3 S.C.R. SUPREME COURT REPORTS 995

¶232

service of the sovereign. On that finding it was held that the resumption- of the lanr:ls by the British Government upon the death of the Begum was not a.n a.ct of State but an act done under legal title. We do not think that the principle of that decision applies to the facts of th~se cases. In Vejesin7ji Jora.varsingji v. S'cutary of State for India (') Lord Dunedin said that no plea specifically using the words "act of State" was required and the moment cesiion 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.

¶233

19~] State of Saurarhtra v. Jamadar Mohamad Abdulla

¶234

S. }(;· lJas J.

¶235

We have, therefore, come to the conclusion that the courts below were wrong in holding that the suits were maintainable and in enquiring into t':!e 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.

¶236

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.

¶237

MuDHOLKA.R, J.-We also agree that the appeals be allowed but we wish to say a fow words. To appreciate the points which arise in these cases certain broad facts common to all appeals may well

¶238

Mudholkar J.

¶239

(I) (1924) L. R. 51 J, A. 357.

¶240

[1962 J

¶241

996 ~UPRE:&ll: OOURT REPORTS

¶242

r

¶243

JHl ?e stat<'d. The rCBpondonts held certain propertie11 Side of Sa41&JAJ,, m that part of the present State of Gujarat whioh

¶244

v. w.a.e formerly the ruling State of Jumgadh, by J-iar .11"'-i Ait.11• virtue of granta from itl Ruler. After India attained independence on August 15, l 94i, the suzerainty .WW!i.il<•r ]. which :he Briti8h Crown hold over the State of Junagndh le.peed and that State became completely soverei!~. That was the effect of the Indian Independe 1100 Act. Shortly thereafter, the Ruler of Junagadh W•3nt to Pakistan leaving the State to it.a fate, with tho re8ult that the affairs of that State fell into disc1rder. At tho invitation of the people of the ~tate the Government of India decided to step in and accordingly took over it11 administration through the Regional Commissioner, Western India and Gujarnt States Region on NoYember 9, l9l7. A proclamation was i6sued by him to the effect that he had assumed the administration of Junagadb :i.a from that date. On November 14, 1947, he ap· pointed an Administrator for administering the territory. The Administmtor passed orders on different datea resuming the grant11 in favour of the respondcnta and tlisposse88ed them. ThcrMfter on January 20, 194{), the territory of Junagadh wa1 with the approval of the Go\•crnment of India integrated with the United States of Saurashtra and tho Administrator reased to exercise 1111v function• u from that date. ·

¶245

'

¶246

The resumption of the gran ta and the Taliditr of their disposeesaion wore cludlengcd b~· tho repondents by instituting euita for poeession of the property after tl e integration of Junagadh with tho United State of Sauraehtra upon the ground that they could not ht> deprived of their properties by executive action. According to th~m the act of the Dominion of India in taking o•;er the administration of Junagadh territory on KovcmbM 9, 1947, amounts to asaumpr.ion of sovereignty over it, that thoniby it1 rt>,sidente became citizens of the Dominion of India as from that date and, therefore, no act of 11ta.te

¶247

'

¶248

·3S.C.R. SUPREME COURT REPORTS 9U7

¶249

· such as resumpt.ion of their properties could ·be committed 1wainst them by the Indian Dominion. According t~ the appellant$ no municipal court could ar,1nt the relief claimed bv the n•sponclents bec1tn;e the act complained of w.ts an act of state.

¶250

1961

¶251

Slate o.f Sauras~tra '· Jamadar 11! ul11r.m11d ,1briulla

¶252

Af11dho!kar J,

¶253

The plea of the respondents was accepted by the High Court of Saurasbtra following tho decision in the State of Saumshtra v. Memon lfflji Ismail Haji Vab:mamad('). The present appeals are from its judgment.

¶254

The Attorney-General who appeared for the appellants stated that this Court has reversed that decision in State of Saurashtra. v. ,~Jemon Haji l smail Haji (') and that, therefore, them appeals shoukl be allowed. In that case this Court held that the Indian Dominion merely assumed the administration of Junagadh State 'on November 9, 19.!7 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 JJfemon Haji's case {') they are not bound by the finding of this Court that the Junagadh State was annexed by the India.n Dominion on January 20, 1949.

¶255

It seems to us, however, that the question whether ,Junagadh was annexed on January 20, Hl-19, or earlier would make little difference to tlie result of the appeals before us. Nor again would the question whether the Extra- Provincial Judsdiction Act was 1tpp!icable to the orders made by the Administrator and this was a display of SO'ereignty, as contended for bv Mr. Pathak, won Id make ·my difference. ·

¶256

In along catena of case8 beginning from Cook v. Spriggs(') and going upto Asrar Ahmed v. Durgah Committee, Ajmer (') the Privy Council has stated the legal position of the subject of a displaced sovereign vis·a-vis the new sovereign. In the words I I I A. I. R. I 953 Saumhtra ISO. (21 II 960] l S. C.R. 537. ill [I399].~.C. 572. ({) A.I. R. I947P. C. I.

¶257

!)98 S"LPREME COURT REPORTS [1962]

¶258

1961 of Lord Dunedin Dunedin in Vajesinghji v. Secretary of Sta't of Saura;fil,a Strite for for lndfri ('), it iR as followR : v. .7mw1dor /l.fol11m11Jd "Whrn a INritory is acquired by a sovereign

¶259

Ahd111/n Statr for the first time that is a.n ac:t of State. Tt .1futlhofr,r ]. matt,crn not how t.l1e acquisition has been brought 1tbnut. It nrn:v be hy cnnqucst, it may he by cession following on treat', it may be by occupation of territorv hithNto unorcupied b~· a recogniRed ruler. In all cas<iR the r<>su lt is thr same. Anv inhabitant of the territor:i.-· can make goorl in th.e municipal 'ourts establishPd hy the new sovereign on]· snch ri!!hts as that sovereign ha, through his offi,.ers, recognized. Such rights as he hacl nndcr the rnlc of predecessors 1tv:ii! him nothing. )fav mon>, even if in a treatv of <'ession it i~ stipulated that certain inhabitants Rhould enjoy certain ri!!hts, that docs not give a title to thoso inhahilants to enforce those· stipulations in th<i municipal cnurts. The right to enforce reml\ins onlv with the high <'on tract ing pa.rtiC's.,.

¶260

of Lord Dunedin Dunedin in Vajesinghji v. Secretary of Strite for for lndfri ('), it iR as followR :

¶261

This statomcnt of tho law has been accepted by this Court in :vl/8. Dalmia Dndri Cement Co., Ltd. v. Commis8i'.oner ().f lncnme lax(') upon which reli· n.nc(• }111.s been placed in Strite of Sama.8hlra v . .llunon /!<1j1: lsmflil lfaji (') and recent]~' n.Jso in .Jnr1amu1th Armnrica/11 v. The Sl<1IR- nf Ori8sa (') .

¶262

Tlrns even if on tho respondent~' own how ing that the ,Tunagadh tcnitor' must be rlc<'me•l to h1w(' been annexed hv the Indian Driminion ln· 1t'suming administration over it. and thcr"upo;1 its n·•idcnts been.me cit.izens of India, thev rnuld asst•rt and <•stablish in the municipal courts of the new sov .. reign onl:-· snch right• as were recog· nizerl hv the Indian Vominion. The mspondents clnim t.c; bn grantees from the Ruler of .Junagadh but tlwir grants 1tvail them nothing in the courts of the new sov.,reign unless they were recognized hy tlrnt so\·ereign. - The bnrrlcn of showing that the.v w!'re so recognized lay on the rcspondP-nt,. (I! (I 9211L.R.51 I. A. 3i7. (2\ [1959] S. C.R. 7J9. ~~I ,:CJ60;: S. C.R. Yl7. !_•l Ll962~ IS. C.R. 205.

¶263

3 S.U.R. SUPREME COURT REPORTS 999

¶264

A perusal of the orders passed by the administrator would cl~arly 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 and 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. Hecognition 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 the choice to do one or the other had already vested in the Indi»n Dominion at the moment it occupied Junagadh territorj . • The right to retain possession was also de· pendent upon recognition by the Dominion of India and by dispossessil;g the respondents the former exl)rcised its choice and refused to recognise their.rights. On the principle accepted by this Court in the decisions alrcadv referred to, the respondents. were disentitled · from obtaining any redress from a court in the Indian Dominion, and .after the coming 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.

¶265

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 grantees of rights ngainst the Ruler. By ~ontinuing this law the Dominion of India, according to him, must be deemed to have recognized the respondents' rights under the grants. .l<'or enabling us to consider the point it was necessary for the respondents to plaCD before us the Order of the Dominion of India under

¶266

1961

¶267

Stak of Saurashtra ••

¶268

Jamad4r Al ohamai Abdulla· ··

Mudholkar J. ·

I
I

. '

• •

. . . , ... ... ..,._.,..,,,-·-" -z _ ' 1000 , SUPREME COURT REPORTS' ,lHl62] . . ,; ' ' i».: ; . ' ' .• ;·1 : ·• ' i ' • • • ·. ·-. ' ' ' ·i . ' • : JSU a. 4 of.the Extra Provincial Jurisdiction Act, 19.17 s 1.,, •f s..,.,h• . which alone empow"ered it to prescribe the laws wlid1 •· . would prevail in territories otherthan the pro vine. es Jli11U4dw.J.l11'1.amatl ..l~J•ll• ... o f .t11c t. Indian Dominion, over which · it nad • assume d BOYereignty or administrative control. .. Similarly they h!ld to pla the Alienatio.n, Settlement Act .of Junagadh before us • .In the absence .of this matenal we:pannot consider t):ie argument at all. ·. , ; .. : ·

¶274

·,, l\Ir; Pathak, 'however, contended· .. that. if sovereignty \Vas assumed •on November 9,' 19,17; the 'residents of J U:nagadh became· th"' citizens •of : the 'Indian" Dominion ·and ··were,.· therefore; entitled to the protection ·or·s; 299( 1) ·of Constitution Act, .1935. This provision".runs thus:· .. "''. ,. · : ·., "'·'·" .·· · · . ".·•.'No· person·· shall' be 'depiied·>of his - property - • ' Save ! - ' -by \ ·, authbrity _ ~ '· . _,; < • Of ; } l&w'.• - _• I-':· L · ' ; ; · ; · t .. Whats. 299(1) protects are the rights· of a . ;Pi:son. . to proprty wich he .. h.d when 's: 299(1) came mto force or applied to bun .. ·It doe8 not edd .fo' any, pro'perty right of' any 1ierson' tllinigh it c<?ritainifari admonition'to' tho State again3t'depr1v· filg aiiyjieriio'n.ofhiii ·property .,by mere .executive :a:tiori .. ,. Fo ascerfah1g :whetJ1er; ~~e. pro".~i?n, has been violated we· must first examme the exIBtence 'arid the' i:iatUre 'of tlie rights p.osscssed by . the." respondents on November 9, 1947, that is;. at' the 'moment of assumption of ldriiilliStraticin . by the 'Dominion of', India'. ·over .Junagadh territory (assuming. of course that'this amounted 'to assumption· cif sovereignty over. Junagadh): 'Their. rights were as· grantees from the former Ruler and although it may be thataccording to the pririciples of international law their·. rights as grantees ought not to be affected, no miuiicipal court' has the right to 'enforce the obligation of the new sovereign to · ·respect them. For, as:j10inted oU:t by Venkatarama ·Iyer'J., 'who 'delivered.the·juilgment of this Court . 'in Dalmia Dadri Cement Co:, Ltd. v. 'Commissioner . <t·aflncmne-tax('): ·· · : ' ' •

¶275

..

¶276

-·^,

¶277

(l) [1959] S.C.R. 729, 741 •.

¶278

3 s.c.R. SUPREME COURT REPORTS 1001

¶279

"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 su~h rights as are granted or recognised by hIm^{. "} .

¶280

19111

¶281

State o/Saurash!r• v' Jantadar Moh4m4d Ab dull• Mudholkttr J.

¶282

Ono 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(') in which they have observed: ·

¶283

"The relatiOn in which they stood t(I thei.r native sovreign before this cession, and the legal fights 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 a against their new sovereign, were those, ani:l only those, which that new sovereign by agreement express or implied, ·or by legislation, chose to confer upon them."

¶284

Thus, befoe 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. '!'hey 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 establiBh this fact, the11 i 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 arleady stated s. 299(1) did not enlarge anyone's right to proper1J -I but only protected the one which a person alre:xi.Y had. Any right to property which in its Vl'ry

¶285

i

¶286

(I) (1915) L: R: {2 I.A. 229.

¶287

1002 SVl'HEME COURT REPORTS [1962)

¶288

f

¶289

nature is not legally rnforceable was clearly incap-is not legally rnforceable was clearly incapable of being protcct<:<l being protcct<:<l protcct<:<l by that section. that section. section.

¶290

1961 nature is not legally rnforceable was clearly incap-is not legally rnforceable was clearly incap- 614te of Sgt.rashtra able of being protcct<:<l being protcct<:<l protcct<:<l by that section. that section. section. v. Upon tlw ,·iew taken in Memon Hoji'~ w.se by ]ama.iar Jfoh(Jfntui Abdul ta this Court as to the date of annexation it. held that the resumption of grants by t.hc administrator were acts of statr. 'l1wt must be so because if soverrignty bad not been assumed bv the Indian Dominion over the Junaga<lh territry at the time of the diHposseMion of the repondents consequent on tho non-rccognizition of their grnnts its act.a were thoao of n sovereign state against aliens within alien territory and were, therefor<', acts of state. A municipal court of tho sovereign which commits such acti1 of state has no right to question such acts or to give any relief to the persons who cc.mplain of them.

¶291

'J'hus, upon either view the respondents were not entitled to the rrliefs daimcd by them in our courts. As l\fr. Pathak does not contend that tho Dominion of lndia could be said to have as"umed sovereignty over Junagadh State earlier than November 9, 194i, or later than January 2(', 1949 his plea that we should refer to the Gove;nmcnt of India the question as to the date on which sovereignty was assumed over it does not arise for consideration.

¶292

\ '

¶293

' \

¶294

The decisions of the High Court arc not in accordance with the rule laid down by the Privy Council and acccpt<:d by t hie Court and are err oncous. We, therefore, agrrc that they should be set a~idc and tlw suits dismiEsed 'I\ ith coEts throught. Smee the appeals were argued tog('thcr tl1cre will only be one hearing fee.

¶295

Appeal.~ allowed.

¶296

State of Saurashtra v. Jamadar Mohamad Abdulla and Ors.

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State of Saurashtra v. Jamadar Mohamad Abdulla and Ors.

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