Appeals Nos 182 186 of 1963
Appeals by special leave from the judgment and order dated January 1961 of the Gujarat High Court in Second Appeals Nos 105 106 107 112 and 193 of 1960
C K Daphtary Attorney General R Ganapathy Iyer R K P Shankardass and R H Dhebar for the appellant in all the appeals
Purshottam Trikamdas B Parthasarathy J B Dadachanji O C Mathur and Ravinder Narain for the resdondents in all the appeals
January 30 1964
Hidayatullah J Shah J and Mudholkar J delivered separate Judgments allowing the appeal
Raghubar Dayal J agreed with the order proposed by Hidayatullah J The dissenting opinion of Sinha CJ and Rajagopala Ayyangar J was delivered by Ayyangar J Subba Rao J delivered a separate dissenting opinion
AYYANGAR J
In this batch of five analogous appeals by special leave the main question for determination is whether the rights which were in controversy between the 472 parties in the courts below could be enforced by the Munici pal courts or in other words whether or not Act of State pleaded by the State of Gujarat is an effective answer to the claims made by the respective respondents to the rights over forests claimed by them in the suits giving rise to these appeals
Vora Fiddali Badruddin Mithibarwala is the respondent in Civil Appeals Nos 182 and 184 of 1963
Vora Hakimuddin Tayabali Amthaniwala is the respondent in Civil Appeal No 183 of 1963
Mehta Kantilal Chandulal is the respondent in Civil Appeal No 185 of 1963 and Pathan Abbaskhan Ahmedkhan is the respondent in Civil Appeal No 186 of 1963
In all these Appeals the State of Gujarat is the appellant
The course these litigations have taken in the courts below may briefly be stated as follows The respondent in Civil Appeal No 182 of 1963 is the assignee of the rights of one Vora Hatimbhai Badruddin and was brought on a record as plaintiff during the pendency of the suit in the trial court namely the court of the Civil Judge Senior Division at Godhra being Civil Suit No 115 of 1950 for an injunction and ancillary reliefs to restrain the appellant and its officers from interfering with the plaintiff s alleged rights to cut and carry away timber etc from the Gotimada jungle rasing his rights under a contract dated August 21 1948 for a period of three years on payment of a consideration of Rs 9501 to the Jagirdar of the village Thakore Sardar Singh Gajesingh
Civil Suit No 134 of 1950 giving rise to Civil Appeal No 184 of 1963 was also instituted by the same plaintiff who claimed by virtue of an assignment of the rights under a similar contract in respect of another forest in village Nanirath for a period of four years the consideration being the cash payment of Rs 9501
Civil Suit No 106 of 1951 giving rise to Civil Appeal No 183 of 1963
was instituted by Vora Hakimuddin Tayyabali Amthaniwalla
His claim was based on an agreement with the Jagirdar
dated December 7 1948 for a period of four years for a consideration of Rs 6501 in respect of the forest in village Rathda
All these three suits in which the reliefs claimed 473 were similar were tried together and disposed of by a com mon judgment delivered by the trial court on January 3 1956
All the suits were dismissed
The Court took the view that the rights of the plaintiffs such as they were could not be enforced by the courts
Civil Appeal No 185 of 1963 arises out of Suit No 80 of 1953 filed by Mehta Kantilal Chandulal
He owned the Inami villages Lalekapur and Narsingpur and alleged that he had given a contract for cutting the trees in his villages for a consideration of Rs 11000 on May 29 1948 for a period of four years and that his transferee had been prevented by the State from exercising those rights
He also prayed for a similar injunction as in the other suits
This suit was also dismissed by the trial court by its judgment dated March 23 1956
The last of the suits is Suit No 90 of 1955 giving rise to Civil Appeal 186 of 1963
The plaintiff had claimed to have obtained similar right of felling trees in the forest belonging to the Jagirdar of Mayalapad on August 16 1948 for Rs 1191 for a period of three years
This suit was decreed by a judgment dated August 6 1956
The unsuccessful plaintiffs filed four appeals to the District Judge Panch Mahals at Godra being appeals Nos 17 18 19 and 48 of 1956
All the appeals were heard together and by a common judgment were dismissed on February 28 1957 the judgment of the trial court being confirmed
The 5th appeal being appeal No 74 of 1956 was filed by the State
Ile appeal was allowed by a separate judgement dated September 30 1957 dismissing the suit
The plaintiffs respondents filed five second appeals being Second Appeals Nos 105 106 107 112 and 193 of 1960 in the High Court of Gujarat
The appeals were heard together and were allowed on January 24 1961 with the result that the suits were decreed and the appellant was restrained by an injunction from interfering with the plaintiffs  enjoyment of the rights in the forests as claimed by them
As the State failed to obtain the necessary certificate of fitness from the High Court it moved this Court and obtained special leave to appeal
And that is how these appeals have come up to this Court
These appeals were first heard by a Bench of five Judges and it was directed that the matter be placed for hearing by a larger Bench as the Bench was of the opinion that the decision of this Court in Virendra Singh vs The 474 State of Uttar Pradesh1 required reconsideration
That is how these appeals have been placed before this special Bench
Before dealing with the questions that arise for deter mination in these appeals it is necessary and convenient at this stage to set out the course of events leading up to the institution of the suits aforesaid giving rise to these appeals
The several villages the forest rights in which are in dispute in these cases formed part of the State of Sant
The steps in the transition of this State under its ruler who was designated the Maharana into an integral part of the territory of the Union of India conformed to the usual pattern
With the lapse of the paramountcy of the British Government on the enactment of the Indian Independence Act the ruler achieved complete sovereignty
Soon thereafter by an instrument of accession executed by the ruler the State acceded to the Dominion of India so as to vest in the latter power in relation to 3 subjects Defence External Affairs and Communications
On March 19 1948 the ruler entered into a merger agreement with the Governor General of India by which with a view to integrate the territory with the Province of Bombay at as early a date as possible the full and exclusive authority and powers in relation to the administration of the State were ceded to the Dominion Government
The agreement was to take effect from June 10 1948
It is necessary to set out two of the Articles of this Agreement
Article 1 ran thus 1
The Maharana of Sant hereby cedes to the Dominion Government full exclusive authority jurisdiction and powers for and in relation to the governance of the State and agrees to transfer the administration of the State to the Dominion Government on the 10th day of June 1948 hereinafter referred to as the said day
And from the said day the Dominion Government will be competent to exercise the said powers 1  475 authority and jurisdiction in such manner and through such agency as it may think fit
 Under Article 3 of the agreement the ruler agreed to furnish to the Dominion Government before October 1 1948 a list of all his private properties over which he was under the terms of the agreement to retain full ownership and enjoyment
After this agreement came in force on June 10 1948 the Central Government delegated its functions to the Bombay Government by virtue of the powers vested in it by the Extra Provincial Jurisdiction Act 1947
Subsequently Shri V P Menon Secretary in the Ministry of State wrote a letter to the Maharana of Sant on October 1 1948 exhibit 194
This letter was entitled a Letter of Guarantee and was to be treated as supplementary to the Agreement of Merger dated March 19 1948
Amongst other matters
it provided by cl 7 No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned un less the order was passed or action taken after the 1st day of April 1948 and it is considered by the Government of India to be palpably unjust or unreasonable
The decision of the Government of India in their respect will be final
 In view of the forthcoming integration of lie territory of Indian States into the Dominion of India the Government of India Act 1935 was amended and section 290 A was inserted
In exercise of the powers conferred by that section the Governor General of India promulgated the States Merger Governor Provinces Order 1949 on July 27 1949 which came into force on August 1 1949
As a result of that order the integration of Indian States including the Sant State with that of the province of Bombay was completed with effect from that date namely August 1 1949
In the meantime the ruler of the Sant State passed or issued a resolution or Tharao on March 12 1948 which has given rise to the present series of litigations
Under this  instrument marked as exhibit 192 to use a neutral expres 476 sion in view of the controversy as to its nature called Tharao an order was passed by the Maharana of Sant State whose terms will be referred to later and discussed in greater detail granting forest rights to holders of certain specified tenures
The holders of such tenures in the Sant State entered into a number of agreements with the parties parting with their rights in the forest timber etc for a specified period in consideration of cash payments made by those third parties to the holders of the tenures
It is not necessary to set out in detail all those agreements it is enough to mention by way of a sample the agreement dated August 21 1948 exhibit 175 whereby the tenure holder granted as briefly adverted to earlier to Vohra Hatimbhai Badruddin Mithiborwala the right to cut and remove timber and firewood from the forest of Mouja Gothimada for a consideration of Rs 9501 for a period of three years
The written agreement contains quite a number of clauses which it is not necessary to set out for the purposes of this case
After the aforesaid grants correspondence started between the grantors and the grantees on the one hand and the State Forest Department on the other
When the District Forest Officer was informed about the transactions aforesaid
and the grantees applied for authorisation to remove timber etc the Forest Authorities ordered that no export outside would be permitted pending receipt of orders from Government
They also required an undertaking from the purchaser that he would abide by the decision and orders passed by the Government
Thereupon the grantor Thakur Sardar Singh Gaje Singh gave an undertaking to abide by the decision and orders of the Government of Bombay in respect of the Gothimada forests rights over which were conferred on me
by Santrampur State Government on March 12 1948 in their resolution No G 371 dated March 12 1948
 The Divisional Forest Officer by his order dated January 10 1949 passed an order under the provisions of r 4 of the Rules under section 41 of the Indian Forest Act authorising the grantee to remove forest produce like timber firewood and charcoal from Gothimada forest
This was followed by a memorandum by the Conservator of Forests North Western Circle of the Bombay State by which the Divisional Forest Officers were directed to conti 477 nue to issue authorisations to contractors of Jagirdars who had obtained rights over the forests in the Sant State under the Tharao of the ruler dated March 12 1948
He however pointed out that until the question of the rights of the grantees over private forests was finally settled by the Government an undertaking should be taken from the persons concerned that they would abide by the orders passed by the Government in respect of their rights
This as stated al ready had been obtained by the District Officers even earlier
On July 8 1949 the Government of Bombay passed an order in which they stated Government considers that the order passed by the ruler of the Sant State under his No 371 dated March 12 1948 transferring forest rights to all the Jagirdars of the Jagir villages are mala fide and that they should be cancelled 
This decision or order was however not communicated to the jagirdars or their contractors though effect was given to it by the Forest Authorities by stopping all further fellings
Some time thereafter the respondents issued notices under section 80 of the Civil Procedure Code to the Government of Bombay seeking respect for their rights under the Tharao of March 1948 and after waiting for two months filed the suits out of which these appeals arise
By the written statements which they filed the Government of Bombay raised principally the def ence that the act of the ruler in passing the Tharao was not binding on them as the successor State and that they in exercise of their sovereign authority had cancelled the concession as unreasonable and mala fide by their order dated July 8 1949 already referred
It might be mentioned that after the suit was instituted and while it was pending before the trial judge a formal resolution of the Government of Bombay was passed and published on the 6th of February 1953 in which they set out the legal position that the rights acquired under the Tharao were not enforceable as against the Bombay Government as the successor State unless those rights were recognised and that as on the other hand the same had been specifically repudiated the Jagirdars and their contractors had no title which they could enforce against the Government
We have already narrated the course of the litigations and this would be the convenient stage at which to indicate 478 the grounds on which the learned Judges of the High Court have upheld the claims of the plaintiffs who are the respondents in the several appeals before us
There were two principle points that were urged on their behalf before the learned Judges
The first was that the Tharao of March 12 1948 was in truth and substance a law  a legislative act of the ruler of Sant which was continued under article 372 of the Constitution and that in consequence the rights obtained by the grantees thereunder could not be abrogated or set at naught by a mere executive order which the Government resolution of February 1953 undoubtedly was
This submission was rejected by the Court holding that the Tharao was merely a grant originating in an administrative or executive order of the ruler
The other contention was that through the agreement of merger by which the integra tion of the Sant State with the Dominion of India brought about an act of state and that accordingly no rights based on the agreement of merger dated March 19 1948 or in the supplementary letter dated October 1 1948 could be asserted or enforced in the Municipal Courts of the successor State unless the same were recognised by Government still cl 7 of the letter of Shri V P Menon dated October 1 1948 to the ruler could be referred to and relied on for the purpose of drawing an inference that the right of the Government to repudiate the grant by the ruler had been waived
This submission was accepted and it was on this reasoning that the learned Judges have decreed the suits of the several plaintiffs
It is the correctness of these two conclusions that are being challenged before us the first by the respondente and the other by the appellant State
Arising from the submissions of the learned Attorney General the points that require examination are as to the legal effect of the acces sion integration and merger of the Sant State in the Indian Union on the rights that the plaintiffs acquired under the Tharao dated March 12 1948 and secondly whether the provisions in section 299 of the Government of India Act 1935 or those contained in Part III of the Constitution affect the nature or enforceability of those rights Me questions to be considered under the first head in particular are a Whether the rights acquired under the previous 479 ruler are enforceable against the Governments of the Union and the States without those rights being recognised by the appropriate Government
b What is the effect of the letter of the Government of India dated October 1 1948 on the right of the Government to refuse to recognise a grant under the Tharao
c What is the effect of the Government s communication to the Chief Conservator of Forests dated July 8 1949 and of the resolution of Government of February 1953
Under the second head besides the constitutional guarantees protecting rights to property contained in the Government of India Act and the Constitution the effect in the first instance of section 5 of the Government of India Act 1935 of the acceding States becoming part of the Dominion of India and later of the manner in which the Constitution of India was framed
The other question that requires consideration is whether the Tharao dated March 12 1948 is merely a grant originat ing in an executive order or is it a law which is continued in operation by article 372 of the Constitution
In Virendra Singh s case1 this Court held that even on the basis that the merger of the Indian States in the Indian Union and the treaties by which that was accomplished were acts of State still by reason of the manner in which the Constitution of India was brought into being and because of the provisions which it contained in particular those guaranteeing property rights of its citizens the acquired rights of the inhabitants of the Indian States quoad their rulers could not after the Constitution be annulled or abrogated by arbitrary executive action on the part of the Union or State Governments
The learned Judges thus assumed as correct the rule of Public International Law relevant to that context expounded by the Privy Council in a number of decisions rendered on appeals from the Indian 1 480 High Courts
For this reason we consider that it would be convenient for a proper appreciation of the points now in controversy to premise the discussion by briefly setting out the principles underlying these decisions of the Privy Coun cil reserving their detailed examination to a later stage
These principles have been tersely summarised and the ratio of the rule explained by Lord Dunedin in Vajesinghji vs Secretary of State for India etc1 in a passage which has been often quoted in later cases on the subject and we consider that it would be sufficient if we extract it
The learned Lord said When a territory is acquired by a sovereign state for the first time that is an act of State
It matters not how the acquisition has been brought about
It may be by conquest it may be by cession following on treaty it may be by occupation of territory hitherto unoccupied by a recognised ruler
In all cases the result is the same
Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has through his officers recognized
Such rights as he had under the rule of prede cessors avail him nothing
Nay more even if in a treaty of cession it is stipulated that certain inhabitants could enjoy certain rights that does not give a title to those inhabitants to enforce these stipulations in the municipal courts
The right to enforce remains only with the high contracting parties italics ours
This has been accepted as expressing the constitutional law of the United Kingdom and the same has beenapplied tot merely to claims or titles which were sought to be enforced against the Indian Government but also in other parts of the British Empire See Cook vs Spring2
This was the law laid down and given effect to by the Privy Council until India attained independence
151 IA 357
2 481 Virendra Singh vs State of Uttar Pradesh 1 however struck a different note particularly as regards the matters covered by the sentences we have given in italics in Lord Dunedin s exposition of the law and to this decision we shall immediately turn
The facts of the case were briefly these On January 5 1948 the ruler of Sarila granted the village Rigwara to the petitioners who moved this Court while on the 28th of January 1948 the ruler of Charkari granted certain other villages to the same petitioners
As the rights of the petitioners were sought to be nullified by an order of the Government of Uttar Pradesh they filed a petition under article 32 of the Constitution praying that the order of the Government of Uttar Pradesh revoking the grants in their favour be declared void and for consequential reliefs
A few more facts in regard to the constitutional history of these two States is necessary to be stated to appreciate some of the matters which figured in the decision in Virendra Singh s case2
After the date of the grant in favour of the petitioners 35 States in Bundelkhand and Bhagalkhand including Charkari and Sarila agreed to unite themselves into a State to be called the United State of Vindhya Pradesh
While this Union was in existence certain officials of this Government interfered with the rights of the petitioners but the Government of the United State of Vindhya Pradesh issued orders directing the officers to abstain from such interference
Subsequently the rulers of the 35 States dissolved their Union and ceded to the Gov ernment of Indian Dominion all their powers and jurisdiction and the Dominion constituted the area into a Chief Commissioner s province for the purpose of administration but the four villages granted to the petitioners were how ever detached from the centrally administered State and absorbed into Uttar Pradesh
On August 29 1952 the Governor of Uttar Pradesh revoked the grants made in favour of the petitioners
The question before the Court was whether this order of revocation of the grants made by the former rulers was justiciable in courts and if justiciable valid
1  SC 31 482 The judgment of the Court was delivered by Bose J
The learned Judge after stating the question arising for decision as being whether the Union Government had the right and the power to revoke these grants as an act of State pointed out that jurists had held divergent views on this matter
At one extreme he said was the view expressed by the Privy Council in a series of cases to which reference was made and as summarising their effect the passage from the judgment of Lord Dunedin we have extracted already was cited
At the other extreme was the view of Marshall CJ in United States vs Percheman1 from which he quoted the following It may not be unworthy of remark that it is very unusual even in case of conquest for the conqueror to do more than to displace the sovereign and assume dominion over the country
The modern usage of nations which has become law would be violated that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged if private property should be generally confiscated and private rights annulled
The people change their allegiance their relation to their ancient sovereign is dissolved by their relations to each other and their rights of property remain undisturbed
If this be the modem rule even in cases of conquest who can doubt its application to the case of an amicable cession of territory
A cession of territory is never understood to be a cession of the property belonging to the inhabitants
The King cedes that only which belonged to him
Lands he had previously granted were not his to cede
Neither party could consider itself as attempting a wrong to individuals condemned by the practice of the whole civilised world
The cession of a territory by its name from one sovereign to another conveying the compound idea of surrendering at the same time the lands and the people who inhabit them would be 1  at pp 86 87
483 necessarily understood to pass the sovereignty only and not to interfere with private property After referring to a few other decisions of the English Courts the learned Judge proceeded We do not intend to discuss any of this because in our opinion none of these decisions has any bearing on the problem which confronts us namely the impact of the Constitution on the peoples and territories which joined the Indian Union and brought the Constitution into being 
Now it is undoubted that the accessions and the acceptance of them by the Dominion of India were acts of State into whose competency no municipal court could enquire nor any Court in India after the Constitution accept jurisdiction to settle any dispute arising out of them because of Article 363 and the proviso to Article 131 all they can do is to register the fact of accession 
But what then Whether the Privy Council view is correct or that put forward by Chief Justice Marshall in its broadest outlines is more proper all authorities are agreed that it is within the competence of the new sovereign to accord recognition to existing rights in the conquered or ceded territories and by legislation or otherwise to apply its own laws to them and these laws can and indeed when the occasion arises must be examined and interpreted by the municipal courts of the absorbing State
 The learned Judge then went on to point out that the title of the petitioners to the disputed villages had not been repudiated upto January 26 1950
Because of the non exercise of the right to repudiate till that date the petitioners were admittedly in de facto possession of the villages and the learned Judge adverted to the circumstance that those possessory rights could have been asserted and enforced against all persons except the rulers who granted the lands and 484 except possibly the succeeding State
Considering it unnecessary to pronounce whether these rights could be enforced against the rulers as well as the Dominion of India as the succeeding sovereign he observed that as these rights were factually in existence at the date of the Constitution and as by that date the subjects of the rulers of Charkari and Sarila had become the subjects of the Union there could be no question of the Union Government claiming to exercise an  act of State operating to deprive the petitioners of their property following in this respect the well known decisions of Walker vs Baird1 and Johnstone vs Pedlar2
He further explained that the Constitution by reason of the authority derived from and conferred by the peoples of this land blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold
 The passage extracted and indeed the entire judgment is replete with a description of the poetry of India s constitutional evolution as an unified State during the most momentous period of her history from the Declaration of Independence on August 15 1947 to the coming into force of the Constitution on January 26 1950 and of the saga of the march of the subjects of the former Indian princes from being subjects of an autocratic ruler to a modern democatic set up in which they are full fledged citizens of India in language at once picturesque and of authentic eloquence
We should not be understood to minimise in any manner the political significance of the events described or underrate their importance content or meaning if we differ somewhat from certain of the conclusions drawn on matters which are relevant for the purposes of the points arising for decision in these appeals
Pausing here we ought to point out that several decisions of this Court subsequent to Virendra Singh s case4 of which it is sufficient to refer to Mls
Dalmia Dadri Cement Co Ltd vs The Commissioner of Income Tax4 Jagan 1 2  3  4 1959 SCR 729
485 nath Agrawala vs State of Orissa1 Promod Chandra Deb vs The State of orissa2 and State of Saurashtra vs Jamadar Mohamad Abdulla3 have proceeded on the acceptance of the constitutional doctrine enunciated by the Privy Council
We shall be referring to them later but before doing so it is necessary to set out certain matters which are not in controversy
The native Indian rulers were undoubtedly sovereign in the territories under their jurisdiction and they parted with their sovereignty in stages firstly on accession then on integration and finally by what has been felicitously termed in the White Paper on Indian States as unionization  ie by State territory becoming part and parcel of the territory of the Union of India which meant the complete extinction of their separate existence and individual sovereignty and of their States as separate political units
Proceeding next to deal with Virendra Singh s case4 a close analysis of the reasoning underlying the decision discloses the following as its ratio 1 There were two schools of thought as regards the effect of a change in sovereignty in respect of the enforceability of the rights of private individuals against the succeeding sovereign
At one end of the scale were the decisions of the Privy Council which proceeded on the acceptance of the principle that rights enforceable against the previous ruler or sovereign ceased to be enforceable by the Municipal Courts of the succeeding sovereign unless and until a competent authority or organ of the succeeding sovereign recognised those rights
The passage in the judgment of Lord Dunedin in Vajesingjis case5 was typical of this view
On the other hand there was another and if one might say so an opposite view expressed in the decisions of the Supreme Court of the United States of which the classic exposition by 1  2 1962 1 Supp
SCR 405
3 4 1955 1 SCR 415
5 51 I A 357
486 Chief Justice Marshall in Percheman s case1 was typical that the proper and just rule of Public International Law which should be given effect to by municipal courts was that the changes in sovereignty over a territory did not or should not have any effect on the rights of the private individuals even as regards the enforceability of their claims as against the State and that it was the obligation certainly moral if not also legal of the succeeding sovereign to give effect to such rights previously acquired by gants from the previous sovereign
After pointing out these divergent views the learned Judges in Virendra Singh s case2 considered it unnecessary to express their opinion as regards the correctness or acceptability of either view but proceeded however on the assumption that the constitutional doctrine as enunciated by the Privy Council appealed to the facts of the case before them
2 Starting from the position that the petitioners obtained a good title to the villages granted to them by the rulers of Sarila and Charkari they proceeded to analyse the nature of the title which they had under the grants
As a result of this examination they arrived at the conclusion that even on the basis of the decisions of the Privy Council their title was only voidable at the option of the succeeding sovereign
They recognised that the changes that took place in the constitutional position of the State of Charkari and Sarila undoubtedly brought in a change in the sovereignty of that territory and hold that the changes thus brought about including the treaties which marked the transition were Acts of State and that the interpretation or enforcement of rights under the treaties was outside the jurisdiction of municipal courts
The petitioners they held could not therefore obtain any advantage by reliance on any provision in the 1  at pp
86 87
2  487 treaty safeguarding their rights for apart from the treaties being Acts of State they were engagements between two sovereign States and enforceable between them at the instance of the high contracting parties through diplomatic channels and not by recourse to municipal courts and the petitioners not even being parties to the treaties could not obviously claim any right to enforce them
In this connection the terms of article 363 of the Constitution which contained an express embargo on the enforcement by the municipal courts of the provisions of these treaties were adverted to as reinforcing this position
3 If guarantees contained in the treaties be put aside the next question to be considered was whether the Governments which emerged as a result of the Constitution were competent to avoid or repudiate the titles obtained by the petitioners under the previous ruler by an Act of State
They answered this question in the negative for four reasons i The constitution emerged as a result of the conjoint action of the subjects of the former Indian rulers and the people of former British India
When as a result of this joint effort the Constitution was brought into existence there was no question of conquest or cession so as to attract those doctrines of Public International Law relating to the effects of rights arising out of changes in sovereignty brought about by conquest cession treaty etc
ii The subjects of the former Indian rulers became when the Constitution emerged Indian citizens and as against its own subjects or citizens there was no question of any Act of State by any Indian Government
iii Even if the previous rulers had vested in them autocratic powers to revoke grants 488 made by them in favour of their subjects the Government of the Union and the States which were functioning under a Constitution which contained fundamental rights guaranteeing protection of property rights against arbitrary executive action could not claim to exercise those arbitrary powers which they might have inherited from the previous rulers and iv The petitioners had at the commencement of the Constitution a possessory title to the property granted to them and had also a right at that date to continue in possession unless and until their title which was voidable was extinguished by repudiation by the Governments which were established by the Constitution
These proprietary rights were however protected by articles 19 1 g and 31 1 of the Constitution and so the petitioners could not be deprived of their proprietary rights except by competent legislation enacted after the commencement of the Constitution
We shall now proceed to examine the above reasoning of the learned Judges
Reserving for later consideration the arguments addressed to us regarding the divergent views of judges jurists and writers on Public International Law on the topic of the enforceability of the rights derived from previous sovereigns against a succeeding sovereign on a change of sovereignty we shall proceed on the same lines as in Virendra Singh s case1 viz on the acceptance of the rule as enunciated in the decisions of the Privy Council
It is necessary first to understand the precise scope and implications of these decisions and of the law explained in them
The earliest of these usually referred to in this connection is Secretary of State for India vs Kamachee Boye Sahiba2 which was concerned with the justiciability in municipal courts of a seizure by the East India Company of not merely the Raj but even of the private properties of the 1  2 1859 7 MOO
IA 489 Raja of Tanjore
The Privy Council held in a judgment delivered by Lord Kingston that as the seizure had been made by the Company as a sovereign power the municipal courts had no means of forming or the right of expressing if they had formed any opinion of the propriety or the justice of that act
 That is however a different aspect of what is termed Act of State  from what is strictly relevant to the facts before us
That decision was referred to with approval by the Privy Council in a case from India Secretary of State for India in Council vs Bai Rajbai1 where the point in controversy was somewhat akin to those in the present appeals
The question at issue before the Privy Council was whether the respondent was entitled to the continued ownership and possession of a village called Charodi in the province of Gujarat
The respondent s title to the village was ultimately based on rights claimed to have been granted by the Gaekwar of Baroda
The territory in which the village was situated was ceded by the Gaekwar to the British Government in 1817
The claim of the respondent to full ownership of the property was not recognised by the Indian Government after the cession and Government held that the respondent had no more than a leasehold interest
The question before the Privy Council was whether the respondent was entitled to assert in municipal courts rights more extensive than what had been recognised by the authorities
Dealing with this Lord Atkinson delivering the judgment of the Board stated 
It is essential to consider what was the precise relation in which the kasbatis respondents stood to the Bombay Government the moment the cession of their territory took effect and what were the legal rights enforceable in the tribunals of their new sovereign of which they were thereafter possessed
The relation in which they stood to their native sovereigns before this cession and the legal rights they enjoyed under them are save in one respect entirely irrelevant matters
They could not carry in under the new regime the legal rights 1 42 IA 229
490 if any which they might have enjoyed under the old
The only legal enforceable rights they could have as against their new sovereign were those and only those which that new sovereign by agreement expressed or implied or by legislation chose to confer upon them
Of course this implied agreement might be proved by circumstantial evidence such as the mode of dealing with them which the new Sovereign adopted his recognition of their old rights and express or implied election to respect them and be bound by them and it is only for the purpose of determining whether and to what extent the new sovereign has recognised these antecession rights of the kasbatis and has elected or agreed to be bound by them that the consideration of the existence nature or extent of these rights becomes a relevant subject for enquiry in this case
This principle is wellestablished though it scarcely seems to have been kept steadily in view in the lower courts in the present case
It is only necessary to refer to two authorities on the point namely the case of Secretary of State for India vs Kamachee Boye Sahiba 1859 7Moo
IA 476 decided in the year 1859 and Cook vs Sprigg decided in the year 1899
 This passage would appear to indicate that the effect of the change of sovereignty is not to treat rights previously enforceable against the former ruler as only voidable at the instance of the succeeding sovereign but to effect a com plete destruction of those rights until by recognition or by legislation of the succeeding sovereign the same is obtained by the previous grantee
A question very similar to Bai Rajbais case1 arose in Vajesingji s case2 where the statement of the law as explained by Lord Atkinson was approved and Lord Dunedin as already stated conveyed the same idea when he said Any inhabitant of the territory can make good in the municipal Courts established by the new 1 42 1A 229
2 51 IA 357
491 sovereign only such rights as that sovereign has through his officers recognised
Such rights as he had under the rule of predecessors avail him nothing
 It need hardly be stated that this passage just like that extracted from Lord Atkinson is wholly inconsistent with the theory that an inhabitant of a territory in which there has been a change of sovereignty carries with him a voidable title to property which inheres in him until by some positive act of the new sovereign he is divested of that right
Coming nearer to the present times we have the decision in Secretary of State vs Rustam Khan1 which related to the enforceability of the right to certain land claimed to have been acquired under the Khan of Kalat against the British Government after the cession by the Khan of the territory which included the villages in which the lands of the respondent were situate
For the appellant the plea raised was Act of State  and the decisions of the Board in Bai Rajbai s case2 and Vijayesingji s case 3 were relied on
Among the submissions made to the Board on behalf of the respondent we would refer to two as of some relevance to the points under consideration in these appeals
The two contentions were 1 that a mere change in sovereignty was not to be presumed to disturb the rights of private owners and the terms of the cession by which full sovereignty was transferred were to be construed as passing only public property relying for this proposition on Amodu Tijani vs Secretary Southern Nigeria4 2 that the effect of a change in sovereignty in regard to title to land which had been perfected under a previous sovereign was different from that in regard to personal obligations
For the latter proposition support was sought on the observations of Lord Alverstone CJ in West Rand Central Gold Mining Co vs Rex5 reading It must not be forgotten that the obligation of conquering States with regard to private pro 1 68 IA 109
2 42 IA 229
3 4 5
492 perty and private individuals particularly land to which title had already been perfected before the conqueror annexation are altogether different from the obligations which arise in respect of personal rights by contract
 We have referred to these arguments and particularly to the citation of these two decisions because they are usually referred to in connection with a suggestion that even according to the British view rights of private individuals to land and interests in relation to land continue to be enforceable unaffected by changes in sovereignty
Lord Atkinson who delivered the judgment of the Board pointed out that the cession of the territory by the Khan constituted a complete transfer of all sovereignty to the British Government stated On the legal position that arises in such circumstances there is a wealth of weighty authority After referring in detail to the earlier decisions of the Board in Kamachee Boye1 Cook vs Sprigg2 Bai Rai Bai2 and Vijayesingji 4 applied them to the facts and held that as the title which was asserted had not been recognised by the British Government allowed the appeal and directed the dismissal of the suit of the respondents
If the Privy Council decisions lay down the law correctly and we are applying that law the fact that it is land or immovable property which is claimed or as regards which the right is asserted makes no difference for the application of the principle
The last decision to be referred to in this context is that reported
as Asrar Ahmed vs Durgah Committee Ajmer5 where Lord Simonds said From this it follows that the rights which the inhabitants of that State enjoyed against its former rulers availed them nothing against the British Government and could not be asserted in the Courts established by that Government 1 1859 7 Moo
I A 47613 Moo
PC 22
2 3 42 IA 229
4 51 IA 357
5 AIR 1947 P C I 493 except so far as they had been recognised by the new sovereign power
Recognition may be by legislation or by agreement express or im plied
This well established rule of law for which reference may be made to 42 IA 229 at p 237 and 51 IA 357 at p 360 appears to their Lordships to be peculiarly applicable to an office to which material benefits apper tain and which so far the records show had consistently been regarded as within the dis position of the sovereign power
 As we have already pointed out these decisions of the Privy Council have been referred to and followed by this Court in Dalmia Dadri Cement Co1 and the other decisions already referred
The statement of the law therefore in Virendra s case2 that if the doctrine of Public International Law enunciated by the Privy Council were applied the petitioners in that case had a voidable title which inhered in them even after the change of sovereignty is not seen to be correct
If the view expressed by the Privy Council was to be adopted there is no escape from the conclusion that the grantees under the previous rulers did not carry with them on a change of sovereignty as subjects of the succeeding sovereign any inchoate rights as against the new sovereign but their rights in so far as enforceability against the new sovereign was concerned sprang into exist ence only on recognition express or implied by the duly constituted competent authorities of the succeeding sove reign apart from legislation
Pausing here we might observe that this error on the part of the learned Judges in appreciating the ratio of the judgments of the Privy Council necessarily led them to assume that the petitioners before them had certain rights which they continued to enjoy even after the change of sovereignty and which were protected by the guarantees con tained in articles 19 and 31 of the Constitution
The next step in the reasoning of the learned Judgeswas based on the fact that the Constitution was framed not merely by the people inhabiting the Provin 1 1959 SCR 729
2  494 ces of India but as a result of their conjoint action along with the subjects of the former Indian rulers
From this the inference was drawn that those rules of Public Interna tional Law which recognised the rights of a successor State to refuse to be bound by obligations incurred by or enforce able against the predecessor State had no application to the change in sovereignty brought about when the Union of India was brought into existence
This was on the theory that for that doctrine to operate there must be a cession or transfer of territory by one ruler to another and that where the people of the entire subcontinent by their united action brought into existence a new sovereign State there was no question of transfer of territory from one sovereign to an other to afford scope for the application of the rule of Public International Law
With the greatest respect to the learned Judges we feel constrained to differ
that a new sovereign emerged on the unification of India by the merger or absorption of the Indian States with the Provinces of British India cannot be questioned and that this was by the process of the sove reignty of the rulers of the former Indian States being extinguished cannot be disputed either
We are here not concerned with whether India as an International person has undergone any change vis a vis in its relationship with other States or in the International Organisations but in a more limited and so to speak domes tic sphere
The territories under the rulers of the former Indian Princes undoubtedly passed from one sovereign to another when as a result of the unionisation  by the Government of India they became integral parts first of the Dominion of India and later of the Union of India
A transfer of territory from under one sovereign to another may be effected in a variety of ways conquest annexation by cession under a treaty after a war or without a war by revolution by emancipation of subject peoples and by territorial resettlements
These changes possess one common feature viz that one sovereign ceases to rule a territory and another takes its place
For the application of the rules which have been evolved in connection with the problems arising from such succession little turns for the purpose of British Constitutional Law on either the manner in which the change of 495 sovereignty was brought about or whether the absorption was partial or complete in the sense of a total extinction of the previous sovereignty of the absorbed State leaving no trace of survival after the merger
In passing we might mention that in fact
it was in most cases the rulers of the Indian States who ejected the merger and who on behalf of their State and their subjects participated by themselves or through their representatives in the deliberations which brought into existence the Constitution and the legal and political unity of India
If then as a result of the absorption there was a State succession its consequences have to be judged by tests or principles similar to those by which State succession is brought about by other means
We cannot therefore agree that the manner in which the Indian States ceased to exist or in which the Constitution and with it the complete political unification of the territory of India was brought about negatives the applicability of rules which govern the enforceability of rights against a succeeding sovereign on State succession
The point next to be considered is whether the fact that the subjects of the former Indian rulers became after the Constitution citizens and subjects of the Indian Union pre cludes the Indian Government from refusing recognition to titles which such persons could have enforced against their previous rulers on the well accepted principle that there can be no act of State against its own subjects
 The appli cation of this principle last mentioned of which Walker vs Baird1 and Johnstone vs Pedlar2 are classic examples is intimately bound up with the question as to the precise nature of the action taken by a succeeding State when it refuses to accord recognition to the right of a former in habitant of the territory of an earlier sovereign and enforceable against the predecessor
If the true position in law were that a positive action is necessary to be taken by the succeeding sovereign before it interferes with the pre existing rights of the subjects of the former ruler and that the action thus taken is really a continuance of the act of the State by which the territory of the former ruler became transferred to the new sovereign it is possible that the rule that there can be no act of State by 1 2  496 the Government against its own subjects might have some application
But if on the other hand the true theory were that on the extinction of the sovereignty of the previous ruler over the territory ceded or surrendered there is an extinction ipso jure of the rights enforceable against the State and that it is really a new right that springs into existence on recognition by the succeeding sovereign it would be manifest that the refusal of the succeeding sovereign to recognise preexisting rights could in no sense be an act of State
No doubt that refusal is in the exercise of sovereign power but by such exercise it neither annihilates nor affects any enforceable right which its subjects had against it
We consider therefore that if the doctrine of Public International Law expounded by the Privy Council were held applicable to the termination of the rights arising on the change of sovereignty in India as the learned Judges in Virendra Singh s case1 did the power of the Government of India as at present constituted to refuse to recognise titles originating in executive grants by former Indian rulers cannot be negatived by resort to the rule of law laid down in Walker vs Baird2 and Johnstone vs Pedlar3
The next proposition of law which underlies the decision in Virendra Singh s case1 is that the arbitrary and absolute powers which the former Indian rulers possessed to revoke grants made by them did not survive the change in sove reignty brought about by the Constitution when as a result of the setting up of a democratic polity informed by justice and the rule of law the right to exercise any arbitrary power was abandoned and was no longer available for revoking the grants made by the former rulers
If the theory of Pub lic International Law which was explained and given effect to by the decisions of the Privy Council rested on the doc trine that the powers of the succeeding sovereign to recog nise or not to recognise grants by the preceding sovereign or to repudiate them was based on the rights of the previous ruler so to revoke or repudiate the argument would have considerable force
The juristic basis of the theory underlying the Privy Council decisions is that with the extinction of the previous sovereign the rights theretofore exercisable 1  2 1892 AC 491
3  497 by the subjects of that sovereign were likewise extinguished and that without recognition which is really tantamount to a fresh grant by the new sovereign no title enforceable in the municipal courts of the succeeding sovereign came into being
If this latter be the correct juristic approach and that is what the decisions of the Privy Council lay down as we have shown by the extracts we have made of the relevant passages in Bai Rajbai s1 and in Vajeysinghji s2 case then it matters not whether the earlier grant was by an absolute ruler who could revoke his grant or by a ruler of a different type who could not or even if he could had re nounced his rights to revoke by unilateral executive action
In either case where the question at issue is whether the right could be enforced against the succeeding sovereign in its courts nothing turns on the power of the preceding ruler to derogate from his grant for it is not by virtue of any power derived from the previous sovereign that the succeeding sovereign claims the right not to recognise the earlier rights or grants but as an incident of its own sovereignty and sovereign power
In the circumstances the existence of the arbitrary powers of the native Indian rulers and its absence in the Governments under the Constitution is not relevant nor the fact that these were not inherited by and did not devolve on the Governments of the Union and the States functioning under the Constitution
The last of the steps in the reasoning underlying Virendra Singh s case1 proceeds on the basis that the petitioners had brought with them from their previous rulers into the Indian Union certain rights in the property granted to them enforceable against the Government in regard to which they were entitled to the protection of articles 19 and 31
This question has to be approached from two points of view arising from the two stages through which the territory of the former Indian rulers became part of the territory of India under the Constitution
The first stage is concerned with the effect of the changes which took place from the accession of the States to the Dominion of India followed by the merger agreement executed by the rulers all of which were governed by the provisions of the Government of India 1 42 IA 229
2 51 IA 357 3  134 159 SC 32 as it stood from time to time and the second stage with the complete unionization  of these territories so as to form part of an unified polity the Union of India
So far as the first stage is concerned there was certainly a transfer of sovereignty over the territory of the former Indian rulers to the Government of India for the purposes of the exercise by the latter of sovereignty with plenary powers of administration
Sections 290A and 290B were introduced into the Government of India Act for enabling the administration by the Dominion Government of the territories of the acceding States which under section 5 of that Act became part of the Dominion of India
At this stage the powers of the Government of India for the administration of the acceding territories were exercised under the Extra Provincial Jurisdiction Act Act XLVII of 1947 which used the phraseology areas outside Provinces which were acquired by the Central Government by treaty agreement grant usage sufferance or other lawful means 
It may be mentioned that under orders made by virtue of powers conferred by the Extra Provincial Jurisdiction Act all laws theretofore in force prevailing in the territories which were being administered under that Act were continued in force
Later by an order issued under section 290A of the Government of India Act known as the States Merger Order 1949 laws in operation in the merged States were continued until repealed or modified
If in that situation the law as to acquired rights enforceable against the successor State as enunciated by the Privy Council applied all grants which rested solely on executive action could acquire vitality for being enforced against the administration by the Government of India or its delegates only if those rights were recognised for there was here a true case of State suc cession transfer of territory by one sovereign to another and without the complication arising from the fact that the rulers or the people of the various Indian States participating in the making of the Constitution which the people of India gave to themselves
We have already ex plained that if the view of the Privy Council as to the effect of a change in sovereignty were accepted it un mistakably points to their being no survival of any vestige of rights on the extinction of the sovereignty of the previous 499 ruler and to the emergence of any right only by the action express or implied of the new sovereign
If this principle were applied there would have been no rights of property vesting in the grantee which he could assert against the new ruler
No doubt if the grantees were in possession they would have a right to retain their possession against private trespassers but that is not the question with which we are here concerned for what is now under consideration is the capacity of these grantees to assert rights as against the Government which is totally different from their right to possession as to the rest of the world
Digressing a little it may be pointed out that section 299 of the Government of India Act 1935 as well as articles 19 and 31 which are referred to in this connection deal exclusively with the inference with proprietary rights by the State and have nothing to do with rights inter se between the grantee and his fellow subjects or citizens
If therefore we are correct in our understanding of the decisions of the Privy Council that on a change of sover reignty no scintilla of right inhered in the grantee quoad his right to assert or enforce his rights under the grants against the rulers survived the change of sovereignty the guarantee against deprivation of property contained in section 299 of the Government of India Act 1935 availed him nothing for when the succeeding sovereign refused to recognise the rights obtained by him under the previous sovereign its action deprived him of no right to property because he brought with him no rights from the previous ruler which he could assert against the new sovereign
The position therefore reduces itself to this Just previ ous to the Constitution the grantee had no right of property enforceable against the State and in regard to which there fore he could invoke the protection of articles 19 and 31 of the Constitution
The coming into force of the Constitution could not therefore make any difference for the Con stitution does not create rights in property but only protected rights which otherwise existed
It is necessary to add that if the learned fudges in Virendra Singh s case1 were right in their understanding of the Privy Council decision to 1  500 mean that a grantee under the previous ruler had a voidable title which he continued to possess and enjoy until by action of the succeeding ruler the same was revoked or repudiated they might also be right in their conclusion that such title as the grantees had could not be extinguished by the executive action of the Union or of the State Governments because of the guarantee of the right to property contained in articles 19 and 31
But if as we have shown the decisions of the Privy Council do not lend support to such a view the conclusion in Virendra Singh s case1 as regards this last proposition also cannot be correct
This takes us to the consideration of the question which was raised by Mr Purshottam Tricumdass submitting to us that we should discard the theory of Public International Law which underlies the decisions of the Privy Council
but that we should accept and give effect to what might be termed the American view as formulated by Chief Justice Marshall in US vs Percheman2 which was approved and applied in the later decisions of the American Supreme Court to which also he drew our attention
Learned Counsel submitted that this Court was not bound by the decisions of the Privy Council and was free to adopt the more rational just and human doctrine which found expression in these American decisions
In this connection his thesis was that the doctrines evolved by the Privy Council were conditioned by Britain being an Imperialist and expansionist power at the date when they originated and were applied and that while these might have been suited to the regime of a colonial power they were wholly out of place in the set up of this country and with the type of Constitution under which it functions
Having considered this matter carefully we are clearly of the opinion that there is no justification or reason to dis card the British view as regards the jurisdiction of municipal courts to enforce rights against succeeding sovereigns on a change of sovereignty
In the first place Percheman s case2 itself came before the courts for ascertaining the proper construction of the treaty under which Florida was surrendered to the United States by Spain under the Florida treaty dated February 22 1819 on the terms of which the 1  2  at pp
86 87
501 respondent contended that his title to the property claimed by him had been recognised and confirmed
The place of a treaty entered into by the United States and the provisions contained in it in the Constitutional Law of the United States we shall be referring to later but that apart the Florida treaty was followed by an Act of Congress of 1828 entitled an Act supplementary to the several Acts provid ing for the settlement of confirmation of private land claims in Florida
 Under the terms of this Act of the Congress Commissioners were set up to investigate claims by private individuals to lands and in cases where the validity of a claim set up was not upheld by the Commissioner provision was made for resort to courts for resolving the dispute
There was therefore no scope for invoking the British rule of the lack of jurisdiction of municipal courts to adjudicate on unrecognised titles to property even if such a doctrine was applicable and the only point in controversy was as to the interpretation of the clauses of the treaty relative to the titles which were recognised because on any view of the law if the treaty and the Act of Congress confirmed the respondent s title the same was enforceable in the municipal courts of the United States
Before passing on from this decision it is necessary to bear in mind the difference in constitutional law prevailing in the United States and in India as regards the effect of treaties and the provisions contained therein
article 6 cl
2 of the United States Constitution reads 6     2 All treaties made or which shall be made under the authority of the United States shall be the supreme law of the land and the Judges in every State shall be bound thereby anything in the Constitution or laws of any State to the contrary notwithstanding Willoughby explains the object
and effect of this provision thus  the primary purpose of this provision article VI cl
2 was to make indubitable the supremacy of treaties over State Statutory or Constitution of the United States Vol 1 548
502 constitutional provisions it has from the beginning been held that treaties so far as they are self executory operate in the United States by virtue of this constitutional provision to create municipal law which the courts are called upon to recognise and apply
 In the United Kingdom and in India the position is entirely different
A treaty is in British jurisprudence treated merely as a contract between two States and does not become a part of the law of the land unless by an express Act of the Legislature
A treaty does not confer rights or obligations between the State and its subjects or as between Subjects such rights can be conferred only by an enactment of the Legislature
As explained by Lord Atkin in Attorney General of Canada vs Attorney General of Ontraio1 Unlike some other countries the stipulations of treaty duly ratified do not within the Empire by virtue of the treaty alone have the force of law It was in recognition of this constitutional position that section 106 of the Government of India Act 1935 was enacted
Its terms are in substance re enacted in article 253 of the Constitution which reads 253
Notwithstanding anything in the foregoing provisions of this Chapter Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty  agreement or convention with any other country or countries or any decision made at any international conference association or other body and to reinforce this position we have article 363 by which municipal courts are deprived of jurisdiction to enforce any rights arising from certain treaties
It would be apparent that in the context of the different constitutional position regarding treaties in the two countries the rule of law which was enunciated by the American Supreme Court cannot automatically be applied here
For in ultimate analysis the court in Percheman s case 2 was giving effect to provisions 1 at P 347
2  at pp
86 87 503 of the treaty with Spain which was the law of the land and if the treaty provisions were different these again would have been enforced by the courts
We are making this observation not to minimise the importance of the doctrine of Public International Law explained by Chief Justice Marshall but to point out that the decision must be under stood in the setting of the provisions of the treaty with Spain and the articles of the American Constitution
As indicated earlier we are not insensible to the position that apart from the place of treaties in American Con stitutional Law what Marshall CJ expounded was a doctrine of Public International Law which lie considered it was necessary just and proper for succeeding States to observe in their dealings with the rights acquired by private individuals under predecessor sovereigns
We shall now proceed to deal with the question whether we should discard the rule as enunciated in the decisions of the Privy Council and adopt that which was formulated in Percheman s case1
There are several reasons why we are unable to accept C J Marshall s exposition in Percheman s case1 as laying down a law which has to be given effect to by municipal courts in this country
In the first place it could not be said that the broad terms in which Marshall CJ stated the doctrine that every private rights derived from a predecessor sovereign ought to continue to be enforceable against a successor sovereign and that a change in sovereignty makes no difference to the enforceability of private rights be it against other individuals or the succeeding State has been in that absolute form accepted as valid by jurists and writers on Public International Law
Even in treaties in Public International Law in which the most extended scope has been afforded to the enforceability of acquired rights against a successor State two limitations have always been recognised 1 that the origin of the right should be bona fide and not one designed to injure the economic interests of the successor State and 2 that the right should not be a political concessions Next jurists and even the Permanent Court of International Justice have drawn a marked distinction between 1  at pp
86 87
504 that might be termed the theory of the law and the enforce bility of these rights and in municipal courts
CC Hyde in is treatise on Public International Law after referring of the decision in Percheman s case1 and those which allowed it adds Acknowledgement of the principle that a change of sovereignty does not in itself serve to impair rights of private property validly acquired in areas subjected to a change does not of course touch the question whether the new sovereign is obliged to respect those rights when vested in the nationals of foreign States such as those of its predecessor
 Similarly George Schwarzenberger in his International Law after referring to a passage in the decision of the Permanent Court of International Justice in the case of German Settlers in Poland reading Private rights acquired under existing law do not cease on a change of sovereignty
No one denies that the German Civil Law both sub stantive and adjective has continued without interruption to operate in the territory in question
It can hardly be maintained that although the law survives private rights acquired under it have perished
Such a contention is based on no principle and would be contrary to an almost universal opinion and practice adds that though the Permanent Court of International Jus tice negatively stated that private rights acquired under existing law do not cease on a change of sovereignty the Court did not expressly pronounce on the question whether in the absence of legislation to the contrary on the part of Poland she was bound by International Law to consider German Civil Law as valid in the ceded territories
The doctrine of act of State evolved by English Courts is one purely of municipal law
It denies to such a Court jurisdiction to enquire into the consequences of acts which are inseparable from an extension of its sovereignty
That doc  Vol
IP 433
Vol
1 p 83
1  at Pp
86 87
505 trine was however not intended to deny any rule of inter national law
Next we might examine the juristic concept underlying the American view putting aside for the moment what one might call authority
There has been at one time a school of thought among writers on Public International Law which has described the process of State succession as if it were a transmission of sovereignty bringing in for this purpose the analogy of an heir in private law clothing the successor with the totality of the rights and obligations qua all inhabitants without exception or modification
This theory has now been discarded because of the realisation that there could be no analogy between individuals and States nor could the theory be sustained in the face of the circumstance that it does not accord with practice which after all is one of the basic foundations of the rules of Public International Law
It is hardly necessary to add that there is here no inconsistency with the comity of nations
Nor could it be maintained that the theory is just because it would force upon the successor State obligations which might have owed their birth to political considerations which would not survive the predecessor State
Besides it must not be forgotten that when a successor State exercises its sovereignty even over territory which has passed to it from a preceding ruler it does not do so as a representative of or by delegation from the latter as in the case of the heir in Private Law but as a sovereign of the territory deriving authority from its own constitution and set up
It is true that Public International Law might lay on the successor State duties with respect to the acquired territory and to the rights of the inhabitants thereof but those must be compatible with its undoubted sovereignty
It is in recognition of such a position that successor States give effect to laws which regulate rights inter se between the subjects which theretofore applied save in so far as either its constitution or its legislation has made other provision
We are however here concerned with rights possessed by individuals in the predecessor s territory enforceable against the previous rulers and even as regards these we are concerned with a very limited range of rights rights arising out of grants of immovable property or concessions of rights in relation thereto and 506 enforceable against the predecessor State
We made this Reservation because in the Dalmia Dadri Cement case1 which dealt with the continued enforceability of a concession regarding the levy of income tax even Bose J agreed that such rights did not survive and in a separate judgment confined the operation of the principle that he enunciated in Virendra Singh s case2 to rights of immovable property
If the theory that rights and duties or rather the bundle of them pass ipso jure from the predecessor to the successor State is discarded and at the same time it is recognised that International Law and justice which underlies that body of law might impose some obligations which the successor State should respect two questions arise First what are the obligations which International Law might impose and secondly whether these obligations which are not the crea tures of municipal law might give rise to claims enforceable in municipal courts
It is impossible to lay down exact rules as to the inter ests which are protected by a consensus of opinion as acquired rights
So much at least is clear that to receive the protection of International Law the interest must have been properly vested in the sense that it must not have been voidable at the instance of the predecessor State and bona fide and legally acquired
Neither the comity of nations nor any rule of International Law can be invoked to prevent a sovereign State from safeguarding its national economy and taking steps to protect it from abuse
On the one side the principles of acquired rights demands that the interest of the private individual be not abrogated and on the other side the public interest of the successor State has to be considered
It is this conflict between the public and private aspects that hinders the laying down of hard and fast rules
As has been pointed out by O Connell in his Treatise on the Law of State Succession the problems posed by State succession in International Law are notably different in character from those of municipal law though they arise at a different plane but there is no necessary reason why the one system should not draw on the doctrine or concepts formulated and found to be adequate within the other 1 1959 729
2  507 system
The principle of universal succession based on ana logy from the civil law was essentially juristic in character but the analogy was wrong and the practice of States was not consonant with the theory
The rejection of this doctrine led to the assumption that solutions are to be found on experience alone
The choice of the appropriate theory by writers was  coloured by their standpoint and their legal Experience
In theory therefore we must have regard both to past experience and the necessities of the present and while on the one hand not being unduly restrictive ought not on the other become so doctrinaire as to deprive the State of the option not to recognise even mala fide transactions
Looked at from this point of view the British practice that has prevailed in this country has not proved in actual practice to lead to injustice but has proceeded on a just balance between the acquired rights of the private indivi dual and the economic interests of the community and therefore there is nothing in it so out of tune with notions of propriety or justice to call for its rejection
It is undoubted that the British doctrine was part of the jurisprudence and the constitutional practice that prevailed in pre Constitution India
Most certainly it does not need to be stated that the British Parliament when it enacted the Government of India Act as the constitutional framework by which this country should be governed could not have had in contemplation any other rule by which the rights of the inhabitants newly brought into the political set up by other territories becoming part of India
With this historical background it would not be a violent presumption if we assume that the framers of the Constitution should also be taken to have proceeded on the basis of the acceptance of this doctrine and this state of the law unless one found some provision or indication in the Constitution repugnant to its continuance
As already pointed out the position of treaties vis a vis municipal law was not changed
On the other hand by article 363 an embargo was laid in express terms on municipal courts giving effect to the provisions of treaties with rulers of Indian States
This in our opinion is a clear indication that the Constitution makers intended no 508 departure from the Constitutional doctrine that was thereto fore accepted as law
It would of course be different if the provisions of any treaty became embodied in subsequent legislation then they would be enforced as part of the law of the land
It is also not to be assumed that the Constitution makers were oblivious of the need for continuity of the law when the Indian States were absorbed and a change in sovereignty took place
By article 372 of the Constitution all the laws which were in force in these States just as in British India without any distinction were continued until they were altered or repealed by competent legislation
It is only necessary to point out that in the interval between the merger of these States and the coming into force of the Constitution there were other provisions to which we have already adverted which continued the laws which obtained in these territories till article 372 could be availed of
There was thus no legal vacuum or hiatus created so far as laws were concerned and it is only where the right sought to be enforced was created not by the laws of the previous sovereign but merely as a result of an administrative order that we have the problem to be solved in these appeals
If the definition of law in article 36610 were as that in article 12 so as to include even executive orders every right however created would have been continued
But the Constitution makers decided otherwise and preferred to continue only laws as distinguished from administrative orders
Next we have the circumstance that the doctrine enunciated in the decisions of the Privy Council have been accepted as correct and thus applicable equally in postConstitution India in a series of decisions of this Court commencing from Dalmia Dadri Cement Co1 and unless compelling reasons are found for holding that all these were wrongly decided it would be neither proper or even open for us to depart from these precedents and as explained earlier there are none
Lastly as we have already noticed even in the case of Virendra Singh2 though the divergent views of the jurists on this question of Public International Law were set 11959 SCR 729
2  509 out the court did not express any decisive opinion in favour of accepting the observations in Percheman s case1 as proper to be applied by the municipal courts in India
In the face of these circumstances we would not be justified in departing from the decisions of the Privy Council which have been accepted and applied by this Court
These decisions both of the Privy Council as well as the earlier ones of this Court were reviewed and the propositions laid down in them were examined and summarised by this Court in Promod Chandra Deb and Ors
vs The State of Orissa and Ors2 as laying down the following propositions 1 Act of State  is the taking over of sovereign power by a State in respect of territory which was not till then a part of its territory either by conquest treaty or cession or otherwise and may be said to have taken place on a particular date if there is a proclamation or other public declaration of such taking over
2 But the taking over full sovereign powers may be spread over a number of years as a result of a historical process
3 Sovereign power including the right to legislate for that territory and to administer it may be acquired without the territory itself merging in the new State as illustrated in the case of Dattatraya Krishna Rao Kane vs Secretary of State for India in Council 1930 LR 57 IA 318
4 Where the territory has not become a part of the State the necessary authority to legislate in respect of that territory may be obtained by a legislation of the nature of Foreign Jurisdiction Act
5 As an act of State derives its authority not from a municipal law but from ultra legal or supra legal means Municipal Courts have no power to examine the propriety or legality of an act which comes within the ambit of Act of State  1 32 US at pp
86 87
2 1962 1 Supp
SCR 405
510 6 Whether the Act of State has reference to public rights or to private rights the result is the same namely that it is beyond the jurisdiction of Municipal Courts to investigate the rights and wrongs of the transaction and to pronounce upon them and that therefore such a Court cannot enforce its decisions if any
It may be that the presumption is that the pre existing laws of the newly acquired territory continue and that according to ordinary principles of International Law private property of the citizens is respected by the new sovereign but Municipal Courts have no jurisdiction to enforce such international obligations
7 Similarly by virtue of the treaty by which the new territory has been acquired it may have been stipulated that the pre cession rights of old inhabitants shall be respected but such stipulations cannot be enforced by individual citizens because they are no parties to those stipulations
The Municipal Courts recognised by the new sovereign have the power and the jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge by legislation agreement or otherwise
9 Such an agreement or recognition may be either express or may be implied from circum stances and evidence appearing from the mode of dealing with those rights by the new sovereign
Hence the Municipal Courts have the jurisdiction to find out whether the new sovereign has or has not recognised or acknow ledged the rights in question either expressly or by implication as aforesaid
10 In any controversy as to the existence of the right claimed against the new sovereign the burden of proof lies on the claimant to establish that the new sovereign had recognised or acknowledged the right in question
 511 We consider this summary succinctly expressed the rule to be applied in this country as regards the enforceability against the Governments in India of private rights originat ing in executive or administrative orders of the former Indian rulers
The next matter to be considered is the correctness of the view expressed by the High Court that even though the treaty be an Act of State and the merger agreement executed by the ruler a document on which no rights enforceable in municipal courts could be based still cl
7 of the letter of Shri V P Menon dated October 1 1948 could be referred to and relied upon for founding an argument that the Government waived their right to repudiate the grant made by the previous ruler
We consider that the submission of the learned Attorney General that the learned Judges were in error in this respect is well founded
If the treaty or its provisions cannot be looked at to spell out any right
as the learned Judges themselves conceded
the use to which they have put the provisions of cl
7 that the Government would not re examine grants made earlier than April 1 1948 is virtually the same though called by another name
We can see no sensible distinction between reliance on the provisions of the treaty as pointing to a recognition by the Government of rights claimed and reliance on it for the pur pose of establishing that Government had waived their right not to recognise such rights
In substance they are the same though the nomenclature employed is different
In support of the reasoning on which this distinction was accepted the learned Judges have placed reliance on the approach to this question in Virendra Singh s case1
We have discussed this matter fully in the earlier part of this judgment and there is no need to repeat it
The learned Judges have further referred to and relied on a decision of this Court in Bholanath vs The State of Saurashtra2 and certain observations contained in it
We do not agree that the observations in the decision though couched somewhat widely could properly be understood in the manner in which the learned Judges have done
The question that arose in the case was whether the condition of service of a person 1  2 A I R 512 originally employed as an officer of one State continued to govern his services after that State became merged in the Government of Saurashtra
The condition of service in controversy was as to the age at which an officer had to retire on superannuation
By an enactment of the ruler of Wadhwan State this was in the case of officers like the appellant before this Court fixed at 60
An order by the Government of Saurashtra retiring him after he reached the age of 55 against his will gave rise to the suit from which the proceedings before this Court arose
There was contro versy in the Courts below as to whether the law embodying the service conditions was competently enacted by the Wadhwan State
But this contention was not persisted in this court and the court recorded a finding that the terms of service of the appellant were regulated by a law which was competently enacted and that the law was continued by article 372 in the Saurashtra State
On that finding there could really be no defence to the appellant s claim
The decision in favour of the appellant was rested on the ground that the law of the Wadhwan State was continued by express provisions contained first in statutes of the Saurashtra State and again by article 372 of the Constitution when the latter merged in the Dominion of India
On this it followed that without a valid change in the law the rights of the appellant could not be restricted
In stating this position however the following words were used The Covenant between the ruler of the Wadhwan State and the State of Saurashtra could be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign
 We do not understand this passage to mean that the covenant which under article 363 could itself not be looked at for founding any right could be used indirectly for inferring that rights were recognised without anything more
The true position appears to us to be that where the new sove reign assumes jurisdiction and it does some Act and there is ambiguity as to whether the same amounts to a recognition of a pre existing right or not the covenant and the treaty might be looked at in order to ascertain the intention and purpose of that equivocal act but beyond this the cove 513 nant and the treaty cannot by themselves be used either as a recognition pure and simple or as the learned Judges of the High Court have held as waiver of a right to repudiate the pre existing rights
It is needless to point out that since the enforceability of the rights against the succeeding sovereign springs into existence only on recognition by the sovereign there is no question of a waiver of the right to repudiate
The expression right to repudiate  in this con text is a misnomer and there could be no question of a waiver of such right
This however does not conclude the matter for we have still to deal with the question whether the grant by the ruler of the Sant State which was embodied in a resolution  of his was a law or was merely an executive or administra tive order
Learned Counsel for the respondent submitted to us that the grant under the Tharav No 371 dated March 12 1948 was not a grant by executive power but was in truth and substance a law which was continued by article 372 of the Constitution and which therefore could be undone only by legislation and not by any executive fiat as has been done in the present case and in this connection relied strongly on the decisions of this Court in Madhaorao Phalke vs The State of Madhya Bharat1 and in Promod Chandra Deb and Ors
vs The State of Orissa and Ors
Both in the trial Court as well as before the High Court the cases had proceeded on the footing that the ruler of the Sant State was an absolute monarch with no constitutional limitations upon his authority and it was not suggested that this was incorrect
He was the supreme legislature as well as the supreme head of the executive so that his orders however issued would be effective and would govern and regulate the affairs of the State including the rights of the citizens vide Ameer un nissa Begum vs Mahboob Begum3 and Director of Endowments Government of Hyderabad vs A kram Ali4 We should however hasten to point out that though in the case of such absolute monarchs the distinction between the administrative action under their executive power and laws passed by them as the supreme legislature 1  2 1962 1 Supp
SCR 405
3 AIR 1955 SC 352
4 AIR 1956 SC 60
134 159 section C 33
514 of the State possess no deference as regards their effectiveness still the distinction between the two is of vital importance for the purpose of determining their continued efficacy after the coming into force of the Constitution
Under article 372 of the Constitution all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority
The expression existing law is defined in article 36610 Existing law means any law Ordinance Order bye law rule or regulation passed or made before the commencement of this Constitution by any legislature authority or person having power to make such a law Ordinance Order bye law rule or regulation
 This definition would include only laws passed by a competent authority as well as rules bye laws and regulations made by virtue of statutory power
It would therefore not include administrative orders which are traceable not to any law made by the Legislature but derive their force from executive authority and made either for the convenience of the administration or for the benefit of individuals though the power to make laws as well as these orders was vested in the same authority the absolute ruler
What survives the Constitution and is continued by article 372 are those laws which could trace their origin to the exercise of legislative power
The problem next is to discover that which is law from that which is merely an executive order and this is by no means an easy one to solve
In the case of some States where there are rules which prescribe particular forms which the laws have to or generally take or where laws as distinguished from executive orders are issued bearing a defined nomenclature there is not much difficulty
But the cases which have come up before this Court have shown that this is by no means the universal rule
In the case of the Sant State with which we are concerned it was not suggested that there was any particular formality or process 515 which had to be observed in the promulgation of laws or any particular form which laws had to take or took or that they went by any particular nomenclature to distinguish them from executive or administrative orders
We have therefore to consider whether from the nature of the instrument its contents and its general effect whether the Tharav dated March 12 1948 constitutes a law within article 36610 and is therefore continued by article 372 or whether it is merely an executive grant or administrative order which might confer rights but which without recognition by the Union or State Government cannot be enforced in the municipal courts of this country
We shall therefore proceed to consider the terms of the Tharav and for this purpose it would be convenient to set it out in full
It is headed Tharav Order  by Maharana Santrampur State dated March 12 1948
It was explained to us that the expression of Tharav  meant a resolution
The text of this resolution or order by the Maharana is as follows The Jivak Patavat Inami Chakariyat Dharmada villages in Sant State are being given granted to Jagirdars and the holders of the said villages are not given rights over forests
Hence after considering the complaints of certain Jagirs they are being given full rights and authority over the forests in the villages under their vahivat
So they should manage the vahivat of the forest according to the policy and administration of the State
Orders in this regard to be issued
Sd in English Maharana Santrampur State
 There are a few matters to which it is necessary to advert in this document  The first of them is that it is not a grant to any individual that is treating him as an individual or as one of a number of individuals or to a group 516 treating them merely as separate individuals but to the holders of five specified tenures in the State Jivak Patavat Inami Chakariyat and Dharmada villages
Next it states that the rights in the forests of the villages of the several kinds of tenure holders are being given to them in response to the representations made in regard to the villages in the possession and enjoyment of the Jagirdars as regards this matter
Lastly the tenure holders were directed to manage and administer the forest according to the policy and administration of the State
The learned Judges of the High Court have treated the Tharav  as merely an administrative order treating it as if consisted of as many grants of forest rights to the tenure holders as there were such holders and this was the view that was stressed upon us strongly by the learned Attorney General
We are however not impressed by this argument
We have no evidence as regards the creation of the several tenures referred to in the Tharav to base any conclusion as flowing from the original grant
No doubt there is on record the translation of the rant of the village of Gothimada dated 1867 but from this it does not follow that everyone of the grants comprised in the  five tenures specified was of this pattern We consider that the Tharav  is more consistent with its being a law effecting an alteration in the tenures of the five classes of Jagirdars by expanding the range of the beneficial enjoyment to the forests lying within the boundaries of the villages which had already been ranted to them
In this light the Tharav  would not be an administrative order in any sense but would partake of the character of legislation by which an alteration was effected in the scope and content of the tenures referred to
This aspect is reinforced by the reference to the complaints of the tenure holders whose grievance apparently was that though villages had been granted to them for their enjoyment under the several tenures they were not permitted any rights in the forests within their villages
It was not thus a case of an individual grant but the yielding by the ruler to the claims of these large group of Jagirdars who requested that their rights should be extended
Lastly the manner of the enjoyment was specified as having to be in accordance with the policy and administration in the 517 State
It is obvious that there must have been some rules which have the force of law as regards the administration of these forests and the enjoyment by the Jagirdars was made subject to the observance of these laws
We therefore consider that the Tharav  dated March 12 1948 satisfies the requirement of a law within article 36610 and in consequence the executive orders of the Government of Bombay by which the forest rights of the plaintiffs were sought to be denied were illegal and void
The result is that we agree with the learned Judges that the plaintiffs were entitled to succeed though for different reasons and we direct that the appeals should be dismissed
The appellant will pay the costs of the respondents one set of hearing fees
SUBBA RAO J I have had the advantage of going through the judgment of my learned brother Rajagopala Ayyangar J I agree with him that exhibit 192 is law and that it continued in force after the making of the Constitution
This conclusion would be enough to dispose of the appeals
But Rajagopala Ayyangar J further expressed his disagreement with the unanimous view propounded by this Court in Virendra Singh vs The State of Uttar Pradesh1
As I regret my inability to share his view I shall state the reasons for my agreement with the decision in Virendra Singh s case
As the question raised is common to all the appeals it is enough if I take up Civil Appeal No 182 of 1963 for consideration
The facts necessary to appreciate the alternative contention may now be briefly stated
In the year 1947 the then ruler of the Sant State made a grant of the village Gotimada to the predecessor in interest of Thakor Sardarsingh Gajesing
On August 15 1947 India obtained independence
Under section 7 of the Indian Indepen dence Act 1947 the suzerainty of the British Crown over the Indian States lapsed with the result the Sant State became a full sovereign State
On March 12 1948 the Maharana 1  518 of Sant State issued an order conferring full rights over forests to the holders of villages in the State which included the said Gotimada village
On March 19 1948 there was an agreement described as the Merger Agreement entered into between the Maharana of Sant State and the Dominion Government of India where under the Maharana ceded to the Dominion Government full exclusive authority jurisdiction and power for and in relation to the governance of the Sant State and agreed to transfer the administration of the Sant State to the Dominion Government on June 10 1948
It was also agreed that as from June 10 1948 the Dominion Government would be competent to exercise full and exclusive authority jurisdiction and powers for and in relation to the Governance of the Sant State in such manner and through such agency as it might think fit
Under the other articles of the said agreement certain personal rights and privileges of the Maharana were preserved
After the merger under section 3 of the Extra Provincial Jurisdiction Act 1947 the Government of India delegated the administration of the Sant State to the State of Bombay
From October 1 1949 under the States  Merger Governor s Provinces Order 1949 the said State became part of the State of Bombay that is to say from June 10 1948 to October 1 1949 the Bombay State administered the Sant State as a delegates of the Dominion of India and thereafter the State became merged with the State of Bombay
The Sant State therefore became part of the Dominion of India on June 10 1948 and thereafter the citizens of that State became the citizens of the Dominion of India
On August 21 1948 the respondent entered into a contract with Thakor Sardarsing Gajesing for cutting of the trees in the forest of village Gotimada
On October 1 1948 ie 4 months after the merger and more than a month after the said contract Shri V P Menon Secretary to the Government of India Ministry of States wrote a letter to the Maharana of Sant State expressly declaring that no order passed or action taken by the Maharana before the date of making over the administration to the Dominion Government would be questioned unless the order was passed or action taken after the 1st day of April 1948 and if considered by the Government of India to be palpably unjust or unreasonable
By that letter it was also guaranteed that 519 among others the enjoyment of ownership of jagirs grants etc existing on April 1 1948 would be respected
A combined reading of the paragraphs of this letter makes it clear that the Dominion of India declared in clear and unambiguous terms that no grants made or orders issued by the Maharana before April 1 1948 would be questioned by it
It may be mentioned that in the last paragraph of this letter it was stated that the contents of the letter would be regarded as part of the Merger Agreement entered into by the Maharana with the Governor General of India
It may be recalled that this letter was written months after the merger and after the citizens of the extinct State became the citizens of the absorbing State
The effect of the last paragraph of the said letter will be considered in due course
On July 8 1949 the Government of Bombay sent a communication to the Commissioner Northern Division stating that the Government considered that the order passed by the ruler of Sant State on March 12 1948 transferring forest rights to all the Jagirdars of the Jagir villages was mala fide and that it should be cancelled
It was suggested that the Commissioner should do some other preliminary acts before taking further action in the matter
It would be seen from this communication that the order was not actually cancelled but there was some correspondence in respect of that matter and that it was not even communicated to the jagirdars
There was obstruction by the forest officers when the contractor was cutting the trees but after some correspondence he was permitted to cut the trees on an undertaking that he would abide by the decision of the Government
On February 6 1963 the Government of Bombay passed a resolution after receiving a report from the Forest Settlement Officer specially appointed by it to investigate the rights of jagirdars
It was stated in the resolution that the Tharav issued by the ruler of Sant State in 1948 was mala fide and therefore not binding on the Government
Thereafter it scrutinized the claims of jagirdars to forests in 74 villages in the erstwhile Sant State and recognized their rights in some of the villages
So far as Gotimada village
is concerned it was stated that the question of forest rights in the said village was still under the 520 consideration of the Government and necessary orders in that behalf would be issued in due course
It is clear that till 1953 the Government did not refuse to recognize the title of the Jagirdars to forests indeed in the case of Gotimada village no final order was made even on that date
On these facts the question that arises is whether the respondent would be entitled to a permanent injunction issued by the High Court restraining the appellant from interfering with his right to cut trees in Gotimada village
The argument of the learned Attorney General so far as it is relevant to the question which I propose to deal with runs as follows  After the merger of the Sant State with the Dominion of India the jagirdar had nO title to the forests against the Dominion of India unless it recognized such a right and that as in the instant case the said Government did not recognize such a right he or his assignees could not maintain any action against the State on the basis of his title to the said forests
He conceded that on the basis of the finding of the High Court that the Dominion of India did not repudiate the title of the jagirdar to the forests till after the Constitution came into force the decision of this Court in Virendra Singh vs The State of Uttar Pradesh1 is against him
But he contended that it was not correctly decided and indeed its binding force was weakened by later decisions of this Court
As the correctness of the decision in Virendra Singh s case1 is questioned it is necessary to consider the scope of that decision in some detail and also to ascertain whether later decisions of this Court had in any way weakened its authority
The facts in that case were as follows
The petitioners in that case were granted in January 1948Jagirs and Muafis by the Ruler of Sarila State in one village and by the Ruler of Charkhari State in three villages
In March 1948 a Union of 35 States including the States of Sarila and Charkhari was formed into the United States of Vindhya Pradesh
The Vindhya Pradesh Government confirmed these grants in December 1948 when its Revenue Officers interfered with them questioning their validity
The integration of the States however did not work well and the same 35 Rulers entered into an 1  521 agreement in December 1949 and dissolve the newly created State as from January 1 1950 each Ruler acceding to the Government of India all authority and jurisdiction in relation to the Government of that State
After the Constitution came into force the Government of Uttar Pradesh in consultation with the Government of India revoked the grant of Jagirs and Muafis in four of the villages
On an application filed by the petitioners under article 322 of the Constitution this Court issued a writ against the State
From the said facts it would be seen that the grants were made to the petitioners before the merger and it was held that the Government had no right to revoke the said grants after the Constitution came into force
Bose J speaking for the Court elaborately considered the doctrine of Act of State in the light of English and American decisions and the opinions of jurists of International Law and came to the following conclusion  We think it is clear on a review of these authorities that whichever view be taken that of the Privy Council and the House of Lords or that of Chief Justice Marshall these petitioners who were in de facto possession of the disputed lands had rights in them which they could have enforced up to 26th January 1950 in the Dominion Courts against Fill persons except possibly the Rulers who granted the land and except possibly the State
We do not by any means intend to suggest that they would not have enforced them against the Rulers and the Dominion of India as well but for reasons which we shall presently disclose it is not necessary to enter into that particular controversy
It is enough for the purpose of this case to hold that the petitioners had
 at any rate the rights defined above
 Pausing here it will be noticed that this Court did not express a final opinion on the question whether the petitioners could have enforced their title to the property against the Rulers before the Constitution came into force
but it had definitely held that the petitioners had title to the property against all 522 persons except the Rulers
On the basis of that finding Bose J proceeded to consider the impact of the Constitution on the said finding
The learned Judge observed But however that may be there is no question of conquest or cession here
The new Republic was
born on 26th January 1950 and all derived their rights of citizenship from the same source and from the same moment of time so also at
the same instant and for the same reason all territory within its boundaries became the territory of India
There is as it were from the point of view of the new State Unity of Possession Unity of Interest Unity of Title and Unity of Time Then the learned Judge proceeded to state All the citizens of India whether residing in States or Provinces will enjoy the same fundamental rights and the same legal remedies to enforce them This decision struck a new and refreshing note
It pleaded for a departure from imperialistic traditions and to adopt the American traditions which are in consonance with the realities of the situation created by our Constitution
It gave new orientation to the doctrine of the act of State to reflect the modern liberal thought embodied in our Consti tution
It held that citizens of a ceding State have a title to their property against all except possibly the ruler
Though it inclined to go further and hold that the change of sovereignty does not affect the title of the citizens of the ceding State even against the new sovereign it did not think fit to decide that question finally as it found ample justification to sustain the title of the petitioners therein against the sovereign under our Constitution
It pointed out that the concept of ceding and absorbing States is foreign to our Constitution and that all the people of India to whichever part of the country they might have belonged through their representatives framed the Constitution recognizing the fundamental rights of a citizen to hold property and not to be deprived of it save by authority of law
In that view it 523 held that the title of the petitioners in hat case to their Property was protected by the Constitution
This is a unanimous and considered decision of five learned Judges of this Court
I shall not obviously differ from this view unless there are compelling reasons to do so
I find none
I shall now proceed to consider whether the subsequent decisions of this Court threw any doubt on the correctness of the decision in regard to the following two aspects on which it had given a firm decision 1 The citizen of a ceding State does not lose his title to immovable property but continues to have a right thereto against all except possibly the absorbing State and 2 on the making of the Constitution his title thereto became indefeasible even against the absorbing State
Where a company entered into an agreement with the erstwhile State of Jind whereunder it had to pay income tax only at concessional rates it was held in Mills
Dalmia Dadri Cement Co Ltd vs The Commissioner of Income tax1 that after the said State merged with the Union of India the latter was not bound by the contractual obligations of the ceding State on the basis of the principle that the treaty between the two sovereigns was an act of State and the clauses of that treaty were not enforceable
In Jagannath Agarwala vs State of Orissa 2 it was held that after Mayurbhanj State had merged with the Province of Orissa the two money claims of the appellant against the Maharaja of Mayurbhanj State were not enforceable against the Orissa State on the ground that the Act of State did not come to an end till the claims made by the appellant were rejected and therefore municipal courts had no jurisdiction in the matter
Where the petitioners held Khor Posh grants from the Rulers of Talcher Bamra and Kalahandi under the respective State laws it was held in Promod Chandra Deb vs The State of Orissa3 that the laws continued to have legal force after the merger of the said States with the Union of India
Where the Nawab of Junagadh State made grants of property before he fled the State it was held in 1 2  3 1962 Supp
1 SCR 405
524 State of Saurashtra vs Jamadar Mohamad Abdullah1 that the cancellation of the said grants by the Regional Commissioner who assumed charge of the administration of the State before the said State was integrated with the United States of Saurashtra was an act of State
The question now raised did not arise for consideration in those cases
This Court accepted the English doctrine of Act of State and acted on the principle that till the right of an erstwhile citizen of a ceding State was recognized by the absorbing State he has no enforceable right against the State
The scope and extent of the title to immovable property of a citizen of a ceding State was not examined in those decisions
Nor the impact of the Constitution on such rights was considered therein
In Ms Dalimia Dadri Cement Co Ltd vs The Commissioner of Income tax1 the following observations are found at D 741 which may have some bearing on the first aspect of the question It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex sovereign and that as subjects of the new sovereign they have only such rights as are granted or recognized by him This observation is couched in wide terms
But this Court was not concerned in that case with the distinction between pre existing title of a citizen of a ceding State to his property against all and that against the State
Indeed Bose J in his dissenting judgment made it clear that they were only concerned in that case with the contractual obligation of the erstwhile sovereign and that they were not dealing with the question of the title of the citizens to immovable property
That the judgment had also nothing to do with the second aspect was made clear by the following observations of Venkatarama Aiyar J who expressed the majority view at p 749 This argument assumes that there were in existence at the date when the Constitution came into 1 2 525 force some rights in the petitioner which are capable of being protected by article 191f
But in the view which we have taken that the concessions under cl
23 of exhibit A came to an end when Ordinance No 1 of section 2005 was promulgated the petitioner had no rights sub sisting on the date of the Constitution and therefore there was nothing on which the guarantees enacted in article 191 f could operate
 These observations indicate that this Court did not go back on the decision in Virendra Singh s case1 indeed it re jected the argument based on that decision on the ground that the appellant lost his rights if any under a pre Constitutional valid Ordinance
In State of Saurashtra vs Jamadar Mohamad Abdulla2 Mudholkar J speaking for himself and for Sarkar J expressed the view on the question of impact of section 2991 of the Constitution Act of 1935 on the title to immovable property of a citizen of a ceding State thus at p 1001  before the respondents could claim the benefit of section 2991 of the Constitution Act 1935 they had to establish that on November 9 1947 or thereafter they possessed legally enforceable rights with respect to the properties in question as against the Dominion of India
They could establish this only by showing that their pre existing rights such as they were recognized by the Dominion of India
If they could not establish this fact then it must be held that they did not possess any legally enforceable rights against the Dominion of India and therefore section 2991 of the Constitution Act 1935 avails them nothing
As already stated section 2991 did not enlarge anyone s right to property but only protected the one which a person already had
Any right to property which in its very nature is not legally enforceable was clearly incapable of being protected by that section 1   433 4
2 1962 3 SCR 970
526 The same view was restated by the learned Judge in Promod Chandra Deb vs The State of Orissa1
It may be stated that the said question did not arise for consideration in either of those two decisions for in the former the cancel lation of the order issued by the Ruler of the ceding State was made before the merger and in the latter the Court held that the laws whereunder the grants were made continued to have legal force after the merger of the concerned States with the Dominion of India
It may be pointed out that Das J in the earlier decision and Sinha CJ in the later decision who delivered the leading judgments in those cases had specifically left open that question
It may therefore be stated without contradiction that in none of the decisions of this Court that were given subsequent to Virendra Singh s case2 the correctness of that decision was doubted
Indeed in the latest two decisions the principle was sought to be extended to a situation arising under the Government of India Act
but the majority of the learned Judges left open the question though two of the learned Judges constituting the Bench expressed their view against such an extension
On the findings I have accept ed the said question does not arise for consideration in this case and I do not propose to express my opinion thereon
If that be the position
is there any justification for this Court to refuse to follow the decision in Virendra Singh s case1
In my View the said decision is not only correct but is also in accord with the progressive trend of modern international law
After all an act of State is an arbitrary act not based on law but on the modern version of might is right
It is an act outside the law
In the primitive society when a tribe conquered another tribe the properties of the vanquished were at the mercy of the conqueror
The successful army used to pillage plunder and commit acts of arson and rape
When society progressed the doctrine of Act of State was evolved
which really was a civilized version of the primitive acts of pillage and plunder of the properties of the conquered tribe
But the further progress of civilization brought about by custom and agreement factual recognition of pre existing rights of the people of the conquered State
There were two different lines of 1 1962 Supp 1 SCR 405
2  527 approach one adopted by imperialistic nations and the other by others who were not
That divergence was reflected in English and American Courts
All the jurists of internatio nal law recognise the continuity of title to immovable property of the erstwhile citizens of ceding State after the sovereignty changed over to the absorbing State
In A Manual of International Law by Georg Schwargenberger 4th Edn Vol 1 at p 81 the learned author says Private rights acquired under the law of the ceding State are not automatically affected by the cession
They must be respected by the cessionary State
 A more emphatic statement is found in The Law of State Succession by O Connell
Under the heading The Doctrine of Acquired Rights the learned author points out at pp
78 79   only sovereignty and its incidents expired with the personality of a State
The relationships of the inhabitants one to another and their rights of property were recognized to remain undisturbed
 He observes at p 104 The doctrine of acquired rights is perhaps one of the few principles firmly established in the law of State succession and the one which admits of least dispute In Hyde s International Law second revised edition Vol 1 at p 433 the following extract from the Sixth Advisory Opinion of September 10 1923 of the Court of International Justice is quoted Private rights acquired under existing law do not cease on a change of sovereignty
No one denies that the German Civil Law both subs tantive and adjective has continued without interruption to operate in the territory in question
It can hardly be maintained that although the law survives private rights acquired under it have perished
Such a contention is based on no principle and would be contrary to an almost universal opinion and practice  528 In Oppenheim s International Law 8th edition Vol 1 the same legal position is re stated at p 571 thus It must be specially mentioned that as far as the law of Nations is concerned the subjugating State does not acquire the private property of the inhabitants of the annexed territory
Being now their sovereign it may indeed impose any burdens it pleases on its new subjects it may even confiscate their private property since a sovereign State can do what it likes with its subjects but subjugation itself does not by International Law affect private property
 Starke in his book An Introduction to International Law 5th edn observes at p 274 Such of these rights as have crystallised into vested or acquired rights must be respected by the successor State more especially where the former municipal law of the predecessor State has continued to operate as though to guarantee the sanctity of the rights
 Much to the same effect the relevant statement of inter national law is found in Briggs  The Law of Nations 2nd edn
It may therefore be held that so far as title to im movable property is concerned the doctrine of international law has become crystallised and thereunder the change of sovereignty does not affect the title of the erstwhile citizens of the ceding State to their property
In America the said principle of International Law has been accepted without any qualification
Chief Justice John Marshall of the United States Supreme Court has succinctly stated the American legal position in United States vs Percheman 1 thus The people change their allegiance their relation to their ancient sovereign is dissolved but their relations to each other and their rights of property remain undisturbed
If this be 1  at 86 87
529 the modern rule even in cases of conquest who can doubt its application to the case of an amicable cession of territory 
A cession of territory is never understood to be a cession of the property belonging to its inhabitants
The King cedes that only which belonged to him
Lands he had previously granted were not his to cede
Neither party could so understand the cession
Neither party could consider itself as attempting a wrong to individuals condemned by the practice of the whole civilised world
The cession of a territory by its name from one sovereign to another
conveying the compound idea of surrendering at the same time the lands and the people who inhabit them would be necessarily understood to pass the sove reignty only and not to interfere with private property
 This principle has been accepted and followed by the American Courts in other decisions
But it is said that the view of the American Courts is really based upon the circumstance that international treaties are part of the supreme law of the land
Article VI of the Constitution of the United States declares that all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land and the Judges in every State shall be bound thereby anything in the Constitution or laws of any State to the contrary notwithstanding
Chief Justice Marshall in Foster vs Neilson1 said Our Constitution declares a treaty to be the law of the land
It is consequently to be regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself without the aid of any legislative provision A treaty in America may be deemed to be a law of the land but the American view is not solely based on treaties
1  134 159 SC 34
530 In The American Insurance Co and the Ocean Insurance Co vs Bales of Cotton1 Chief Justice Marshall clearly recorded the view of the American Courts thus On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change
 Again the learned Chief Justice in Charles Dehault vs The United States2 expressly pointed out the existence of the said rights apart from any treaty
He observed Independent of treaty stipulations this right would be held sacred
The sovereign who acquires an inhabited territory acquires full dominion over it but this dominion is never supposed to divest the vested rights of individuals to property Therefore the distinction sought to be made may perhaps have some relevance if in a particular treaty there
is a specific term that the United States shall recognize the acquired rights of a citizen of a ceding State but none if the treaty does not contain such a covenant
The American decisions therefore cannot be distinguished on this narrow ground they have recognized the doctrine of International Law and inter woven it in the texture of the American municipal law
The Courts in England have developed the doctrine of act of State which in the words of Stephen means An act injurious to the person or property of some person who is not at the time of that act a subject of Her Majesty which act is done by a representative of Her Majesty s authority and is either sanctioned or subsequently ratified by Her Majesty
 A treaty whereunder a sovereign territory is ceded is held to be an act of State for it is not done under colour of any title but in exercise of a sovereign power
Has the law of England denied the doctrine of acquired rights so well settled in International Law 1 2  131
531 In Vajesingji Joravarsingji vs Secretary of State for India in Council1 the Judicial Committee summarized the law on the subject thus When a territory is acquired by a sovereign State for the first time that is an act of State
Any inhabitant of the territory can make good in the Municipal Courts established by the new sovereign only such rights as that sovereign has through his officers recognized
Such rights as he had under the rule of predecessors avail him nothing
Nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts
The right to enforce remains only with the high contracting parties  
The sentence in the said passage namely such rights as he had under the rule of predecessors avail him nothing cannot be in the context in which it appears interpreted as a denial of the doctrine of acquired rights evolved by International Law but it only refers to the question of enforceability of such an acquired right in a municipal court
The same view has been expressed in a number of English decision
Therefore the law in England is that the municipal courts cannot enforce the acquired rights of the erstwhile citizens of the ceding State against the absorbing State unless the said State has recognized or acknowledged their title
This Court accepted the English
doctrine of act of State in a series of decisions noticed by me earlier
What does the word recognize signify It means to admit to acknowledge something existing before By recognition the absorbing State does not create or confer a new title but only confirms a pre existing one
It follows that till the title Is recognized by the absorbing State it is not binding on that State
An exhaustive exposition of this branch of law is found in Promad Chandra Dab s case2
I am bound by that decision
O Connell in The Law of State Succession 1 51 IA 357
2 1962 Supp
1 SCR 405
532 brings out the impact of the doctrine of act of State on that of acquired rights under International Law at p 88 thus The doctrine of act of State is one of English municipal law
It merely denies an English Court jurisdiction to inquire into the consequences of Acts of the British Government which are inseparable from the extension of its sovereignty
The court is not entitled to ask if such acts are just or unjust politic or impolitic  or what legal rights and duties have been carried over in the change of sovereignty
The doctrine is not intended however to deny a rule of International Law
 In the words of the same author the fact that a right can not be enforced does not mean that it does not exist
Non recognition by the absorbing State does not divest title but only makes it unenforceable against the State in municipal courts
The result of the discussion may be summarized thus the doctrine of acquired rights at any rate in regard to immovable property has become crystallized in International Law
Under the said law the title of a citizen of a ceding State is preserved and not lost by cession
The change of sovereignty does not affect his title
The municipal law of different countries vary in the matter of its enforceability against the State
As the title exists
it must be held that even in those countries which accepted the doctrine of act of State and the right of a sovereign to repudiate the title the title is good against all except the State
Before the Constitution came into force the State did not repudiate the title
When the Constitution of India came into force the respondent and persons similarly situated who had title to immovable property in the Sant State had a title to the said property and were in actual possession thereof
They had title to the property except against the State and they had at any rate possessory title therein
The Constitution in article 311 declares that no person shall be deprived of his property save by authority of law
That is the Constitution recognized the title of the citizens of the erstwhile State of Sant and issued an injunction against the 533 soveriegn created by it not to interfere with that right except in accordance with law
A recognition by the supreme law of the land must be in a higher position than that of an executive authority of a conquering State
I would therefore hold that the title to immovable property of the respondent was recognized by the Constitution itself and therefore necessarily by the sovereign which is bound by it
1 therefore respectfully hold that Virendra Singh s case1 has been correctly decided
Apart from the recognition of the title of the respondent by the Constitution in this case the letter written by the Government of India dated October 1 1948 clearly recognized the title of persons situated in the position of the respondent to their properties
But the learned AttorneyGeneral contends that the letter shall be regarded as part of the merger agreement and therefore its terms cannot be relied upon for the purpose of recognition of the respondent s title or of evidence of the Govemment s waiver of its right to repudiate the respondent s title
It is true that in the concluding portion of the letter it is stated that the contents of the letter will be regarded as part of the merger agreement
But the merger had already taken place on June 10
1948 and this letter was written on October 1 1948
It does not appear from that letter that the Maharana of Sant State who ceased to be the Ruler except in name for certain privileges was a party to it
This letter therefore can at best be treated as one of the acts of the Government of India implementing the terms of the merger agreement
It cannot therefore be said to be a part of the merger agreement
If it was not by calling it so it did not become one
At the time the letter was sent all the citizens of the erstwhile Sant State had become the citizens of India
The letter contains a clear statement in paragraphs 5 and 7 thereof that enjoyment of ownership of jagirs grant etc
existing on April 1 1948 were guaranteed and that any order passed or action taken by the Ruler before the said date would not be questioned
This is a clear recognition of the property rights of the respondent and similar others
It is necessary therefore to express my opinion on the ques 1  534 tion whether even if the said letter formed part of the merger agreement any recital therein can be relied upon as evidence of recognition of pre existing titles by the absorbing State or waiver of its sovereign right to repudiate the said titles
For the aforesaid reasons I agree that the appeal should be dismissed with costs
For the same reasons Civil Appeals No 183 to 186 of 1963 are also dismissed with costs
HIDAYATULLAH J
These appeals by the State of Gujarat impugn a common judgment of the High Court of Gujarat dated January 24 1961
The respondents were plaintiffs in five suits for declaration of rights in forests and for permanent injunction against interference with those rights by the State
All suits except one were dismissed by the Court of first instance
The District Judge on appeal ordered the dismissal of that suit also and dismissed the appeals of the plaintiffs in the other suits
The plaintiffs then appealed to the High Court and by the judgment under appeal all appeals were allowed and the suits were decreed
The State Government has now appealed to this court by special leave
The forests in respect of which the declaration and injunction were sought are situated in the former State of Santrampur also called Sant State
Santrampur Was an Indian State and the Ruler attained independence and sovereignty on August 15 1947 on the ceasing of the para mountcy of the British Crown
The Ruler at first ceded his sovereignty on three subjects to the Government
of India but on March 19 1948 ceded the territory of the State to the Government of India by an agreement which came into force from June 10 1948
The Central Government by virtue of powers vested in it by the Extra Provincial Jurisdiction Act 1947 delegated its functions to the Provincial Government of Bombay and on June 2 1948 the Administration of the Indian States Order was passed and it was applied to Sant State from June 10 1948
On July 28 1948 the Indian States Application of Laws Order 1948 535 was passed
Certain enactments in force in the Province of Bombay were extended to Sant State and then under the States  Merger Governor s Provinces Order 1949 Sant State became a part of the Province of Bombay from August 1 1949
On October 1 1948 a letter of guarantee was written to the Ruler by Mr V P Menon in which it was stated
as follows   7
No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st day of April 1948 and it is considered by the Government of India to be palpably unjust or unreasonable
The decision of the Government of India in this respect will be final
 It was Added that the letter would be read as part of the original Merger agreement
A week before ceding the territories of his State the Ruler of Sant made a Tharao or Thavan order as follows Order 3
Outward Register No 371
The Jivak Patayat Inami Chakariyat Dharmada villages in Sant State are being given granted to Jagirdars and the holders of the said villages are not given rights over forests
Hence after considering the complaints of certain Jagirs they are being given full rights and authority over the forests in the villages under their vahivat
they should manage the vahivat of the forest according to the policy and ad ministration of the State
Orders in this regard to be issued
In English
Maharana Sant State
 536 The former grants which were made in favour of the jagirdars and holders of the villages have not been produced but they were probably like the grant of village Gothimada dated December 1 1857 which was to the following effect  
You have to do the vahivat management of the land situate within the permanent boundaries of the outskirts of the villages in four directions
This village has been granted for the appropriation and enjoyment of the income thereto except in respect of civil and criminal matters
So you must behave in the State in accordance with the custom and usage and practice of other Thakarati villages of the State
If any person of the village is ordered in regard to any work or matter then you should not in any way interfere therein but produce the said person as per order
You have to act and behave according to the said clauses and should remain with integrity and honesty and loyal to the State
Dated 1 121867 ADSY 1929 Magsar
Sudu 5
 After the Tharao was issued on March 12 1948 some of the Thakores executed contracts in favour of the plaintiffs between May 1948 and 1950
The agreements which were made with the contractors are on the file of the appeals
The Thakores and the contractors then began to take forest produce but they were stopped in April 1949
The present five suits were then filed
Four of the suits were instituted by the contractors and the fifth by one of the Thakores in the capacity as inamdar
After merger a question arose whether these contracts should be approved or not
On January 1949 on the application of one of the Thakores an order was passed by the Divisional Forests Officer
It was as follows 537 lm15 Gothimada village of santrampur State
Application of the owner requesting to grant authorization to the Contractor and states that he has no objection if the authorization is issued
Is the authorization up to Lunawada and Signally only time limit up to 31 3 1949
No export outside to be permitted pending receipt of orders from Government
Written undertaking to be taken from the purchaser that he will abide by the decision and orders passed by Government and then the authorization handed over
Send copy to FO Lunawada Similar orders were passed in respect of other villages and undertakings were taken from the Thakores and the con tractors
A sample is quoted here UNDERTAKING I Thakore Sardarsingh Gajesingh hereby give an undertaking to abide by the decision and or ers passed by the Government of Bombay in respect of Gothimada forests rights over which were conferred on me by Santrampur State Government on 12 3 48 in their resolution No G 371 dated 12 3 48
Authorization Nos 111 112 of 1948 49 in respect of village in Santrampur State issued by the Divisional Forest Officer Integrated States Division Devgad Baria in favour of Mr Hatimbhai Badruddin is subject to the above undertaking
Dated 1 2 49
in Gujarathi
 The Conservator of Forests North Western Circle also issued a memorandum on January 18 1949 stating  
However to safeguard the Government interest written undertaking should be taken from the jahagirdars Inamdars of person or persons
concerned that he or they would abide by the decision or orders passed by the Bombay Gov ernment in respect of such private forests when the question of rights over such private forests is finally settled
 When the undertakings were furnished passes were issued to the contractors
In April 1949 however the work of all the contractors was stopped and on July 8 1949 Government sent a communique to the Collector of Panch Mahals repudiating the Tharao of March 12 1948
In this letter it was stated as follows Reference your memorandum No ADMP 50 A11 dated 24th May 1949 Government considers that the order passed by the Ruler of the Sant State under his No 371 dated 12th March 1948 transferring forest rights to all the jagirdars of the jagir village are mala fide and that they should be cancelled
Before however taking further action in the matter please ascertain whether the possession of the forests in question is with Government or has gone to the Jagirdars
If the possession is still with Government please ask the Officer of the Forest Department to retain the same and to refuse to issue passes etc
to private contractors and purchasers
By order of the Governor of Bombay
Sd 
It appears that this was not communicated to the contractors of the Thakores
On June 29 1951 the Government of Bombay passed a resolution that the Maharana s order would not be given effect to
Another resolution was passed on February 6 1953 as follows On the eve of the merger of the Sant State in the State of Bombay the Ruler of that State issued Tharav No 371 on 12th March 1948 under which Jiwai Patawat Inami Chakriat and Dhannada Jagirdars and inamdars were given full forest rights over the villages in their charge
The Government 539 of Bombay after considering the implication of the Tharav decided that the order was mala fide and cancelled it on 8th July 1949 vide Government Letter Revenue Department No 2103 M 49 dated the 8th July 1949
By the time these orders were issued the tree growth in the Jagiri forests concerned was already sold by some of the Jagirdars and the trees cut
Further cutting of trees and export of trees cut was however stopped by the Forest Department after receipt of the orders of 8th July 1949
On representation being made to Government however agreed to allow to release the material felled from the forest under dispute pending decision on the settlement of forest rights subject to the condition that the contractor furnished two sureties solvent for the material removed or deposited with the Divisional Forest Officer certain amount per wagon load of material
The owner of the material was also asked to give a written undertaking that he would abide by the ultimate decision of Government
   5
Government is however pleased to examine individual cases of Jagirdars and inamdars irrespective of the Tharav of 1948 on the basis of the Forest Settlement Officer s Report and other considerations
The question of forest rights in the following villages is still under consideration of Government and necessary orders in that behalf will be issued in due course 1 Nanirath
2 Gothimada
3 Rathada
    Before this the suits we are dealing with were filed
The contention of the plaintiffs was that the Merger agreement of March 1948 was not an Act of State because it was preceded by surrender by the Ruler of sovereignty in respect of three subjects
This contention was not accepted in the High Court and has not been raised here
The next conten tion was that the Tharao or order of March 12 1948 was a 540 legislative act and as all the old laws of the State were to continue to be in force except as modified by the Indian States Application of Laws Order 1948 the Tharao could be revoked by the appellant by Legislative authority only and not by an executive act
The High Court did not accept this contention because according to the High Court the Tharao was not a piece of legislation but was a rant by the Ruler
The third contention was that the Central Government through Mr V P Menon has undertaken not to question any order or action taken before 1st April 1948 and that this created a bar to the repudiation of the order of the Maharana dated March 12 1948
This contention was not accepted by the High Court
The High Court held that the letter formed a part of an Agreement which could only be enforced by the High Contracting Parties if at all but not by any other person and in any event municipal courts had no authority to enforce the agreement
The High Court relied upon article 363 of the Constitution and the decisions of this Court
The High Court however accepted the contention of the plaintiffs that it was open to the succeeding sovereign to waive or relinquish its right to repudiate the actions of the previous Ruler and to acknowledge either expressly or impliedly the rights conferred on the subjects of the previous Ruler and that this had been done in this case
They referred to the permission which had been given by the officers of the Forest Department to the plaintiffs in this suit to cut and carry away the timber and regarded the letter of Mr V P Menon as evidence of waiver and relinquishment
They held on the authority of Virendra Singh and Others vs The State of Uttar Pradesh1 and Bholanath J Thakar vs State of Saurashtra 2 and the judgment of the Bombay High Court in Bhoirajji vs Saurashtra State3 that the Government must in these circumstances be held to have waived or relinquished its rights to enforce the Act of State against the plaintiffs
On behalf of the appellant it is urged a that the Act of State continued till the resolutions were passed and there 1  2 AIR 1954 SC 680 3 541 was no waiver or relinquishment in favour of the appellants and b that the action of the subordinate officers of the Forest Department did not bind Government and the res pondents cannot take advantage of the letter of Mr V P Menon
On behalf of the respondents in addition to meeting the above arguments it is contended that the Tharao was a law and could only be revoked by another law
It is further argued that after the Merger section 2991 of the Government of India Act 1935 which read No person shall be deprived of his property in British India save by authority of law protected the respondents and this protection became absolute on January 26 1950 by reason of article 31 of the Constitution
As the resolutions in question were passed after the commencement of the Constitution it is urged that they cannot affect the rights of the respondents who came under the protection of article 31 of the Constitution
It is contended that in any case the Act of State could not operate against the citizens of the State which the res pondents became on the Merger or on the inauguration of the Constitution
It is also argued on behalf of the res pondents on the authority of a case of the Permanent Court of International Justice and certain cases of the Supreme Court of the United States that the Act of State should not interfere with rights in property held from a former Ruler
The appellant contends in reply that the Act of State continued because the contractors and jagirdars were permitted to work the forests on their furnishing under takings and it was only completed against them in April 1949 when they were asked to stop their work even though the actual order of Government deciding whether to accept the Tharao or not was communicated to them in 1953
It is argued that what was of real consequence was not the decision of the Government but the stoppage of the work
It is also argued that section 2991 did not protect the respon dents against the Act of State and that as there was no State succession on January 26 1950 the original Act of State did not come to an end
It is also pointed out that this Court has not accepted the rule of International Law referred to in Virendra Singh s case1 and has instead acted on 1  542 the doctrine of Act of State as interpreted by the Courts in England
I shall deal with these points in brief because most of them have been decided against the respondents in the High Court on the basis of earlier rulings of this Court
To begin with this Court has interpreted the integration of Indian States with the Dominion of India as an Act of State and has applied the law relating to an Act of State as laid down by the Privy Council in a long series of cases beginning with Secretary of State in Council for India vs Kamachee Boye Saheba1 and ending with Secretary of State vs Sardar Rustam Khan and Other2
The cases on this point need not be cited
Reference may be made to Ms Dalmia Dadri Cement Co Ltd vs Commissioner of Income tax3 The State of Saurashtra vs Menon Haji Ismali Haji4 jaganath Agarwala vs State of Orissa4 and State of Saurashtra vs Jamadar Mohamed Abdulla and Others5
In these cases of this Court it has been laid down that the essence of an Act of State is an arbitrary exercise of sovereign power on principles which are paramount to the Municipal Law against an alien and the exercise of the power is neither intended nor purports to be legally founded
A defence that the injury is by an Act of State does not seek justification for the Act by reference to any law but questions the jurisdiction of the court to decide upon the legality or justice of the action
The Act of State comes to an end only when the new sovereign recognises either expressly or impliedly the rights of the aliens
It does not come to an end by any action of subordinate officers who have no authority to bind the new sovereign
Till recognition either express or implied is granted by the new sovereign the Act of State continues
If we apply these tests rightly applied in the High Court we reach the result that the Government of Bombay and the Central Government could refuse to recognise the rights created on the eve of the Merger by the Tharao of the Maharana and to say that it was not acceptable to them and therefore not binding on them
Such action may be 1  3 1959 SCR 729 5  2 1941 68 IA 109
4 1960 1 SCR 537
6 543 harsh or unfair but the Municipal Courts cannot declare it to be so because unless the rights are irrevocably recog nised earlier the Municipal Courts have no jurisdiction to pronounce upon the legality or the justness of the action
It is for this reason that the respondents pleaded in the High Court that there was a waiver or relinquishment of the Act of State in their favour
Relinquishment and waiver were again relied upon by the respondents before us and they refer to two circumstances from which an inference about waiver or relinquishment can be raised
The first is cl 7 of the letter of Mr V P Menon quoted above and the second is the conduct of the officers of the Forest Department in allowing the contractors and the jagirdars to work the forests in accordance with the Tharao of the Maharana
Cl 7 of a similar letter of guarantee was considered by this Court in Maharaj Umeg Singh and Others vs The State of Bombay and Others1
In that case also arguments were the same as here
It was then contended that the Ruler s agreement with the Government ensured for the benefit of the subjects even if they were not parties to the agreement
It was then pointed out on behalf of the Government that the agreement if any could not be sought to be enforced by persons who were not parties to it
This Court observed We do not feel called upon to pronounce upon the validity or otherwise of these contentions also for the simple reason that the petitioners would be out of Court either way
If they were deemed to be parties to the agreements of merger and letters of guarantee they would be faced with the bar to the maintainability of the petitions under Article 363 of the Constitution which lays down that neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty agreement covenant engagement sanad or other similar instrument which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State and to which the Government of 1  544 the Dominion of India was a party
If on the other hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations
 It would therefore appear that the present respondents who were not parties to the Merger agreement or to the letter written by Mr Menon which was made expressly a part of the Agreement cannot take advantage of cl 7
If they were parties article 363 would bar such a plea
It is next contended that the Act of State had come to an end after the Government of India Act 1935 was applied to the State and the State became a part of the territories of the Government of India
This argument was raised to claim the benefit of section 299 1 of the Government of India Act 1935
The interference with the rights in forests conferred by the Tharao and the agreements with the contractors based on the Tharao took place in April 1949
It was contended that on June 10 1948 the subjects of Sant State became Indian citizens and they were protected by section 2991
The Officers of the Forest Department did not unconditionally allow the forests to be worked
They made it clear to the contractors and the jagirdars that what they were doing was not final and that Government was going to decide about the Tharao and the contracts later
No doubt the forests were allowed to be worked but an undertaking was obtained from each contractor and jagirdar
This showed that the officers of the Forest Department did not attempt to bind the Government even if they could
It is true that the order of Government to stop work was not communicated to the contractors and the jagirdars but the working of the forests was as a matter of fact stooped much earlier and the learned Attorney General is right in pointing out that it was all that mattered
This action of the officers was later approved by Government when it decided that it would not allow any rights to flow from the Tharao and the contracts
In other words while Government was considering the matter the officers of the Forest Department tentatively allowed the forests to be worked but in no manner to bring the Act of State to art end
The Act 545 of State could only come to an end if Government recognised the rights flowing from the Tharao
That Government never did
There was thus no recognition of the Tharao or the rights flowing from it at any time
It was pointed out by this Court in Aggarwala s case1 that Government may take time to consider and delay does not militate against the Act of State
In that case also the decision of Government was taken after the coming into force of the Constitution
This Court pointed out agreeing with Vaje Singhji jorawar Singh vs Secretary of State for India2 that enquiries may continue for some time without any inference of waiver or relinquishment
No doubt in Bholanath Thaker s case3 and in Virendra Singh s case4 waiver or relinquishment was inferred from the conduct of Government
Such an inference may legitimately be raised where Government after having accepted the rights attempts to go back upon such acceptance
There must however be a clear indication either expressly or by implication that Government has in fact accepted the rights
In the present case the subordinate officers of the Forest Department allowed the forests to be worked making it quite clear that Government was considering the matter and took undertakings from the respondents that they would abide by the decision of Government
Government passed an order declining to accept the Tharao
The order so passed was not communicated to the respondents but later it was reiterated as a resolution which was communicated
To avoid this result there are two arguments upon which the respondents rely and they are the main contentions in these appeals
The respondents seek support for the judgment by challenging the decision on some of the points decided against them
The first is that the Tharao was a law which could only be rescinded by another law
In this connection the respondents rely upon the observations made by this Court in Madhaorao Phalke vs The State of Madhya Bharat5
These observations were based upon 1  2 1924 L R 51 I A 357
3 A IR 4  5  964 134 159 SC 35
546 the earlier case in Ameer un nissa Begum and Others vs Mehboob Begum and Others1
In these cases it was pointed out that the distinction between legislative executive and judicial acts of an absolute Ruler such as the Indian Rulers were was apt to disappear when the source of authority was the sovereign
These observations are sought to be applied here
In the past also these observations were invoked on occasion
In so far as the subjects of the Ruler were concerned they were bound to obey not only laws but any orders of the Ruler whether executive or judicial
For them they did not exist any difference because each emanation of the will of the sovereign required equal obedience from them
But it does not mean that the Ruler acted legislatively all the time and never judicially or executively
If this was the meaning of the observations of this Court then in Phalke s case2 it would not have been necessary to insist that in determining whether there was a law which bound the succeeding sovereign the character
content and purpose of the declared will must be independently considered
In Ameer un nissa s case3 this Court was concerned
With a Firman of the Nizam and that was one of the accepted modes of making laws in Hyderabad State
In Phake s case2 this Court was concerned with Kalambandis which were held by this Court to be laws binding upon the subsequent Government unless repealed or replaced by other law
The Kalambandis were so regarded partly because the Maharana had himself laid down that Kalambandis issued by him were to be regarded as law and partly because the Kalambandis created a tenure which carried with it pensions
The pensions were grants but the manner of enjoyment of the pensions was determined by the rules of tenure provided in the Kalambandis also bearing upon succession and devolution
These cases were distinguished in more recent cases when the observations were sought to be extended to others which were clearly not legislative and reference may be made to Maharaj shree Umaid Mills Ltd vs Union of India and Others3 and The Bengal Nagpur Cotton Ltd vs The Board of Revenue Madhya Pradesh and Others4
It was pointed 1 ATR 2   964
3 ATR 4  547 out in these two cases that the observations in Ameer un nissa s case1 Phalke s case2 could not be read as indicating that everything that the Maharaja said or ordered was a law
In the latter case this Court pointed out that a proper law would be one which was made in accordance with the traditional mode of making laws in the territory or in accordance with some procedure which was expressly devised for tile occasion
It was pointed out that law is the result of a legislative process and the result must be intended to bind as a rule of conduct it must not for example be a contract or a grant or a gift etc
Viewed from this angle it is quite obvious that the Tharao was not a law
It was a grant made to the jagirdars mentioned in the Tharao
It is contended that it is made applicable to persons belonging to five different tenures and that the management  of the forests was to be done according to the policy and administration of the State
No doubt the Tharao is applicable to a large number of persons enjoying different tenures but it is stated therein that orders were to be issued individually to all of them
The Tharao was issued only 8 days before the Merger
It is surprising that the Maharaja thought of the complaints of the grantees on the eve of the Merger
The fact that the Maharana s Tharao was passed to benefit a large number of persons en bloc does not make it any the more a law if it did not possess any of the indicate of a law
The respondents would not admit that if it had been addressed to individuals it would have changed its character from a law to a grant
This fact makes no difference to its character
content and purpose
Further the original grant of which the Tharao became a part was also a grant
One such grant has been quoted above
The word Vahivat does show that the grant was for management but in this context it means more than management
It was customary to use this word in conferring rights which were liable to be resumed
These grants did give rights to the grantees but did not lay down any rule of conduct
It may be pointed out that in Umeg Singh s case3 it was contended that cl 5 of the letter of 1 AIR 1955 SC 352
2   3 1955 2 SCR164
548 Mr Menon prevented legislation and it was then held that the grants were not legislative measures of the Maharaja and did not bar the making of laws to set the grant at naught
In that case also there was a Tharao in dispute
The Tharao cannot therefore be treated as a law at all
It is a grant and as a grant it was open to the new sovereign not to recognise it
It was contended that in any event after the commencement of the Government of India Act 1935 the respondents had the protection of section 2991
This point was raised but was left open by the majority in Jamadar s case1 to which we have already referred
On that occasion Sarkar and Mudholkar JJ
in a separate judgment held that section 2991 did not afford any protection
The learned Judges pointed out that section 2991 did not add to the rights of persons but protected such rights as existed
If on the Merger of the territories of the Indian Rulers with those of the Government of India
there was Act of State and if as held by this Court in the cases to which reference has alreadY been made it was open to the Government of India to decide whether or not to recognise certain rights the Government of India could do so
In that event section 2991 did not come into play because it could only come into play after the rights were recognised
The Act of State continued because Government was taking time to consider whether to accept the Tharao or not and while the decision was being reached there was a second change inasmuch as the present Constitution was passed
It is contended that there was a lapse of the original Act of State because of a State succession on January 26 1950 and as this was before the Resolutions of 1951 and 1953 the respondents were protected
The first question to consider is whether there took place in 1950 a State succession
State succession takes place either in law or in fact
It takes place in law when there is a juridical substitution of one State for another
It take place in fact when there is a annexation 2 or b cession2 1 2 eg Algiers by France 1831 or South African Republic by Great Britain 1901
3 eg the Ionian Islands by Britain to Greece 1864 or territory to Poland by Germany
549 or c fusion of one State with another into a federal Union 2 or e partition ration of secession3
It will be seen that on the 26th January 1950 there was no succession in fact because none of these events took place
As Oppenheim defined succession A succession of International Persons occurs when one or more International Persons take the place of another International Person in consequence of certain changes in the latter s position International Law 5th edn
p 151
 In this sense though the people of India gave themselves a Constitution there was no State succession in so far as the people of Sant State were concerned
For them the State succession was over sometime before
No doubt when the Dominion of India became a sovereign Democratic Republic there was a breaking away from the British Crown but that was a State succession in a different field
We are not concerned with the secession of India from the British Crown but with State succession between Sant State and India and there was no second succession in 1950
Whatever had happened had already happened in 1948 when Sant State merged with the Dominion of India
The Act of State which began in 1948 could continue uninterrupted even beyond 1950 and it did not lapse or get replaced by another Act of State
The Constitution no doubt guaranteed the rights of citizens after 1950 but these rights granted by the Ruler were fort recognised even before 1950 and the Constitution gave its support to those rights which were extant on January 26 1950
It only remains to consider the argument of Mr Purushotham based on the view of Chief Justice John Marshall of the Supreme Court of the United States expressed in US vs Percheman3 followed by Cardozo J in 1937 1 eg Fusion of Serbia with croat etc
to form Yugoslavia
2 eg Hawaii in USA 3 eg India and Pakistan
4 eg
USA from Britain
5  at 86 87 550 in Shapleigh vs Mier1
It was there laid down that private ownership is not disturbed by changes in sovereignty and that according to the modern usage of nations a cession of territory is not understood to be cession of the property of the inhabitants
These two cases were referred to in the judgment of Bose J in Virendra Singh s case 2 who pointed out that these principles were also reflected in the Sixth Advisory Opinion of September 10 1923 of the Permanent Court of International Justice
Mr Purushotham cited other cases where the Supreme Court of the United States had considered obligations which old Spanish and Maxican treaties had created
It was argued that this represents the modern and progressive view and we were asked to revise the entire law of Act of State as understood in India during the past 100 years and particularly the last dozen years
The principle on which this Court has acted in the past few years has been amply indicated earlier in this judgment
It may be summarized in the words of Fletcher Moulton L J in Salaman vs Secretary of State for India3 An Act of State is essentially an exercise of sovereign power and hence cannot be challenged controlled or interfered with by municipal courts
Its sanction is not that of law but that of sovereign power and whatever it be municipal courts must accept it as it is without question
But it may and often must be part of their duty to take cognizance of it
For instance if an act is relied on as being an act of State and as thus affording an answer to claims made by a subject the courts must decide whether it was in truth an act of State and what was its nature and extent
The Courts in England have also acted on the further principle which may be shortly stated in the words of Lord McNair4 1  at 470
2  3 1906 1 K B 613
4 International Law Opinions 1956 Vol  See also O Connel Y B 551 The term Act of State  is used not only narrowly to describe the defence explained above but also perhaps somewhat loosely to denote a rule which is wider and more fundamental namely that those acts of the Crown which are done under the prerogative in the sphere of foreign affairs  sometimes called Acts of State  or Matters of State  for instance the making of peace and war the annexation or abandonment of territory the recognition of a new State or the new Government of an old State etc cannot form the basis of an action brought against the Crown or its agents or servants by any person British or alien or by any foreign State in British Municipal Tribunals
Such acts are not justiciable in British Courts at the suit either of British subjects or of aliens they may form the subject of political action in Parliament or when the interests of foreign States or their nationals are involved of diplomatic protest or of any international judicial process that may be available
We are not concerned with the obligations created by treaty which according to the opinions of some writers run with the land  and bind the territory
Other writers as pointed out by Lord McNair in his Law of Treaties by Keith in his Theory of State Succession and Crandall in Treaties Their Making and Enforcement
hold that on cession the treaties are abrogated automatically
Such a view was taken by the United Kingdom and United States when Algiers was annexed by France and by the former when South Africa was annexed by Great Britain and by the United States when Korea was annexed by Japan in 1910
See Mervyn jones B Y B  Dr C W Jenks B Y B
On the other hand the treaties of the annexing or cessionary State are held to apply to the new territories
These are treaties with other States which is not the case here
Where is the treaty here The rights conferred by the Ruler were not the result of a treaty
Nor 552 can the Merger agreement be exalted to the position of a treaty
There is no treaty involved here
Even if it were possible to hold that there was a treaty between the Ruler and the Central Government there is no power in the Municipal Courts in India to pronounce upon the Agreement as the subject is outside their jurisdiction by reason of article 363
This distinguishes the jurisdiction and power of the Supreme Court of the United States in which consideration of treaties is included
The bar of our Constitution also precludes the consideration whether these agreements can be to be of the nature of treaties
As regards the principles of International Law it may be pointed out that after the Report of the Transvaal Concessions Commission and Professor Keith s theories in his book the attention of the world communities has indeed been drawn to the preservation of economic concessions and acquired rights by the annexing or cessionary State
When the Indian Islands were ceded to Greece the Law Officers Sir Robert Phillimore was one of them advised Both according to the principles of International Law and the practice of all civilised States ceded territories pass cum onere to the new sovereign  Opinion of 15th August 832287 McNair International Opinions Vol
1 p 156
Similar advice was given on the occasion of annexation of Peruvian territory by Chile 1884 of Madagascar by France 1896 cession of Cuba and the Philipines by Spain 1898
McNair ibid pp
157 et seq
Again at the annexation of the Boer Republics between 1900 and 1909 what should be the attitude of Britain led to domestic controversy
The legal advisor to the High Commissioner advised that responsibility arising from obligations incurred by the South African Republic and Orange Free State could be repudiated but the Law Officers in England reported that a Government annexing territory annexes it subject speaking generally to such legal obligations as have been incurred by the previously existing Government
The obligations included concessionary contracts but the Law Officers added a 553 rider that the duty to observe such contracts cannot be enforced in a municipal court it rests merely on the recognition of International Law of what is equitable upon the acquisition of property of the conquered State see opinion of 30th November 1900 FO quoted by B Y B 1950 at p 105
The Transvaal Concessions Commission made its report in April 1901
The report said inter alia After annexation it has been said the people change their allegiance but their relations to each other and their rights of property remain undisturbed and property includes rights which lie in contract
Concessions of the nature of those which are the subject of enquiry present examples of mixed public and private rights  they probably continue to exist after annexation until abrogated by the annexing State and as a matter of practice in modern times where treaties have been made on cession of territory have often been maintained by agreement
 The Commission however said that no rule of International Law compelled this but added that the best modern opinion favoured that such rights should be respected
The distinction between what is a rule of law and what is a rule of ethics was criticised  see Westlake in 1901 17 Law Quarterly Review p 395
However Prof Keith gave support to the view
The report of the Commission was considerably influenced by the opinion in Cook vs Sprigg1 International experts however in drafting the terms of settlement of the first Balkan War accepted a new formula in 1920 by which the cessionary State was treated as subrogated in all rights and changes
These opinions were put to test in some cases before the Permanent Court of International Justice in connection with the Jaffa Concessions and the case of the German Settlers Case
In the former the Court decided for technical reasons that it had no jurisdiction but added that if Protocol XII left intact the general principles of subrogation the administration of Palestine was bound to recognise the Jaffa 1 554 Concessions in consequence of the general principles of International Law In the case of Settlers of German origin in territory ceded by Germany to Poland and German interest in Upper Silesia case PCIJ series B No 6 and series A No 7 the doctrine of acquired rights was accepted in respect of private rights
The term acquired rights has not received a consistent meaning in this connection
It is not the notion of ius quaesitum which was the result of juristic activity following upon the social contract theory
In International Law it has different meanings
At one extreme is the view that it must be a grant to an individual of rights under municipal law which touch public interest and at the other end every economic concession is held included
Of course even International Law does not recognisea universal succession
The term economic concessions must involve a contract between the State or a public authority on the one hand and a concessionaire on the other and must also involve an investment of capital by the latter for erection of public works or exploitation in the public sector
Such cases are the Mavromma is case Lighthouses case Lighthouses in Crete and Samos case PCIJ Series A No 5 and Series A B No 62 and 71 
Cases of mere private rights without any corresponding benefit to the public are not regarded as concessions but there are two cases in which it has been ruled that private rights must be respected
They are the case of Poland mentioned above
Most of the cases deal with Concessions in which there are reciprocal advantages
All this recognition is still in the diplomatic field
It has never gone beyond political consideration except in the United States
The cases of the United States are mostly to be found in 2 12 Peters and the leading case is U section vs Percheman 1
Occasionally the question of concessionary rights has been considered in the Courts in England  but of that latter
In U section vs Percheman1 Chief Justice John Marshall observed It may not be unworthy of remark that it is very unusual even in cases of conquest for the 1 555 conqueror to do more than to displace the sovereign and assume dominion over the country
The modem usage of nations which has become law would be violated that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged if private property should be generally confiscated and private rights annulled
The people change their allegiance their relation to their ancient sovereign is dissolved but their relations to each other and their rights of property remain undisturbed
If this be the modern rule even in cases of conquest who can doubt its application to the case of an amicable cession of territory 
A cession of territory is never understood to be a cession of the property belonging to its inhabitants
The King cedes that only which belonged to him
Lands he had previously granted were not his to cede
Neither party could so understand the cession
Neither party could consider itself as attempting a wrong to individuals condemned by the practice of the whole civilised world
The cession of a territory by its name from one sovereign to another conveying the compound idea of surrendering at the same time the lands and the people who inhabit them would be necessarily understood to pass the sovereignty only and not to interfere with private property
 These words of Chief Justice Marshall have been quoted in legal opinions and have influenced international opinion
The question has been raised that we must accent this as the exposition of the law to be applied by municipal courts here
The doctrine in the United States is not unlimited
Limitations were pointed out by Chief Justice John Marshall himself in the case of Foster vs Nielson1
That case 1  556 involved the effect upon private land titles of a phrase in an Article of a treaty with Spain
That phrase was shall be ratified and confirmed to those in possession
It was as the Chief Justice said in the language of contract and
it required legislative implementation before titles could be claimed
This has led to a differentiation between self executing treaties and non self executing treaties
Says Chief Justice John Marshall A treaty is in its nature a contract between two nations not a Legislative Act
It does not generally effect of itself the object to be accomplished especially so far as its operation is infra territorial but is carried into execution by the sovereign powers of the respective parties to the instrument
In the United States a different principle is established
Our Constitution declares a treaty to be the law of the land
It is consequently to be regarded in courts of justice as equivalent to an Act of Legislature whenever it operates of itself without the aid of any legislative provision
But when the terms of the stipulation import a contractwhen either of the parties engages to perform a particular act the treaty addresses itself to the political not the Judicial Department and the Legislature must execute the contract before it can become a rule for the Court
 In India the position is different
Article 253 enables legislation to be made to implement international treaties
This means that the law would bring the treaty in the field of municipal law
The matter was considered in one cam Birma vs The State1 where the High Court declared Treaties which are a part of international law do not form part of the law of the land unless expressly made so by the legislative authority
This accords with what has been said by me but the judgment seems to suggest that treaties which do not affect private 1 AIR 1951 Rai
557 rights also require legislative implementation
This is not quite accurate because it is not necessary that all treaties must be made a part of municipal law
I agree with Alexander in International Law in India in International and Comparative Law Quarterly 1952 p 289 at p 295
Preuss Michigan Law Review 1953 p 1123 n 151 calls it a rare example of a treaty which was not enforced without legislative sanction
The only other example he gives is Re Arrow River and Tributaries Slide and Boom Co Ltd see BYB 1953 30 pp 202 203
The precedent of the United States cannot be useful because it has been held by the Supreme Court of the United States that although the Courts have no power to question the validity of the Act of State they can consider its effect
See U section vs Percheman1 at P 86 and that the enunciation of treaties must be accepted by Courts Clark vs Allen 2
Our practice and Constitution shows that there are limitations upon the powers of Courts in matters of treaties and Courts cannot step in where only political departments can act
The power of the Courts is further limited when the right is claimed against the political exercise of the power of the State
Again the right claimed here is not even a concessionary right such as he has received the support of international writers
It is more of the nature of a gift by the ruler at the expense of the State
It lacks bona fides which is one of the things to look for
There is no treaty involved and whatever guarantee there is the Constitution precludes the municipal courts from considering
Politically and ethically there might have been some reason to accept and respect such concessions but neither is a reason for the municipal courts to intervene
The position of the municipal courts according to English Jurisriudence has been noticed in earlier cases
To them may be added the following considerations
In Amodu Tijani vs Secretary Southern Nigeria 3 it was said a mere change in sovereignty is not to be presumed as meant to disturb rights of private owners and 1 2  3 558 the general terms of a cession are prima facie to be construed accordingly p 407
Again in West Rand Central Gold Mining Co vs Regem1 it was said It must not be forgotten that the obligations of conquering states with regard to private property of private individuals particularly land as to which the title had already been perfected before the conquest or annexation are altogether different from the obligations which arise in respect of personal rights by contracts
 The observations in Amodu Tijani s case2 were cited before the Privy Council in Sardar Rustam Khan s case3
But Lord Atkin after referring to all cases from Kamachee Boye Saheba4 referred to the observations of Lord Halsbury in Cook vs Sprigg5
It is well established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal courts administer
It is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assume the duties and legal obligations of the former sovereign with respect of such private property within the ceded territory
All that can be properly meant by such a proposition is that according to the well understood rules of international law a change of sovereignty by cession ought not to affect private property but no municipal tribunal has authority to enforce such an obligation
Lord Atkin referred in his judgment to Secretary of State vs Bai Raibai6 and Vajje Singh s case7  as laying the 1 3 1941 68 I A 1094 1859  5 6 1915 L R 42 IA 229
7 1924 L R 51 IA 357
559 limits of the jurisdiction of municipal courts
These cases have been applied in several decisions by this Court and the view of the Supreme Court of the United States or the view taken in International Law has not been accepted
It is not that the Courts in England have not been pressed by the rules of International Law as a science
As Westlake pointed out in the Nature and Extension of Title by Conquest op
cit The authorities on the law of England appear to be prepared to pay that homage to international law
We may refer to what was said by Vice Chancellor Lord Cranworth in King of the Two Sicilies vs Willcox I Sim
NS 327 9 and by Vice Chancellor Wood in United States of America vs Prioleau  and to the generality of the proposition laid down by Vice Chancellor James in United States of America vs Mcrae LR8
I apprehend it  he said to be the clear public universal law that any government which de facto succeeds to any other government whether by revolution or restoration conquest or reconquest succeeds to all the public property to everything in the nature of public property and to all rights in respect of the public property of the displaced power whatever may be the nature or origin of the title of such displaced powers
But the rule that the Act of State can be questioned in a Municipal Court has been adopted and it has been considered that it is a matter for the political departments of the State
To quote from Cook vs Sprigg1
 if there is either an express or a well understood bargain between the ceding potentate and the Government to which the cession is made that private property shall be respected that is only a bargain which can be enforced by sovereign 1 560 against sovereign in the ordinary course of diplomatic pressure
 I do not therefore accept the contention that a change of opinion is necessary
Even Bose J did not decide in Virendra Singh s case1 on the basis of international law or the opinion of the Supreme Court of the United States
In my opinion these are matters for the political department of the State
However desirable it may be that solemn guarantees should be respected we cannot impose our will upon the State because it is outside our jurisdiction
For these reasons I would accept the appeals and would set aside the judgment under appeal and restore the decrees dismissing the suits with costs throughout
SHAH J
The Ruler of Sant State had made grants of villages to jagirdars but without right to trees
On March 12 1948 the Ruler issued an order reciting that the holders of the villages were not given rights of the forests and after considering the complaints of certain jagirdars they were given full rights and authority over the forests in the villages under their vahivat
The jagirdars were directed to manage the forests according to the policy and administration of the State
The respondents claim in these appeals that the rights of the grantees to the forests were not liable to be cancelled by the Dominion of India after the merger of the State of Sant in June 1948 and by executive action the Government of Bombay was not competent to obstruct the exercise of those rights
Pursuant to the agreement dated March 19 1948 as from June 1 1948 the State of Sant merged with the Dominion of India
The sovereignty of the Ruler was thereby extinguished and the subjects of the Sant State became citizens of the Dominion of India
Accession of one State to another is an act of State and the subjects of the former State may as held in a large number of decisions of the Judicial Committee and of this Court claim protection of only such rights as the new sovereign recognises as enforceable by the subjects of the former State in his municipal courts
1  561 In The Secretary of State in Council of India vs Kamachee Boye Saheba1 the jurisdiction of the courts in India to adjudicate upon the validity of the seizure by the East India Company of the territory of Rajah of Tanjore as an escheat on the ground that the dignity of the Raj was extinct for want of a male heir and that the property of the late Rajah lapsed to the British Government fell to be determined
The Judicial Committee held that as the seizure was made by the British Government acting as a sovereign power through its delegate the East India Company it was an act of State to inquire into the propriety of which a Municipal Court had no Jurisdiction
Lord Kingsdown observed at p 529 The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer Such Courts have neither the means of deciding what is right nor the power of enforcing any decision which they may make
 In Vajesingji joravarsingji vs Secretary of State for India Council1 the Board observed at p 360  when a territory is acquired by a sovereign State for the first time that is an act of State
It matters not how the acquisition has been brought about
It may be by conquest it may be by cession following on treaty it may be by occupation of territory hitherto unoccupied by a recognized ruler
In all cases the result is the same
Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has through his officers recognised
Such rights as he had under the rule of predecessors avail him nothing
Nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights that does not give a title to those 1 7 Moode s IA 476
2 LR 51 IA 357
184 159 sc 476
562 inhabitants to enforce these stipulations in the municipal courts
The right to enforce remains only with the high contracting parties In Secretary of State vs Sardar Rustam Khan and Others1 in considering whether the rights of a grantee of certain proprietary rights in lands from the then Khan of Kalat ceased to be enforceable since the agreement between the Khan and the Agent to the Governor General in Baluchistan under which the Khan had granted to the British Government a perpetual lease of a part of the Kalat territory at a quit rent and had ceded in perpetuity with full and exclusive revenue civil and criminal jurisdiction and all other forms of administration it was observed by Lord Atkin delivering the judgment of the Board that   in this case the Government of India bad the right to recognise or not recognise the existing titles to land
In the case of the lands in suit they decided not to recognize them and it follows that the plaintiffs have no recourse against the Government in the Municipal Courts
 The rule that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights which the new sovereign recognises has been accepted by this Court in Ms Dalmia Dadri Cement Co Ltd vs The Commissioner of Income tax2 jagannath Agarwala vs State of Orissa 3 Promod Chandra Deb and Others vs The State of Orissa and Others4 and The State of Saurashtra vs Jamadar Mohamad Abdulla and others5 and may be regarded as well settled
Mr Purshottam on behalf of the respondents however contended that this rule was a relic of the imperialistic and expansionist philosophy of the British Jurisprudence which 1 L R 68 IA 109
2 1959 SCR 729
3  4 1962 Suppl
1 SCR405
5 563 is inconsistent with our Constitutional set up
Counsel submits that in jurisdictions where truly democratic institutions exist the rule laid down by the Judicial Committee has not been accepted
The rule is counsel submits inconsistent with the true spirit of our Constitution which seeks to eschew all arbitrary authority and establishes the rule of law by subjecting every executive action to the scrutiny of the courts and to test it in the light of fundamental rights
Counsel says that the true rule should be the one which has been recognized by the Supreme Court of the United States that of the accession of a State to another private rights of the citizens enforceable against their sovereign are not affected and may be enforced in the Courts of the new sovereign
In support of this argument Mr Purshottam relied upon the observations made by Marshall C J in United States vs Percheman1 The people change their allegiance their relation to their ancient sovereign is dissolved but their relations to each other and their rights of property remain undisturbed
If this be the modern rule even in cases of conquest who can doubt its application to the case of an amicable cession of territory  A cession of territory is never understood to be a cession of the property belonging to its inhabitants
The king cedes that only which belonged to him
Lands he had previously granted were not his to cede
Neither party could consider itself as attending a wrong to individuals condemned by the practice of the whole civilised world
The cession of a territory by its name from one sovereign to another conveying the compound idea of surrendering at the same time the lands and the people who inhabit them would be necessarily understood to pass the sovereignty only and to interfere with private property
 But the rights and their enforceability in the Municipal Courts of a State must depend upon the will of the sovereign
The sovereign is the fountain head of all rights all laws and 1 1833   at 86 87
564 all justice within the State and only those rights which are recognised by the sovereign are enforceable in his Courts The Municipal Courts which derive their authority from their sovereign and administer his laws cannot enforce the rights Which the former sovereign whose territory has merged or been seized by the new sovereign recognised but the new sovereign has not for the right to property of the citizen is only that right which the sovereign recognises
It may also be observed that the constitutional provisions in the United States are somewhat different
Under the Con stitution of the United States each treaty becomes a part of the law of the land the provisions thereof are justiciable and the covenants enforceable by the Courts
Recognition of the rights of the citizens of the acceding State being the prerogative of the sovereign if rights be recognized by treaty which by the special rules prevailing in the United States become part of the law of the land they would be enforceable by the Municipal Courts Under the rule adopted by this Court a treaty is a contract between two nations it creates rights and obligations between the contracting States
but there is no judicial tribunal which is competent to enforce those rights and obligations
The treaties have not the force of law and do not give rise to rights or obligations enforceable by the Municipal Courts as observed by Hyde in his International Law vol
1 p 433 Acknowledgement of the principle that a change of sovereignty does not in itself serve to impair rights of private property validly acquired in areas subjected to a change does not of course
touch the question whether the new sovereign is obliged to respect those rights when vested in the nationals of foreign States such as those of its predecessor
Obviously the basis of any restraint in that regard which the law of nations may be deemed to impose must be sought in another quarter
 The observations made by Marshall C J have received repeated recognition in treaties of cession concluded by the 565 United States
But as observed by Lord Halsbury in cook vs Sprigg1 It is a well established principle of law that the transactions of independent States between each other are governed by the others laws than those which Municipal Courts administer
it is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to such private property within the ceded territory
All that can be properly meant by such a proposition is that according to the well understood rules of international law a change of sovereignty by cession ought not to affect private property but no municipal tribunal has autho rity to enforce such an obligation
 It was then urged that by cl 7 of the letter of guarantee written by Mr V P Menon on behalf of the Government of India on October 1 1948 which was to be regarded as expressly stated in that letter as part of the merger agreement dated March 19 1948 the Government of India had undertaken to accept all orders passed and actions taken by the Ruler prior to the date of handing over of the adminis tration to the Dominion Government
Clause 7 of the letter is in the following terms No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned un less the order was passed or action taken after the 1st day of April 1948 and it is considered by the Government of India to be palpably unjust or unreasonable
The decision of the Government of India in their respect will be final But by virtue of article 363 of the Constitution it is not open to the respondents to enforce the covenants of this agree 1 566 ment in the Municipal Courts Maharaj Umeg Singh and Others vs The State of Bombay and ohers1
It was then urged that the Government of Bombay as delegate of the Dominion of India had recognised the right of the respondents when they were permitted to cut the forests
But the plea of recognition has no force
It is true that some of the forests were permitted to be cut by the contractors under special conditions pending decision of the Government of Bombay
The Conservator of Forests North Western Circle had ordered that the question as to the approval to be given to the agreement dated March 12 1948 was under the consideration of the Government and that written undertakings should be taken from the jagirdars inamdars or persons concerned that they would abide by the decision or orders passed by the Bombay Government in respect of such private forests when the question of rights over such private forests will be finally settled
On January 9 1949 on the application of the jagirdar the Divisional Forest Officer agreed to issue authorisation to the contractor valid upto March 31 1949 subject to the condition that export outside was not to be permitted pending receipt of the orders by the Government and that a written undertaking was given by the purchaser that he would abide by the decision and orders passed by Government
In pursuance of this arrangement undertakings were given by the contractors and the jagirdars agreeing to abide by the decision and the orders to be passed by the Government of Bombay in respect of the forest rights and admitting that the authorization issued by the Divisional Forest Officer was subject to those undertaking
The Forest Officers therefore did not allow the forests to be worked unconditionally
Cutting of trees in the forests by the contractors was permitted subject to certain terms and conditions and on the clear undertaking that the question as to the right and the terms under which they could cut the forests would be decided by the Government
The Government of Bombay on July 8 1949 resolved that the order passed by the Ruler of the Sant State dated March 12 1948 transferring forest rights to holders of the 1  567 jagirs villages were mala fide and that they should be can celled but before taking further action in the matter the Commissioner should ascertain whether the possession of the forests in question was with the Government or was with the jagirdars
The order proceeded to state It the possession is still with Government please ask the Officer of the Forest Department to retain the same and to refuse to issue passes etc to private contractors and purchasers 
A copy of this order was forwarded to the Forest Officers Santrampur for information and guidance and it is found endorsed on that order that no transit passes be issued to the jagirdars to whom rights over forests were conceded in March 1948 and all further felling in such jagir forests should be stopped at once and compliance reported
It is true that the order of the Governor was not directly communicated to the jagirdars or the contractors
But if the conduct of the Forest Officers in permitting cutting of the forests is sought to be relied upon it would be necessary to take into consideration the orders passed by the Conservator of Forests North Western Circle the undertakings given by the contractors and the jagirdars and the order passed by the Governor of Bombay and the execution of that order by stoppage of the cutting of the forests
It appears that cutting of trees in forests was permitted only upto some time in 1949 and was thereafter stopped altogether by order of the Revenue Department
The final resolution cancelling the agreement was passed on February 6 1953
It was recited in the resolution that the Tharav issued by the Ruler in 1948 had been considered by the Government to be mala fide and the same had already been repudiated and it was not binding on the Government of Bombay both by law and under the agreement of integration in spite of the assurance contained in the collateral letter
It was also recited Since the Tharav has not been recognised by Government but has been specifically repudiated everything done in pursuance thereof including the contracts entered into after passing of the Tharav is not valid and therefore binding on this Government
 568 Having regard to the conduct of the Officers of the Govern ment of Bombay and the resolution of the Government the plea that the Government of Bombay as delegate of the Do minion had renounced its right not to regard itself as bound by the order made by the Ruler of Sant State cannot be sustained
The next question which falls to be determined is whether the order can be regarded as law within the meaning of cl4 of the Administration of the Indian States Order 1948
Clause 4 1 provided Such provisions or such parts of provisions a of any law or b of any notification order scheme rule form or bye law issued made or prescribed under any law as were in force immediately before the appointed day in any Indian State shall continue in force until altered repealed or amended by an order under the Extra Provincial Jurisdiction Act 1947 XLVII of 1947 Provided that the powers that were exercised by the Ruler of an Indian State in respect of or in relation to such Indian State under any such provisions of law immediately before the appointed day shall be exercised by the Pro vincial Government or any officer specially empowered in this behalf by the Provincial Government
 It was urged that the order issued by the Ruler of Sant State was either law or an order made or prescribed under any law in force immediately before the appointed day and by virtue of cl 4 of the Administration of the Indian States Order it must be deemed to have remained in operation and any action taken in contravention thereof by executive action was unjustified
Our attention has not been invited to any statutory provisions relating to forests in the State of Sant nor does the order dated March 12 1948 purport to be issued in exercise of any statutory power
On the face of it the order grants certain rights in forests which had not been previously granted to the jagirdars by the 569 Ruler
It is urged that the Ruler of Sant was an absolute Ruler in whom were vested all authority legislative execu tive and judicial and whatever he did or directed had to be complied with and therefore his actions and directions must be deemed to be law within the meaning of cl 4 of the Administration of the Indian States Order
But the fact that the Ruler of Sant State was an absolute Ruler not bound by any constitutional limitations upon the exercise of his powers does not in my judgment invest every exercise of his powers with legislative authority
The functions of a State whether it contains a democratic set up or is administered by an autocratic sovereign fall into three broad categories executive legislative and judicial
The line of demarcation of these functions in an absolute or autocratic form of Government may be thin and may in certain cases not be easily discernible
But on that account it is not possible to infer that every act of an autocratic sovereign has a legislative content or that every direction made by him must be regarded as law
That an act or an order of a sovereign with absolute authority may be enforced and the subjects have no opportunity of getting redress against infringement of their rights in the Municipal Courts of the State will not be decisive of the true character of the functions of the sovereign in the exercise of which the act was done or the order was made
The distinction between functions executive legislative and judicial vested in one person may not be obliterated merely because they are in fact exercised or are capable of being exercised indiscrimi nately
In the ultimate analysis the legislative power is the power to make alter
amend or repeal laws and within certain definite limits to delegate that power
Therefore it is power to lay down a binding rule of conduct
Executive power is the power to execute and enforce the laws and judicial power is power to ascertain construe and determine the rights and obligations of the parties before a Tribunal in respect of a transaction on the application of the laws and even in an absolute regime this distinction of the functions prevails
If an order is made during the regime of a sovereign who exercises absolute powers and it is enforced or executed leaving nothing more to be done there 570 under to effectuate it any discussion of its true character would be an idle exercise
Where however in a set up in which the rule of law prevails to support action taken pursuant to an order you have to reach the source of autho rity in the power of the previous autocratic sovereign the true nature of the function exercised may become important when the laws of the former State are by express enactment continued by the new sovereign
The order dated March 12 1948 conveys to the jagirdars rights which had been previously excluded from the grants
The form of the order is of course not decisive
An important test for determining the character of the sovereign function is whether the order expressly or by clear implication prescribes a rule of conduct governing the subject which may be complied with a sanction demanding compliance therewith
The order dated March 12 1948 is expressly in the form of a grant of the rights which were not previously granted and does not either expressly or by implication seek to lay down any binding rule of conduct
I am therefore unable to hold that the order issued on March 12 1948 by the Ruler of Sant State was law or an order made under any law within the meaning of cl 4 of the Administration of the Indian States Order
Cases which have come before this Court in which the question as to the binding effect of orders issued by the Rulers of the former Indian States fell to be determined clearly illustrate that principle
In Ameer un Nissa Begum and others vs Mahboob Begum and others1 the question as to the binding character of two Firmans  dated February 24 1949 and September 7 1949 issued by H E H the Nizam of Hyderabad fell to be determined
The Court in that case observed at p 359 The Firmans  were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law  nay they would override all other laws which were in conflict with them
So long as a particular Firman  held the field that alone would gov 1 A IR 571 ern or regulate the rights of the parties con cerned though it could be annulled or modi fied by a later Firman  at any time that the Nizam willed
 The Court declined to consider whether the Firmans were in the nature of legislative enactment or judicial orders and observed The Nizam was not only the supreme legislature he was the fountain of justice as well
When he constituted a new Court he could according to ordinary notions be deemed to have exercised his legislative authority
When again he affirmed or reversed a judicial decision that may appropriately be described as a judicial act
A rigid line of demarcation however between the one and the other would from the very nature of things be not justified or even possible
 In that case the primary question which the Court had to consider was whether certain Firmans  issued by the Nizam could be enforced
It was held that the order may be legislative or judicial in character but it could not be regarded as executive
It may be noticed that no action was required to be taken after the cessor of the sovereignty of the Nizam in pursuance of the Firmans 
The Firmans  had become effective and titles of the parties stood adjusted in the light of those Firmans  during the regime of the Nizam
In Director of Endowments
Government of Hyderabad vs Akram Ali1 the effect of a Firman  issued by the Nizam on December 30 1920 directing that the Ecclesiastical Department to supervise a Dargah within the jurisdiction of the Nizam until the rights of the parties were enquired into and adjudicated upon by a civil court fell to be determined
The Court in that case held that the right of Akram Ali who claimed to be hereditary Sajjad Nashin and Mutwalli was subject to the order of the Nizam which had been passed before the Hyderabad State merged with the Union of India and the applicant having no rights it could 1 AIR 1956 SC 60
572 be enforced at the date of the Constitution and the Courts were incompetent to grant him relief till the rights were determined by the Constitution
The effect of the Firman  was to deprive the respondent Akram Ali and all other claimants of all rights to possession pending enquiry into the case
It is clear from the observations made in that judgment that the only decision of the Court was that by the Firman  the rights of the Sajjad Nashin and Mutwalli was suspended till determination by the civil court of his right to possession
The Firman  was given effect not because it was regarded as the expression of the legislative will but because it had become effective before the Constitution came into effect suspending the rights of the applicant
In Madhorao Phalke vs The State of Madhya Bharat1 the true character of certain Kalambandis  issued by the Rulers of Gwalior fell to be determined
The appellant was the recipient of a hereditary military pension granted by the Ruler of Gwalior to his ancestors in recognition of their military services
The right to receive pension was recognised by the Kalambandis  of 1912 and 1935 issued by the Ruler
After the formation of the State of Madhya Bharat under the Constitution the Government of that State by an executive order terminated the right of the appellant
The Kalam bandis  though not issued in the form of legislative enactments were issued for the administration of the department relating to the Shiledari units
and the nature of the provisions unambiguously impressed upon them the character of statutes or regulations having the force of law
The Kalambandis  recognised and conferred hereditary rights they provided for the adoption of a son by the widow of a deceased Silledar subject to the approval of the State and also for the maintenance of widows out of funds specially set apart for that purpose and contemplated the offering of a substitute when a silledar became old or otherwise unfit to render service they made detailed provi sion as to mutation of names after the death of a silledar
They further enacted that the Asami being for the shiledari service it could not be mortgaged for a debt of any banker and if a decree holder sought to proceed against the amount 1  573 payable to him execution had to be carried out in accord ance with and in the manner and subject to the limitations prescribed in that behalf
The Kalambandis  were not treated as administrative orders issued merely for the pur pose of regulating the working of the administration of the department of irregular forces and were therefore to be re garded as regulations having all the characteristics of legislative enactments
In Promod Chandra Deb s case1 the true character of certain Khor Posh  grants granted by the Rulers of Talcher Bamara and Kalahandi fell to be determined in a group of petitions for enforcement of fundamental rights
Out of the four petitions petition No 167 of 1958 was dismissed on the ground that under an order passed by the Extra Provincial Jurisdiction Act 1947 a grant made by the Ruler of Bamra in favour of the petitioner was annulled before Bamra became part of the Union of India and the right created by the grant had on that account ceased to exist
In two other petitions Nos
168 of 1958 and 4 of 1959 it was found by the Court that the maintenance grants in favour of certain members of the family of the Ruler were recognised by the Government of India and the right thus recognised was given effect to and payments pursuant thereto were continued for nearly eight years after the merger of the State
This Court held that the State having recognized its obligation to pay the maintenance grants which were agreed to be granted under the statutory law and the custom of the State the grants could not be annulled by executive action
In the principal writ petition No 79 of 1957 the grants by the Ruler of Talcher was made subject to the terms and conditions laid down under Order 31 of the Rules and Regulations of the State of Talcher of 1937
These Rules and Regulations of Talcher of 1937 were regarded as the law of the State and it was in accordance with the law that the Khor Posh  grants were made by the Ruler
If was held that these grants had the effect of law
Sinha CJ delivering the majority judgment of the Court observed at p 436 There is also no doubt that the grant made by the ruler of Talcher in favour of the petitioner 1 1962 Suppl
1 SCR 405 574 continued to be effective until the Merger
The nature and conditions of such grant of Khorposh are governed by the provisions of the laws of that State as embodied in Order 31 of the Rules and Regulations of Talcher 1937
Under the laws of Talcher the petitioner had been enjoying his Khorposh rights until the cash grant as it became converted in 1943 44 as aforesaid was stopped by the State of Orissa in April 1949
 In the view of this Court the terms and conditions subject to which the grant was made were on the facts of the cast in the nature of legislative acts and not exercise of executive functions
The Court in that case did not purport to lay down that any act done by the Ruler whether it be executive legislative or judicial must be regarded since the merger of the State as in the exercise of the legislative will of the Ruler and therefore continuing as law
In a recent judgment of this Court in Tilkayat Shri Govindlalji Maharaj etc
vs State of Rajasthan and others  the Firman  issued by the Udaipur Darbar in 1934 relating to the administration of the temple of Sharnathji at Nath dwara which was expressly declared to be a public temple and governing the devolution of the right to the management of the temple and certain incidental matters fell to be determined
The Firman  consisted of four clauses
By the first clause it was declared that according to the law of Udaipur the shrine of Shrinathji had always been and was a religious institution for the followers of the Vaishnava Sampradaya and that all the property immovable and movable dedicated offered or presented to or otherwise coming to the deity Shrinathji had always been and was the property of the shrine and that the Tilkayat Maharaj for the time being was merely the custodian manager and trustee
of the said property for the shrine
The second clause prescribed the rule of succession and declared that it was regulated by the law of primogeniture and provided that the Udaipur Darbar had absolute right to depose any Tilkayat Maharai on the ground that such Tilkayat Maharaj was unfit
The 1 AIR 1963 SC 1638
575 third clause provided for measures to be taken by the Ruler for management of the shrine during the minority of the Tilkayat Maharaj and by the last clause it was provided that in accordance with the law of Udaipur the Maharana had declared Shri Damodarlalji the then Tilkayat Maharajunfit to occupy the Gaddi and had approved of the succession of Goswami Govindlalji to the Gaddi of Tilkayat Maharaj
This Firman  declared the character of the trust relating to the Shrinathji temple laid down rules as to the succession and provided for the management during the minority of the Tilkayat and declared the right of the State to remove the Tilkayat and for enforcement of that right by declaring that the then Tilkayat was unfit to occupy the Gaddi
This was in substance though not in form exercise of the legislative will of the sovereign
Its operation was not exhausted by its enforcement during the regime of the Maharana of Udaipur
Devolution of the Gaddi and declaration about the power of the Ruler over the shrine were intended to govern the administration of the shrine for all times
It is true that in that case in paragraph 32 it was observed after referring to Madhorao Phalke s ease1 Ameer un Nissa Begum s case 2  and the Director of Endowments Government of Hyderabad s case3 In the case of an absolute Ruler like the Maharana of Udaipur it is difficult to make any distinction between an executive order issued by him or a legislative command issued by him
Any order issued by such a Ruler has the force of law and did govern the rights of the parties affected thereby
 It was not and could not be laid down that all orders issued by an absolute Ruler were legislative in character it was merely sought to be emphasized that so long as the territory of Udaipur and the shrine were under the sovereignty of the Maharana the distinction between commands legislative and executive was academic for all orders and commands of the Ruler had to be obeyed alike
But since the merger of the State with the Union of India the question 1   2 AIR 1955 SC 352
3 AIR 1956 SC 60 576 whether the Firman  was a mere executive order or a legis lative enactment assumed vital importance
If the command was merely executive unless the rights created thereby were recognized by the Dominion of India they had no validity and no reliance could be placed upon them in the Municipal Courts
If the command was legislative the laws of the former State having been continued upon merger the legislative command retained vitality and remained enforceable
In the context in which it occurs the statement set out did not and was not intended to lay down that there is no distinction between legislative commands and executive orders which have to be enforced after the merger of the State with the Indian Union
I may refer to decisions which illustrate the distinction between legislative commands and executive orders of the Rulers of the former Indian States
In Maharaja Shree Umaid Mills Ltd vs Union of India and Others1 the question whether an agreement between the Ruler of Jodhpur and a limited Company whereby the Ruler agreed to exempt or remit certain duties or royalties and to hold the Company not liable to pay taxes and further gave an assurance to the Company to amend the laws so as to make them consistent with the agreement was not regarded as law within the meaning of article 372 of the Constitution
In the view of the Court the agreement rested solely on the consent of the parties it was entirely contractual in nature an a none of the characteristics of law
The Court in that case observed that every order of an absolute Ruler who combines in himself all functions cannot be treated as law irrespective of the nature or character of the order passed
There is it was observed a valid distinction between an agreement between two or more parties even if one of the parties is the sovereign Ruler and the law relating generally to agreements the former rests on consensus of mind the latter expresses the will of the sovereign
This case supports the proposition that every act done or order passed by an absolute Ruler of an Indian State cannot have the force of law or be regarded as law since the merger of his territory with the Union of India 
To have the vitality of law after 1  577 merger it must be the expression of the legislative will of the Ruler There is yet another judgment of this Court in The Bengal Nagpur Cotton Mills Ltd vs The Board of Revenue Madhya Pradesh and Others1 in which also the question whether an agreement between the Ruler of Rajnandgaon and Ms Shaw Wallace and Company in connection with the setting up of a textile factory on certain concessional terms in the matter of imposition of octroi duties on imported goods fell to be determined
It was observed in that case It is plain that an agreement of the Ruler expressed in the shape of a contract cannot be regarded as a law
A law must follow the customary forms of law making and must be expressed as a binding rule of conduct
There is generally an established method for the enactment of laws and the laws when enacted have also a distinct form
It is not every indication of the will of the Ruler however expressed which amounts to a law
An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditional or specially devised for the occasion results in a law but not an agreement to which there are two parties one of which is the Ruler
 The order of the Ruler of Sant dated March 12 1948 was not in the form of a legislative enactment
It also did not seek to lay down a course of conduct it merely purported to transmit certain rights which were till the date of the order vested in the Ruler to the jagirdars who were grantees of the villages
It is difficult to hold that an order merely granting forest rights not in pursuance of any legis lative authority but in exercise of the power of the sove reign in whom the rights were vested to the jagirdars to whom the villages were granted without forest rights can be regarded as law within the meaning of cl 4 of the Administration of the Indian States Order 1948 when the order was not intended to lay down any binding rule of 1  2 134 154 SC 37
578 conduct of the grantees and merely purported to convey the rights which till then were vested in the Ruler
The other question which remains to be determined is whether the respondents are entitled to the protection of section 2991 of the Government of India Act 1935 or article 31 1 of the Constitution
Undoubtedly the order which deprives them of the right to cut forest trees which they claimed from the jagirdar who derived them under the grant dated March 12 1948 from the Ruler of Sant is an executive order
Section 2991 of the Government of India Act 1935 protection of which was claimed on the merger of the State of Sant with the Dominion of India provided No person shall be deprived of his property in British India save by authority of law
 The clause conferred protection upon the property rights of persons against any executive action not supported by law
To attract the clause there must however exist a right to property which is sought to be protected
If for reasons which we have already stated in considering the first question the subjects of the acceding State are entitled only to such rights as the new sovereign chooses to recognize in the absence of any recognition of the rights of the respondents or their predecessor jagirdars there was no right to property of which protection could be claimed
As held by this Court in State of Saurashtra vs Jamadar Mohamad Abdulla and others1 orders passed by the Administrator of the State of Junagadh appointed on behalf of the Government of India which had assumed charge of the administration of the State after the Nawab of Junagadh fled the country on various dates between November 9 1947 and January 20 1949 cancelling grants in favour of certain persons in whose favour the grants had previously been made by the Nawab of Junagadh were not liable to be challenged in suits filed by the grantees in the Civil Courts of the Dominion on the plea that the properties had been taken away without the authority of law
This Court held that the impugned orders cancelling the grants in favour of the respondents and taking of the properties arose out of and during an act of State and they could not be questioned before Municipal Tribunals for the 1 1962 3 SCR 970
579 orders of cancellation were passed before the change over of de jure sovereignty
There is no support for the assumption made by the res pondents that an act of State arises merely at a fixed point of time when sovereignty is assumed
An act of State may be spread over a period and does not arise merely on the point of acquisition of sovereign right see Promod Chandra Deb s case1
Nor is the new sovereign required to announce his decision when he assumes or accepts sovereignty over foreign territory about the rights created by the quondam sovereign on pain of being held bound by the rights so created
The decision of this Court in jagannath Agarwalla s case2 pointedly illustrates this principle
The State of Mayurbhanj merged with the Province of Orissa on January 1 1949 but an order dated June 28 1952 made by the Board of Revenue acting on behalf of the State of Orissa rejecting the claim made by a person who had entered into an agreement or arrangement with the Maharaja of Mayurbhanj in 1943 was held to be in the course of an act of State the rejection of the claim being in pursuance of an order issued under section 4 of the Extra Provincial Jurisdiction Act 47 of 1947
Therefore till the right to property of the subjects of the former Indian State was recognized by the new sovereign there was no title capable of being enforced in the Courts of the Dominion or the Union
It was then urged that in any event since the enactment of the Constitution by executive action a person may not be deprived of his right to property and this protection applies as much to rights granted by the former Rulers to persons who on merger became citizens of the Dominion of India as to rights of property of other citizens
In substance it is urged that even if there was no recognition of the right to property which was granted by the former sovereign by the Dominion Government after the enactment of the constitution the right granted by the former Rulers may only be taken away by legislative command and not by executive action
This argument proceeds upon a misconception of the nature of the fundamental right conferred by article 311 of the Constitution
In terms the Article confers a right to claim protection against deprivation of property otherwise than by 1 1962 Suppl
1 SCR 405
2  580 authority of law
A right to property is undoubtedly pro tected against all actions otherwise than under the authority of law
But the clause postulates a right to property which is protected
It does not purport to invest a person with a right to property which has not been recognized by the Dominion of India or the Union
Even if the right to property was recognized by the Indian State of which the claimant was subject so long as it is not recognized by the Dominion or the Union it is not enforceable by the Courts in India
On the merger of the State of Sant with the Dominion of India undoubtedly the respondents became citizens of the Dominion and they were entitled like any other citizen to the protection of the rights which the Dominion recognized
It has also to be remembered that promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union
It was merely change in the form of Government
By the Constitution the authority of the British Crown over the Dominion was extinguished and the sovereignty which was till then rooted in the Crown was since the Constitution came into force derived from the people of India
It is true that whatever vestige of authority which the British Crown had over the Dominion of India since the Indian Independence Act was thereby extinguished but there was no cession conquest occupation or transfer of territory
The new governmental set up was the final step in the process of evolution towards self government
The fact that it did not owe its authority to an outside agency but was taken by the representatives of the people made no difference in its true character
The continuance of the governmental machinery and of the laws of the Dominion give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion and from its ashes the springing up of another sovereign as suggested in Virendra Singh and Others vs The State of Uttar Pradesh1 which will presently examine
If therefore the respondents had under the Government of India Act 1935 after the merger not acquired any right to the forests by virtue of any recognition of the Tharav dated March 12 1948 the promulgation of the Constitution 1  581 did not invest them with any additional rights which would convert either their claims to the forest rights into property or to enable them to enforce in the Indian Courts such claims not recognized by the State as fundamental right to property
By article 31 right to property is protected against all actions save by authority of law
But if there was no right to property an executive action refusing recognition of a claim to property could not infringe article 31 of the Constitution
In Virendra Singh s case1 this Court held that since the promulgation of the Constitution grants which had been made by the previous Rulers even if they were not recognized by the Dominion of India or the Union could not be interfered with except by authority of law
In that case the petitioners were grantees from the Rulers of the States of Sarila and Charkhari of certain villages before those States merged with the Dominion of India
The States originally merged with the Union of Vindhya Pradesh and the Vindhya Pradesh Government confirmed the grants in December 1948
But the Union of the States of Vindhya Pradesh was dissolved and the covenanting States separately acceded to the Dominion of India and surrendered all authority and jurisdiction in relation to the governance of the States and executed instrument called The Vindhya Pradesh Merger Agreement 
The States which formed the Vindhya Pradesh were transformed into a Chief Commissioner s Province on January 23 1950
The grants of the four villages made in favour of the petitioners Were revoked in August 1952 by the Government of the State of Uttar Pradesh to which State those villages being enclaves within its territory were transferred
The grantees of the villages then petitioned this Court under article 32 of the Constitution challenging the validity of the orders revoking the grant of jagirs and maufis in the four villages as violative of articles 31 1 and 19 1  f  of the Constitution
This Court observed that the properties in question were the properties over which the Rulers had right of disposition at the date of the grants and the grants were absolute in character and would under any civilised system of law pass an absolute and indefeasible title to the grantees and that assuming that the titles were defensible at the mere will of 1  582 the sovereign the fact remained that they were neither resumed by the former Rulers nor confiscated by the Dominion of India as an act of State and upto the 25th of January 1950 the right and title of the grantees to continue in possession was good and was not interfered with
The Court accordingly held that the Constitution by the authority derived from and conferred by the people of India destroyed all vestige of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State of Uttar Pradesh in that case was seeking to uphold
It was further observed that the Dominion of India and the States had abandoned their sovereignty and surrendered it to the people of the land who framed the new Constitution of India and as no sovereign can exercise an act of State against its own subjects the orders of revocation of the grants were invalid
In my view the conclusion of the Court proceeded upon two assumptions neither of which was true i that the sovereignty of the Dominion of India and of the States was surrendered to the people of India and in the exercise of the sovereign power the people gave themselves the new Constitution as from January 26 1950 and ii the petitioners who were in de facto possession of the disputed lands had rights in them which they could have enforced upto 26th January 1950 in the Dominion Courts against all persons except possibly the State
These assumptions are not supported by history or by consti tutional theory
There is no warrant for holding at the stroke of mid night of the 25th January 1950 all our pre existing political institutions ceased to exist and in the next moment arose a new set of institutions completely unrelated to the past
The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime and set up the constitutional machinery on the foundations of the earlier political set up
It did not seek to destroy the past institutions it raised an edifice on what existed before
The Constituent Assembly molded no new 583 sovereigntyit merely gave shape to the aspirations of the people by destroying foreign control and evolving a com pletely democratic form of government as a republic
The process was not one of destruction but of evolution
For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January 1950 could be regarded as enforceable against any one
Till the Dominion of India recognised the right expressly or by implication there was no right to property which the Courts in India could enforce
There is nothing in the Constitution which transformed the claims which till January 25 1950 had not been recognized into property rights so as to prevent all further exercise of the act of State and extinguish the powers of the Union to refuse to recognize the claims
The order passed in August 1952 revoking the grants by the Rulers of Sarila and Charkhari was in my view in substance an act of State
It is true that there can be no act of State by a sovereign against his own subjects
But the State was seeking to refuse to recognize the claims made by the grantees from the former Rulers and the fact that the act of State operated to the prejudice of persons who were at the date of refusal of recognition citizens did not deprive the act of State of either its character or efficacy
These appeals must therefore be allowed and the suit filed by the respondents dismissed with costs throughout
RAGHUBAR DAYAL J
I agree with the views expressed R by my learned brother Ayyangar J on all the points except in regard to the Tharao dated March 12
1948 being law
I agree with brother Hidayatullah J that this Tharao is not law and further agree with him in the order proposed
MUDHOLKAR J
This Bench has been constituted for considering whether the reasoning underlying the decision of this Court in Virendra Singh vs The State of Uttar Pradesh1 that the inhabitants of the Indian States brought with them after the merger of those States in the Dominion of India pursuant to agreements entered into by the Rulers of those 1  584 States rights to property granted to them by the Rulers of those States is correct or not
The decision and the various grounds upon which it rests have been carefully examined by my brother Ayyangar J in his judgment and I am generally in agreement with what he has said
As however I take a somewhat different view on some of the matters which arise for consideration in this case this judgment has become necessary
The facts have been set out fully in the judgment of my learned brother and therefore it will be sufficient to mention only such of them as are necessary to elucidate the questions which I propose to deal with
In consequence of two agreements entered into by the former Ruler of Sant State the territory of that State merged in the Dominion of India as from June 10 1948
Prior to that date it had acceded to the Dominion of India on three subjects only
This State along with other ruling States in India became an independent sovereign State in the year 1947 when the Dominions of India and Pakistan were constituted
By virtue of the powers vested in the Central Government by the Extra Provincial Jurisdiction Act 1947 it delegated its functions to the Government of Bombay which passed the Indian States Application of Laws Order 1948 on July 28 1948
In consequence of that Order certain laws in force in the Pro vince of Bombay were extended to the merged territories
By the operation of the Indian States Merger of Governors Provinces Order 1949 the Sant State became part of the Province of Bombay
The agreement relating to the merger of the State in the Dominion of India was entered into by the Ruler of Sant some time before the date on which the merger became effective
The Ruler of the State passed a Tharao which is translated as Order on March 12 1948 in the following terms section Ta
Mu Outward Register No 371
The Jivak Patavat Inami Chakariyat Dharmada villages in Sant State are being given granted to Jagirdars and the holders of the said villages are not given rights over forests
Hence after considering the complaints of certain Jagirs they 585 are being given full rights and authority over the forests in the villages under their vahivat
So they should manage the vahivat of the forest according to the policy and administration of the State
Orders in this regard to be issued
 Taking advantage of the Tharao several Jagirdars entered into contracts pertaining to the exploitation of the forests in their Jagirs
The respondents in these appeals are some of the forest contractors
The Government of the Province of Bombay through the officers of its Forest Department did not allow the respondents to exercise their rights under the contracts entered into with them by the Jagirdars on the ground that the grant of forest rights by the former Ruler to the Jagirdars was not binding upon the successor Government
Thus being deprived of their right to work the forests the various respondents instituted suits after the coming into force of the Constitution of India
Their claims were opposed by the State of Bombay mainly on the ground that in the absence of recognition express or implied by the successor State of rights conferred by the former Ruler on the Jagirdars the respondents could not enforce them in the municipal courts
The suits of the respondents were dismissed by the court of first instance and appeals preferred therefrom by them were dismissed by the District Court
In second appeal however the appeals were allowed by the High Court by a common judgment in which reliance is placed largely upon what has been held and said by this Court in Virendra Singh s case1 though a reference has also been made to two other decisions of this Court and some decisions of the Privy Council
In the arguments before us it has never been in question that the acquisition of the territory of Sant State by the Dominion of India in pursuance of the Instrument of Accession and Merger Agreement was an act of State
The respondents  contentions were however that 1 in point of fact the Government of Bombay acting through the officers of the forest department had recognised the Jagirdar s rights by permitting the contractors to carry on the work of cutting timber 2 that though the Government of 1  586 Bombay subsequently repudiated the Jagirdars  rights that repudiation was of no avail 3 that the letter sent to the Ruler of Sant State by the Secretary to the States Depart ment Mr V P Menon in October 1948 amounted to a waiver by the Dominion of India of the right of repudiation of the rights of Jagirdars 4 that after the Jagirdars became the citizens of the Dominion of India there could be no act of State against them 5 that the doctrine evolved by the Privy Council in its decisions starting from Secretary of State for India vs Kamachee Boye Sahiba1 and going upto Asrar Ahmed vs Durgah Committee Ajmer2 was opposed to the present view on the effect of conquest and cession upon private rights as exemplified in the decisions in United States vs Percheman3 and that this Court should therefore discard the Privy Council s view and adopt the modem view inasmuch as the latter is considered by common consent to be just and fair and finally 6 that the Jagirdars could not be deprived of the forest rights deprived by them from the Ruler of Sant State before the Constitution without complying with the provisions of section 299 of the Government of India Act 1935 and after the coming into force of the Constitution without complying with the provisions of article 31 of the Constitution
I agree with my brother Ayyangar J that the fact that some officers of the forest department had permitted the respondents to carry on operations in the forests leased out to them by the Jagirdars does not amount to recognition of the right conferred upon the latter by the Tharao of March 12 1948
In the first place it was not open to the officers of the forest department to grant recognition to the Jagirdars  rights for the simple reason that the right of granting recognition could be exercised only by the Government acting through its appropriate agency
Moreover the permission which was accorded to the respondents was only tentative and expressly subject to the final decision of the Government on the question of their right under the leases granted by the Jagirdars
1  2 A 1 R 1947 P C I 3  587 The second contention of the respondents is based upon a misapprehension of the legal position flowing from the long series of decisions of the Privy Council which have been accepted by this Court in several of its decisions and in particular Dalmia Dadri Cement Co Ltd vs The Commissioner of Income tax1 State of Saurashtra vs Memon Haji Ismail 2  Promod Chandra Deb and Ors
vs The State of Orissa and Ors3 State of Saurashtra vs Jamadar Mahamad Abdulla and Ors4
The one decision in which the Privy Council s view is criticised is that of Virendra Singh s case5
The view of the Privy Council has been expressed by Lord Dunedin in Vajesinghji vs Secretary of State for India6 in the following passage which has been quoted with approval in several judgments
When a territory is acquired by a sovereign State for the first time that is an Act of State
It matters not how the acquisition has been brought about
It may be by conquest it may be by cession following on treaty it may be by occupation of territory hitherto unoccupied by a recognised ruler
in all cases the result is the same
 Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has through his officers recognised
Such rights as he had under the rule of predecessors avail him nothing
Nay more even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights that does not give a title to those inhabitants to enforce those stipulations in the municipal courts
The right to enforce remains only with the high contracting parties
 Thus what is clear beyond doubt is that the rights derived by the inhabitants of the conquered and ceded territory from its former rulers cannot be enforced by them against the new 1 1959 SCR 7292 19601 1 SCR 537
3 1962 Supp 1
SCR 4054 19621 3 SCR 970
5  51 TA 357
588 sovereign in the courts of that sovereign unless they have been recognized by the sovereign
The only basis upon which rights of this kind can be enforced in a municipal court would be the fact of its recognition by the new sovereign
A right which cannot on its own strength be enforced against a sovereign in the courts of that sovereign must be deemed to have ceased to exist
It follows therefore that a right which has ceased to exist does not require repudiation
As regards the argument that the Government has waived its right to withold recognition I agree with all that has been said by my brother Ayyangar J Indeed if the inhabitants of a ceded territory have ceased to have a right against the new sovereign there is nothing for the sovereign to waive
I also agree with my learned brother that if the letter of the Secretary to the States Department wpon which reliance is placed by the respondents is regarded as part of the agreement of merger the municipal courts are precluded by article 363 of the Constitution from enforcing any rights arising thereunder
The argument that there can be no Act of State against its citizens is based upon the supposition that the rights claimed by the Jagirdars from their former Ruler would be available to them against the new sovereign unless they were repudiated and that here as the resolution of the Government of Bombay dated February 6 1953 stating that Jagirdars  rights have already been repudiated amounts to an Act of State against persons who had long before this date become the citizens of the Republic of India it was incompetent
As already pointed out the municipal courts cannot take notice of a right such as this unless it had been recognized expressly or by implication by the new sovereign
doubt the Government resolution speaks of repudiation
That in my opinion is only a loose way of conveying that the rights of the Jagirdars have not been recognized
That resolution does no more than set out the final decision of Government not to give recognition to the Tharao of March 12 1948 by which the former Ruler of Sant State ad conferred certain forest rights on the Jagirdars
Indeed it is clear from paragraph 3 of that resolution that the Government had expressly borne in mind the legal position 589 that rights claimed under the Tharao gave no title to the inhabitants of Sant State to enforce them in a municipal court and that the right to enforce them remained only with the high contracting parties
Now as to the argument that this Court should discard the view taken by the Privy Council in Secretary of State for India vs Kamchee Boye Sahiba1 Secretary of State for India vs Bai Rajbai2 Vajesinghji vs Secretary of State for India3 Secretary of State vs Sardar Rustom Khan4 and Asrar Ahmed s case5 and adopt the view taken by Chief Justice Marshall in Percheman s case6
I agree with much which my learned brother has said but wouldadd one thing
It is this
The courts in England have applied the principles of international law upon the view that what is by the common consent of all civilized nations held to be an appropriate rule governing international relations must also be deemed to be a part of the common law of England
Thus English courts have given effect to rules of international law by resorting to a process of incorporation7
The English courts also recognise the principle that since the British Parliament is paramount the rules of international law are subject to the right of Parliament to modify or abrogate any of its rules
A municipal court can only enforce the law in force in the State
Therefore if a rule of international law is abrogated by Parliament it cannot be enforced by the municipal courts of the State and where it is modified by Parliament it can be enforced by the municipal courts subject to the modification
Would the position be different where a particular rule of international law has been incorporated into the common law by decisions of courts So far as the municipal courts are concerned that would be the law of the land which alone it has the power and the duty to enforce
Where Parliament does not modify or abrogate a rule of international law which has become part of the common law is it open to a municipal 1  42 IA 229
3 51 IA 357
4 68 IA 109
5  AIR 1947 PC I6 7 See International Law a Text 1962 by Jacobini p 32 et seq 590 court to abrogate it or to enforce it in a modified form on the ground that the opinion of civilized States has undergone a change and instead of the old rule a more just and fair rule has been accepted  Surely the law of a State can only be modified or repealed by a competent legislature of theState and not by international opinion however weighty that Opinion may be
Now a rule of international law on which the several Privy Council decisions as to the effect of conquest or cession on the private rights of the inhabitants
of the conquered or ceded territory is founded has become a part of the common law of this country
This is law in force and is saved by article 372 of the Constitution
The courts in India are therefore bound to enforce that rule and not a rule of international law governing the same matter based upon the principle of state succession which had received the approval of Marshall CJ and which has also received the approval of several text book writers including Hyde1
It is true that the International Court of Justice has also stated the law on the point to be the same but that does not alter the position so far as the municipal courts are concerned
If in the light of this our law is regarded as inequitous or a survival of an imperialistic system the remedy lies not with us but with the legislature or with the appropriate Government by granting recognition to the private rights of the inhabitants of a newly acquired territory
Thus while according to one view there is a State succession in so far as private rights are concerned according to the other which we might say is reflected in our laws it is not so
Two concepts underlie our law  One is that the inhabitants of acquired territories bring with them no rights enforceable against the new sovereign
The other is that the municipal courts have no jurisdiction to enforce any rights claimed by them even by virtue of the provisions of a treaty or other transaction internationally binding on the new sovereign unless their rights have been recognized 1 See Hyde international Law Vol 1 2nd ed
p 431 and Wesley L Gould An introduction to International Law pp
422 427 591 by the new sovereign
Municipal courts derive their jurisdiction from the municipal law and not from the laws of nations and a change in the laws of nations brought about by the consent of the nations of the world cannot confer upon a municipal court a jurisdiction which it does lot enjoy under the municipal law
Apart from that the rule cannot be regarded merely as a device of colonial powers for enriching themselves at the expense of the inhabitants of conquered territories and therefore an anachronism
It would neither be just nor reasonable to bind the new sovereign by duties and obligations in favour of private parties created by the ex sovereign from political motives or for the purpose of robbing the new sovereign of the full fruits of his acquisition
No doubt International Law does not prevent legislation by the new sovereign for the purpose of freeing itself from Such duties and obligations but that would be a long and laborious process and may be rendered onerous or by reason of constitutional provisions such as those contained in Part III of our Constitution even impossible
It would also not be reasonable to regard the new sovereign as being bound by duties and obligations created by the ex sovereign till such time as the new sovereign was able to show that they were incurred by the ex sovereign mala fide
It is apparently for such reasons that the law as found by the Privy Council deprives the grantees under the former ruler completely of their rights as against a new sovereign by making those rights unenforceable in a municipal court
It however also envisages the recognition of those rights by the new sovereign
This means that the new sovereign is expected to examine all the grants and find out for himself whether any of the grants are vitiated by mala fides or were against his legitimate interests so that he can give recognition to those grants only which were not vitiated by mala fides or which were not against his interests
That this is how the rule was applied would be clear from what happened in this country when time and again territories were ceded by former Indian Rulers to the British Government
As an instance of this there was the Inam Enquiry in the middle of the last century as a result of which a very large number of Inams were ultimately 592 recognised by the British Government
That while dealing with the claims of the former grantees in ceded territories used to be examined meticulously would be clear from the facts in Bai Rajbai s case1
Such being the actual posi tion I do not think that the rule which has been applied in this country can be regarded to be anachronism or to be iniquitous In so far as the argument is based on the provisions of s299 of the Government of India Act 1935 and article 31 of the Constitution is concerned I would reiterate the view which my brother Sarkar J and myself have taken in Jamadar Mahamad Abdulla s case3 and Promod Chandra Deb s case4 which is the same as that expressed by my brother Ayyangar J and with which my brother Hidayatullah J has agreed  Adverting to a similar argument advanced by Mr Pathak in the former case we quoted the following passage from the judgment of Venkatarama Aiyar J in Dalmia Dadri Cement Co s case4 It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex sovereign and that as subjects of the new sovereign they have only such rights as are granted or recognised by him and a passage from the judgment in Bai Rajbai s case5 and then observed  Any right to property which in its very nature is not legally enforceable was clearly incapable of being protected by that section pp 1001 2
That was a reference to section 2991 of the Government of India Act 1935
In the other case we have observed at p 499 In our opinion section 2991 of the Constitution Act of 1935 did not help grantees from the former 1 42 IA 229
2 1962 3 SCR 970
3 1962 Supp 1 SCR 405
4 1959 SCR 729
5 42 I A 229
593 rulers whose rights had not been recognized by his new sovereign in the matter of establishing their rights in the municipal courts of the new sovereign because that provision only protected such rights as the new citizen had at the moment of his becoming a citizen of the Indian Dominion
It did not enlarge his rights nor did it cure any infirmity in the rights of thecitizen    The other point raised in these appeals was as to whether the Tharao relied upon by the respondents was a law and therefore could be said to have been kept in force by the provisions of the Application of Laws Order 1949 made by the Province of Bombay
My brother Ayyangar J has largely on the basis of the decision of this Court in Madhorao Phalke vs The State of Madhya Pradesh 1 held that it is law
On the other hand my brother Hidayatullah J has come to the opposite conclusion
My brother Shah J has also held that the Tharao is not a law
I agreed with the view taken by my brother Hidayatullah J and brother Shah J that it is not a law and that the decision in Madhorao Phalke s case1 does not justify the conclusion that it is law 
I do not think it necessary for the purpose of this case to examine further the question as to what are the indicia of a law
For these reasons I would allow the appeals with costs throughout
ORDER SINHA CJ
In accordance with the opinion of the majority the appeals are allowed with costs throughout one set of hearing fees
1  134 154 SC 38


Summary:
The Ruler of the State of Sant had issued a Tharao dated 12th March 1948 granting full right and authority to the jagirdars over the forests in their respective villages
Pursuant to the agreement dated March 19 1948 the State of Sant merged with the Dominion of India
On October 1 1948 Shree V P Menon Secretary to the Government of India wrote a letter to the Maharana of Sant State expressly declaring that no order passed or action taken by the Maharana before the day of April 1st 1948 would be questioned
After merger there was obstruction by the forest officers when the respondents were cutting the forests but after some correspondence they were permitted to cut the trees on furnishing an undertaking that they would abide by the decision of the government
The Government of Bombay after considering the implications of the Tharao decided that the order was mala fide and cancelled it on 8th July 1949 In the meantime these respondents were stopped from working the forests by the Government of Bombay
462 Thereupon these respondents filed suits for declaration of rights in the forests and for a permanent injunction against interference with those rights by the State
The respondents claimed in these suits that the rights of the grantees to the forests were not liable to be cancelled by the Dominion of India after the merger of the State of Sant in June 1948 by executive action and that the Government of Bombay was not competent to obstruct them in the exercise of those rights
Their claims were opposed by the State of Bombay mainly on the ground that in the absence of recognition express or implied by the successor State of the rights conferred by the former ruler on the jagirdars the respondents could not enforce them in the Municipal Courts
These respondents filed five suits against the State of Gujarat
All suits except one were dismissed by the Trial Court
The District Judge on appeal ordered the dismissal of that suit also and dismissed the appeals of the plaintiffs in the other suits
The plaintiffs then appealed to the High Court and the High Court allowed all appeals and the suits were decreed  The High Court held on the basis of the letter written by Shri V P Menon Secretary that the succeeding sovereign had waived or relinquished its right to repudiate the Tharao
The High Court further held that the Tharao was not a legislative action of the Ruler of Sant State
The State Government appealed to this Court by special leave
Hence the appeal
Per majority Hidayatullah J i The Act of State comes to an end only when the new sovereign recognises either expressly or impliedly the rights of the aliens
It does not come to an end by an action of subordinate officers who have no authority to bind the new sovereign
Till recognition either express or implied is granted by the new sovereign the Act of the State continues
In the present case the Act of State could only come to an end if Government recognised the rights flowing from Tharao
That Government never did
There was thus no recognition of the Tharao or the rights flowing from it at any time
In the present case the subordinate officers of the Forest Department allowed each respondent to cut the trees on furnishing an undertaking that he would abide by the decision of the Government and so the question of waiver or relinquishment does not arise
Secretary of State in Council for India vs Kamachee Boye Sahaba   Secretary of State vs Sardar Rustom Khan and Others 68 I A 109 MIS
Dalmia Dadri Cement Co Ltd vs Commissioner of Income tax 1959 SCR 729 The State of Saurashtra vs Memon Haji Ismale Haji   Jagan Nath Agarwala vs State of Orissa   State of Saurashtra V Jamadar Mohamed Abdulla and Ors and Vaje Singhji Jorwar Singh vs Secretary of State for India 1924 LR 51 IA 357 relied on
Virendra Singh and Ors
vs The State of Uttar Pradesh   disapproved
Bhola Nath vs State of Saurashtra AIR 1954 SC 680 Bhojrajji vs The State of Saurashtra  referred to
463 ii The Act of State did not come to an end by virtue of Article 2991 of Government of India Act 1935 and so the respondents could not claim the protection of that section
Section 2991 did not come into play because it could only come into play after the rights were recognised
In the present case the rights were never recognised by the Government
iii The original Act of State continued even after January 26 1950 because there was no state succession on January 26 1950 in so far as the people of Sant State were concerned
For them state succession was over some time in 1948
The Act of State which began in  1948 could continue uninterrupted even beyond 1950 and it did not lapse or get replaced by another Act of State
These rights in question cannot be protected under the Constitution because these rights were not recognised even before 1950
iv That the impugned Tharao was not a law as it did not lay down any rule of conduct
It was a grant made to the Jagirdars mentioned in the Tharao
The fact that Maharana s Tharao was passed to benefit a larger number of persons en bloc does not make it any the more a law if it did not possess any of the indicia of a law
The Tharao did give rights to the grantees but did not lay down any rule of conduct
It is a grant and as a grant it was open to the new sovereign not to recognise it
Madhorao Phalke vs The State of Madhya Bharat   distinguished
Ameer unnissa Begum and Ors
vs Mahboob Begum and Ors
AIR 1955 SC 352
distinguished
Maharaja Shri Umaid Mills Ltd vs Union of India and Others
 and The Bengal Nagpur Cotton Mill Ltd vs The Board of Revenue Madhya Pradesh and Others AIR relied on
v The right claimed here is not even a concessionary right such as has received the support of the International writers
It is more of the nature of a gift by the Ruler at the expense of the State
It lacks bona fides which is one of the things to look for
There is no treaty involved and whatever guarantee there is article 363 of the Constitution precludes the Municipal Courts from considering
This distinguishes the jurisdiction and power of the Supreme Court of the United States in which consideration of treaties is included
In the United States the Constitution declares a treaty to be the law of the land
In India the position is different
Article 253 enables legislation to be made to implement international treaties
This Court has accepted the principles laid down by the Courts in England in regard to the limits of the jurisdiction of Municipal Courts
The view of the Supreme Court of United States or the view taken in international law has not been accepted by this Court
Politically and 464 ethically there might have been some reason to accept and respect such concessions but neither is a reason for the Municipal Courts to intervene
The Rule that the Act of the State can be questioned in a Municipal Court has never been adopted and it has been considered that it is a matter for the political departments of the State
However desirable it may be that solemn guarantees should be respected this Court should not impose its will upon the State because this is outside its jurisdiction
In this case the present respondents who were not parties to the merger agreement or to the letter written by Mr Menon which was made expressly a part of the Agreement cannot take advantage of cl 7
If they were parties Article 363 would bar such plea
Maharaj Umeg Singh and Others vs The State of Bombay and Others
  relied on
US vs Percheman  at 86 disapproved Shapleigh vs Miar   referred to
Salaman vs Secretary of State for India  referred to
Cook vs Sprigg  referred to
Foster vs Nielson
  referred to
Birma vs The State AIR to 7 referred to
Amodutijani vs Secretary Southern Nigeria 1921 2 AC 399 referred to
Clark V Allen  referred to
West Rand Central Gold Minning Co vs Regem 1905 2 KB 391 referred to
Secretary of State vs Bai Raj Bai 1915 LR 42 IA 229 relied on
Per Shah J 1 The rule that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights in Municipal Courts which the new sovereign recognises has been accepted by this Court
Ms Dalmia Dadri Cement Co Ltd V Commissioner of incomeTax 1959 SCR 729 jagannath Agarwala vs State of Orissa   Promod Chandra Dev vs State of Orissa 1962 Suppl
1 SCR 405 and the State of Saurashtra vs Jamadar mohd
Abdullah  relied on
The Secretary of State In Council of India vs Kamachee Boye Sahaba 7 Moore s IA 476 Vajesinghji Joravarsinghji vs Secretary of State for India in Council LR 51 IA 357 and Secretary of State vs Sardar Rustam Khan and Others LR 68 IA 109 relied on
465 ii The Constitutional provisions in the United States are somewhat different
Under the Constitution of the United States each treaty becomes a part of the law of the land the provisions thereof are justiciable and the covenants enforceable by the Courts
In India the treaties have not the force of law and do not give rise to rights or obligations enforceable by the Municipal Courts
In the present case by virtue of article 363 of the Constitution it is not open to the respondents to enforce the covenants of the agreement as stated in the letter of guarantee written by Mr V P Menon in the Municipal Courts
United States vs Parcheman  at 86 87 not relied on
Cook vs Sprigg  referred to
Maharaj Umeg Singh and Others vs The State of Bombay and Others   relied on
iii An act of State may be spread over a period and does not arise merely an the point of acquisition of sovereign right
Nor is the new sovereign required to announce his decision when he assumes or accepts sovereignty over foreign territory about the rights created by the quondam sovereign on pain of being held bound by the right so created
There
fore till the right to property of the subjects of the former Indian State was recognized by the new sovereign there was no title capable of being enforced in the courts of the Dominion or the Union
iv The functions of a State whether it contains a democratic set up or is administered by an autocratic sovereign fall into three broad categories executive legislative and judicial
The line of demarcation of these functions in an absolute or autocratic form of government may be thin and may in certain cases not easily discernible
But on that account it is not possible to infer that every act of an autocratic sovereign has a legislative content or that every direction made by him must be regarded as law
The legislative power is the power to make alter amend or repeal laws and within certain definite limits to delegate that power
Therefore It is power to lay down a binding rule of conduct
Executive power is the power to execute and enforce the laws and judicial power is the power to ascertain construe
and determine the rights and obligations of the parties before a tribunal
In the present case the order dated March 12 1948 is expressly in the form of a grant of the rights which were not previously granted and does not either expressly or by implication seek to lay down any binding rule of conduct
The impugned order was not a law or an order made under any law within the meaning of cl 4 of the Administration of the Indian States Order of 1948
Promod Chandra Deb and Others vs The State of Orisa and Others 1962 Suppl
1 SCR 405 Ameer un Nissa Begum and Others vs Mahboob Begwn and Others AIR 1955 SC 352 Director of Endow 134 159 SC 30
466 ments Government of Hyderabad vs Akram Ali AIR 1956 SC 60 Tilkayat Shri Govindlalji Maharaj etc
vs State of Rajasthan and Others AIR 1963 SC 1638 distinguished discussed
Madhorao Phalke vs The State of Madhya Bharat  discussed
Maharaja Shree Umaid Mills Ltd vs Union of India AIR  relied on
The Bengal Nagpur Cotton Mills Ltd vs The Board of Revenue Madhya Pradesh and Others CA No 416 of 1961 decided on July 30 1963 relied on
v To attract section 2991 of the Government of India Act 1935 there must exist a right to property which is sought to be protected
The subjects of the acceding State are entitled only to such rights as the new sovereign chooses to recognize in the absence of the any recognition of the rights of the respondents or their predecessor Jagirdars there was no right to property of which protection could be claimed
On the Sam reasoning grantees of the Ruler could not claim protection under Art 311 of the Constitution
Per Mudholkar J i The rule of international law on which the several Privy Council decisions as to the effect of conquest or cession on the private rights of the inhabitants of the conquered or coded territory are founded has become a part of the common law of this country
This being a law in force and at the commencement of the Constitution is saved by article 372 of the Constitution
The Courts in India are therefore bound to en
force that rule and not what according to Marshall CJ is the rule at
International Law governing the same matter though the latter has also received the approval of several text book writers
The rule which has been applied in this country is not inequitor nor can it be regarded to be an anachronism
Virendra Singh vs The State of Uttar Pradesh 1955 SCR 415 United State vs Percheman  disapproved
Secretary of State for India vs Kamachee Boye Sahiba 1859 is Moore P C 22 Asrar Ahmed vs Durgah Committee Ajmer AIR 1947 PC 1 Dalmia Dadri Cement Co Ltd vs The Commissioner of Incometax 1959 SCR 729 State of Saurashtra vs Memon Haji Ismail   State of Saurashtra vs Jamadar Mohamed Abdullah and Ors 1962 3 SCR 970 Vajesinghji vs Secretary of State for India 51 IA 357 and Secretary of State for India vs Bai Rajbai 42 IA 229 Promod Chandra Dev vs State of Orissa and Ors
1962 Supp 1 SCR 405 relied on ii Two concepts underlie our law
One is that the inhabitants of acquired territories bring with them no rights enforceable against the new sovereign
The other is that the Municipal Courts have no jurisdiction to enforce any rights claimed by them against the sovereign despite the provisions of a treaty unless their rights have been recognised by the 467 new sovereign after cession or conquest
In other words a right which cannot on its own strength be enforced against a sovereign in the Courts of that sovereign must be deemed to have ceased to exist
It follows therefore that a right which has ceased to exist does not require repudiation
Municipal courts derive their jurisdiction from the Municipal law and not from the laws of nations and a change in the laws of nations brought about by the consent of the nations of the world cannot confer upon a Municipal Court a jurisdiction which it does not enjoy under the Municipal law
iii The grantees of the Ruler could not claim the protection of s 299 of Government of India Act 1935 or of article 31 of the Constitution of India as they possessed no right to property enforceable against the new sovereign
iv The impugned Tharao was not law
Madhorao Phalke vs The State of Madhya Pradesh   referred to
Per minority Sinha CJ and Ayyangar J i The juristic basis of the theory underlying the Privy Council decisions is that with the extinction of the previous sovereign the rights theretofore exerciseable by the subjects of that sovereign by virtue of grants for that sovereign were likewise extinguished and that without recognition which is really tantamount to a fresh grant by the new sovereign no title enforceable in the municipal courts of the succeeding sovereign came into being
The doctrine of Act of State evolved by English courts is one purely of municipal law
It denies to such a court jurisdiction to enquire into the consequences of acts which are inseparable from an extension of its sovereignty
That doctrine was however
not intended to deny any rule of International Law
The British practice that has prevailed in this country has not proved in actual practice to lead to injustice but has proceeded on a just balance between the acquired rights of the Private individual and the economic interests of the community and therefore there is nothing in it so out of tune with notions of propriety or justice to call for its rejection
Even in the case of Virendra Singh this Court did not express any decisive opinion in favour of accepting the observations in Percheman s case as proper to be applied by the municipal courts in India
This Court has in subsequent decisions followed the Privy Council decisions
The view of the Supreme Court of the United States has not been accepted by this Court for the reason that the Constitutional position in regard to the recognition of treaties in both countries are different
In the United States a treaty has the force of law which is not the position here
Besides in India by virtue of Article 363 of the Constitution Municipal Courts are deprived of jurisdiction to enforce any rights arising from treaties
468 Vinrendra Singh vs The State of Uttar Pradesh   disapproved
Vajesinghji vs Secretary of State for India 51 IA 357 Cook vs Sprigg  relied on
walker vs Baird  Johnstone vs Pedlar   referred to
United States vs Percheman   disapproved
Ms Dalmia Dadri Cement Co Ltd vs The Commissioner of Incometax 1959 SCR 729 Jagan Nath Agarwala vs The State of Orissa   Promodh Chandra Dev vs The State of Orissa 1962 1 Supp
SCR 405 The State of Saurarhtra vs Jamadar Mohamad Abdulla 1962 3 SCR 970 Secretary of State for India vs Kanzachee Boye Sahiba 1859 7 Moore IA 476 Secretary of State for India in Council vs Bai Rai Bat 42 IA 229 and Secretary of State vs Rustom Khan 68 IA
relied on
Amodu Tijani vs Secretary Southern Nigeria 1921 2 AC 399 referred to
West Rand Central Gold Mining Co vs Rex 1905 2 KB 391
referred to
Asrar Ahmed vs Durgha Committee Ajmer AIR 1947 PC 1 relied on Attorney General of Canada vs Attorney General of Ontario  referred to
ii Where the new sovereign assumes jurisdiction and it does some act and there is ambiguity as to whether the same amounts to a recognition of a pre existing right or not the covenant and the treaty right be looked at in order to ascertain the intention and purpose of that equivocal act but beyond This the covenant and the treaty cannot by them selves be used either as a recognition pure and simple or as waiver of a right to repudiate the pre excisting rights
It is needless to point out that since the enforceability of the rights against the succeeding sovereign springs into existence only on recognition by the sovereign there La no question of a waiver or the right to repudiate
In the present case the High Court erred in holding on the basis of cl 7 of the letter of Shri V P Menon that the Government waived their right to repudiate the grant made by the previous ruler
Bhola Nath vs The State of Saurashtra AIR 1954 SC 680
distinguished 469 iii Just previous to the Constitution the grantee had no right of property enforceable against the State
The coming into force of the Constitution could not therefore make any difference for the Constitution didnot create rights in property but only protected rights which otherwise existed
iv In the present case the Tharao was not a grant to any individual but to the holders of 5 specified tenures in the State
The Tharao  is more consistent with its being a law effecting an alteration in the tenures of the 5 classes of Jagirdars by expanding the range of the beneficial enjoyment to the forests lying within the boundaries of the villages which had already been granted to them
In this light the Tharao  would not be administrative order in any sense but would partake of the character of legislation by which an alteration was effected in the scope and content of tenures referred to
The Tharao dated March 12 1918 satisfies the requirement of a law within article 36610 of the Constitution and in consequence the executive orders of the Government of Bombay by which the forests right of the plaintiffs were sought to be denied were illegal and void
The Tharao was in truth and substance a law which was continued by article 372 of he Constitution and therefore it could be revoked by the appellant by legislative authority and not by an executive act
Madhorao Phalke vs The State Madhya Bharat   Ameer un nissa Begum vs Mahboob Begum AIR 1955 Sup 4 Court 352 and Director of Endowments Government of Hyderabad Akram Ali AIR 1956 SC 60 relied on
Per Subha Rao J i The decision in Virendra Singh s case is not only correct but
is also in accord with the progressive trend of modern international law
It may therefore be stated without contradiction that in none of the decisions of this Court that were given subsequent to Vires
dra Singh s ease the correctness of that decision was doubted
After all an act of State is an arbitrary act not based on law but on the modern version of Might is right 
It is an act outside the law
There were two different lines of approach
One adopted by the imperialistic nations and the other by others who were not
That divergence was reflected in English and American Courts
All the jurists of International law recognise the continuity of title to immovable property of the erstwhile citizens of the ceding state after the sovereignty changed over to the absorbing state
It may therefore be held that so far as title to immovable property is concerned the doctrine of International law has become crystallized and thereunder the change of sovereignty does not affect the title of the erstwhile citizens of the ceding state to their property
In America the said principle of International Law has been accepted without any qualification
MS Dalmia Dadri Cement Co Ltd V The Commissioner of Income tax 1959 SCR 729 Jagannath Agarwala vs The State of Orissa   Promodh Chandra Dev
vs The State of Orrissa 470 1962 Supp 1 SCR 405 State of Saurashtra vs Jamadar Mohmed Abdulla  discussed and distinguished
United States vs Percheman   relied on
Foster vs Neilson   The American Insurance Co and the Ocean Insurance Co vs Bales of Cotton  Charles Dehault vs United States 1835 9 Ed 117 Vajeenngli Joravarsingji vs Secretary of State for India in Council 1951 IA 357 referred to
ii The law in England is that the municipal courts cannot enforce the acquired rights of the erstwhile citizens of the ceding state against the absorbing state unless the said state has recognized or acknowledged their title
This Court accepted the English doctrine of Act of State in a series of decisions
The word recognize means to admit to acknowledge something existing before
By recognition the absorbing state does not create or confer a new title but only confirms a pre existing one
Non recognition by the absorbing does not divest the title but only makes it unenforceable against the state in municipal courts
Pramod Chandra Dev
vs The State of Orissa 1962 Supp 1 SCR 503 relied on
iii The doctrine of acquired rights at any rate in regard to immovable property has become crystallized in International Law
Under the said law the title of a citizen of a ceding state is preserved and not lost by cession
The change of sovereignty does not affect his title
The municipal laws of different countries vary in the matter of its enforceability against the state
As the title exists it must be held that even in those countries which accepted the doctrine of act of State and the right of a sovereign to repudiate the title the title is good against all except the State
Before the Constitution came into force the State did Dot repudiate the title
When the Constitution of India came into force the respondent and persons similarly situated who had title to immovable pro perty in the Sant State had a title to the said property and were in actual possession thereof
They had title to the property except against the State and they had at any rate possessory title therein
The Constitution in Article 311 declares that no person shall be deprived of his property save by authority of law
That is the Constitution recognised the title of the citizens of erstwhile State of Sant and issued an injunction against the sovereign created by it not to interfere with that right except in accordance with law
A recognition by the Supreme Law of the land must be in a higher position than that of an executive authority of a conquering State
It was held that the title to immovable property of the respondent was recognised by the Constitution itself and therefore necessarily by the sovereign which Is bound by it
471 In the present case the letter written by the Government of India dated October 1 1948 clearly recognized the title of the respondents to their properties
The letter clearly contains a statement in paragraphs 5 and 7 thereof that enjoyment of Jagirs grants etc
 existing on April 1 1948 were guaranteed and that any order passed or action taken by the Ruler before the said date would not be questioned
This is a clear recognition of the property rights of the respondent and similar others
Virendra Singh vs The State of Uttar Pradesh   relied on
MS Dalmia Dadri Cement Co Ltd vs The Commissioner of Incometax 1959 SCR 729 Jagan Nath Agarwala vs The State of Orissa   Promodh Chandra Dev vs The State of Orissa  1962 Supp
1 SCR 405 and State of Saurashtra vs Jamadar Mohamed Abdullah  discussed and distinguished