Appeal No 84 of 1954
Appeal from the judgment and order dated September 1 1954 of the former Madhya Bharat High Court in Civil Misc
Case No 11 of 1952
B Sen P V Sahasrabudhe B K B Naidu and I N Shroff for the appellant
M Adhikari Advocate General for the State of Madhya Pradesh H J Umrigar and R H Dhebar for the respondents
959 1960
October 3
The following Judgment of the Court was delivered by GAJENDERGADKAR
The question of law which arises for our decision in this appeal is whether the Kalambandis under which the appellant s right to receive Rs 218 per month by way of Bachat balance is guaranteed constitute an existing law within the meaning of article 372 of the Constitution
This question arises in this way
The appellant Madhaorao Phalke describes himself as an Ekkan and claims that as such Ekkan he and his ancestors have been receiving the monthly payment of Rs 218 from the State of Madhya Bharat
It appears that the appellant s ancestors had accompanied the Scindias to Gwalior from Maharashtra about 200 years ago and had rendered military service in conquering the territory of Gwalior
In recognition of this service the appellant s ancestors were granted a fixed amount of money per month and this amount has been received by the appellant s family for several generations past
The right to receive this amount has been  recognised by the Rulers of Gwalior in several statutes orders rules or regulations having the force of statutes amongst them are the Kalambandis of 1912 and 1935
On April 18 1952 the Government of Madhya Bharat issued an executive order terminating the said payment to the appellant that is why the appellant had to file the present petition in the High Court of Madhya Bharat against the State of Madhya Bharat and the Government of Madhya Bharat Revenue Department respondents 1 and 2 respectively under article 226 of the Constitution
In this petition the appellant bad prayed for an order that a writ in the nature of mandamus or in the alternative an appropriate direction or order be issued calling upon the respondents to forbear from giving effect to the said executive order
In his petition the appellant challenged the said order on two grounds
It was urged that since the appellant s right to receive the specified amount had been statutorily recognised by the State of Gwalior it was not open to respondent 1 960 to extinguish that right merely by an executive order
In the alternative it was contended that the right to receive the said amount from month to month was property to which the appellant was entitled and he could not be divested of that property without the payment of compensation under article 31 of the Constitution
These pleas were denied by the respondents
The respondents  case was that the payment made to the appellant s ancestors and to him was by way of emoluments for military service and did not constitute property and that the Kalambandis on which the appellant relied did not constitute an existing law under article 372
It appears that along with the appellant ten other persons had filed similar petitions making prayers for similar writs or orders against the respondents and their pleas were similarly challenged by the respondents
All the eleven petitions were accordingly tried together
These petitions were heard by a Full Bench of the Madhya Bharat High Court consisting of Shinde CJ and Dixit and Newaskar JJ
All the three learned judges agreed in holding that the Kalambandis on which the petitioners had rested their case were orders issued by the Ruler for the purpose of reorganising the scheme of administration and that they did not amount to law or regulation having the force of law
Dixit J gave a specific reason in support of his conclusion that the Kalambandis did not amount to a statute
He held that in Gwalior there was a well recognised law making machinery or custom and since the Kalambandis in question did not satisfy the requirements of the forms and solemnities specified in that behalf they could not claim the status of a statute
In the result all the petitions were dismissed
The appellant then applied for and obtained a certificate from the High Court under article 1331c of the Constitution and it is with the said certificate that he has come to this Court in the present appeal
When this appeal was heard by this Court on March 31 1958 it was conceded by both the parties that it would be better that they should be allowed to 961 adduce additional evidence before the question of law which was undoubtedly one of general importance was decided by this Court
In fact an application  bad been made by the appellant before this Court for leave to adduce additional evidence and no serious objection was raised to the additional evidence by the respondents
Therefore by consent the matter was sent back to the High Court with a direction that parties should be allowed to adduce additional evidence and the High Court should record its finding on the issue remitted to it in the light of the said additional evidence
The issue remitted to the High Court was whether the Kalambandis in question were statutes or regulations having the force of statutes in the State of Gwalior at the material time or were they merely administrative orders
After remand parties have led evidence before the  High Court and the High Court has recorded its finding on the issue remitted to it
Abdul Hakim Khan and Newaskar JJ have found in favour of the appellant and have held that the Kalambandis in question were regulations having the force of law in the State of Gwalior at the material time Krishnan J has taken a contrary view
After the finding of the High Court was thus recorded papers in the case have been submitted to this Court and the appeal has now come before us for final disposal and so we are called upon to decide the short question of law set out by us at the commencement of this judgment
At the outset it may be relevant to refer very briefly to the historical background of the claim made by the appellant and the other petitioners in all these matters
We have already stated that the appellant claims to be an Ekkan
These Ekkans it appears were a class of horsemen who formed part of the Peshwa s Cavalry along with Silledars
They were single volunteers and they brought with them their own horses and accoutrements
The other petitioners claimed to be Silledars whose ancestors formed part of the Maharatta Cavalry
These Silledars were troopers who brought in their own horses and weapons
They brought bodies of troops armed and 962 equipped at their own expense
They were also known as Paigadars
It also appears that later on an account was made as to the expenses which the Ekkan may have to bear for the maintenance of his horse and from the total amount payable to him the amount of expenses thus determined was deducted and that presumably left the balance Rs 218 which was paid to him as Bachat or balance
Broadly stated this appears to be the position on the pleadings of the parties in the present proceedings
The question which calls for our decision is whether the right to receive this amount is a statutory right in other words whether the Kalambandis on which the right is based were rules or regulations having the force of law in the St ate of Gwalior The two Kalambandis in question were issued in 1912 A D and 1935 A D respectively
The first Kalambandi was issued by the Ruler Sir Madhavrao himself whereas the second was issued by the Council which was then in charge of the administration of the State subsequent to the death of Sir Madhavrao which took place in 1925
It is well known that the States of Gwalior Indore and Malwa integrated and formed a Union in 1948
After the Union was thus formed Act No 1 of 1948 was passed for the purpose of taking over the administration of the covenanting States
Section 4 of this Act provided for the application of local laws and as a result all laws ordinances rules regulations etc having the force of law in any of the covenanting States were to continue to remain in force until they were repealed or amended according to law
Thus the existing laws which were in force in the State of Gwalior continued even after the union  and according to the appellant the operation of the Kalambandis continued under section 4
On September 19 1950 a notification was issued by the Commissioner Jagir Inams Court of Wards Madhya Bharat declaring that in the case of army personnel described in paragraph 1 question of mutation adoption
 arising in regard to the said personnel would be dealt with by the office of the Commissioner and Bachat and other amounts payable to 963 the said personnel would be distributed by the same office
Members of the said army personnel were accordingly asked to claim payment in respect of their Nemnook from the office of the Commissioner
Subsequently under the new set up which came into existence after the formation of Madhya Bharat the armies of the covenanting States were amalgamated and reorganised by the Government of India so as to fit them into the overall plans of the defence of the country
The report of the general administration of Madhya Bharat shows how this reorganisation was carried out
As a result of this reorganisation the expenditure on account of hereditary military pensions of Bachat to Silledars and Ekkans was agreed to be charged to the Muafi department of the Madhya Bharat Government that is how the Madhya Bharat Government continued to be liable to pay the amount to the appellant from mouth to month
Then followed the impugned order passed by respondent 1 on April 18 1952
Clauses 1 to 4 of this order made provision for the continued payment to the persons specified thereunder
Clause 5 however declared that the distribution of amounts to Silledars and Ekkans not covered by cls
1 to 4 would be absolutely stopped from May 1 1952
It is this order which has given rise to the present proceedings
Before dealing with the question as to whether the Kalambandis constitute an existing law or not it may be useful to refer very briefly to the constitutional position in regard to the Government of Gwalior at the material time
It appears that in 1905 Sir Madhavrao Scindia set up an advisory council known as Majlis Khas
He was himself the President of this Council and assumed the title of Mir Majlis
This Council was constituted as a sort of law making body but in section 5 of the Quaid Majlis Khas it was expressly provided that the acceptance or rejection of any recommendations made by the majority of the Council would depend entirely on the discretion of the President
This was followed in 1916 by the establishment of Majlis Quanun for the purpose of making laws for 964 the State
With this body were associated some nominated public citizens
Section 4a of the Quaid Majlis Quanun however made it clear that its function was merely to advise His Highness on such matters as would be placed before it and section 4b left it to the absolute discretion of His Highness either to accept or not the recommendations of the body
In 1918 the Constitutional Manual describing the functions of the members of the Ruler s Cabinet was pub lished and Majlis Am which was the House of the People was established
It consisted mainly of nominated members though some members elected from recognised public bodies also were associated with it
According to section 316 of the relevant law creating this body deliberations of the body were ultimately to be submitted to His Highness for his final orders and it was his orders which alone could be executed
It would thus be seen that though Sir Madhavrao was gradually taking steps to associate the public with the government of the State and with that object he was establishing institutions consistent with the democratic form of rule he had maintained all his powers as a sovereign with himself and had not delegated any of his powers in favour of any of the said bodies
In other words despite the creation of these bodies the Maharaja continued to be an absolute monarch in whom were vested the supreme power of the legislature the executive and the judiciary
In dealing with the question as to whether the orders issued by such an absolute monarch amount to a law or regulation having the force of law or whether they constitute merely administrative orders it is important to bear in mind that the distinction between executive orders and legislative commands is likely to be merely academic where the Ruler is the source of all power
There was no constitutional limi tation upon the authority of the Ruler to act in any capacity he liked he would be the supreme legislature the supreme judiciary and the supreme head of the executive and all his orders however issued would have the force of law and would govern and regulate the affairs of the State including the rights of 965 its citizens
In Ameer un Nissa Begum vs Mahboob Begum 1 this Court had to deal with the effect of a Firman issued by the Nizam and it observed that so long as the particular Firman issued by the Nizam held the field that alone would govern and regulate the rights of the parties concerned though it would be annulled or modified by a later Firman at any time that the Nizam willed
What was held about the Firman issued by the Nizam would be equally true about all effective orders issued by the Ruler of Gwalior Vide also Director of Endowments Government of Hyderabad vs Akram Ali 2 
It is also clear that an order issued by an absolute monarch in an Indian State which had the force of law would amount to an existing law under article 372 of the Constitution
Article 372 provides for the continuance in force of the existing laws which were in force in the territories of India immediately before the commencement of the Constitution and article 36610 defines an existing law inter alia as meaning any law ordinance order rule or regulation passed or made before the commencement of the Constitution by any person having a power to make such law ordinance order rule or regulation
In Edward Mills Co Ltd Beawar vs State of Ajmer 3 this Court has held that  there is not any material difference between the expressions existing law  and the law in force 
The definition of an existing law in article 36610 as well as the definition of an Indian law contained in section 329 of the General Clauses Act make this position clear 
Therefore even if it is held that the Kalambandis in question did not amount to a quanun or law technically so called they would nevertheless be orders or regulations which had the force of law in the State of Gwalior at the material time and would be saved under article 372
The question which then arises is whether these Kalambandis were regulations having the force of law at the material time
In support of the conclusion that they are merely administrative orders it is urged by the learned 1 AIR 1955 SC 352
2 AIR 1956 SC 6o
3  123 966 Advocate General of Madhya Pradesh that Sir Madhavrao was an enlightened Ruler and was fully conscious of the distinction between executive orders and statutory provisions and so if the Kalambandis in question did not take the form of a quanun or a statute it would be safe to infer that they were intended to operate merely as executive orders
In support of this argument reliance has been placed on the obser vations made by Sir Madhavrao in Volume 7 which deals with Durbar Policy
 Broadly speaking says Sir Madhavrao  all orders and directions issued by the Ruler may be regarded as laws
In the technical sense however the latter term signified only commands whose fulfilment is accompanied by the conferment of a particular concession and whose con travention spells punishment or the extinguishment of a right
Orders issued for the purpose of regulating the working of a department generally take the form of Rules Manual or Kalambandi and are superscribed as such 
It may be conceded that this statement does make a distinction between laws technically socalled and Rules Manual or Kalambandi but it is significant that the very statement on which this argument is founded ends with the observation that the differentiation in the Dames is merely intended to indicate the group to which a given set of orders be
longs
In other words the name given to the order would not be decisive its character its content and its purpose must be independently considered
Then it is urged that the Kalambandis in question were not published in the Government Gazette as other laws are they were published only in the military gazette and it is argued that they are not called quanun or laws as they would have been if they were intended to operate as laws
In this connection our attention was also drawn to certain acts passed in the State of Gwalior which are described as acts or laws
On the other hand it is clear that the distinction between Kalambandi and quanun was not always strictly observed
In regard to the jurisdiction of the High Court and the functioning of the Civil and Criminal Courts rules were issued and yet they 967 were described as a Manual
There can be no doubt that the rules contained in this Manual which govern the jurisdiction powers and authority of Courts in the State of Gwalior had the force of law and yet they were included in a Manual which judging merely by the description of the document can be distinguished from a quanun
Similarly it appears from circulars collected in a book called Majmua Circulars 1971 to 1993 Samvat that the notification issued under the said Circular had the effect of modifying the provisions of the Customs Law
There is also another instance that amendment of statutory provisions was made by Sir Madhavrao by giving directions in that behalf though such directions did not take the form of a quanun
In fact in section 39 of the Durbar Policy Volume 3 Sir Madhavrao has described the Kalambandi of Samvat 1969 as quayada
To the same effect is the Durbar Order No 5 dated April 14 1923
It would thus be clear that the decision of the question with which we are concerned cannot rest merely on the description of the order
It would not be possible to accept the argument urged by the learned Advocate General that because the Kalambandi is not described as a quanun or was not published in the government gazette therefore it should be treated as an executive order
The words used in describing the several orders issued by the Ruler can afford no material assistance in determining their character
In this connection it is necessary to recall that all orders issued by the absolute monarch had the force of law
Therefore it would be necessary to consider the character of the orders contained in these Kalambandis
The first Kalambandi which was issued in 1912 consists of 54 clauses
No doubt it begins by saying that it has been issued for the purpose of arranging for the administration of the department of irregular unit of Shiledari but the nature of the provisions contained in this document unambiguouly impresses upon it the character of a statute or a regulation having the force of a statute
It recognises and confers hereditary rights it provides for the adoption of a son by the widow of a deceased silledar subject to the 968 approval of the State it also provides for the maintenance of widows out of funds specially set apart for that purpose it contemplates the offering of a substitute when a Silledar has become old or has other
Wise become unfit to render service it makes detailed provisions as to mutation of names after the death of a Silledar and it also directs that the Asami being for the Shiledari service it cannot be mortgaged for a debt of any banker and it further provides that if a decree is passed against a Silledar and the decreeholder seeks to proceed against the amount payable to him the execution has to be carried out in accordance with the manner and subject to the limitations prescribed in that behalf
It would thus be seen that the detailed provisions made by this Kalambandi deal with several aspects of the amount payable to the recipient and considered as a whole it cannot be treated as an administrative order issued merely for the purpose of regulating the working of the administration of the department of irregular forces
The second order which was issued by the Council is substantially on the same lines as the first order
It consists of 39 clauses
Its preamble shows that as per orders of the Durbar the department of irregulars was governed by the regulations issued in that behalf in 1912 AD and it adds that  because the aforesaid Bedas have now been amalgamated with the regular army and are made subject to all the laws that are in force in the Gwalior army the Regulations of 1912 are repealed and orders are issued as under 
This clearly reads like a statutory provision whereby the earlier relevant statute is repealed
The scheme of this order follows the pattern of the earlier order
It provides for succession for the regulation of adoption for the mutation and heirship enquiry for a substitute being given in case the Silledar is unable to work himself prescribes a disqualification from service where the Ismdar is convicted and imposes a similar limitation on execution against the amount of the Asami
Clause 22 of this order says that in case there is no legal heir or the widow of the deceased Ismdar his name will be struck off and the 969 Asami will at once be given to other person
In no case will the Asami be abolished
In our opinion
having regard to the contents of the two orders and the character of the provisions made by them in such a detailed manner it is difficult to distinguish them from statutes or laws in any event they must be treated as rules or regulations having the force of law
That is the finding recorded by Abdul Hakim Khan and Newaskar JJ and we think that the said finding is correct
After the finding was recorded and submitted to this Court the appellant has made one more application for permission to lead another piece of additional evidence
This evidence consists of a book named  Guide Book Kalambandi  of October 1 1899
It has been printed published and issued under the signature of the Ruler and it relates among other things to the administration of the Revenue Department of the State of Gwalior it is written in Hindi
It contains a preface and introduction
According to the appellant the relevant portions of this document would clearly show that Kalambandi was treated as indistinguishable from quanun or law
This position in not seriously disputed by the respondents but they contend that the appellant should not be allowed any further opportunity to lead additional evidence because by the order of remand he was given such an opportunity and he should have produced all the evidence on which he wanted to rely before the High Court
There is some force in this contention  on the other hand it is clear that publications like the one on which the appellant now seeks to rely would be primarily within the knowledge of respondent I and respondent I should have produced all relevant and material documents to assist the High Court in determaining the issue sent to it after remand
However in view of the conclusion which we have reached on the material that has already been adduced on the record we do not think it necessary to consider whether the additional evidence should be allowed to be adduced
It is not disputed that if the Kalambandis on which 970 the appellant s right is based are rules or regulations having the force of law the impugned executive order issued by respondent 1 would be invalid
The right guaranteed to the appellant by an existing law cannot be extinguished by the issue of an executive order
In fact on this point there has never been a dispute between the parties in the present proceedings
That is why the only point Of controversy between the parties was whether the Kalambandis in question amount to an existing law or not
Since we have answered this question in favour of the appellant we must allow the appeal set aside the order passed by the High Court and direct that a proper writ or order should be issued in favour of the appellant as prayed for by him
The appellant would be entitled to his costs throughout
Appeal allowed


Summary:
A Munsif appointed one R as a commissioner for seizing the account books of the plaintiff in a suit and to produce them before him
R seized the account books and while they were still in his possession the appellants offered a bribe to R for being allowed to tamper with them
The appellants were tried and convicted under section 165 A of the Indian Penal Code
The appellants contended that the Munsif had no jurisdiction to appoint a commissioner for seizing account books that the appointment of R as a commissioner was null and void and that consequently R was not a public servant and the appellants committed no offence in offering him a bribe
The respondent urged that the Munsif had jurisdiction under his inherent powers under section 151 Code of Civil Procedure to appoint the commissioner and that in any case as R was in actual possession of the situation of a public servant within Explanation 2 to section 21 Of the Indian Penal Code he would be deemed to be a public servant
Held that R was not a public servant and the appellants did not commit any offence under section 165 A of the Penal Code by offering him a bribe
The Munsif had no inherent powers to appoint a commissioner to seize account books and his order was null and void
The inherent powers under section 151 Code of Civil Procedure were with respect to the procedure to be followed by a Court in deciding the cause before it such powers did not extend over the substantive rights of litigants
A party had full rights over his account books and the Court had no inherent power to forcibly seize his property
Explanation 2 to section 21 Indian Penal Code applied only to a person actually in possession of a pre existing office of a public servant
In the present case there was no post or office of a commissioner in existence which could be said to have been occupied by R His appointment being without jurisdiction R could not be deemed to be a public servant 885