Appeal No 152 of 1955
Appeal by special leave from the judgment and order dated March 25 1953 of the Jammu and Kashmir High Court in Civil First Appeal No 4 of 2009
NC Chatterjee Gopi Nath Kunzru and Naunit Lal for the appellants
HN Sanyal Additional Solicitor General of India Jaswant Singh Advocate General for the State of Jammu and Kashmir R H Dhebar and T M Sen for the respondent
March 2
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal by special leave arises from a suit filed by the appellant in a representative capacity Civil Suit No 4 of 2008 against the State of Jammu  Kashmir praying for a declaration that the Jammu  Kashmir Big Landed Estate Abolition Act XVII of 2007 hereinafter called the Act is void inoperative and ultra vires of Yuvaraj Karan Singh who enacted it and for a further declaration that the appellant was entitled to retain the peaceful possession of his lands
273 It appears that the validity of the Act was similarly challenged by Maghar Singh by his suit filed on the Original Side of the High Court of Jammu  Kashmir Civil Suit No 59 of 2007 and Mr Justice Kilam who had heard the said suit had rejected the plaintiff s contentions and held that the Act was valid
When the appellant  suit came for trial before the District Court it was conceded on his behalf that the points raised by him against the validity of the Act had been decided by Mr Justice Kilam and that in view of the said decision the appellant could not usefully urge anything more before the District Court
The learned District Judge who was bound by the decision of Mr Justice Kilam applied it to the suit before him and held that the Act was valid and that the appellant was not entitled to the two declarations claimed by him
In the result the appellant s suit was dismissed
Against this decree the appellant preferred an appeal in the High Court of Jammu  Kashmir Civil Appeal No 4 of 2009
Maghar Singh whose suit had been dismissed by Mr Justice Kilam had also preferred an appeal No 29 of 2008 before the High Court
The two appeals were heard together by a Division Bench of the High Court which held that the Act was valid and that the appellants were not entitled to any declaration claimed by them
Both the appeals were accordingly dismissed
Against the decree passed by the High Court dismissing his appeal the appellant applied to the High Court for leave to appeal to this Court
The said application was however dismissed
Thereupon the appellant applied for and obtained special leave to appeal to this Court
In dealing with this appeal it is necessary to narrate in some detail the events which took place in Kashmir and the constitutional changes which followed them in order to appreciate fully the background of the impugned legislation
A clear understanding of this background will help us to deal with the appellant s case in its proper perspective
In 1925 Maharaja 35 274 Hari Singh succeeded Maharaja Pratap Singh as the Ruler of Kashmir
It appears that for some time prior to 1934 there was public agitation in Kashmir for the establishment of responsible government
Presumably as a sequel to the said agitation Maharaja Hari Singh issued Regulation 1 of 1991 1934
The Regulation began with the statement of policy that it was the declared intention of the Maharaja to provide for the association of his subjects in the matter of legislation and the administration of  the State and that it was in pursuance of the said intention that the Regulation was being promulgated
This Regulation consisted of 46 sections which dealt with the legislative executive and judicial powers of the Maharaja himself referred to the subjects which should be reserved from the operation of the Regulation made provision for the constitution of the Legislature of the State conferred authority on the Council to make rules for specified purposes and referred to other relevant and material topics
It is relevant to refer to only two sections of this Regulation
Section 3 provides that all powers legislative executive and judicial in relation to the State and its government are hereby declared to be and to have been always inherent in and possessed and retained by His Highness the Maharaja of Jammu  Kashmir and nothing contained in the Regulation shall affect or be deemed to have affected the right and prerogative of His Highness to make and pass regulations proclamations and ordinances by virtue of his inherent power
Section 30 lays down that Do measure shall be deemed to have been passed by the Praja Sabha until and unless His Highness has signified his assent thereto
The Regulation leaves it to the absolute discretion of His Highness whether to assent to such a measure or not
Five years later the Maharaja promulgated the Jammu  Kashmir Constitution Act 14 of 1996 1939
From the preamble to this Constitution it appears that before its promulgation the Maharaja had issued a proclamation on February 11 1939 in which he had announced his decision as to the further steps to 275 be taken to enable his subjects to make orderly progress in the direction of attaining the ideal of active co operation between the executive and the Legislature of the State in ministering to the maximum happiness of the people
In accordance with this desire the text of the Constitution contained in Regulation 1 of 1991 was thoroughly overhauled and an attempt was made to bring the amended text into line with that of similar Constitutions of its type
This Con stitution is divided into six parts and includes 78 sections
Part 1 is introductory
Part 2 deals with the executive Part 3 with the Legislature Part 4 with the Judicature Part 5 contains miscellaneous provisions and Part 6 provides for repeal and saving and includes transitional provisions
It is significant that section 5 of this Act like section 3 of the earlier Regulation recognises and preserves all the inherent powers of His Highness while section 4 provides that the State was to be governed by and in the name of His Highness and all rights authority and jurisdiction which appertain or are incidental to the government of the State are exercisable by His Highness except in so far as may be otherwise provided by or under the Act or as may be otherwise directed by His Highness
The other provisions of the Act are all subject to the over riding powers of His Highness specifically preserved by section 5
As we will point out later on in substance the Constitutional powers of the Maharaja under the present Act were exactly the same as those under the earlier Act
While the State of Jammu  Kashmir was being governed by the Maharaja and the second Constitution as amended from time to time was in operation political events were moving very fast in India and they culminated in the passing of the Indian Independence Act 1947
Under section 7 1 b of this Act the suzerainty of His Majesty over the Indian States lapsed and with it lapsed all treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States all obligations of His Majesty existing at that date towards Indian States or the Rulers thereof and all powers 276 rights authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty grant usage sufferance or otherwise
The proviso to the said section however prescribed that notwithstanding anything in para
b effect shall as nearly as may be continue to be given to the provisions of any such agreement as therein referred to in relation to the subjects enumerated in the proviso or other like matters until the provisions in question are denounced by the Ruler of the Indian State on the one hand or by the Dominion or Province concerned on the other hand or are superseded by subsequent agreements
Thus with the lapse of British paramountcy the State of Jammu  Kashmir like the other Indian States was theoretically free from the limitations imposed by the said paramountcy subject to the provisions of the proviso just mentioned
On October 22 1947 the tribal raiders invaded the territory of the State and this invasion presented a problem of unprecedented gravity before the Maharaja
With the progress of the invading raiders the safety of the State was itself in grave jeopardy and it appeared that if the march of the invaders was not successfully resisted they would soon knock at the doors of Srinagar itself
This act of aggression set in motion a chain of political events which ultimately changed the history and political constitution of Kashmir with unexpected speed
On October 25 1947 the Maharaja signed an Instrument of Accession with India which had then become an Independent Dominion
By the First Clause of the Instrument the Maharaja declared that he had acceded to the Dominion of India with the intent that the Governor General of India the Dominion Legislature the Federal Court and any other Dominion Authority established for the purpose of the Dominion shall by virtue of the Instrument of Accession subject always to the terms thereof and for the purposes only of the Dominion exercise in relation to the State of Jammu  Kashmir such functions as may be vested in them by or under the Government of India Act 1935 as in force in the Dominion of India on August 15 1947
277 We may usefully refer to some other relevant clauses of this Instrument
By el 3 the Maharaja agreed that the matters specified in the Schedule attached to the Instrument of Accession were the matters with respect to which the Dominion Legislature may make laws for this State
Clause 5 provides that the Instrument shall not be varied by any amendment of the Government of India Act 1935 or of the Indian Independence Act 1947 unless such amendment is accepted by the Maharaja by an Instrument supplementary to the original Instrument of Accession
By el 7 it was agreed that the Maharaja would not be deemed to be committed to the acceptance of any future Constitution of India nor would his discretion be fettered to enter into agreements with the Government of India under any such future Constitution
Clause 8 is very important
It says that nothing in the Instrument affects the continuance of the Maharaja s sovereignty in and over his State or save as provided by or under the Instrument the exercise of any powers authority and rights then enjoyed by him as Ruler of the State or the validity of any law then in force in the State
The Schedule attached to the Instrument refers to four topics defence external affairs communications and ancillary and under these topics twenty matters have been serially enumerated as those in respect of which the Dominion Legislature had the power to make laws for the State
Thus by the Instrument of Accession the Maharaja took the very important step of recognising the fact that his State was a part of the Dominion of India
Meanwhile the invasion of the State had created tremendous popular fervour and patriotic feelings in resisting the act of aggression and this popular feeling inevitably tended to exercise pressure on the Maharaja for introducing responsible and popular government in the State
The Maharaja tried to pacify the popular demand by issuing a proclamation on March 5 1948
By this proclamation he stated that in accordance with the traditions of his dynasty he had from time to time provided for increasing association of his people with the administration of the State with the object of 278 realising the goal of full responsible government at as early a date as possible and he added that he had noted with gratification and pride the progress made so far and the legitimate desire of his people for the immediate establishment of a fully democratic constitution based on adult franchise with a hereditary Ruler from his dynasty as the constitutional head of an executive responsible to the Legislature
It appears that before this proclamation was issued the Maharaja had already appointed Sheikh Mohammed Abdullah who was then the popular leader of the people as the head of the emergency administration
By the pro clamation the Maharaja replaced the emergency administration by a popular interim government and provided for its powers duties and functions pending the formation of a fully democratic constitution
Clause 1 of the proclamation provides for the composition of the Ministry whereas by cl 2 the Prime Minister and other ministers are required to function as a cabinet and act on the principle of joint responsibility
A Dewan appointed by the Maharaja is to be a member of the Cabinet
Clause 4 provides that the Council of Ministers shall take appropriate steps as soon as resto ration of normal conditions has been completed to convene a National Assembly based on adult franchise having due regard to the principle that the number of representatives from each voting area should as far as practicable be proportionate to the population of that area
Clause 5 then lays down that the Constitution to be framed by the National Assembly shall provide adequate safeguards for the minorities and contain appropriate provisions guaranteeing freedom of conscience freedom of speech and freedom of assembly
Clause 6 states that when the work of framing the Constitution is completed by the National Assembly the Constitution would be submitted through the Council of Ministers to the Maharaja for his acceptance
The proclamation ended with the expression of hope that the formation of a popular interim government and the inauguration in the near future of a fully democratic Constitution would ensure the contentment happiness and the moral and material advancement 270 of the people of the State
Through under this proclamation a popular interim government was set up the constitutional position still was that the popular government had theoretically to function under the Constitution of 1939
It appears that before the popular government was thus installed in office the Maharaja had deputed four representatives of the State to represent the State in the Constituent Assembly called in the Dominion of India to frame the Constitution of India
After the popular interim government began to function the political events in the State gathered momentum and the public began to clamour for the framing of a democratic Constitution at an early date
When the atmosphere in the State was thus surcharged the Maharaja issued his final proclamation on June 20 1949 by which he entrusted to Yuvaraj Karan Singh Bahadur all his powers and functions in regard to the government of the State because he had decided for reasons of health to leave the State for a temporary period
 Now therefore I hereby direct and declare  says the proclamation  all powers and functions whether legislative executive or judicial which are exercisable by me in relation to the State and its government including in particular my right and prerogative of making laws of issuing proclamations orders and ordinances or remitting commuting or reducing sentences and of pardoning offenders shall during the period of my absence from the State be exercisable by Yuvaraj Karan Singh Bahadur 
As subsequent events show this was the last official act of the Maharaja before he left the State
After Yuvaraj Karan Singh took the Maharaja s place and began to function under the powers assigned to him by the said proclamation the interim popular government installed earlier was functioning as before
On November 25 1949 Yuvaraj Karan Singh issued a proclamation by which he declared and directed that the Constitution of India shortly to be adopted by the Constituent Assembly of India shall in so far as it is applicable to the State of Jammu  Kashmir govern the constitutional relationship between 280 the State and the contemplated Union of India and shall be enforced in the State by him his heirs and successors in accordance with the tenor of its provisions
He also declared that the provisions of the said Constitution shall as from the date of its commencement supersede and abrogate all other constitutional provisions inconsistent therewith which were then in force in the State
The preamble to this proclamation shows that it was based on the conviction that the best interests of the State required that the constitutional relationship established between the State and the Dominion of India should be continued as be tween the State and the contemplated Union of India and it refers to the fact that the Constituent Assembly of India which had framed the Constitution of India included the duly appointed representatives of the State and that the said Constitution provided a suitable basis to continue the constitutional relationship between the State and the contemplated Union of India
On January 26 1950 the Constitution of India came into force
This proclamation was followed by the Constitution Application to Jammu  Kashmir Order 1950 C O 10 which was issued on January 26 1950 by the President in consultation with the Government of Jammu  Kashmir and in exercise of the powers conferred by cl
1 of article 370 of the Constitution
It came into force at once
Clause 2 of this order provides that for the purposes of sub cl
i of article 370 of the Constitution the matters specified in the First Schedule to the Order correspond to matters specified in the Instrument of Accession governing the accession of the State of Jammu  Kashmir to the Dominion of India as the matters with regard to which the Dominion Legislature may make laws for that State and accordingly the power of Parliament to make laws for that State shall be limited to the matters specified in the said First Schedule
Clause 3 provides that in addition to the provisions of article 1 and article 370 of the Constitution the only other provisions of the Constitution which shall apply to the State of Jammu  Kashmir shall be those specified in the 281 Second Schedule to the Order and shall so apply subject to the exceptions and modifications specified in the said Schedule
The First Schedule to the Order specified 96 items occurring in the Union List while the Second Schedule set out the Articles of the Constitution made applicable to the State together with the exceptions and modifications
Later on we will have occasion to refer to some of these Articles on which the appellant has relied
It appears that after the interim popular Government took office the Revenue Minister made a statement of policy at a meeting of the special staff of revenue officers held in the Governor s office on August 13 1950
The Minister stated that whatever the difficulties the Cabinet was determined to go ahead and transfer the proprietorship of the land to the tiller
The main idea underlying the proposed agricultural reform was that a land lord shall not possess more than 20 acres of agricultural land
In addition he would be allowed 8 kanals for his use and Sagzar and 4 kanals for his second house if in existence and 10 kanals for Bedzar or Safedzar
It was contemplated that a committee would be appointed to settle the details and other matters incidental to the said agricultural plan
It was presumably in pursuance of this plan adopted by the interim Cabinet that the Act was promulgated by Yuvaraj Karan Singh on October 17 1950
The preamble to the Act shows that it was promulgated because no lasting improvement in agricultural production and efficiency was possible without the removal of the intermediaries between the tiller of the soil and the State and so for the purpose of improving agricultural production it was expedient to provide for the abolition of such proprietors as own big landed estates and to transfer the land held by them to the actual tiller
The Yuvaraj enacted the law in exercise of the powers vested in him under section of the
Constitution Act of 1996 and the proclamation issued by Maharaja Hari Singh on June 20 1949
The Act consists of 47 sections and purports to carry out its 36 282 policy of improving the agricultural production of the State by providing for the extinction of the proprietors  titles and the transfer of the lands to the tillers and by setting up a self contained machinery for the carry ing out of the scheme of the Act and for settlement of all incidental disputes arising thereunder
For the purpose of this appeal however it is necessary to refer to a few relevant sections which deal with the broad features of the extinction of the proprietors  rights and the transfer of lands to the tillers
section 2 of the Act inter alia defines land proprietor and tiller while section 3 excludes certain specified lands from the operation of the Act
Section 4 sub section
1 provides for the extinction of the right of ownership in certain lands and it lays down that not withstanding anything contained in any law for the time being in force the right of ownership held by a proprietor in land other than the land mentioned in sub section
2 shall subject to the other provisions of the Act extinguish and cease to vest in him from the date the Act comes into force
Sub section 2 of section 4 enumerates lands which are excluded from the operation of sub section
They are a units of land not exceeding 182 kanals including residential sites Bedzars and Safedzars b Kahikrishmi areas Araks Kaps and unculturable wastes including those used for raising fuel or fodder and c orchards
The proviso to sub section
2 gives government the power to dispose of lands mentioned in cl
b in such a manner as may be recommended by the committee to be set up for that purpose
Section 26 of the Act deals with the question of payment to the proprietors
It provides that there shall until the Constituent Assembly of the State settles the question of compensation with respect to the land expropriated under this Act be paid by the government to every proprietor who has been expropriated an annuity in the manner indicated in the section
In other words subject to the final decision of the Constituent Assembly section 26 contemplates the payment of annuity to the expropriated proprietors according to the scale prescribed in the section
With the rest of the sections we are not concerned in the present appeal
283 After the Act was enacted by the yuvaraj he issued a proclamation on April 20 1951 directing that a Constituent Assembly consisting of representatives of the people elected on the basis of adult franchise shall be constituted forthwith for the purpose of framing a Constitution for the State of Jammu  Kashmir
The proclamation sets out the manner in which members of the said Constituent Assembly would be elected and makes provisions for the holding of the said elections
It also authorised the Constituent Assembly to frame its own agenda and make rules for regulating its procedure and the conduct of its business
The preamble to this proclamation shows that the Yuvaraj was satisfied that it was the general desire of the people that a Constituent Assembly should be brought into being for the purpose of framing a Constitution for the State and that it was commonly felt that the convening of the said Assembly could no longer be delayed without detriment to the future well being of the State
The Yuvaraj also felt no doubt that the proclamation issued by the Maharaja on March 5 1948 in regard to the convening of the national assembly as per cls
4 to 6 no longer met the requirements of the situation in the State
Thus this proclamation was intended to meet expeditiously the popular demand for the framing of a democratic constitution  and it indicates that a decisive stage bad been reached in the political history of the State
In accordance with this proclamation a Constituent Assembly was elected and it framed the Constitution for the State
By the Constitution thus framed the hereditary rule of the State was abolished and a provision was made for the election of a Sadar i Riyasat to be at the head of the State
On November 13 1952 the Yuvaraj was elected to the office of the Sadar i Riyasat and with his election the dynastic rule of Maharaja Hari Singh came to an end
On November 15 1952 the Constitution Application to Jammu  Kashmir Second Amendment Order 1952 C O 43 was issued and it came into force on November 17 1952
By this Order the earlier Order of 1950 was amended as a result of which all references 284 in the said Order to the Rajpramukh shall be construed as references to the Sadar i Riyasat of Jammu  Kashmir
Similarly in the Second Schedule to the said Order some amendments were made
On the same day a Declaration C O 44 was made by the President under article 370 sub article
3 of the Constitution that from November 17 1952 the said article 370 shall be operative with the modification that for the explanation in el
1 thereof the new explanation shall be substituted
The effect of this new explanation was that the government of the State meant the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the Sadar i Riyasat of Jammu  Kashmir acting on the advice of the Council of Ministers of the State for the time being in force
On November 18 1952 Yuvaraj Karan Singh was recognised as the Sadar i Riyasat of Jammu  Kashmir
On May 14 1954 another Constitution Application to Jammu  Kashmir Order C O 48 was made by the President which inter alia applied article 31A and 31B to the State with certain modifications and included the Act in the Ninth Schedule of the Constitution
The last two Orders were issued subsequent to the enactment of the Act and so they would have no bearing on the decision of the points raised before us
We have briefly referred to them for the sake of completing the narrative of the material events
The validity of the Act is impeached mainly on the ground that Yuvaraj Karan Singh had no authority to promulgate the said Act
It is this argument which has been urged before us by Mr Chatterjee in different and alternative forms that needs careful examination
The first attack against the competence of Yuvaraj Karan Singh proceeds on the assumption that at the time when Maharaja Hari Singh conveyed his powers to Yuvaraj Karan Singh by his proclamation of June 20 1949 he was himself no more than a constitutional monarch and as such he could convey to Yuvaraj Karan Singh no higher powers
Let us first deal with this argument
Prior to the passing of the Independence Act 1947 the sovereignty of Maharaja 285 Hari Singh over the State of Jammu  Kashmir was subject to such limitations as were constitutionally imposed on it by the paramountcy of the British Crown and by the treaties and agreements entered into between the Rulers of the State and the British Government
It cannot be disputed that so far as the internal administration and governance of the State were concerned Maharaja Hari Singh like his predecessors was an absolute monarch  and that all powers legislative executive and judicial in relation to his State and its governance inherently vested in him
This position has been emphatically brought out by section 3 of Regulation 1 of 1991 1934
Though by this Regulation Maharaja Hari Singh gave effect to his intention to provide for the association of his subjects in the matter of legislation and administration of the State by section 3 he fully preserved in himself all of his pre existing legislative executive and judicial powers
Section 3 not only preserves the said powers but expressly provides that nothing contained in the Regulation shall affect or be deemed to have affected the right and prerogative of His Highness to make and pass regulations proclamations and ordinances by virtue of his inherent authority
It is thus clear that the rest of the provisions of the Regulation were subject to the overriding powers preserved by His Highness
It is however urged that this constitutional position was substantially altered by the subsequent Constitution Act of 1996 14 of 1996
We are unable to accept this argument
Sections 4 and 5 of this Act in terms continue to preserve all the powers legislative executive and judicial as well as the right and prerogative of His Highness just as much as section 3 of Regulation 1 of 1991
It is significant that the provisions of Pt
II which deals with the executive like those of Pt
III which deals with the Legislature begin with the express provision that they are subject to the provisions of sections 4 and 5
In other words the powers conferred on the executive and the Legislature limited and qualified as they are are made expressly subject to the overriding powers of His Highness 286 Besides there are specific provisions in the Act which clearly emphasise the preservation of the said powers
Section 24 which enumerates the reserved matters over which the Praja Sabha had no authority to legis late provides by cl
i that the provisions of the Act and the rules made thereunder and their repeal or modifications constitute reserved matters
Besides clj confers on His Highness the authority to add other specified matters to the list of reserved matters from time to time
These provisions make it clear that his Highness could enlarge the list of reserved matters thereby limiting the jurisdiction of the Praja Sabha
Similarly the legislative procedure prescribed by section 31 sub sections
2 and 3 clearly shows that it is only such bills as received the assent of His Highness that be came law His Highness s power to assent or not to assent to the bills submitted to him being absolutely unfettered
The ordinances issued by His Highness under section 38 cannot be repealed or altered by the Praja Sabha by virtue of section 39  and lastly section 72 expressly preserves the inherent power and prerogative of His Highness
Thus there can be no doubt that though this Act marked the second step taken by His Highness in actively associating his subjects with the ad ministration of the State it did not constitute even a partial surrender by His Highness of his sovereign rights in favour of the Praja Sabha
So far as the said powers are concerned the constitutional position under this Act is substantially the same as under the earlier Act
It is contended by Mr Chatterjee that the prerogative rights which are preserved by sections 5 and 72 of this Act represent only such rights as had not been entrusted to the Praja Sabha and in support of this contention he referred us to the observation made by Dicey that  the discretionary authority of the Crown originates generally not in Act of Parliament but in the prerogatives term which has caused more perplexity to students than any other expression referring to the constitution
The prerogative appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary 287 authority which it any given time is legally left in the hands of the Crown1
This observation has been cited with approval by the House of Lords in the case of Attorney General vs De Keyser s Royal Hotel Ltd 2
We do not see how this statement can assist us in determining the constitutional status and the extent of the powers of Maharaja Hari Singh in relation to the governance of the State
The said discussion in Dicey s treatise has reference to the special features of the history of English constitutional development and it would naturally be of no relevance in dealing with the effect of the Constitution of 1996 with which we are concerned
As we have just indicated this Constitution emphatically brings out the fact that the Maharaja was an absolute monarch and in him vested all the legislative executive and judicial powers along with the prerogative rights mentioned in sections 5 and 72
Whilst this was the true constitutional position the Independence Act 1947 was passed by the British Parliament and with the lapse of the British paramountcy the Rulers of Indian States were released from the limitations imposed on their sovereignty by the said paramountcy of the British Crown and by the treaties in force between the British Government and the States this was however subject to the proviso prescribed by section 7 of the Independence Act under which effect had to be given to the provisions of the agreements specified in the proviso until they were denounced by the Rulers of the States or were superseded by subsequent agreements
In the result subject to the agreements saved by the proviso Maharaja Hari Singh continued to be an absolute monarch of the State and in the eyes of international law he might conceivably have claimed the status of a sovereign and independent State
But it is urged that the sovereignty of the Maharaj was considerably affected by the provisions of the Instrument of Accession which he signed on October 25 1947
This argument is clearly untenable
It is true that by cl
I of the 1 Dicey on  Law of the Constitution  9th Ed P 424
2   526
288 Instrument of Accession His Highness conceded to the authorities mentioned in the said clause the right to exercise in relation to his State such functions as may be vested in them by or under the Government of India Act 1935 as in force in the said Dominion on August 15 1947 but this was subject to the other terms of the Instrument of Accession itself and el 6 of the Instrument clearly and expressly recognised the continuance of the sovereignty of His Highness in and over his State
We must therefore reject the argument that the execution of the Instrument of Accession affected in any manner the legislative executive and judicial powers in regard to the government of the State which then vested in the Ruler of the State
There is one more argument which has been urged before us on the question of Maharaja Hari Singh s powers
It is said that when Maharaja Hari Singh issued his proclamation on March 5 1948 replacing the emergency administration by a popular interim government headed by Sheikh Mohammad Abdullah and constituting a Council of Ministers who were to function as a Cabinet and act on the principle of joint responsibility he virtually introduced a popular democratic government in the State surrendered his sovereign rights and became a constitutional monarch
There is no substance in this argument
The proclamation merely shows that under pressure of public opinion and as a result of the difficult and delicate problem raised by the tribal raid the Maharaja very wisely chose to entrust the actual administration of the government to the charge of a popular Cabinet but the description of the Cabinet as a popular interim government did not make the said Cabinet a popular Cabinet in the true constitutional sense of the expression
The Cabinet had still to function under the Constitution Act 14 of 1996 1939 and whatever policies it pursued it had to act under the overriding powers of His Highness
It is thus clear that until the Maharaja issued his proclamation on June 20 1949 all his powers legislative executive and judicial as well as his right and prerogative vested in him as before
That is why the argument that Maharaja 289 Hari Singh had surrendered his sovereign powers in favour of the Praja Sabha and the popular interim government thereby accepting the status of a constitutional monarch cannot be upheld
The next point which calls for our decision is 
What was the effect of the proclamation issued by Maharaja Hari Singh in favour of Yuvaraj Karan Singh on June 20 1949  The terms of this proclamation have already been set out by us
There is no doubt that during the temporary period that the Maharaja wanted to leave the State for reasons of health he conferred on Yuvaraj Karan Singh all his powers and functions in regard to the government of the State
Since the Maharaja was himself an absolute monarch there was no fetter or limitation on his power to appoint somebody else to exercise all or any of his powers
There was no authority or tribunal in the State which could question his right or power to adopt such a course
As Chief Justice Kania has observed in Re 1  A legislative body which is sovereign like an autocratic Ruler has power to do anything
It may like a Ruler by an individual decision direct that a certain person may be put to death or a certain property may be taken over by the State
A body of such character may have power to nominate someone who can exercise all its powers and make all its decisions
This is possible to be done because there is no authority or tribunal which can question the right or power of the authority to do so 
Similarly Mahajan J has observed in the same case that  The Parliament being a legal omnipotent despot apart from being a legislature simpliciter it can in exercise of its sovereign power delegate its legislative functions or even create new bodies conferring on them power to make laws  and the learned Judge added that  whether it exercises its power of delegation of legislative power in its capacity as a mere legislature or in its capacity as an omnipotent despot it is not possible to test it on the touchstone of judicial precedent or judicial scrutiny as courts of justice in England cannot inquire into it 
In his judgment Mukherjea J has also made similar 11951 SCR 747
766 889 969
37 290 observations after quoting the words of Sir Edward Coke in regard to the  transcendent and absolute power and jurisdiction of Parliament 
What is true of the British Parliament would be truer about an absolute and despotic monarch the exercise of whose J paramount power as a sovereign is not subject to any popular and legislative control
If that be the true position the proclamation issued by Maharaja Hari Singh authorising Yuvaraj Karan Singh to exercise all his powers would clothe him with all such powers and he would be in the same position as his father so long as the proclamation stood
Besides it would be permissible to observe that though the proclamation purports to have been issued on the ground that Maharaja Hari Singh was leaving the State for a temporary period for reasons of health it was clear even then that the temporary departure of the Maharaja really meant his permanent retirement from the State
It was realised by him as much as by his subjects that to face the stress and strain caused by the unusual problems raised by the act of aggression against the State it was necessary that he should quit and young Yuvaraj Karan Singh should take his place
Thus considered the proclamation really amounted to his abdication and installation by him of Yuvaraj Karan Singh as the Ruler of the State
It is however not necessary to consider any further this aspect of the matter in dealing with the authority of Yuvaraj Karan Singh because as we have just held Maharaja Hari Singh was competent to delegate his powers to Yuvaraj Karan Singh for a temporary period as his proclamation purported to do and by virtue of such delegation Yuvaraj Karan Singh was clothed with all the authority which his father possessed as the Ruler of the State until the proclamation was revoked
Therefore the argument that Maharaja Hari Singh s proclamation issued on June 20 1949 did not confer on Yuvaraj Karan Singh the specified powers cannot be accepted
The next contention is that the powers of Yuvaraj Karan Singh were substantially limited by the proclamation issued by him on November 25 1949
We are not impressed even by this argument
By this 291 proclamation Yuvaraj Karan Singh purported to make applicable to his State the Constitution of India which was shortly going to be adopted by the Constituent Assembly of India in so far as was applicable in other words this proclamation did not carry the constitutional position any further than where it stood after and as a result of the execution of the Instrument of Accession by Maharaja Hari Singh
It is thus clear that the proclamation did not affect Yuvaraj Karan Singh s authority and powers as the Ruler of the State which had been conferred on him by the proclamation of his father issued in that behalf
Mr Chatterjee however has very seriously pressed before us his contention that as a result of the application of certain specified articles of the Constitution to the State of Jammu  Kashmir all vestiges of sovereignty which Yuvaraj Karan Singh could have claimed had vanished and in consequence he had become merely a constitutional monarch of the State without any legislative authority or powers
Indeed it is this part of the case on which Mr Chatterjee placed considerable emphasis
In this connection it would be relevant to recall that by the Constitution Order 10 in addition to the provisions of article 1 and article 370 certain other provisions of the Constitution were made applicable to the State with exceptions and modifications as specified in the Second Schedule
Articles 245 254 and 255 as well as article 246 as modified from Pt
XI of the Constitution were applied to the State
Similarly from Pt
XIX article 366 was applied and from Pt
XXI articles 370 and 385 were applied
In this connection it is also necessary to bear in mind that Pt
VI which deals with the States in Pt
A of the First Schedule has not been applied nor has Pt
VII which consisted of article 238 been applied
article 238 provides for the application of provisions of Pt
VI to States in Pt
B of the First Schedule
Schedule Seven which consists of the three Legislative Lists has also not been applied
It is thus clear that though by the application of article I the State became a part of the territory of India and con stituted a State under Part B the provisions of 292 Pt
VI and Pt
VII did not apply to it nor did the Schedule prescribing the three Legislative Lists
This fact is of considerable importance and significance in dealing with the appellant s contention
Since Mr Chatterjee has strongly relied on the application of article 370 of the Constitution to the State in support of his argument that the Yuvaraj bad ceased to hold the plenary legislative powers it is necessary to examine the provisions of this Article and their effect
This Article was intended to make temporary provisions with respect to the State of Jammu  Kashmir
It reads thus  article 370 1 Notwithstanding anything in this Constitution athe provisions of article 238 shall not apply in relation to the State of Jammu  Kashmir bthe power of Parliament to make laws for the said State shall be limited to ithose matters in the Union List and the Con current List which in consultation with the Government of the State are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State and iisuch other matters in the said Lists as with the concurrence of the Government of the State the President may by order specify
Explanation
For the purposes of this article the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja s Proclamation dated the fifth day of March 1948 cthe provisions of article I and of this article shall apply in relation to that State dsuch of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify 293 Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph i of sub clause b shall be issued except in consultation with the Government of the State Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government
2 If the concurrence of the Government of the State referred to in paragraph ii of sub clause b of clause 1 or in the Second proviso to sub clause d of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened it shall be placed before such Assembly for such decision as it may take thereon
3Notwithstanding anything in the foregoing provisions of this article the President may by public notification declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify Provided that the recommendation of the Constituent Assembly of the State referred to in clause 2 shall be necessary before the President issues such a notification
 Clause 1 b of this Article deals with the legislative power of the Parliament to make laws for the State and it prescribes limitation in that behalf
Under paragraph 1 of sub cl
b of cl
1 Parliament has power to make laws for the State in respect of matters in the Union List and the Concurrent List which the President in consultation with the Government of the State declares to correspond to matters specified in the Instrument of Accession whereas in regard to other matters in the said Lists Parliament may under paragraph ii have power to legislate for the State after such other matters have been specified by his order by the President with the concurrence of the Government of the State
It is significant that paragraph i refers to consultation with the Government of the State while paragraph ii requires its concurrence 294 Having thus provided for consultation with and the concurrence of the Government of the State the explanation shows what the Government of the State means in this context
It means according to the appellant not the Maharaja acting by himself in his own discretion but the person who is recognised as the Maharaja by the President acting on the advice of the Council of Ministers for the time being in office
It is on this explanation that the appellant has placed considerable reliance
Sub clauses c and d of cl
1 of the Article provide respectively that the provisions of article I and of the present Article shall apply in relation to the State and that the other provisions of the Constitution shall apply in relation to it subject to exceptions and modifications specified by the Presidential order
These provisions are likewise made subject to consultation with or concurrence of the Government of the State respectively
Having provided for the legislative power of the Parliament and for the application of the Articles of the Constitution to the State Art 
370 el
2 prescribes that if the concurrence of the Government of the State required by the relevant sub cls of cl
1 has been given before the Constituent Assembly of Kashmir has been convened such concurrence shall be placed before such Assembly for such decision as it may take thereon
This clause shows that the Constitution makers attached great importance to the final decision of the Constituent Assembly and the continuance of the exercise of powers conferred on the Parliament and the President by the relevant temporary provisions of article 3701 is made conditional on the final approval by the said Constituent Assembly in the said matters
3 authorises the President to declare by public notification that this article shall cease to be operative or shall be operative only with specified exceptions or modifications but this power can be exercised by the President only if the Constituent Assembly of the State makes recommendation in that behalf
Thus the proviso to el
3 also emphasises the importance 295 which was attached to the final decision of the Constituent Assembly of Kashmir in regard to the relevant matters covered by article 370
The appellant contends that the scheme of this Article clearly shows that the person who would be recognised by the President as the Maharaja of Jammu  Kashmir was treated as no more than a constitutional Ruler of the State
In regard to matters covered by this Article he could not function or decide by himself and in his own discretion
The con sultation contemplated by this Article had to be with the Maharaja acting on the advice of the Council of Ministers and the concurrence prescribed by it had to be similarly obtained and given and that brings out the limitations on the powers of the Maharaja
It is also urged that the final decision in these matters has been deliberately left to the Constituent Assembly which was going to be convened for the framing of the Constitution of the State and that again emphasises the limitations imposed on the powers of the Maharaja
This argument assumes that under the explanation to article 3701 it is the person recognised by the President as the Maharaja who has to act on the advice of  the Council of Ministers in relation to matters covered by article 370
But it is possible to take the view that the said clause really indicates that in recognising any person as the Maharaja of the State the President has to act on the advice of the Council of Ministers for the time being in office under the Maharaja s proclamation dated March 5 1948
If that be the true construction of the explanation then the argument that before the Maharaja is consulted or his concurrence is obtained he must act on the advice of his Ministers would not be valid
We would however like to deal with the argument even on the assumption that the construction put by the appellant on the explanation is right
On the said construction the question which falls to be determined is Do the provisions of article 3701 affect the plenary powers of the Maharaja in the matter of the governance of the State  The effect of the application of the present Article has to be judged in 296 the light of its object and its terms considered in the context of the special features of the constitutional re lationship between the State and India
The Constitution makers were obviously anxious that the said relationship should be finally determined by the Constituent Assembly of the State itself that is the main basis for and purport of the temporary provisions made by the present Article  and so the effect of its provisions must be confined to its subject matter
It would not be permissible or legitimate to hold that by implication this Article sought to impose limitations on the plenary legislative powers of the Maharaja
These powers had been recognised and specifically provided by the Constitution Act of the State itself and it was not and could not have been within the contemplation or competence of the Constitution makers to impinge even indirectly on the said powers
It would be recalled that by the Instrument of Accession these powers have been expressly recognised and preserved and neither the subsequent proclamation issued by Yuvaraj Karan Singh adopting as far as it was applicable the proposed Constitution of India nor the Constitution Order subsequently issued by the President purported to impose any limitations on the said legislative powers of the Ruler
What form of government the State should adopt was a matter which had to be and naturally was left to be decided by the Constituent Assembly of the State
Until the Constituent Assembly reached its decision in that behalf the constitutional relationship between the State and India continued to be governed basically by the Instrument of Accession
It would therefore be unreasonable to assume that the application of article 370 could have affected or was intended to affect the plenary powers of the Maharaja in the matter of the governance of the State
In our opinion the appellant s contention based on this Article must therefore be rejected
The application of articles 245 254 and 255 and of article 246 as modified does not seem to have any bearing on the question of the authority and powers of the Ruler of the State
Their application merely serves to provide for the legislative powers of the Parliament 297 to make laws in respect of matters covered by article 370
Incidentally we may point out that the application of articles 246 and 254 as provided by the Constitution Order 10 of 1950 has been subsequently modified by the Constitution Order 48 of 1954
Similarly article 255 which was originally applied by the first Order has been deleted by the latter Order
This shows that it was subsequently realised that the original application of the said Articles prescribed by the earlier Order was more anticipatory and notional and required either suitable modification or cancellation
The appellant has then relied upon the provisions of article 385
It provides  article 385
Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by provisions of this Constitution on the House or Houses of the Legislature of the State so specified
 It is difficult to see how this Article supports the appellants contention
In fact it is not easy to appreciate what the application of this Article to the State really meant
As we have already pointed out the application of the specified Articles to the State was not intended to affect and constitutionally could not have affected the form of the government prevailing in the State and the plenary legislative powers of the Maharaja in regard to the government of the State
As in regard to the application of articles 245 254 and 255 so in regard to this Article as well it was subsequently realised that the application of the Article was purely notional and could serve no purpose
That is why by C O 48 of 1954 this Article has been deleted from the list of Articles applied to the State
It seems to us that the initial formal application of this Article cannot justify the appellant s case that the plenary legislative powers vesting in the Ruler of the State 38 298 were not only affected but as the appellant contends completely extinguished
The constitutional position in regard to the government of the State continued to be the same despite the application of this Article
In dealing with the application of this Article and articles 245 254 and 255 it would be permissible to rely on the rule of construction set out in Maxwell that  a thing which is within the letter of a statute is generally to be considered as not within the statute unless it is also the real intention of the Legislature It is evident that the Constitution makers have treated the problem of Kashmir on a special basis and that though the association of Kashmir with India which began with the Instrument of Accession has been steadily and gradually growing closer and closer on a democratic basis it still presents features not common to any other State included in the Union of India
We have no doubt that at the time when the Act was passed the plenary legislative powers of the Yuvaraj had not been affected in any manner
The result is that Yuvaraj Karan Singh was competent to enact the Act in 1950 and so the challenge to the validity of the Act on the ground that he did not possess legislative competence in that behalf cannot succeed
It is clear that the validity of the Act cannot be chal lenged on the ground that the Act did not provide for the payment of compensation
For one thing section 26 of the Act did contemplate the payment of compensation
Besides as the law of the State then stood there was no limitation on the legislative power of the Ruler such as is prescribed by article 31 of the Constitution and article 31 had not been then applied to the State
Subsequently when article 312 was extended to the State the Act no doubt became the existing law and it has been saved by the new and modified cl
5 of the said Article
There is another aspect of the matter to which reference must be made
Section 26 of the Act had left the final decision on the question of the payment of compensation to the Constituent Assembly of the State and it is common ground that the Constituent Assembly has decided not to pay any compensation
Mr Chatterjee contends that this decision is 1 Maxwell on  Interpretation of Statutes  10th Ed P 17
invalid because the Constituent Assembly itself was not properly called and constituted
There is no substance in this argument
After Yuvaraj Karan Singh was put in charge of the duties of governing the State by Maharaja Hari Singh by his proclamation issued on June 20 1949 he began to function as a Ruler and was entitled to exercise all his powers in that behalf He realised that the original plan of Maharaja Hari Singh to call a national assembly which he announced on March 5 1948 would not meet the requirements of the situation which had radically changed and the Yuvaraj thought that a Constituent Assembly on a broader basis should be called and should be entrusted with the task of framing a Constitution without any delay
It is idle to suggest that the Yuvaraj was bound to convene the national assembly on the same lines as were laid down by Maharaja Hari Singh in his proclamation and with the same object for the same purpose and subject to the same conditions
It was for the Yuvaraj to consider the situation which confronted him and it was within his competence to decide what solution would satisfactorily meet the requirements of the situation
We have no doubt that the Yuvaraj was perfectly competent to issue the proclamation on April 20 1951 under which the Constituent Assembly ultimately came to be elected and convened
If the Constituent assembly was properly constituted and it decided not to pay any compensation to the landlords it is difficult to understand how the validity of this decision can be effectively challenged
That leaves only one question to be considered
It is contended that the Act is invalid under article 254 of the Constitution because it is inconsistent with the two earlier Acts No 10 of 1990 and No 4 of 1977
It is unnecessary to enquire whether there is any repugnancy between the Act and the earlier Acts to which the appellant refers
In our opinion the argument based on the provisions of article 254 must be rejected on the preliminary ground that it is impossible to invoke the assistance of this Article effectively because in terms the essential conditions for its application are absent in the present case
This argument assumes that under article 2541 if there is repugnancy between 300 any provision of a law made by the Legislature of a State and any provision of an existing law with respect to One of the matters enumerated in the Concur rent List then subject to the provisions of cl
2 the law made by the Legislature of the State was to the extent of the repugnancy void
The appellant concedes that there is no scope for applying the provisions of el
2 of article 254 which deals with cases where the subsequent law has been reserved for the consideration and assent of the President but this aspect of the matter itself shows that the whole Article would in substance be inapplicable to the State
Clause 2 of article 254 which is its integral and important part postulates that the Legislature of the State in enacting a law on the relevant matter may reserve it for consideration of the President and his assent and thereby save the consequences of cl
1  and cl
2 was clearly inapplic able to the State
Besides it is clear that the essential condition for the application of article 2541 is that the existing law must be with respect to one of the matters enumerated in the Concurrent List in other words unless it is shown that the repugnancy is between the provisions of a subsequent law and those of an existing law in respect of the specified matters the Article would be inapplicable and as we have already pointed out Schedule Seven which contains the three Legislative Lists was not then extended to the State and it is therefore impossible to predicate that the matter covered by the prior law is one of the matters enumerated in the Concurrent List
That is why article 254 cannot be invoked by the appellant
On this view it is not necessary to consider whether the construction sought to be placed by the appellant on this Article is otherwise correct or not
The result is that all the grounds urged by the appellant against the validity of the Act fail and so it must be held that the High Court was right in taking the view that the plaintiff had not shown that the Act was ultra vires
The appeal accordingly fails and is dismissed with costs
Appeal dismissed


Summary:
The appellant vessel which was lying in the port of Marmagao left the port without issuing bills of lading or other documents required by the Respondent company for the goods shipped by it
On reaching the port of destination despite the direction of the respondent company not to deliver the goods by reason of the buyer s failure to pay the agreed price the appellants handed over the goods to the consignee
Since the appellants acted in breach of duty thereby committing conversion of the goods entrusted to them the respondent instituted a suit against the appellants invoking the admiralty jurisdiction of the Andhra Pradesh High Court by means of an action in rem
The vessel was arrested when it entered the port of Vishakapatnam and later released on the owner s furnishing security by way of Bank guarantee
In the proceedings before the High Court the appellant raised a preliminary objection as to jurisdiction stating that the suit against a foreign ship owned by a foreign company not having a place of residence or business in India could not proceed on the admiralty side of the High Court by an action in rem in respect of a cause of action by reason of a tort or a breach of obligation arising from the carriage of goods from an Indian port to a foreign port
This objection was overruled by a Single Judge of the High court and later confirmed by a Division Bench against which the present appeal has been preferred
Finally the suit was decreed by a Single Judge and the appeal therefrom is the subject matter of the other matter before this Court viz the Transfer Petition
On behalf of the appellants it was contended that the power of the High Court on the admiralty side was confined to the provisions of the Admiralty Court Act 1861 made applicable to India by the Colonial Courts of Admiralty Act 1890 read with the declaring certain Courts of unlimited civil jurisdiction as Colonial Courts of Admiralty but it remained frozen as on the date of Admiralty Court Act 1861 that the wide powers assumed by the British Courts under the subsequent statutes of that country did not enlarge the 1005 admiralty jurisdiction of the High Court in India that section 6 of the Admiralty Court Act 1861 the only provision relating to cargo confined itself to inward cargo only and therefore the case did not fall under the ambit of section 6 of the Act and that the arrest of the vessel in purported exercise of admiralty jurisdiction in rem concerning a claim relating to outward cargo was null and void
On behalf of the respondents it was contended that every person has a right to approach the Court of the land for appropriate remedy in respect of claims against a foreign ship and its owner and to deny him that right and to compel him to pursue remedy in a foreign country according to an unfamiliar system of law and practice in strange and uncertain conditions and consequently incurring high expenses with all the uncertainties of such a pursuit was unjust and uncalled for that all major systems of law the world over recognise the competence of the coastal State to assume jurisdiction over a foreign ship entering its waters in respect of certain well recognised claims irrespective of where the cause of action arose or where the defendant has his place of residence or business that the reason for such wide jurisdiction being the non availability of the foreign owner within the local jurisdiction and the stay of the foreign ship in the waters of the coastal State being necessarily brief jurisdiction over the ship has to be exercised by its arrest and detention by means of an action in rem that the High Court being a court of record with unlimited jurisdiction it was never intended by the British Parliament that the admiralty power conferred on certain High Courts should remain frozen as on the date of the passing of the Admiralty Court Act 1861 and that the subsequent changes in the law of Great Britain should not widen the jurisdiction of the Indian High Courts and that the colonial statutes should not be so construed as to stand in the way of the Indian High Courts exercising unlimited jurisdiction except where the jurisdiction is barred expressly or by necessary implication
Dismissing the appeal and returning the Transferred Case to the High Court this Court HELD  By the court  The High Court of Andhra Pradesh undoubtedly possesses jurisdiction over claims relating to inward and outward cargo
Therefore the High Court rightly assumed jurisdiction by the arrest of the appellant vessel 1006 while it was lying in the port of Vishakhapatnam
Per Thommen J  1
The Andhra Pradesh High Court is the successor to the Madras High Court in respect of the territories transferred from Madras and included in the State of Andhra which was formed by the Andhra State Act 1953
In the port of Vishakhapatnam the Andhra Pradesh High Court has thus the same jurisdiction as was vested in the Madras High Court prior to the transfer of that territory
1021D 1022A 21
The fact that the High Court continues to enjoy the same jurisdiction as it had immediately before the commencement of the Constitution as stated in Article 225 of the Constitution does not mean that a matter which is covered by the Admiralty Court Act 1861 cannot be otherwise dealt with by the High Court subject to its own Rules in exercise of its manifold jurisdiction which unless barred is unlimited
To the extent not barred expressly or by necessary implication the judicial sovereignty of this country is manifested in the jurisdiction vested in the High Courts as superior courts
1024EF
It is true that the Colonial statutes continue to remain in force by reason of Article 372 of the Constitution of India but that does not stultify the growth of law or blinker its vision or fetter its arms
Legislation has always marched behind time but it is the duty of the Court to expound and fashion the law for the present and the future to meet the ends of justice
1026BC Kamalakar Mahadev Bhagat vs Scindia Steam Navigation Co Ltd  Mrs Sahida Ismail vs Petko R Salvejkov  Ors AIR 1973 Bombay 18 Jayaswal Shipping Company vs SS Leelavati AIR 1954 Calcutta 415 Rungta Sons Pvt Ltd  Anr
vs SS Edison Mariner  Anr 1961 62 66 Calcutta Weekly Notes 1983 Smt
Reena Padhi vs Jagdhir AIR 1982 Orissa 57 National Co Ltd vs Asia Mariner  overruled
What the Colonial Courts of Admiralty Act 1890 did was not to incorporate any particular English Statute into Indian law for the purpose of conferrring admiralty jurisdiction but to assimilate the competent Courts in India to the position of the English High Court in the exercise 1007 of admiralty jurisdiction
It would therefore appear that any expansion of Admiralty jurisdiction of the High Court in English was intended likewise to expand the jurisdiction of the Colonial Courts of Admiralty
This should have been regarded as the position with respect to a Colonial Court of unlimited jurisdiction
1027H 1028AB The Yuri Maru vs The Woron  referred to
It was because of the unlimited civil jurisdiction that was already vested in the High Courts that they were declared to be Colonial Courts of Admiralty having the same jurisdiction in extent and quality as was vested in the High Court of England by virtue of any statute or custom
The High Courts were declared to be competent to regulate their procedure and practice in exercise of admiralty jurisdiction in accordance with the Rules made in that behalf
There is therefore neither reason nor logic in imposing a fetter on the jurisdiction of these High Courts by limiting it to the provisions of an imperial statute of 1861 and freezing any further growth of jurisdiction
This is all the more true because the Admiralty Court Act 1861 was in substance repealed in England a long time ago
1029F H Halsbury s Laws of England 4the Ed
11 para 307 Halsbury s Statutes of England Vol 1 para 9 referred to
The wide jurisdiction vested in the English Courts is derived from ancient principles of Maritime Law developed by custom and practice as well as from subsequent statutes many of which have been incorporated in the provisions of International Conventions unifying the laws practised in several maritime countries
1032E F The Geetano and Maria 1862 7 PD The Gas Float Whitton N2 1896 referred to
A History of English Law Vol15 and 8 Rescoe s Admiralty Practice 5the Ed Marsden  Select Pleas of the Court of Admiralty Vol
I  II Law and Custom of the Sea Vol
I and II Benedict on admiralty 6th Ed
1940 Vol
I Gilmore and Black Law of Admiralty 1957 A History of English Law WS Holdsworth Vol
I pp
558 59 referred to
The provision contained in section 6 of the Admiralty Court Act 1861 limiting the jurisdiction of the Admiralty Court to claims respecting inward cargo was discarded by the Administration of Justice Act 1920 1008 which extended the jurisdiction of the High Court to a any claim arising out of an agreement relating to the use or hire of a ship b any claim relating to the carriage of goods in any ship and c any claim in tort in respect of goods carried in any ship
The Act thus applied to both inward and outward cargoes
1034BC 7
The vital significance and the distinguishing feature of an admiralty action in rem is that this jurisdiction can be assumed by the coastal authorities in respect of any maritime claim by arrest of the ship irrespective of the nationality of the ship or that of its owners or the place of business or domicile or residence of its owners or the place where the cause of action arose wholly or in part
1038E F The Fehmarn 1958 I All ER 333 referred to
Halsbury op
4th Ed
I1 para 309 DC Jackson Enforcement of Maritime Claims 1985 Gilmore and Black The Law of Admiralty p 1 The Law of American Admiralty 6th Ed
I p3 Rescoe s Admiralty Practice 5th Ed
p29 referred to
It is within the competence of the appropriate Indian Courts to deal in accordance with the general principles of maritime law and the applicable provisions of statutory law with all persons and things found within their jurisdiction
The power of the court is plenary and unlimited unless it is expressly or by necessary implication curtailed
All remedies which are available to the courts to administer justice are available to a claimant against a foreign ship and its owner found within the jurisdiction of the concerned High Court
This power of the court to render justice must necessarily include the power to make interlocutory orders for arrest and attachment before judgment
1046B D The Bold Buccleaugh  The Jade 1976 I All
ER 921 923 Currie vs M Knight  Bardot  Anr
vs The American Ship or Vessel Augusta 1873 x Bombay High Court Reports 110 referred to
Enforcement of Maritime Claims 1985 p 9 Halsbury s Laws of England 4th Ed
I p 375 Halsbury s Laws of England Vol1 para 307 referred to
The High Court in India are superior courts of record
They have 1009 original and appellate jurisdiction
They have inherent and plenary powers
Unless expressly or impliedly barred and subject to the appellate or discretionary jurisdiction of this Court the High Courts have unlimited jurisdiction including the jurisdiction to determine their own powers
1046D E Naresh Shridhar Mirajkar  Ors
vs State of Maharashtra Raja Soap Factory and Ors
vs SP Shantharaj and Ors   distinguished
Halsbury s Laws of England 4th Ed Vol10 para 713 referred to
In the instant case the Andhra Pradesh High Court as a successor to the Madras High Court is vested with all the appellate and original jurisdiction including admiralty jurisdiction to order the arrest and detention of a ship
1047A B 11
In equating the admiralty jurisdiction of the Indian High Court to that of the English High Court the Colonial Court of Admiralty Act 1890 significantly refers to the admiralty jurisdiction of the High Court in England whether existing by virtue of any statute or otherwise 
This is an enabling statute and not a statute of limitation of power
It aids and does not fetter the growth of jurisdiction
There is no reason why the words statute or otherwise  should be so construed as to exclude the various sources from which the admiralty jurisdiction in England developed
Apart from statutes the powers of that Court were derived from custom and practice and the principles developed by common law and equity as well as by the generally recognised principles of civil law developed and practised in Europe
There is no reason why those principles should also not be drawn upon to enrich and strengthen the jurisprudence of this country even if the jurisdiction of our courts were to be by compulsions of history considered to be curtailed and dovetailed to the colonial past a proposition which is neither correct nor consistent with our status as a sovereign republic
It is time to take a fresh look at the old precedents
1047D H 1048A Delhi Judicial Service Association Tis Hazari Court Delhi vs State of Gujarat  Ors
JT  SP Gupta vs Union of India 1982 2 SCR 365 relied on
1010 12
It is well recognised in iternational law that a merchant ship though generally governed by the laws of the flag State subjects itself to the jurisdiction of a foreign State as it enters its waters
The Geneva Convention on the Territorial Sea and the Contiguous Zone 1958 and the Law of the Sea Convention 1982 affirm that the sovereignty of a State extends over its internal and territorial waters
1048D The Schooner Exchange vM Faddon  Ors 1812 11 US 7 Cranch 114 143 referred to
Nagendra Singh International Maritime Law Conventions British Shipping Laws Benedict The Law of American Admiralty 6th Ed
121  122 referred to
Coastal States are entitled to assume jurisdiction in respect of maritime claims against foreign merchant ships lying in their waters
These ships are liable to be arrested and detained for the enforcement of maritime claims
The courts of the country in which a foreign ship has been arrested may determine the cases according to merits provided they are enpowered to do so by the domestic law of the country or in any of the cases recognised by the International Convention relating to the Arrest of Seagoing Ships Brussels 1952
The maritime claims in respect of which the power of arrest is recognised in law include claims relating to damage caused by any ship either in collision or otherwise claims relating to carriage of goods in any ship whether by charterparty or otherwise loss of or damage to goods etc
These principles of International law as generally recognised by nations leave no doubt that subject to the local laws regulating the competence of courts all foreign ships lying within the waters of a State including waters in ports harbours roadsteads and the territorial waters subject themselves to the jurisdiction of the local authorities in respect of maritime claims and they are liable to be arrested for the enforcement of such claims
1049C F 14
In the absence of any statute in India comparable to the English statutes on admiralty jurisdiction there is no reason why the words damage caused by a ship  appearing in section 443 of the should be so narrowly construed as to limit them to physical damage and exclude any other damage arising by reason of the operation of the vessel in connection with the carriage of goods
The 1011 expression is wide enough to include all maritime questions or claims
If goods or other property are lost or damaged whether by physical contact or otherwise by reason of unauthorised acts or negligent conduct on the part of the shipowner or his agents or servants wherever the cause of action has arisen or wherever the ship is registered or wherever the owner has his residence or domicile or place of business such a ship at the request of the person aggrieved is liable to be detained when found within Indian jurisdiction by recourse to sections 443 and 444 of the read with the appropriate rules of practice and procedure of the High Court
These procedural provisions are but tools for enforcement of substantive rights which are rooted in general principles of law apart from statutes and for the enforcement of which a party aggrieved has a right to invoke the inherent jurisdiction of a superior court
1054G 1055A D Victoria  The Vera Cruz  Currie vs MKnight  The Jade 1976 1 All
ER 920 referred to
Halsbury s Laws of England 4th Ed
I1 para 319 N 12 referred to
The empowers the concerned High Court to arrest a ship in respect of a substantive right
A right conferred by the Indian Carriage of Goods by Sea Act 1925 in respect of outward cargo is one of those rights which can be enforced by arrest and detention of the foreign ship in order to found jurisdiction over the vessel and its owners just as it can be done in respect of inward cargo by reason of the substantive rights conferred by the Admiralty Court Act 1861 read with the Colonial Courts of Admiralty Act 1890 and other rules of law
The same principle must hold good for carriage under a charterparty
These and other laws such as the law of contract tort crime mortgage marine insurance customs port operations etc
and the Civil and Criminal Procedure Codes as well as the relevant rules of court regulating procedure and practice together constitute the body of substantive and procedural laws governing claims relating to inward and outward cargo and such claims are enforceable against foreign ships by recourse to arrest and detention when found within jurisdiction
Viewed in this light and by this reasoning the Andhra Pradesh High Court as a successor to the Madras High Court does not lack admiralty jurisdiction in respect of claims to outward cargo
1056A D 1012 16
The jurisdictional questions concerning arrest of foreign ships enforcement of claims against the shipowner as a transporter of goods which in England are regulated by the Supreme Court Act 1981 are in many respects left unregulated by Indian legislation
While the provisions of various international conventions concerning arrest of ships civil and penal jurisdiction in matters of collision maritime liens and mortgages etc have been incorporated into the municipal laws of many maritime States India lags behind them in adopting these unified rules
By reason of this void doubts about jurisdiction often arise as in the present case when substantive rights such as those recognised by the Carriage of Goods by Sea Act are sought to be enforced
The remedy lies apart from enlightened judicial construction in prompt legislative action to codify and clarify the admiralty laws of this country
This requires thorough research and investigation by a team of experts in admiralty law comparative law and public and private international law
Any attempt to codify without such investigation is bound to be futile
1056H 1057A C 17
The judicial power of this country which is an aspect of national sovereignty is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by courts empowered to exercise it
It is absurd to confine that power to the provisions of imperial statutes of a bygone age
Access to court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law
Where statute is silent and judicial intervention is required Courts strive to redress grievances according to what is perceived to be principles of justice equity and good conscience
1058EF SP Gupta vs Union of India 1982 2 SCR 365 relied on
The Schooner Exchange vs M Faddon  Ors
 US Supreme Court Reports Cranch  referred to
All persons and things within the waters of a State fall within its jurisdiction unless specifically curtailed or regulated by rules of international law
The power to arrest a foreign vessel while the waters of a coastal State in respect of a maritime claim wherever arising is a demonstrable manifestation and an essential attribute of territorial sovereignty
This power is recognised by several international conventions
These conventions contain the unified rules of law drawn from different legal systems
Although many of these conventions have yet to 1013 be ratified by India they embody principles of law recognised by the generally of maritime States and can therefore be regarded as part of our common law
A specialised body of legal and technical experts can facilitate adoption of internationally unified rules by national legislation
It is appropriate that sufficient attention is paid to this aspect of the matter by the concerned authorities
Perhaps the Law Commission of India endowed as it ought to be with sufficient authority status and independence as is the position in England can render valuable help in this regard
1059D H 1060A 19
The jurisdiction of the High Court is governed by the Constitution and the laws and the continuance in force of the existing laws is not a fetter but an additional source of power
Access to court for redressal of grievance being an important right of every person it is essential that the jurisdiction of the court is construed harmoniously and consistently with its vital function in that respect so that absence of legislation will not jeopardise that right
1060CD 20
Once a foreign ship is arrested in Indian waters by an order of the High Court in exercise of the admiralty jurisdiction vested in it by statute or inherent in it as a court of record in respect of any maritime claim against its owner wherever the cause of action may have arisen and whether or not the ship is subsequently released by the owner furnishing security proceedings must continue against the owner as in any other suit
1060GH 21
All foreign ships entering Indian waters are presumed to know that they fall within the jurisdiction of this country during their stay here
It cannot be said that no High Court in India was invested with admiralty jurisdiction to order the arrest of the vessel in respect of a cause of action relating to outward cargo because section 6 of the Admiralty Court Act 1861 read with the Colonial Courts of Admiralty Act 1890 conferring admiralty jurisdiction on Indian High Courts confined it to claims for damage to cargo imported 
In the instant case the appellant vessel was lying in the port of Vishakhapatnam when she was arrested in respect of a cause of action relating to cargo
The High Court therefore rightly assumed jurisdiction by the arrest of the vessel while it was lying in the port of Vishakhapatnam as the High Court possesses jurisdiction over claims relating to inward and outward cargo
1061B E 1014 PER SAHAIJ CONCURRING 11
The Law of admiralty progressed gradually from ordinary courts to courts of Admiralty and ultimately to High Court commencing in commercial expedience equity and justice and ending with statutory enactments covering entire field from collision on ships to cargo even
All this was existing when the 1890 Act was enacted
But the statutes of 1840 and 1861 were not exhaustive and English courts could take cognizance for various wrongs either in tort or contract
Therefore when colonial courts were conferred jurisdiction it was not restricted or confined to statutes as the power was being conferred on High Courts which were then and even now not only courts of unlimited civil jurisdiction but higher courts possessed of every jurisdiction which was not expressly or impliedly conferred on other courts
The word otherwise  literally means in a different way
Effect of its use in the 1890 Act in law was to confer not only statutory jurisdiction possessed of by English courts but all that which was being exercised or was capable of being exercised either under custom and practice or for sake of equity and justice
The deliberate expansion of power and jurisdiction after existence of two statutes for nearly thirty years was founded on experience and necessity of arming the courts for every dispute that could arise relating to Admiralty jurisdiction as the law on Admiralty was a growing law
Its development could not be striffled by its very nature
It was with this intention that the Parliament used the word otherwise  in 1890 Act
No word in a statute has to be construed as surplusage
Nor it can be rendered ineffective or purposeless
Courts are required to carry out the legislative intent fully and completely
The two legislations of 1840 and 1861 took care of those actions which appeared to be settled till then
But they did not close the door for the growth of law
They were enacted to improve the Admiralty practice  as the jurisdiction which were conferred by the statutes were already being exercised
Action in personam or rem were not unknown
It was provided statutory base only
Statutes till 1920 in England were not creation of new rights but recognition of what was existing by practice or custom
Thus the jurisdiction to entertain a claim for tort or breach of contract by owner or master of ship while carrying cargo outside the port could be exercised or was capable of being exercised in 1890 by the High Court of England if occasion arose
1066E H 1067A F 12
The rationale of extending jurisdiction in Admiralty over cargo carried into the port has been existence of a right in owner or consignee 1015 arising out of contract or agreement entered into between him and the master or owner of the ship
It was the enforcement of the right which was safeguarded by providing a remedy to arrest a ship if the goods were carried into any port
Same rationale applies to redress the owner of bill of lading if the master of the ship in breach of agreement entered into any port committed tort by acting against it in course of outward journey
Such breach would have been actionable and a suit could be filed in the court where agreement was entered
Basis of Maritime Law has been necessity to provide remedy for wrong done on high seas
Inclusion or expansion of jurisdiction was in relation to any cause which could have been cognisable under ordinary law
Bottomrey salvage seaman wages or towage are all causes for which action could be brought in court of law but their enforcement was rendered illusory with disappearance of the person beyond territorial waters
To overcome this difficulty jurisdiction was created making it actionable against person and finally the res itself
What was basic was the existence of cause of action arising out of tort or contract in relation to the master or owner of the ship
Applying this test the cause of action arose in Indian territory and if the owner of the ship would have remained in this country a suit for breach of contract could have been filed
Therefore the owner of bill of lading was not precluded from approaching the Admiralty Court for redress when the foreign ship which was guilty of violations appeared in Indian waters
On this construction the colonial courts could exercise the jurisdiction in respect of cargo going outside the port in exercise of jurisdiction under the Act of 1890 not on statutes but as the High Court of England could exercise such power
1067F H 1068A D Yuri Maru 1927 Appeal cases 906 distinguished
State of Madras vs CC Menon  Ors   referred to
The Bold Buccleugh  The Hailey  The Ironsides 167 English Reports 205 The St Cloud 167 English Reports 269 The Norway 167 English Reports 347 The Hercules  The Jade 1976 1 All Eng
Reports 921 referred to
Halsbury s Laws of England 4th Ed
1 Maritime Liens by DR Thomas Maritime Law by Christopher Hill Carter History of English Courts referred to
Without entering into any comparative study of jurisdiction of High 1016 court of England and the High Courts in our country the one basic difference that exists today is that the English Courts derive their creation constitution and jurisdiction from Administration of Justice Act or Supreme Court Act but the High Courts in our country are established under the Constitution
Under it Article 225 preserved the jurisdiction including inherent jurisdiction which existed on the date the Constitution came into force and Article 226 enlarged it by making it not only a custodian of fundamental rights of a citizen but as repository power to reach its arms to do justice
A citizen carrying on business which is fundamental right cannot be rendered helpless on premise that the jurisdiction of High Courts stood frozen either under statute of England or any custom or practice prevailing there or the High Court of England cannot exercise the jurisdiction
A citizen of an independent republic cannot be left high and dry
The construction of law has to be in consonance with sovereignty of a state
The apprehension that assumption of such jurisdiction would be on general attributes of sovereignty is not well founded
This coupled with expansive jurisdiction that the High Courts enjoyed in relation to admiralty under the 1890 Act preserved under Article 225 of the Constitution provided justification for direction to arrest the ship for the tortious act done by master or owner of the ship in respect of goods carried outside the port even if there was no specific provision like Section 6 of the 1861 Act
Entertaining a claim arising out of breach of contract in relation to cargo taken out of any Indian port pertains to jurisdiction
It must arise out of Statute
But the power to direct arrest of a ship in exercise of the jurisdiction is one relating to competency
The High Courts in India being courts of unlimited jurisdiction repository of all judicial powers under the Constitution except what is excluded are competent to issue directions for arrest of foreign ship in exercise of statutory jurisdiction or even otherwise to effectuate the exercise of jurisdiction
1069F H 1070A F 3
In the instant case since the jurisdiction to entertain a suit on tort or contract in relation to cargo going out of the country in a ship is found to exist under 1890 Act the High Court of Andhra Pradesh was competent to direct arrest of the foreign ship when it appeared in Indian waters
1070F G 4
In respect of Colonial Courts of Admiralty Act the Law Commission recommended that the necessary substantive provisions of the English Statute may be incorporated into the Act so as to make it the 1017 comprehensive Indian law relating to courts of admiralty
Neither the law was made up to date and brought in line with international conventions on maritime law passed in 1952 etc
nor even the salient features of English law as amended by Administration of Justice Act 1920 and 1956 were adopted
And rights and interests of citizen of the independent sovereign state continue to be governed by legislations enacted for colonies by the British Parliament