Case: State Of Saurashtra Vs. Jamadar Mohamad Abdulla And Ors

S.K. Das, J. (On behalf of himself, B. P. Sinha C. J. and Rajagopala Ayyangar, J,):1. These four appeals which have been brought to this Court on certificates granted by the then High Court of Saurashtra under Art. 133 of the Constitution fall into three groups, and have been heard together. The essential facts relating to these appeals are the same, and a common question of law now falls for determination on those facts.2. The State of Gujarat, within whose territories the disputed properties are now situate, is the appellant in the appeals. The respondents and in some cases their ancestors, obtained grants from the then Nawab of Junagadh, which was then a ruling State, in respect of lands and, in one case, of a building known as Datar Manzil. These grants were repudiated or cancelled and the property, subject of the grant, was resumed by the Administrator who took over charge of the administration of Junagadh on behalf of the Dominion of India in 1947 in circumstances which we shall presently state. The respondents brought suits challenging the validity of the orders made by the Administrator. These suits were decreed by the lower court and the decrees were substantially upheld by the High Court of Saurashtra. The principal point for decision in these appeals is whether the impugned orders made by the Administrator arose out of and during an act of State which was not justiciable in the municipal courts. This is the only point which has been agitated before us on behalf of the appellant-State and very strong reliance has been placed on the decision of this Court in the State of Saurashtra v. Memon Haji Ismail Haji, 1960-l SCR 537:- (AIR 1959 SC 1383 ), where, in circumstances same as those of the appeals before us, it was held that the act of the Dominion of India in assuming the administration of Junagadh was an act of State pure and simple and the resumption of the grant in question therein having been made by the Administrator before that act was completed and at a time when the people of Junagadh were aliens outside the State, the act of resumption, however arbitrary, was an act of State on behalf of the Government of India and was not, therefore, justiciable in the municipal courts. It may be here noted that by that decision this Court overruled the earlier decision of the Saurashtra High Court in State of Saurashtra ,v. Haji Ismail, AIR 1953 Sau 180, a decision on the basis of which the High Court decided the cases under consideration in these appeals.3. The learned Attorney General has submitted that the -decision of this Court in 1960-1 SCR 537 ; (AIR 1959 SC 1383 ), completely covers and concludes the present appeals. On behalf of the respondents it has been contended that the decision aforesaid proceeded on a finding that the act of State was not completed before the impugned orders were made and that finding being a finding of fact does not bind the respondents who were not parties in the case in which the decision was rendered, In the appeals before its the main contention on behalf of the respondents his been that the impugned orders were made after the assumption of sovereignty by the Dominion of India was completed, and therefore the decision of this Court in 1960-1 SCR 537 : (AIR 1959 SC 1383 ) is not determinative of the problem which arises in these appeals.It has been further argued that after full sovereignty had been assumed by the Dominion of India, the position of the people of Junagadh including the respondents was not that of aliens outside the State, but their position on such assumption of sovereignty was that of citizens of India against whom there could be no act of State and they had rights as such citizens in respect of which they could ask for relief in the municipal courts.4. We have set out above, in brief outline, the principal point. which falls for decision in these appeals and the respective contentions of the parties relating thereto in order to high-light the main problem presented for solution in these appeals.5. But we must first set out the essential facts which are relevant for the solution of the problem. We have already stated that the essential facts are the same in these appeals, though the facts relating to each of the grants made in favour of the respondents are different. We shall state the essential facts bearing upon the main problem and then briefly refer to the grants made in each of the cases.6. India attained independence in 1947. As from the 15th day of August, 1947, two independent Dominions were set up known respectively as India and Pakistan under the Indian Independence Act, 1947 (10 and 11 Geo. VI. C.30) Under S.7 of the said Act, the suzerainty of His Majesty over the Indian States including Junagadh lapsed. It released those States from all their obligation to the Crown.7. The White Paper on Indian States said (at page 32) :"It was evident that if in consequence the Indian states became separate independent entities, there would be a serious vacuum not only with regard to the political relationship between the Central Government and the states, but also in respect of the co-ordination of all-India policies in the economic and other fields. All that the Dominion Government inherited from the Paramount Power was the proviso to S. 7 of the Indian Independence Act, which provided for the continuance, until denounced by either of the parties, of agreements between the Indian States and the Central and Provincial Governments in regard to specified matters, such as Customs, Posts and Telegraphs, etc. (Appendix IV)."A process of accession was therefore begun and by August 15, 1947 all the States in the geographical limits of India barring Hyderabad, Kashmir and Junagadh had acceded to the Indian Dominion. The Nawab of Junagadh, however, did not accede to the new Dominion of India by executing an Instrument of Accession as did the other Rulers in Saurashtra. He fled the country and the affairs of Junagadh State fell into disorder and chaos. At the request of the Nawabs council, the Government of India decided to take over the administration of the State. On November 9, 1947 the Regional Commissioner, Western India and Gujarat States Region, assumed charge of the administration of the State on behalf of the Government of India. A proclamation was issued on that date which said that the Regional Commissioner had assumed charge of the administration of the Junagadh State at 18-00 hours on November 9,1947. On November 14, 1947 the Regional Commissioner appointed Shri S. W. Shiveshwarkar as Administrator of Junagadh State. The Administrator passed certain orders which are the orders impugned in these appeals and to which we shall presently refer, but we must first complete the general picture of political changes that took place in Junagadh. In February, 1948 the Government of India field a referendum in Junagadh State to ascertain the choice of the people in regard to accession and the people voted by a large majority in favour of accession to the Dominion of India. The Administrator then decided with the approval of the Government of India to appoint an Executive Council with himself as President and three other persons as members thereof. In December, 1948 the elected representatives of the people of Junagadh resolved that the administration of the State be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State with a view in framing a common Constitution for Saurashtra and the Junagadh State. It is necessary to state now how this integration took place. On January 23, 1948 thirty rulers of the principal States of Kathiawar signed Covenant bringing into existence the United State of Kathiawar (later known as the United State of Saurashtra) comprising the territories at their States for the welfare of the people and entrusted to a Constituent Assembly the tusk of drawing up a democratic Constitution for that State within the framework of the Constitution of India to which they had already acceded. On that date Junagadh State had no Ruler nor was any Covenant signed on behalf of the Junagadh State. Laser, in December, 1948 the elected representatives of the people of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh recommended to the Government of India and the Government of the United State of Saurashtra, as it was then called, that the administration of the States mentioned above be integrated with the United State of Saurashtra. The Rulers of the Covenanting States thereupon entered into a Supplementary Covenant with the concurrence of the Government of India to provide for such integration and for the participation of the elected representatives of the people of these States into the Saurashtra Constituent Assembly. Article 3 of the supplementary Covenant was in these terms (See White Paper on Indian States, page 249):"From a date to be agreed upon between the Government of the said States and the Government of the United State of Saurashtra, with the concurrence of the Government of India, the administration of the said States shall be integrated with that of the United State of Saurashtra and thereafter the legislative and executive authority, powers and jurisdiction of the United State of Saurashtra shall extend to the said States to the same extent as it extends to the territory of any Covenanting State. . . . .. . ."The Administration of the Junagadh State was thereafter integrated with that of the United State of Saurashtra on January 20, 1949. Therefore, as from that date the legislative and executive authority and jurisdiction of the United State of Saurashtra extended to the Junagadh State to the same extent as it extended to the rest of the territories of the Covenanting States.8. Further political changes took place after January 20, 1949 but with those changes we are not concerned in the present appeals. The two dates which are important for our purpose are November 9, 1947 when the Regional Commissioner first took over change of the administration of Junagadh and January 20, 1949 when Junagadh merged into the United State of Saurashtra.9. Now, as to the impugned orders made by the Administrator. In Civil Appeal No. 349 civil 1958 the ancestor of the respondents had obtained grants from the then Nawab of Junagadh of two villages called Handla and Venderwad sometime between the years 1865 and 1868. A detailed history of the grants so made is not necessary for our purpose. On December 6, 1947 the Administrator made the following order:"It has come to the Administrators notice that Aba Salem Bin Aba Mahmed Hindi the alienee of Handla village.(i) was maintaining many Arab employees of Timbdi at his house in Junagadh,(ii) was uttering threats to massacre all Hindus of Handla village,(iii) was keeping in Handla fifty animals at the expense of the poor village people.(iv) did not pay any remuneration to Dhedh employees of his garden and was exacting Veth from them,(v) was buying exhorbitant cesses from the village people,(vi) had converted into Islam three Hindus, and(vii) had taken the following arms from Handla to Junagadh about a month ago :(a) 12 bore guns and (b) one M. I. Gun.It is, therefore, ordered that the village of Handla should be taken under the State management. The Revenue Commissioner should make necessary arrangements for the same and report compliance."By that order the management of Handla was taken over by the State. Though there is no reference to the other village Venderwad in the order, the admitted position is that the management of both the villages was taken over. Then, on January 8, 1949 the Administrator passed the following order:"The Junagadh State Government is pleased to order that the land and villages comprising the Handla estate which is an Inam grant be resumed by the State forthwith."This order also refers only to the Handla estate, but the admitted position is that both the villages were resumed by the order of the Administrator. It is the order dated January 8, 1940 which is impugned by the respondents, in this appeal.10. In Civil Appeal No. 497 of 1958 the grant was in respect of a bungalow or building known as Datar Manzil. On March 9, 1948, the Administrator made the following order :"The State building situated near Gadhrup Wada at Junagadh, was granted to Khan Shri Abdulakanmiyan Mahomedkhanmiyan, hereditarily by way of gift, under Dewan Daftar Tharav No. 3379 dated 1st August, 1930.The said Tharav is hereby cancelled and it is hereby ordered in the interest of the State that the said building along with all the superstructures thereon should be resumed and managed by the State as State property."11. In Civil Appeals Nos. 220 and 221 of 1958 the impugned order is dated July 27, 1948 and is in these terms:"Twenty five Santis of land from the village of Khokharda under Vanthali Mahal was granted as a gift hereditarily to Mr. Mohamed Abdulla, son of late Jamadar Abdulla Moosa under Hazur Farman No. 279 dated 30th April, 1943.In view of the principles of Alienation settlement of 1897 no grant can be wantonly favoured to anybody in contravention of the well established principles of resumption attaching to such grants.It is hereby ordered that Hazur Farman No. 279 dated 30th April, 1943, is cancelled and the land in question should be resumed by the State forthwith by setting aside the settlement made thereon."It will be noticed from what has been stated above that the impugned orders were all made after November 9, 1947, but before January 20, 1949. The question before us is whether the orders were made in pursuance of acts of State not justiciable in the municipal courts.12. There can be no doubt that if the decision of this Court in 1960-1 SCR 537 : (AIR 1959 SC 1383 ) applies, then these appeals must be allowed. Learned counsel for the respondents has however sought to distinguish that decision on the ground that the decision proceeded on the tooting that the Dominion of India assumed sovereignty over Junagadh on January 20, 1949. His contention is that when the Dominion of India assumed charge of the administration of Junagadh State on November 9, 1947, through the Regional Commissioner, Western India and Gujarat States Region, there was a complete change-over of sovereignty, the act of State was complete and the Dominion of India became the new sovereign; thereafter, the people of Junagadh including the respondents, so the argument proceeded, became citizens of the Dominion of India and had rights as such citizens in respect of which they could ask for relief in the municipal courts. It would be apparent that this argument consists of two steps : the first step in the argument is that there was a complete changeover of sovereignty on November 9, 1947, and the act of State was completed the second step in the argument which is really based on the correctness of the first stem is that on such a charge-over of sovereignty the people of Junagadh, including the respondents became citizens of the Dominion of India and were no longer aliens outside the Dominion. We shall now consider the validity of the first step in the argument. In doing so we must make it clear that we must not be understood to have assented to the submission of learned counsel for the respondents that a finding as to change-over of sovereignty or completion of an act of State, is a finding of fact pure and simple. In our view, the question essentially is what inference in law should be drawn from the facts proved or admitted relating to the change-over of sovereignty. As the matter was not argued from this stand point in 1960-1 SCR 537 : (AIR 1959 SC 1383 ) we have allowed learned counsel for the respondents to address us on this question.13. Learned counsel for the respondents has made a two-fold submission : firstly, he has submitted that the question as to when the change-over of sovereignty took place is a political question and must or should be referred to the Government of India for opinion and the Court should abide by that opinion; secondly, he has submitted that on the facts admitted in this case, it should be held that there was a complete change-over of sovereignty on November 9, 1947 and the act of State was complete. We do not think that either of these two submissions of learned counsel for the respondents is correct. On the first submission he has drawn our attention to para. 603 at pages 285-286, Vol. 7 of Halsburys Laws of England, 3rd Edn. That paragraph is in these terms :"There is a class of facts which are conveniently termed "facts of State". It consists of matters and questions the determination of which is solely in the hands of the Crown or the government of which the following are examples :(1) Whether a state of was exists between the British Government and any other State, and it so, when it began, the municipal courts have no power of inquiring into the validity, of a declaration by the Crown whether a state of war exists, or whether it has ended;(2) Whether a particular territory is hostile, or foreign, or within the boundaries of a particular state;(3) Whether and when a particular government is to be recognised as the government of an independent state;(4) The status of a person claiming immunity from judicial process on the ground of diplomatic privilege.The court takes judicial notice of such facts of state, and for this purpose, in my case of uncertainty, seeks information from a Secretary of State; and the information so received is conclusive."Learned counsel has also referred us to some of the English decisions on which the statements in the paragraph quoted above are based. We consider it unnecessary to examine those decisions. It appears to us that the question with which we are concerned in the present appeals is not a question on which it is necessary to seek information from, the relevant department of the Government of India; for one thing, it does not appear to us that there is any uncertainly in the matter; secondly, as we shall presently show, the Government of India in the relevant department has already spoken with sufficient clarity in the White Paper on Indian States with regard to the political changes in Junagadh and what the Government of India has stated therein shows clearly enough that there was no change-over of assumption of sovereignty on November 9, 1947 in the sense which learned counsel for the respondents has contended for; lastly, it appears to us that the question with which we are concerned in these appeals is not essentially a question as to any disputed "facts of state" the determination of which is solely in the hands of government; rather it is a question which must be determined by the court. What we have to determine in these appeals is not the status or boundaries of a particular state territory, but the validity or otherwise of the plea taken on behalf of the appellant- State that the impugned orders made by the Administrator were acts of State not justifiable in the municipal courts. There is a long line of decisions in which such a plea has been determined by courts of law without the necessity of obtaining the opinion of Government. The plea is really a plea with regard to the maintainability of the suits brought by the respondents and must be determined by the courts concerned. At one stage of the arguments learned counsel for the respondents referred us to S. 6 of the Extra Provincial Jurisdiction Act, 1947 (Act XLVII of 1947) and contended that under that section it was obligatory on this court to refer the question to the Central Government. When however it was brought to his notice that S. 6 in terms did not apply to the proceedings out of which these appeals have arisen, he submitted that even if it be not obligatory to refer the question to the Central Government, it is expedient that it should be so referred inasmuch as the answer to the question depends on "the extent of the jurisdiction which the Dominion of India assumed in Junagadh on November 9, 1947. This, according to learned counsel, is a" fact of state" which only Government can determine.14. We have already stated there is no uncertainty about the facts on which the plea of the appellant state is based and Government has already spoken about them with sufficient clarity. What are these facts and how has Government spoken ? We refer to para. 223 at, pages l13 and l14 of the White Paper on Indian states issued by the Government of India, Ministry of States, a publication to which this Court has referred in several earlier decisions as containing the authentic opinion of Government, on the political questions involved."The position of Junagadh and certain other adjoining States in Kathiawar may also be briefly stated here. After the Nawab of Junagadh had left the State for Pakistan, the administration of this State was taken over by the Government of India on November 9, 1947, at the request of the Nawabs Council. Obviously, the action taken by the Government of India had the fullest approval of the people of Junagadh in that the results of the referendum held in Junagadh and the adjoining smaller States in February 1948, showed that voting in favour of accession to India was virtually unanimous. During the period the Government of India held charge of the state, an Administrator appointed by the Government of India assisted by three popular representatives conducted the administration of the State. In December1948, the elected representatives of the people of Junagadh resolved that the administration of the State be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State with a view to framing a common Constitution for Saurshtra and the Junagadh State. Similar resolutions were adopted by the representatives of Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh. Accordingly a Supplementary Covenant (Appendix XXXVI) was executed by the Rulers of Kathiawar States with a view to giving effect to the aforementioned resolutions. The administration of Junagadh was taken over by the Saurashtra Government on January 20,1949, and of the other states some time calling (sic ?). Accordingly the Constitution treats Junagadh and these states as part of Saurashtra".It would be clear from the aforesaid paragraph that the various steps in the assumption of sovereignty over Junagadh by the Dominion of India, between the dates November 9, 1947 and January 20,1949 were these:(1) The administration of Junagadh was taken over by the Government of India on November 9, 1947 at the request of the Nawabs Council;(2) during the period the Government of India held charge of the State, an Administrator appointed by the Government of India assisted by three popular representatives conducted the administration of the State;(3) in February, 1948 there was a referendum and the People of Junagadh voted in favour of accession to India; but no actual accession took place by the execution of any Instrument of Accession;(4) in December, 1948 the elected representatives of the people of Junagadh resolved that the administration of the State be made over to the Government of Saurashtra and the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State;(5) a Supplementary Covenant (Appendix XXXVI of the White Paper) was executed by the Rulers of Kathiawar States with a view to giving effect to the resolutions aforesaid; and(6) lastly, the administration of Junagadh was taken over by the Government of Saurashtra on January 20, 1949.15. In Dalmia Dadri Cement Co. Ltd. v. Commissioner of Income-tax, 1959 SCR 729 : (AIR 1958 SC 816 ) this Court observed at p. 741 (of SCR) : (at p. 823. of AIR):"In law, therefore, the process of acquisition of new territories is one continuous act of State terminating on the assumption of sovereign powers de jure over them by the new sovereign and it is only thereafter that rights accrue to the residents of those territories as subjects of that sovereign. In other words, under the dominion of a new sovereign, the right of citizenship commences when the act of State terminates and the two therefore cannot co-exist."There may be cases where by a treaty or an agreement there is a change-over of de jure sovereignty at one and the same time and in such a circumstance the change-over may not be a process, but that is not what happened in the case of Junagadh. The administration of Junagadh fell into chaos and disorder and the Government of India stepped in at the request of the Nawabs Council and took charge of the administration through an Administrator on November 9, 1947, the Ruler having fled the country before that date. It is clear to us that there was no change-over of de jure sovereignty on that date. Junagadh State still continued as such and did not cease to exist; otherwise there would be no meaning in the referendum held in February, 1948, or the resolutions passed in December, 1948 by the elected representatives of the people of Junagadh. Nor, would there be any meaning in the Supplementary Covenant executed by the Rulers of Kathiawar States. It is also worthy of note that there was no accession to India by the Junagadh State by the execution of any Instrument of Accession. We may in this connection refer to Ss. 5 and 6 of the Government of India Act, 1935, as they stood at the relevant time Section 5 stated inter alia that the Dominion of India shall, as from the l5th day of August, 1947, be a Union comprising (a) the Governors Provinces (b) the Chief Commissioners Provinces (c) the Indian States acceding to the Dominion in the manner provided by S. 6, and (d) any other arms that may with the consent of the Dominion be included in the Dominion, Junagadh was neither a Governors nor a Chief Commissioners Province. It did not accede in the manner laid down in S. 6. It was not, therefore, a State acceding to the Dominion. Nor do we think that the territory of Junagadh State was included within the territory of the Dominion in the sense of cl. (d) of S. 5 as from November 9, 1947. The process of assumption of sovereignty was not yet complete and the Dominion of India did not treat the territory of Junagadh as part of its own territory. The Dominion Government gave its concurrence to the Supplementary Covenant executed by the Rulers of Kathiawar by which the States of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh were to be integrated with Saurashtra. It is significant that in this Supplementary Covenant Junagadh was mentioned as a separate State, the administration of which was to be integrated with the United State of Saurashtra. It was only when this integration took place that Junagadh ceased to be a separate State. This position appears to us to be beyond any doubt and as been made sufficiently clear by the statements made in para. 223 of the White Paper on Indian States.16. learned counsel for the respondents has relied on certain observations made in well-known text-books on International Law and has contended that State sovereignty and State jurisdiction are complementary and co-extensive; and a right of property and control exercised by the State is really a right of territorial sovereignty and therefore the acquisition of territory by a State can mean nothing else than the acquisition of sovereignty over such territory. (See Schwarzenberger : International Law, 1945, Vol. 1, page 79; Charles Cheney Hyde: International Law, 2nd revised edition, Vol. 1, page 319; Oppenheims International Law, 8th Edn., Vol. 1, page 545). He has contended that in view of the aforesaid observations, it must be held that the Dominion of India assumed sovereignty over Junagadh on November 9, 1947; because, so learned counsel contends, exercising control over a particular territory is exercising sovereignty over it. We do not think that the observations to which learned counsel has referred help in the solution of the problem before us. In cases where the acquisition of new territory is a continuous process, a distinction must be made between de facto exercise of control and de jure assumption of sovereignty. The problem before us is, as was stated in 1959 SCR 729 : (AIR 1958 SC 816 ) as to when the act of State was complete; in other words, when did the assumption of sovereign powers de jure by the view sovereign over territories acquired by it take place? The problem is really one of State succession; namely succession to International Persons as understood in International law. Such a succession takes place when one or more Internationa1 Persons take the place of another International Person in consequence of certain changes in the latters condition; there may be universal succession or partial succession. In the case before us, as long as Junagadh State continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagadh and exercised control therein, it did not assume de jure sovereignty over it. Therefore, the act of State did not terminate till January 20, 1949, when the Dominion of India assumed de jure sovereignty over Junagadh by its integration into the United State of Saurashtra.17. It is perhaps necessary here to refer, to two decision on which learned counsel for the respondents has relied: In re: Southern Rhodesia 1919 AC 211 and Sammut v. Strickland,1938 AC 678. In the first decision it was observed in connection with the conquest of certain territories in Southern Rhodesia, that a proclamation of annexation is not essential to constitute the Crown owner of the territory as completely as any sovereign can be owner of lands public juris; a manifestation of the Crowns intention to that effect by Orders in Council dealing with the lands and their administration, is sufficient for the purpose. These observations were made in the context of a question not between State and State but between sovereign and subject. Lord Sumner said:No doubt a Proclamation annexing a conquered territory is a well-understood mode in which a conquering Power announces its will urbi et orbi. It has all the advantages (and the disadvantages) of publicity and precision. But it is only declaratory of a state of fact. In itself it is no more indispensable than is a declaration of war at the commencement of hostilities. As between State And State special authority may attach to this formal manner of announcing the exercise of sovereign rights, but the present question does not arise between State and State. It is one between sovereign and subject. The Crown has not assented to any legislative act by which the declaration of its will has been restricted to one definite form or confined within particular limits of ceremonial or occasion. The Crown has not bound itself towards its subjects to determine its choice upon a conquest either out of hand or once and for all. If her Majesty Queen Victoria was pleased to exercise her rights, when Lobengula was defeated by her and her subjects, as to one part of the dominions in 1894 and as to another part not until 1898, if she was pleased to do so by public acts of State which indicate the same election and confer the same supreme rights of disposition over his conquered realm as annexation would have done, it is not for one of her subjects to challenge her policy or to dispute her manner of giving effect to it."18. We do not think that these observations help to establish the contention of learned counsel for the respondents that any exercise of administrative control in acquired territory must mean at once that there is an assumption of sovereignty by the in-coming State so as to terminate the act of State. The observations made by Lord Sumner merely show that with regard to territory which the Crown has conquered, the Crowns intention can be manifested in more than one way, and not necessarily by a proclamation. In the case before us a proclamation was issued by the Administrator, but that merely announced that he had assumed charge of the administration of Junagadh State under orders of the Government of India. It made no announcement as to assumption of sovereignty.19. In the second decision one of the questions raised was the true nature of the title of the Crown to the sovereignty of Malta, and a distinction was sought to be drawn between ceded territories, those acquired by an act of cession from some sovereign power, and those ceded by the general consent or desire of the inhabitants. It was held that so far as concerned the prerogative right of the Crown to legislate by Letters Patent or Orders in Council for the ceded colony, the distinction was of no materiality. It is difficult to see how this decision affords any assistance to the respondents. It is indeed true that the people of Junagadh voted for accession to the Dominion of India; but no accession actually took place, and later there was a merger in the United State of Saurashtra with the consent of the people of Junagadh and the Government of India. Till such merger there was no "cession" of territory in the legal sense either with or without the consent of the people.20. In our view, the only conclusion which follows from the facts which we have earlier stated is that there was no assumption of sovereignty by the Dominion of India over Junagadh before January 20, 1949.21. This disposes of the main argument advanced on behalf of the respondents, and it is unnecessary in these appeals to consider the further argument as to what rights the subjects of the ex-sovereign in the acquired territory carried with them as against the new sovereign. At one stage of his arguments, learned counsel for the respondents commended for our acceptance the view of Chief Justice John Marshall in United States v. Percheman, (1831-34) 7 Pet 51 at pp. 86-87 that when the inhabitants of the acquired territory change their allegiance and their relation to the old sovereign is dissolved, their rights of property remain undisturbed, and he suggested that this view was consistent with modern usage of nations and was accepted by the Permanent Court of International Justice. (See the Advisory Opinion of the Permanent Court on the Settlers of German Origin in Territory ceded by Germany to Poland, Series B. No. 6 particularly pp. 35-36). He conceded however, that this Court has accepted the view expressed by the English Courts in Cook v. Sprigg, 1899, AC 572 and the decisions which followed it. That view proceeds on the doctrine that acquisition of territory by conquest, cession or annexation being an act of State, municipal tribunals have no authority to give a remedy in respect of any actions arising therefrom. (See 1959 SCR 729 : (AIR 1958 SC 816 ) and 1960-1 SCR 537 : (AIR 1959 SC 1383 ) ). Therefore, learned counsel was at great pains to establish that the act of State was complete of November 9, 1947 and he argued that thereafter the respondents became citizens of the Dominion of India and under S. 299 of the Government of India Act. 1935 they could not be deprived of property save by authority of law. He relied on two decisions of this Court : Bholanath J. Thakkar v. State of Saurashtra, AIR 1954 SC 680 and Virendra Singh v. State of Uttar Pradesh, 1955-1 SCR 415 : (AIR 1954 SC 447 ), In view of our finding that the act of State did not terminate till the process of acquisition was complete on January 20, 1949, it becomes unnecessary to consider this second step in the argument of learned counsel. But perhaps it is necessary to add that the decision in 1955-1 SCR 415 : (AIR 1954 SC 447 ) was based on the special circumstances mentioned therein which led to the making of the Constitution of India. The learned Attorney-General appearing for the appellant-State has submitted that the principle of Virendra Singhs case, 1955-1 SCR 415 : (AIR 1954 SC 447 ) cannot be extended to the entirely different set of circumstances in which the Government of India Act, 1935 was made and S. 299 thereof did not affect the doctrine that municipal tribunals have no authority to give a remedy in respect of actions arising from an act of State. He also drew our attention to a decision of this Court in Jagannath Agarwala v. Slate of Orissa, Civil Appeals Nos. 666 and 667 of 1957 D/- 8-3-1961 : (AIR 1961 SC 1361 ) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force of the Constitution, it was held that unless the new sovereign had expressly or impliedly admitted the claims, the municipal courts had no jurisdiction in the matter.22. We consider it unnecessary to give our decision on these submissions, because it is obvious that before the Dominion of India assumed de jure sovereignty over Junagadh, the respondents were not in a position to call to their aid the provisions of S. 299 of the Government of India Act, 1935.23. In the appeals before us we are dealing with orders made by the Administrator before the act of State was complete. The action taken by the impugned orders arose out of and during an act of State. That being the position, it is clear that the muncipal tribunals had no authority to give a remedy in respect of such action.24. It remains now to consider the last argument advanced on behalf of the respondents. As was observed in 1960-1 SCR 537 ; (AIR 1959 SC 1383 ) an act of State is an exercise of sovereign power against an alien and is neither intended nor purports to be legally founded. On behalf of the respondents it has been contended that the Administrator purported to cancel or resume the grants under consideration in these appeals in pursuance of law; therefore, it was not open to the appellant - State to take up fine plea of an act of State. We do not think that there is any substance in this argument. Learned counsel for the respondents in Civil Appeal No. 349 of 1958 has drawn our attention to the pleadings, particularly to para. 8 of the written statement filed on behalf of the appellant-State. In that paragraph it was stated that the order of resumption dated January 8, 1949, was legal and the Administrator had authority to resume such inam grant. On the basis of this paragraph it has been contended that inasmuch as the Administrator purported to act under authority of law, it was not open to the appellant-State to raise the plea of an act of State. In this connection we must also refer to para. 17 of the written statement where the appellant-State specifically pleaded that the plaintiff-respondent had no right to bring the suit against Government. In the trial court a specific issue was struck on the question as to whether the court had jurisdiction to hear and determine the suit, and under this issue the argument advanced was that the order of resumption war an act of State not justiciable in the municipal courts. It appears, however, that the appellant-State also took a plea in the alternative that the order of resumption was justified under the rules in force in the Junagadh State. The that court held that the order of resumption was not an act of State. It further held that the order of resumption was not justified by the rules in force in the Junagadh State. In these circumstances it cannot be said that the appellant-State did not plead an act of State; nor can it be said that it was not open to the appellant-State to raise that plea. In the High Court also the same plea of act of State was urged on behalf of the appellant - State but was rejected by the High Court on the basis of its decision in AIR 1953 Sau 180. That decision, we have stated earlier, was overruled by this Court in 1960-l SCR 537: (AIR 1959 SC 1383).25. Learned counsel for the respondents then referred us to an order dated February 9, 1949, in which it was stated that inam grants were resumable at the pleasure of Government and therefore the orders passed on January 8, 1949, could not be cancelled. Apparently the order dated February 9, 1949, was passed on some representation made at the instance of the plaintiffs-respondents. We have to read the two orders, one dated January 8, 1949 and the other dated February 9, 1949 together. If so read, it is clear that the order dated January 8, 1949 was made by the Administrator not under the authority of any law but as an act of State.26. Learned counsel for the respondents relied on the decision in Forester v. Secretary of State 18 Suth WR 349 (PC). In that case, the Privy Council, upon a construction of the treaty or agreement made by the British Government in August, 1805 with Begum Sumroo, held that the Begum was not a sovereign princess but a mere Jagirdar under obligation to keep up, a body of troops to be employed when called upon in the service of the sovereign. On that finding it was held that the resumption of the lands by the British Government upon the death of the Begum was not an act of State but an act done under legal title. We do not think that the principle of that decision applies to the facts of these cases. In Vajesinghji Joravarsingji v. Secretary of State 51 Ind App 357 : (AIR 1924 PC 216 ) Lord Dunedin said that no plea specifically using the words "act of State" was required and the moment cession of territory was admitted, the onus was on the plaintiffs-respondents to prove that the right which they claim had been expressly or tacitly recognised by the new sovereign. If there was no such recognition and none was pleaded in these cases, the municipal courts would have no jurisdiction to give any relief. In this view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents. The action being an act of State was, not justicible in the municipal courts, even if the same were arbitrary.

Decision:
1[ds]The problem is really one of State succession; namely succession to International Persons as understood in International law. Such a succession takes place when one or more Internationa1 Persons take the place of another International Person in consequence of certain changes in the latters condition; there may be universal succession or partial succession. In the case before us, as long as Junagadh State continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagadh and exercised control therein, it did not assume de jure sovereignty over it. Therefore, the act of State did not terminate till January 20, 1949, when the Dominion of India assumed de jure sovereignty over Junagadh by its integration into the United State of Saurashtra.We do not think that these observations help to establish the contention of learned counsel for the respondents that any exercise of administrative control in acquired territory must mean at once that there is an assumption of sovereignty by the in-coming State so as to terminate the act of State. The observations made by Lord Sumner merely show that with regard to territory which the Crown has conquered, the Crowns intention can be manifested in more than one way, and not necessarily by a proclamation. In the case before us a proclamation was issued by the Administrator, but that merely announced that he had assumed charge of the administration of Junagadh State under orders of the Government of India. It made no announcement as to assumption of sovereignty.In our view, the only conclusion which follows from the facts which we have earlier stated is that there was no assumption of sovereignty by the Dominion of India over Junagadh before January 20,is indeed true that the people of Junagadh voted for accession to the Dominion of India; but no accession actually took place, and later there was a merger in the United State of Saurashtra with the consent of the people of Junagadh and the Government of India. Till such merger there was no "cession" of territory in the legal sense either with or without the consent of theIn view of our finding that the act of State did not terminate till the process of acquisition was complete on January 20, 1949, it becomes unnecessary to consider this second step in the argument of learned counsel. But perhaps it is necessary to add that the decision in 1955-1 SCR 415  : (AIR 1954 SC 447  ) was based on the special circumstances mentioned therein which led to the making of the Constitution of India. The learned Attorney-General appearing for the appellant-State has submitted that the principle of Virendra Singhs case, 1955-1 SCR 415  : (AIR 1954 SC 447  ) cannot be extended to the entirely different set of circumstances in whichthe Government of India Act, 1935 was made and S. 299 thereof did not affect the doctrine that municipal tribunals have no authority to give a remedy in respect of actions arising from an act of State. He also drew our attention to a decision of this Court in Jagannath Agarwala v. Slate of Orissa, Civil Appeals Nos. 666 and 667 of 1957 D/- 8-3-1961 : (AIR 1961 SC 1361  ) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force of the Constitution, it was held that unless the new sovereign had expressly or impliedly admitted the claims, the municipal courts had no jurisdiction in thethe trial court a specific issue was struck on the question as to whether the court had jurisdiction to hear and determine the suit, and under this issue the argument advanced was that the order of resumption war an act of State not justiciable in the municipal courts. It appears, however, that the appellant-State also took a plea in the alternative that the order of resumption was justified under the rules in force in the Junagadh State. The that court held that the order of resumption was not an act of State. It further held that the order of resumption was not justified by the rules in force in the Junagadh State. In these circumstances it cannot be said that the appellant-State did not plead an act of State; nor can it be said that it was not open to the appellant-State to raise that plea. In the High Court also the same plea of act of State was urged on behalf of the appellant - State but was rejected by the High Court on the basis of its decision in AIR 1953 Sau 180. That decision, we have stated earlier, was overruled by this Court in 1960-l SCR 537: (AIR 1959 SCthis view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents. The action being an act of State was, not justicible in the municipal courts, even if the same were arbitrary.