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

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 = appeal accepted, 0 = rejected): 1

Explanation:
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.