Case: Sarwarlal And Others Vs. The State Of Hyderabad

Nizam in and before the month of September, 1948 was an absolute ruler invested with all authority, executive legislative and judicial is indisputable. He had supreme powers vested in him to modify, restrict, take away or extinguish the rights of any of his subjects and the validity of his actions or orders was not liable to be questioned before and tribunal or authority.9. The Farman promulgated on September 19, 1948, by His Exalted Highness the Nizam delegated his sovereign authority to the Military Governor and to remove all doubts as to the effect of that delegation, an explanatory Farman dated August 7, 1949,was issued. It was declared in express terms by that Farman that the authority of the Military Governor "included and has always included the authority to make Regulations". In the clearest terms, the author of the Farman proclaimed the content of the authority delegated by him to the Military Governor.10. The plea rather faintly urged by Mr. Varma that the Farman merely recited that the Military Governor had been invested with authority for administration and did not by its own force purport to invest the Military Governor with authority to administer the State is plainly inconsistent with the argument which was advanced in the High Court and the statement of the case filed in this court and was therefore rightly abandoned by him.11. Though by the delegation of authority, the Military Governor was invested with all authority of His Exalted Highness the Nizam in the matter of administration of the State in all its departments, the sovereignty of His Exalted Highness the Nizam was, by this act of delegation, undoubtedly not extinguished. It was open to him, notwithstanding the delegation, to issue orders or Regulations contrary to those which were issued by the Military Governor, and also to withdraw the authority of the Military Governor. There is, however, no evidence on the record to show that after September 19, 1948, and before the Abolition Regulation was promulgated, the authority of the Military Governor was withdrawn or that His Exalted Highness the Nizam had issued any order or Regulation inconsistent with the abolition Regulation.The authority of the Military Governor was withdrawn in December 1949 and the Chief Minister was invested with the same authority of administration including expressly the power of legislation, and it was in exercise of that authority that the Chief Minister issued the Commutation Regulation.12. The authority of His Exalted Highness the Nizam as the sovereign ruler to resume the jagirs and to extinguish the interests of the jagirdars being by delegation vested in the Military Governor, the legality of the action of the latter was not open to challenge on any test of legislative competence. Assuming that no opportunity had arisen for exercise of the sovereign authority in the matter of resumption of jagirs or extinction of the jagirdars interests before the promulgation of the Abolition Regulation, an inference cannot therefrom arise that His Exalted Highness the Nizam had irrevocably placed a restriction on his sovereignty, or that the delegation to the Military Governor of the sovereign authority was subject to an implied restriction that the interests of the jagirdars in the jagirs could not in exercise of the authority be extinguished.13. The authority of the Military Governor, being unrestricted, so long as it ensured, his action is issuing the Abolition Regulation could not be challenged on the plea that it was a colourable exercise of legislative authority. The doctrine of invalidity of legislative provisions enacted in colourable exercise of authority applies to legislatures whose powers are subject to constitutional restrictions. When such a legislative body seeks, under the guise or pretence of complying with the restrictions, in enacting a statute, to evade or elude them, it is but a fraud on the Constitution, and the statute is liable to be declared invalid on the ground that the enactment is in colourable exercise of authority, the statute being in truth beyond the competence of the body. But a statute enacted by a legislative authority whose powers are not fettered by any constitutional or other limitations, cannot be declared invalid as enacted in colourable exercise of its powers.14. The authority of the Chief Minister under the Farman dated December 1, 1949, in its amplitude, was as extensive as that of His Exalted Highness the Nizam and the Commutation Regulation was not liable to be challenged on the ground of want of legislative competence or colourable exercise of legislative authority, the power exercised by him being the legislative power as the delegate of the Sovereign.15. The plea that the fundamental rights of the appellant under the Constitution were infringed by the two Regulations does not require any detailed examination.By virtue of the Abolition Regulation, the rights of the appellant as a jagirdar in his jagir were extinguished and by the Commutation Regulation, the quantum of compensation payable to him was determined by a pre-Constitution legislation. The Regulations were competently promulgated in exercise of legislative authority in that behalf: and the Constitution does not operate retrospectively to revive the rights which had been, before it was enacted, extinguished.The Constitution has, except as otherwise expressly provided, no retrospective operation: Keshavan Madhava Menon v. State of Bombay, (1951) SCR 228 : (AIR 1951 SC 128 ): and rights which were by legislation extinguished, before it was enacted, are not revived thereby.16. At the commencement of the Constitution, the appellant had, therefore, no rights in the jagirs and he, obviously, could not claim a writ of mandamus directing delivery of possession of the jagir, or a writ directing commutation otherwise than under the provisions of the Commutation Regulation.It may also be observed that the Parliament has, by the Constitution (1st Amendment) Act included the Abolition and the Commutation Regulations in the ninth schedule, and by virtue of Article 31-B, the two Regulations are exempt from challenge on the ground that they are inconsistent with or take away or abridge any of the fundamental rights conferred by Part III of the Constitution.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]By the plain words used in the Farman, "all authority for the administration of the State was conferred upon the Military Governor" and there is nothing in the text of the Farman which warrants the view that only executive authority was intended to be delegated thereby. Within the expression. "all administrative authority" is encompassed the entirety of the authority of the sovereign, and by the delegation from His Exalted Highness the Nizam, the Military Governor was invested with that authority in all its amplitude. The injunction to the subjects of the State to carry out all such orders as the Military Governor may deem fit to issue and the appeal to the officers of the State and the appeal to the officers of the State and the subjects to render faithful and unflinching obedience and to conduct themselves in a manner calculated to bring about the speedy restoration of law and order, do not detract from the amplitude of the powers delegated to the Military Governor. The expression, "orders" would include every order made in exercise of authority for the administration of the State; and the object intended to be achieved viz., the speedy restoration of law and order in the State by His Exalted Highness the Nizam as expressed in the appeal was not restrictive of that authority. That His Exalted Highness the Nizam in and before the month of September, 1948 was an absolute ruler invested with all authority, executive legislative and judicial is indisputable. He had supreme powers vested in him to modify, restrict, take away or extinguish the rights of any of his subjects and the validity of his actions or orders was not liable to be questioned before and tribunal or authority.Though by the delegation of authority, the Military Governor was invested with all authority of His Exalted Highness the Nizam in the matter of administration of the State in all its departments, the sovereignty of His Exalted Highness the Nizam was, by this act of delegation, undoubtedly not extinguished. It was open to him, notwithstanding the delegation, to issue orders or Regulations contrary to those which were issued by the Military Governor, and also to withdraw the authority of the Military Governor. There is, however, no evidence on the record to show that after September 19, 1948, and before the Abolition Regulation was promulgated, the authority of the Military Governor was withdrawn or that His Exalted Highness the Nizam had issued any order or Regulation inconsistent with the abolition Regulation.The authority of the Military Governor was withdrawn in December 1949 and the Chief Minister was invested with the same authority of administration including expressly the power of legislation, and it was in exercise of that authority that the Chief Minister issued the Commutation Regulation.12. The authority of His Exalted Highness the Nizam as the sovereign ruler to resume the jagirs and to extinguish the interests of the jagirdars being by delegation vested in the Military Governor, the legality of the action of the latter was not open to challenge on any test of legislative competence. Assuming that no opportunity had arisen for exercise of the sovereign authority in the matter of resumption of jagirs or extinction of the jagirdars interests before the promulgation of the Abolition Regulation, an inference cannot therefrom arise that His Exalted Highness the Nizam had irrevocably placed a restriction on his sovereignty, or that the delegation to the Military Governor of the sovereign authority was subject to an implied restriction that the interests of the jagirdars in the jagirs could not in exercise of the authority be extinguished.13. The authority of the Military Governor, being unrestricted, so long as it ensured, his action is issuing the Abolition Regulation could not be challenged on the plea that it was a colourable exercise of legislative authority. The doctrine of invalidity of legislative provisions enacted in colourable exercise of authority applies to legislatures whose powers are subject to constitutional restrictions. When such a legislative body seeks, under the guise or pretence of complying with the restrictions, in enacting a statute, to evade or elude them, it is but a fraud on the Constitution, and the statute is liable to be declared invalid on the ground that the enactment is in colourable exercise of authority, the statute being in truth beyond the competence of the body. But a statute enacted by a legislative authority whose powers are not fettered by any constitutional or other limitations, cannot be declared invalid as enacted in colourable exercise of its powers.14. The authority of the Chief Minister under the Farman dated December 1, 1949, in its amplitude, was as extensive as that of His Exalted Highness the Nizam and the Commutation Regulation was not liable to be challenged on the ground of want of legislative competence or colourable exercise of legislative authority, the power exercised by him being the legislative power as the delegate of thevirtue of the Abolition Regulation, the rights of the appellant as a jagirdar in his jagir were extinguished and by the Commutation Regulation, the quantum of compensation payable to him was determined by a pre-Constitution legislation. The Regulations were competently promulgated in exercise of legislative authority in that behalf: and the Constitution does not operate retrospectively to revive the rights which had been, before it was enacted, extinguished.The Constitution has, except as otherwise expressly provided, no retrospectiveMadhava Menon v. State of Bombay, (1951) SCR 228 : (AIR 1951 SC 128 ): and rights which were by legislation extinguished, before it was enacted, are not revived thereby.16. At the commencement of the Constitution, the appellant had, therefore, no rights in the jagirs and he, obviously, could not claim a writ of mandamus directing delivery of possession of the jagir, or a writ directing commutation otherwise than under the provisions of the Commutation Regulation.It may also be observed that the Parliament has, by the Constitution (1st Amendment) Act included the Abolition and the Commutation Regulations in the ninth schedule, and by virtue of Article 31-B, the two Regulations are exempt from challenge on the ground that they are inconsistent with or take away or abridge any of the fundamental rights conferred by Part III of the Constitution.