Case: Prem Nath Kaul Vs. The State Of Jammu &amp; Kashmir

1. 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 and Kashmir praying for a declaration that the Jammu and Kashmir Big Landed Estates 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 lands2. 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 and Kashmir (Civil Suit No. 59 of 2007); and Mr. Justice Kilam who had heard the said suit had rejected the plaintiffs contentions and held that the Act was valid3. When the appellants 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 appellants suit was dismissed,4. Against this decree the appellant preferred an appeal in the High Court of Jammu and Kashmir (Civil Appeal No. 4 of 2009) (A. I. R. 1953 J. and K. 25.) 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 dismissed5. 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.

Reasoning:
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 became law, His Highnesss power to assent or not to assent to the bills submitted to him being absolutely unfettered. The ordinances issued by His Highness under S. 38 cannot be repealed or altered by the Praja Sabha by virtue of S. 39; and lastly S. 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 administration 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 ActWhilst 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 S. 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 Maharaja was considerably affected by the provisions of the Instrument of Accession which he signed on 25-10-1947. This argument is clearly untenable. It is true that by cl. 1 of the 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 cl. 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. 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 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 upheld29.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 Singhs proclamation issued on June 20, 1949, did not confer on Yuvaraj Karan Singh the specified powers cannot be acceptedWe are not impressed even by this argument. By this 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 Singhs authority and powers as the Ruler of the which had been conferred on him by the proclamation of his father issued in that behalfThis 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 Art. 370 (1) is made conditional on the final approval by the said Constituent Assembly in the said matters.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 Maharajas 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 rightThe 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 Art. 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 appellants contention based on this article must, therefore, be rejectedIt seems to us that the initial formal application of this article cannot justify the appellants case that the plenary legislative powers vesting in the Ruler of the State 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 Arts. 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" Maxwell on "Interpretation of Statutes," 10th ed., p. 17. 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 succeedIt is clear that the validity of the Act cannot be challenged on the ground that the Act did not provide for the payment of compensationIn our opinion the argument based on the provisions of Art. 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 Art. 254(1) if there is repugnancy between 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 Concurrent List, then subject to the provisions of clause (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 cl. (2) of Art. 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 Art. 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 inapplicable to the State. Besides it is clear that the essential condition for the application of Art. 254(1) 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 Art. 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