Case: Maharaj Umeg Slng And Others Vs. The State Of Bombay And Others

The Bill was passed by the Legislature on the 22nd September 1953 and received the sanction of the Upper House on the 26th September 1953. The President gave his assent to it on the 13th June 1954 and by a notification dated the 15th July 1954 it was brought into effect from the lst August 1954. In view of the notification the Petitioners filed these petitions on the 30th July 1954 challenging the vires of the Act (hereinafter called the impugned Act) and asking for the issue of appropriate writs restraining inter alia the State of Bombay from giving effect to its provisions. On applications made to this Court on the 31st July 1954 the operation of the impugned Act was stayed pending the hearing and final disposal of the petitions2. The Petitioners in Petitions Nos. 337, 344, 345, 346, 347 and 349 of 1954 are relations of the Ruler of the erstwhile State of Idar. The Petitioners in Petitions Nos. 338 and 342 of 1954 are relations of the Ruler of the erstwhile State of Chhota Udaipur. The Petitioners in Petitions Nos. 339 and 341 are relations of the Ruler of the erstwhile State of Devgad Baria. The Petitioner in Petition No. 343 of 1954 is a relation of the Ruler of the erstwhile State of Rajpipla. The Petitioners in Petition No. 340) of 1954 are jagirdars of the erstwhile State of Rajpipla. The Petitioner in Petition No. 348 of 1954 is a relation of the Ruler of the erstwhile State of Bansda. The Petitioners in Petitions Nos. 365 and 366 of 1954 are jagirdars of the erstwhile States of ldar and Lunawada respectively.The Petitioner in Petition No. 481 of 1954 is a relation of the Ruler of the erstwhile State of Mohanpur. The Petitioners in Petition No. 690 of 1954 are the holders of personal Inams from the erstwhile State of Rajpipla. All the petitioners except the last claim to be hereditary jagirdars under grants made by the respective States for the maintenance of themselves, their families and dependants and hold the jagirs and jiwai jagirs. The holders of the personal Inams in Petition No. 690 of 1954 used to pay salami to the erstwhile State of Rajpipla and are included within the definition of "jagirdar" being holder of jagir villages within the meaning of the definition thereof contained in the impugned Act3. The Petitioner in Petition No. 364 of 1954 claims to be the owner of 60 villages in the patta or territory of Moti Moree comprised in the erstwhile State of ldar as the Bhumia or under-lord and contends that his holding does not fall within the definition of jagir as given in the impugned Act and that therefore in any event the State of Bombay is not entitled to enforce the impugned Act against him.

Reasoning:
10. This argument is not without force, but we do not consider it necessary to decide this question because even assuming that the State of Bombay was bound by these obligations, the question still remains how far the petitioners before us are en titled to enforce these obligations against the State of Bombay. The petitioners were certainly not parties to these agreements of merger and letters of guarantee eo nominee. They could only claim to be parties to the same by reason of the fact that the Rulers of the erstwhile States did not negotiate these agreements of merger or obtain the letters of guarantee only in respect of their personal rights and properties but also represented the States and the subjects in the matter of obtaining the same and the subject of these States were therefore represented by the Rulers and were entitled to the benefit of whatever obligations were undertaken by the Dominion of India qua the States and their subjects. It is therefore arguable that the Rulers of the erstwhile States as also their subjects would be in a position to enforce these obligations. This position was however sought to be negatived by relying upon the following observation of their Lordships of the Privy Council inVajesingji Joravarsingji. v. Secretary of State, AIR 1924 PC 216   (A)12. We do not feel called upon to pronounce upon the validity or otherwise of these contentions also for the simple reason that the petitioners would be out of Court either way.If they were deemed to be parties to the agreements of merger and letters of guarantee they would be faced with the bar to the maintainability of the petitions under Article 363 of the Constitutionwhich lays down that neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India................was a party.If on the other, hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations14. This argument however would not avail the petitioner, because if one looked into the averments contained in their petitions it was clear that the whole ambit of the petitions was to enforce Cl. 5 of the letters ofguarantee.Thepetitioners relied upon Cl. 5 of the letters of guarantee which had been obtained by the Rulers of the erstwhile State from the Dominion Government and complained that the State Legislature had enacted the impugned Act which it had no power to enact having regard to Clause 5 of the said letters of guarantee and were wrongfully depriving the petitioners of the jagir, the ownership of which had been guaranteed. The whole of the petitions were nothing else except the claim to enforce the petitioners rights under the letters of guarantee, and the disputes therefore were clearly in respect of the agreements of merger and the letters of guarantee and were covered by Article 363(1) of the ConstitutionIt could not therefore be urged that what the petitioners were doing was not to enforce the obligations undertaken by the Dominion Government under the agreements of merger and the letters of guarantee, or that the disputes between the parties did not arise out of the provisions of the agreements of merger and the letters of guarantee which were entered into or executed by the Rulers of the respective States and to which the Government of Dominion of India was a party within the meaning of Article 363 of the Constitution17. If that was the position the jurisdiction of this Court was ousted and this Court could not interfere in those disputes, Assuming however that the petitioners were entitled to enforce the obligation and guarantee incorporated in Clause 5 of the letters of guarantee the further difficulty in the way of the petitioners is that the State Legislature was fully competent to enact the impugned Act notwithstanding the terms of theguarantee.Thelegislative competence of the State Legislature can only be circumscribed by express prohibition contained in the constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated to the Lists 2 and 3 of the Seventh Schedule to the ConstitutionThis contention however could not be supported by the terms of Clause 5 which embodied in the first part thereof the terms of the guarantee, and went on to provide in the second part that this guarantee was without prejudice to the right of the Government of Bombay to issue any legislation which did not discriminate against the States and their subjects20. It was therefore not an absolute guarantee but was circumscribed or cut down by the reservation of the power to make law with respect to jagirs provided such law did not discriminate against the States and their subjects. The right of the Government of Bombay which was thus reserved covered the whole of the guarantee embodied in the first part of the clause and there was nothing in these terms which would go to show that the ownership of the jagirs could not be touched and the legislation, if any, was to be enacted in regard to certain incidents of enjoyment of such ownership21. The right of the Government of Bombay to issue any legislation with regard to the enjoyment of the ownership of jagir lands was expressly reserved and this right covered also legislation in regard to the abolition of the jagirs and the Government of Bombay was therefore entitled under the terms of this Clause 5 to issue any legislation in regard to the same provided however that such legislation did not discriminate against the States and their subjects. That was the only fetter or limitation, imposed upon the right of the Government of Bombay to issue any legislation in regard to the enjoyment of the ownership of jagir lands and if that fetter or limitation could also be imposed on the State Legislature the petitioners would have had a right to challenge the impugned Act on the ground that it discriminated against the States and their subjects22.The fetter or limitation upon the legislative power of the State Legislature which had plenary powers of legislation within the ambit of the legislative heads specified in the Lists 2 and 3 of the Seventh Schedule to the Constitution could only be imposed by the Constitution itself and not by any obligation which had been undertaken by either the Dominion Government or the Province of Bombay or even the State of Bombay. Under Article 246 the State Legislature was invested with the power to legislate on the topics enumerated in Lists II and III of the Seventh Schedule to the Constitution and this power was by virtue of Article 245(1) subject to the provisions of the Constitution23. The Constitution itself laid down the fetters or limitations on this power, e. g. in Article 303 or Article 286 (2). But unless and until the Court came to the conclusion that the Constitution itself had expressly prohibited legislation on the subject either absolutely or conditionally the power of the State Legislature to enact legislation within its, legislative competence was plenary. Once the topic of legislation was comprised within any of the entries in the Lists 2 and 3 of the Seventh Schedule to the Constitution the fetter or limitation on such legislative power had to be found within the Constitution itself and if there was no such fetter or limitation to be found there the State Legislature had full competence to enact the impugned Act no matter whether such enactment was contrary to the guarantee given, or the obligation undertaken by the Dominion Government or the Province of Bombay or even the State of Bombay24. The petitioners would have a legitimate grievance in the matter of the deprivation of their rights of ownership of the jagir lands in so far as the States and their subject were discriminated against, but they would not be able to have their grievance redressed by this Court for the simple reason that the State Legislature was at all events competent to enact the impugned Act not being fettered at all by the terms of Clause 5 of the letters of guarantee. The provisions of Article 294 (b) of the Constitution which is said to have transferred the obligations of the Government of the Province to the State of Bombay would not by involving the transference of the obligation undertaken by the Dominion Government in Clause 5 of the letters of guarantee to the State Government impose a fetter or limitation on the legislative competence of the State Legislature to enact legislation on any of the topics enumerated in Lists 2 and 3 of the Seventh schedule to the Constitution. The remedy of the petitioners would be elsewhere and not in this forum27. No argument has been advanced before us which would enable us to hold that the impugned Act was ultra vires the State Legislature, the only ground of attack being that it was in contravention of the guarantee given in Clause 5 of the letters of guarantee. But that position is of no avail to the petitioners28. Considerable argument was addressed before us based on the comparison of the provisions of the various Acts of the Bombay State Legislature enacted during the years 1949 to 1953 in regard to the abolition of the various tenures obtaining within the State of Bombay with the provisions of the impugned Act, with a view to show that the provisions of the impugned Act were discriminatory against the States and their subjects within the meaning of Clause 5 of the letters of guarantee. We have not thought it necessary to refer to the same in view of the conclusion which we have reached above that the impugned Act was intra vires" the powers of the State Legislature and the State Legislature was quite competent to enact the same29.Even if it could be demonstrated, that the provisions of the impugned Act were confiscatory as well as discriminatory in the manner suggested, the jagirs of the petitioners (except in the case of the petitioner in Petition No. 364 of 1954) were all estates within the meaning of the term as defined in Article 31-A(2)(a) of the Constitution and even if the impugned Act provided for the acquisition of the estates or of any rights therein or for the extinguishment or modification of any such rights the impugned Act could not be challenged as void on the ground that it was inconsistent with or took away or abridged any of the fundamental rights conferred by Part III of the Constitution.Any challenge therefore on the ground of the impugned Act violating the fundamental rights of the petitioners under Article 14 or Article 19(1)(f) or Article 31(2) of the Constitution was not available to the petitioners. On the other hand if the grievance was that the impugned Act had brought about discrimination in breach of Clause 5 of the letters of guarantee then the dispute clearly arose out the letters of guarantee and would by Article 363 be placed beyond the jurisdiction of this Court. The petitions of the petitioners except Petition No. 364 of 1954 which would be dealt with immediately hereafter therefore fail and are liable to be dismissedPetition No. 364 of 195436. These allegations and counter-allegations do not however carry the matter any further. In order to exclude Moti Moree and the petitioner from the operation of the impugned Act it will be necessary for the petitioner to establish satisfactorily that Moti Moree is not a jagir within the definition thereof given in the impugned Act. Even though the allegations of the petitioner go far enough to make it probable that Moti Moree was neither held by the petitioner and his ancestors under a grant or was not recognised as a grant by the Ruler of the erstwhile State of Idar that would not be enough to enable us to grant him the relief prayed for by him. The question requires to be completely thrashed out and adjudicated upon by a Court of Law after going into the evidence adduced before it by both the parties. The learned Attorney-General appearing for the State of Bombay has therefore submitted that this question should be enquired into by a proper tribunal and the petitioner should be referred to a civil suit in order to establish his rights.