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

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.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 underthe 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)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. (Appendixprocess 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, pagea 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 followinghas 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 reportthat 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 followingJunagadh State Government is pleased to order that the land and villages comprising the Handla estate which is an Inam grant be resumed by the Stateorder 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 orderState 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.In Civil Appeals Nos. 220 and 221 of 1958 the impugned order is dated July 27, 1948 and is in thesefive 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 madewill be noticed from what has been stated above that the impugned orders were all made after November 9, 1947, but before January 20, 1949.

Reasoning: 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.