Case: Rajkumar Narsingh Pratap Singh Deo Vs. State Of Orissa And Anr

The State of Dhenkanal which was an independent State prior to 1947 merged with the Province of Orissa in pursuance of a Merger Agreement entered into between the Ruler of Dhenkanal and the Dominion of India of December 15, 1947. This Agreement came into force as from January 1, 1948. In consequence of this Agreement, the entire administration of the State of Dhenkanal was taken over by the State of Orissa pursuant to the authority conferred on it by the Central Government under S. 3 (2) of the Foreign Jurisdiction Act 1947 (No. 47 of 1947). After the Sanad in question was issued in favour of the appellant, he was getting a monthly allowance of Rs. 500/- from the Dhenkanal District Treasury on the authority of a permanent Pay Order which had been issued in his favour by the Ruler of Dhenkanal on the basis of the said Sanad. This payment was discontinued by the respondent from 1st May, 1949 and the several representations made by the appellant to the various authorities of the respondent to reconsider the matter failed. That is why he filed the present suit on September 26, 1951 in the Court of the Subordinate Judge, Dhenkanal, alleging that the act of discontinuing the appellants pension was illegal, and asking for appropriate reliefs in that behalf. It is from this suit that the present appeal arises.

Reasoning: 7. We do not think that the basic assumption made by Mr. Setalvad in presenting this argument is sound. It would be noticed that the basic assumption on which the argument is based is that in the case of an absolute monarch, there can be no distinction between executive and legislative order. In other words, it is assumed that all orders which are passed by an absolute monarch, (are) binding, and it is idle to enquire whether they are executive or legislative in character, because no such distinction can be made in regard to orders issued by an absolute monarch. It is true that the legislative, executive and judicial powers are all vested in an absolute monarch; he is the source or fountain of all these powers and any order made by him would he binding within the territory under his Rule without examining the question as to whether it is legislative, executive or judicial; but though all the three powers are vested in the same individual, that does not obliterate the difference in the character of those powers. The jurisprudential distinction between the legislative and the executive powers still remains, though for practical purposes, an examination about the character of these orders may serve no useful purpose. It is not as if where absolute monarchs have sway in their kingdoms, the basic principles of jurisprudence which distinguish between the three categories of powers are inapplicable. A careful examination of the orders passed by an absolute monarch would disclose to a jurist whether the power exercised in a given case by issuing a given order is judicial, legislative, or executive, and the conclusion reached on jurisprudential grounds about the nature of the order and the source of power on which it is based would be nevertheless be true and correct. That, indeed, is the approach which must be adopted in considering the question as to whether the grant in the present case is law within the meaning of Art. 372 as well as Cl. 4 (b) of Order 31 of 1948; and so, prima facie, it does not seem sound to suggest that in the case of an absolute monarch, that branch of jurisprudence which makes a distinction between three kinds of power is entirely inapplicable.Now, it is plain that there is no legislative element in any of the provisions of this grant. It does not contain any command which has to be obeyed by the citizens of the State; it is a gift pure and simple made by the Ruler in recognition of the fact that under the custom of the family and the customary law of the State, he was bound to maintain his junior brother. The grant, therefore, represents purely an executive act on the part of the Ruler intended to discharge his obligations to his junior brother under the personal law of the family and the customary law of the State. It would, we think, be idle to suggest that such a grant amounts to law. It is true that partly it is based on the requirement of personal and customary law; but no action taken by the Ruler in discharging his obligations under such personal or customary law can be assimilated to an order issued by him in exercise of his legislative authority. Therefore, we have no difficulty in holding that the Sanad in question is a purely executive act and cannot be regarded as law as contented by Mr.our opinion, there is no substance in this argument. If the act by which the grant was made was purely executive act on the part of the then Ruler of the State of Dhenkanal, we do not see how it can be legitimately urged that the terms of the grant cannot either be modified, or the grant cannot be cancelled altogether by an executive act of the respondent which is the successor of the Ruler. As we have just indicated, the customary law which required the Ruler to provide maintenance for his junior brother, can be said to have been continued by clause 4 (b) of the Order of 1948 and Art. 372 of the Constitution; but to say that the customary law in that behalf is continued is very different from saying that the amount of maintenance fixed by the grant cannot be varied or altered. What the respondent has done is to stop the payment of cash allowance of Rs. 500/- per month and that does not mean alteration of the law.It is common ground that the grant of the land covered by the Sanad has not been disturbed, and so, all that the impugned action of the respondent amounts to is to reduce the total maintenance allowance granted to the appellant by the Ruler in 1931. It is plain that though the customary law requiring provision to be made for the maintenance of the appellant is in force, the respondent has the right to determine what would be adequate and appropriate maintenance, and this part of the right is purely executive in character. It would, we think, be unreasonable to suggest that though the Sanad is not law, the amount granted by the Sanad cannot be modified by an executive act of the respondent, and that the respondent must file a suit for that purpose. All that the customary law requires is the making of a suitable provision for the maintenance of the junior members of the family. But what is adequate provision in that behalf will always be a question of fact which has to be determined in the light of several relevant factors; the number of persons entitled to receive maintenance, the requirements of the status of the members of the family, the total income derived by the family, and other commitments, may all have to be weighed in deciding the quantum of maintenance which should be awarded to anyone of the junior members. In fact, both the Courts below have agreed in holding that having regard to the relevant facts, the grant of the land made by the Sanad would be adequate and appropriate for the maintenance of the appellant.19. But apart form this aspect of the matter, we do not see how the appellant can seriously quarrel with the validity of the respondents action in discontinuing the payment of cash allowance to him. The plea that payment was made for some time after the merger can hardly avail the appellant in contending that the discontinuance is invalid. In the very nature of things, the respondent could not have decided whether the cash allowance should be continued to the appellant or not without examining the merits of the case, and since a large number of such cases had to be examined after merger, if the payment continued to be made in the meantime, that cannot give any valid ground to the appellant to challenge the legality of the ultimate decision of the respondent to discontinue the payment of the said allowance.